Terms and conditions
2016 INTERNATIONAL STANDARD CONDITIONS & TERMS OF SALE OF FAHRER Berlin GmbH
- hereinafter the “Standard Terms” -
(1) Acceptance of any business sales transaction between the Buyer and us, including any other business pertaining thereto (hereinafter “the Transaction”) shall only be made on the exact terms and provisions of these Standard Terms, unless otherwise forth in writing in a document both signed by us and the Buyer. The Transaction shall be on these Standard Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
(2) Any offer made to the Buyer, including without limitation, commercial, technical and financial documents sent to the Buyer together with these Standard Terms and Conditions, shall be valid for a period of thirty (30) days from the date of its issuance, unless extended by us by written notice to the Buyer.
(3) The Buyer’s acceptance of any order confirmation received and/or the placement of an order in writing by the Buyer shall be deemed the Buyer’s unconditional and irrevocable agreement to these Standard Terms and the waiver of the Buyer’s own purchase terms and conditions or any other similar document. The Buyer shall ensure that the terms of its Order as defined hereinafter and any applicable specification are complete and accurate.
2. Order, Delivery Periods
(1) Any order placed by the Buyer (hereinafter “the Order”) shall be binding upon it. We shall be entitled to at our choice either accept such order by either transmitting within a period of four (4) days from receipt of the order, either a written order confirmation (hereinafter “the Order Confirmation”) or by delivering the ordered products and/or parts (hereinafter “the Products”) to the Buyer within the foregoing period. In the event of a discrepancy between the Order and the Order Confirmation, the Order Confirmation shall prevail and determine the terms of the said Transaction. No Order may be canceled or modified after the date of issuance of our Order Confirmation, except with our prior written approval and provided that all costs resulting therefrom shall be borne by the Buyer. Any delivery of Products to be shipped by us to the Buyer shall be accompanied by the respective Order Confirmation plus the required freight documentation (hereinafter the “Delivery Documentation”).
(2) Any dates provided by us for delivery of our products and parts are intended to be an estimate only unless specified by us in writing as binding and fixed delivery dates (hereinafter “the Delivery Date”). If no dates are so specified, we will make all efforts that delivery accompanied by the respective Delivery Documentation shall be made within the respective delivery date reasonably requested by the Buyer, PROVIDED, THAT WE ACCEPT NO LIABILITY FOR ANY LOSSES OR FOR GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF DELAYS IN DELIVERY unless caused by a gross-negligent misconduct or omission on our part, as proven by the Buyer.
(3) A Delivery Date shall be deemed met by us, when we have notified the Buyer prior to the expiration of the said Delivery Date that the ordered goods have already left our warehouse to be forwarded to the Buyer. We shall be entitled to make deliveries in installments. In case of any force majeure as set forth in Section 10 below, restraints under public law or in the event of strikes and lockouts and the like, we shall at our sole choice be entitled either to prolong the delivery periods agreed or to rescind the respective contract. In such events, the Buyer shall not be entitled to claim damages based on non-performance or default. The same shall apply if deliveries are not made by our suppliers on time unless we are at fault and can be held liable therefore. In such cases and if a fixed Delivery Date is agreed, we shall have the right - after granting us a reasonable period of respite - to rescind the Transaction(s) concerned.
3. Passing of Risk, Default of Acceptance
(1) Risk in the Products shall pass to the Buyer in accordance with the Incoterm elected for delivery thereof. If delivery is delayed upon the request of the Buyer, risk in the Products shall pass upon our written notification to the Buyer that the respective products are ready to be dispatched.
(2) If the Buyer is partly or wholly in default of acceptance or with any other obligation to co-operate, we shall have the right to claim damages including additional expenditures, if any. Further, the risk of accidental loss, destruction or deterioration shall then immediately pass to the Buyer.
(1) All prices are firm and ex warehouse Berlin/Germany unless otherwise agreed to in writing or specified in the respective Order Confirmation. Any tax, duty, custom or other fee of any nature imposed upon the respective Transaction by any federal, state or local governmental authority shall be paid by the Buyer in addition to the price quoted or invoiced. In the event we will be required to prepay any such tax, the Buyer will reimburse us.
(1) Subject to the Buyer complying with the remainder of these terms and conditions, we hereby warrant vis-à-vis the Buyer being a merchant that the Products are free from defects in materials and workmanship under normal use and service for a period of twenty-four (24) months from the date of delivery. Minor deviations from product descriptions, photographs, prototypes, and the like, in particular those set forth in Section 2.4 hereabove, shall not qualify as defects hereunder.
(2) The Buyer shall notify us of the defects in writing within seven (7) calendar days upon receipt of their respective Products. If despite thorough and diligent inspection by the Buyer the respective defects could only be discovered thereafter, the Buyer shall immediately notify us in writing upon the said defects. Any notification made by the Buyer in this context shall thoroughly describe the conditions under which the defect has arisen in order to facilitate the diagnostic of the defect.
(3) The Buyer must retain the Products at its premises unless requested by us to return the Products to us. We will make arrangements with the Buyer for the Products to be evaluated. If the evaluation reveals a defect in the Products, the defective Products returned by the Buyer will be made good at our expense by repair or replacement at our option. The property of the defective Products shall pass to us upon delivery of the replacement. Should a part no longer be available, it will be replaced with a part that most closely matches it.
(4) Transportation and insurance costs for defective parts returned to us shall be at the Buyer's charge. Transportation and insurance costs for parts replaced or repaired by us shall be at our charge. For the Products which have been replaced or repaired by us hereunder, we shall have the same liability as set out in Section 5.1 hereabove.
(5) The Products are provided “as is” and our warranty hereunder is strictly limited to the repair or replacement of defective parts, unless our repair and replacement fails. In this event, the Buyer shall have the right to either rescind the respective Transaction in this respect, or to reduce the purchase price paid for the defective Products. The above warranty shall apply only in as much as the Products have been used and maintained in compliance with our instructions for proper usage and further always provided the defects have not been caused by the incidents set forth in Section 5.6 below.
(6) This warranty shall not apply to defects arising from or connected with the Buyer’s failure to operate or maintain the Products in accordance with our specifications and documentation and generally with standard practices of product operations and shall not be applicable to defects arising from or connected with (a) any combination of the Products with equipment, material, products or systems not furnished, not approved or not specifically recommended by us (b) or any modification of the Products performed by others but us (c) or any accident, vandalism, negligence or handling errors causing damage to the Products (d) or normal wear and tear (e) or defective installation and/or (f) technical maintenance or interventions on the Products other than those deemed necessary by us.
(7) For Products and components that we purchase from third party suppliers, our warranty is strictly limited to the terms granted to us by our suppliers.
(8) The warranty in this clause and the rights and remedies of the Buyer hereunder are exclusive and in lieu of, and the Buyer hereby expressly waives, any other warranties, rights or remedies whether statutory, express or implied arising by law or otherwise with respect to any defects in or failures of the Products. In particular, we do not warrant that the Products will be resistant to all possible efforts to defeat or disable their functions, including their safety mechanisms, and we shall not incur, and disclaim, any liability in this respect.
6. Return Shipments
Return shipments made by the Buyer without any legally valid reason will only be accepted within a time period of fourteen (14) days from receipt of the respective Products by the Buyer.
7. Limitations and Exclusions of Liability
(1) Unless otherwise set forth herein, the following provisions set out our entire liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to the Buyer in respect of
(7.1.1) any breach of these conditions;
(7.1.2) any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products; and
(7.1.3) any representation, statement or tortious act or omission including negligence arising under or pertaining to any Transaction;
(7.1.4) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from any Transaction.
(2) Nothing in these Standard Terms excludes or limits our liability:
(7.2.1) for death or personal injury caused our negligence; or
(7.2.2) for any gross-negligent or deliberate misconduct or omission on our part;
(7.2.3) for any matter which it would be illegal for us to exclude or attempt to exclude its liability; or
(7.2.4) for any fraud or fraudulent misrepresentation on our part.
(3)Subject to Section 7.2 above, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the TRANSACTION(S) shall not exceed either:
(7.3.1) the price of the Order giving rise to the claim; or
(7.3.2) the total price actually paid by the Buyer to us under the respective Transactions during the six (6) months preceding the event leading to the claim for damages by the Buyer, whichever is smaller.
(4) Subject to Sections 7.2 and 7.3 above, to the maximum extent permitted by applicable law, We shall not be, in any case whatsoever, liable to the Buyer, its officers, agents, employees, successors and/or assignees for
(7.4.1) any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, or
(7.4.2) any special, indirect, consequential, incidental or pure economic loss, costs, damages, charges or expenses of whatsoever kind or nature arising out or in connection with any Transaction; or
(7.4.3) any loss, cost, damage, loss of revenue, loss of profit or loss of use, incurred or suffered by the Buyer or any third party resulting from a defect, infringement or alleged infringement, an incident, the failure of the Products or any failure to perform according to the respective Transaction even if we were advised of the possibility of such damages. The Buyer shall defend, indemnify, and hold us harmless from and against any claim based on such damage, loss or cost.
(5) Under no circumstances shall we be liable to the Buyer for any damages resulting from or arising out of any illegal and/or fraudulent use of the Products by the Buyer, any third party or the end-user.
8. Payments, Payment Defaults
(1) Unless otherwise agreed to in writing between the Buyer and us, any payment shall be made within fourteen (14) days from the date of issuance of the respective Order Confirmation.
(2)The Buyer shall make all payments due under the Transaction in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has obtained us a valid court order requiring an amount equal to such deduction to be paid by us to the Buyer or the respective deduction is undisputed and has been acknowledged by us in writing.
(3) Any services provided by us shall be paid for by the Buyer without any deductions.
(4) Except in the event of provisions to the contrary included in the Order Confirmation, all our invoices shall be payable in EUROS and shall be paid by direct bank transfer to the bank nominated in writing by us to the Buyer.
(6) In the event Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to us (in particular, but not limited to additional damage claims), we may, without limitation,
(6.6.1) revoke any open payment terms granted by us to the Buyer;
(6.6.2) postpone the fulfillment of our own obligations until full payment of the sums due to us under the terms of the respective Transaction(s);
(6.6.3) charge the Buyer interest on such sum from the due date for payment at the annual rate of eight percent (8 %) above the base lending rate from time to time of the European Central Bank, accruing on a daily basis until payment is made, whether before or after any judgment;
(6.6.4) terminate the business relationship with the Buyer upon the expiry of a fourteen (14) calendar day written notice from us to the Buyer.
9. Retention of Title, Right of Possession
(1) To the extent valid under applicable laws, we shall retain title to the Products delivered by us until payment in full has been made for all and any claims resulting from the respective Transaction and the overall business relationship with the Buyer including all ancillary claims and charges. Products sold with our express approval to the Buyer for the purpose of resale shall be sold on condition that the Buyer does upon resale assign all claims he may have against such third parties to us in the amount of the respective purchase price plus ancillary cost and interest rates, if any. In the course of current account transactions, such retention of title and assignation of claims shall serve as security for any debit balance in our favor. Unless expressly otherwise agreed upon between the Buyer and ourselves, the former shall upon sale or any other disposal of said Products be obliged to notify the receiving third parties of the retention of title. Subject to our revocation, the Buyer shall have the right and shall be obliged to collect the outstanding amounts of all claims against such third parties which have been assigned to us on our behalf. In particular if we become aware of a substantial deterioration in the Buyer’s financial soundness, we shall be entitled to revoke Purchaser’s right and obligation to collect such sums and to collect ourselves the payments assigned.
(2) Without our express prior written approval the Buyer shall not be entitled to mortgage or grant any lien to the said Products, or to transfer these by way of security to a third party. In the case that third parties attach security interests to the Products or claims in our property or assigned to us hereunder, the Buyer shall immediately inform us by using the most expedient way of communication (such as facsimile message, etc.).
(3) In the event of default by the Buyer in any payment due, we shall have the right, in addition to any other remedies we may have at law or in equity, to withhold shipment, to recall the Products in transit and retake the same, to repossess any Products not yet paid for by the Buyer without the necessity of us initiating any other proceedings. The Buyer will not interpret our activities in this regard as unlawful interference with the possessions of another and that we shall have access to all warehousing facilities and offices of the Buyer to the extent required to enforce our rights; the Buyer undertakes to fully co-operate with us in this context.
(4)If the value of all securities for which we obtained or retained the title, calculated at cost-price, exceeds the respective claim by more than twenty percent (20%), we shall be obliged upon request of the Buyer to release at our sole discretion the respective securities in whole or in part accordingly. In the course of current business relation accounts, the foregoing percentage shall apply to all claims we have against the Buyer.
10. Force Majeure
(1) We shall not be in default if the performance of any of our obligations under any Transaction is partly or wholly delayed or prevented by reason of Force Majeure.
(2) "Force Majeure" shall mean any event beyond our reasonable control such as, without limitation: acts of God, governmental decision, embargo, war or national emergency, hostilities, act of the public enemy, terrorist attacks anywhere in the world, riot, civil commotion, sabotage, fire, flood, explosion, epidemics, quarantine restriction, disturbances in supplies from normally reliable sources (including without limitation electricity, water, fuel and the like), strike (either at our premises or those of our suppliers or subcontractors), lock-out and labour disturbances (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or delay from a supplier or subcontractor facing a case of force majeure as defined herein.
(3) In case of Force Majeure, we shall give notice of the event to the Buyer and the time schedule for the performance of any pending Transaction shall be automatically extended by the period of time as reasonably necessary for us to overcome the consequences of such event.
(4) If our performance in whole or part of any of our obligations is delayed or prevented by reason of Force Majeure for a period exceeding three (3) months, we may at any time without further liability to the Buyer, request termination of the Transaction(s) concerned or any part thereof. However, Force Majeure shall not prevent or delay the payment of any sum due or to be due by the Buyer
11. INTELLECTUAL PROPERTY, CONFIDENTIALITY AND INFRINGEMENT
(1) The information and data (hereafter the “Information”) contained in any document or support of information supplied by us to the Buyer shall remain our exclusive property along with all intellectual property rights (including but not limited to patent rights, copyrights, trademarks, designs) attached thereto. Therefore, no right, title or interest is transferred to the Buyer by any Transaction in the names, trademarks, trade secrets, patents, pending patents, expertise, copyright and other intellectual property rights relating to the Products.
(2) The Buyer shall not make any use of the Information other than for the purpose of the Transaction, or, as the case may be, installing, operating and/or maintaining the Products. We retain and shall retain full ownership of all inventions, designs and processes made prior to or during the course of performance of any Transaction resulting therefrom.
(3) The Buyer shall keep the Information in strict confidence and shall not disclose any of the Information to any other person than the Buyer's employees who need to know such Information for the legitimate business purposes pursued by the Buyer. Any other disclosure shall be subject to our prior written approval.
(4) Should a court or an arbitrator finally establish that there has been a patent infringement or should we consider that the Products could be the subject of a claim or suit for infringement, we may choose at our option one of the following solutions
(11.4.1) to obtain the right for the Buyer to continue using the Products,
(11.4.2) to substitute equivalent products for the infringing Products,
(11.4.3) to modify the infringing Products so as to eliminate the infringement.
(5) Subject to Sections 7.1 to 7.4 hereabove, the foregoing states our entire liability and warranty of with respect to the infringement of any patent, copyright, trademark or trade secret or of any intellectual property right by the Products or any part thereof.
12. Place of Performance, Dispute Resolutions and Applicable Law
12.1. In the event of disputes arising out of or in connection with the contract, including disputes on its conclusion, effectiveness, amendment or termination, both parties will try to reach an amicable settlement. In the event that the dispute shall not be solved within one month after one party has asked the other to settle the dispute, all legal measures provided by the applicable provisions can be taken.
12.2. The place of jurisdiction for all disputes indirectly or directly arising out of the contract shall be the court in Germany having jurisdiction over the Seller's registered office. Nevertheless, the Seller may also bring the matter before a different court which has jurisdiction over the Purchaser.
12.3. The contract, all disputes and all legal relationships between the Seller and the Purchaser shall be subject to German law, and the conflict of laws rules of Private International Law and UN Sales Law shall be excluded. In the case that the Agreement was drafted in several languages, the German version shall be decisive for interpretation.
12.4. The place of performance for deliveries and payments shall be the Seller's registered office, even if delivery was agreed to take place at a different place or actually takes place at a different place.
13. Data Storage, Sales Modalities
(1) In compliance and within the limits of existing data protection regulations we shall be entitled to process and store personal data received from the Buyer. Further use of the Buyer’s personal data shall only be made with his prior written approval.
(2) The Buyer is not permitted to offer the Products it received from us in his own name and for his own account in online marketplaces and platforms such as eBay or Amazon and will not actively participate in or otherwise contribute to sales and/or marketing activities of third parties relating to such marketplaces and platformsly. If disregarded by the Buyer, we shall be entitled to reclaim all Products delivered by us to the Buyer and to discontinue any business relationship with the Buyer.
14. Final Provisions
(1)If any provision of these Standard Terms is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these Standard Terms and the remainder of such provision shall continue in full force and effect and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
(2) We reserve the right to amend, change or substitute this or parts of the present version of these Standard Terms if required or deemed reasonable at our sole discretion (hereinafter “the Subsequent Terms”) and will notify the Buyer accordingly. All Orders already placed by the Buyer and confirmed by us in writing prior to the coming into force of any Subsequent Terms shall remain to be governed by these Standard Terms.
FAHRER Berlin GmbH 2016