General Terms & Conditions of FAZUA GmbH
I. Scope, Definitions
- These Terms and Conditions apply to the sale and delivery of goods by us, the company FAZUA GmbH, Marie-Curie-Straße 6, 85521 Ottobrunn. These Terms and Conditions in their current version shall apply in the above scope of activity to all future business relations between us and the customer even if not subsequently expressly referred to in these Terms and Conditions. The customer shall be notified in writing of any changes to these Terms and Conditions by fax or e-mail. If the customer fails to object to the changes within four weeks after receipt of the notification, the changes are deemed recognized and accepted by the customer. The customer shall be specifically reminded in the notification of the right to object and the legal consequences of remaining silent.
- These Terms and Conditions contain the exclusively applicable conditions for the sale and delivery of goods between us and the customer, unless they have been amended by individual agreements between the parties. Any deviating, conflicting or supplementary Terms and Conditions of the customer, even if known, are hereby declared unacceptable and expressly rejected. Any conflicting Terms and Conditions of the customer shall only apply upon our express approval in writing.
- Customer for the purposes of these Terms and Conditions shall mean anyone who places an order or concludes a contract with us.
- Consumer for the purposes of these Terms and Conditions shall mean any natural person who enters into a legal transaction for purposes outside his trade, business or profession (Sect. 13 BGB) [German Civil Code].
- Merchant for the purposes of these Terms and Conditions shall mean any natural person or legal entity or a partnership with legal capacity that enters into a legal transaction within the scope of its commercial or self-employed professional activities.
- Place of performance shall be our registered place of business at Marie-Curie-Straße 6, 85521 Ottobrunn.
II. Conclusion of Contract, Guarantees
- The product catalogues, brochures or other promotional material made available by us do not in and of themselves constitute an offer to enter into a contract, but are merely an invitation to the customer to make legally binding offer to us in turn. We therefore reserve the right to modify the technical data as well as the shape, colour, weight, drawings or images in our product catalogues, brochures or other promotional materials to the extent reasonable for the customer.
- The customer can place the order, i.e. a legally binding offer, with us in writing, by fax or e-mail. We can accept the order within two weeks after receipt thereof. The mere confirmation of receipt of the order does not constitute any acceptance of the order. Should we fail to declare acceptance in due time, this shall be considered a rejection of the order. Our acceptance may be declared in writing, by fax or e-mail or by delivering the goods to the customer. The contract is concluded upon acceptance.
- Guarantees and warranted characteristics are only binding if expressly declared in writing by our management. Our employees are not authorized to verbally assure certain properties of the product beyond providing a product description. Manufacturer guarantees shall remain unaffected.
III. Prices, Price Increases
- All prices mentioned in the product catalogues, brochures and other promotional material published by us include the statutory VAT and do not include shipping costs, unless expressly stated otherwise. In case of orders for a number of different items, the prices for individual items of an order shall only apply if ordered as part of a collective order.
- In case of unforeseen price and cost increases, e.g. due to increased purchasing prices/material costs, wage increases and similar circumstances beyond our control, we are entitled to adjust the prices accordingly within reason. Insofar as no mutual trade transaction applies, in particular because the customer is a consumer, we can make this price adjustment only after expiration of four months from conclusion of the contract, provided we did not have to deliver by that time. We will inform the customer of any price adjustments without delay. The notification shall specify the amount of the price adjustment, and the customer shall be given the exact reason for such adjustment as well as a reasonable period within which the customer can declare whether he accepts the price increase or would like to withdraw from the contract. Should the customer fail to respond in due time, the price increase shall be deemed accepted by the customer unless it exceeds 10% of the originally agreed price. The customer shall be expressly reminded in the notification of the right to withdraw from the contract and the legal consequences of remaining silent.
IV. Delivery, Transfer of Risk, Reservation of Availability
- If we ship the goods at the customer's request to a location other than our place of business or to a production site defined by us, the risk shall pass to the customer as soon as we hand over the goods, properly packaged, to the transport company. This shall not apply if the customer is a consumer. In this case, the risk of accidental loss and accidental deterioration of the goods shall only pass to the customer upon transfer of the goods to the customer or if he is in default of acceptance.
- If free delivery has been agreed with the customer, the risk shall pass to the customer on arrival of the vehicle at the delivery address at street level or at the place that the vehicle can reasonably reach. To the extent technically necessary, the customer is obliged to provide the equipment and/or personnel necessary for unloading.
- The customer shall check the delivery for compliance with its order, completeness and obvious damages in transit immediately upon receipt. In this respect the customer shall immediately lodge any complaints with us, in the case of obvious transport damages also directly with the carrier. Delivery dates and times shall only be binding if the parties have expressly agreed in writing or in text form (e.g. e-mail or fax) on these dates and times.
- If the ordered goods are not available because we ourselves were not supplied by our suppliers without being at fault despite a corresponding purchase contract which covers the customer's order, then the delivery time to the customer shall be extended for the period of the delay. We will immediately inform the customer of any delay. The customer may withdraw from the contract if our own supply is expected to be delayed by more than four weeks after the delivery date and if the customer has previously set us a reasonable deadline for delivery. If it appears that we definitely will no longer be supplied by our suppliers, we shall be entitled to withdraw from the contract. In this case we will immediately inform the customer and will reimburse the customer for any advance payments already made in case of such withdrawal.
V. Commercial Customers’ Special Duty to give Notice of Defect
- Clause V. shall in no case apply to consumers, and shall in particular not limit the consumer’s statutory right to revocation. However, for customers who conclude the contract as a merchant in the course of their business operations, the following duties of inspection and giving notice of defect shall apply:
- In accordance with the due diligence duties of a prudent businessman, the customer shall inspect the delivered goods (including for any transport damages) immediately upon receipt. Any obvious and visible defects found during the incoming goods inspection shall be reported to us without delay at least in writing (e.g. by e-mail or fax), not later, however, than one week after receipt.
- Should any hidden defects or defects that could not be detected at the time of the inspection be found at a later time, then these defects shall also be reported without delay after discovery at least in writing (e.g. by e- mail or fax), not later, however, than two weeks after their discovery.
- In case of each notice of defect, the customer shall return the defective goods to us and include, where applicable, all accessories and a copy of the delivery note stating the model / serial number as well as a short but very precise description of the defect or symptoms that allows us to detect the defect. To the extent possible, the goods shall be returned in their original packaging or at least in suitable packaging at our cost. The customer shall inform us prior to returning the goods and discuss the possibilities of having them collected by us.
- If no notice of defect is given or not given in due time, the delivered goods shall be deemed approved and any warranty claim is excluded. This also applies if the notice of defect, even after inquiries on our part, only provides an insufficient description of the fault or symptoms which significantly complicates any determination and/or elimination of the defect.
- However, warranty claims are not excluded if and to the extent that the defect was fraudulently concealed or has been caused by wilful intent or gross negligence on our part.
- Warranty for Consumers:
(a) The warranty is subject to statutory provisions. In all cases of defects occurring during the statutory warranty period of two years from delivery, the customer has a legal right to remedy (at its option: repair or replacement) and has the right - if other statutory conditions apply - to claim reduction or cancel the contract as well as claim compensation.
(b) The customer shall grant us altogether two attempts at remedy, unless he has previously granted us a reasonable grace period which has expired without result, or if the remedy for other reasons must be considered a failure or unreasonable. If the customer’s desired type of remedy is only possible by incurring disproportionate costs, its entitlement shall be limited to the other type of remedy.
- Warranty for Merchants:
(a) Our statutory liability for defects of the ordered goods (statutory warranty) is initially always limited to subsequent performance, which means that we can eliminate the defect or deliver a replacement at our discretion. The customer shall immediately grant us sufficient opportunity for subsequent performance. Should the customer fail to do so, we shall be exempt from liability for the resulting consequences to that extent. The customer may only remedy the defect itself or have it remedied by a third party and demand compensation for the necessary expenses if urgently required by circumstances, for example to prevent excessive damage. The customer shall immediately return the replaced goods to us.
(b) In the event that the subsequent performance is deemed to have failed or that the remedy is considered late despite a reasonable grace period, the customer is entitled to reduce payment or withdraw from the contract. Clause VII below shall apply to our liability for damages caused by the defective goods.
(c) The warranty period for defects of the ordered goods is one year from delivery of the goods, unless otherwise agreed in writing. The shortened warranty period shall not apply to ordered goods that are used for a building in accordance with their usual purpose and have caused its defectiveness (Sect. 438 (1) No. 2 b BGB).
(d) No warranty is granted for any damage resulting from inappropriate or improper use, faulty installation or commissioning, natural wear and tear, faulty or negligent treatment, use of unsuitable operating supplies, non- compliance with operating and maintenance instructions and improper modifications or repair work by the customer or a third party on its behalf. This shall not apply if and insofar as the faulty installation is based on erroneous installation instructions included with the ordered goods. Furthermore no warranty is granted if a component the drive system has been opened or if the system has been manipulated.
(e) If the goods remain in use despite knowledge of a defect, we are only liable for the original defect, but not for any damage caused by the continued use.
VII. General Limitation of Liability
- If the contract including these Terms and Conditions contain no other provisions to the contrary, we are only liable for wilful intent and gross negligence with the exception of liability for personal injury, liability under the Product Liability Act, liability for guarantees expressly given and liability for breach of material contractual obligations. Material contractual obligations are the basic elementary obligations under the contract, the fulfilment of which is prerequisite to the proper performance of the contract, a violation of which endangers the purpose of the contract and the observance of which the customer may regularly rely on. Should any violation of material contractual obligations on our part only be due to ordinary negligence, our liability shall be limited to the customary and foreseeable damage at the time the contract was concluded.
- If the contract including these Terms and Conditions contains no other provisions to the contrary, the statutory provisions on limitation periods shall apply to merchants with the proviso that the standard limitation period is shortened from three years to one year. This shall not apply to liability due to wilful intent and gross negligence.
- All limitations of liability under the contract, including these Terms and Conditions, shall also directly apply to our managing officers, assistants and vicarious agents.
VIII. Payment Terms, Default of Payment and Acceptance of the Customer
- Unless otherwise agreed, our receivables shall be paid immediately upon receipt of the invoice without deduction. A discount is only granted on condition that all previous invoices have been paid; the discount is calculated on the basis of the net invoice amount after deduction of discounts and freight etc.
- We are not obliged to accept bills of exchange and cheques. Bills of exchange are only accepted if they are subject to discount. Cheques and bills of exchange are credited only after cashing thereof, assigned receivables only after payment. Until then the outstanding account including the due date shall remain unaffected. We accept no liability for a timely encashment and protest. Protest and collection charges shall be borne by the customer.
- We are entitled to offset payments against older debts of the customer. We will inform the customer about such assignment of the payment. We are entitled to first offset payments against non-secured or poorly secured debts and first against the costs, then against the interest and finally against the principal claim.
- The customer may only exercise retention and set-off rights if its counterclaim is based on the same contract. In addition, the customer is only entitled to offset claims or assert retention rights if its counterclaim is legally established, recognized by us or is uncontested.
- The assignment of any demands or claims against us to third parties shall be excluded, unless we expressly agree to such assignment at least in writing. We are only obliged to agree if the buyer can prove a legitimate interest in the assignment. The prohibition of assignment shall also apply to warranty claims; only the customer has a right to these. This prohibition of assignment shall not apply if the transaction which gave rise to the claim is a mutual commercial transaction or if the customer is a legal entity under public law or public-law special fund.
- We can withdraw from the contract if the customer has provided false information about facts affecting his creditworthiness, unless the buyer immediately pays in advance or our claim for payment against the customer is obviously not at risk for other reasons.
- We shall be notified without delay and at least in writing of any changes of address, changes in company ownership, changes in corporate form or other circumstances affecting the economic conditions the of the customer.
- We are entitled to store the goods at the risk and expense of the customer for the duration of the delay in acceptance by the customer. To this end we may also use a carrier or a storage facility. The storage costs are charged at a flat monthly rate of 1% of the net invoice value of the stored goods. We are entitled to prove that higher costs were actually incurred and to charge these higher costs. The customer, in turn, is also entitled to prove that no costs or lower storage costs have been incurred.
- If we withdraw from the contract as a consequence of the delay in acceptance by the customer, we are entitled to demand fixed damages amounting to 15% of the agreed net invoice value, provided the further statutory requirements are fulfilled. We reserve the right to claim higher damages actually incurred. The customer, in turn, is also entitled to prove that no or a lesser damages have been incurred.
IX. Reservation of Title
- The goods delivered by us shall remain our property until paid for in full (reserved goods). Should the customer fail to meet his obligations, we are entitled, particularly in the event of default of payment, to withdraw from the contract and demand the return of the delivered goods. In this case the customer is obliged to surrender the reserved goods. The customer shall store the reserved goods for us at no charge. Any pledges or transfers by way of security of our (co-) owned goods are inadmissible. In the event of any attempts by third parties to seize the reserved goods, the customer shall refer to our title in the goods and inform us without delay.
- If the customer is a commercial customer, the customer shall insure the reserved goods at its own expense on behalf of FAZUA against fire, burglary and water damage and present evidence of such insurance and premium payments to FAZUA upon request.
- The customer is entitled to resell the delivered goods in the ordinary course of business and in accordance with this contract. The customer hereby assigns to us all claims arising against a third party from the resale of the goods in the amount of the invoice value or the value of the reserved goods delivered. We hereby accept the assignment. After the assignment, the customer is authorized to collect the receivables. However, we reserve the right to collect the debt ourselves if the customer fails to meet its payment obligations and is in default of payment.
- The reserved goods are always treated and processed in our name and on our behalf. If the reserved goods are processed or mixed with goods not belonging to us, we shall acquire co-title in the new goods in proportion of the reserved goods delivered by us goods to the other processed items. The same applies if the reserved goods are mixed or combined with other items not belonging to us.
- Upon request of the customer, we are obliged to release the securities to which we are entitled if and insofar as their value exceeds the claims to be secured by more than 20% (protection against excess security).
- The purpose of securing the retention of title described in the preceding paragraphs covers all outstanding debts (including current accounts receivables) arising from the current business relationship between us and the customer, who is a merchant.
X. Data Protection
- The personal data obtained about the customer in connection with the business, regardless of whether they are provided by the customer himself or by third parties, shall be stored and processed in accordance with the provisions of the Federal Data Protection Act and, where applicable, the provisions of the Telemedia Act, if and to the extent that the data is required for the implementation and performance of the contract and the business. In addition, personal data shall only be passed on to third parties with the consent of the customer - subject to legal reporting obligations such as to investigating authorities.
- Unless and to the extent that such information is not public knowledge or intended for resale by the customer on our part, all business or technical information obtained from us (including features which can be learned from any items or software handed over and other knowledge or experiences), shall be kept secret from third parties and may only be made available to such persons within the customer’s own company who necessarily need to use the information and who have been placed under an obligation to maintain confidentiality; such information remains our exclusive property and may not be reproduced or used commercially without our prior written consent. At our request, all information and loaned items provided by us (if applicable including all copies or records) shall be immediately and completely returned to us or destroyed.
- We reserve all rights to the information described in Clause XI (1) (including copyrights and the right to file for industrial property rights such as patents, utility models, trademarks, etc.).
XII. Final Provisions
- The business relationship with the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of UN Convention on Contracts for the International Sale of Goods and international private law.
- The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the registered place of business of FAZUA GmbH, Marie- Curie-Straße 6, 85521 Ottobrunn If the customer is a merchant, a legal entity under public law or a public-law special fund or if the customer has no general place of jurisdiction in Germany or has moved his domicile or habitual residence abroad after conclusion of the contract or if the customer’s domicile or habitual residence is unknown at the time of the action. However, we also reserve the right to bring action at the general place of jurisdiction of the customer.
- Should any contractual provision be invalid in whole or part, this shall not affect the validity of the remaining provisions. Instead of the invalid provisions, the relevant legal provisions shall apply. The parties are obliged to replace the invalid provision with such valid provision that most closely reflects its economic intent. The same shall apply to contractual gaps that cannot be closed by interpretation of the provisions.