1. General Information, Area of validity
1.1 The following conditions apply for all quotations, deliveries and services from purchase agreements, leases or other contracts including those resulting from future concluded business transactions and continuing or recurring obligations. Deviating, contradictory or supplementary terms and conditions belonging to the Customer are not recognised unless Friedrich Ossenberg-Schule GmbH + Co KG (hereinafter also called FOS) explicitly agreed to their validity in writing. The general contract conditions apply even in the event that FOS accepts performance from a Customer without reservations in spite of knowing the Customer has contradicting or deviating conditions.
2. Proposals, Order Confirmations
2.1 Proposals from FOS are subject to change without notice, if nothing to the contrary is explicitly agreed. The Customer is bound to the placed order for three weeks. Orders are only deemed to have been accepted if FOS has confirmed them in writing.
2.2 We reserve the right to modify models, designs or equipment provided the subject matter of the contract does not suffer any changes that are intolerable to the customer. FOS or its suppliers have the sole entitlements such as copyrights, ancillary copyrights etc.
3. Custom fabrications
3.1 In the event of orders for custom fabrications, all the details concerning the workmanship, measurements etc require the written confirmation of the contracting parties without any exceptions. In the event of deliveries in accordance with samples, drawings or customer details, the customer is held responsible for any third party copyright violations and the accuracy of his details. The guidelines supplied by the customer remain his property. FOS will refrain from registering any protective rights.
3.2 FOS will only utilise any documents (these include samples, models and data) and expertise, which it receives as a result of the business relationship, for the mutually pursued purposes and will maintain confidentiality with regard to these towards third parties with the same care if the Customer indicates these are confidential or if it becomes evident that these must be treated as being confidential. This does not apply to documents and know-how that is generally known or which was already known at the time of receipt of the documents or if FOS receives authorisation later on to pass these on or if they become generally known subsequently.
4.1 If no remuneration is expressly agreed then the prices that are valid at the time FOS submits its proposal will apply.
4.2 The prices are understood to exclude transit packaging from the main sales outlet.
4.3 The agreed prices are understood to be subject to the legally valid rate of added value tax (Mehrwertsteuer) at the time of performance or delivery.
5.1 We reserve the right to make production-related overshipments or short shipments not exceeding 10%, which are normal in the industry. All tools remain the property of FOS and in their possession, even if the Customer has paid for a proportion of the costs.
5.2 Deadlines are only binding if they were expressly agreed in writing as fixed deadlines. The delivery period commences on the date of the Order Confirmation by FOS.
5.3 In the event that FOS does not comply with the delivery period, the Customer can refuse performance of the contract after cautioning and setting an appropriate period of grace. In that case, claims for compensation for damages by the Customer are excluded, except if the delay can be attributed to intent or grossly negligent behaviour by FOS or a legal agent or an agent of vicarious liability. In the event of an Act of God, such as mobilization, war, revolt, natural catastrophes, etc, FOS is entitled to postpone its services for the duration of the hold-up plus an appropriate subsequent lead-time or if performance actually is or becomes economically impossible, to withdraw from the contract. This also applies in commercial transactions, if FOS is not supplied within an appropriate period and can prove that FOS itself had signed a contract for the subject matter of the contract with a supplier (covering transaction). The Customer is not authorised to withdraw from the contract in any of the cases mentioned in this section, if he is personally responsible for the obstacles.
5.4 In the case of contracts for ongoing deliveries, each part delivery will be considered as a separate transaction.
5.5 Part shipments are permitted.
5.6 If a different type than the subject matter of the ordered product is demanded prior to delivery by the Customer and FOS agrees to the Customer’s request, then the time of the delivery period will be interrupted. The delivery will then extend itself by the period required for the change in performance and runs to newly agreed deadline.
5.7 If the Customer is in breach of delivery acceptance, FOS is entitled after setting a period of grace to refuse performance of the contract and to demand compensation for damages. The compensation for damages equals 30% of the agreed price, although the Customer has the right to prove that no damages or lower damages resulted. FOS then has the right to use the goods elsewhere and to use an appropriate new deadline to supply the Customer.
5.8 If FOS ships the subject matter of the contract at the Customer’s request, then this occurs at the Customer’s risk. The risk is transferred to the Customer once the goods are made avail able to the forwarding agent, the freight carrier, or another person intended to perform the delivery. In the case of delivery and installation by FOS, the risk transfers to the Customer upon installation. This also applies to part shipments or shipments where there is no freight involved.
5.9 If shipping is delayed at the request of the Customer, then the delayed delivery acceptance commences when the Customer receives FOS’s written notification that the goods are ready to be shipped. In that case the risk of damages or the loss of the purchased item transfers to the Customer at the time the Customer is notified that the goods are ready to be shipped. The same applies in the case of a delayed acceptance. Two weeks after notification that the goods are ready for shipment, FOS is furthermore entitled to invoice the Customer for the costs incurred for storing the goods on their premises; the cost for this equals at least 1% of the invoice amount per month. If required by the Customer, FOS will insure the items against destruction, loss and damages for the duration of their storage at its premises or at the premises of a third party.
5.10 FOS reserves the right to select the shipping mode, and FOS can also instruct a external forwarding agent, if the Customer has not reached a decision in time before the delivery period has expired.
6.1 Payments may only be made directly to FOS or to persons FOS has empowered to collect payments in writing. Invoices are due for payment on the date indicated thereon or if no such date is indicated within 14 days of the invoice date and must be paid to the company as a net amount. Payments are deemed as having been made in that location in which FOS has access to the amount. Cheques or drafts are only accepted as payment and are only considered to be a payment after they are redeemed. Any discount charges or charges will be the responsibility of the customer. Payments may only be made in the agreed currency.
6.2 Spare parts and repairs are delivered or performed on a net cash or COD (cash on delivery) basis.
6.3 FOS is only incumbent on the provision that incoming payments will be charged against several demands, irrespective of the Customer provision.
6.4 Partial deliveries and subsequently delivered additional equipment are all invoiced separately. The General Terms of Business apply for these.
6.5 In the event of a payment default by the Customer, FOS is entitled to charge late payment interest starting from the day the payment was due in the amount of the bank interest plus VAT calculated by FOS, but at least 8% over the base interest rate of the European Monetary Union, irrespective of any other legal rights. If the purchaser falls behind in a payment, FOS has the right notwithstanding any other rights to postpone performance of the obligations under the complete business relationship with the Customer with the exception of rectifying any faults or of withdrawing from the contract and charging for the costs or demanding compensation for payment instead of performance. In such a case, all the payment obligations towards FOS are immediately due for payment, even those from other contracts, without consideration of the term or any bills of exchange that were accepted. In the case of payment default by the Customer, FOS is also entitled to refuse further deliveries from this or another contract or to make further deliveries subject to prepayment or demand the provision of security, notwithstanding any further legal rights. If the financial situation of the customer or of an acceptor of a draft deteriorates by the time the payment is due or during the term of the draft, or if FOS receives an unfavourable report about the Customer or acceptor of the draft, then FOS can demand immediate payment. This does not affect FOS’s rights under § 321 BGB.
7. Reserved ownership
7.1 FOS will be provided with the following security until all the demands are satisfied (including all the outstanding balances and revolving account balances); these will be released on demand by FOS at its discretion provided the value of the security permanently exceeds the value of the demands by more than 20%, to which FOS is entitled now or in future for any legal reason: The delivery item remains the property of FOS until all FOS’s entitlements under the respective contract are completely fulfilled. The Customer may re-sell the goods with reserved ownership during the normal course of business. He is not entitled to transfer the title of the security or pledge the goods with reserved ownership as collateral. Reselling the goods is only permitted if the reserved ownership is also transferred. In the event that the Customer does not transfer the reserved ownership along with the sale, then he must assign his demand towards the purchaser to FOS. This also applies to account demands from a revolving account, if the Customer has agreed such an account with his buyer. FOS hereby accepts these assignments. FOS can demand for the Customer to notify FOS of the assigned demands and the names of principals involved. FOS is then entitled to disclose the assignment at its discretion. In the event of further processing on the subject matter of the contract, FOS is considered to be the manufacturer under § 950 I BGB. If the purchased item is combined with other items of the Customers, FOS acquires proportional joint-ownership in the new item. If another item is considered to be the main item in the case of processing, then it is considered agreed upon that the Customer will grant FOS joint-ownership proportional to the value of the item with reserved ownership and the value of the new item. FOS must be notified immediately in the event of any execution of seizure, confiscation or other measures by third parties. The Customer will be responsible for the costs of such measures. In the case of violations against the duty of notification. The Customer must personally undertake all the steps required to cancel or defend such access and claims. Otherwise, he must support FOS in any way to exercise their rights. The Customer will be responsible for the costs of such measures. In the event of payment delays, even those from other or future deliveries or services and in the case of third party seizure of the goods with reserved ownership or the dwindling of the Customer’s assets, FOS is entitled to enter the business premises of the Customer and to remove the goods with reserved ownership to enforce the reservation of ownership. The bailiff has the power to hand over the goods to FOS after the execution of seizure is cancelled.
7.2 In the case of payment delays, FOS can demand the return of the item for which the reserved ownership exists within an appropriate period of time and dispose of the item elsewhere or supply another new item after an appropriate period of time upon receiving payment from the customer.
7.3 The Customer is obliged to store the goods belonging to FOS in an appropriate manner and to insure them properly.
7.4 During the period of reserved ownership, the purchased item may only be used inside the federal region to which it was shipped and may not be exported from the aforementioned region.
7.5 Taking back the goods does not indicate a withdrawal from the contract unless FOS has explicitly stated this. Taking back the goods is only done to safeguard the claims of FOS. The Customer continues to be responsible for performance of the contract. The costs of taking back and utilizing the purchased item are the responsibility of the Customer. The Customer has the obligation of maintaining the proper condition of the purchased item during the period of reserved ownership.
8. Delay, Impossibility
8.1 If FOS culpably falls behind in surrendering a subject matter of the contract, the Customer can claim compensation for losses occasioned by the delay or default in the amount of 0.5% for every complete week to a maximum of 5% of the value of the subject matter of the contract affected by the loss, providing the Customer can credibly show that he suffered a loss as a result of the delay.
8.1 If FOS culpably falls behind in surrendering a subject matter of the contract, the Customer can claim compensation for losses occasioned by the delay or default in the amount of 0.5% for every complete week to a maximum of 5% of the value on the subject matter of the contract affected by the loss, providing the Customer can credibly show that he suffered a loss as a result of the delay.
8.3 All further entitlements for damages by the customer are excluded in all cases of delayed performance or non-performance, even when the period of grace given to FOS has expired. This does not apply in cases where intent or gross negligence is responsible.
8.4 In the event of non-delivery by suppliers, both parties are entitled to withdraw from the contract. FOS is only released from its delivery obligation if FOS can prove that the item was actually ordered from the supplier.
9.1 The warranty period is limited to 1 year. FOS will rectify any faults free of charge within this period, provided the Customer has advised FOS of the faults in a manner that can be easily understood. FOS will rectify the fault at its discretion through rectifying the fault or making a new delivery. If more than two attempts to repair the fault fail, the Customer has the right at his discretion to reduce the compensation, withdraw from the contract, or, if conditions exist, to demand compensation for damages instead of performance.
9.2 Further claims by the Customer against FOS are excluded, especially claims for compensation of damages, which did not occur on the contract item itself. This does not apply in cases where intent or gross negligence or the non-existence of a promised characteristic is responsible.
9.3 The guarantee for defects does not refer to natural wear on items such as wearing parts like rubber, fuses, batteries, ribbons, etc. Likewise, it does not refer to damages, which occurred after the transfer of risk as a result of incorrect or negligent handling, excessive use, inappropriate operating materials or chemical, electro-chemical, electric and atmospheric influences.
9.4 The warranty lapses with regard to those faults that are attributable to changes or enhancements made to the subject matter of the contract by the Customer himself, except if the Customer can prove that such modifications or enhancements were not the cause of the fault. If no fault can be discovered after the Customer reported the fault, the Customer will bear the costs of the examination, if he is a businessman.
9.5 Complaints due to incomplete or incorrect deliveries, as well as obvious faults, must be reported in writing within 10 days of receipt of the shipment.
9.6 If the Customer is a businessman, then he is obliged to examine the shipment immediately for any noticeable faults, and report these within 48 hours in writing to FOS.
9.7 In the event that faults exist, FOS will repair the contract item for which there has been a complaint either at its offices or at the setup location intended when the contract was concluded. The Customer will be responsible for any increased costs, which are incurred as a result of the subsequent movement of the item to another location.
9.8 If one of the units, from another supplier, but supplied by FOS turns out to be faulty then the Customer is obliged to notify the supplier of this without initially resorting to court action. If the supplier does not respond then the Customer can take recourse against FOS. The Customer is entitled to make a repeated request to the supplier, if FOS provides information that could presumably cause the supplier to change his behaviour.
9.9 If claims due to breaches of German industrial property rights are enforced against the Customer due to products supplied in accordance with these conditions, FOS will reimburse the Customer for all the legally imposed costs and indemnification amounts provided FOS is immediately notified of such claims in writing, receives all the necessary information from the customer, the customer complies with his general obligation to co-operate and FOS can make the final decision, whether the claim should be defended or settled. In the event that there is a legal ruling that the further use of the contract item violates German third party protective rights or FOS is of the opinion that there is the danger of a third party property rights lawsuit, FOS may at its discretion and provided there is no liability, entitle the Customer the right to either continuing to use the contract item or exchange it or modify it to such an extent that there is no further violation or reimburse the Customer its value after taking back the contract item and deducting an amount equalling the value for its uses up to that time.
10.1 FOS is responsible for its staff and its vicarious agents with respect to contractual or tortious liability for compensation of damages.
a) No restrictions as to the amount for damages to life, limb or health.
b) According to the legal requirements without restrictions for the level of damages for damages which were caused by intent or gross negligence on the part of legal representatives or senior staff or for
which the company is to blame.
c) In other cases than a) concerning restrictions to the losses, which are typical and expected as a result of precise contractual maintenance measures from FOS.
d) For damages due to culpable breaches of major contractual obligations.
e) For damages due to gross negligence or intentional violations of major contractual obligations, which were caused by simple vicarious agents of FOS.
f) Inasmuch as a case of impossibility, of the initial capacity and default exists. The Contractor’s liability for the lack of promised characteristics, due to malice or defects of title and according to the product liability law (Produkthaftungsgesetz) is unaffected.
10.2 The liability of FOS within the framework of the aforementioned item, particularly for consequential damages, is limited for every individual event of damage or loss to an amount of up to € 100,000.00 per case of damage or loss, or double that amount for a full year.
10.3 The Customer must agree to assume the blame for contributory negligence, e.g. the inadequate participation (e.g. also inadequate problem reports, organizational errors or inadequate data backups). FOS is only responsible for the recovery of data if the Customer undertook the normal and appropriate steps to backup the data and also ensured that the data and programs that are available in a machine-readable form can be reconstructed using a reasonable level of effort. The assumption of the legal duty to maintain safety does not automatically include the performance of specially assumed quality and outgoing checks. FOS makes the assumption that the Customer will undertake the necessary checks himself to fulfil his legal duty to maintain safety. If action is taken by third parties against FOS due to product liability, the Customer releases FOS from this.
FOS is authorised to have the contractual services provided by subcontractors as well. The warranty in this case remains with FOS.
12. Offsetting / Right of retention
The Customer’s right to offsetting is excluded unless an undisputed or legally enforceable debt is involved. In the event of a justified complaint, the right of retention is only allowed if the ratio between the fault and the purchase price is appropriate and reasonable. If the commercial transaction represents a transaction among business people, then the customer may only withhold payments if FOS has acknowledged the complaint.
13. Prohibition of assignment of claims
The rights of the Customer from the business transacted with FOS may not be assigned without obtaining written permission from FOS.
14. Data protection
The Customer is in agreement that FOS will save any personal data it encounters in its data processing system and that this data will be automatically processed within the framework of the business relationship.
15.1 If one or more of the aforementioned provisions are or become invalid or contain a loophole, the remaining provisions will not be affected by this. The contracting parties are obliged in such a case to replace an invalid provision with a provision that comes closest to the general economic purpose of the invalid provision. This also applies for filling any unintentional, performance-related loopholes.
15.2 Any deviating or additional agreements to the aforementioned provisions are only valid in the form of a written additional agreement to the contract signed by the parties, which makes reference to the altered condition. Doing away with the written form requirement is also required in written form.
15.3 Place of performance for all obligations from this Contract is the location of the registered offices of FOS. The sole legal venue for any disputes arising from the contractual relationship as well as its validity is the location of the registered offices of FOS or the customer at the discretion of FOS if the customer is a business man, legal entity under public law or a separate fund under public law or has its registered offices abroad.
15.4 The laws of the Federal Republic of German apply solely for this contractual relationship. The validity of the Vienna Convention concerning the international sale of goods is excluded.
Hemer, October 2015