General Terms and Conditions

I. Acknowledgement of the general terms and conditions

The following terms and conditions apply, as long as no other agreements that deviate from these conditions have been confirmed in writing by us. Our terms and conditions take precedence over any existing conditions of purchase by the customer.

II. Quote

  1. The tender is free of charge and without any obligation. The offer is valid for 30 days after the date of issue subject to any other agreement. Information, such as pictures, services, weights and measurements accompanying the offers are approximate only, unless they are marked as mandatory.
  2. Construction, foundation and layout drawings only apply as dimensions, without any liability for the resistance, static analysis, or for structural suitability.
  3. We retain ownership and copyrights of all documentation, such as calculations, drawings, etc. in connection with the contract award provided to the customer. These documents may not be made accessible to third parties, unless we provide our express written consent to the customer. If we do not accept the offer from the buyer within 30 days, these documents must be returned to us immediately. We are committed to make plans from the customer identified as confidential only available to third parties with the customer's consent.
  4. Only our written confirmation applies an order acceptance. If the order confirmation contains changes from the order, the purchaser's consent is deemed as granted, if he does not dispute this in writing within 2 weeks.

III. Delivery scope

  1. Our written order confirmation applies exclusively for the delivery scope. All secondary agreements and changes require our written confirmation.
  2. Dimensions, weights, illustrations and drawings are only binding for the design, if this is confirmed in writing. Gross weights are approximate and listed according to our best estimation, however, without any obligation.

IV. Prices and payment

  1. The calculation of our goods and services is always based on the rates on the day of the order confirmation.
  2. The prices are ex works Gütersloh (or warehouse), plus packaging and applicable VAT.
  3. We are entitled to bill finished goods beginning with the notification, pickup or readiness.
  4. Invoices are payable net within 30 days after receiving the invoice, plus VAT, delivered to our agency. Repair and replacement part invoices are payable net immediately after receiving the invoice.
    In addition, we reserve the right to establish individual payment terms.
  5. When exceeding the due payment date, interest at the rate of 8 percent p. a. will be calculated above the base rate without the need for a separate notice. We reserve the assertion of higher default damages.
  6. Reasonable price changes due to changes in wages, materials and distribution costs for supplies, which occur 4 months or later after signing the contract, are reserved.
  7. The customer has the right to compensation only if his counterclaims have been established as final and absolute or are undisputed. The buyer is only authorised to exercise a lien, if his counterclaim is based on the same contractual relationship.
  8. If we take back already ordered and delivered goods in whole or in part at the customer’s request, we will apply charge back costs, which will be reported to the customer upon request. A right to take-backs does not exist.

V. Delivery period

  1. The delivery period is to be regarded as approximate. It begins when sending the order confirmation, but not before the customer has fulfilled his obligations. The objection of a non-fulfilled contract is reserved.
  2. The delivery is met if the goods have left the plant by the expiration date or the readiness for shipment has been reported.
  3. The delivery time is suitably extended in activities related to labour disputes - especially strikes and lockouts - and any unforeseen circumstances which are beyond our control - regardless, whether these occur in our plant or at the suppliers location- such as operating or production problems, delay in the delivery of essential raw materials and auxiliary materials, if such impediments demonstrably have a significant impact on the production or delivery of the goods. The aforementioned circumstances also must not be supported by us, if they occur during an already existing delay. The beginning and end of such obstacles will be communicated immediately to the customer in important cases. 
  4. If the buyer incurs damages as a result of our negligence, he is entitled to compensation for the delay with the exclusion of further claims, after written notice and request for a grace period of two weeks from that date. It equals 0.5% for each week of the delay, but no more than 5% of the value of that portion of the total delivery, which was not provided for shipment in time or not according to contract due to the delay.
  5. If the shipment is not executed immediately after its completion at the request of the Purchaser, he shall be charged any costs incurred by the storage in our plant, beginning one month after the notice for pickup or shipping, but at least 2% of the total bill for each month. We are entitled to dispose of the goods otherwise and deliver to the customer at a suitable extended period after setting a reasonably extended period.
  6. If the customer defaults on the acceptance or culpably violates other cooperation obligations, we are entitled to demand compensation for any resulting damages, including any additional expenses. Further claims remain reserved. If the above conditions exist, the risk of accidental loss or accidental deterioration of the goods is the responsibility of the purchaser at the time he is in default of acceptance or payment.
  7. If the customer is in default of payments of debts arising from previous transactions of any kind, we are entitled to discontinue the delivery and full payment until the complete payment of open debts.

VI. Risk transfer and acceptance

  1. If the goods or a partial shipment is sent at the customer's request to him, the risk for the shipment of accidental loss or accidental deterioration of the goods passes to the customer, at the latest upon leaving the factory / warehouse. This applies regardless of whether the shipment of the goods occurs from the place of performance or who bears the freight costs and whether additional services, such as an assembly are provided. At the request of the customer, the shipment will be insured at his cost against theft, breakage, transport, fire and water damage and other insurable risks.
  2. The requests of the customer are taken into account in the selection of shipping and packaging at a reasonable discretion. We must reject any subsequent complaints.
  3. Delivered items must also be accepted by the purchaser with minor defects notwithstanding the rights set forth in Section VIII.
  4. If shipment is delayed due to circumstances which are the customer’s fault, the risk is transferred to the customer from the day of the shipment. We are obliged, to complete the insurance at the request of the customer on request.
  5. Partial deliveries are permitted.

VII. Retention of title

  1. We retain the right of ownership in the delivered item until the complete payment of all debts from the delivery contract.
  2. As long as the ownership has not been transferred to the purchaser, the purchaser has the responsibility to treat the purchased item carefully.  He is specifically responsible to sufficiently insure these at their new value at his expense against theft, fire, and water damages. If maintenance or inspection work must be performed, the purchaser must perform these in time at his expense. During the period of our retention of title, the purchaser must inform us immediately in writing, if the delivered item was seized or is exposed to other interventions by third parties.
  3. The purchaser has the right to the further sale of the retained goods within normal business transactions. The debts of the buyer from the further sale of the retained goods are already relinquished to us by the purchaser in the amount of the final billing amount agreed with us (including VAT). This assignment shall apply regardless of whether the goods have been resold without or after processing. The customer is authorized to collect the debt even after the assignment. Our authority to collect the debt ourselves remains unaffected.
  4. The handling and processing or transformation of the goods by the customer is always carried out for and on behalf of us. In this case, the contingent right of the purchaser in the purchased item continues on the converted item. If the purchased item is processed with objects not belonging to us, we are obtaining ownership in the new item at a ratio of the objective value of our purchase item. In order to secure our debt against the purchaser, the purchaser will also assign such debts to us, which he incurred in conjunction with the retained goods with a property against a third party; we are already accepting assignment.
  5. We are committed to release the securities upon the customer’s request, if their value exceeds the secured claims by more than 20%.

VIII. Warranty and complaints and recourse

  1. The customer’s warranty rights require that the latter has fulfilled his contractual obligations concerning the examination and complaint obligations according to § 377 HGB.
  2. Warranty claims must be submitted in writing and lapse within 12 months for new items after the delivery to the customer. In the case of used goods, a warranty is excluded.
  3. Our approval must be obtained prior to any return shipment of the goods.
  4. When purchasing single parts or components, the guarantee is limited to the goods supplied by us.
  5. Interface errors in communicating with software products from other suppliers, e.g. through software updates, are excluded from the warranty. Furthermore, problems caused by harmful programs are also excluded from the warranty.
  6. If the item should have a defect, despite all applied care for the delivered product, which existed at the time of the risk transfer, we repair or replace the defect within a reasonable time according to our choice, subject to a timely notice. We must always be provided with sufficient time and opportunity to remedy the defect within a reasonable time. The presence of defects only entitles to a reduction or withdrawal if the remedy by us was unsuccessful. Replaced parts become our property and shall, unless otherwise agreed be sent back to us for a detailed investigation. Recourse claims remain unaffected without restrictions by the above regulations. If the defect remedy requested by the customer that the systems and equipment supplied by us and / or our installation services are free from defects, the buyer is obliged to compensate the incurred expenses.
  7. A right of withdrawal does not exist with only minor deviations from the agreed quality or with only minor impairments of its usefulness, for example, for glass and paint damage.
  8. Warranty claims are excluded for incorrect, faulty or inadequate information of the intended operating conditions such as the medium, contamination of the medium, temperature and pressure.
  9. Claims by the purchaser for the purpose of subsequent fulfilment, in particular transport, travel, labour and materials costs, to the extent that expenses are increased because the goods delivered by us were subsequently moved to a place other than the customer’s premises is excluded, unless the transfer is in accordance with its intended use.
  10. Claims by the customer, especially a claim for compensation of damages that did not occur to the merchandise itself, are excluded to the extent permitted by law.

IX. Customer's right to withdraw

If a delay in the service within the scope of Section V. of the conditions exists, the buyer is obliged to grant us a reasonable grace period. He is entitled to withdraw, if this deadline is not respected by us.

X. Right of the supplier to withdraw

  1. Should unforeseen events occur within the scope of Section V. No. 3 of the terms and conditions that change the economic importance or should the content of the service significantly or considerably affect our business and a subsequently impossibility of execution, the contract will be adjusted appropriately. If this is not economically feasible, we reserve the right to withdraw totally or in part from the contract. Damage claims by the customer for such a withdrawal do not exist. If we want to apply the withdrawal right, we have to inform the customer after recognizing the significance of the event, even if an extension of the delivery date was agreed with the customer.
  2. If it becomes known to us that the customer is in a difficult financial situation after our confirmation of an order, we can base the delivery on a prior security. If no guarantee or such are provided, we have the right to withdraw from the contract. The customer has to refund the expenses provided by us until then.

XI. Other

  1. This Agreement and all legal relationships are subject to the laws of the Federal Republic of Germany excluding the UN Sales Convention (CISG) and the Hague Conventions of 1.7.1964.
  2. The place of fulfilment and jurisdiction for all disputes of both parties under the contract is Gütersloh, regardless of the size of the claim. We reserve the right to sue at the customer's headquarters. At the same time, these conditions are hereby expressly acknowledged as a contract. This agreement particularly applies in case that the customer has no general jurisdiction in Germany, that the customer moved his domicile or habitual residence outside the scope of the German Code of Civil Procedure, or his domicile or habitual residence at the time of the complaint is unknown and in the event that claims are made in the course of a collection procedure.

FLACO-Geräte GmbH

Status: 03/2010