NThe following terms of delivery and payment apply to a person who, when entering into the contract, carries out his commercial or independent professional activity (entrepreneur) as well as to legal entities under public law or a special fund under public law.
All deliveries and services of FRAM GmbH are based on these conditions as well as any separate contractual agreements. The customer recognizes these conditions as binding for this contract and for all future business. Deviating conditions of the customer, which we do not expressly recognize in writing, are non-binding for us. These will not become part of the contract through silence or through our delivery.
III. Offer and conclusion
- Our offers are subject to change. Orders are only binding for us if we confirm them in writing.
- We reserve ownership and copyrights to samples, cost estimates, drawings and similar information, both physical and non-physical - including in electronic form. They are to be treated confidentially and may not be made accessible to third parties without our consent.
- When ordering on call, we are not obliged to keep stock. We must be given a reasonable period of time. Call orders must be accepted within one year of their confirmation at the latest. Otherwise we have the right to terminate the contract with regard to the service still to be performed..
IV. Delivery time, delivery delay
- Delivery times are only binding for us if they have been expressly confirmed by us as fixed dates. Adherence to the fixed delivery deadlines presupposes the timely receipt of all documents to be supplied by the customer, material supplies, releases, clarification and approval of the plans, compliance with the agreed terms of payment and other obligations. If this is not the case, the delivery period will be extended accordingly. This does not apply if we are responsible for the delay.
- Compliance with the delivery period is subject to correct and timely delivery. The delivery deadline is met if the delivery item has left our factory by the time it expires or readiness for dispatch has been reported. Insofar as an acceptance has to take place, the acceptance date is decisive - in the case of justified refusal to accept the goods, in the alternative, the notification of readiness for acceptance.
- If the dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, he will be charged, starting one month after notification of readiness for dispatch or acceptance, the costs incurred due to the delay.
- If the non-compliance with the delivery time is due to force majeure, industrial disputes or other events beyond our control, the delivery time will be extended accordingly. We will inform the customer of the start and end of such circumstances as soon as possible.
- The customer can withdraw from the contract without setting a deadline if the entire service is finally impossible before the transfer of risk. The purchaser can also withdraw from the contract if it is impossible to carry out part of the delivery with an order and if he has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer has to pay the contract price for the partial delivery. The same applies to inability to meet us. Otherwise, section. VIII / 2. If impossibility or incapacity for which we are not responsible occurs during the delay in acceptance or if the purchaser is solely or largely responsible for these circumstances, he remains obliged to pay the consideration.
- If the customer grants us a reasonable deadline for performance - taking into account the legal exceptional cases - and the deadline is not met, the customer is entitled to withdraw from the contract in accordance with the statutory provisions. Further claims from delayed delivery are determined exclusively according to para. VIII / 2 of these conditions.
- As long as the customer is in default with a liability from an existing business relationship with us, our delivery obligation is suspended.
- We are entitled to make partial deliveries insofar as they are reasonable for the customer.
V. Passing of risk, acceptance
- Dispatch is carried out at the expense and risk of the recipient. If no specific shipping instructions are given to us until the goods are ready for dispatch, we will dispatch the goods at our best discretion.
- The risk passes to the purchaser when the delivery item has left the factory, even if partial deliveries are made or we perform other services, e.g. have taken over the shipping costs or the delivery and installation. If an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance if there is an insignificant defect. If the shipment or acceptance is delayed or omitted as a result of circumstances that are not attributable to us, the risk passes to the purchaser from the day of notification of readiness for shipment or acceptance.
- If the purchaser is responsible for the delay in delivery or acceptance, we can, starting one month after notification of readiness for dispatch or readiness for acceptance, charge the purchaser storage fee amounting to 1/2% of the invoice amount for each month commenced, up to a maximum of 5 % of the invoice amount, unless higher costs can be proven. The purchaser reserves the right to prove that the storage costs are lower.
For material and legal defects in the delivery, we exclude further claims, subject to para. VIII of these conditions guarantee as follows:
- All those parts are to be repaired free of charge at our choice or to be delivered anew, which turn out to be defective due to a circumstance prior to the transfer of risk. The discovery of such defects must be reported to us immediately in writing. Replaced parts become our property.
- The customer must give us the necessary time and opportunity to carry out any improvements or replacement deliveries that we consider necessary; otherwise we are released from liability for the resulting consequences. The purchaser has the right to have the defect remedied by himself or through a third party and to request reimbursement of the necessary expenses only in urgent cases where operational safety is endangered or to prevent disproportionately large damage, whereby we must be informed immediately.
- We bear the necessary expenses for the purpose of the supplementary performance owed by us. If the delivery item is no longer at the place of delivery, we will not bear the resulting additional expenses.
- The purchaser has the right to withdraw from the contract within the framework of the statutory provisions if, taking into account the statutory exceptional cases, we let a reasonable grace period set for us for the rectification or replacement delivery of a material defect pass without effect. If there is only an insignificant defect, the purchaser is only entitled to a reduction in the contract price. The right to reduce the contract price is otherwise excluded.
- In particular, no guarantee is assumed in the following cases:
- unsuitable or improper use
- incorrect assembly or commissioning by the customer or third parties
- natural wear and tear
- incorrect or negligent handling
- improper maintenance
- unsuitable equipment
- defective construction work
- unsuitable building ground
- electrical, electrochemical and chemical influences unless they are our responsibility.
- If the customer or a third party makes improper improvements, we are not liable for the resulting consequences. The same applies to changes to the delivery item, provided this has been made without our prior consent.
- If the use of the delivery item leads to a violation of industrial property rights or copyrights, we will, at our discretion, grant the customer the right to at our expense procure further use or modify the delivery item in a way that is reasonable for the purchaser in such a way that the violation of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer is entitled to withdraw from the contract. Under the above conditions, we also have the right to withdraw from the contract. In addition, we will release the customer from undisputed or legally established claims of the relevant property right holder.
- Our aforementioned obligations under para. VII / 7 are subject to the following conditions under no. VIII / 2 in the event of a violation of property rights or copyright. They only exist if: - the purchaser immediately informs us of an infringement of property rights or copyrights - the purchaser supports us to a reasonable extent in defending against the asserted claims or the implementation of the modification measures enables us to reserve all defensive measures, including out-of-court regulations the legal defect is not based on an instruction from the customer and the violation of the law was not caused by the fact that the customer himself changed the delivery item or used it in a manner not in accordance with the contract.
- If the delivery item cannot be used in accordance with the contract due to our fault as a result of neglected or incorrect execution of proposals and advice given before or after the conclusion of the contract or due to the violation of other contractual ancillary obligations, in particular instructions for operation and maintenance of the delivery item, then the contract shall apply with the exclusion of further claims by the customer VII and para. VIII / 2 accordingly.
- For whatever legal reasons, we are only liable for damage that has not occurred to the delivery item itself:
- in the event of intent
- in the event of gross negligence on the part of the organs or executive staff
- in the event of culpable injury to life, limb or health
- in the event of defects that we fraudulently concealed or the absence of which we have guaranteed
- in the event of defects in the delivery item, insofar as there is liability for personal injury or property damage to privately used items in accordance with the Product Liability Act. In the event of culpable violation of essential contractual obligations, we shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage. We are liable for property damage up to EUR 10 million per event. Further claims are excluded.
VIII. Retention of title, right of lien
- We reserve ownership of the delivery item until all of the buyer's liabilities from our business relationships have been settled. This also applies if the remuneration has been paid for certain deliveries specified by the customer.
- The processing or processing of delivery items that are still our property by the purchaser or his representative is always carried out on our behalf, without any obligations arising for us. If our delivery item is mixed or combined with other items, the customer hereby assigns his ownership or co-ownership rights to the mixed stock or the new item to us and stores them with commercial care for us. The customer is entitled to sell or use our delivery item in the ordinary course of business. Pledging or transfer by way of security is prohibited. The purchaser must inform us immediately of any attachment or any other impairment of our rights by third parties.
- If the customer sells our delivery item, in whatever condition or alone or with other goods, he hereby assigns to us all claims against his customer resulting from the sale until all of our claims have been paid in full. At our request, the customer is obliged to notify the sub-customers of the assignment and to provide us with the information and documents necessary to assert our rights against the sub-customers. He cannot make any contractual agreements with his sub-orderer that limit our rights.
- In the event of behavior contrary to the contract, in particular in the event of delayed payment, we are entitled to take back the delivery item after a reminder, and the customer is obliged to return it. The assertion of the retention of title and the attachment of the delivery item by us do not count as a withdrawal from the contract. 5. The application to open insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item.
IX. Price and payment
- In the absence of a special agreement, the prices apply including loading ex works plus statutory sales tax, excluding packaging and unloading.
- In the absence of a special agreement, payment must be made to us in cash without any deduction.
- The purchaser is only entitled to withhold payments or to offset counterclaims to the extent that his counterclaims are undisputed or have been legally established.
X. Statute of limitationsg
All claims of the customer for whatever legal reasons come under the statute of limitations in twelve months. The statutory deadlines apply to claims arising from willful or grossly negligent behavior, injury to life, limb and health as well as claims under the Product Liability Act. The start of the limitation period is determined by law.
- In all disputes arising from the contractual relationship, if the purchaser is a fully qualified merchant, a legal entity under public law or a special fund under public law, the suit must be brought before the court that is responsible for our headquarters or for our executive branch responsible is. We are also entitled to sue at the customer's headquarters.
- The law of the Federal Republic of Germany applies. The place of fulfillment and jurisdiction is exclusively the location of the supplier.
- Note according to § 33 BDSG: Personal data of the customer are stored by us for the purpose of contract processing, advertising and market research for our own purposes.
- Should any of these conditions be or become ineffective for any reason, this does not affect the effectiveness of the other conditions.
Telefon : +49 (0) 5422 9214813
Geschäftsführung: Frank Rokossa
HRG: Amtsgericht Osnabrück