FESIL SALES GmbH
General Terms and Conditions of Sales and Delivery
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
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
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
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
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
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
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
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
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.
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
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
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
f) The invalidity of individual conditions shall not affect either the
validity of the contract or the validity of the remaining conditions.