General Business and Delivery Terms of
FMB Technik GmbH
I. General information
The following business terms shall only apply in business transactions and are the basis of all of our offers, orders, deliveries and services.
Other business terms and conditions shall only be recognised to the extent that they correspond with our General Business Terms or are explicitly made a basis of the respective contract or the service by us in an individual case.
Individual agreements are to be reached in writing in addition and shall then remain unaffected by the following General Business Terms.
Our offers are always without obligation. In case of doubt the contract shall only be concluded with and in any case only according to the conditions and contents of our written order confirmation to the extent that such is granted.
Notified reference prices shall only become a basis of the contract upon agreement. We are bound to our offer prices no longer than for a period of three months until the placement of the order.
Offers together with annexes may not be made accessible to third parties without our consent.
III. Prices and terms of payment
Our prices are deemed purely net without cash discount or other rebate in Euro ex works excluding packaging, freight and insurance plus the respective applicable rate of value added tax. The granting of cash discount requires the explicit agreement of the contractual parties. The prices shall apply exclusively to constructed and produced parts which are suitable for processing. For additionally required work we shall charge the surcharges previously agreed with the customer.
If the cost factors (production material, energy, operating supplies, wages and salaries, etc.) decisive for the price determination change substantially during the period from the conclusion of the contract until the contractually envisaged time of the delivery, we are authorized to request the agreement of new prices from the customer as a change to the offer prices. If no agreement is reached we are entitled to cancel the contract.
The customer is only entitled to a right to offset against our claims if its claim is undisputed or has been declared final and binding.
Insofar as not otherwise agreed the delivery deadline shall begin with the receipt of the order confirmation; where the material which is to be processed is delivered later by the customer, however, only from that time.
If the delivery is postponed as a result of unforeseeable circumstances in our company, at sub-suppliers or sub-contractors, such as e.g. force majeure, strike, deficiency of raw materials, interference to operation or failure of energy then the customer is entitled to cancel the contract after granting a reasonable final deadline. § 323 Par. 2 BGB [German Civil Code] remains unaffected. If the delivery is made impossible by these circumstances, we shall be released from our delivery obligation. If the delivery is no longer deemed reasonable for us due to these circumstances, we are entitled to refuse the delivery. There is no claim for damages by the customer if we are not responsible for these circumstances.
If the customer is in default with regard to its obligation for provision or assistance, after a written warning we are entitled to cancel the contract and to request damages instead of the service by setting a final deadline of 14 days in writing.
Partial deliveries are permitted insofar as these are deemed reasonable for the customer.
Deliveries shall be carried out ex works excluding packaging.
The risk for objects of the customer which are to be processed shall pass to the customer when they leave our plant, and no later than with the hand-over to the carrier or freight forwarder. The supplier shall only be liable for wilful intent and for gross negligence with regard to damage in transit.
The liability for simple and slight negligence is excluded insofar as the breach of a duty which is essential for the contract within the meaning of the case law of the Federal Court of Justice is not proven by the customer.
If the goods to be processed are collected by us at the request of the customer, the customer shall bear the risk in transport. The customer is at liberty to insure these risks. Individual agreements shall remain unaffected.
The afore-mentioned provision shall also apply if freight-free deliveries were agreed.
If the goods are ready for shipment and if the shipment or the acceptance are delayed for reasons for which we are not responsible, then the risk shall pass to the customer with the receipt of the notification that the goods are ready for shipment.
The transport route, the type and means of the shipment are to be left to our discretion without a warranty for the quickest and cheapest transport. The interests of the customer shall be reasonably taken into consideration. If we work as a carrier, the General German Terms and Conditions for German Freight Forwarders shall apply in addition.
The customer must collect goods reported as ready for shipment immediately, by no later however than after the expiry of a reasonable deadline after the notification. If no release order is placed this shall entitle us to store the goods at the cost and risk of the customer at our own discretion and to charge these as delivered ex works.
If the shipment or the service of the goods is delayed at the request or initiation of the customer, then beginning with the month after the notification of the readiness for shipment, a storage fee can be charged in the amount of 1 % of the invoice amount for each started month. The storage fee is limited to 5 % of the total invoice amount unless we can prove higher storage costs. The customer can provide the proof that no storage costs have been incurred at all or are substantially lower than the flat rate.
No liability is assumed for incurred waiting times insofar as the exceeding of which is on the whole still reasonable, unless collection and delivery dates were made binding.
Insurance against damage in transit shall only be carried out at the order and cost of the customer.
If processed goods are returned for reasons for which we are not responsible, the customer shall bear the risk until the receipt of the goods by us.
Parts with treated surfaces shall only be packaged as delivered to us by the customer. If a packaging is requested additionally after the surface treatment, this shall be charged separately and not taken back.
We shall only assume the warranty for our service according to the following provisions and only towards the customer as first buyer. The assignment of warranty claims to third parties is excluded.
We guarantee skilled surface treatment with the materials and workmanship according to the recognised rules of technology, the applicable DIN regulations or those generally recognised in the design. In the case of electro-plated and chemical processes as well as owing to quality differences of the raw material, among other things, deviations from a sample upon which the order is based are unavoidable.
Parts with a defectively treated surface shall be corrected by us free of charge in a professional manner.
The delivered goods are to be inspected immediately to ensure that they do not exhibit any faults. Defects are to be reported in writing without delay and within 12 days after receipt of the goods at the latest. The obligation for inspection shall also exist if initial samples have been sent. In the case of defects which cannot be recognised immediately the same shall apply within the aforementioned deadline after the discovery of the defect.
In the case of rejections which do not have the suitable form or are not within the deadline, the goods shall be deemed as approved by merchants within the meaning of the HGB [German Commercial Code].
The objects handed over to us for processing are to be delivered with the delivery note or by stating the exact number of units and total weight in writing. The details of the gross weight are, even if they are of significance for the customer, non-binding for us. Replacements shall only be provided for missing parts if their delivery is proven by a delivery note countersigned by us and the risk for the missing parts has passed to us. In case of small and mass parts we shall principally not assume any liability for scrap and missing quantities up to 3 % of the delivered total quantity in each case unless an exception has been agreed.
The customer shall retain the right, in the case of failure of supplementary performance or if the seller refuses remedial actions or additional delivery, or the subsequent performance is deemed unreasonable, to reduce the purchase price or at its choice to cancel the contract and claim damages. A remedial action shall be deemed as failed after a second unsuccessful attempt unless something else arises in particular out of the type of object or defect or other circumstances.
The supplier shall be liable for wilful intent and gross negligence except for damages resulting from loss of life, bodily harm or illness. The liability for simple or slight negligence is excluded insofar as it does not concern the breach of an obligation which is essential for the contract within the meaning of the case law of the Federal Court of Justice. Insofar as the aforementioned exclusion of liability does not apply owing to the breach of an obligation which is essential for the contract, the supplier shall only be liable for the foreseeable damages which are typical for the contract. Further claims of the customer are excluded. The liability of the supplier according to the Product Liability Act remains unaffected. Conventional penalties are not recognised.
A defect in the partial delivery shall not entitle the customer to cancel the contract unless the defect of a partial delivery is so substantial that the acceptance of further partial deliveries is no longer of interest for the customer.
The warranty shall only apply to uses under customary, operational and climatic conditions. If the goods are determined for special conditions and if we have not been informed thereof in advance so that this has become an object of the contract, a warranty for these special conditions is excluded. The warranty shall lapse with regard to such defects where corrective action has been previously attempted by a third party insofar as the user had not previously given any reasonable opportunity to remedy the defects.
The material which is to be processed must be free of casting skin, moulding sand, forge scales, oil carbon, burnt grease, welding cinder, graphite, paintwork; it may not feature any pores, blowholes, tears, overlappings, etc.; threads must be sufficiently cut under. If this is not the case we are entitled to refuse the processing or to cancel the contract. If the customer nevertheless insists on a processing or if the material delivered to us for surface treatment is not suitable for such a surface treatment from a technological point of view for reasons which are not recognisable for us we do not assume any warranty for certain measurement, adhesion strength, colouring and corrosion preventing properties or conductivity of the applied coating insofar as a fault is due to the unsuitability of the material and not a result of gross negligence or wilful intent by us. Furthermore, no warranty is assumed for adhesion strength if the material has been deformed after the surface treatment not even if sample electro-plated parts could be deformed without the flaking of the electro-plated coating and the customer requested the processing despite the reference to the risk of the flaking.
If the customer does not hand over the goods which are envisaged for a surface treatment or a material sample which is suitable for this for a sufficient period of time before the start of a processing, with a minimum of six weeks, for test purposes, the liability for corrosion damage, which are neither due to wilful intent, nor gross negligence, is excluded. If in an individual case in view of the delivery time stipulated by the customer, due to reasons of time it is not possible to carry out short-term tests or other chemical and/or mechanical examinations or to prepare measurement protocols or test certificates and if the customer nevertheless requests the surface treatment, a liability for defects due to the insufficient examination, is excluded except in cases of wilful intent and gross negligence.
Hollow parts are only treated and electro-plated on the outer surfaces insofar as no cavity treatment has been agreed in special cases. Immediately occurring corrosion on the untreated areas does not substantiate any warranty claims. Surface-treated material is at danger from condensation water and friction corrosion. The customer undertakes to ensure proper packaging, storage and transport.
The customer has to stipulate the minimum coating thicknesses at a measuring point which is to be agreed and to prevent chemical and mechanical damages to the surface by suitable measures. We shall only be liable for damages due to weather conditions as well as for possible damages by residues subsequently leaking from overlapping and other inaccessible cavities from the treatment process in case of gross negligence and wilful intent. If the customer considers a hydrogen de-embrittlement we shall only accept this after a corresponding agreement and under the exclusion of all liability except in the cases of wilful intent and gross negligence.
VI. Security interest
We are entitled to a statutory commercial right of lien over the objects processed by us. Irrespective thereof the customer provides us with a contractual right of lien to the objects handed over for the purpose of surface treatment, which serves to secure our receivables from the order. The contractual right of lien shall apply insofar as the contractual parties have not agreed otherwise, also to receivables from previously executed orders and services insofar as they have an internal associated standard life relationship with the object of the order. If the surface-treated parts are delivered to the customer before the full payment then it is hereby agreed at this time with the customer that the ownership to these parts is assigned to us in the value of our receivables in order to secure our claims and the transfer of possession is replaced by the fact that the customer keeps the parts in safekeeping for us. The same shall apply with regard to the expectant entitlement of the customer to objects handed over to us for the purpose of surface treatment, which have been delivered to the customer by a third party under the reservation of title. We are entitled to procure the lapse of the reservation of title. Claims of the customer for re-assignment towards a third party, which it had previously assigned for the security for the objects handed over to us for the purpose of surface treatment, are hereby assigned to us. We hereby accept the assignment.
The customer may neither pledge nor assign objects over which we have a right of lien or which are subject to our security ownership. It may however resell or process the goods in the customer business transactions unless it had effectively assigned the claims against its contractual partner to a third party in advance already. A possible processing of the goods assigned to us for security by the customer to a new movable object is carried out to our order with effect for us without liabilities being established from this processing.
We hereby grant the customer co-ownership of the new object in the ratio of the value of the new object minus the value of our service to the value of the new object. The customer shall keep the new object in safekeeping with commercial care and attention and free of charge.
In the event that the customer acquires sole ownership or co-ownership of a standard new object by connection, combination or mixing of our goods under security with other movable objects to form a standard new object, it hereby at this point assigns to us in order to secure our claims the property right in the ratio of the value of our goods under security to the value of the other object with the simultaneous promise to properly store the new object on our behalf and free of charge.
In the event of the resale of the goods processed by us and assigned to us as security or the new object produced from these the customer shall inform its buyers of our ownership under security.
The customer hereby assigns in order to secure the satisfaction of our receivables all receivables also paysble in future from the resale or the further processing of the goods assigned to us with secondary rights in the amount of the goods value. We hereby accept the assignment.
The customer is authorized to collect the receivables resulting from the resale or further processing against third parties for our benefit. At our request the customer has to prove the receivables individually and to disclose the executed assignment to third party buyers with the request to pay to us up to the amount of our claims. We are moreover entitled to also inform the subsequent buyer of the assignment at all times ourselves and to collect the receivables.
We shall however not request the customer to collect the receivables or to disclose the assignment, not collect the receivable ourselves nor disclose the assignment ourselves as long as the customer properly satisfies its payment obligations towards us.
The customer undertakes to inform us immediately of enforcement measures of third parties over the security rights.
The customer undertakes to sufficiently insure the goods subject to our ownership as security against the risk of fire and theft and to assign the claims against the insurer and the damaging party to us upon request.
At the request of the customer the security items to which we are entitled according to the aforementioned provisions shall be released to the extent that their value exceeds the claims which are to be secured by more than 20 %.
In the event that third parties assert rights to the goods subject to security, the customer hereby undertakes to hand over all necessary documents to us immediately and to reimburse the intervention costs incurred to us.
All of our receivables, including from other contracts, shall also be deemed due and payable immediately in the event of deferral as soon as the customer is culpably in default with the satisfaction of other significant liabilities towards us, suspends its payments, is over-indebted, insolvency proceedings have been opened over its assets or the opening of such proceedings is rejected due to insufficiency of assets.
We are entitled in such a case to refuse still outstanding deliveries and services and to give the customer a reasonable deadline by which it has to effect the payment or provide security step-by-step against our service or delivery at its choice. After the unsuccessful expiry of the deadline we are entitled to cancel the contract.
VII. Place of performance
The place of performance and place of jurisdiction for all claims ensuing from the contract is the registered office of our company for both contractual parties insofar as they are businesses.
The laws of the Federal Republic of Germany shall apply under the exclusion of foreign law and the standardised international law on the purchase of goods. The German version of a contractual text is decisive.
VIII. Severability clause
Should one of the afore-mentioned provisions of these General Business Terms be null and void, invalid or unenforceable for any reason, this shall have no effect on the validity of the other provisions and the underlying contract.