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General terms and conditions of delivery and payment

Status January 2018

I. General / scope of application

  1. These terms and conditions of delivery and payment shall apply to all legal transactions, including future ones, between Fenecon GmbH and the contracting party.
  2. ContraryGER or deviating from these Terms and Conditions of Delivery and PaymentGER or supplementing themGER conditions of the contractual partner shall only apply insofar as they have been expressly recognized by us in writing.

II. Conclusion of contract; reservation of self-delivery; force majeure; terms of payment

  1. All our offers are subject to change and non-binding. The sale is subject to correct and timely delivery to us.
  2. The Seller shall be entitled to withdraw from the contract insofar as it does not receive the delivery item despite the prior conclusion of a corresponding purchase contract on its part; the Seller's liability for intent or negligence shall remain unaffected. The Seller shall inform the Buyer without undue delay of the non-timely availability of the delivery item and, if it wishes to withdraw, shall exercise the right of withdrawal without undue delay; in the event of withdrawal, the Seller shall reimburse the Buyer without undue delay for the correspondingGER consideration.
  3. If we are prevented by events of force majeure from making a delivery on time, we shall be entitled to postpone the delivery for the duration of the impediment or we shall be released from the obligation to deliver if the purchaser is justifiably no longer interested in the delivery. Events of force majeure are in particular but not exclusively: internal labor disputes for which we are not responsible, external labor disputes if we are unable to procure a replacement for the endangered delivery in a reasonable manner, war, import and export bans, shortages of energy and raw materials, power outages, extreme weather conditions (e.g. hail or thunderstorms) or official measures.
  4. Unless otherwise agreed, payment shall be due in full upon delivery or acceptance of the goods. The buyer shall be in default without any further declarations by the seller 14 days after the due date insofar as he has not paid.
  5. Offsetting against our purchase price claims is only permissible with counterclaims that are undisputed, ready for decision or legally established. The buyer may also assert a right of retention only under these conditions.

III. documents handed over

  1. We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent. These documents may not be made accessible to third parties unless we give the customer our express written consent.
  2. If no contract is concluded, these documents shall be returned to us without delay.

IV. Transfer of risk in case of shipment

If the goods are shipped to the customer at the customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs. 

V. Retention of title

  1. The deliveries of the company Fenecon GmbH take place under reservation of proprietary rights. The delivered goods remain the property of Fenecon GmbH until full payment of all current and future claims arising from the business relationship between Fenecon GmbH and the customer.
  2. As long as ownership has not yet passed to him, the customer is obliged to treat the object of sale with care. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in text form if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us. During the existence of the reservation of title, the ordering party is prohibited from pledging or transferring the goods by way of security.
  3. The customer is permitted to process the delivered goods, to mix them with other objects or to combine them. This is done exclusively for the company Fencon GmbH. Insofar as this results in the loss of ownership of the goods, the customer hereby assigns to the contractor co-ownership of the new item in the ratio of the invoice value of the delivered goods to the invoice value of the other goods as security for the claims arising from the retention of title.
  4. Furthermore, the customer is entitled to resell the delivered goods in the ordinary course of business. This authorization can be revoked if the customer does not properly fulfill the contractual obligations incumbent upon him. The Customer hereby assigns its claim from the resale of the goods subject to retention of title against the purchaser with all ancillary rights to Fenecon GmbH by way of security, without any further special declarations being required. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by the Contractor.
  5. Until revoked, the Client is authorised to collect the assigned claims. The Client shall immediately forward payments made on the assigned claims to the Contractor up to the amount of the secured claim. In the event of good cause, in particular default of payment, suspension of payment, opening of insolvency proceedings or imminent insolvency of the Principal, the Contractor shall be entitled to revoke the authority to collect.
  6. Fenecon GmbH undertakes to release the securities to which it is entitled at the Purchaser's request if their value exceeds the claims to be secured by more than 20%.
  7. In the event of breaches of duty by the Client, in particular in the event of default in payment, the Contractor shall be entitled, even without setting a deadline, to demand the surrender of the delivery item or the new goods and/or to withdraw from the contract; the Client shall be obliged to surrender the goods.

VI. notice of defects

  1. Any notifications of defects must always be made immediately and in writing, stating the exact nature of the complaint, otherwise they will not be recognized as notifications of defects.
  2. If the buyer has accepted the goods after inspection, any complaint - with the exception of hidden defects - is excluded.
  3. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality or in the case of only insignificant impairment of usability, in the case of natural wear and tear or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.

VII. Supplementary performance

  1. The Contractor shall in any case have the right to choose between rectification of defects and new delivery (new performance). The Contractor shall always be given the opportunity to remedy the defect within a reasonable period of time. If the supplementary performance fails, the Customer shall be entitled - irrespective of any claims for damages - to reduce the price or to withdraw from the contract. The application of § 478 I BGB remains unaffected.
  2. If the Client wishes to claim damages instead of performance or to carry out self-performance, in this respect a failure of the rectification is only given after the unsuccessful second attempt. The statutory cases of dispensability of setting a deadline shall remain unaffected in all other respects.
  3. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the customer's branch office, unless the transfer is in accordance with their intended use.

VIII. Limitation of the liability of the contractor

  1. The Contractor shall be liable in accordance with the statutory provisions in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent as well as in cases of culpably caused injury to life, body or health. In cases of gross negligence, however, the liability of the contractor is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 or p. 3 of this paragraph applies at the same time. In all other respects, the Seller shall only be liable under the Product Liability Act, for culpable breach of material contractual obligations or insofar as the Seller has fraudulently concealed the defect or has given a guarantee for the quality of the delivery item. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 or p. 2 of this paragraph applies at the same time.
  2. The provisions of the above paragraph 1 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to the claim for compensation for futile expenses. However, liability for delay shall be determined in accordance with Section IX. Liability for impossibility shall be determined in accordance with Section X.
  3. A change in the burden of proof to the detriment of the Client is not associated with the above provision.

IX. Limitation of liability due to delay in delivery

  1. The Contractor shall be liable for delays in performance in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent as well as in cases of culpably caused injury to life, limb or health in accordance with the statutory provisions. However, in cases of gross negligence, the Contractor's liability shall be limited to the foreseeable damage typical for the contract. Outside the cases of sentences 1 and 2, the Contractor's liability due to delay for damages in addition to performance shall be limited to a total of 5% and for damages in lieu of performance (including reimbursement of futile expenses) to a total of 10% of the value of the delivery/service. Any furtherGER claims of the Customer shall be excluded - even after expiry of any deadline set to the Contractor for performance. The limitation shall not apply in the event of culpable breach of material contractual obligations. However, the claim for damages for the culpable violation of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case according to p. 1 is given at the same time. The right of the client to withdraw from the contract remains unaffected.
  2. A change in the burden of proof to the detriment of the Client is not associated with the above provisions.

X. Limitation of liability in the event of impossibility

The Contractor shall be liable in the event of impossibility of delivery/service in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent as well as in the event of culpably caused injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, the Contractor's liability shall be limited to the foreseeable damage typical for the contract, unless there is at the same time an exceptional case other than those listed in sentence 1. Outside the cases of sentences 1 and 2, the Contractor's liability for damages due to impossibility and for reimbursement of futile expenses shall be limited to a total of 10% of the value of the service/delivery. Any furtherGER claims of the Customer due to impossibility of delivery shall be excluded - even after expiry of any deadline set to the Contractor for performance. The Customer's right to withdraw from the contract shall remain unaffected. A change in the burden of proof to the disadvantage of the Customer is not associated with the above provisions. 

XI. Resignation

The Client may only withdraw from the contract within the framework of the statutory provisions if the Contractor is responsible for the breach of duty. In the event of a breach of duty, the Client shall declare within a reasonable period of time after being requested to do so by the Contractor whether it will withdraw from the contract due to the breach of duty or insist on delivery. In the event of defects, the statutory provisions on withdrawal shall apply. 

XII. Limitation

  1. Claims for defects shall become time-barred twelve months after delivery of the goods supplied by us to our customer. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user. Insofar as the law mandatorily prescribes longer periods in accordance with § 438 Para. 1 No. 2 BGB (buildings and items for buildings), § 479 Para. 1 BGB (right of recourse) and § 634a Para. 1 BGB (construction defects), these periods shall apply. Our consent must be obtained prior to any return of the goods.
  2. The limitation period for all claims begins with the delivery, for work performances with the acceptance. The limitation periods according to para. 1 also apply to all claims for damages against the contractor which are connected with the defect - irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against the contractor which are not connected with the defect, the limitation period of para. 1 sentence 1 shall apply to them.
  3. The limitation periods pursuant to para. 1 and para. 2 shall apply subject to the following proviso:
    1. The limitation periods shall generally not apply in the event of intent or fraudulent concealment of a defect or insofar as the Seller has assumed a guarantee for the quality of the delivery item.
    2. Furthermore, the limitation periods shall not apply to claims for damages in cases of injury to life, body or health or to freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a breach of essential contractual obligations.
  4. Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, the suspension of the running of the limitation period, the suspension and the recommencement of time limits shall remain unaffected.
  5. A change in the burden of proof to the detriment of the Client is not associated with the above provisions.

XIII Damages

  1. If the dispatch of the delivery is delayed at the request of the buyer by more than two weeks after the agreed delivery date or, if no exact delivery date was agreed, after the seller's notification of readiness for dispatch, the seller may charge a flat-rate storage fee for each month (pro rata temporis, if applicable) in the amount of 1% of the price of the delivery item, but no more than 10%. The Buyer shall be entitled to prove that the Seller has not suffered any loss or that the loss suffered by the Seller is substantially less. The seller is entitled to prove that a higher damage has occurred.
  2. In the event of non-fulfilment of the contract by the client, the contractor is entitled to claim 20% of the purchase price as compensation. The buyer is permitted to prove that the seller has not suffered any damage or that the damage is significantly lower. The seller is allowed to prove that a higher damage has occurred.
  3. In the event of default in payment, the Contractor shall be entitled to demand default interest in the amount of 9 percentage points above the base interest rate (§ 247 BGB). The Client shall be permitted to prove that the Seller has not incurred any damage or that the damage is significantly lower. The Contractor shall be permitted to prove that a higher damage has been incurred.

XIV Place of performance; place of jurisdiction

  1. The place of performance for both parties shall be the registered office of Fenecon GmbH.
  2. If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship, including actions on bills of exchange and checks, shall be the registered office of Fenecon GmbH.
  3. This contract and the legal relationship between Fenecon GmbH and the contractual partner shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law (conflict of laws) and the UN Convention on Contracts for the International Sale of Goods.

XV. Final Provisions

The invalidity of individual provisions of these terms of delivery and payment shall not affect the validity of the rest of these terms of delivery and payment. The parties are obliged to replace an invalid provision with a provision that achieves the purpose intended by the invalid provision in a legally permissible manner or comes as close as possible to this provision.