General Rerms and Conditions of Delivery and Payment of the Company W. u. H. Fernholz GmbH & Co. KG,
Industrial Park Ihne 2, 58540 Meinerzhagen
1. Conclusion and Content of Contract
1.1 Our offers are always subject to change without notice until we have confirmed the order in writing.
1.2 Our “General Terms and Conditions of Delivery and Payment” shall apply exclusively to the contractual relationship.
1.3 The rights of the customer under the contract may only be transferred with our prior consent.
1.4 The general terms of delivery and payment shall not apply to contracts with consumers.
2.1 All prices are in Euro including packaging. Other currencies must be expressly agreed upon. Value added tax shall be added in accordance with the statutory provisions applicable at the time. The prices are ex works unless expressly agreed otherwise.
2.2 Pallets delivered by us in the dimensions 800 x 1,200 mm and 1,000 x 1,200 mm are only provided by us on loan and must be returned step by step. Otherwise, we reserve the right to charge for non-returned pallets.
2.3 The agreed prices shall be deemed basic prices. They are fixed prices if no changes have occurred up to our delivery (invoicing), especially in the case of raw materials. Should these changes occur after conclusion of the contract, we shall be entitled to make a reasonable price increase.
3. Freight and Packaging, Insurance, Transfer of Risk
3.1 The type of packaging is determined by us.
3.2 We shall only be obliged to insure the goods sold against transport risks of any kind if expressly requested to do so by the customer. The costs shall be borne by the customer.
3.3 All risks shall pass to the customer as soon as the goods leave our works and are placed at the disposal of the customer.
4. Acceptance of New Contractual Products and Modifications of Contractual Products
4.1 If the contractual products are to be tested according to special conditions, the acceptance shall be carried out at our premises or at the customer’s premises as agreed. In any case the acceptance must be confirmed in writing by the customer.
4.2 If written confirmation is not received within the agreed period, the contractual products shall be deemed to have been manufactured and accepted in accordance with the contract as soon as they leave the factory.
5. Liability for Defects
5.1 Complaints must be reported immediately after delivery by us or the transport company (in accordance with § 377 HGB). The period of limitation is 6 months. If, at our request, the customer does not provide samples of the goods complained about immediately, all warranty claims shall lapse.
5.2 Transport damage and losses must be claimed immediately upon receipt of the goods.
5.3 If the complaint proves to be justified, a replacement will be provided free of charge and carriage paid to the original receiving station. Replacement will be made piece by piece as is customary in the trade. Claims for reduction of the purchase price and withdrawal from the contract are excluded if replacement delivery or repair is possible.
5.4 If our products are used, their suitability for the intended purpose can ultimately only be proven by testing them in practice, despite our recommendation if applicable. The customer shall bear the corresponding risk. Guarantees of quality and durability must be expressly designated as such in writing. The written form requirement is a prerequisite for effectiveness.
5.5 Further claims, in particular liability for consequential damage of any kind, in particular for claims for damages, regardless of the legal basis, do not exist and cannot be asserted by the customer, unless a written guarantee is given for the purpose of securing the customer against any risk of consequential damage due to defects or the damage was caused intentionally or by gross negligence.
5.6 Claims for damages from positive breach of contract, from culpa in contrahendo, from tort and impossibility are expressly excluded, unless the cause of damage is based on intent or gross negligence.
6. Industrial Property Rights of Third Parties
If deliveries are made according to drawings or other information provided by the customer and if industrial property rights of third parties are infringed by this, the customer shall indemnify us against all claims of the holder of the industrial property rights and reimburse us for expenses for tools or similar.
7. Delivery, Acceptance and Call-Off Periods
7.1 The delivery periods shall apply to the time of delivery ex works and are stated to the best of our knowledge, but without any obligation. Delays shall not entitle the customer to withdraw from the order or to make claims of any kind, unless they are caused by us intentionally or through gross negligence or are attributable to us.
7.2 Unforeseen events, strike, lockout, shortage of raw materials or other circumstances of force majeure, by which the performance of the contract is hindered in whole or in part, entitle us to extend the delivery periods by the duration of the hindrance. If the hindrance is of longer duration or is the cause of an increase in costs, or if it makes it impossible to manufacture the goods, we are entitled to withdraw from the delivery contract in whole or in part or to charge the buyer for any price increases. Claims for damages against us cannot be derived from cases of the aforementioned kind either.
7.3 We are entitled to make partial deliveries even without individual agreements.
8. Retention of Title
8.1 We reserve our title to the goods delivered by us and to any products resulting from their processing or treatment until all claims against the customer to which we are or will be entitled under the business relationship have been satisfied. This shall also include all bill of exchange obligations of the customer.
8.2 If the customer processes goods subject to reservation of title with other goods, we shall be entitled to ownership of the new items in the ratio of the value of the processed goods subject to reservation of title to the total value. Any co-ownership shares that may be created by combining, blending or mixing the delivered items with other materials shall be deemed to have been transferred to us here and now. The customer shall hold the items as bailee for us with commercial care. The customer may only sell the goods in the ordinary course of business and only against payment or subject to retention of title. The orderer hereby assigns to us any claims to which the orderer is entitled from the resale or on any other legal grounds relating to the reservation of title, including claims for damages or insurance payments, up to the value of the resold goods as security. The orderer hereby assigns to us the claim with all ancillary rights from the resale of the goods subject to reservation of title, also proportionately to the extent that the goods have been further processed, mixed or blended and we have acquired co-ownership of these goods in the amount of the invoice value. We are entitled to a fraction of the respective purchase price claim in proportion to the invoice value of our reserved goods to the invoice value of the object.
8.3 As long as the customer meets his obligations, the assignment shall be treated as a silent assignment. In this case, the customer shall be authorized to collect the claim and we shall be entitled to demand the immediate return of the goods not yet resold in the event of default of payment or payment difficulties. Until then, the customer shall store the goods owned by us separately from others, mark them as our property, refrain from any disposal of them and, at our request, hand over a list of our property.
8.4 The customer shall notify us immediately of any access by third parties to the goods subject to reservation of title or to the assigned claims, handing over the documents necessary for intervention. The customer shall bear the costs of the intervention.
8.5 If the value of the securities given to us exceeds the value of our claims by more than 10%, we shall be obliged to release the above-mentioned securities at our discretion.
9. Terms of Payment
9.1 The term of payment shall be 30 days net from the date of invoice (date of dispatch). For cash payment we grant the following discount: For payments within 14 days after date of invoice 2 %. Only cash payments, bank transfers or cheques are considered as cash payments. No discount is granted for payments by bill of exchange or cheque.
9.2 If the terms of payment are not complied with and in particular if payment deadlines for installments are exceeded, the entire remaining claim shall become due immediately. If the creditworthiness of the customer deteriorates significantly before the due date, we shall have the right to demand immediate performance or to withdraw from the contract at our discretion, unless we are sufficiently secured by other means. The customer shall pay interest on receivables at a rate of 8% above the prime rate.
9.3 The customer shall not be entitled to withhold or set off payments, not even on account of complaints or counterclaims.
9.4 Bills of exchange shall only be accepted by prior agreement subject to the discounting possibilities and only on account of payment. In the case of bills of exchange, cheques or other instruction papers, the costs of discounting and collection shall be borne by the customer.
9.5 If the customer pays irregularly, we may change the terms of payment for all deliveries.
10. General Terms and Condition
10.1 If the customer suspends payments or if insolvency proceedings are applied for against his assets, we shall be entitled to withdraw from the contract for the unfulfilled part.
10.2 Should any provision of these “General Terms and Conditions of Delivery and Payment” be or become invalid, this shall not affect the validity of the remaining provisions. In this case, we shall be obliged, together with the customer, to replace the invalid provision by a provision which comes as close as possible to the economic success of the invalid provision.
10.3 The law of the Federal Republic of Germany shall apply exclusively.
10.4 The place of performance for all obligations and claims arising from the contract is Meinerzhagen.
10.5 Place of jurisdiction is the local or regional court responsible for Meinerzhagen.