General Terms & Conditions of Trade
issued by Franz Schneider Brakel GmbH + Co KG
1. Scope of Application / Changes to these GTCs
These General Terms & Conditions of Trade (hereinafter referred to as “GTCs”) apply to contracts entered into by ourselves, Franz Schneider Brakel GmbH + Co KG, for deliveries and other services we perform for companies as natural persons, legal entities or partnerships having legal capacity within the meaning of Section 14 of Germany’s Civil Code acting in pursuit of their salaried or independent occupations as well as for legal entities and special assets under public law within the meaning of Section 310 (1) of Germany’s Civil Code (hereinafter referred to as the “Ordering Party” or “Customer”). These GTCs also apply to any future business relationships, even if no renewed reference is made to our GTCs.
Any changes or additions made or contractual provisions laid down 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 they are 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 they have imposed conflicting or differing provisions and conditions.
Provided that the material provisions of these GTCs are retained, we are entitled unilaterally to change the provisions of these GTCs. We are further entitled to revise the provisions applicable to the Customer insofar as required legally or de facto by the relevant circumstances, for example in case of changes to statutory provisions or relevant court rulings, or in case of necessary or objectively sensible technical updates. Such changes made to these GTCs shall at the very least be notified to the Customer by email. Should the Customer not object to such changes within six weeks of receiving notification thereof, they shall be deemed agreed. We will draw the Customer’s attention specifically to their right of objection and the legal consequences of non-response whenever changes are made to these GTCs. In the event of an objection being lodged in good time, the original provisions shall remain in force unaltered.
2. Offers / Conclusion of Contract / Scope of Performance / Subcontractors
Our offers to the Customer are non-committal. Illustrations, drawings, dimensions, weights and colour shades contained in catalogues, price-lists and other printed matter or on our website constitute conventional approximations and serve to provide general product information in purely pictorial form. They make no claim to being exhaustive and correct. We shall not be liable for misprints or discrepancies in colour and texture in the descriptions of products provided in printed advertising media. The technical data and descriptions furnished in the applicable
The order placed by the Customer shall be deemed as constituting a binding offer. At our own discretion, we will accept the Customer’s order by either sending an acknowledgment of order within four weeks or unconditionally delivering the goods or performing the services ordered. The Customer is obliged to check that our acknowledgment of order is complete and correct relative to the order placed. The Customer is to notify us of any discrepancies forthwith. Verbal collateral agreements shall only be binding if we have acknowledged them in at least text form (email).
We reserve the right to make technically requisite changes in the manufacturing process. This applies in particular to products custom-made for ordering parties.
Where we issue recommendations regarding the use of our goods, we shall do so to the best of our knowledge. Given the wide range of possible uses, differing requirements and specific conditions of use, however, we can assume no liability for the suitability of a product for any one possible use unless we have explicitly warranted such suitability in at least text form. The Customer is in all cases obliged to verify the product’s suitability for its intended use for themselves as well as to ensure by consulting with, for instance, architects and tradespeople, or by commissioning same, that any building and safety regulations are complied with.
Sales based on specimens or samples shall merely guarantee suitable sample conformity and shall not constitute a guarantee within the meaning of Section 276 (1) of Germany’s Civil Code or, respectively, any guarantee of the nature or durability of the products we are to deliver within the meaning of Section 443 of Germany’s Civil Code. Furthermore, we shall only assume any procurement risk given a side-agreement in writing reading “FSB assumes the procurement risk for …”. Hence, our having pledged to deliver any unascertained thing of a given type shall not, on its own, entail our having either assumed a procurement risk or furnished a nature-of-goods guarantee.
We are entitled to commission subcontractors when performing contractually agreed services. Employing subcontractors shall not, however, in any way detract from our alone being obliged to fulfil the terms of the contract with the Customer in their entirety.
3. Provision of Documents / Customer’s Duty of Involvement / Acceptance
The Ordering Party is responsible for the correctness of any documents provided for the purpose of fulfilling a contract such as, notably, drawings, bills of quantities, door plans, locking plan specifications and specimens.
The Ordering Party shall ensure that we obtain the rights required to use the material referred to in Subclause 3.1 above. To this end, they shall vouch for the fact that they have the requisite rights to the material assigned to us. Where the Ordering Party does not enjoy the requisite rights to use documents assigned to us, they shall notify us of this upon handing them over. In the event of copyright being infringed through use of the material entrusted to us, the Ordering Party shall indemnify us against all third-party claims.
The Ordering Party is obliged to notify us of any changes to their company name, domicile, proprietor status or financial standing without delay - in at least text form where at all possible.
Any faults arising are to be documented by authorised members of the Ordering Party’s staff in text form - retrospectively 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 their possible causes and to notify us as soon as the faults are detected, to the extent that the Ordering Party is in a position to provide information on this.
Where activities due and owing from us are to be accepted, the Ordering Party 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 Ordering Party 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 once the Ordering Party has begun availing itself of the services we have performed by, for instance, making productive use of same.
Ordering Parties active as retailers are obliged to check the content of orders placed by their own end-customers (parties to contracts with them) even in the event of the advice given to said end-customers having come from us.
4. Prices / Terms of Payment / Arrears / Rights of Set-Off and Retention
The prices agreed upon conclusion of a contract (reimbursements), as cited on the order note or in the acknowledgment of order, shall be deemed to apply. Where no price has been expressly specified, the prices applicable at the time of conclusion of contract as per our price-list shall be deemed to apply. These prices are to be supplemented by value-added tax at the rate in force on the day of delivery, the cost of the packing required for proper shipment, the cost of carriage from our factory or warehouse, cartage charges and - where agreed - shipping insurance. Other kinds of nationally specific dues may also be included in the prices agreed in the case of deliveries abroad. The cost of setting-up, installation, assembly etc. must likewise be charged for separately.
We reserve the right to adapt our prices to a reasonable degree following conclusion of contract and prior to invoicing if external costs are either reduced or increased subsequent to the contract being concluded, notably as a result of wage settlements and changes in the market prices of contractually agreed materials, that impact on the overall cost of the goods. If so requested, we will furnish the Customer with evidence of any changes by explaining the various cost components involved and their impact on the total price.
Unless stated otherwise in our acknowledgment of order, reimbursement is to be effected in full within 30 days of the invoice date. Statutory provisions apply with regard to any arrears accruing. Prompt-payment discounts must be specifically agreed in writing.
Should there be a marked deterioration in the Customer’s financial circumstances subsequent to a contract being concluded or should such a state become evident once the contract has been concluded - due to the Customer discontinuing payments, for instance, or applying to initiate insolvency proceedings in respect of their assets -, then we shall be entitled to demand either advance payment of the amount agreed or collateral security.
The Customer enjoys the right of set-off assuming its counterclaims have been finally and conclusively established, are not a matter of dispute or have been recognised by ourselves. Any cross-claims of the Customer’s deriving from the same contractual relationship shall likewise not be subject to the contractual exclusion of set-off. The Customer may only exercise any right of retention if the cross-claim on which it bases that right relates to the same contractual relationship and is uncontested, has been finally and conclusively established or is ripe for judgment.
Should the Customer be in arrears on the reimbursement agreed for any service forming the subject of a contract, we shall be entitled to levy interest at a rate nine percentage points above the base rate. This shall be without prejudice to our asserting further claims in respect of any default in payment, notably for compensation, higher rates of interest and miscellaneous additional costs. 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.
5. Delivery Dates and Periods / Statutory Delay in Performance
Delivery dates and periods shall only be binding where a transaction at a fixed date has been expressly agreed in writing. 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. Amendments to a job agreed subsequently shall cause the delivery period or date to be put back accordingly. Should agreed delivery deadlines be exceeded for reasons for which we are accountable, however, the Ordering Party may repudiate the contract once a reasonable period of grace of at least three weeks has expired to no avail assuming it was stated when the period of grace was set that the Ordering Party is entitled to proceed in this manner. The contract must be repudiated in writing.
We shall only be deemed to be in delay once a reasonable period of grace set by the Ordering Party has elapsed. The terms of Subclause 17.4 shall apply in the event of force majeure arising.
Our liability for damages for any delay shall be limited in accordance with the terms of Clause 5.
We are entitled to effect partial delivery and performance within the deadlines for delivery and performance agreed as long as the part shipment can be made use of by the Customer for the purpose contractually specified, delivery of the remaining products ordered is assured, and this does not cause the Customer considerable extra input or additional costs assuming, that is, that we do not state a willingness to take these on ourselves.
Should the Ordering Party be in default in acceptance or be in culpable breach of any other duties to cooperate, we shall be entitled to demand that any damage incurred, inclusive of any additional expenditure, be made good. We reserve the right to lodge more far-reaching claims.
6. Passing of Risk / Shipping and Packing Costs
Goods will be delivered ex works or warehouse and are to be collected by the Ordering Party at its own risk and cost. The risk of deterioration or accidental loss shall pass to the Ordering Party upon its receiving notification of the goods being made available, specifically upon their being collected by the haulage contractor. This also applies in the event of delivery being agreed carriage-paid or of our having taken out appropriate shipping insurance, unless the goods are delivered in our own vehicles.
The choice of shipping route and packing shall be made by ourselves unless anything else is specifically agreed in at least text form.
Complete consignments of goods having a minimum net value of €1,000 (excluding value-added tax) shall be delivered at place within the European Union. Direct shipping to a customer address of the Ordering Party shall be chargeable to same. Deliveries beyond the borders of the European Union and express consignments are to be agreed individually.
Cargo packaging and all other packaging can be returned to us at no cost in accordance with the statutory provisions.
7. Rights of the Ordering Party in the Event of Defects (Fault Rectification)
A material defect obtains if the goods are not in the condition contractually agreed or are unsuitable for use in the manner contractually agreed. A legal imperfection in title obtains if it has not been possible to actively grant the Ordering Party the rights required for contractual utilisation of the goods in Europe.
Where the Ordering Party orders goods as a commercial undertaking, it is obliged to examine them without delay upon receipt thereof, exercising a degree of prudence commensurate with the circumstances. The Ordering Party is to notify us in writing of any readily discernible material defects, wrong goods delivered or contractually defective variances in quantity without delay, and no later than a fortnight after having received the goods, citing the delivery-note date and the job number. Hidden material defects are to be reported to us in writing within 8 days of their being discovered. The Ordering Party has the duty, by trial fabrication if necessary, to check whether the goods delivered are free of defects and suitable for the envisaged purpose. In the event of a defect not being notified to us in good time or in the proper manner as laid down in Subclause 7.2. (1 or 3), the Ordering Party shall forfeit its rights to claim unless, that is, we have withheld information about the defect with intent to deceive.
In the event of goods supplied by ourselves being materially defective, we shall only be obliged to either perform remedial work or deliver non-defective goods (post-performance), the choice being ours. We shall be permitted to make such post-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. Should we not be willing or in a position to effect post-performance, notably if we should allow a reasonable period set, in conjunction with which it was stated that the Ordering Party may repudiate the contract once that period has passed to no avail, to elapse for reasons we are to answer for, or if post-performance is unsuccessful in some other way, the Ordering Party shall be entitled, as it sees fit, to demand a reduction in reimbursement or, where the material defects are considerable, to repudiate the contract. Any remedial work shall be deemed to have failed following the third attempt should nothing to the contrary be indicated by the nature of the thing or other circumstances. 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. Where the Ordering Party has suffered damage or futile outlay due to material defects in goods delivered by ourselves, our liability for same is set out in Clauses 8 and 9.
The rights set out in Subclause 7.3 shall not obtain with regard to material defects deriving from documents submitted by the Ordering Party (drawings, samples etc.). This applies in particular also to the functioning of products manufactured to a design by the Ordering Party or to design data submitted by same.
Should the Ordering Party 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 Ordering Party proves that the intervention was not the cause of the defect having come about.
Our duty to remedy defects shall not cover standard wear and tear or defects arising subsequent to delivery, as a result, for instance, of external influences or operating errors. The same also applies as regards either improper use of products by the Ordering Party or faulty work performed by any fabricator directly or indirectly commissioned by same.
Where a Customer supplies material for products to be manufactured by ourselves, we shall not accept liability for defects arising from the material supplied.
In the event of our producing a finish on behalf of a third party for products to be distributed by same, we shall not guarantee that the level of protection afforded by the finish will remain unchanged if the products are fitted into other products or else come into contact or are adjoined with other materials.
No claims may be lodged by the Ordering Party for additional outlay necessitated by post-performance such as, notably, the costs of carriage, infrastructure, material and labour due to the goods having been moved to another location subsequent to their being delivered by ourselves unless this accords with the prescribed end use of the goods.
Post-performance to rectify legal imperfections in title shall take the form of our establishing a possible use that is legally flawless. To this end, we shall be permitted to replace the contractual item concerned with an equivalent one that is contractually compliant should this be acceptable to the Ordering Party. Should any third party assert industrial property rights towards the Ordering Party, we are to be notified of this in writing without delay. Should we be answerable for the infringement of rights, we shall either dispute or satisfy the claims at our own expense and in liaison with the Ordering Party as we see fit, and shall indemnify the latter against any reasonable costs and damage involved in disputing the claim. The Ordering Party may not endorse third-party claims of its own accord.
Should it transpire that a defect reported by the Ordering Party does not actually exist, then we shall be entitled to charge the Ordering Party as per our current price-list for the outlay involved in analysing the situation and for any further processing input required should the Ordering Party be culpable of wrongful intent or gross negligence in reporting the defect.
Where malice is involved and where we have agreed to honour a guarantee, this shall in no way affect the statutory provisions governing material defects or legal imperfection in title. In the event of any third-party makers’ guarantees being in place, claims issuing from such a guarantee are to be directly asserted towards the guarantor unless we have been authorised by same to receive declarations under the terms of the guarantee.
We shall be liable to compensation for damage or futile expenditure for whatever legal reason (e.g. dereliction of duty, unauthorised action) as set out below:
without upward limit in the event of wrongful intent or gross negligence;
for ordinary negligence in the event of a cardinal contractual obligation being violated. Cardinal contractual obligations are deemed to be obligations put in place so as to protect key legal positions of the Customer’s that the contract’s purpose and content are inherently designed to uphold, or whose fulfilment is essential to implementation of, the contract and upon which the Customer can justifiably rely. Liability in any one such instance of damage shall be confined to typical contractual damage foreseeable when the contract was concluded or to a maximum of double the net reimbursement in the case of work on goods or a service being purchased or performed. 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 provisions of Subclause 8.2 below.
We shall be liable for delay-related damage, assuming ordinary negligence is involved, to a level of up to 5 % of the contractual reimbursement.
Liability is governed by the relevant statutory provisions where it concerns assumption of a procurement or manufacturing risk within the meaning of Section 276 of Germany’s Civil Code, the failure to assume a nature-of-goods or service-life guarantee pursuant to Section 443 of Germany’s Civil Code, malice, risks to life, body or health or the terms of Germany’s Product Liability Act.
The above liability regime also applies in respect of our legal representatives, employees and vicarious agents.
The Customer is obliged to advise us in writing of any damage within the meaning of 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 who has suffered same.
9. Time Limitation
The period of limitation for claims to remedy defects or legal imperfections in title and any claims for compensation shall amount to two years from delivery/acceptance of the product subject to the provisions of Subclause 9.2.
Over and above the statutory warranty against defects, we guarantee the proper functioning of our mechanical products for five years assuming the hardware has been fitted in a workmanlike manner and properly used; this shall not apply in the case of electronic and mechatronic products. In the case of construction services or the supply of building materials and where there is a deficiency in title in a third party’s right in rem that enables recovery of possession of the subject of the contract to be claimed, the statutory periods of limitation apply.
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 of Germany’s Civil Code), 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 of Germany’s Civil Code).
Statutory periods of limitation shall apply in the cases of personal injury, malice, actions involving wrongful intent or gross negligence, assumption of a nature-of-goods or service-life guarantee pursuant to Section 443 of Germany’s Civil Code and the terms of Germany’s Product Liability Act.
10. Rights to Permanently Relinquished Software
Where the delivery of permanently relinquished software is the subject of a contract or part of the service performable, we shall, once the complete purchase price has been paid, grant the Ordering Party a permanent, non-transferable ordinary right of contractually compliant use in the object code subject to the provisions contained in Subclauses 10.3 to 10.6. Until such time as complete payment of the licence purchase price quoted has been made, we will grant the Ordering Party an ordinary transferable right to use the software that shall be revoked upon payment being delayed by more than 30 days.
Hard-copy applications literature available either in abbreviated form or via the software’s Help function shall be an integral part of the contract. We will grant the Customer the right to use this pursuant to Subclause 10.1.
The Ordering Party 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 safely stored. 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.
It is permissible under the terms of Section 69 (e) of Germany’s Copyright Act to decompile software. If the Ordering Party is unable or unwilling to carry out any exception action permitted under this 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 perform the desired tasks of bringing about interoperability on its behalf within a reasonable time limit and for a reasonable charge. The Ordering Party is required to pledge to secrecy any third-party companies with whom jobs are placed.
The Ordering Party shall not be permitted to permanently relinquish software to any third party whose place of business is not on the territory of the European Union or of any other signatory State to the Treaty on the European Economic Area, nor to any third party with whom we are in competition. Neither shall the Ordering Party be authorised to permanently relinquish a partial quantity of any specified number of software licences obtained to third parties.
Removing copy protection or similar protection routines shall be admissible in cases where the protection mechanism impairs or prevents trouble-free use of the program.
Copyright notices, serial numbers and any other features serving to identify the program must not be removed or altered.
11. Securing Reservation of Title
The goods supplied (hereinafter also referred to as “reserved-title goods”) shall remain our property until the purchase-money claim (reimbursement) and all other existing or future claims arising from our business relationship with the Ordering Party have been settled in full. The inclusion of a purchase-money claim towards the Ordering Party in an account current and acceptance of the statement of account shall in no way affect said reservation of title.
The Ordering Party is obliged to treat reserved-title goods with care; it is in particular obliged to adequately insure them to their full value as new against loss, damage and destruction through the effects, for instance, of fire, water and theft to its own account. The Ordering Party shall assign its claims from such insurance contracts to ourselves with immediate effect. We herewith accept this assignment.
The Ordering Party may neither pledge nor transfer by way of security reserved-title goods owned by ourselves. It is, however, entitled pursuant to the following provisions to resell any reserved-title goods delivered in the ordinary course of business. The aforementioned entitlement shall not obtain should the Ordering Party have assigned or pledged the claim issuing out of the reselling of the goods towards its own customer - in each case operative - to a third party or have entered into a covenant of non-assignment with same beforehand.
The Ordering Party shall, with immediate effect, assign to ourselves all accounts receivable from any resale of goods we deliver - including any arising in future and of a conditional nature - with all subsidiary rights to the value of the reserved-title goods delivered, according them precedence over its remaining accounts receivable, so as to ensure all our claims cited in Subclause 11.1 are met. We herewith accept this assignment.
As long as and to the extent that the Ordering Party honours its financial obligations towards ourselves, it is empowered to redeem accounts receivable assigned to ourselves from its own customers in the ordinary course of business. It is not, however, entitled to enter into an open account relationship or covenant of non-assignment in respect of these accounts receivable with its own customers or to assign or pledge them to third parties. If an open account relationship nevertheless exists between the Ordering Party and the purchasers of our reserved-title goods despite the preceding sentence, the account receivable assigned beforehand shall relate to the accepted statement of account and, in the event of the purchaser’s insolvency, to the account then obtaining too.
If we so demand, the Ordering Party is to provide evidence of the accounts receivable it has assigned to ourselves individually and to notify its debtors of assignment having been effected demanding that they pay us a sum equivalent to the amount of our claims towards the Ordering Party. We are entitled to additionally inform the Ordering Party’s debtors of the assignment ourselves and to redeem the accounts receivable. We will, however, refrain from exercising these powers as long as the Ordering Party duly and promptly honours its financial obligations, no application has been made to initiate insolvency proceedings against the Ordering Party and the Ordering Party does not suspend its payments. Should one of the above occur, however, then we shall be permitted to demand that the Ordering Party provide us with details of the accounts receivable assigned and by whom they are owed, furnish all information required for the redemption of accounts receivable and surrender the relevant documents.
The Ordering Party is required to notify us in writing of any levies of execution or other forms of interference by third parties without delay so as to enable us to bring an action under Section 771 of Germany’s Code of Civil Procedure (ZPO).
Any further machining and processing or conversion by the Ordering Party of goods delivered by ourselves with reservation of title shall in all cases be performed on our behalf without this causing us to accrue liabilities. Where goods delivered with reservation of title are further processed together with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved-title goods delivered by ourselves (final invoice amount inclusive of value-added tax) to that of the other objects further processed at the time the further processing is performed. The same applies to the object arising from further processing as to the object of sale delivered with reservation. In the event of the goods delivered by ourselves with reservation of title becoming inseparably adjoined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved-title goods delivered by ourselves (final invoice amount inclusive of value-added tax) to the other objects commingled or adjoined at the time of commingling or adjunction. If the Ordering Party’s object is to be regarded as the principal thing following the act of commingling or adjunction, then there shall be agreement between the Ordering Party and ourselves to the effect that the Ordering Party shall proportionately transfer co-ownership of said object to us. The Ordering Party shall hold any sole or partial ownership of the object in safe custody on our behalf. The Ordering Party is entitled to dispose over any new products created through machining, processing, conversion, commingling or adjunction in the ordinary course of business assuming it punctually honours the obligations deriving from its business relationship with ourselves. Under no circumstances, however, is the Ordering Party empowered to resell or in any other way turn these new products to account having entered into a covenant of non-assignment with its customers, neither shall it pledge them or transfer ownership of them by way of security. The Ordering Party shall assign any accounts receivable from the sale of such new products to which we enjoy rights of ownership to ourselves with immediate effect as collateral to an extent commensurate with our share of ownership of the goods sold. If the Ordering Party adjoins or commingles the reserved-title goods delivered with a principal thing, it shall assign its claims towards the third party to ourselves with immediate effect up to the value of our reserved-title goods. We herewith accept these assignments.
The Ordering Party shall assign to ourselves accounts receivable from a third party that accrue from our reserved-title goods being linked with a property up to the value of our reserved-title goods as security for our own accounts receivable.
We shall pledge, should the Ordering Party so demand, 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 own discretion.
Given breaches of contract by the Ordering Party, notably arrears exceeding 10 % of the invoice amount over a not inconsiderable period of time, we shall - without prejudice to any other claims (for damages) open to us - be entitled to repudiate the contract and demand that the reserved-title goods delivered by ourselves be returned. We shall be authorised to turn reserved-title goods delivered by ourselves to account once they have been returned. The proceeds from such exploitation are to be offset against the Ordering Party’s liabilities towards us - less an appropriate amount for the costs of exploitation.
12. Tooling Costs
Where it is necessary to produce new tools for goods commissioned and a separate agreement has been concluded for this purpose, we will charge the agreed proportions of our manufacturing costs. The Ordering Party shall not acquire any rights to the tools themselves by paying any such part-costs. These shall, instead, remain our property. Tools are to be paid for in full upon presentation of the outturn sample. We pledge to retain the tools on the Ordering Party’s behalf for 1 (one) year following final delivery and to accord it sole right of use. Should the Ordering Party notify us prior to this period elapsing that further orders are to be placed within a further year, then the retention period shall be extended by a further year. Following this period and assuming no subsequent orders are placed, we alone shall be permitted to dispose over the tools.
13. Covenant of Non-Assignment
The Ordering Party may not transfer its rights or claims towards ourselves, in particular owing to defects in the goods we deliver or to any breaches of duty we perpetrate, either in whole or part to third parties or pledge them to third parties without our expressly consenting to this in writing; nothing in the above shall affect the provisions of Section 354 (a) of Germany’s Commercial Code.
14. Data Privacy
We will observe all the relevant provisions of data privacy legislation in the course of completion of contract – notably as enshrined in the EU’s General Data Protection Regulation (GDPR) and Germany's Data Protection Act. Details regarding how data are processed and the rights of those affected can be gleaned from the Data Privacy Information appended to these GTCs and from our Data Privacy Statement viewable at www.fsb.de/.
15. Collateral Agreements / Written Form / Text Form
Verbal collateral agreements shall not be entered into. Any amendments or additions to these GTCs and the contract concluded between ourselves and the Ordering Party shall only be valid if made in writing where so stipulated, to the exclusion of electronic or text forms. Amendments and additions may likewise be made in text form in the event of contractual clauses being concluded to this effect. This likewise applies with regard to this Written/Text Form clause. Amendments other than in written or text form shall be deemed invalid. Nothing in this Written/Text Form clause shall affect the validity of individual agreements of whatever nature.
16. Place of Fulfilment / Applicable Law / Place of Jurisdiction / Force Majeure
The place of fulfilment for deliveries and services shall be our corporate domicile.
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).
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, also entitled to assert claims of our own at the Customer’s own place of jurisdiction.
designates the occurrence of an event or circumstance (hereinafter collectively referred to as “events”) that hinders or prevents one of the contracting parties from honouring one or more of their contractual obligations if and to the extent that the party concerned is able to prove that
a) such a hindrance lies beyond the bounds of reasonable control,
b) the event could not be reasonably foreseen when the contract was concluded, and
c) the effects of the hindrance cannot be reasonably avoided or overcome.
Where no evidence exists to the contrary, it is assumed that the following events meet the conditions laid down in Subclause 16.3.1 of this Clause:
a) currency and trade restrictions, embargos, sanctions;
b) lawful or unlawful authority, compliance with legislation or official directives, expropriation, confiscation of factories, requisition, nationalisation;
c) epidemic, pandemic, natural catastrophe or extreme act of nature;
d) explosion, fire, destruction of equipment, lengthy failure of transport, telecommunications, information or power systems;
e) general labour or works disruptions such as boycott, strike and lock-out, occupation of factories and premises; failure of production facilities and machinery;
f) failure to meet delivery dates or non-delivery by our suppliers as well as stoppages due to shortages of raw materials, power or labour, difficulties in procuring means of transport, disruptions to traffic.
Where we justifiably plead the existence of the prerequisites for force majeure, we shall be exempted from honouring our contractual obligations as well as from all liability for damage or other consequences of contractually agreed legal redress in the event of the contract being breached on or after the point in time when the hindrance gives rise to disruptions in performance, assuming this is promptly notified.
Should this not be promptly notified, the alleviation shall only take effect from the point in time when notification is received by the other party. If the impact of the hindrance or event asserted is only temporary, the aforementioned consequences shall only apply for as long as the hindrance asserted impairs the performance of the affected party. Should the hindrance last for more than two (2) months and result in the contracting parties being essentially deprived of that which they were entitled to expect of the contract, either party shall have the right to serve reasonable notice to the other party to terminate the contract or else to repudiate same.
17. Saving Clause / Prevailing Language Version
Should individual provisions of these GTCs be invalid in whole or part, or should there be a gap in these GTCs, this shall not affect the validity of the remaining provisions.
These GTCs were originally drafted in German. In the event of their being translated into English and of discrepancies of content arising between the two versions, the German-language version shall prevail.
Edited to: 11 November 2021