|
|||||||
|
|||||||
|
|||||||
|
|||||||
|
|
||||
 |
||||
| General Terms and Conditions of Business (T&C)
for Finnforest Merk GmbH 1. Scope of validity for these T&C Our T&C apply to all business relationships with our customers - particularly to all purchase contracts, service contracts and supply-service contracts. Any deviations from, supplements to or ancillary oral agreements relevant to these T&C apply only when confirmed in writing by us. This condition applies particularly to agreements with our sales representatives and field-service representatives. These T&C likewise apply to all future purchase contracts, service contracts and supply-service contracts concluded with our customers – without the necessity of expressly referring to these once again. Any contrary T&C set forth by the customer are invalid. This condition also applies if we have not expressly objected to such T&C. By sending us an order, the customer expressly acknowledges the validity of our T&C. Acts of fulfilment on our part constitute neither our consent to nor our approval of the T&C set forth by the customer. 2. Validity of the VOB (German Construction Contract Procedures) Insofar as we provide construction services, the General Contractual Conditions for the Perform-ance of Construction Services (VOB, Part B) apply hereto. The following apply successively, in the given order of precedence: a) our offer including our Technical Specifications b) the General Contractual Conditions for the Performance of Construction Services (VOB, Part B) c) our General Terms and Conditions of Business (T&C) 3. Contract conclusion, contract content Our proposals remain non-binding. We are under no obligation to accept orders placed by the customer. A contract does not materialise until we have confirmed by way of a purchase order the issuance of the contract by the customer. This also applies to ancillary agreements and assurances in addition to subsequent contractual amendments. Any transfers of rights and obligations on the part of the customer arising from the contract which has been concluded with us require our written consent. Any measurements, weights, illustrations, graphic representations or similar specifications included in the proposal documentation are approximate. Any deviations from the descriptions provided herein are permissible insofar as they neither exceed the commercially typical scope nor lead to significant depreciation and furthermore are not unreasonable to the customer. All proposal documentation, illustrations, catalogues, drawings etc. remain our property. In the event that a contract does not materialise, such documentation must be returned to us immediately and without our express request. Such documentation may be neither disseminated, published nor reproduced without our written consent. The copyrights for the technical representations transmitted by us remain ours. We reserve the right to apply a manufacturer's symbol or any other type of label to all work performed by us. Upon the conclusion of a contract, the customer gives us his/her consent that the services provided for him/her will be used in the context of our advertising. The customer must immediately check the accuracy of our purchase order with regard to the exhaustiveness of all specifications, the proper quantity for the given type, dimensional specifica-tions etc. The same applies to any transmitted working drawings. The content of the contractual documentation is considered recognised as a contractual element, insofar as the modified working drawings have neither been returned by the customer within eight days of their receipt by the customer and no requests for modification have been made by the customer in writing. Material to determining the promptness of modification requests is the date on which we receive such a written notification. If our proposal includes any work to be performed (assembly, installation etc.), the customer is obligated to prepare the designated site so that such work is not impeded. Our use of scaffoldings as well as connectors for electrical tools and our withdrawal of electric power and water must be enabled free of charge to us by the customer. The digging/cutting and subsequent closure of any holes/slots is not included in the scope of this contract; neither are any processes associated with plastering work. Such work shall only be performed upon the awarding and calculation of a separate contract. Any parts supplied by us must be stored by the customer so as to prevent the adverse effects of inclement weather and other types of damage. The customer must perform any unloading/removal work at his/her own expense. The customer must shield any pre-existing fixtures from damage. The customer must ensure that assembly work can be performed on the date mutually agreed to by us – and particularly that all necessary preliminary work is complete. The customer must confirm to us in writing and no later than two weeks prior to the designated date that the performance of assembly work will be possible on this date. We reserve the right to refuse to start such assembly work if the aforementioned prerequisites are not fulfilled. A service is considered accepted with the elapse of twelve business days after the issuance of a written notification regarding the completion of the given service and/or after the elapse of six business days following the start of use. This condition does not apply if the customer submits in writing and within the given deadline any justified notices of defects. Material to the determination of promptness is the date of our receipt of the notice of defects. The customer is obligated to (upon our request) sign and return to us a certificate of acceptance submitted by us, following the completion of assembly work and the acceptance of this work. Any parts which could not be installed as fixtures by the time of completion of assembly work can be handed over to the customer. These must be specifically noted on the acceptance certificate. Any personnel employed by us for assembly work are not authorised to submit any statements for the purpose of conducting legal transactions. 4. Supply, realisation The scope of supply only includes the services mentioned in the purchase order. The designated dates for supply and realisation must be mutually agreed to with us. These time periods do not begin until the final designation of all commercial and technical prerequisites for the realisation of the contract - however, not prior to the approval of the submitted drawings and our receipt of any previously agreed down-payment. Furthermore, these time periods do not begin until the customer has submitted all documentation, permits and releases which he/she is obligated to procure. Supply deadlines are considered met when is applicable when up to the point of their elapse, the supplied object has been delivered from the plant, or the customer has been notified of the readiness for delivery. If the supply of goods/services is delayed on grounds which lie within the customer's scope of responsibility, the risk is transferred to him/her from the day of the notification of readiness for delivery. In this case, we reserve the right to store these goods at the customer's own risk and at the customer's own expense. Performance deadlines are considered met when the installation can be commissioned, even if individual deliveries and/or performance of services is only completed subsequently. Partial deliveries are permissible. The agreed supply and delivery deadlines shall be extended accordingly if (following conclusion of the contract) any circumstances arise which hinder prompt fulfilment of the contract and which we cannot prevent despite adherence to the principles of reasonable due diligence under the prevailing circumstances. These particularly include disruptions in operations, labour disputes, actions by official agencies, delays in the delivery of raw materials and construction materials/supplies material to our work, energy shortage and similar circumstances. If (after the fact) such hindrances to performance render the supply/ performance of services impossible for us and/or we are unable to promptly eliminate these, we reserve the right to withdraw from the contract. In this case, the customer is released from his/her own obligation to perform the duties incumbent upon him/her. Any further claims on the part of the customer are excluded. For the rest, any claims on the part of the customer due to delay and/or impossibility of supply/service provision are limited to max. 12 % of the invoice value for the goods or the service of which supply has been delayed and/or which has become impossible by our own fault. This limitation of liability does not apply to those cases in which we are legally liable due to malice or gross negligence. Deliveries are made at the customer's own risk. This also applies if (according to the contract) a carriage-paid delivery or setup is owed. Upon the customer's request, insurance against loss or damage in transit or against breakage shall be taken out in his/her own name and on his/her own account. Any damages-compensation claims due to damage in transit etc. must be immediately asserted by the customer towards the carrier and/or (to the greatest possible extent) towards the insurance company. If the delivery is made at the customer's own expense, we reserve the right to use our company's own vehicles to make the delivery. In this case, we reserve the right to bill to the customer the appropriate travel expenses. The goods shall be packaged according to industry standards, insofar as packaging is possible. The packaging shall be - insofar as no contractual agreement to the contrary has been made - billed at the lowest reasonable price and not taken back. If (upon our request) the packaging material is returned to us in flawless condition and returned to us carriage-paid, the customer shall be granted a credit in the amount of 2/3 of the calculated value. Any claims arising from defects in the packaging cannot be asserted towards us if the packaging was carried out under consideration of the necessary principles of due diligence and according to our standard manner of packaging. 5. Prices – payment conditions All prices for deliveries are considered "ex works" – excluding packaging as well as shipping and transport charges and postal charges. Freight charges, warehousing charges and similar costs shall be borne by the customers. If delivery and assembly have been agreed, the prices – insofar as the contract does not provide for own conditions – are considered "free site", incl. assembly costs. The prices are considered net prices, plus the applicable statutory VAT. The agreed prices apply under the prerequisite that the indicated proposed delivery and/or service is ordered and accepted. In the event of a partial order and/or a partial acceptance, we reserve the right to bill to the customer the resulting extra costs. We are no longer bound to the agreed prices if a period in excess of four months elapses between the day of our receipt of the purchase order and the performance of services by us, and this delay lies within the customer's scope of responsibility. In such as case, we reserve the right to bill the costs current as of the day of delivery and/or performance. Invoices are payable within thirty days of the invoice date, without deduction. If partial payments or advance payments have been agreed, these are payable within eight days of the receipt of the request letter. If the principal fails to make a prompt advance or partial payment, we reserve the right to cease delivery/ performance of services or to (at our own discretion) withdraw from the contract. In the event of withdrawal from the contract, we reserve the right to assert the damages suffered by us (incl. lost profit for the part of the contract which was not carried out). If the customer enters into arrears with payables which have come due, all of our claims towards the customer which have not yet come due and arise from the same legal relationship are also considered due. In the event of a delay in payment, we reserve the right to bill interest in the amount of the interest at the current bank rate paid by us – however, at least 12 % p.a. The customer is obligated to provide evidence that we have suffered either no damages or lesser damages due to this delay. The assertion of higher damages due to delay (to be evidenced on a case-by-case basis) is not excluded. We are not obligated to accept bills of exchange or cheques. Their acceptance applies merely in the context of contract fulfilment and as a result of a specific agreement, with reservation of a discount option and no guarantee for their prompt redemption and protestation. Credits issued via bills of exchange and cheques are transacted with reservation of their receipt minus all expenses, with the value setting as of the day on which we finally have the equivalent amount at our disposal. If any circumstances become known to us which give us cause to doubt the customer's credit-worthiness, then we reserve the right to make all payables due immediately – and to supply other goods/perform other services only on a pre-paid basis. In addition, without withdrawing from the contract, we can prohibit the re-sale and processing of the supplied goods and (at the customer's own expense) demand the return of the goods or ourselves take possession of the goods, whereby the ordering party is not entitled to a withholding right. We reserve the right to utilise the goods (which we have taken back) by way of direct sale for offset to our outstanding payables. Regardless of this, we reserve the right to withdraw from the contract or demand damages compensation due to non-fulfilment. If no damages-compensation claim can be asserted due to non-fulfilment, our minimum damages-compensation claim amounts to 20 % of the agreed price. The assertion of damages in excess of this amount remains reserved. The customer is obligated to provide evidence that we have suffered either no damages or lesser damages. We are entitled to assign our payables. An offset against our payables is only possible with counter-claims which have been either recognised by us or determined to be legally binding – otherwise, such offsetting is excluded. A withholding right is excluded to the extent that it is not based on the same contractual relationship. In the course of business transactions with registered traders, the assertion of a withholding right is generally excluded. 6. Warranty We warrant (in accordance with recognised engineering rules) the flawlessness of materials and of work performed at our plant. We are liable as follows (under the exclusion of any further claims) for any defects in delivery or performance – including the lack of assured characteristics: Any defects are to be reported to us in writing immediately – however, no later than within seven days of the receipt of the goods at their point of destination. If these deadlines are not respected, any and all claims on the part of the customer shall expire. If we fail to meet our remedy obligation despite at least two requests made within an appropriate period and/or the attempt at remedy/subsequent delivery proves fruitless at least twice, then the customer can (under the exclusion of any further claims) demand a reduction in remuneration or – if the citation of one's right to reduction should be unreasonable in such a case – the cancellation of the contract. In the event of unjustified notices of defects which in turn are cause for comprehensive review, the costs of such a review can be billed to the customer. The return of any goods requires our express written consent - and shall occur at the customer's own expense and own risk. No warranty shall be assumed for damages which have arisen on the following grounds: Use of the supplied objects in an inappropriate or improper manner, faulty assembly and/or commissioning by the customer or by any third parties; natural wear; faulty or negligent treatment; the use of inappropriate resources; the lack of suitable structural conditions; chemical, electro-chemical or electrical influences (insofar as these cannot be attributed to any fault on our part). In addition, no warranty shall be assumed for supplied parts which (as a result of their material state or their manner of use) are subject to excess natural wear. Since colours/colouring agents can change with the passage of time, the warranty likewise does not extend to any colour changes. If the customer imposes upon us inappropriate deadlines to carry out all apparently necessary warranty measures and/or replace damaged goods, all warranty claims shall expire. The warranty period for replacement/repair of damaged goods, the warranty period amounts to merely three months. However, it extends to at least the date of expiry of the original warranty period for the delivery and/or service. Replaced parts become our property of which we can take possession. For construction services, the General Contractual Conditions for the Performance of Construction Services (VOB, Part B) apply in the version which was valid at the time of the conclusion of the contract. 7. Damages-compensation claims Damages-compensation claims on the part of the customer are excluded – regardless of the legal nature of the asserted claim. This applies particularly to all claims due to fault upon the conclusion of the contract, violation of ancillary obligations (and particularly to claims from manufacturer's liability in accordance with § 823 of the German Civil Code. The exclusion does not apply insofar as compulsory and indispensable liability for damages compensation results from malice or gross negligence and/or in the event of assured characteris-tics. Likewise, this exclusion applies neither to claims on the part of the customer according to §§ 1, 4 of the Product Liability Code nor to those claims resulting from initial inability or from impossibility which lies within our scope of responsibility. Insofar as liability on our part is limited or excluded, this also applies to the individual liability on the part of our salaried employees, wage earners, employees, field-service employees and auxiliary agents. The statute of limitation for claims arising from product liability is based – regardless of the party against whom these claims are asserted – on § 6 of these T&C. 8. Retention of title The objects supplied by us remain our property until the full payment of all payables resulting from the business relationship with the customer - including all ancillary payables and until the encashment/discharge of the bills of exchange and cheques handed over for this purpose. The customer is expressly permitted to sell the objects supplied under the retention of title. However, this permission is only granted to him/her in the context of his/her normal business dealings and as long as he/she is not in arrears with the respective payments. The customer already cedes to us upon the conclusion of the contract any payables which arise form a sale of the goods subject to retention of title (along with all ancillary rights, including profit margin and any assembly costs). We hereby accept this assignment. The customer is authorised to collect on our behalf the payables ceded to us via this advance assignment - however, on his/her won account and at his/her own risk - however, only as long as he/she complies with his/her obligations to us in accordance with the contract. This authorisation can be revoked by us at any time. Upon our request, the customer is obligated to notify third-party debtors of the assignment - and to report to us the information as well as hand over the documentation necessary for the assertion of our rights. Any handling or processing of the goods subject to retention of title by the customer shall be performed on our behalf as the manufacturer in the context of 950 of the German Civil Code - however, without subjecting us to any obligation. The processed goods are considered goods subject to retention of title in the context of these T&C. If the supplied goods are processed, combined or inseparably mixed with other objects not belonging to us, we then procure the co-ownership on the new object in correlation with the invoice value of the other utilised goods at the time of their processing, combination or mixing. The customer already cedes to us upon the conclusion of the contract any rights to ownership or co-ownership of the new object and stores the new object for safekeeping on our behalf. The co-ownership rights resulting from these circumstances are considered goods subject to retention of title in the context of these T&C. If the supplied goods are processed, combined or inseparably mixed with other objects not belonging to us and the other object is to be considered the principal object, it is considered agreed that the customer transfers to us a share of the co-ownership, insofar as the principal object belongs to him/her. Any pledging or transfer by way of security of those goods to which we hold rights is excluded without our express consent. If the fulfilment, collection or hedging of our payables is jeopardised by way of the garnishment of our collateral by third parties, the customer must immediately notify us of this circumstance. In this context, all data required by us for the assertion of our collateral against third parties must be provided to us. In this case, we are entitled to take back the goods for safekeeping, at the customer's own risk and own expense, until our claims have been satisfied in full - without withdrawing from the contract. If the customer falls into arrears with a payment resulting from the business relationship, we are entitled to demand the handover of the goods subject to retention of title and utilise these goods via compulsory suction or via direct sale for the coverage of our payables. The proceeds from such utilisation shall be used for coverage of our payables, including the costs of litigation and the respective utilisation. The customer is entitled to receive any proceeds in excess of this amount. The acceptance of the returned goods is not considered withdrawal from the contract. If the value of the collateral provided to us exceeds the amount of our payables by a total of greater than 20 %, then we are (upon the customer's request) obligated to release at our discretion any collateral at the value of this excess amount. 9. Place of fulfilment and legal venue The place of fulfilment for all obligations arising from this business relationship is Aichach. Insofar as the customer is a registered trader and/or a legal entity subject to public law, Aichach is agreed as the legal venue. Aichach is also considered the legal venue if the customer (after the conclusion of the contract) moves his/her place of residence or domicile –or if his/her place of residence or domicile is not known at the time the suit is filed. 10. Concluding provisions Applicable law is that of the Federal Republic of Germany. The application of the Uniform Intern-ational Convention on Contracts for the International Sale of Goods is excluded. If one of the aforementioned provisions should be ineffective or be deemed ineffective by way of a binding judgment, the other provisions thereto shall remain unaffected by this circumstance. The contrac-tual partners agree that the ineffective provision shall be replaced by an effective one which most closely approximates the originally agreed (or intended) commercial purpose. |
||||
|
||||
|
|
|||||||
|
|||||||
|
|||||||
|
|||||||
|
