Terms and conditions of Fa. Fiebig & Schillings GmbH

I. General

1. These terms and conditions are intended to be used when doing business with other companies. They replace all currently existing terms and conditions and apply for business relationships with the customer and for all future business. Earlier versions of the Terms and Conditions are no longer valid. The following conditions apply to all offers and agreements in relation to our products, deliveries and other services.

2. Any deviating conditions of the client/customer which we do not expressly acknowledge in writing are invalid, even if we have not expressly contradicted them.

3. The scope of performance is determined by the details of the offer or the order confirmation.

4. Customer claims arising out of contracts with us may not be assigned to third parties.

 

II. Offer and contract conclusion

1. All offers are non-obligatory. When in doubt, only the information given by us in in writing is valid. The customer/client makes a binding declaration of intent to purchase the ordered goods by signing the contract/order. After receipt of the order/the contract, changes are no longer possible.

2. The order counts as accepted when the customer's order has been confirmed in writing by us or delivery has occurred.

3. All agreements, including all additional agreements, need to be confirmed by us in writing.

4. Errors in our sales brochures, price lists, offer documents or other documentation may be corrected by us without us being held accountable for damages resulting from these mistakes.

5. Upon completion of the contract, prices are guaranteed for a period of 3 months. After that time, prices may be increased by us in relation to increased cost, particularly as a result of collective agreements or material cost increases. If the increase is more than 5%, the client/customer is entitled to terminate the contract.

6. The price named on our confirmation/price list is valid. Failing such indication, the price that is valid with us at the time of the signing shall be valid for the interaction. 

 

III. Terms of payment

1. The invoice is issued on the day the goods are shipped, or partially shipped. Obvious inaccuracies such as typing or calculation errors can be corrected by us at any time.

2. The customer can object to the invoice in writing only within four weeks of receipt. (Claims arising from warranty rights are not affected.)

3. If partial payments have been agreed upon and the buyer stays in arrears of a installment for longer than 14 days, the entire agreed price is immediately due.

4. Payments are due without deduction within 30 days after the invoice date. Payment for contract manufacturing and other services are due immediately (Net price or price according to the offer/order confirmation.)

5. Offsetting our claims with counterclaims is excluded, unless they are undisputed or legally established.

6. Money orders, checks, bills, securities and any other means of payment will be accepted only by special agreement as payment subject to cover, but not in lieu of performance. Collection and discount charges, fees and charges incurred in connection with the granting of credit, are charged to the customer. We accept no liability for timely presentation, protest, notification or restraint of these methods of payment.

7. The customer/client will be in arrears with payments, without further notice on our part, 30 days after the invoice date, insofar as payment has not been made.

8. Granted discounts will be cancelled in cases of late payment, default of acceptance, out of court settlement proceedings, insolvency or judicial recovery of the outstanding claim.

 

IV. Delivery Time

1. Stated delivery dates are not binding. If delivery times have been firmly agreed upon, the delivery time may not be before all technical questions have been resolved. Agreed periods shall commence only when the customer/client has given us all the information required for processing the order information and made all necessary specifications.

2. If a firmly agreed delivery time is exceeded by us by more than four weeks, the customer/client may set a reasonable grace period by registered post and withdraw from the contact in the event of non-delivery within the grace period. The period must be at least 2 weeks.

3. On our part, there is a right to withdraw from the contract if circumstances in the economic situation of the customer become known to us after the order has been confirmed/conclusion of contract and prior to delivery, through which our claims no longer appear sufficiently secured. In such a case we may demand payment in advance or additional securities.

4. We will not be bound to any agreed delivery times in cases of: operational disturbances, strikes, lockouts, plant shutdowns (including partial shutdowns), no matter for what reason, or occurrence of such events in the plant of a major subcontractor, war, civil unrest or decrees of authorities, as well as in all other cases of force majeure. In such a case, we can decide whether to completely or partially withdraw from the contract or whether the customer will be given a new non-binding delivery period. If the new deadline or a fixed agreed delivery time is exceeded by more than three months, the customer/client may set in writing a reasonable grace period. The customer/client may withdraw from the contract in the event of non-delivery within the grace period. The period must be at least three months.

5. We may withdraw from a contract if the customer has not paid an invoice, despite having been sent reminders from us, even if those invoices relate to another contract between the customer and us.

6. We will only vouch for timely procurement of our goods and/or services, insofar as we have received the necessary supplies and other services in time. We will inform our customers/clients immediately about the unavailability or non-timely availability of supplies. The burden of proof that a breach of duty in connection with the procurement of the supply of our part has occurred rests with the customer. We are entitled to withdraw from the contract if we do not receive the delivery item in spite of having purchased them on time. Our responsibility for intent or negligence remains unaffected by the provisions of this clause.

7. We shall be liable for delays in performance due to intent or gross negligence on our part or a representative or vicarious agent according to legal regulations. Our liability, however, in cases of gross negligence, is limited to contract-typical, foreseeable damage if none of the provisions specified in clause 5 is applies. Furthermore, our liability in case of delayed services is limited to 50% of the value of goods/services. Further claims of the customer - even after expiry of a deadline set by the customer for possible performance - are excluded. These limitations do not apply to liability for injury to life, limb or health.

 

V. Shipping

1. We will choose shipping routes and shipping agents according to our best judgment. The risk (property, price, and delay) is transferred to the customer in each case at the moment we hand over the ordered service to the shipper, carrier or the persons or institution otherwise determined for the shipment, but not later than with the moment the shipment leaves our premises.

2. If shipment is delayed for reasons for which we are not responsible, the risk shall pass to the display of our readiness for shipment to the customer.

3. The risk of damage, destruction, theft, etc. is transferred to the customer at the date of readiness for shipment to the customer.

4. Unless expressly agreed otherwise, the customer is always responsible for insuring the consignment.

5. Before accepting the shipment, the external condition and the weight of the packages must always be first checked. If the packaging shows traces of previous opening, damage or loss, the delivery is only to be accepted after according reservations against the transport company have been made.

 

VI. Retention of title

1. Ownership of the goods delivered by us does not pass to the buyer until the total purchase price has been paid.

2. In the case of resale of the delivered goods, the customer shall hereby assign his claim from the resale against his customers with all ancillary rights to us, without the need for any further declarations. This assignment applies including any balance claims. However, the assignment shall only apply to the amount corresponding to the price invoiced by us for the delivery item. The claims arising out of the assignment are to be served with priority.

3. The Customer is permitted to process or reform the delivered item (hereinafter referred to as: processed goods). Processing is carried out for us. However, if the value of the delivered goods belonging to us is less than the value of the goods not belonging to us and/or the processed goods, we acquire joint ownership of the new goods in proportion to the value (gross minus invoice value) of the processed delivery item to the value of the remaining processed goods and/or the processed goods at the time of processing. Insofar as we do not acquire ownership of the new product according to the above, both parties agree that the customer will grant us  co-ownership of new goods in proportion to the value (gross minus invoice value)  of the processed delivery item to the value of the remaining processed goods and/or the processed goods at the time of processing. The preceding sentence shall apply in case of inseparable mixing or connection of the delivery item with goods not belonging to us. If we gain by this retention co-ownership, the customer will retain the title for the contractor with the diligence of a prudent businessman.

4. Until further notice, the customer is authorized to collect the claims assigned to us as specified by this paragraph (Retention of title). The client will immediately forward to us the assigned claims payments made up to the amount of the secured claim. In the presence of legitimate interests, in particular default of payment, suspension of payments, opening of insolvency proceedings, bill protest or justified evidence of excessive indebtedness or impending insolvency of the client, we are entitled to revoke the customer’s authority to collect. We are also empowered, with advanced warning and within a reasonable time, to disclose the assignment of security, to utilize the assigned claims, and to demand the disclosure of the assignment by the customer with respect to their customer’s demand.

5. During the retention of title, the customer is prohibited from pledging or transfering of ownership. In case of seizure, confiscation or other disposals or interventions by third parties, the customer must inform us immediately. The resale of the delivery item or the new goods is possible only for resellers in the ordinary course of business and only under the conditions that the payment of the equivalent value of the delivery item is carried out to the client. The client must also make an agreement with his purchaser that the purchaser acquires ownership of the item through payment.

6. In case of breaches of duty by the customer, in particular default in payment, we are entitled, without previously setting a deadline, to demand the surrender of the delivery item or the new goods and/or - if necessary after setting a deadline - withdraw from the contract; the customer is obliged to surrender the goods. The request to surrender the delivery item/new product is not a resignation from the contract from our side, unless this is expressly stated.

 

VII. Warranty

1. Warranty rights presuppose that the customer has properly fulfilled his obligations with respect to the inspection and making of complaints about defects under §377 German Commercial Code(BGB). Should complaints arise despite the greatest attention, obvious defects must be reported immediately, latent defects after their discovery, otherwise the goods shall be deemed approved. (As specified under §377 German Commercial Code)

2. Warranty claims are excluded in cases of insignificant deviations from the agreed quality or insignificant impairment of usability.

3. We only take responsibility for guarantees to the customer for those appliances, machinery and other equipment, which are still owned by the customer and which have been installed by our fitters or have been set up and put into operation exactly according to our operating instructions in compliance with the valid VDE regulations.

4. We assume liability for the quality of the material and the flawless design and execution of the ordered item.

5. The limitation period for claims and rights due to defects of the goods/services - regardless of the legal grounds - shall be 1 year. This does not apply in the cases of § 438 para. 1 No. 1 German Civil Code (defects of title in tangible goods), § 438 para. 1 no. BGB (Buildings, things for buildings), §479 para. 1 BGB (recourse of the entrepreneur) or § 634a para. 1 no. BGB (production/maintenance/alteration of a thing or planning/monitoring services).The periods referred to in the preceding sentence 2 are subject to a limitation period of 3 years.

 6. The limitation period pursuant to paragraph 1 shall also apply to all claims for damages against the contractorthat are associated with the defect - irrespective of the legal basis of the claim. If claims for damages of any kind are made against the contractors that are not related to a defect, the limitation period of para. 5 sentence 1 above apply.

 7. The limitation periods pursuant to paragraph 5 and paragraph 6 shall apply according to the following conditions:

• The periods of limitation generally do not apply in case of intent.
• The statute of limitations does not apply if we have fraudulently concealed the defect (in so far as a guarantee for the nature of the goods/services has been made by us). If we have fraudulently concealed a defect, then instead of the periods indicated in Clause 1, the statutory limitations periods that would apply in the absence of fraud will apply, i.e., § 438 par. 1 No. 1 of the German Civil Code (BGB) (legal defect in title to immovable objects), § 634a para. 1 no. BGB (production/maintenance/alteration of a thing or planning/monitoring services) and No. 2 (buildings or planning / monitoring services for this purpose) and No.3 (other services), thereby excluding the extension of the limitations period in the case of fraud pursuant to § 438 par. 3 of the BGB.

b) The periods of limitations also do not apply to compensation claims in the case of injuries to life and limb or health or violation of liberty, for claims according to the product liability law, for grossly negligent violation or for violation of material contractual obligations.

8. The right to choose between rectification of defects and replacement delivery is always ours. Within the scope of the supplementary performance we are, in no case, obliged to a re-supply or a re-manufacture. If subsequent performance fails, the customer shall have the right to reduce or, if the subject of liability for defects is not a construction, - to withdraw from the contract. This does not affect the customer's right to request compensation in lieu of performance in accordance with the legal provisions and these terms.

9. If the customer wants to demand compensation instead of performance, reworking is said to have failed only after the second futile attempt. The legally defined cases of expendability of setting a deadline shall remain unaffected.

 10. The expenditure required for the purposes of subsequent fulfilment shall be borne by the customer, in so far as they increase because the goods in question were subsequently moved to another place than the customer’s place of business unless such transport is consistent with the goods' intended use

11. Warranties for parts of the delivery that are not manufactured by us are given  only to the extent in which we still have warranty claims against the supplier of these parts and only in the form of the assignment of such claims by us to the customer.

12. The warranty is void if the delivered goods have been altered by thirds parties through the incorporation of non-original parts or have been otherwise changed and the damage stands in causal connection with the change. No warranty is further assumed for errors or omissions caused by natural wear and tear or damage due to negligence or improper handling of the delivered item or caused by chemical reactions to filling products. The warranty period is limited to 3 months for goods that are in exceptionally high use or are used in two-shift operation.

13. For spoilage, loss or damage of all objects we do not own whose possession or joint possession the customer has granted us we assume no liability by damage through fire, water, burglary, theft, looting or any other cause.

 

VIII. Limitations of Liability

1. We are liable in cases of intent or gross negligence on our part or a representative or employee under the statutory provisions. Furthermore, we are only liable under the product liability law, for injury to life, limb and health and for the culpable breach of contract. The claim for damages for breach of fundamental contractual obligations is limited to typical foreseeable damage. Our liability in cases of gross negligence is also limited to typical, foreseeable damage if none of the exceptions listed in sentence 2 of this paragraph 1 exists.

2. The liability for losses caused by the delivery item to objects of legal interest, e.g. damages on other, shall be entirely excluded. This shall not apply if intent or gross negligence have occurred or in the event of injury to life, limb or health or if we are liable under a warranty assumed for the condition of the delivery item.

3. The provisions of the preceding paragraphs 1 and 2 extend to damages in addition to performance and damages in lieu of performance, on whatever legal grounds, in particular due to defects, breach of duties arising from the obligation or from unlawful acts. They also apply to claims for compensation for any expenses. The liability for default shall be governed by Section IV, 6. The liability for impossibility according to paragraph VIII.

 

IX. Liability

We are liable in case of impossibility of delivery/service, without intent or gross negligence on our part or a representative or vicarious agent, according to legal regulations. Our liability in cases of gross negligence, however, is limited to typical and foreseeable damages, if none of the exceptions listed in clause 5 apply. In all other respects, our liability is limited to damages due to impossibility of performance and to reimbursement of wasted expenses up to a total of 50% of the value of the delivery/service. This limitation does not apply if liability is mandatory in cases of willful misconduct, gross negligence or due to injury to life, limb or health. The customer's right to withdraw from the contract remains unaffected.

 

X. Final Provisions

1. Place of performance for all contractual partners as well as for all current and future claims from the business relationship is our company branch. Jurisdiction is the headquarters. This agreement also applies to actions in exchange, checks and documentary evidence.

2. The law of the Federal Republic of Germany applies. The provisions of UN purchasing law does not apply.
Agreements with representatives, verbal subsidiary agreements and assurances as well as subsequent amendments to the contract are only effective if they are/confirmed in writing by us.

3. If individual provisions of the contract, including these terms and conditions, are wholly or partially invalid, or should be, the validity of the remaining provisions shall remain unaffected. The entire or partially invalid provision shall then be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.

 

Fiebig & Schillings GmbH • Dillberg 24 • 97828 Marktheidenfeld • Telephone 0049 -9391-6009-0

Place of business is Marktheidenfeld – Registergericht Würzburg HRB 901

Director: Dirk Fiebig, Petra Fiebig-Junker