Fenecon GmbH’s general terms of delivery and payment (GTC)

(Ver­si­on: Janu­a­ry 2018)

I. General information / scope 

  1. The­se terms of deli­very and pay­ment app­ly to all legal tran­sac­tions, inclu­ding tho­se made in the future bet­ween Fenecon GmbH and the Con­trac­tor.
  2. The Contractor’s con­di­ti­ons that con­flict or dif­fer from the­se terms of deli­very and pay­ment or sup­ple­ment them are only valid if they are express­ly reco­gnis­ed by us in wri­ting. 

II. Conclusion of the contract; self-procurement requirement; force majeure; payment terms 

  1. All our offers are non-bin­ding and sub­ject to con­fir­ma­ti­on. The sale is sub­ject to cor­rect and time­ly self-pro­cu­re­ment.
  2. The sel­ler is ent­it­led to can­cel the con­tract if he does not recei­ve the deli­very item in spi­te of pri­or con­clu­si­on of a rele­vant purcha­se agree­ment; the seller’s respon­si­bi­li­ty for intent or negli­gence remains unaf­fec­ted. The sel­ler will inform the buy­er imme­dia­te­ly about the non-time­ly avai­la­bi­li­ty of the deli­very item and exer­ci­se the right of can­cel­la­ti­on imme­dia­te­ly if he pre­fers to do so; the sel­ler will imme­dia­te­ly refund the cor­re­spon­ding con­si­de­ra­ti­on to the buy­er in the event of can­cel­la­ti­on.
  3. If we are pre­ven­ted by events of force majeu­re from making a deli­very on time, we shall be ent­it­led to post­po­ne the deli­very for the dura­ti­on of the hin­dran­ce or we shall be exemp­ted from the deli­very obli­ga­ti­on, unless the buy­er is still inte­rested in the deli­very. Events of force majeu­re inclu­de, but are not limi­ted to: inter­nal labour dis­pu­tes for which we are not respon­si­ble, exter­nal labour dis­pu­tes if we can­not rea­son­ab­ly obtain a repla­ce­ment for the goods at risk, war, import and export bans, shor­ta­ge of ener­gy and raw mate­ri­als, power fail­u­re, extre­me wea­ther con­di­ti­ons (e.g. hail or storm dama­ge) or offi­ci­al mea­su­res.
  4. Unless agreed other­wi­se, the remu­ne­ra­ti­on is due in full upon deli­very or accep­tan­ce of the goods. Unless having made the pay­ment, the buy­er will be in arre­ars 14 days after the due date, wit­hout fur­ther explana­ti­on by the sel­ler.
  5. Off­set­ting against our purcha­se pri­ce claims is only per­mit­ted with undis­pu­ted, decisi­on-faci­li­ta­ting or legal­ly estab­lished coun­ter­c­laims. The buy­er can also assert a right of reten­ti­on only under the­se con­di­ti­ons. 

III. Transferred documents 

  1. We reser­ve ownership and copy­rights to all docu­ments, for examp­le, cal­cu­la­ti­ons, drawings, etc. recei­ved by the purcha­ser when pla­cing the order. The­se docu­ments may not be made acces­si­ble to third par­ties, unless we give the purcha­ser our express writ­ten con­sent.
  2. The­se docu­ments must be retur­ned to us imme­dia­te­ly if the con­tract is not con­clu­ded. 

IV. Transfer of risk upon shipment 

If the goods are des­patched to the purcha­ser at his request, the risk of acci­den­tal loss or dete­rio­ra­ti­on of the goods shall pass to the purcha­ser upon des­patch to the purcha­ser, at the latest ex wareh­ouse. This app­lies regard­less of whe­ther the goods are des­patched from the place of per­for­mance or who bears the freight costs. 

V. Reservation of proprietary rights 

  1. The deli­ve­ries of Fenecon GmbH are sub­ject to the right of ownership. The deli­ve­r­ed goods shall remain the pro­per­ty of Fenecon GmbH until full pay­ment of all cur­rent and future claims ari­sing from the busi­ness rela­ti­ons­hip bet­ween Fenecon GmbH and the Cli­ent.
  2. The purcha­ser is obli­ged to hand­le the purcha­sed goods with care, as long as the pro­per­ty has not been trans­fer­red to him. In par­ti­cu­lar, he is obli­ged to ade­qua­te­ly insu­re them at his own expen­se against theft, fire and water dama­ge at repla­ce­ment value. Any main­ten­an­ce and inspec­tion work requi­red must be car­ri­ed out prompt­ly by the purcha­ser at his own expen­se. As long as the ownership has not yet been trans­fer­red, the purcha­ser must noti­fy us imme­dia­te­ly in wri­ting if the deli­ve­r­ed item is sei­zed or sub­jec­ted to other inter­ven­ti­ons by third par­ties. Inso­far as the third par­ty is unab­le to reim­bur­se us the court and out-of-court costs of a claim pur­suant to Sec­tion 771 ZPO (Code of Civil Pro­ce­du­re), the purcha­ser is liable for the loss incur­red by us. During the exis­tence of the reten­ti­on of ownership, the Cli­ent is pro­hi­bi­ted from pled­ging or assi­gning it by way of secu­ri­ty.
  3. The Cli­ent is per­mit­ted to pro­cess the deli­ve­r­ed goods, as well as to mix or con­nect them with other objec­ts. This shall exclu­si­ve­ly be done for Fenecon GmbH. Inso­far as this leads to loss in ownership of the goods, the Cli­ent her­e­by assigns co-ownership of the new object to the Con­trac­tor in the ratio of the invoice value of the deli­ve­r­ed goods to the invoice value of the remai­ning goods to secu­re the claims ari­sing from the reser­va­ti­on of ownership.
  4. Fur­ther­mo­re, the Cli­ent is ent­it­led to resell the deli­ve­r­ed goods wit­hin the frame­work of pro­per busi­ness ope­ra­ti­ons. This aut­ho­ri­sa­ti­on may be revo­ked if the Cli­ent does not pro­per­ly ful­fil his con­trac­tu­al obli­ga­ti­ons. The Cli­ent her­e­by assigns his claim from the resa­le of the reser­ved goods against the purcha­ser, inclu­ding all ancil­la­ry rights, as secu­ri­ty to Fenecon GmbH, wit­hout any fur­ther spe­cial explana­ti­ons being requi­red. Howe­ver, the assign­ment shall only app­ly to the amount cor­re­spon­ding to the pri­ce of the deli­very item, invoi­ced by the Con­trac­tor.
  5. Until fur­ther noti­ce, the Cli­ent is aut­ho­ri­sed to collect the assi­gned claims. The Cli­ent will imme­dia­te­ly for­ward pay­ments made to the assi­gned claims up to the amount of the secu­red claim to the Con­trac­tor. In the event of good cau­se, in par­ti­cu­lar default or sus­pen­si­on of pay­ment, ope­ning of insol­vency pro­cee­dings or threa­ten­ing insol­vency of the Cli­ent, the Con­trac­tor is ent­it­led to revo­ke the aut­ho­ri­ty to collect.
  6. Fenecon GmbH under­ta­kes to release the secu­ri­ties to which it is ent­it­led upon request by the purcha­ser, inso­far as their value exceeds the claims to be secu­red by more than 20%.
  7. In the event of breaches of duty by the Cli­ent, in par­ti­cu­lar default of pay­ment, the Con­trac­tor is ent­it­led, even wit­hout set­ting a dead­line, to demand the return of the deli­very item or the new pro­duct and/or to can­cel the con­tract; the Cli­ent is obli­ged to return the same. 

VI. Notification of defect 

  1. Any noti­fi­ca­ti­on of defect must always be made imme­dia­te­ly in wri­ting, pre­cise­ly sta­ting the com­p­laint to be reco­gnis­ed as such.
  2. If the buy­er has accep­ted the goods after inspec­tion, any noti­fi­ca­ti­on of defect - with the excep­ti­on of hid­den defec­ts - is exclu­ded.
  3. Claims for defec­ts do not exist with insi­gni­fi­cant devia­ti­on from the agreed qua­li­ty or with insi­gni­fi­cant impairment of usa­bi­li­ty, natu­ral wear or tear as well as dama­ge, cau­sed after the trans­fer of risk by faul­ty or negli­gent hand­ling, exces­si­ve load, unsui­ta­ble ope­ra­ting equip­ment, defec­tive con­struc­tion work, unsui­ta­ble ground or spe­cial exter­nal influ­en­ces that are not spe­ci­fied in the con­tract. If the purcha­ser or a third par­ty car­ri­es out improper repairs or chan­ges, claims for defec­ts can­not be asser­ted for the­se and the resul­ting con­se­quen­ces. 

VII. Supplementary performance 

  1. In any case, the Con­trac­tor is ent­it­led to choo­se bet­ween defect remo­val and new deli­very (new ser­vice). The Con­trac­tor must always be given the oppor­tu­ni­ty for sup­ple­men­ta­ry per­for­mance wit­hin a rea­son­ab­le peri­od of time. If the sup­ple­men­ta­ry per­for­mance fails, the Cli­ent is ent­it­led - wit­hout pre­ju­di­ce to any claims for damages - to redu­ce the pri­ce or can­cel the con­tract. App­li­ca­ti­on of Sec­tion 478 I BGB (Ger­man Civil Code) remains unaf­fec­ted.
  2. If the Cli­ent wants to claim damages ins­tead of the per­for­mance or to per­form on his own, then the rework is con­si­de­red fai­led only after the second unsuc­cess­ful attempt. The legal cases of dis­pensa­bi­li­ty of the dead­line spe­ci­fi­ca­ti­on remain unaf­fec­ted.
  3. Claims of the purcha­ser for the expen­ses incur­red by sup­ple­men­ta­ry per­for­mance, in par­ti­cu­lar trans­port, tra­vel, labour and mate­ri­al costs, are exclu­ded inso­far as the expen­ses increa­se, becau­se the goods deli­ve­r­ed by us are sub­se­quent­ly moved to a loca­ti­on other than the purchaser’s branch, unless the ship­ment com­plies with its inten­ded use. 

VIII. Limitation of the Contractor’s liability 

  1. The Con­trac­tor is liable in cases of intent or gross negli­gence of the Con­trac­tor or a rep­re­sen­ta­ti­ve or vica­rious agent the­re­of as well as cul­p­a­bly cau­sed inju­ry to life, limb or health in accordance with sta­tuto­ry pro­vi­si­ons. Howe­ver, in cases of gross negli­gence, the lia­bi­li­ty of the Con­trac­tor shall be limi­ted to the fore­see­ab­le dama­ge typi­cal to the con­tract, unless any excep­tio­nal case other than that listed in p. 1 or 3 of this para­graph is pre­sent at the same time. Inci­dent­al­ly, the Con­trac­tor shall only be liable pur­suant to the Pro­duct Lia­bi­li­ty Act, the cul­p­a­ble bre­ach of essen­ti­al con­trac­tu­al obli­ga­ti­ons or inso­far as the sel­ler has frau­du­lent­ly con­cea­led the defect or has assu­med a gua­ran­tee for the qua­li­ty of the deli­very item. Howe­ver, the claim for damages for the bre­ach of essen­ti­al con­trac­tu­al obli­ga­ti­ons is limi­ted to the fore­see­ab­le dama­ge typi­cal to the con­tract, unless any excep­tio­nal case other than that listed in p. 1 or 2 of this para­graph is pre­sent at the same time.
  2. The pro­vi­si­ons of the above para­graph 1 app­ly to all claims for damages (in par­ti­cu­lar for damages in addi­ti­on to per­for­mance and damages in lieu of per­for­mance), for wha­te­ver legal rea­son, in par­ti­cu­lar due to defec­ts, bre­ach of duties under the obli­ga­ti­on or tort. They also app­ly to the claim for com­pen­sa­ti­on for was­ted expen­dit­u­re. The lia­bi­li­ty for default, howe­ver, is deter­mi­ned accord­ing to Sec­tion IX, while the lia­bi­li­ty for ina­bi­li­ty to per­form accord­ing to Sec­tion X.
  3. Any chan­ge to the bur­den of pro­of to the detri­ment of the Cli­ent is not asso­cia­ted with the above regu­la­ti­on. 

IX. Limitation of liability due to delay in delivery 

  1. The Con­trac­tor is liable for delay of per­for­mance in cases of cul­p­a­ble intent or gross negli­gence or his rep­re­sen­ta­ti­ve or vica­rious agent as well as cul­p­a­bly cau­sed inju­ry to life, limb or health in accordance with sta­tuto­ry pro­vi­si­ons. In cases of gross negli­gence, howe­ver, the lia­bi­li­ty of the Con­trac­tor is limi­ted to the fore­see­ab­le dama­ge typi­cal to the con­tract. Out­si­de of the cases of para­graphs 1 and 2, the Contractor’s lia­bi­li­ty for damages due to default shall be limi­ted to a total of 5% for damages in addi­ti­on to per­for­mance and to a total of 10% of the value of the delivery/service for damages in lieu of per­for­mance (inclu­ding reim­bur­se­ment of was­ted expen­dit­u­re). Fur­ther claims of the Cli­ent are exclu­ded - even after expi­ry of the dead­line for per­for­mance by the Con­trac­tor. The restric­tion does not app­ly to cul­p­a­ble vio­la­ti­on of essen­ti­al con­trac­tu­al obli­ga­ti­ons. Howe­ver, the claim for damages for the cul­p­a­ble bre­ach of essen­ti­al con­trac­tu­al obli­ga­ti­ons is limi­ted to the fore­see­ab­le dama­ge typi­cal to the con­tract, unless ano­t­her case accord­ing to p. 1 is also pre­sent at the same time. The right of the Cli­ent to can­cel the con­tract remains unaf­fec­ted.
  2. Any chan­ge to the bur­den of pro­of to the detri­ment of the Cli­ent is not asso­cia­ted with the above regu­la­ti­ons. 

X. Limitation of liability in case of inability to deliver 

The Con­trac­tor is liable for any ina­bi­li­ty to deli­ver goods/services in cases of intent or gross negli­gence of the Con­trac­tor or a rep­re­sen­ta­ti­ve or vica­rious agent the­re­of, as well as cul­p­a­bly cau­sed inju­ry to life, limb or health in accordance with sta­tuto­ry pro­vi­si­ons. In cases of gross negli­gence, howe­ver, the lia­bi­li­ty of the Con­trac­tor is limi­ted to the fore­see­ab­le dama­ge typi­cal to the con­tract, unless any excep­tio­nal case other than that spe­ci­fied in para­graph 1 is pre­sent at the same time. Out­si­de of the cases of para­graphs 1 and 2, the Contractor’s lia­bi­li­ty for damages due to ina­bi­li­ty to per­form and for reim­bur­se­ment of was­ted expen­dit­u­re shall be limi­ted to a total of 10% of the value of the delivery/service. Fur­ther claims of the Cli­ent due to ina­bi­li­ty to deli­ver are exclu­ded - even after expi­ry of the dead­line for per­for­mance by the Con­trac­tor. The right of the Cli­ent to can­cel the con­tract remains unaf­fec­ted. Any chan­ge to the bur­den of pro­of to the detri­ment of the Cli­ent is not asso­cia­ted with the above regu­la­ti­ons. 

XI. Cancellation 

The Cli­ent may can­cel the con­tract wit­hin the scope of the sta­tuto­ry pro­vi­si­ons only if the Con­trac­tor is respon­si­ble for the bre­ach of duty. In the case of breaches of duty, the Cli­ent has to decla­re wit­hin a rea­son­ab­le peri­od of time after the request by the Con­trac­tor whe­ther he will can­cel the con­tract due to the bre­ach of duty or insist on the deli­very. In case of defec­ts, the sta­tuto­ry pro­vi­si­ons app­ly to can­cel­la­ti­on of the con­tract. 

XII. Statutory limitation 

  1. Claims for defec­ts shall be sta­tu­te-bar­red twel­ve mon­ths after deli­very of the goods by us to our custo­mer. The sta­tuto­ry limi­ta­ti­on peri­od app­lies to claims for damages in case of intent and gross negli­gence as well as inju­ry to life, body and health, which are based on an inten­tio­nal or negli­gent bre­ach of duty by the user. The­se dead­lines app­ly if the law pur­suant to Sec­tion 438 sub­sec­tion 1 no. 2 BGB (buil­dings and mate­ri­als for buil­dings), Sec­tion 479 sub­sec­tion 1 BGB (recour­se claim) and Sec­tion 634a sub­sec­tion 1 BGB (con­struc­tion defec­ts) spe­ci­fies man­dato­ry lon­ger dead­lines. Our con­sent must be obtai­ned befo­re retur­ning the goods.
  2. The sta­tuto­ry limi­ta­ti­on peri­od begins with the deli­very for all claims, the accep­tan­ce for deli­ver­a­bles. The sta­tuto­ry limi­ta­ti­on peri­ods accord­ing to para. 1 also app­ly to all claims for damages against the Con­trac­tor that are rela­ted to the defect - irre­spec­tive of the legal basis of the claim. The sta­tu­te of limi­ta­ti­on of para­graph 1 clau­se 1 app­lies to claims for damages of any kind against the con­trac­tor that are not rela­ted to the defect.
  3. The limi­ta­ti­on peri­ods accord­ing to para­graphs 1 and 2 app­ly with the fol­lo­wing pro­vi­so:
    1. The limi­ta­ti­on peri­ods shall gene­ral­ly not app­ly in the case of intent or frau­du­lent con­ce­alment of a defect or inso­far as the sel­ler has assu­med a gua­ran­tee for the qua­li­ty of the deli­very item.
    2. In addi­ti­on, the limi­ta­ti­on peri­ods for claims for damages do not app­ly in cases of inju­ry to life, limb or health or of exemp­ti­on, for claims under the Pro­duct Lia­bi­li­ty Act, for a gross­ly negli­gent bre­ach of duty or for bre­ach of essen­ti­al con­trac­tu­al obli­ga­ti­ons.
  4. Unless express­ly spe­ci­fied other­wi­se, the sta­tuto­ry pro­vi­si­ons on the com­men­ce­ment of the limi­ta­ti­on peri­od, the sus­pen­si­on of expi­ry, the sus­pen­si­on and the new start of peri­ods remain unaf­fec­ted.
  5. Any chan­ge to the bur­den of pro­of to the detri­ment of the Cli­ent is not asso­cia­ted with the above regu­la­ti­ons. 

XIII. Damages 

  1. If the deli­very of the ship­ment is delay­ed at the request of the buy­er for more than two weeks after the agreed deli­very date or, if no exact deli­very date was agreed, after the seller’s noti­fi­ca­ti­on of readi­ness for deli­very, the sel­ler may char­ge a flat sto­rage fee amoun­ting to 1% of the pri­ce of the deli­very item, but not more than 10%, each month (pos­si­b­ly pro rata tem­po­ris). The buy­er is allo­wed to pro­ve that the sel­ler did not incur any dama­ge or incur­red only signi­fi­cant­ly lower dama­ge. The sel­ler is allo­wed to pro­ve that a hig­her dama­ge has occur­red.
  2. In the event of non-ful­filment of the con­tract by the Cli­ent, the Con­trac­tor is ent­it­led to claim 20% of the purcha­se pri­ce as damages. The buy­er is allo­wed to pro­ve that the sel­ler did not incur any dama­ge or incur­red only signi­fi­cant­ly lower dama­ge. The sel­ler is allo­wed to pro­ve that a hig­her dama­ge has occur­red.
  3. In the case of late pay­ment, the Con­trac­tor is ent­it­led to demand default inte­rest in the amount of 9 per­cen­ta­ge points above the base rate (Sec­tion 247 BGB). The Cli­ent is allo­wed to pro­ve that the sel­ler did not incur any dama­ge or incur­red only signi­fi­cant­ly lower dama­ge. The Con­trac­tor is allo­wed to pro­ve that hig­her dama­ge has occur­red. 

XIV. Place of performance; venue 

  1. The place of per­for­mance for both par­ties is the regis­te­red office of Fenecon GmbH.
  2. If the custo­mer is a mer­chant, a legal enti­ty under public law or a public spe­cial fund, the place of juris­dic­tion for all dis­pu­tes ari­sing from the con­trac­tu­al rela­ti­ons­hip, also for bill of exchan­ge and che­que claims, is the regis­te­red office of Fenecon GmbH.
  3. This con­tract and the legal rela­ti­ons­hip bet­ween Fenecon GmbH and the con­trac­ting par­ty are gover­ned by the laws of the Federal Repu­blic of Ger­ma­ny, exclu­ding the pro­vi­si­ons of inter­na­tio­nal pri­va­te law (con­flict of laws) and the UN Con­ven­ti­on on Con­trac­ts for the Inter­na­tio­nal Sale of Goods. 

XV. Final provisions 

The inva­li­di­ty of indi­vi­du­al pro­vi­si­ons of the­se terms of deli­very and pay­ment shall not affect the vali­di­ty of the remai­ning pro­vi­si­ons of the­se terms of deli­very and pay­ment. The par­ties are obli­ged to replace an inef­fec­tive pro­vi­si­on with a pro­vi­si­on that achie­ves the pur­po­se inten­ded by the inva­lid pro­vi­si­on in a legal­ly per­mis­si­ble man­ner, or comes as clo­se as pos­si­ble to this pro­vi­si­on.