Effective: November 2017
§ 1 Scope of application, exclusion of the validity of deviating terms and conditions
- All offers, deliveries and services of our company, FDX Fluid Dynamix GmbH, are based on these order, delivery and payment conditions (hereinafter referred to as “Conditions” or “GTC”).
- The following terms and conditions shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or a special fund under public law (hereinafter referred to as “Purchaser” or “Buyer”). Unless otherwise agreed, these terms and conditions in the version valid at the time of the order shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
- Our conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example, even if we accept the customer’s deliveries without reservation in the knowledge of his general terms and conditions of business.
- Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these terms and conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
- Legally relevant declarations and notifications of the customer in relation to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter,-e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
§ 2 Conclusion of contract, scope of delivery, prohibition of assignment
- Our offers are subject to change and non-binding for us. Conclusions and agreements shall only become binding through us in writing (e.g. through order confirmation) or through our delivery.
- All information about our products, in particular the illustrations, dimensions and performance data as well as other technical data contained in our offers, catalogues or on our website https://www.fdx.de/ are approximate average values. Tolerances in quantities, weights, quantities and dimensions customary in the industry are expressly reserved.
- Our written order confirmation or, in the absence thereof, our offer shall be decisive for the scope of delivery and performance.
- The purchaser is not entitled to assign or transfer to third parties claims or rights against us arising from the business relationship without our consent. The same applies to claims and rights against us arising directly by operation of law. § 354a HGB remains unaffected.
§ 3 Prices, payment, default, offsetting and rights of retention
- Unless otherwise agreed in individual cases, the prices valid at the time of the conclusion of the contract shall apply, namely ex Berlin (factory/warehouse; Incoterm: EXW) plus statutory value added tax, even if this is not shown separately, plus the costs of packaging, freight, installation, postage, insurance charges, customs duties, fees, taxes, other public charges, costs of banking and payment transactions and other ancillary costs.
- In the case of sale by delivery to a place other than the place of performance (§ 5 para. 1), the purchaser shall bear the transport costs from Berlin and the costs of any transport insurance requested by the purchaser.
- The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
- At the end of the above payment period, the customer is in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial interest on arrears (§ 353 HGB) against merchants shall remain unaffected.
- In case of payment arrears, also in connection with other contractual relationships between the customer and us, we are entitled to make further deliveries dependent on the complete elimination of the payment arrears.
- If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the purchaser’s inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unacceptable items (custom-made products, e.g. nozzles), we can declare our withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
- In the event of significant material price increases, wage increases or increases in energy costs between conclusion of the contract and delivery, we shall be entitled to increase the remuneration unilaterally by a reasonable amount (§ 315 BGB) if there are more than four months between conclusion of the contract and delivery.
- If we receive blanket and call orders, we reserve the right to adjust prices with a notice period of four weeks in the event of significant material price fluctuations within the term of confirmed blanket and call orders for orders not yet placed, if our costs increase by more than 5 percentage points in total, in particular due to increases in material prices, wage increases or increases in energy costs. If the price increase amounts to more than 10 percentage points, the purchaser is entitled to withdraw from the contract.
- The customer may only offset or assert a right of retention if his claims are undisputed or have been legally established.
§ 4 Delivery period, partial deliveries, quantity deviations
- The agreed delivery period shall generally begin upon conclusion of the contract, but not before complete receipt of any documents to be provided by the customer and any agreed advance payments. The delivery period shall be deemed to have been observed if the delivery item has left our factory by the time of its expiry or if the customer has been notified that it is ready for dispatch, if delivery cannot be made for reasons attributable to the customer.
- If we cannot meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the purchaser. In particular, the non-availability of the service in this sense shall be deemed to be the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the service in individual cases.
- The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the purchaser is required.
- Deliveries before expiry of the delivery period and partial deliveries are permissible, provided that conflicting interests of the customer are not unreasonably affected.
- In the case of custom-made nozzles, it is not always possible to meet the ordered number of pieces due to technical manufacturing reasons and the associated risk of rejects. We reserve the right to make minor excess or short deliveries at a corresponding charge and do not constitute a defect within the meaning of the BGB.
§ 5 Transfer of risk, place of performance, delivery
- Delivery is ex works/warehouse, which is located in Berlin, where the place of performance for the delivery and any subsequent performance is also the place of performance. At the request and expense of the purchaser, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. However, in the case of mail order purchases, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment as soon as the delivery item is handed over (whereby the start of the loading process is decisive). If acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
- If the purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the purchaser is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
- The customer may not refuse to accept deliveries due to minor defects.
§ 6 Retention of title
- We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract, contract for work and services etc. and an ongoing business relationship (secured claims).
- The goods subject to retention of title may not be pledged to third parties or transferred by way of security before full payment of the secured claims. The customer must inform us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties have access (e.g. seizure) to the goods belonging to us.
- The customer is authorized until revocation according to (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
(a) Retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party’s right of ownership remains in effect after processing, mixing or combining with goods of a third party, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under reservation of title.
(b) The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or product, either in full or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(c) In addition to us, the customer remains authorized to collect the claim. We undertake not to collect the claim as long as the customer fulfils his payment obligations to us, there is no lack of his ability to pay and we do not assert the reservation of title by exercising a right in accordance with this paragraph. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authority to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 20%, we will release securities of our choice at the request of the purchaser.
§ 7 Warranty, material defects
- Certain properties are only considered as warranted by us if we have expressly confirmed this in writing. A guarantee shall only be deemed to have been assumed by us if we have designated a property as “guaranteed” in writing.
- Recognizable defects, shortfalls or wrong deliveries must be claimed in writing immediately, at the latest within one week after delivery, but in any case before connection, mixing, processing or installation.
- Hidden defects must be reported in writing immediately, at the latest one week after their discovery.
- If the customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.
- We shall be given the opportunity to jointly determine the complaints reported and to be present at the removal for material tests.
- Unless otherwise agreed, all claims for defects shall become statute-barred within 12 months of the transfer of risk. This period shall not apply if the law according to §§ 438 para. 1 no. 2 (building, building materials), 479 para. 1 (right of recourse) and § 634a para. 1 no. 2 (building defects) BGB (German Civil Code) prescribes longer periods, as well as if the defect is fraudulently concealed or a guarantee of quality is not complied with.
- In case of material defects of the delivered goods we are – without prejudice to the obligations under § 9 – after a choice to be made within a reasonable period of time, initially obliged and entitled to repair or replace the goods. In the event of failure (impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery), the customer may withdraw from the contract or reduce the purchase price. Cancellation of the contract is excluded if the defect is only insignificant. In addition, insofar as we have made partial deliveries free of defects, a rescission of the entire contract is only permissible if the customer’s interest in the partial deliveries made has demonstrably ceased
- The customer must send us the defective goods at his own risk for repair or replacement, unless the type of delivery does not allow the return of the goods. We shall bear the transport costs incurred for the purpose of subsequent performance, but only from the place to which the purchased goods were delivered in accordance with their intended use and only up to a maximum of the purchase price. Replaced delivery items or parts thereof become our property or remain our property.
- The purchaser must give us the time and opportunity necessary for the repair or replacement delivery. Only in urgent cases where operational safety is endangered, to prevent disproportionately large damage or if we are in default of remedying the defect shall the customer have the right, after prior notification to us, to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from us.
- Recourse claims in accordance with §§ 478, 479 BGB (German Civil Code) shall only exist if the claim by the consumer was justified and only to the extent permitted by law, but not for goodwill arrangements not agreed with us, and shall require the party entitled to recourse to observe its own obligations, in particular the observance of any obligations to give notice of defects.
- The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and the elimination of the defect is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of the removal of defects arising from the modification.
- In the event of justified notices of defects, payments by the purchaser may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred. If the notification of defects is unjustified, we are entitled to demand compensation from the customer for the expenses incurred by us as a result.
- The recognition of material defects must always be in writing.
§ 8 Impossibility for which neither side is responsible
- We shall only be liable for damages – regardless of the legal basis,
(a) insofar as we, our executive employees or vicarious agents are guilty of intent or gross negligence,
(b) in the event of culpable injury to life, body or health,
(c) culpable violation of essential contractual obligations,
(d) defects which we have fraudulently concealed or whose absence we have guaranteed, or
(e) according to the product liability law.
- We shall not be liable for further claims for damages.
- However, in the event of culpable breach of material contractual obligations, our liability shall be limited to reasonably foreseeable damages typical for the contract. The contract-typical, foreseeable damage is to be set at the amount of the contract value of the service concerned.
- If we have covered the contract-typical risk of damage in accordance with § 9 Para. 3 above by a liability insurance policy, our liability and the liability of our legal representatives or vicarious agents shall be limited to the benefits of the liability insurance. Insofar as the insurer is not liable, we shall be liable to pay our own compensation up to the amount of the sum insured.
§ 9 Property rights
- We reserve the right of ownership, copyright and our other industrial property rights to samples, cost estimates, application proposals, drafts, drawings and other documents or information of a physical or non-physical nature (including in electronic form). Such documents or information may only be made available to third parties with our express consent. They must be returned to us immediately upon our request.
- If we have manufactured products according to drawings, samples or other documents of the customer, the customer must ensure that the property rights of third parties are not or have not been infringed. In the event of an infringement of third party industrial property rights, the customer is obliged to compensate us for all damages, in particular costs (e.g. court or lawyer’s fees) and other disadvantages. The customer shall indemnify us against any such claims of third parties immediately after becoming aware of such claims.
§ 10 Reference advertising, use of customer names for advertising purposes
- For the purpose of self-advertising (e.g. in lectures, discussions with customers, on our website and in brochures), we are permitted to refer truthfully to services that we have provided in the past. In particular, we may mention the name of our customers or the name of the buyer or purchaser. We reserve the right to use the reference for advertising purposes for a reasonable period of up to 10 years, unless the buyer objects to such use in writing within 4 weeks after conclusion of the contract. For conflicting agreements § 1 para. 4 of these terms and conditions applies.
§ 11 Place of jurisdiction, applicable law, severability clause
- If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Berlin. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled to take action against the customer at his general place of jurisdiction. Priority statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.
- The law of the Federal Republic of Germany applies exclusively to these General Terms and Conditions and the entire legal relationship between us and the customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law is excluded.
- Should individual provisions be or become invalid, the validity of the remaining provisions shall not be affected thereby. The void, ineffective or unenforceable provision shall, to the extent permitted by law, be deemed to be replaced by the effective and enforceable provision which comes closest to the economic purpose pursued by the void, ineffective or unenforceable provision in terms of subject matter, measure, time, place or scope. The same applies to the filling of any gaps in these terms and conditions.
- The English version is a translation. In cases of doubt and in the event of disputes about the content of these General Terms and Conditions, the German version shall be exclusively authoritative.