General Terms and Conditions
1. Our deliveries, services and offers are exclusively based on these terms and conditions. These also apply to all future business relationships. Counter-confirmations of the Customer, with reference to their terms and conditions, are hereby refuted.
2. The Customer can not assign claims against us.
3. Agreements or assurances before or upon conclusion of the contract are only effective if they are made in writing.
4. For all legal relationships, only the law of the Federal Republic of Germany applies. The Uniform Law for the International Sale of Goods (ULIS), the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) and the UN Convention on Contracts for the International Sale of Goods are not applicable.
5. For all current and future claims arising from the business relationship, including bills of exchange and check claims, the exclusive place of jurisdiction is Nürtingen, as long as the Customer is a registered trader. This place of jurisdiction also applies if the Customer does not have a general place of jurisdiction in Germany, relocates his domicile or habitual residence from within Germany after the conclusion of the contract, or his domicile or habitual residence is not known at the time the legal action is brought.
6. In addition, the regulations of the Association of German Electronics (VDE) apply.
§2 Offer, Scope of Delivery, Delivery Time and Transfer of Risk
1. For the scope of the delivery, our written order confirmation is decisive; in the event of an offer made by us, this is decisive as long as it is accepted and no order confirmation exists.
2. The right to make technical production changes to and deviations from samples remains reserved, as long as these are considered reasonable by the Customer.
3. Partial deliveries are permitted and, of course, billable.
4. The delivery period begins when the order confirmation is dispatched, but not before all details of the order have been fully clarified. The observance of the delivery period presupposes the Customer's fulfilment of the contractual obligations. The delivery period is considered complied with if the goods have left the factory/warehouse before its expiry, or if the Customer has been notified that they are ready to ship.
5. The delivery period shall be reasonably extended in the event of industrial action or in the event of unforeseen obstacles beyond our control, provided that such impediments are proven to have a significant impact on the completion or delivery of the goods. This also applies if the circumstances occur with subcontractors. The aforementioned circumstances shall be deemed to fall outside the sphere of our responsibilities if they occur during an already existing delay. In important cases, we will inform the Customer of the beginning and end of such obstacles as soon as possible.
6. In the event of a delay in delivery, following the fruitless expiry of a reasonable grace period as determined by the Customer in writing – along with a declaration that they refuse to accept the service after this deadline – or if the fulfilment of the contract is no longer of interest to them due to the delay, the Customer can withdraw from the contract if the goods have not yet been reported as ready for dispatch. The same applies in the event of partial delay or partial impossibility. For remaining circumstances, paragraph 6 applies.
7. If the shipment is delayed at the request of the Customer, then the costs incurred by storage, starting one month after notice of readiness for shipment, but at least 0.5% of the storage costs on our premises, will be charged to them. The invoice amount will be calculated each month. Furthermore, in this case, the entire agreed remuneration will be immediately due and payable. However, once the appropriate grace period has lapsed without results, we are entitled to dispose of the goods and to offer the Customer a reasonably extended deadline. On agreement of additional or supplementary orders which lead to a delay in delivering the goods, the aforementioned provisions apply accordingly.
8. The risk is transferred to the Customer at the latest when the goods are dispatched, even in the event of the Customer using their own vehicles, or in the event of a carriage-paid delivery. This means that the delivery is generally carried out ex-works Nürtingen (INCOTERMS 2020).
9. If the shipment is delayed as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day of readiness for shipment; however, we are obliged, at the request and expense of the Customer, to effect the insurance required by the buyer.
§3 Prices and Payment Terms
1. In the absence of any special agreement, the prices are ex-works, excluding loading and packaging. Prices are subject to VAT at the respective statutory rate.
2. Should the purchase, manufacturing or transport costs etc. be increased up to the moment of delivery or service, the Customer is obliged to pay the resulting additional price, even if a fixed price has been agreed.
3. Any agreed discounts, rebates or other deductions are only valid if all contracts between the Customer and us are duly fulfilled.
4. The acceptance of cheques or notes takes place only if mutually agreed upon and on account of payment. Discount and note charges are always at the expense of the Customer and are payable immediately.
5. Our representatives and other employees are not authorised to accept payments or other dispositions without written collection authority.
6. The withholding of payments or offsetting against the Customer's counterclaims is not permitted, unless the counterclaims are undisputed or legally binding.
§4 Retention of Title
1. We reserve the ownership of the goods until they are paid for in full. Moreover, we reserve the title to the delivered goods until the fulfilment of all claims which we are or shall be entitled to in future for any legal reason against the Customer. The cessation of individual claims in a current invoice and/or the balance and its appreciation, does not affect the reservation of title. Payments made by forwarding a promissory note that was issued by us shall only be considered as payment if the notes have been cashed by the drawee and we are thus released from the endorser's liability.
2. The reserved goods shall be treated or processed on our behalf, free of charge and without any obligation on our part, so that we are to be regarded as the manufacturer, according to § 950 of the German Civil Code (BGB), i.e. we retain ownership of the products at all times and at any stage of the process. In the event that the Customer processes goods which are not our property, we shall be entitled to co-ownership of the new object, where the invoice value of the reserved goods is proportional to the other, altered goods at the time of processing. Otherwise, the same rules apply to the object resulting from the processing as for reserved goods. They shall be treated as reserved goods within the meaning of these conditions.
3. The Customer is entitled to resell the goods, subject to retention of title, or to install them in the property of a third party on the basis of a purchase contract, work contract, works supply contract or similar contract, as long as they are not in arrears. Any of the Customer's claims from a resale or from the installation of the reserved goods in the property of a third party are already assigned to us, in order to secure all our claims arising from the business relationship, regardless of whether or not the reserved goods have undergone processing and whether or not they have been resold to one or several buyers or have been installed into one or more properties belonging to one or more third parties. In the event that the reserved goods are sold by the Customer together with other goods that do not belong to us or that have been installed in the property of a third party, the assignment of the claim amounting to the market value of the reserved goods plus 20% shall be deemed as having been agreed. The Customer is entitled to collect the assigned claim. In the event that the Customer defaults in payment, suspends payments, applies for or commences bankruptcy, judicial or extrajudicial settlement proceedings or suffers other loss of assets, we may demand that the Customer notify us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtor of the assignment.
4. If the contractual provisions of the third-party debtor contain a restriction on the assignment authority or if the third party makes the assignment dependent on his consent, this must be reported to us in writing without delay. In this case, we are hereby irrevocably authorised to collect the claim due to us in the name of and for the account of the Customer. At the same time, the Customer hereby irrevocably grants the third-party debtor a payment order in our favour.
5. If the value of the collateral existing for us exceeds our claims by more than 20%, we are obliged to release collateral items of our choice at the request of the Customer or a third party affected by our overcollateralisation.
1. Complaints regarding obvious defects must be reported in writing immediately after receipt of the goods. Our drivers or third-party drivers are not authorised to accept complaints. If the Customer is a merchant and this is a commercial transaction, the provisions of §§ 377, 378 of the German Commercial Code (HGB) shall also apply. In particular, the Customer must inspect the goods immediately upon receipt, as long as they are in the condition in which they were delivered, and must immediately report any complaints in writing.
2. If goods are found to be defective, we will either repair them or collect and replace them with goods that function properly. If the repair or replacement fails or we are in default with the repair or replacement, the Customer may, at their discretion, demand a reduction of the price or cancellation of the contract.
3. There is no guarantee for damages that have arisen for the following reasons: inappropriate or improper use and/or storage, incorrect installation or commissioning by the Customer or by third parties, natural wear and tear, faulty or negligent treatment, use of unsuitable equipment, replacement materials, inadequate construction work, unsuitable ground, chemical, electrochemical or electrical influences, unless they are due to our fault.
4. Complaints about partial deliveries do not entitle the Customer to reject the remaining deliveries.
5. These provisions shall also apply to deliveries of goods other than those stipulated in the contract.
6. In the event that the goods delivered are second-hand goods, the limitation period for warranty claims shall be one year.
7. We do not guarantee that machines, equipment, etc. used outside the territory of the Federal Republic of Germany will be licensed under foreign law.
§6 Compensation and Indemnification
1. Unless otherwise stated in these General Terms and Conditions including the following clauses, Fohhn shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
2. Fohhn is liable for damages - irrespective of the legal grounds - within the scope of liability for culpability in the case of intent and gross negligence. In case of simple negligence, Fohhn is only liable, subject to statutory limitations of liability (e.g. diligence in own affairs; insignificant breach of duty),
a. for damages resulting from injury to life, body or health,
b. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, Fohhn's liability is limited to the compensation of the foreseeable, typically occurring damage.
3. The limitations of liability resulting from Paragraph (2) also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) whose fault Fohhn is responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Customer under the Product Liability Act.