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FenzFoot GmbH 2022
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1.1
These terms and conditions shall only apply to entrepreneurs (§ 14 German Civil Code, BGB), legal entities under public law and special funds under public law.
1.2
These terms and conditions shall apply exclusively to all our deliveries, including future deliveries. Deviating or additional terms and conditions of the customer shall not be binding on us, even if we do not object to them in individual cases, unless we expressly acknowledge them. In this case, they shall only apply to the respective individual contract.
1.3
Any agreed written form shall also be deemed to be complied with by tele facsimile or e-mail, except if expressly stipulated otherwise in these terms and conditions.
2.1
Our offers are always subject to change without notice, unless expressly desig-nated as binding. The customer shall be bound by its order for two weeks from the date of receipt by us.
2.2
Orders as well as changes to orders shall only be accepted by us once we have confirmed them. The receipt of a delivery bill or an invoice by the customer as well as the execution of the delivery shall be deemed as confirmation.
2.3
The customer shall be responsible for checking its order and all contractual documents for completeness, correctness and suitability for its intended purpose.
2.4
With the exception of managing directors or authorized signatories, our employees are not authorized to make verbal agreements or give verbal assurances that deviate from or go beyond these terms and conditions or our written order confirmation.
2.5
The conclusion of the contract is subject to the reservation of self-delivery. This shall not apply if we are responsible for the non-delivery or incorrect delivery, in particular if we have not concluded a congruent purchasing transaction. We shall inform the customer without delay of the non-availability of the goods and reimburse any consideration paid without delay.
2.6
In the case of call-off contracts, we agree with the customer on a delivery quantity which the customer calls off within the agreed period. The call-offs must be received by us no later than six weeks before the beginning of the respective delivery month.
3.1
Our prices are based on the list price valid on the day of conclusion of the contract plus the statutory value-added tax ex works and do not include packaging and transport costs. Incidental costs shall be charged upon proof.
3.2
Insofar as the prices are based on our list prices, we shall be entitled to increase the price if delivery is to take place more than four months after conclusion of the contract or takes place for reasons for which the customer is responsible. We shall also be entitled to increase the price if our costs, in particular prices for material, collectively agreed wages, statutory and collectively agreed social benefits and freight costs, increase after the conclusion of the contract and the delivery is to be made more than one month after the conclusion of the contract or can be made for reasons for which the customer is responsible.
3.3
We are entitled to send an electronic invoice (e.g. as a PDF document) by e-mail.
3.4
Our claims are due immediately and payable within 15 days from the date of invoice without deduction in EURO. We shall grant a discount only by separate agreement. In the event of default in payment, we shall have the statutory rights.
3.5
If the customer is in arrears with a pay-ment for more than two weeks, if the customer has suspended its payments or if it becomes apparent after the con-clusion of the contract that our claims are at risk due to the customer’s inability to pay, we may declare our claims from all contracts immediately due for payment. For undelivered goods, we may set a reasonable deadline for advance payment or provision of security; after unsuccess-ful expiry of the deadline, we may with-draw from the contract and demand compensation.
3.6
We shall also be entitled, notwithstanding any determination of the customer to the contrary, to credit the customer’s payments first against its older debts.
3.7
The customer shall only be entitled to set-off or retention, if its counterclaim has been legally established or is undisputed or is based on the same contractual relationship as our claim.
4.1
Information on dates and deadlines for deliveries shall not be binding unless a deadline or date has been expressly agreed as binding as an exception.
4.2
Compliance with dates and deadlines shall always be subject to the condition that all commercial and technical ques-tions between the parties have been clarified and that the customer has ful-filled all its obligations to cooperate and provide materials, including the payment of an agreed down payment. Otherwise, dates and deadlines shall be extended accordingly. We shall always be in default only by a written reminder after the due date.
4.3
In cases of force majeure which make performance substantially more difficult or temporarily impossible for us, we may reasonably postpone the performance of the service without being in default. A case of force majeure shall be deemed to exist, for example, in the event of natural disasters, strikes, official measures, pandemics (e.g. at our, our suppliers’ or the customer’s registered office), by which we are directly or indirectly unforeseeable affected. Disruptions in performance that occur due to a pandemic are also considered force majeure, even if the pandemic is already known. In the event of a delay in performance of more than three months, the parties will negotiate an appropriate adjustment or termination of the contract.
4.4
The customer shall ensure that all coop-eration and provisions required for the performance of the deliveries and ser-vices are provided in a complete, error-free, timely manner and in accordance with the state of the art. Unless agreed otherwise, the customer shall provide its cooperation and provisions at its own expense and risk. If the customer culpa-bly violates its obligations to cooperate and provide and if this results in a delay in our delivery, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. The customer shall be primarily liable to third parties for damages incurred by them due to a cul-pable breach of its obligations to cooper-ate and provide.
4.5
The performance of the contract is sub-ject to the condition that there are no impediments due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or sanctions.
4.6
The customer is obliged to provide all information and documents required for export, shipment respectively import.
4.7
We are entitled to partial deliveries – as far as this appears advantageous for a speedy processing and is reasonable for the customer.
4.8
Our deliveries within Germany shall be EX WORKS – EXW from our warehouse Zep-pelinstraße 4, D-61118 Bad Vilbel (Inco-terms 2020), and otherwise FREE CARRI-ER – FCA from our warehouse Zeppelin-straße 4, D-61118 Bad Vilbel (Incoterms 2020), unless agreed otherwise.
4.9
If shipment of the goods has been agreed, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon their dispatch, at the latest when they leave our works or warehouse – even if we make the delivery or bear the shipping costs. Mode of shipment, route and packaging shall be chosen at our discre-tion in the absence of written instructions from the customer. We shall only take out transport insurance on request and in the name of the customer. The customer shall inspect the goods for transport damage upon receipt. The customer shall inform the transport person immediately of any transport damage and have the damage notification signed by the transport person on the consignment note, forwarding order or delivery bill. The customer shall also inform us immediate-ly of the transport damage by means of a damage report.
4.10
The customer shall immediately inspect the goods received for defects. Obvious defects must be reported immediately in writing, at the latest within ten working days after delivery, and unrecognizable defects at the latest within five days after discovery. In the case of mutual com-mercial transactions between merchants, § 377 of the German Commercial Code (HGB) shall remain unaffected.
4.11
If the shipment is delayed due to cir-cumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for shipment. In this case, we shall be enti-tled to store the goods at our discretion at the costs and risk of the customer and to demand payment of the agreed price. We may charge a flat rate of 1.0% of the invoice amount for each started month for the costs; we reserve the right to prove higher costs and the customer reserves the right to prove lower costs.
4.12
Transport packaging and all other packag-ing in accordance with the German pack-aging regulation (Verpackungsver-ordnung) shall not be taken back and shall be disposed of by the customer at its own expense.
4.13
Our information on the delivery item (e.g. weights, dimensions, utility value, load-bearing capacity, tolerances and technical data) as well as our representations (e.g. drawings) are only approximately, unless the usability for the contractually intend-ed purpose requires an exact match. Deviations customary in the trade and those which are made due to legal regu-lations or represent technical improve-ments, as well as the replacement of parts by equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
Only if the goods are used by trained persons and in accordance with our re-quirements can the specifications stated by us be complied with; otherwise there may also be a risk of damage to property and personal injury. This applies in partic-ular to our specifications regarding fillers, ground and temperature range as well as other specifications to which we refer separately.
6.1
We retain title to our goods (“reserved goods”) until all claims, including future claims, arising from the entire business relationship, including all ancillary claims, have been paid in full. In the case of a current account, the retained title shall be deemed to be security for the balance of the account.
6.2
The customer shall be entitled to sell goods subject to our retention of title in the ordinary course of business. The customer hereby assigns to us all claims arising from the sale, including all ancillary rights. We accept the assignment.
6.3
The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the reserved goods.
6.4
The customer may not pledge the re-served goods or assign them as security. The customer shall notify us in writing of any access by third parties to the re-served goods, in particular seizures. The customer shall be obligated to immedi-ately object to such seizures with refer-ence to our rights.
6.5
In the event of default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the immediate return of the goods.
6.6
We undertake to release reserved goods and assigned claims to the extent that the realizable value of the security ob-jects exceeds 110% of the secured claim. The release shall be effected by transfer of title or reassignment.
6.7
The customer shall bear the costs of taking back and realizing the reserved goods. The costs shall amount to a lump sum of 5% of the realization proceeds including value added tax, unless we prove higher costs or the customer proves that no or lower costs were incurred.
7.1
The agreed quality results from our product description and order confirmation.
7.2
We are only obliged to provide the deliv-ery in Germany free of industrial property rights and copyrights of third parties (property rights). Claims of a customer are excluded if the infringement of prop-erty rights is caused by special specifica-tions of the customer, by an application not foreseeable by us or by the fact that the goods are modified by the customer or used together with products not sup-plied by us.
7.3
The customer shall give us the oppor-tunity to inspect notices of defects – also by third parties. If the notice of defects is unfounded and the customer was able to recognize this, the customer shall be obliged to reimburse us for the expenses incurred for the inspection.
7.4
In the event of defects, we shall, at our discretion, remedy the defect or deliver new goods (subsequent performance). In the event of failure, unreasonableness or refusal of subsequent performance, the customer may reduce the price or – in the case of defects which are not merely insignificant – withdraw from the contract and/or claim damages within the limits of Clause 8.
7.5
We shall only bear expenses in connection with the subsequent performance which arise because the goods sold have been taken to a place other than the agreed place of performance, if this has been agreed accordingly.
7.6
If the customer has installed goods in another item or attached them to another item, we shall not be obliged, within the scope of subsequent performance, to reimburse the customer for the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered non-defective goods. Other claims of the customer remain unaffected.
7.7
The customer may not assign claims for defects.
7.8
The customer’s right of recourse against us pursuant to § 478 of the German Civil Code (recourse of the entrepreneur) and § 445a of the German Civil Code (re-course of the seller) shall exist only to the extent that the customer has not entered into any agreements with its customer exceeding the statutory claims for defects.
8.1
Our liability for damages and reimburse-ment of expenses for slight negligence shall be excluded, in particular for breach of obligations arising from the contractual relationship and from tort, unless we have breached a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract or on the fulfilment of which the customer may regularly rely. In this case, our liability shall be limited to the damage typical for the contract, the occurrence of which we had to expect at the time of conclusion of the contract on the basis of the cir-cumstances known to us.
8.2
Damages up to the amount of the invoice value of our respective delivery shall be deemed to be foreseeable and typical for the contract.
8.3
The customer shall be obliged to draw our attention expressly and in writing to the risk of unusually high damage with each order; otherwise we shall not be liable for such damage. An unusually high damage shall be deemed to exist in par-ticular if the customer has undertaken to pay a contractual penalty, lump-sum damages or other payment in the event of a defect or delay to its customers or other third parties in connection with our delivery to the customer.
8.4
Our liability for damages arising from injury to body, life or health, for intent and gross negligence, for the absence of a guaranteed quality and under the Product Liability Act (Produkthaftungsgesetz) shall be unlimited.
8.5
The above liability provisions shall apply to the same extent in favor of our directors, legal representatives, employees and other vicarious agents.
The limitation period for claims of the customer due to a defect is reduced to one year. The limitation period shall also be one year for claims of the customer for damages and reimbursement of ex-penses which are not based on a defect of the goods. This shall not affect liability for intentional or gross negligent breach-es of duty or liability for damages arising from injury to life, body or health or liabil-ity under the Product Liability Act.
We reserve the property rights and copyrights to illustrations, drawings, calculations, cost estimates and other documents. These documents may only be made accessible to third parties with our prior consent.
11.1
The customer is obligated to treat all commercial and technical information that becomes known to him through the business relationship with us as a trade secret and to use it only for the purposes of the cooperation with us, as long as and to the extent that it is not or does not become generally known, in particular all information marked as “secret”, “confidential” or similar. The information must be carefully stored and protected against unauthorized access by third parties. This applies in particular to vicarious agents (including employees) of the customer. These are to be obligated accordingly in writing; the obligations are to be presented to us upon request.
11.2
Unless already prohibited by copyright or other law, the customer is not permitted to obtain a trade secret by observing, examining, disassembling or testing any products or items provided.
12.1
German law shall apply with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.2
If the customer has its registered office in the European Union, in Norway, Iceland or Switzerland, the following shall apply: If the customer is a merchant, a legal enti-ty under public law or a special fund un-der public law, the place of jurisdiction for all disputes arising from and in connec-tion with the contractual relationship shall be our registered office or, at our discre-tion, the customer’s registered office.
12.3
If the customer has its registered office not in the European Union, Norway, Ice-land or Switzerland, the following shall apply: All disputes arising out of or in connection with the contract or its validi-ty shall be finally settled in accordance with the Arbitral Rules of the German Arbitration Institute (DIS) without re-course to the ordinary courts of law. The number of the arbitrators shall be deter-mined according to Sec. 10.2 of the DIS-Arbitration Rules (2018). The seat of the arbitration is at our registered office. The language of the arbitration shall be Ger-man.
12.4
Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remain-ing provisions.
12.4
In case of contradictions or discrepancies between the German and the English version, the German version shall take precedence.