General Terms of Sale and Service

General Terms of Sale and Service of Frankenstein Präzision GmbH & Co. KG
(Last updated: April 2015)

§ 1 Scope of Validity
(1)  Our terms and conditions apply exclusively and without additional explicit reference to all future deliveries of goods and services that we provide to the customer. We do not recognize any conflicting or deviating terms and conditions of the customer unless we have expressly stated our agreement to their validity in writing. This also applies where we provide our service without reservation while aware of the customer’s conflicting or deviating terms and conditions.
(2)  Our terms and conditions apply only in respect of entrepreneurs, legal persons under public law and special funds under public law as per section 310 para. (1) of the German Civil Code (BGB)..

 

§ 2 Offer to Contract and Conclusion of Contract
(1)  Our offers are non-binding, unless the designation ‘binding’ is explicitly stated. The customer is bound to its order for two weeks. The contract is concluded upon our written acceptance of the order, confirmation of the order or dispatch of goods, at our discretion.
(2)  The customer agrees that we may collect information about its creditworthiness and financial circumstances. If such information turns out to be negative, we reserve the right to process or supply the goods only against pre-payment, even if this has not been expressly agreed. If the order is to be financed by a third party, we may also request evidence of the financing before we fulfil the order. Any statutory right of retention due to us is not restricted by the provisions above.
(3)  Illustrations, descriptions and dimension and quantity specifications are only binding where these were agreed with the customer in writing in advance. The condition of the performance to be executed by us is determined solely by the written contractual documents. We reserve the right to make modifications to the execution and materials, provided that these are not fundamental in nature and do not limit the contractually agreed purpose of the delivery for the customer.
(4)  If the customer wishes to change the scope of the services that we contractually agree to provide, it shall communicate this request for the change to us in writing. The costs for any expense thus incurred (e.g. preparation of an amendment proposal, down times, etc.) is borne by the customer, provided that we agree to the change request.

 

§ 4 Prices and Payment Terms
Except where otherwise agreed, our prices are ex works, excluding packaging; packaging is invoiced separately.
(1)  Statutory sales tax is not included in our prices; this is added to the invoice separately on the invoice date at the statutory rate in force.
(2)  The deduction of early payment discount requires special agreement in writing.
(3)  Unless otherwise agreed, the purchase price (without discount) is due for payment within 14 days of the invoice date. The statutory provisions apply in respect of the consequences of payment arrears.

 

§ 5 Delivery Times, Periods and Partial Deliveries
(1)  Delivery periods and dates that are binding require our confirmation in writing; this can also be provided by fax or e-mail. Periods begin from the time of receipt of order confirmation by the customer and for the purpose of purchasing contracts are deemed to refer to the time of dispatch from our works and for service contracts to the time of completion of the service. The commencement of the time period specified requires that all technical questions are clarified, that all the obligations of the customer are fulfilled punctually and that all documents and authorizations to be provided by the supplier are submitted. Any changes to the execution requested by the customer after conclusion of contract will prolong the delivery period and dates accordingly. We reserve the right to plead non-performance of the contract.
(2)  Unforeseen circumstances that are beyond our control (in particular strikes, force majeure and delayed deliveries by our own suppliers) will prolong the agreed delivery periods and dates by the duration of the delay, plus a reasonable start-up period. The customer will be notified of these circumstances without delay. Should the delay last for more than three months, the customer will be entitled, after allowing a reasonable grace period, to withdraw from the contract in so far as it has still not been executed. We are also entitled to this right, in which case the obligation of a grace period does not apply.
(3)  If we are released from our performance obligations under the foregoing paragraph or if the delivery period or agreed date of release from obligation is prolonged, the customer has no recourse to compensation for damages.
(4)  Except where otherwise contractually agreed, partial deliveries by us are also permitted, as are deliveries before the end of the agreed delivery period.
(5)  In the absence of other agreements, call-off orders agreed with the customer must be executed no later than twelve months by means of call-off orders placed by the customer. If this does not happen, we are entitled to pass on to the customer any price rises that have occurred in the meantime.
(6)  If the customer is in default of acceptance or if it culpably breaches other obligations to cooperate, we are entitled to demand compensation for the damage thus incurred to us, including any additional expenditure. We reserve the right to further rights or claims. The risk of accidental destruction or accidental deterioration of the goods passes to the customer at the time at which it enters into default of acceptance or payment.
(7)  We are liable under the statutory provisions to the extent that the contract under which liability is established is a transaction for delivery on a fixed date pursuant to section 286 para. (2) no. 4 of the German Civil Code (BGB) or section 376 of the German Commercial Code (HGB). We are also liable under the statutory provisions where, as a consequence of a default in delivery that is our fault, the customer is entitled to assert that its interest in the continued performance of the contract has ceased.
(8)  We are further liable under the statutory provisions where the default in delivery arises from breach of contract due to intent or gross negligence on our part; the culpability of our representative or vicarious agent is attributable to us. Where the default in delivery has resulted from breach of contract due to intent or gross negligence on our part, our liability for compensation for damages is limited to the typical and foreseeable level of such damage.
(9)  We are also liable under the statutory provisions where a default in delivery that is our fault arises from culpable breach of a significant contractual obligation; in this case, however, our liability for compensation for damage is limited to the typical and foreseeable level of such damage. Significant contractual obligations are those that arise from the nature of the contract in question, the breach of which jeopardizes the achievement of the contractual purpose.
(10) Otherwise, we are liable in the event of default of delivery for each full week of delay on the basis of a fixed rate of delay compensation amounting to 0.5% of our order value (in respect of the late delivered or processed batch) but not exceeding 5% of the order value (in respect of the late delivered or processed batch).

 

§ 6 Transfer of Risk
(1)  Unless otherwise agreed, delivery is ‘ex works’. In all cases the risk – including the risk of seizure – is transferred, including with freight-free delivery, to the customer at the time when the delivery goods are passed to the transportation contractor. This also applies where we provide the transportation ourselves. If dispatch is delayed for reasons that lie in the customer’s sphere, the risk is transferred to the customer at the time when notification is issued that the goods are ready for shipment.
(2)  In the absence of any agreement to the contrary, we will decide on the type and method of packaging and shipment. Should the customer so request, we will arrange transport insurance for the delivery at its expense.
(3)  In the case of the supply of work, the risk is transferred to the customer at the time of acceptance.

 

§ 7 Lien and Retention of Title
(1)  We are entitled to a lien for security against all claims for the purposes of handling and processing goods and parts entrusted to us by the customer.
The claims of the customer from the resale of the contractual goods are assigned to us from now.
If the contractual goods are resold together with other goods, the claim arising from the resale is assigned to us in the proportion of the claim due to us against the customer to the invoice value of the other goods.
The customer must notify us immediately of any seizure or other impairments by third parties.

If we sell or deliver goods that are our property to the customer, these remain our property until all claims that are due to us arising from the business relationship with the customer are satisfied. If the customer acts in breach of the contract, in particular if it defaults in payment, we are entitled to take the goods back, which would be viewed as withdrawal from the contract.
In the event of seizure or other interventions by a third party, the customer must notify us immediately so that we can initiate a third-party action pursuant to section 771 of the Code of Civil Procedure (ZPO).

(2)  ) The customer may resell goods sold to it by us only in the normal course of business and provided that it is not in default towards us; however, the customer hereby assigns all claims to the amount of the final invoice value (plus sales tax) to us that arise to it from the resale to its customers or third parties. This applies whether the goods are resold following further processing or not. The customer remains authorised to collect this claim after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. We undertake, however, not to do this so long as the customer meets its payment obligations arising from the proceeds earned, does not default on payment and in particular, no application for the opening of insolvency proceedings has been filed against it and payments have not been suspended. If this is the case, however, we may demand that the customer disclose to us the assigned claims and the respective debtors, provide us with all the information required for collection, hand us the associated documents and notify the debtors (third parties) of the assignment.

Any processing or transformation of the goods by the customer is always done on our behalf. If the goods are processed along with other objects that are not our property, we acquire co-ownership of the new product in the proportion of the value of the goods (final invoice value plus sales tax) to that of the other processed objects at the time of the processing. Otherwise, the same applies to the object arising from processing as to the goods supplied under retention of title.
If the goods are inseparably mixed with other objects that are not our property, we acquire co-ownership of the new product in the proportion of the value of the goods to that of the other mixed goods at the time of the mixing. If the mixing occurs in such a way that the customer’s object is seen as the main object, it will be deemed to be agreed that the customer transfers co-ownership to us in the relevant proportion. The customer holds the sole or shared ownership thus arising on our behalf.
The customer shall also, by way of security for our claims against it, assign to us the claims that arise from the association of the goods under retention of title with a piece of land or a building in respect of a third party.

(3)  We undertake to release, at the customer’s request, the securities due to us where the realisable worth of the securities exceeds the value of the claims to be secured by more than 10%; the choice of the securities to be released will be made by us.

 

§ 8 Liability for Defects; Compensation for Damages
(1)  Claims for damages by the customer are valid only in so far as it has properly performed its duty of inspecting the goods and notifying of defects as per section 377 of the Commercial Code (HGB). For the supply of work, section 377 of the Commercial Code (HGB) applies accordingly..
(2)  We offer no warranty for the sale of used goods unless we accept liability for fraudulent intent or as per para. (6) below. In the sale of new items or defective processing, the customer is initially limited to claiming supplementary performance, in which case we reserve the right to choose the type of supplementary performance. If we fail in the supplementary performance, the customer has the right to reduce the amount of payment due or to withdraw from the contract, at its discretion.
(3) We are entitled to decline to provide supplementary performance if it entails unreasonable costs to us. In place of such supplementary performance, the customer may request either a reduction in the agreed price or for the contract to be annulled.
(4)  We are liable under the statutory provisions where the customer asserts claims for compensation for damage that arises from intent or gross negligence by us or by our representatives or vicarious agents. If there has been no wilful breach of contract, the liability for compensation is limited to the foreseeable level of damage that would typically occur.
(5) We are liable under the statutory provisions where we, our representatives or vicarious agents are culpably in breach of a significant contractual obligation; in this case again, however, our liability for compensation is limited to the foreseeable level of damage that would typically occur. Significant contractual obligations are those that arise from the nature of the contract in question, the breach of which jeopardises the achievement of the contractual purpose.
(6)  Liability for injury to life, limb or health are not affected; this also applies to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
(7)  Liability is excluded except where regulated otherwise in the foregoing.
(8) The period of limitation for claims in respect of defects is 12 months, calculated from the time of transfer of risk.
The statutory period of limitation in the case of a delivery recourse claim under sections 478 and 479 of the German Civil Code (BGB) and in cases under sections 438 para. (1) no. 2 or 634a para. (1) no. 2 remains unaffected.
(9)  Any additional liability for compensation for damages other than that provided for in the foregoing paragraphs is excluded, irrespective of the legal nature of the claim asserted. This applies in particular for claims arising from errors made in conclusion of contract or due to other breaches of obligation or to tortious claims for compensation for material damage under section 823 of the German Civil Code (BGB). This restriction also applies where the customer claims, in lieu of compensation for damage, the refund of useless expenditure rather than performance. Where our liability for damage is excluded or limited, this also applies in respect of personal liability for damage of our employees, representatives and vicarious agents.
(10)  Damages due to delay (default) are not covered by the foregoing paragraphs and are treated separately in section 5 paras. (7) to (10).

 

§ 9 Software and Liability for Data Loss
(1)  Where we are obliged to compensate for damage under the foregoing section 8, our liability for loss of data is limited to the typical cost of data recovery that would be incurred if complete backup copies of the entire data, structures and programs are made on a regular basis.
(2)  If the use of software products of third parties is included in our scope of services, the customer hereby acknowledges the terms of licensing and use of the copyright holder of the software. We will make these available to the customer on request. We are not responsible for malfunctions that arise in connection with operating system environments and configurations installed on the customer’s equipment or that are brought into connection with these. Our liability is also excluded in cases of incompatibility of the software program with the customer’s hardware and/or software unless we have performed consulting services in this regard by written agreement.

 

§ 10 Assignment, Offsetting and Retention
(1) The customer may not assign claims asserted against us or rights arising from our business relationship to third parties or transfer them to third parties without our consent. The same applies in respect of claims and rights arising against us directly by operation of law.
(2) The customer only has the right to offset where its counterclaims are legally established, uncontested or recognized by us.
(3) The customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship as the demand for payment.

§ 11 Subcontracting to Third Parties
(1)  We are entitled to forward the order or parts of the order to third parties, including without the customer’s prior consent.
(2)  In these cases we are liable for the third party to the same extent as for one of our own vicarious agents.

 

§ 12 Place of Performance, Place of Jurisdiction and Applicable Law
(1)  The place of performance and place of jurisdiction for disputes with business persons, legal persons under public law and special funds under public law are our registered office. We are further entitled to bring action against the customer at its registered office.
(2)  The governing law is the law of the Federal Republic of Germany; the provisions of the UN Sales Convention (CISG) do not apply.
(3)  Should one of the above provisions be or become ineffective, the validity of the remaining provisions is not affected.