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General Terms and Conditions of Sales and Delivery

1. Scope
a) The following General Terms and Conditions of Sales and Delivery shall be applicable versus natural persons or legal entities or incorporated partnerships acting upon conclusion of this Contract in the exercise of their commercial or independent vocational activity (entrepreneur) and shall exclusively apply for all – also future – supplies and services from our side. Conflicting general terms of business by the pertinent contracting party are herewith explicitly objected to. Such terms of business by a contracting party shall not obligate us even if we had not explicitly objected to them following their receipt at our office, or if we unconditionally perform services for the contracting party while we know that the contracting party’s terms are in conflict with or deviating from our Terms and Conditions of Sales and Delivery.
b) Deviations from our Terms and Conditions of Sales and Delivery shall only be effective if they have been laid down in writing in the pertinent contract and confirmed by us in writing.
2. Contract Conclusion and Prices
a) Our offers shall always be without engagement. Any contract conclusions and other agreements, particularly also oral side arrangements and undertakings by employees or representatives, shall become binding only with our written confirmation.
b) Upon ordering the goods, the pertinent contracting party shall bindingly declare that it wants to purchase the ordered goods. All sales documents, specifications and price lists shall be treated strictly confidentially and must not be made accessible to third parties. Price quotations in the aforementioned documents shall only be binding as far as these documents are still valid at the time of the contract award and nothing deviating results from our order confirmation.
c) The contract conclusion shall be effected with the proviso that we receive proper and on-time delivery ourselves by our suppliers.
d) As far as nothing else results from the order confirmation, our prices "ex works" shall be applicable for our supplies. Packaging, freight, postage, insurance and delivery fees shall be separately charged. Price quotations shall not include the statutory value-added tax; it shall be separately shown in the invoice in its statutory amount on the date of invoicing.
e) In the event that – due to price developments on the raw material market which are outside of our control (for example due to exchange rate fluctuations, currency business regulations, customs changes and/or a significant increase in material or manufacturing costs) – a consistently higher price prevailed on the raw materials market for the goods ordered by the pertinent contracting party than the price we had confirmed in our order confirmation, we shall be entitled to accordingly increase the price prior to the delivery of the ordered goods and after a corresponding on-time notification of the pertinent contracting party, i.e. up to the price which prevailed on the market. f) As far as the contracting party orders the goods by electronic means, the text of the contract shall be stored by us and sent by e-mail, upon request, to the contracting party, in addition to the available AGBs (General Standard Terms and Conditions).

3. Delivery Deadlines and Dates, Passing of Risk
a) Delivery deadlines and dates shall only be considered as binding in the event of our explicit written confirmation. The delivery deadline for purchase transactions shall begin with the date of our order confirmation; not, however, before the clarification of all technical and commercial details, as well as the submission of any possibly required permits. Any changes concerning the object of the delivery which are requested by the contracting party within the delivery deadline shall interrupt and extend the delivery deadline accordingly.
b) In the event of the delivery of bulk goods, any deviation of up to 3% more or less than the stipulated quantity of goods shall be considered a contractual performance and does not affect the purchase price.
c) Date and deadline agreements shall be under the proviso that supplies and services are not delayed due to delayed deliveries on the supplier’s part, shortage of materials, strike and lockouts, natural disasters and/or other unforeseeable events of force majeure. If there is any obstacle in the aforementioned sense, the corresponding supply or performance deadline, respectively, is extended by the period between the onset and the termination of the reason for the obstacle.
d) In cases of non-availability or, respectively, non-performability of the service due to substantial aggravation or impossibility, we shall be entitled to withdraw from the contract without awarding damages if we had immediately informed the pertinent contracting party about the non-availability of the service owed and obligated ourselves at the same time to reimburse to the contracting party any consideration already received. After we provided the corresponding information, the pertinent contracting party can demand the declaration from us whether we will withdraw or deliver within a reasonable deadline. In the event that we do not make such declaration, the contracting party shall be entitled to withdraw from the contract. The contracting party cannot reject partial supplies or partial services unless it has a legitimate interest in its rejection.
e) The delivery deadline is considered complied with if, until its expiration, the delivery object has left the works, or if readiness for shipment has been notified.
f) If we are in delay, the pertinent contracting party shall be obligated to give us in writing a reasonable deadline for late performance. If the delivery object is not or not completely delivered or, respectively, the service not or not completely rendered within this post-deadline, the contracting party shall be entitled to withdraw from the contract, after expiration of the deadline, with regard to those supplies and services which have not been delivered until the expiration of the post-deadline. With delivery transactions, the dispatch of goods by us shall insofar be equivalent to the delivery. If the contracting party suffers any damage due to a default in delivery for which we are responsible, we shall replace the demonstrably incurred damage; at maximum, however, 5 % of the net value of the goods or service, respectively of the late or failed delivery or service, unless we can be charged with intent or gross negligence. Any claims for damages instead of performance shall be excluded, except in case of grossly negligent or intentional behaviour on our part.
g) We shall be released from the compliance of any delivery deadline if the pertinent contracting party is in payment arrears under earlier contracts or with regard to a partial delivery of an order or does not meet other contract obligations.
h) For the dispatch of goods, the day of dispatch issuing shall be considered the delivery date; in all other cases, that date is decisive on which the pertinent contracting party receives the notification of the readiness of dispatch, delivery or surrender.
i) If shipment of the goods is delayed upon the request of the contracting party, the latter shall be invoiced for the costs incurred due to the storage, beginning one month after notification of the readiness for dispatch, deliver or surrender. In case of storage in our works, at least 0.5% of the corresponding amount of the invoice for every month.
j) Dispatch shall be at the cost of the pertinent contracting party to the same or, according to its information, to third parties. In the event of dispatch, the risk shall pass to the pertinent contracting party as soon as the goods to be delivered has left our works. The same shall apply analogously if the goods to be delivered is dispatched immediately to the contracting party by a preliminary supplier upon our prompting. This shall also apply for partial deliveries or if we accepted further services of another type. If dispatch is delayed by circumstances which the pertinent contracting party is responsible for, risk shall pass to the contracting party with the date of notification of the readiness for shipment to the same.
k) A transport insurance shall principally be concluded by the contracting party at its own costs. Upon the explicit written request by the contracting party, we shall insure the goods to be dispatched against the transport risk. Any obligation to this respect shall only exist for us on the basis of a special written agreement.
4. Reservation of Ownership
a) All delivered goods shall remain our property (conditional goods) until all claims are met; in particular also the pertinent balance receivables which we are entitled to within the scope of the business relationship. This shall also apply for future and conditional receivables. We shall be entitled to the assignment of payment claims which we have versus the buyer.
b) Working and processing of the conditional goods shall be done for us as the manufacturer as defined by § 950 BGB, without obligating us. The worked and processed goods shall be considered as conditional goods as defined by lit. a).
c) For processing, combination and mixing the conditional goods with other goods by the contracting party, we shall have co-ownership in the new object at the ratio of the invoice value of the conditional goods to the invoice value of the other goods used. If our ownership expires due to the combination, mixing or processing, the buyer shall now already assign to us the ownership or, respectively, future rights which it is entitled to in the new inventory or object within the scope of the invoice value of the conditional goods; in case of processing at the ratio of the invoice value of the conditional goods to the invoice value of the other goods used, and it shall safeguard it for us free of charge. Our co-ownership rights shall be valid as conditional goods within the definition of lit. a).
d) The contracting party may only resell the conditional goods in normal business operation at its normal terms of business and as long as it is not in delay, provided that it reserves ownership, and the receivables from the resale pass over to us according to 4. lit. e) and 4. lit. f). The contracting party shall not be entitled to other dispositions regarding the conditional goods. Resale within the definition of this paragraph II. 4. shall also be the utilization of conditional goods for the performance of contracts for services.
e) The receivables of the contracting party from the resale of the conditional goods shall be now already assigned to us. They shall serve as security to the same extent as the conditional goods within the definition of lit. a).
f) If the conditional goods are resold by the contracting party together with other goods, the receivables from the resale shall be assigned to us at the ratio of the invoice value of the conditional goods to the invoice value of the other goods. Regarding the resale of goods in which we have co-ownership shares according to lit. c), a part of the receivables shall be assigned to us which corresponds with our co-ownership share.
g) The contracting party shall be entitled to collect receivables from the resale. The authorization of the contracting party for the disposition of the conditional goods and for collection of the assigned receivables shall expire in case of non-compliance with payment conditions as well as with bill and check protests. At our request, the contracting party shall be obligated to immediately inform its customers about the assignment to us – unless we do it ourselves – and hand over to us the information and documents required for collection. The contracting party shall not be allowed in any event to assign the receivables.
h) If the contracting party is in arrears with the payment and if this indicates a risk of realizability of a not inconsiderable part of our receivables, we shall be entitled to prohibit the resale of the delivered goods, retrieve the goods and, for this, enter the customer’s operation if necessary. Retrieval shall be no withdrawal from the contract.
i) The contracting party shall notify us immediately of any attachment or other interference by third parties.
j) If the value of the existing securities exceeds the secured receivables by more than 10%, we shall be obligated insofar to the release of securities at our option upon request by the contracting party.
5. Warranty
a) The contracting party shall immediately examine the delivered goods after receipt within the meaning of § 377 HGB and immediately complain in writing about any possible defects, at the latest within two weeks after receipt at the place of destination. If the deadline for the complaint is not complied with, the contracting party shall be excluded with regard to any kind of claims concerning the defects not complained of or at a delay.
b) We shall accept no responsibility that the goods are suitable for a specific purpose, unless we had explicitly agreed in writing to such liability.
c) We shall accept no responsibility for defects which are traced back to goods descriptions and/or specifications of the pertinent contracting party. Moreover, we shall accept no responsibility for damages which occur due to moisture, effects of temperature, weather conditions, climate, which are of a chemical or electrochemical type and/or which are incurred as the result of other natural phenomena.
d) We shall not be liable for product faults which result due to faulty installation or utilization, wrongful use or negligence. With reference to the pertinent contracting party, only the manufacturer’s product description shall principally be considered agreed upon as quality of the goods. Public statements, sales talks or advertising by the manufacturer shall not present, aside from that, any contractual quality description of the goods.
e) In case of faulty supplies or services, we shall be given the opportunity to remedy the objected defect at our option either free of cost, or provide either a replacement free of cost against the return of the complained defect, or credit the invoice value, or grant the contracting party a reduction, reasonably safeguarding its interests.
f) If we don’t meet a late performance obligation which we had selected (substitute delivery or rework), or if we do not meet it according to contract, or if the late performance fails, the contracting party shall have – at its option, and within the scope of the statutory obligations – the right of reduction or the right of rescission of contract.
g) Warranty claims by the contracting party shall fall under the statute of limitations in 12 months as of the passing of risk.
h) Claims of the contracting party for violation of a guarantee shall only be considered if we had explicitly confirmed in writing a quality or stability guarantee versus the pertinent contracting party and if we had designated the pertinent guarantee as such. Subject to the pertinent concrete guarantee promises, the contracting party can claim damages because of the breach of a guarantee only insofar as the contracting party was to be secured by the guarantee precisely against damages of the type incurred.
6. Liability
a) Our liability shall be exclusively oriented on these provisions. Any and all claims not explicitly allowed in these provisions shall be excluded; in particular, also damage claims for impossibility, default, breach of secondary contractual obligations (including consultation and the provision of information), fault upon contract conclusion, tort – also as far as such claims are connected with defect claims by the pertinent contracting party. This shall not apply if the claims are due to an intentional or grossly negligent act/omission on our part or, respectively, of one of our legal representatives or vicarious agents; or if they are due to us, our legal representatives or vicarious agents having negligently breached contractual cardinal duties or duties which are otherwise essential for the contract. In these cases, we shall only be liable for the foreseeable, typical damage. We shall also be liable if the culpable injury of life, limb and/or health of a third party is at issue.
b) All claims against us, for whatever legal reason, shall fall under the statute of limitations at the latest in 12 months, unless there is any imputable intentional or deceitful conduct on our part. The statutory limitation periods shall apply in these cases.
c) Liability exclusions according to these conditions shall not apply for claims under the Produkthaftungsgesetz (Product Liability Law).
7. Payment Terms
a) If there are no deviations in our order confirmation, our invoices shall be paid without deduction within a period of 14 days after the date of invoice. Bills and check payments shall require our prior written consent and only be accepted as a conditional payment. All additional costs incurred in this respect (discount charges, etc.) shall be accepted by the pertinent contracting party.
b) If the above date of required payment is exceeded, the pertinent contracting party shall be in default. In this case, we shall be entitled to charge to the contracting party late interest in the amount of 5 percentage points p.a. above the corresponding basic interest rate by the Central European Bank. We shall reserve the right to claim further damage caused by delay. Section (§) 353 HGB (Commercial Code) shall remain unaffected.
c) With regard to partial deliveries and in the event of a default in payment by the contracting party, we may refuse to complete performance still to be rendered by us under the contract until the overdue receivables have been paid to us. Moreover, in such a case, we shall be entitled to demand – in deviation from the regulation indicated above under lit. a) – concurrent payment for the remaining performances still to be rendered.
d) Non-compliance with payment terms, onset of delay or other circumstances which reduce the contracting party’s credit worthiness shall entitle us to immediately make due and payable any and all receivables from the current business relationship.
e) The contracting party shall only have the right to offset with counter-demands if its counterclaims have been unappealably determined, or if they are uncontested or acknowledged by us. The contracting party shall only have a right of retention if its claim has been unappealably determined or acknowledged by us.
8. Final Provisions
a) Our place of registered office shall be the place of performance for all supplies.
b) The jurisdictional venue shall depend on our place of registered office; however, we shall be entitled to also lodge claims against the pertinent contracting party at its registered seat or at any other legally allowed jurisdictional venue. This shall also apply for bill and check liabilities.
c) If a contracting party domiciled outside of the Federal Republic of Germany (extraterritorial buyer) or its agent picks up goods and transports or dispatches them into the outside territory, the contracting party shall provide us with the proof of export which is required under tax laws. If this proof is not provided, the contracting party shall pay that value-added tax rate from the invoice amount which is applicable for supplies within the Federal Republic of Germany.
d) The INCOTERMS in their respectively valid version shall be authoritative for the interpretation of commercial clauses.
e) For any and all supplies and services by us, German law shall exclusively apply, such as it is applicable among residents. The application of the U.N. Sales Convention (CISG) shall be explicitly excluded.
f) The invalidity of individual conditions shall not affect either the validity of the contract or the validity of the remaining conditions.