General Terms and Conditions
General Terms and Conditions of Business and Delivery Online Shop
For use in business transactions with entrepreneurs
As of February 2015
Article I: General Provisions
1.)
Legal relations between the Supplier and the Customer in connection with consignments and/or services provided by the Supplier (hereinafter: “Orders”) shall be governed exclusively by these General Terms and Conditions. The Customer’s General Terms and Conditions shall apply only if the Supplier has expressly agreed thereto in writing. The scope of the Orders shall be governed by the mutual concordant written declarations.
2.)
The Supplier shall conclude contracts solely with entrepreneurs within the meaning of the law. An entrepreneur is any natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his, her or its trade, business or profession.
3.)
The Supplier reserves its unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and any other documents (hereinafter: “Documents”). The Documents may be disclosed to third parties only with the Supplier’s prior consent and shall be promptly returned to the Supplier upon its request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Customer’s Documents; however, these may be disclosed to such third parties, to whom the Supplier has duly subcontracted Orders.
4.)
The Customer shall have the non-exclusive right to use standard software and firmware having the agreed features in unaltered form on the agreed devices. The Customer may create a backup copy of the standard software without express agreement.
5.)
Partial deliveries of Orders shall be permitted, provided such deliveries are reasonable for the Customer.
6.)
The term “claims for damages” within the meaning of these General Terms and Conditions shall also include claims for reimbursement of frustrated expenditures.
Article II: Contracting Party
The Contracting Party for any and all Orders within the framework of this online contract is FRIWO Gerätebau GmbH, Von-Liebig-Strasse 11, 48346 Ostbevern, Germany, legally represented by the Managing Director Rolf Schwirz, Local Court (Amtsgericht) of Münster-HRB 9325.
Article III: Conclusion of Contracts
1.)
The Customer may select products from the Supplier’s product range and add these to the shopping cart by clicking the “Add to shopping cart” icon. By clicking the “Confirm purchase” icon, the Customer makes a legally binding order to purchase the goods in the shopping cart. The Customer may change or view the data at any time prior to sending the order. However, the order can only be sent and transmitted if the Customer has accepted these Terms and Conditions by clicking the “Accept Terms and Conditions” icon thereby accepting their applicability to its order.
2.)
The order confirmation, which is automatically transmitted after the order has been sent, confirms the content and the receipt of the Customer’s order; it shall not, however, constitute an acceptance of the Customer’s binding order. The Supplier shall declare acceptance either by sending a dispatch confirmation or by sending the goods within five working days after receipt of the Customer’s order. If the Supplier does not declare acceptance within this period, then the Customer’s order shall be considered not accepted. A contract shall be concluded only upon the Supplier’s declaration of acceptance, which shall be sent in a separate email (order acknowledgement or dispatch confirmation), but no later than upon the dispatch of the order.
Article IV: Prices, Terms of Payment, Offsetting
1.)
All prices are quoted ex works, excluding packaging, plus the respectively applicable statutory VAT.
2.)
Unless otherwise agreed, if the Supplier has undertaken installation or assembly the Customer shall, in addition to the agreed remuneration, bear any and all necessary ancillary costs such as travel expenses and carriage as well as per diem rates.
3.)
Payments shall be made to the Supplier’s paying agent without deductions.
4.)
The Customer may only offset such claims which are either undisputed or which have been legally established.
Article V: Retention of Title
1.)
The items in Orders (Reserved Merchandise) shall remain the Supplier’s property until all of its claims against the Customer arising in connection with the business relationship have been settled. If the combined value of the Supplier’s security rights exceeds the amount of the secured claims by more than 20%, the Supplier shall, at the Customer’s request, release a corresponding portion of the security interests; the Supplier shall have the right to choose between different security interests.
2.)
As long as the retention of title is effective, the Customer shall be prohibited from pledging the Reserved Merchandise or pledging it as security and shall be entitled to sell the Reserved Merchandise only to re-sellers in the ordinary course of business and only subject to the condition that the reseller receives payment from its customers or subject to the reservation that ownership of the Reserved Merchandise shall pass to the customer only once it has fulfilled its obligation to effect payment.
3.)
The Customer hereby assigns to the Supplier its future receivables, including any and all collateral claims, including any offset rights, in respect of sales of Reserved Merchandise to its customers by way of security in the event that the Customer resells Reserved Merchandise; a subsequent, separate declaration to this effect shall not be necessary. If the Reserved Merchandise is resold together with other items, without a separate price having been agreed for the Reserved Merchandise, the Customer shall assign that portion of the total price to the Supplier, which is equivalent to the price of the Reserved Merchandise invoiced by the Supplier.
4.a.)
The Customer shall be entitled to process the Reserved Merchandise or to combine or to incorporate Reserved Merchandise with or into other objects. The processing shall be done on behalf of the Supplier. The Customer shall keep the new item created thereby in safe custody for the Supplier with the due care and diligence of a prudent businessman. The new item shall be deemed to be Reserved Merchandise.
4.b.)
The Supplier and the Customer hereby agree that, if Reserved Merchandise is incorporated into or combined with other items, which do not belong to the Supplier, the Supplier shall in any event acquire co-ownership of the new item in proportion to the value of the incorporated or combined Reserved Merchandise relative to the value of the rest of the item at the time it was incorporated or combined. The new item shall, to this extent, be considered to be Reserved Merchandise.
4.c.)
The provisions governing the assignment of claims pursuant to Paragraph 3.) shall also apply to the new item. However, the assignment shall not exceed the amount corresponding to the value invoiced by the Supplier for the processed, incorporated or combined Reserved Merchandise.
4.d.)
If the Customer incorporates the Reserved Merchandise into real property or chattels, it shall also assign the claims to consideration for the incorporation, including any and all collateral claims, to the Supplier by way of security in proportion to the value of the incorporated Reserved Merchandise relative to the value of the rest of the item at the time of the incorporation; a subsequent, separate declaration to this effect shall not be necessary.
5.)
The Customer shall be entitled to collect the assigned receivables from the resale until such authorisation is revoked. The Supplier shall be entitled to revoke the Customer’s authorisation for good cause; good cause shall lie in particular in the case of default in payment, suspension of payment, the opening of insolvency proceedings, protest of a bill of exchange or where there are substantiated indications that the Customer is over indebted or that insolvency is impending. Furthermore, the Supplier may, after prior notification and expiry of a reasonable grace period, disclose the assignment by way of security, realise the assigned claims and request that the Customer disclose the assignment by way of security to its customers.
6.)
The Customer shall immediately notify the Supplier of any executions, seizures or other dispositions or interventions by third parties. If a legitimate interest is demonstrated the Customer shall immediately provide the Supplier with any information necessary for the assertion of its rights against the customer and turn over the necessary documents.
7.)
In the event that the Customer commits a breach of duty, in particular defaults in payment, the Supplier shall be entitled to rescind the contract and repossess the Reserved Merchandise after a reasonable grace period for the Customer to effect payment has expired to no avail; the statutory provisions governing the dispensability of setting a deadline shall remain unaffected. The Customer shall return the Reserved Merchandise. The repossession, the assertion of the retention of title or the seizure of the Reserved Merchandise by the Supplier shall not constitute a rescission of the contract unless the Supplier expressly declares that this is the case.
Article VI: Deadlines for Orders; Default
1.)
The timely receipt of any and all documents to be provided by the Customer, approvals, permits or licences and releases required, in particular plans and compliance with the agreed terms and conditions of payment and other obligations of the Customer, shall constitute preconditions for compliance with deadlines for Orders. If these preconditions are not satisfied in a timely manner then the deadline shall be extended by a reasonable period; this shall not apply if the Supplier is responsible for the delay.
2.)
Where the non-compliance with the deadline is caused by
a.)
force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strikes, lockouts),
b.)
viruses or other attacks on the Supplier’s IT system by third parties, provided these occur despite the Supplier’s having complied with the standard security standards,
c.)
impediments arising out of German, US or other applicable national, European or international provisions of foreign trade law or due to other circumstance for which the Supplier is not responsible, or
d.)
the Supplier not receiving its own supplies in a timely or proper manner,
the deadlines shall be extended by a reasonable period.
3.)
If the Supplier is in default, the Customer may – where it substantiates that the default has caused it to suffer damage – request compensation of 0.5% for each full week of the default, but no more than 5%, of the value of each part of the Order which cannot be used as agreed due to the delay.
4.)
Both the Customer’s claims for damages due to a delay in the delivery of the Order as well as claims for damages in lieu of performance, which exceed the limits mentioned in Paragraph 4.),[1] shall in all cases be deemed delayed Orders, even after expiry of a grace period set for the Supplier to deliver the goods, and shall be excluded.[2] This shall not apply where liability is based on wilful conduct, gross negligence or due to injury to life, physical injury or impairments of health. Within the framework of the statutory provisions, the Customer may rescind the contract only if the Supplier is responsible for the delay in the delivery of the Order. The foregoing clause shall not imply a shift in the burden of proof to the Customer’s detriment.
5.)
At the Supplier’s request the Customer shall state within a reasonable period whether it will rescind the contract due to the delay in delivery or insist on delivery.
6.)
If, upon the Customer’s request, the dispatch or delivery of an Order is postponed for more than one month after notice that dispatch is ready, the Customer may be invoiced for storage fees in the amount of 0.5% of the price of the items of the Order for every month commenced, no more, however, than a total of 5%. The Parties reserve the right to establish that higher or lower costs have actually been incurred for storage during this period.
Article VII: Passing of Risk
1.)
The risk shall pass to the Customer as follows, even in the case of carriage free delivery:
a.)
in the case of delivery without installation or assembly, when the consignment is handed over to the carrier or is picked up. At the Customer’s request and cost the Supplier shall insure the consignment against the standard transport risks;
b)
in the case of delivery with installation or assembly, on the date of the acceptance on the Customer’s own premises or, where stipulated, following a successful trial operation.
2.)
The risk shall pass to the Customer if the dispatch, delivery, commencement, performance of installation or assembly work, the acceptance on the Customer’s own premises or the trial operation has been delayed owing to reasons for which the Customer is responsible, or if the Customer is in default in acceptance for any other reason.
Article VIII: Installation and Assembly
Unless otherwise agreed in writing, the following provisions shall govern installation and assembly:
1.)
The Customer shall perform the following at its own cost and provide the following in good time:
a.)
all ground work, construction work and other ancillary work which does not fall within the scope of work in this sector including any necessary specialists and auxiliary workers, building materials and tooling;
b.)
any items and materials required for assembly and commissioning such as scaffolding, hoisting and other equipment, fuel and lubricants;
c.)
energy and water at place of use including connections, heating and lighting;
d.)
at assembly site, sufficiently large, dry and lockable areas for storing machine parts, equipment, materials, tools, etc. and suitable working and break rooms for assembly staff including sanitary facilities suitable for the circumstances; the Customer shall also take the same measures to protect the Supplier’s property and assembly staff on the construction site that it would take to protect its own possessions;
e.)
protective clothing and facilities that are necessary for the assembly staff due to special circumstances.
2.)
Before the assembly work begins, the Customer shall provide without prompting necessary information on the location of concealed power, gas and water lines/pipes and any similar installations as well as any necessary structural load data.
3.)
Before the commencement of installation and assembly work, equipment and items which are necessary therefor must be available on the installation and assembly site and any preliminary work must be sufficiently advanced to allow installation and assembly to begin as agreed and to be executed without interruption. Access areas to and on the installation and assembly site shall be levelled and cleared.
4.)
If the installation, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Customer shall bear the reasonable costs incurred for idle time and any additional necessary travel expenses or costs for assembly staff incurred by the Supplier.
5.)
The Customer shall provide the Supplier with weekly reports recording the hours worked by assembly personnel without undue delay and the end of the installation, assembly or commissioning.
6.)
If the Supplier stipulates acceptance of the Order after completion, the Customer shall issue its declaration of acceptance within two weeks. If the Customer lets the two-week period expire without comment or if the Order has been put into use – where applicable after an agreed trial period – the Order shall be deemed to have been accepted.
Article IX: Acceptance
The Customer may not refuse to accept the Order in case of non-substantial defects.
Article X: Defects in Quality
The Supplier shall be liable for defects in quality as follows:
1.)
All parts or services, which have a defect in quality, shall, at the Supplier’s discretion, be remedied or replaced or the service shall be performed again free of charge, provided the cause of the defect was already present at the time the risk passed.
2.)
Claims to supplementary performance shall become time-barred after 12 months from the beginning of the statutory limitation period; this shall also apply mutatis mutandis to rescission and reduction of the price. This time limitation shall not apply where a longer period of liability is prescribed by law pursuant to Secs. 438 (1) no. 2 (building structures and items for building structures), 479 (1) (right of recourse) and Sec. 634a (1) no. 2 (construction defects) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) or for wilful conduct, fraudulent concealment of a defect, or non-compliance with a guarantee of condition. The statutory provisions governing suspension of expiration of prescription, interruption of the statute of limitations and recommencement of the running time shall not be affected.
3.)
The Customer shall immediately give notice of defects in writing.
4.)
If the Customer provides notice of defects, it may withhold payments in an appropriate amount commensurate with the defects which have occurred. The Customer may only withhold payment if the validity of the notice of defects asserted is beyond doubt. The Customer shall have no right of retention where its warranty claims have become time-barred. If the notice of defect is not justified, the Supplier shall be entitled to request that the Customer reimburse the expenses it incurred.
5.)
The Supplier shall be granted the opportunity to effect subsequent performance within a reasonable grace period.
6.)
If the subsequent performance fails to remedy the defect, notwithstanding any claims for damages pursuant to Paragraph 10, the Customer may rescind the contract or reduce the price.
7.)
The Customer shall not have a warranty claim for non-substantial deviations from an agreed condition, for non-substantial impairment of use, or where the defect was caused by normal wear and tear, improper or careless handling after the risk has passed, excessive use, unsuitable equipment, defective construction work, unsuitable building ground or due to special external factors which are not provided for in the contract or for non-reproducible software errors. Likewise, if modifications or maintenance is carried out improperly by the Customer or a third party, warranty claims shall not be able to be asserted for these or the resulting consequences.
8.)
Claims by the Customer for necessary expenditures incurred for the purpose of the subsequent performance, in particular carriage, road costs, labour costs and cost of materials, shall be excluded if these expenditures increase because the goods delivered by the Supplier were subsequently transported to a location other than the Customer’s place of business, unless such transport is consistent with the goods’ intended use.
9.)
The Customer shall have rights of recourse against the Supplier pursuant to Sec. 478 BGB (recourse of the entrepreneur) only insofar as no agreements have been made between the Customer and the Customer’s customer that exceed the mandatory statutory rights governing warranty claims. Paragraph 8 shall apply mutatis mutandis to the scope of the Customer’s right of recourse against the Supplier pursuant to Sec. 478 (2) BGB.
10.)
The Customer shall have no claims for damages based on defects in quality. This shall not apply in the case of fraudulent concealment of a defect, non-compliance with a guarantee of condition, injury to life, physical injury or impairments of health and wilful or grossly negligent breach of duty by the Supplier. The foregoing clause shall not imply a shift in the burden of proof to the Customer’s detriment. The Customer shall not have any more extensive claims or claims other than those foreseen in this Article X for defects in quality.
Article XI: Industrial Property Rights and Copyright; Defects in Title
1.)
Unless otherwise agreed, the Supplier shall be obliged to effect delivery of the Order free of industrial property rights and copyrights of third parties (hereinafter: “Intellectual Property Rights”) only in the country of delivery. If a third party asserts valid claims against the Customer on the grounds that the Order delivered by the Supplier and used in conformity with the contract infringe its Intellectual Property Rights, the Supplier shall be liable to the Customer within the period stipulated in Article X Paragraph 2.) as follows:
a.)
The Supplier shall, at its discretion and at its cost, obtain a right of use for the Orders concerned, modify them so that the Intellectual Property Right is not infringed, or exchange it. If the Supplier is unable to do this on reasonable conditions, the Customer shall be entitled to assert the rights of rescission and reduction of price provided for by law;
b.)
the Supplier’s obligation to pay damages shall be in accordance with Article XIV;
c.)
the Supplier’s aforementioned obligations shall exist only when the Customer has immediately notified the Supplier in writing of the claims asserted by the third party, does not concede an infringement has occurred and all rights of defence and settlement negotiations continue to be reserved for the Supplier. If the Customer ceases to use the Order due to the assertion of claims for damages or for any other good cause, it shall notify the third party that no acknowledgement of the alleged infringement may be inferred from the discontinuation.
2.)
The Customer’s claims shall be excluded where it is responsible for the infringement of the Intellectual Property Rights.
3.)
Furthermore, the Customer’s claims shall be excluded if the infringement of the Intellectual Property Rights is attributable to the Customer’s specific instructions, an application which was not foreseeable for the Supplier, or was caused by the Customer’s modifying the Order or caused by use of the Order together with other products not delivered by the Supplier.
4.)
In the case of an infringement of Intellectual Property Rights, the provisions of Article X Paragraphs 4.), 5.) and 9.) shall otherwise apply mutatis mutandis to the Customer’s claims mentioned in Paragraph 1.a.).
5.)
The provisions of Article X shall apply mutatis mutandis to other defects in title.
6.)
The Customer shall have no more extensive claims or claims other than those set out in this Article XI against the Supplier or its vicarious agents for defects in title.
Article XII: Conditional Performance
1.)
The performance of this contract is conditional on there being no impediments arising out of German, US or other applicable national, European or international provisions of foreign trade law or any embargoes or other sanctions.
2.)
The Customer shall provide any information and Documents, which are necessary for export, transport or import purposes.
Article XIII: Impossibility of Performance, Adjustment of the Contract
1.)
To the extent that it is impossible to effect delivery of the Order, the Customer shall be entitled to assert claims for damages unless the Supplier is not responsible for the impossibility of performance. However, the Customer’s claim for damages shall be limited to 10% of the value of that portion of the Order, which cannot be put to the intended use due to the impossibility of performance. This limitation shall not apply where liability is based on wilful conduct, gross negligence or due to injury to life, physical injury or impairments of health; the foregoing clause shall not imply a shift in the burden of proof to the Customer’s detriment. The Customer’s right of rescission shall not be affected.
2.)
Where events within the scope of Article VI Paragraphs 2.a) to 2.c.) substantially change the commercial relationships or the substance of the Order or significantly affect the Supplier’s business operations, the price shall be appropriately adjusted in accordance with the principles of good faith. If this is not commercially reasonable, the Supplier shall have the right to rescind the contract. The same shall apply if the required export licences are not issued or cannot be used. If the Supplier intends to exercise its right of rescission, it shall, as soon as it is aware of the scope of the consequences, immediately inform the Customer of its intent; this shall also apply even if an extension of the delivery date had initially been agreed with the Customer.
Article XIV: Other Claims to Damages
1.)
Unless otherwise stipulated in these General Terms and Conditions, the Customer shall have no claims to damages, irrespective of the legal basis therefor, in particular on the basis of a breach of duty arising from the relationship under the law of obligations and tort.
2.)
This shall not apply where liability is based on:
a.) the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG);
b.) wilful conduct;
c.) gross negligence on the part of the owners, legal representatives or executive staff;
d.) fraudulent intent;
e.) failure to comply with a guarantee granted;
f.) culpable injury to life, physical injury or impairments of health; or
g.) culpable breach of essential contractual obligations.
However, claims for damages based on a breach of essential contractual obligations shall be limited to the foreseeable damage which is intrinsic to the contract, provided that none of the other aforementioned cases applies.
3.)
The foregoing provisions shall not imply a shift in the burden of proof to the Customer’s detriment.
Article XV: Data Processing
1.)
The Supplier collects data from the Customer in the course of performing contracts. In the course of doing so it shall observe in particular the provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) and the German Telemedia Act (Telemediengesetz, TMG). In the absence of the Customer’s consent the vendor shall only collect, process or use the Customer’s master and user data to the extent that this is necessary for the performance of the contract and for the usage and invoicing of telemedia.
2.)
The Supplier shall not use the Customer’s data for advertising, marketing or survey purposes without the Customer’s consent.
3.)
The Customer shall have the possibility of retrieving, changing or deleting the data it stored at any time by clicking the “My data” icon in its profile. Regarding the consents granted by the Customer and further information relating to data collection, data agreements and use of data, reference is also made to the data protection statement, which may be retrieved in printable form on the Supplier’s website under the category “Legal notices”.
Article XVI: Venue and Applicable Law[3]
1.)
The Supplier’s registered office shall be the sole venue for any disputes arising directly or indirectly from the contractual relationship. However, the Supplier shall also be entitled to bring legal action at the Customer’s registered office or domicile.
2.)
This contract and its interpretation shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
3.) The authentic language of the contract shall be German.
Article XVII: Binding Effect of the Contract
Even if individual provisions of this contract are legally invalid, the remaining provisions shall remain valid. This shall not apply if continuing the contract would create an unreasonable burden for one of the Parties.
End of the General Terms and Conditions of Business and Delivery Online Shop