GENERAL TERMS AND CONDITIONS OF SALE
1. SCOPE OF APPLICATION
The following terms and conditions ("Terms of Sale") shall apply exclusively for the supply of goods and the provision of services (including work) by Fertinger Tubes*. Any and all quotations, order confirmations and other declarations made by Fertinger Tubes shall be subject to the exclusive applicability of these Terms of Sale for the contract concluded with the customer. Any general terms and conditions of the customer shall not apply, even if the customer refers to those in its purchase order or otherwise in connection with a purchase order. The customer confirms that it has received, carefully studied and accepts all stipulations of these Terms, including but not limited to the stipulations in bold, which differ from standard contractual practice or applicable law.
2. QUOTATIONS AND ORDERS
Fertinger Tubes` quotations shall be subject to confirmation. Contracts with Fertinger Tubes shall not be deemed to have been concluded until purchase orders placed by the customer have been accepted or confirmed by Fertinger Tubes in writing. Amendments and additions to contracts must be made in writing to be effective.
3. PRICES AND PAYMENT TERMS
Unless otherwise agreed in writing, all prices are FCA (according to Incoterms 2010) and exclude delivery cost and all statutory sales, value added or similar taxes, except for taxes on Fertinger Tubes` income. For profiles the prices shall be including simple customary packaging; for specific packaging (e.g. containers) additional fees will be charged.
Unless otherwise agreed, payments shall be due without deduction thirty (30) days after the date of invoice. In the event of a significant deterioration of the customer's financial situation, or if the customer does not meet its payment obligations to Fertinger Tubes in due time, Fertinger Tubes reserves the right to amend these payment terms, in particular to request advance payment or appropriate collateral securities.
Fertinger Tubes shall be entitled to charge default interest in the amount of the statutory default interest rate above the respective base rate and to suspend further deliveries and/or services, if payment of an invoice has not been effected on the due date. Fertinger Tubes` right to claim higher damages shall remain unaffected. The customer shall only have a right of set-off if its counterclaims are legally ascertained or undisputed. The customer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contract.
Unless otherwise agreed, deliveries shall be effected FCA, however with the freight forwarder designated by Fertinger Tubes. Delivery costs shall be borne by the customer pursuant to clause 3.
The delivery dates or times confirmed by Fertinger Tubes in writing presume that all commercial and technical details are clarified and that all certificates required at the time of acknowledgement of the purchase order are available; they are extended accordingly in case of delays.
Delivery prior to an agreed delivery date is always allowed. A delivery delay shall be established in accordance with the statutory provisions; provided, however, that a reminder note by the customer shall always be required. In case of a delivery delay caused by Fertinger Tubes neither intentionally nor gross-negligently and exceeding a grace period of one week, Fertinger Tubes shall be liable for liquidated damages of 0.5% of the price of the delayed products per additional completed week of delay, not to exceed a total maximum of 5% of the price of the delayed products. Further claims for damages shall be excluded. Fertinger Tubes reserves the right to deliver products in more than one consignment and to invoice each consignment separately. Unless otherwise set out in the order confirmation, Fertinger Tubes shall be entitled to exceed or fall short of the agreed delivery quantity by up to 10%.
If the customer does not accept delivery of the products at the agreed site or within the agreed period, Fertinger Tubes shall be entitled, in its sole discretion, to withdraw from the contract or demand immediate payment for the products. In the latter case, Fertinger Tubes will store the products at the expense and risk of the customer. The same shall apply if, in case of a frame agreement or call-off sale, the products are not called off within the agreed time period. Further claims for damages by Fertinger Tubes shall remain unaffected.
5. RETENTION OF TITLE
Title to delivered and/or installed products (“retained products”) shall remain vested in Fertinger Tubes and shall not pass to the customer until all claims of Fertinger Tubes arising under the contract or the business relationship with the customer now and in the future, irrespective of the legal basis, have been fulfilled. This shall also apply to all future deliveries, even if Fertinger Tubes does not expressly refer hereto. The customer shall keep the retained products in proper condition, store them separately and mark them as the property of Fertinger Tubes. The customer shall fully cooperate and make all the declarations necessary on its part to register such retention of title for the benefit of Fertinger Tubes, if such registration is necessary under applicable law.
The customer shall be entitled to resell, process, mix or combine and subsequently sell the retained products in the ordinary course of business. Any pledging or assignment of retained products as collateral security is not permitted. Any processing or alteration of the retained products shall be effected in the name and on behalf of Fertinger Tubes. If retained products are combined or mixed with other products not belonging to Fertinger Tubes, Fertinger Tubes shall acquire co-ownership in the new products according to the ratio between the invoice value of the retained goods and the value of the new products. New items generated from the processing shall be deemed to be retained goods within the meaning of this provision.
The customer shall assign to Fertinger Tubes in advance, as collateral security, all of its claims in connection with the resale, as well as any claims against its insurer, in the amount of Fertinger Tubes` coownership ratio. In case the retained products are exported, the customer shall also assign all those claims to Fertinger Tubes which are due to the customer or will be due to the customer in the future against domestic and foreign banks in connection with the export, in particular claims arising from collection orders, from letters of credit as well as from sureties and guarantees. If the customer sells retained products together with other goods not belonging to Fertinger Tubes (without or after processing), claims shall be deemed assigned to Fertinger Tubes in the amount of the invoice value of such retained goods. Despite the assignment, the customer shall be authorized and obliged to collect claims arising from the resale as long as Fertinger Tubes has not revoked this authorisation. The customer shall pay any amounts collected promptly to Fertinger Tubes, up to the amount due. At the customer's request, Fertinger Tubes shall re-transfer the property rights in the retained products and any claims assigned to Fertinger Tubes to the extent to which their value exceeds the value of all claims of Fertinger Tubes against the customer by more than 20%.
6. WARRANTY / NOTICE OF DEFECTS
Any warranty claims by the customer are conditional upon the customer having fulfilled its statutory duties of examination and notification of defects.
Fertinger Tubes warrants only that, at the time of delivery, the products shall conform to the agreed specifications and rejects any liability for the fitness of the products for a particular purpose or the use intended by the customer, in particular for the correctness of the construction.
References to standards, material specification sheets or test certificates, declarations of conformity as well as information on qualities, dimensions and weights are not deemed to constitute any form of guarantee.
The limitation period for warranty claims shall be twelve (12) months after delivery of the products. In case of products that are commonly used in a building and have caused the building to be defective (building materials), the limitation period shall be as required by statutory law. The mandatory limitation periods for recourse claims pursuant to the law on the sale and purchase of consumer goods, in case of fraudulent intent and product liability claims remain unaffected.
Should the products delivered have a defect that already existed at the time of the passing of risk, Fertinger Tubes shall – subject to a notice of defect in due time – repair or replace the products at Fertinger Tubes` discretion; the customer must always surrender the defective products to Fertinger Tubes for examination purposes and grant Fertinger Tubes an opportunity to cure the defect within a reasonable period of time; in case of complex products, the customer shall grant Fertinger Tubes at least two attempts to cure the defect within a reasonable period of time; the cure shall neither include the disassembly of the defective products nor their re-installation. Any rights of recourse shall remain unaffected by this provision. If the cure fails, the customer may withdraw from the contract or reduce the purchase price. Further claims for damages for defects shall be excluded, unless such claims are based on intent and/or gross negligence or personal injury.
Warranty claims shall be excluded where the deviation from the agreed specifications is insubstantial, where the usability is not substantially impaired, in case of natural wear and tear, as well as in case of damages arising after the passing of risk due to improper handling, processing or storage, unless the customer can prove that the defect has not been caused by such circumstances.
The customer shall promptly notify Fertinger Tubes of any defects and shall return defective products to Fertinger Tubes. Products returned to Fertinger Tubes must be packed, shipped and insured appropriately. Fertinger Tubes shall bear the costs for the examination, the repair or replacement, the shipment and insurance, unless Fertinger Tubes can prove that a returned product was not defective.
7. TOOLS AND INTELLECTUAL PROPERTY RIGHTS
Unless otherwise agreed in writing, production tools manufactured by Fertinger Tubes for the production of the products shall remain the property and in the possession of Fertinger Tubes, even if the customer has paid the costs in whole or in part. Fertinger Tubes shall not surrender tools manufactured for customers to third parties and shall not use them for any other customers. Three years after the last production with tools manufactured by Fertinger Tubes, Fertinger Tubes shall be entitled to either destroy the relevant tools without prior notice or charge the customer a reasonable storage fee, at the discretion of Fertinger Tubes.
Fertinger Tubes does not warrant that products manufactured according to the customer's specifications do not infringe intellectual property rights of third parties (including, but not limited to patents, trademarks, copyright, trade secrets or other similar protective rights); in this regard, Fertinger Tubes shall have no duty of examination. Fertinger Tubes shall not be liable in case of the infringement of intellectual property rights which is owned by the customer or which results from specifications provided by the customer, modifications or alterations made by the customer, or from the combination of products with third party products not delivered by Fertinger Tubes.
8. LIMITATION OF LIABILITY
Fertinger Tubes' liability for delivery delays is determined exclusively in clause 4 above. In all other instances of contractual or noncontractual liability arising from or in connection with the conclusion and performance of a contract concluded on the basis of these Terms of Sale, Fertinger Tubes shall be liable only as follows:
a) In the event of intent, claims under the product liability act (if applicable) and bodily injury, Fertinger Tubes shall be liable in accordance with the statutory provisions.
b) In the event of gross negligence, liability shall be limited to typical and for Fertinger Tubes foreseeable damages unless such damages are caused by directors or officers of Fertinger Tubes or a significant contractual obligation is breached.
c) In the event of negligence, Fertinger Tubes shall only be liable if a significant contractual obligation has been breached or in case of delay or impossible performance for which Fertinger Tubes is responsible. In such events, liability shall be limited to typical damages foreseeable for Fertinger Tubes at the time of the conclusion of the contract.
d) If guaranteed characteristics are lacking, in case of initially impossible performance or impossibility occurring during delay, liability shall be limited to typical damages foreseeable for Fertinger Tubes at the time of the conclusion of the contract.
e) In any event, liability under paragraphs b) to d) above shall be limited to an amount equal to the respective contract (order) value. The customer shall notify Fertinger Tubes expressly and in writing if the typical and foreseeable damage exceeds such an amount.
9. GENERAL PROVISIONS
a) Fertinger Tubes reserves the right to transfer these Terms of Sale and any contracts concluded hereunder, together with all rights and obligations, to an affiliated company (within the meaning of the applicable law). The customer hereby consents to such transfer. After such a transfer has taken place, the customer shall be notified by one of the companies involved.
b) These Terms of Sale, as well as any contracts concluded hereunder, shall be governed by and construed in accordance with the laws of the country where Fertinger Tubes has its registered offices. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to or govern these Terms of Sale or any contracts concluded hereunder, including the performance thereof or any dispute arising therefrom.
c) The courts competent for Fertinger Tubes` business address shall have sole and exclusive jurisdiction.
d) Both the customer and Fertinger Tubes agree to treat any and all information related to Fertinger Tubes` or the customer's products, as well as their business activities and prices, confidential and treat them at least with the same care with which they treat and protect their own confidential information.
e) In the event the customer exports products or technical data obtained from Fertinger Tubes, the customer shall comply with all export control rules of the USA and other relevant countries.
f) Amendments and additions to these Terms of Sale, as well as to any contracts concluded hereunder, must be made in writing to be effective. This shall also apply to any waiver of the written form requirement. Should any of the provisions of these Terms of Sale be or become invalid or be found invalid by an authority or a court competent to decide thereon, then all other provisions of these Terms of Sale shall remain in full force and operative, and said invalid provision shall be replaced by a valid provision which comes as close as possible to the economic purpose of the original provision.