General Terms & Conditions of Trade and Data Privacy Information
issued by Franz Schneider Brakel GmbH + Co KG
1. Scope of Application
These General Terms & Conditions of Trade (hereinafter referred to as “GTCs”) apply to deliveries made by us in connection with concluded contracts for products or services as well as other services we perform for companies as natural or legal persons or partnerships having legal capacity within the meaning of Section 14 German Civil Code acting in exercise of his or its trade, business or profession, as well as for legal entities and special funds under public law within the meaning of Section 310 (1) German Civil Code (hereinafter referred to as the “Customer”). Our GTCs also apply to any future business relationships, even if no explicit reference is made thereto.
Any changes or additions as well as any contractual terms issued by the Customer that conflict with or differ from these GTCs 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 terms 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. Subject of a Contract
The subject of contracts shall be a given service and/or product/merchandise ordered by the Customer having the features and dimensions set out in our product description. The illustrations in our catalogues provide general product information in purely pictorial form and lay no claim to colour accuracy, completeness or correctness.
We are allowed to involve subcontractors in the performance of contractual services. The use of subcontractors shall not release us from our general obligation to the Customer to fulfil the contract completely.
3. Price Quotes and Conclusion of Contracts
We shall provide 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 at least in text form.
A Customer’s order shall be rendered void if it is not confirmed by us at least in text form within three weeks of receipt.
Where we issue recommendations regarding the use of our products, 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 writing. 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.
4. Provision of Documents / Customer’s Duty of Involvement
The Customer is responsible for the correctness of any documents provided for the purpose of fulfilling a contract such as, notably, drawings, locking plan specifications and specimens.
The Customer shall ensure that we obtain the rights required to use the material referred to in Subsection 4.1 above. To this end, they shall vouch for the fact that they have the requisite rights to the material assigned to us. Where the Customer 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 violated through use of the material entrusted to us, the Customer shall indemnify us against all third-party claims.
The Customer is obliged to notify us of any changes to their company name, domicile, proprietor status or financial standing without delay – in writing where at all possible.
Any faults arising are to be documented by authorised members of the Customer’s staff in text form (e.g. email) – 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.
Where activities due and owing from us are to be accepted, the Customer is required to declare their 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 cannot be refused in the event of there being immaterial shortcomings. Determined defects are to be remedied by ourselves within a reasonable period. Acceptance is deemed to have occurred in other respects if the Customer does not cite in writing the existence of an at least serious defect as the reason for refusing acceptance 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.
Customers 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.
5. Delivery Conditions / Delivery Dates and Periods / Nature-of-Goods Risk and Guarantee
Scope and execution of the services due and owing from us shall be as defined in the order confirmation / confirmed price quote.
Delivery dates and periods shall only be binding if they have been agreed at least in text form. 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.
We are entitled to effect partial delivery if
- the partial delivery can be used 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 we do not declare ourselves ready to take these on ourselves.
The delivery date or period shall be put back by the duration of the delay plus a reasonable lead time notably
- if, contrary to the Customer’s duty of involvement as laid down in Section 4, particulars required by us to process the order do not reach us in good time;
- where, despite proceeding with the prudence called for under such contractual arrangements, we are temporarily prevented from fulfilling our contractual obligations due to 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 as to oneself obtaining 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.
We shall only assume a nature-of-goods risk given a separate written agreement containing the words “FSB assumes the nature-of-goods risk for …”. On its own, therefore, no obligation we enter into to deliver any object that is merely specified generically shall be deemed to indicate our having either assumed a nature-of-goods risk or issued a nature-of-goods guarantee.
6. Passing of Risk / Shipping and Packing
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.
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.
We take back transport packing or any other packing material free of charge in accordance with the statutory provisions.
7. Electronic invoicing and contractual documents
The Customer consents to us issuing invoices electronically by email. This consent applies likewise to the sending of other contractual documents, such as purchase orders, order confirmations, etc..
If the Customer wishes invoices or contractual documents to be sent as paper documents, the Customer must object to the sending of same electronically at least in text form with effect for the future.
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 packaging, carriage, installation, assembly etc. unless anything to the contrary has been agreed on prices. Where the delivery address is located on an island, the Customer shall be liable to an extra freight charge.
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 on any cost increases that may have occurred – notably for procurement and manufacture as well as on account of price alterations brought about by legislative amendments – to the Customer by adapting our prices accordingly.
9. Terms of Payment
Our invoices are payable on receipt and to be settled within 14 days of receipt with a 2 % rebate or within 30 days without deduction. Amounts of less than € 50 net are to be paid in full within seven days of receipt of the invoice.
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 the Customer or a third party applying to initiate insolvency proceedings in respect of the Customer’s assets –, then we shall be entitled to demand either advance payment of the amount agreed or collateral security.
Should the Customer default on the agreed remuneration or the purchase price payable for the contractual services, 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 for compensation, notably higher rates of interest, additional costs and charges of € 2.50 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.
10. Rights of Set-Off and Retention
The Customer shall have a right of set-off provided that its counterclaims are non-appealable, incontestable or recognised by us. Counterclaims of the Customer arising from the same contractual relationship are likewise ruled out.
The Customer shall only enjoy right of retention if the counterclaim cited as justifying said right of retention relates to the same contractual relationship and is uncontested, has been finally and conclusively established or is ripe for judgment.
11. Reservation of title
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 12.1.
The Customer is entitled to further process conditional commodities in the course of their 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 now assigns to us any claims towards their 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 hereby accept the assignment. We revocably authorise the Customer to redeem the claims assigned to us for our own account on their 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 collecting accounts receivable by way of the factoring process. Unless, that is, 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.
Any further processing or conversion of conditional commodities by the Customer shall in all cases be performed on our behalf. Where conditional commodities 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 conditional commodities (net invoice total 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 conditional commodities. In the event of the conditional commodities becoming inseparably combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the conditional commodities (net invoice total inclusive of value-added tax) to the other objects combined at the time of combination. If the Customer’s object is to be regarded as the principal object 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 object to us; we hereby accept the transfer. The Customer shall hold any sole or partial ownership of the object passing to us in this way in custody on our behalf at no charge.
In the event of any third party gaining access to the conditional commodities, notably in the form of pledges, the Customer shall inform them of our existing proprietary rights and notify us without delay in order that we can assert said proprietary rights.
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 and of repudiation.
We are obliged to release any security to which we are entitled once the value that can be realised from such security exceeds the secured claims by more than 10 %. Which security is to be released shall be a matter for our discretion.
12. Rights in permanently provided software
Where the delivery of permanently provided software constitutes the subject of a contract or part of the services due and owing, we shall, subject to the provisions contained in Subsections 12.3 to 12.6, grant the Customer a permanent, non-transferable ordinary right of compliant use in the object code. Until such time as complete payment of the licence purchase price quoted has been made, we will grant the Customer an ordinary transferable right to use the software that shall be revoked upon payment being delayed by more than 30 days.
Abbreviated hard-copy documents on software applications shall form part of the contract. We will grant the Customer the right to use these pursuant to Subsection 12.1.
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.
It is permissible under the terms of Section 69 (e) of Germany’s Copyright Act to decompile software. If the Customer is unable or unwilling to carry out any exceptional actions permitted under Germany’s Copyright Act themselves or to have this done by their own staff, then they are 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 to secrecy any third-party companies with whom jobs are placed.
The Customer shall not be permitted to permanently cede 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 Agreement on the European Economic Area, nor to any third party with whom we are in competition. Neither shall the Customer be authorised to permanently cede 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.
13. Notification of Defects and Warranty Services (Fault Rectification)
Where the Customer orders the subject of a contract (hereinafter also “product”) as a commercial undertaking, they are 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 of 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.
In the event of material defects existing we shall, in the context of the subsequent performance thus necessitated, have the choice of effecting said subsequent performance by either carrying out repairs or furnishing a replacement. We shall be permitted to make such subsequent performance dependent upon payment of at least 50 % of the agreed purchase price or remuneration, or else a share deemed reasonable given the nature of the defect. In the context of subsequent performance we are not obliged to reimburse the Customer for necessary expenses for removing the defective product and installing or attaching the repaired or supplied flawless product. 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 14. Should a contract for services be in place, then the Customer shall additionally have the right to rectify the fault themselves and demand compensation for the requisite outlay.
We shall effect subsequent performance in the event of there being any legal imperfection in title by establishing a scope of 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 tolerable for 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.
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 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 same to receive declarations under the terms of the guarantee.
Should the Customer or any third party commissioned by same intervene to modify the supplied products without our prior written consent, we shall nevertheless remedy the defect if the Customer proves that their intervention was not the cause of its having come about.
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 either improper use of products by the Customer or faulty work performed by any processor directly or indirectly commissioned by the Customer.
Where a Customer orders material for products to be manufactured by ourselves, we shall only 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 combined with other materials.
If it is found that a defect reported by the Customer does not actually exist, we shall be entitled to charge the Customer for the expense incurred for analysis and other processing if the Customer has, in reporting the defect concerned, acted with intent or gross negligence.
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 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 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. 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 Subsection 14.2 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.
Liability is governed by the relevant statutory provisions where it concerns assumption of a nature-of-goods or manufacturing risk within the meaning of Section 276 German Civil Code, the failure to assume a nature-of-goods or service-life guarantee pursuant to Section 443 German Civil Code, malice, risk to life, body or health or the terms of Germany’s Product Liability Act.
The above liability regime also applies to 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.
15. Time limitation
The period of limitation for claims to remedy material 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 Subsection 13.2.
Over and above the statutory warranty against defects, as the manufacturer we guarantee the proper functioning of our mechanical products for five years provided that 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 legal imperfection 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) German 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) German 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 German Civil Code and the terms of the German Product Liability Act.
16. Written/Text Form
Oral supplements do not exist. Any amendments or additions to these GTCs and the contract concluded between ourselves and the Customer shall only be valid if made in writing where so stipulated, to the exclusion of electronic and text form. Amendments and additions may also 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, irrespective of their form.
17. 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 and our Data Privacy Statement viewable at https://www.fsb.de/en/footer/privacy-policy/.
The contracting parties shall similarly impose the data-privacy obligations laid down by law upon their staff and any subcontractors involved.
18. Place of Fulfillment / Applicable Law / Place of Jurisdiction
The place of fulfilment for deliveries and services is 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 fund 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.
19. Contact Options / Assignment / Saving Clause
We can be reached by email or telephone for user questions and any other advice the Customer may require from 8 a.m. to 4.30 p.m. Monday to Friday (except on the 24th and 31st of December in any year and during public holidays in North Rhine-Westphalia).
The Customer may only assign claims arising from contracts concluded with us if we consent to this in writing beforehand. Consent cannot be withheld inequitably. The provision of Section 354a German Commercial Code shall remain unaffected hereby.
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.
Data Privacy Information
1. We collect, store, process and use the Customer’s personal data to the extent and for as long as this is needed to substantiate, perform or terminate this Contract. Any further collection, storage, processing and use of the Customer’s personal data shall only be undertaken to the extent required or permitted by law or assented to by the Customer.
2. The Customer shall be aware that, amongst other things, Article 6 (1) point b) GDPR requires their name and address or those of the contact person to be collected, processed and used in the course of adopting pre-contractual measures and fulfilling this Contract.
3. We are entitled – within the bounds of what is statutorily admissible – to assess the risk of the Customer defaulting on payment when arriving at a decision as to whether to substantiate, perform or terminate a contract between the contracting parties. The collection, processing and use of data for this purpose are governed by Article 6 (1) point b) GDPR.
4. We are also entitled to transmit the Customer’s data to third parties as and when this is required either for the purpose of adopting pre-contractual measures and fulfilling this Contract (e.g. for shipping, invoicing or customer care) pursuant to Article 6 (1) point b) GDPR or to meet a legal obligation within the meaning of Article 6 (1) point c) GDPR. We may also – within the bounds of what is statutorily admissible – forward such data to third parties (such as debt-collecting agencies) in the course of asserting a claim for recovery of debts in accordance with Article 6 (1) point b) and/or f) GDPR.
5. We shall, on request, furnish the Customer with details of any personal data we have stored on them free of charge observing the statutory prerequisites. The Customer shall have the right, observing the statutory prerequisites, to demand the correction, deletion or restricted processing or transfer to any third party of their data. The Customer shall also be entitled to lodge complaints with a supervisory body.
6. The Customer may at any time informally object to our using their personal data (I) for the requisite performance of a task assigned to us in the public interest or in the exercise of official authority, or (II) for the requisite safeguarding of legitimate interests pursued by either ourselves or a third party – in accordance, for instance, with Clause 4 above – pursuant to Article 21 (1) GDPR. Should we be unable to cite any overriding, compelling, defensible reasons for their use, we shall cease to use the data concerned for these purposes once we have received any such objection.
7. Article 21 (2) GDPR, moreover, states that the Customer may at any time and at no charge informally object to our using their personal data for direct marketing purposes henceforth. We shall cease to use the data concerned for these purposes once we have received any such objection.
8. We are the body responsible for all issues relating to data privacy as well as for the exercising of the rights set out above. Details can also be gleaned from our Data Privacy Statement viewable at https:// www.fsb.de/en/footer/privacy-policy/.
Edited to: 23 November 2019