Keyvisual Professional
  • Design inspirationDesign inspiration
  • ProductsProducts
  • CompanyCompany
  • The FSB professionals

General Terms + Conditions of Trade

issued by Franz Schneider Brakel GmbH + Co KG

1 Scope

  • 1.1 These General Terms & Conditions of Trade (hereinafter referred to as “GTCs”) apply to all deliveries and other services we perform for companies and other commercial or freelance customers (hereinafter referred to as the “Customer”). Our GTCs also apply to any future business relationships, even if no explicit reference is made thereto.
  • 1.2 Any changes or additions as well as any contractual terms issued by the Customer that conflict with or differ from these provisions shall only be valid if we have expressly consented to them in writing. If the Customer is not in agreement with this, then it is required to inform us of same in writing without delay. The following GTCs shall also apply in the event of our unconditionally completing an order for the Customer knowing that it has imposed conflicting or differing terms and conditions.

2 Subject of a Contract

The subject of a contract comprises a given service and/or product ordered by the Customer having the features and dimensions set out in our product description or catalogues respectively. The illustrations in our catalogues provide general product information in purely pictorial form and lay no claim to completeness or correctness.

3 Price Quotes and Conclusion of Contracts

  • 3.1 We supply price quotes without obligation unless they have been expressly designated as being binding or formally submitted. Any contract shall only take effect upon our having confirmed a job in writing.
  • 3.2 A Customer’s order shall be rendered void if it is not confirmed by us in writing within three weeks of receipt.

4 Provision of Documents/Input Required of the Customer

  • 4.1 The Customer is responsible for the correctness of any documents provided in fulfilment of a contract such as, notably, drawings, locking plan specifications and specimens.
  • 4.2 The Customer shall ensure that we obtain the rights required to use these materials in accordance with Section 1. To this end, it shall vouch for the fact that it has the requisite rights to the material entrusted to us. Where the Customer does not enjoy the requisite rights to use documents entrusted to us, it shall notify us of this upon handing them over. In the event of copyright being violated through use of the material entrusted to us, the Customer shall indemnify us against all third-party claims.
  • 4.3 The Customer is obliged to notify us of any changes to its company name, domicile, proprietor status or financial standing without delay - in writing where at all possible.
  • 4.4 Any faults arising are to be documented by authorised members of the Customer’s staff in text form (e. g. e-mail) - later on in the event of a matter initially being reported by telephone - to the best of their ability and in as clear a manner as possible citing the circumstances surrounding how the faults came about, their consequences and - to the extent that the Customer is in a position to provide information on this - their possible causes and to notify us as soon as the faults are detected.
  • 4.5 Where activities due and owing from us are to be taken delivery of or accepted, the Customer is required to declare its acceptance to us in writing without delay as soon as said activities due and owing from us have been essentially performed or we request that they be taken delivery of. Acceptance can be refused in the event of there being serious shortcomings. Any shortcomings discovered are to be remedied by ourselves without culpable delay. Acceptance is deemed to have occurred if the Customer does not specify the reasons for refusing acceptance in writing within seven days of the service essentially having been performed or our request for acceptance having been submitted. Acceptance is likewise deemed to have occurred if the Customer makes use of the services we have performed by, for instance, initiating their productive deployment.
  • 4.6 Customers active as retailers are obliged to check the content of orders placed by its own end-customers (parties to contracts with them) even in the event of advice given to said end-customers having come from us.

5 Delivery Conditions/Delivery Dates and Periods

  • 5.1 The scope and execution of the deliveries or services due and owing from us shall be as defined in the order confirmation/confirmed price quote.
  • 5.2 Delivery dates and periods shall only be binding if they have at least been agreed in text form (e-mail). Delivery periods shall begin on the day order confirmation is dispatched. In the case of electronic products, the delivery period agreed shall not begin until there has been clarification of the technical requirements for the individual items in the order in accordance with our ordering specifications. The same applies with regard to adherence to the delivery date agreed. Delivery dates or periods are deemed to have been adhered to if the goods have left the works/warehouse at the agreed point in time or the Customer has been notified of their being ready for dispatch. Amendments to a job agreed subsequently shall cause the delivery period or date to be put back accordingly.
  • 5.3 We are entitled to effect partial delivery if this is reasonable for the Customer. Partial deliveries may be invoiced separately. In such an instance, payment shall fall due in accordance with Section 7 regardless of any items yet to be delivered.
  • 5.4 The delivery date or period shall be put back by the duration of the delay plus a reasonable lead time notably
    - if particulars required by us to process the order do not reach us in time in contravention of the requisite customer’s input provisions set out in Section 4;
    - where, despite proceeding with the prudence called for under such contractual arrangements, we are temporarily prevented from fulfilling our contractual obligations on account of force majeure, natural catastrophes or similar phenomena, specifically measures taken by official bodies, operational disruptions of third-party origin, labour disputes or delays in the supply of key raw and auxiliary materials, semi-finished or finished products (reservation of self-delivery). Where fulfilment of contractual obligations is delayed by more than three months or the delivery or service due and owing from us becomes lastingly impossible or unreasonable to perform owing to incidents of the kind referred to above, both we and the Customer shall be obliged to renegotiate the contractual terms to reflect the altered circumstances. Should it not be possible for the Customer and ourselves to agree on a contract acceptable to both sides within a reasonable time, then either party shall be entitled to repudiate the Contract. The Customer is to be notified of any such impediments to provision of a service without delay. Any counter-performance that has already been forthcoming from the Customer shall be reimbursed.

6 Passing of Risk/Shipping and Packing

  • 6.1 The performance risk passes to the Customer once the goods constituting the subject of a contract have been handed to the carrier. Where an acceptance procedure has been agreed or is adopted, this is principally applicable in determining the time of passing of risk.
  • 6.2 The shipping mode, carriage route and applicable packing material shall be solely determined by ourselves. If the Customer desires express delivery or the taking out of transit insurance for the goods, any extra costs incurred will be chargeable to the Customer.
  • 6.3 We do not accept the return of transport packing or any other packing material in accordance with the German Packaging Regulations; exceptions to this are pallets and reusable containers. The Customer is required to see to the disposal of packing material at its own expense.

7 Prices

  • 7.1 Our prices apply ex warehouse or works plus value-added tax at the rate in force on the invoice date and ancillary charges such as for packing, carriage, installation, assembly etc. unless anything to the contrary has been agreed on prices.
  • 7.2 The prices cited in the order confirmation/confirmed price quote shall remain valid for the agreed delivery time or to the agreed delivery date - unless anything is agreed to the contrary. Should the delivery timed agreed be delayed by more than twelve months for reasons for which we are not accountable, then we shall be entitled to pass any cost increases that may have occurred - notably for procurement and manufacture as well price alterations brought about by legislative amendments - on to the Customer by adapting our prices accordingly.

8 Terms of Payment

  • 8.1 Unless anything is agreed to the contrary, invoices are to be settled upon receipt and at the latest within 30 days; a 2% rebate shall be granted on payments made within a fortnight. Amounts of less than €50 net are to be paid in full within seven days of receipt of the invoice.
  • 8.2 Should there be a marked deterioration in the Customer’s financial circumstances subsequent to a contract being concluded or should such a state not become evident until the contract has been concluded - due to the Customer discontinuing payments, for instance, or applying to initiate insolvency proceedings in respect of its assets -, then we shall be entitled to demand either advance payment of the amount agreed or collateral security.
  • 8.3 Should the Customer default on payments, we shall be entitled to levy interest at a rate 8 percentage points above the base rate. This shall be without prejudice to our asserting further claims for compensation, notably higher rates of interest, additional costs and charges of €10 per reminder. We shall be entitled to pass on to the Customer any bank charges we incur due to account details being incorrect or unjustifiably rejected unless the Customer is not accountable for the incorrect data furnished. The Customer shall be entitled to seek to demonstrate that little or no damage has been done to us.

9 Set-Off/Rights of Retention

  • 9.1 The Customer shall only have the right of set-off against any claims of ours if its own claim is uncontested or has been finally and conclusively established.
  • 9.2 The Customer shall only enjoy the right to refuse performance and the right of retention if its own claim relates to the same contractual relationship and is uncontested.

10 Reservation of title

  • 10.1 The products supplied (hereinafter referred to as “conditional commodities”) shall remain our property until the purchase price or agreed remuneration has been paid in full and all existing or future claims arising from our business relationship with the Customer have been settled. The arrangement with regard to software is set out in Subsection 11.1.
  • 10.2 The Customer is entitled to further process conditional commodities in the course of its standard business operations and/or to dispose of them to third parties under reservation of title. The Customer is prohibited from pledging the product delivered or assigning it as security for as long as that product remains subject to our reservation of title. In the event of the product being resold, the Customer shall immediately assign to us any claims towards its own customers arising from the resale to the value of the conditional commodities involved (invoice total inclusive of value-added tax) together with all subsidiary claims. We shall thereupon assume the assignment. We shall revocably authorise the Customer to redeem the claims assigned to us to our own account on its own behalf. The right of redemption can be revoked by ourselves at any time if the Customer fails to exercise its duty of payment properly. Neither is the Customer empowered to assign this claim for the purpose of redeeming any claim by way of the factoring process, unless an obligation is simultaneously established on the part of the factoring party to directly effect counterperformance to us to the amount of our claims until such time as we cease to assert claims towards the Customer.
  • 10.3 Any further processing or conversion of conditional commodities by the Customer shall be performed on our behalf in all cases. Where conditional commodities are further processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the conditional commodities (net invoice total inclusive of value-added tax) to the other items further processed at the time the further processing is performed. The same applies to the item arising from further processing as to the conditional commodities. In the event of the conditional commodities becoming inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the conditional commodities (net invoice total inclusive of value-added tax) to the other items combined at the time of combination. If the Customer’s item is to be regarded as the principal item following the act of combination, there shall be agreement between the Customer and ourselves to the effect that the Customer shall proportionately transfer co-ownership of said item to us; we shall thereupon accept the transfer. The Customer shall hold any sole or partial ownership of the item passing to us in this way in safe custody on our behalf.
  • 10.4 In the event of any third party accessing the conditional commodities, notably in the form of pledges, the Customer shall inform it of our existing proprietary rights and notify us without delay in order that we can assert said proprietary rights.
  • 10.5 In the event of the Customer acting in violation of the contract, notably by not paying the purchase price or agreed remuneration, we shall be entitled to repudiate said contract and demand receipt of the conditional commodities on the grounds of reservation of title.
  • 10.6 We are obliged to release any securities to which we are eligible once the value that can be realised from said securities to which we are eligible exceeds the claims secured by more than 10 %. Which securities are to be released shall be a matter for our discretion.

11 Rights to software

  • 11.1 Where the delivery of software products constitutes the subject of a contract or part of the services due and owing, we shall grant the Customer a permanent, non-transferable simple right of compliant use in the object code subject to the provisions contained in Subsection 11.3. The Customer shall acquire a simple transferable right of use as per the preceding sentence upon full payment being made.
  • 11.2 Abbreviated hard-copy documents on software applications shall form part of the contract. We shall grant the Customer the right to use these pursuant to Subsection 11.1.
  • 11.3 The Customer is not permitted to make copies of whole or part of the software - except for backup and archiving purposes - without our prior written consent. Backup copies must, to the extent technically feasible, display the same copyright notice contained on the original data carrier and be placed in safe keeping. Copyright notices must not be deleted, altered or suppressed. Copies no longer required are to be deleted or destroyed. The user’s manual and any other documents received from us may only be copied for in-house purposes.
  • 11.4 It is permissible under the terms of Section 69 (e) of Germany’s Copyright Act to retranslate software. If the Customer is unable or unwilling to carry out any exceptional actions permitted under Germany’s Copyright Act itself or to have this done by its own staff, then it is required, prior to placing the job with any third-party company, to give us an opportunity to effect the desired tasks of bringing about interoperability on the Customer’s behalf within a reasonable time limit and for a reasonable charge. The Customer is required to pledge any third-party companies with whom jobs are placed to secrecy.
  • 11.5 Removing copy protection or similar protection routines shall be admissible in cases where the protection mechanism impairs or prevents troublefree use of the program.
  • 11.6 Copyright notices, serial numbers and any other features serving to identify the program must not be removed or altered.

12 Notification of Defects and Warranty Services (Fault Rectification)

  • 12.1 Where the Customer orders the subject of a contract as a commercial undertaking, it is obliged to examine said subject without delay upon receipt thereof, exercising a degree of prudence commensurate with the circumstances, and to notify us of any discernible material defects without delay in accordance with the provisions set out in Subsection 4.4. Any defects not immediately discernible must be notified to us without delay upon their being detected observing the requirements for the notification of defects laid down in the preceding sentence. Should the Customer fail to exercise these duties, the subject of the contract shall be deemed to have been approved in respect of this particular defect, with the consequence that no warranty claims can then be lodged. This shall not apply in the event of malice being involved.
  • 12.2 In the event of there being any material defects we shall, in the context of the subsequent performance we are to carry out, have the choice of carrying out said subsequent performance by either effecting repairs or supplying a replacement. We shall be permitted to make such subsequent performance dependent upon payment of 50 % of the agreed purchase price or remuneration, or else a share deemed reasonable given the nature of the defect. Following two unsuccessful instances of subsequent performance, the Customer shall be permitted to reduce the agreed remuneration or else, in the event of there having been considerable violation of contractual duties, to repudiate the contract and, if applicable, claim for damages in accordance with Section 13. Should a contract for services be in place, then the Customer shall additionally have the right to rectify the fault itself and demand compensation for the requisite outlay. 12.2 We shall carry out subsequent performance in the event of there being any legal imperfection in title by establishing scope for utilisation that is legally sound. To this end, we shall be permitted to replace the subject of contract concerned with a contractually compliant item of equal value assuming this is acceptable to the Customer. Should any third party assert industrial property rights against the Customer, we are to be notified of this in writing without delay. Should we be accountable for the infringement of rights, we shall either dispute or satisfy the claims at our own expense and in consultation with the Customer as we see fit, and shall indemnify the latter against any reasonable costs and damage associated with disputing the claim. The Customer may not endorse third-party claims of its own accord.
  • 12.3 Where malice is involved and where we have agreed to honour a guarantee, this shall in no way affect the statutory provisions governing defects or legal imperfection in title. In the event of there being any third-party makers’ guarantees in place, claims issuing from such a guarantee are to be directly asserted towards the guarantor unless we have been authorised by the guarantor to receive declarations under the terms of the guarantee.
  • 12.4 Should the Customer or any third party commissioned by same intervene to modify the products supplied without our prior written consent, we shall nevertheless remedy the defect if the Customer proves that its intervention was not the cause of the defect that has arisen.
  • 12.5 Our duty to remedy defects shall not cover standard wear or defects arising subsequent to delivery, as a result, for instance, of external influences or operating errors. The same also applies as regards improper use of products by the Customer.
  • 12.6 Should it transpire that a defect reported by the Customer does not actually exist, then we shall be entitled to charge the Customer for the outlay involved in analysing the situation and for any further processing input required should the Customer be culpable of wrongful intent or gross negligence in its reporting of the defect.

13 Liability

  • 13.1 We shall be liable to compensation for damage or futile expenditure for whatever legal reason (e. g. dereliction of duty, unauthorised action) as per the provisions set out below:
    a) without upward limit in the event of wrongful intent or gross negligence;
    b) for ordinary negligence in the event of an obligation being violated whose observance is particularly crucial to achievement of the purpose of a contract (major contractual obligation). Liability in any one such instance of damage shall be confined to typical contractual damage foreseeable when the contract was concluded. For the rest, no liability shall be entertained for damage caused as a result of ordinary negligence, loss of earnings, greater staff costs incurred by the Customer, loss of use and/or shortfalls in turnover. Nothing in the above shall affect the content of Subsection 13.2 below.
    c) We shall be liable for delay-related damage, assuming ordinary negligence is involved, to a level of up to 5 % of the contractual remuneration.
  • 13.2 Liability for the non-honouring of any guarantee, for wrongful intent, for damage done to life, body or health and as defined in Germany’ Product Liability Act shall be as laid down in the relevant statutory provisions.
  • 13.3 The above regime also applies to our legal representatives, employees and vicarious agents.
  • 13.4 The Customer is obliged to advise us in writing of any damage relating to the above liability regime without delay or else to arrange for said damage to be documented by ourselves in order that we are informed at the earliest possible opportunity and may possibly be able to act to minimise the damage together with the Customer that has suffered same.

14 Time limitation

  • 14.1 The period of limitation for claims to remedy defects or legal imperfections in title and any claims for compensation shall amount to one year from delivery/acceptance of the product. In the case of construction services or the delivery of building materials and where there is a legal imperfection in title in a third party’s right in rem that enables recovery of possession of the contractual item to be claimed, the statutory periods of limitation apply.
  • 14.2 With regard to any other claims asserted by the Customer on the basis of a contract or relationship under the law of obligations (Section 311 2 German Civil Code BGB ), a period of limitation of one year from the statutory commencement of the period of limitation shall apply. Claims shall lapse following the passing of the maximum statutory time limits at the latest (Section 199 3 and 4 BGB).
  • 14.3 The statutory periods of limitation apply with regard to personal injury, actions involving wrongful intent or gross negligence and where malice is involved.

15 Written Form

All agreements on amending, rendering more precise or adding to these GTCs shall be recorded in writing, as shall any separate pledges and accords.

16 Data Protection

  • 16.1 Within the framework of fulfilling a contract, we shall respect all stipulations contained in data protection legislation and shall oblige our employees to comply with the relevant provisions, notably as set forth in Section 5 of Germany’s Federal Data Protection Act.
  • 16.2 The Customer shall consent to personal details being passed on to any subcontractors of ours for the purpose of fulfilling a contract. We pledge to oblige a given subcontractor to comply with what is laid down in data protection legislation. We shall promptly provide the name and address of a given subcontractor if so requested.
  • 16.3 We shall only pass customer data on to third parties for advertising purposes with the Customer’s express consent.

17 Place of Fulfilment/Applicable Law/Place of Jurisdiction

  • 17.1 The place of fulfilment for deliveries and services is our corporate domicile.
  • 17.2 These GTCs and any contracts concluded on their basis shall be subject to the law of the Federal Republic of Germany to the exclusion of the Convention on Contracts for the International Sale of Goods (CISG).
  • 17.3 If the Customer is a commercial undertaking or either a legal entity or special asset under public law, then the sole place of jurisdiction for any disputes arising from this Contract shall be our corporate domicile. We are, however, entitled to assert claims of our own at the Customer’s own place of jurisdiction.

18 Contact Options/Assignment/Saving Clause

  • 18.1 With regard to user questions and any other advice the Customer may require, we can be reached by e-mail or telephone on working days between Monday and Friday from 8 a. m. to 4.30 p. m. (except on the 24th and 31st of December in any year or on public holidays in North Rhine-Westphalia).
  • 18.2 The Customer may only assign claims arising from contracts concluded with our prior written consent.
  • 18.3 Should individual provisions of these GTCs be void in whole or part, or should there be a gap in these GTCs, this shall not affect the validity of the remaining provisions.

Edited to 13 January 2011


.