General terms and conditions
General terms of sale and delivery (terms) D - FIPA GmbH, 85737 Ismaning
Section 1 Scope of application and form
1. These Terms shall apply to all business relationships with our customers. These Terms shall apply only if the customer is an entrepreneur within the meaning of Section 14 German Civil Code (BGB), a legal entity under public law, or a special fund under public law.
2. All our deliveries and services, including those arising from future business transactions, shall be made on the basis of these General Terms of Sale and Delivery.
3. Contradictory or differing terms of the customer shall constitute part of the contract only if we have provided express written permission in an individual case. This requirement for permission shall apply in particular if we carry out deliveries without reservation while being aware of contradictory or differing terms of the customer.
4. Individual agreements shall take precedence over these Terms. Subject to evidence to the contrary, our written confirmation shall be decisive with respect to the content of any such agreement.
5. Our Terms shall be deemed accepted at the latest upon acceptance of the goods or our services.
6. Legally relevant declarations or notifications of the customer shall be made in writing or in text form (by email, letter or fax); this shall not affect legal formalities. Our failure to respond to customer declarations or notifications shall constitute approval only if the parties have previously agreed to the same.
7. If we are entrusted with assembly, the assembly shall be performed under a separate contract. For such a contract the special provisions on assembly and commissioning shall prevail and supplement these Terms.
Section 2 Conclusion of the contract and content
1. Our offers shall be subject to change and non-binding, unless stated otherwise by FIPA in writing. In particular, measurements, dimensional drawings, figures, details pertaining to weight, service and use as well as other descriptions shall be only approximate unless stated in writing as being binding. In addition, these shall not constitute a guarantee or other assurance with regard to condition, insofar as no
agreement to the contrary has been made.
2. No offer documents may be made available to third parties without our permission.
3. The order by the customer shall constitute a binding offer. Our acceptance may be declared to the customer either through order confirmation or dispatch of the goods.
4. With regard to the scope of the delivery, our order confirmation shall be authoritative.
Section 3 Delivery times, delivery deadlines
1. The delivery period shall begin on the date of order confirmation, but not before an agreement has been reached with regard to all commercial and technical details and, in particular, not before procurement of all documents, authorisations, approvals, releases to be provided by the customer, and not before receipt of an agreed advance payment.
2. Delivery times and delivery deadlines shall be subject to change and binding only when specially arranged with the customer (fixed deadlines). These relate to the time the goods are dispatched. Partial deliveries shall be permissible. Each delivery shall constitute an independent transaction.
3. Force majeure or other events over which we have no influence and which delay or prevent the delivery or make delivery unreasonable, such as all forms of operational disruptions, administrative orders, transport delays or holdups, strikes, war, and lockout, shall release us without liability for compensation from our obligations arising from the supply agreement. Obstacles of a temporary nature, however, shall only release us for the duration of the hindrance plus an appropriate lead time. This shall also apply when our suppliers encounter such problems and neither we nor our suppliers are responsible for the circumstances.
4. Delivery delay on our part shall not arise if delays occur as a result of export controls or authorisation procedures. Delivery delay on the part of FIPA shall also not arise if delays occur as a result of international provisions, embargoes or other restrictions.
5. For contracts with ongoing delivery, we shall be provided with a request and division for approximately equal monthly amounts no later than one month before the start of the relevant delivery month. If no timely request or division is received we shall be entitled to make the division ourselves and deliver the goods following fruitless expiry of an appropriate grace period.
Section 4 Transfer of risk, acceptance
1. Deliveries shall be on an ex works basis at the expense of the customer. The risk of loss or damage of the goods shall be passed to the customer when handing over the goods to the carrier entrusted with the shipment, in case of default in acceptance with the occurrence of the default.
2. In case of a default of acceptance, we shall be entitled to charge storage fees and other overheads. For each calendar day commenced we 0.5 % up to a maximum of 15% of the gross value of the relevant part of the entire delivery which is not accepted in time or not accepted in accordance with the contract as a result of the delay. We shall remain entitled to charge additional compensation in the context of charging the lump sum; the customer, however, shall remain entitled to furnish proof that we incurred lesser damages.
3. Following fruitless expiry of a reasonable grace period, we shall be entitled to otherwise dispose of the goods and to effect delivery to the customer in an appropriately extended delivery period.
Section 5 Prices and payment conditions
1. Our prices shall be ex works, excluding packaging and transport costs and the relevant applicable statutory value-added tax.
2. Any taxes, customs duties, fees or other public levies shall be borne by the customer.
3. The following minimum quantity surcharges shall apply:
- EUR 10.00 for domestic deliveries with a goods value of under EUR 50.00 net,
- EUR 18.00 for international deliveries with a goods value of under EUR 250.00 net.
In the event of cancellations by the customer, we shall reserve the right to charge a processing fee of 20% of the value of the cancelled orders and/or returned goods.
4. All payments shall be made without any deductions within 30 days of the invoice date unless otherwise agreed.
5. Deduction of discount shall not be granted if the customer is in default with respect to the settlement of an invoice.
6. Payments shall be used to settle the oldest invoice items due plus interest and costs incurred for them namely in the sequence of costs, interest payments, and principle claim.
7. Should the customer be in default or if its financial circumstances deteriorate significantly, all open claims, including any possible deferred claims, shall become payable immediately.
8. If payment is delayed, we shall be entitled to demand interest payments of 10% over the relevant base rate of the European Central Bank. Further damage claims caused by delay shall remain hereby unaffected.
9. The customer shall have the right to offset or retention only if counterclaims have been legally effective or accepted. We shall, however, be notified in writing of offsetting. Furthermore, the customer shall be entitled to exercise right to retention only if its counterclaim is based on the same contractual relationship.
Section 6 Reservation of title
1. We shall reserve title to the delivered goods (reserved goods) until receipt of all payments relating to the transaction with the customer.
2. Connecting, mixing or processing of the reserved goods shall always take place in our name and on our behalf without imposing any obligation on us. If our reserved goods are connected, mixed or processed with other objects that do not belong to us, we shall acquire ownership of the new item in the
proportion of the value of the reserved goods (purchase price plus value-added tax) of the value of the objects not belonging to us at the point in time of connection, mixing or processing. Should the connection, mixing or processing occur in such a manner that the property of the customer is deemed the primary property, it is hereby agreed the customer shall transfer us joint ownership on a pro rata basis. The customer shall hold sole or joint ownership for us without charge.
3. The customer shall treat the reserved goods with care. The customer shall be obliged to maintain the reserved goods at its own expense and to provide sufficient insurance with respect to the nominal value against standard risks, in particular against fire, water and theft, and to furnish proof of possession of such insurance on request. The customer shall hereby, here and now, assign to us its compensation claims arising from such insurance contracts. We hereby accept such assignment.
4. In the event that the customer breaches the contract, in particular with respect to delay of payments, significant deterioration of the financial circumstances of the customer or application to open insolvency proceedings against the assets of the customer, we shall be entitled to assert reservation of title, enter the business premises of the customer and seize the reserved goods. The assertion of reservation of title or seizure of the reserved goods by us shall constitute withdrawal from the contract only if we provide express written notification of this.
5. In the event that third parties access the reserved goods, in particular in seizures, the customer shall make reference to our ownership and inform us without undue delay.
6. The customer shall have the revocable right to resell the reserved goods in the course of its ordinary business activities, provided that it is not in default. By way of security, the customer shall hereby, here and now, assign to us all claims to which it is entitled by virtue of the resale or on another legal basis (insurance). We hereby accept such assignment. If goods that we have joint ownership of are sold, the assignment shall be limited to the proportion of the claim that corresponds to our ownership proportion.
7. The customer has the revocable right to collect the assigned claims. Collection authorisation shall be revoked if the customer is in default in payment, insolvency proceedings are opened against its assets, or if the customer encounters payment difficulties. To secure our claims, we shall be entitled to disclose the assignment to the customer of the customer at any time.
8. The customer is not entitled, for example, to chattel mortgaging or seizure of the goods in our ownership or joint ownership or to the claims assigned to us.
9. Should the value of the securities to which we are entitled exceed the claims to be secured by over 10% on more than a temporary basis, we shall release securities at our discretion on the request of the customer.
10. If, in the country in which our goods are located until full settlement of the claims, solely other security rights are applicable – which, however, are comparable with reservation of title – these shall hereby be deemed agreed. In this case, the customer shall be obliged to contribute to the acquisition thereof using all necessary measures.
Section 7 Material defect
1. In the event of a breach of contractual obligations, the customer shall be entitled to statutory rights according to the following regulations.
2. Claims for defects shall not arise in the event of minor deviation from the agreed condition, of insignificant impairment of the usability or natural wear.
3. Buyer’s claims for defects require that the buyer has adhered to its statutory inspection and complaint obligations (Section 377 German Commercial Code (HGB)).
4. The standard warranty period is 12 months. This shall be shortened to three months in the event that the goods are used in two-shift operation (16
hours of use per day) and to two months in three-shift operation (24 hours of use per day), beginning with delivery of the goods. The above-mentioned deadlines shall not be extended by rectification of defects or substitute delivery. The validity of longer statutory warranty periods, e.g. for constructions, shall not be affected. All warranty claims shall be excluded in the event of wear and tear.
5. All components or services which have a material defect shall either be delivered in addition or substituted free of charge at our discretion if such defect was present at the time of transfer of risk. The customer shall grant us two opportunities for rectification. Supplementary performance shall be excluded if this should be connected with disproportionate costs for us.
6. Further claims of the customer as a result of or in connection with material defects or damages resulting from material defects shall be excluded, with the exception of Section 8.
7. We shall not be liable for damage to the goods delivered by us which, after transfer of risk, cannot be proven to be our responsibility, in particular damage resulting from alterations to the goods, unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, excessive load, natural wear, incorrect or negligent use, insufficient or inappropriate maintenance, unsuitable equipment or transport.
8. We shall also not be liable for damages which arise from prefabricated assemblies prepared by FIPA if these were not examined by the customer with regard to suitability for the relevant use before commissioning.
9. Customer claims related to expenses necessary for the purposes of supplementary performance, in particular transport, road costs, work and material costs, shall be excluded insofar as these are increased because the goods were subsequently transported to a location other than the original delivery location.
10. In the event of unjustified notice of defects we shall demand reimbursement for the expenses incurred by us in this manner, of at least 20% of the value of the goods to which the objection applies. We shall remain entitled to calculate additional damages, taking into account the lump sum, whereas the customer shall remain entitled to furnish proof that we incurred lesser damages.
11. The customer may not assign defect claims against us.
Section 8 Other liability
1. We shall only be liable in cases of
b) gross negligence
c) culpable damage to life, limb, health,
d) defects which were deliberately hidden or the absence of which were guaranteed by us,
e) claims arising from the Product Liability Law (Produkthaftungsgesetz)
f) a culpable breach of significant contractual obligations.
2. In the event of culpable breach of significant contractual obligations, compensation for damages shall be limited to damages typical of the contract and reasonably foreseeable.
3. Additional compensation for damages shall be excluded. This shall also apply to damages that did not affect the delivered goods (the subjects of the contract).
4. The previous liability limitations shall also apply to our representatives, employee and vicarious agents.
5. Any change to the burden of proof regulations shall not be connected to the above provisions.
6. The customer shall be obliged not to remove or amend notices regarding improper use of the products. The customer shall inform us without undue delay of risks connected to the use of our products or possible product errors. In the event of culpable breach of these obligations the customer shall release us from product liability claims of third parties.
Section 9 Special webshop regulations on conclusion of a contract and payment conditions
1. Our product illustrations in the webshop shall not constitute a binding offer for the conclusion of a purchase contract, but rather a non-binding invitation to purchase goods from the webshop.
2. The customer provides a binding purchase offer by clicking the button [“Order now with obligation to pay” / “buy”]. The customer may check and correct the order before placing the order.
3. After receipt of the purchase offer, the customer shall receive an automatic email which constitutes our confirmation that we have received the order (confirmation of receipt). This confirmation of receipt shall not constitute acceptance of the purchase offer by the customer.
4. A purchase contract for the goods shall come into effect only with our order confirmation or when we dispatch the goods to the customer.
5. Payment can be made using any of the following methods: Invoice, immediate transfer, credit card, PayPal or advance payment.
6. We shall choose which of the payment methods are available. In particular, we reserve the right to carry out deliveries only on payment in advance.
7. If payment is made by credit card, the purchase price of the goods shall be charged to the card when the order is placed.
8. If payment is made via PayPal, the customer will be referred to the website of the online provider PayPal during the order process. To settle the invoice amount via PayPal, the customer must be registered with PayPal.
9. Further information will be provided during the order process.
Section 10 Choice of law, place of jurisdiction and miscellaneous
1. The contract language is German.
2. We shall be entitled to transfer rights and obligations arising from this contract to any legal successor and to use third parties to fulfil the contract.
3. The customer may not transfer its rights and obligations arising from this contract to a legal successor without our written permission.
4. Should individual provisions of these Terms or the delivery contract be or become invalid in full or in part, or should there be omissions with respect to the regulations, the validity of the remaining provisions shall remain hereby unaffected.
5. The place of performance shall be Ismaning. The place of jurisdiction for all disputes arising from and in connection with this contract shall be Munich. We are also entitled, however, to instigate proceedings against the customer within the jurisdiction of its registered office.
6. The contract shall be governed solely by the law of the Federal Republic of Germany, excluding the provisions of its conflict of laws rules. The application of the UN Convention on International Sales of Goods and other conventions on the international sale of goods shall be excluded.