Fasse Industrial Textiles GmbH

 

Terms and conditions of sale, delivery and payment of FASSE Industrietextilien GmbH

 

As of June 2024

 

§ 1 Validity of the conditions

 

(1) The Seller's deliveries, services, and offers are made exclusively on the basis of these Terms and Conditions. These Terms and Conditions therefore also apply to all future business relationships, even if they are not expressly agreed upon again. These Terms and Conditions shall be deemed accepted upon receipt of the goods or services at the latest. Counter-confirmations by the Buyer referring to their own terms and conditions of business or purchase are hereby rejected.

 

(2) All agreements made between the Seller and the Buyer for the purpose of executing this Contract shall be recorded in writing.

 

§ 2 Offer and conclusion of contract

 

(1) The Seller's offers are subject to change and non-binding. Declarations of acceptance and all orders require written or telex confirmation from the Seller to be legally effective.

 

(2) Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.

 

(3) The seller's sales staff are not authorized to enter into oral side agreements or give oral assurances that go beyond the content of the written contract.

 

§ 3 Prices

 

(1) Unless otherwise stated, the Seller is bound by the prices contained in its offers for 30 days from the date of the offer. Otherwise, the prices stated in the Seller's order confirmation plus the applicable statutory value-added tax shall apply. Additional deliveries and services will be invoiced separately.

 

(2) Unless otherwise agreed, prices are ex works and exclude packaging and freight.

 

(3) The Seller reserves the right to increase prices for contracts with an agreed delivery period of more than four months in accordance with cost increases resulting from collective agreements or increases in material prices.

 

§ 4 Delivery and performance time

 

(1) Delivery dates or deadlines that are not expressly agreed as binding are purely non-binding. They must be confirmed in writing. The delivery time specified by the Seller shall not commence until all technical issues have been clarified. Likewise, the Buyer must fulfill all obligations incumbent upon him properly and on time.

 

(2) If the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB), the seller shall be liable in accordance with the statutory provisions. The same applies if, as a result of a delay in delivery for which the seller is responsible, the buyer is entitled to assert the loss of interest in further contract performance. In this case, the seller's liability is limited to the foreseeable, typically occurring damage unless the delay in delivery is based on an intentional breach of contract for which the seller is responsible, whereby any fault on the part of its representatives or vicarious agents is attributable to the seller.

Likewise, the seller is liable to the buyer for delays in delivery in accordance with statutory provisions if the delay is due to an intentional or grossly negligent breach of contract for which the seller is responsible, whereby the seller is responsible for any fault on the part of its representatives or vicarious agents. The seller's liability is limited to foreseeable, typically occurring damages if the delay in delivery is not due to an intentional breach of contract for which the seller is responsible.

 

(3) The Seller shall not be liable for delays in delivery and performance due to force majeure and events that make delivery significantly more difficult or impossible for the Seller, even if they occur at the Seller's suppliers or their subcontractors, even if binding deadlines and dates have been agreed upon. Such delays entitle the Seller to postpone delivery or performance for the duration of the hindrance plus a reasonable start-up time, or to withdraw from the contract in whole or in part due to the part not yet fulfilled.

 

(4) If the hindrance lasts longer than three months, the buyer is entitled, after granting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or the seller is released from its obligation, the buyer may not derive any claims for damages from this. The seller may only invoke the aforementioned circumstances if it notifies the buyer immediately.

 

(5) If the Seller is responsible for the non-compliance with bindingly agreed deadlines or is in default, the Buyer shall be entitled to compensation for delay in the amount of 0.5% for each completed week of delay, up to a maximum of 5% of the invoice value of the deliveries and services affected by the delay. Any further claims are excluded unless the delay is due to at least gross negligence on the part of the Seller.

 

(6) The Seller is entitled to make partial deliveries and partial performances at any time, unless the partial delivery or partial performance is of no interest to the Buyer.

 

(7) Compliance with the Seller’s delivery and performance obligations requires the Buyer’s timely and proper fulfilment of its obligations.

(8) If the Buyer defaults in acceptance, the Seller shall be entitled to claim compensation for any damages incurred; upon the occurrence of default in acceptance, the risk of accidental deterioration and accidental loss shall pass to the Buyer.

 

§ 5 Transfer of risk

 

The risk passes to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller's warehouse for dispatch. If dispatch is delayed at the buyer's request, the risk passes to the buyer upon notification of readiness for dispatch.

 

§ 6 Buyer’s rights due to defects

 

(1) The products are delivered free from manufacturing and material defects. The period for asserting claims for defects is one year from delivery of the products, unless the seller has fraudulently concealed the defect; in this case, the statutory provisions apply.

(2) If the Seller's operating or maintenance instructions are not followed, if modifications are made to the products, if parts are replaced or if consumables are used that do not comply with the original specifications, any claims for defects in the products shall be void if the Buyer does not refute a corresponding substantiated claim that one of these circumstances caused the defect.

(3) The buyer's rights to defects shall only exist if the buyer has properly fulfilled its obligations to inspect and notify defects pursuant to Section 377 of the German Commercial Code (HGB). The buyer must notify the seller's customer service department of any defects in writing immediately, but no later than one week after receipt of the delivery item. Defects that cannot be discovered within this period even after careful inspection must be reported to the seller in writing immediately upon discovery.

(4) If the Buyer notifies the Seller that the Products are defective, the Seller shall, at its option and expense, require that: a) the defective part or device be sent to the Seller for repair and subsequent return; b) the Buyer keep the defective part or device and dispatch a Seller service technician to the Buyer to carry out the repair. If the Buyer requests that rectification work be carried out at a location designated by the Buyer, the Seller may comply with this request, in which case replaced parts will not be charged, while labor and travel expenses will be paid at the Seller's standard rates.

(5) If the repair fails after a reasonable period of time, the buyer may, at his discretion, demand a reduction in the price or withdraw from the contract.

(6) Liability for normal wear and tear is excluded.

(7) Claims for defects against the seller are available only to the immediate purchaser and are not transferable.

 

§ 7 Spare parts

The Seller will supply spare parts for a machine at the current spare parts prices for a period of five years from the date of delivery of the machine.

 

§ 8 Retention of title

(1) Until all claims (including all balance claims from current accounts) to which the Seller is entitled against the Buyer now or in the future for any legal reason are satisfied, the Seller shall be granted the following securities, which he shall release upon request at his discretion, provided that their value exceeds the claims by more than 20% on a sustained basis.

(2) The goods remain the property of the Seller. Processing or transformation always takes place for the Seller as manufacturer, but without any obligation for him. If the Seller's (co-)ownership is extinguished through combination, it is hereby agreed that the Buyer's (co-)ownership of the unified item shall pass to the Seller in proportion to its value (invoice value). The Buyer shall keep the Seller's (co-)ownership safe free of charge. Goods to which the Seller is entitled to (co-)ownership are hereinafter referred to as "reserved goods."

(3) The Buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as it is not in default. Pledging or transferring ownership by way of security is prohibited. The Buyer hereby assigns in full to the Seller, as security, any claims arising from the resale or any other legal grounds (insurance, tort) relating to the reserved goods (including all balance claims from current accounts). The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller for the Seller's account in its own name. This collection authorization may only be revoked if the Buyer fails to properly fulfill its payment obligations.

(4) In the event of third-party access to the reserved goods, in particular in the event of seizure, the Buyer shall point out the Seller's ownership and notify the Seller immediately so that the Seller can enforce its ownership rights. If the third party is unable to reimburse the Seller for any judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these costs.

(5) In the event of breach of contract by the Buyer – in particular default in payment – the Seller shall be entitled to withdraw from the contract and demand the return of the reserved goods.

 

§ 9 Terms of payment

(1) Unless otherwise agreed, the Seller's invoices are due for payment immediately upon receipt by the Buyer without any deductions. A cash discount is only permitted by special written agreement.

(2) Despite any contrary provisions of the Buyer, the Seller is entitled to initially offset payments against the Buyer's older debts and will inform the Buyer of the method of offsetting. If costs and interest have already been incurred, the Seller is entitled to offset the payment first against the costs, then against the interest, and finally against the principal payment.

(3) A payment shall only be deemed made when the seller has access to the amount. In the case of checks, payment shall only be deemed made when the check is cashed and the withdrawal period has expired.

(4) If the Buyer defaults, the Seller shall be entitled to demand interest at a rate of 8 percentage points above the base interest rate as flat-rate compensation from the relevant date. The interest shall be lower if the Buyer proves a lower burden; proof of higher damages by the Seller is admissible.

(5) If the Seller becomes aware of circumstances that call into question the Buyer's creditworthiness, in particular if a check is not honored or payments are suspended, or if the Seller becomes aware of other circumstances that call into question the Buyer's creditworthiness, the Seller shall be entitled to demand payment of the entire remaining debt, even if the Seller has accepted checks. In this case, the Seller shall also be entitled to demand advance payments or the provision of security.

(6) The Buyer shall only be entitled to offset, retention, or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the Buyer shall also be entitled to retention due to counterclaims arising from the same contractual relationship.

 

§ 10 Design changes

The Seller reserves the right to make design changes at any time; however, it is not obligated to make such changes to products already delivered.

 

§ 11 Patent

(1) The Seller shall indemnify the Buyer and its customers against claims arising from infringements of copyrights, trademarks, or patents, unless the design of a delivery item originates from the Buyer. The Seller's indemnification obligation is limited to the foreseeable damage. An additional prerequisite for indemnification is that the Seller is permitted to conduct legal proceedings and that the alleged infringement is attributable exclusively to the design of the Seller's delivery items, without connection or use with other products.

(2) The seller has the right, at its discretion, to release itself from the obligations assumed in paragraph 1 by either a) obtaining the necessary licenses in respect of the patents allegedly infringed or b) providing the buyer with a modified delivery item or parts thereof which, if exchanged for the infringing delivery item or part thereof, eliminate the allegation of infringement with respect to the delivery item.

 

§ 12 Confidentiality

Unless expressly agreed otherwise in writing, information submitted to the Seller in connection with orders shall not be deemed confidential.

 

§ 13 Liability

(1) Claims for damages are excluded regardless of the type of breach of duty, including tortious acts, unless there is intentional or grossly negligent conduct.

(2) In the event of a breach of essential contractual obligations, the Seller shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for lost profits, saved expenses, claims for damages from third parties, and other indirect and consequential damages cannot be asserted unless a quality feature guaranteed by the Seller is specifically intended to protect the Buyer against such damages.

(3) The limitations and exclusions of liability in paragraphs 1 and 2 shall not apply to claims arising from fraudulent conduct on the part of the seller, nor to liability for guaranteed characteristics, to claims under the Product Liability Act, nor to damages resulting from injury to life, body or health.

(4) To the extent that the Seller’s liability is excluded or limited, this shall also apply to the Seller’s employees, workers, representatives and vicarious agents.

 

§ 14 Applicable law, place of jurisdiction, partial invalidity

(1) These Terms and Conditions and the entire legal relationship between Seller and Buyer shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

(2) If the Buyer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of performance and jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Seller's registered office. However, the Seller is also entitled to sue the Buyer at the Buyer's place of residence and/or business.

(3) Should any provision in these Terms and Conditions or any provision in other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.