General Terms and Conditions of Delivery
FRISTAM Pumpen Schaumburg GmbH 2022
- All deliveries and services by FRISTAM Pumpen Schaumburg GmbH (the supplier) are based on these General Terms and Conditions of Delivery and any other separate contractual agreements. These also apply to all future deliveries or services to the customer, even if they are not separately agreed upon again. These General Terms and Conditions of Delivery are based on the Terms and Conditions of Delivery 2022 of the VDMA (German Mechanical Engineering Industry Association), but include some amendments.
- Other conflicting or supplementary conditions of purchase or other general terms and conditions of the customer shall not become contractual upon order acceptance, even if the supplier does not object to their application in the individual case and/or makes a delivery without reservation. In the absence of any special agreement, a contract is constituted upon written confirmation of the order by the supplier.
- References to the application of statutory provisions are only for the purposes of clarification. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Delivery.
- The supplier reserves the rights of ownership and copyrights to prototypes, cost estimates, drawings and similar information of a material and immaterial nature, including in electronic format; they must not be shared with third parties. The supplier undertakes not to share with third parties information and documents marked as confidential by the customer without the customer’s consent.
II. Price and payment
- Unless otherwise agreed, prices apply ex works and include loading at the factory, but do not include packaging and unloading. The prices exclude value added tax at the respective statutory rate, as well as customs duty and other charges and official fees in the case of export shipments.
- Unless otherwise agreed, payment must be made without deduction to the supplier’s account as follows:
1/3 deposit upon receipt of the order confirmation, 1/3 as soon as the customer is notified that the main parts are ready for dispatch, the remaining amount within one month of the transfer of risk.
- The customer is only entitled to withhold payments insofar as their counterclaims are undisputed or declared final and absolute or are reciprocal to the supplier’s claim for payment.
- The supplier is entitled to withhold any outstanding deliveries and services from the customer based on outstanding and due payments from the overall business relationship with the customer, i.e. both from connected receivables from the contractual relationship as well as unconnected receivables from other contracts entered into with the customer.
- The supplier is entitled to only make or perform outstanding deliveries or services upon advance payment or deposit if, after the contract is entered into, the supplier becomes aware of circumstances that might significantly reduce the customer’s credit rating and which could jeopardise the customer’s payment of receivables to the supplier arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
- The customer is only entitled to offset counterclaims from the contract and/or other legal relationships insofar as these counterclaims are undisputed or declared final and absolute or are reciprocal to the supplier’s claim for payment.
III. Delivery time, delayed deliveries
- The delivery time is set out in the agreements between the contracting parties. The timeframes and dates for deliveries or services estimated by the supplier are only ever approximate, unless a fixed timeframe or date has been expressly promised and confirmed. Compliance with such timeframes and dates by the supplier is subject to all business and technical issues between the contracting parties being resolved and the customer fulfilling all of their obligations, e.g. providing the necessary official certificates or approvals or paying a deposit. If this is not the case, the delivery time shall be extended accordingly. This does not apply if the delay is the fault of the supplier.
- Compliance with the delivery time is subject to the correct and punctual delivery of supplies to the supplier. The supplier shall report any imminent delays as soon as possible.
- The delivery time has been observed if the delivery item has left the supplier’s factory by the end of the delivery time or has been notified as ready for dispatch. If dispatch has been agreed, the delivery timeframes and dates refer to the time of handover to the carrier, haulier or other third party commissioned with transport. If acceptance is required, the acceptance date applies, or notification of readiness for acceptance, except in the case of a justified refusal of acceptance.
- If dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged any costs arising from the delay starting from one month after notification of readiness for dispatch/acceptance.
- The supplier shall not be liable for an impossible delivery or delivery delays caused by force majeure or other circumstances that were unforeseeable at the time the contract was entered into (including but not limited to all types of disruption, difficulties procuring material or energy, transport delays, strikes, lawful lockouts, labour, energy or raw material shortages, difficulties obtaining the necessary official permits, official measures or overdue, incorrect or late supply by third parties) for which the supplier is not responsible. If such events make the delivery or performance very difficult or impossible for the supplier and the disruption is more than just temporary, the supplier is entitled to withdraw from the contract. If the disruptions are temporary, the delivery or performance timeframes shall be extended or the delivery and performance dates postponed by the duration of the hindrance plus a reasonable start-up period. The supplier shall inform the customer of the start and end of such circumstances as soon as possible. If the customer cannot be expected to accept the delivery or performance given the delay, the customer may cancel the contract by informing the supplier immediately in writing.
- The customer may cancel the contract without setting a timeframe if the supplier will definitely not be able to fulfil the entire delivery before the transfer of risk. The customer may likewise withdraw from the contract if, upon ordering, it becomes impossible to fulfil part of the delivery and the customer has a legitimate interest in refusing the remaining part of the delivery which is still possible. Otherwise, the customer must pay the contractual price apportionable to the part delivery. The same applies if the supplier is incapacitated. Section VII.2 and 3 also apply. If the impossibility or incapacity to perform occurs during the acceptance delay or if the customer is solely or primarily responsible for the circumstances causing the impossibility or incapacity to perform, the customer shall remain obliged to pay consideration.
- If the supplier defaults, resulting in damage to the customer, the latter is entitled to demand flat-rate compensation for the delayed completion. This shall be 0.5% for every full week of the delay, however not more than a total of 5% of the value of that part of the entire delivery that cannot be used on time or as agreed in the contract as a result of the delay. If, allowing for the legal exceptions, the customer sets the supplier an appropriate timeframe for delivery after the original due date, and if the timeframe is not observed, the customer may cancel the contract in keeping with the statutory provisions. At the request of the supplier, the customer shall state whether or not they intend to assert their right of cancellation within a reasonable period.
Other claims based on delayed delivery shall be determined exclusively in accordance with Section VII.2 and 3 of these terms and conditions.
IV. Delivery, place of performance, transfer of risk, acceptance
- Delivery takes place ex works, which is also the place of performance. Risk transfers to the customer once the delivery item has left the factory, even if part deliveries are being made or the supplier has undertaken to provide other services, e.g. delivery costs or delivery and installation. If acceptance is required, the transfer of risk shall be based on this. This must take place immediately on the acceptance date, or after the supplier has been notified of readiness for acceptance. The customer may not refuse acceptance because of a non-substantial defect.
- If dispatch/acceptance is delayed or does not occur because of circumstances for which the supplier is not to blame, the risk shall transfer to the customer from the date of the notification of dispatch or readiness for acceptance. The supplier undertakes to take out any insurance requested by the customer at the latter’s expense.
- Part deliveries are permitted, provided these are reasonable for the customer.
V. Reservation of title
- The supplier retains ownership of the delivery item until all payments from the supply contract have been received, including for any additional services owed.
- The supplier shall be entitled to insure the delivery item against theft, breakage, fire, water and other damages at the expense of the customer, unless the customer has verifiably taken out insurance themselves.
- The customer must not sell, pledge or assign the delivery item until all payments have been received, with the exception of Section V 7. The customer must inform the supplier immediately of any seizure or confiscation or other dispositions by third parties.
- In the event of a breach of contract by the customer, and in particular a payment default, the supplier shall be entitled to take back the delivery item after issuing a warning and the customer shall be obliged to surrender the item.
- The supplier may only demand the return of the delivery item on the basis of the reservation of title if the supplier has withdrawn from the contract.
- The supplier is entitled to withdraw from the contract and demand the immediate return of the delivery item if the customer becomes insolvent, closes their business and/or applies to open insolvency proceedings.
- The customer is entitled to resell the delivery item in the ordinary course of business. However, the customer shall assign to the supplier in advance all of the receivables in the amount of the invoice value of the goods subject to the retention of title which are due to the customer from the resale from the buyer of the item or third parties. The customer is authorised to collect these receivables even after the assignment, provided that the customer complies with the contract and there is no insolvency.
The supplier’s right to collect the receivables themselves shall remain unaffected; however the supplier undertakes not to collect the receivables provided that the customer duly fulfils their payment obligations to the supplier and there is no insolvency. The supplier may demand that the customer disclose to them the assigned receivables and their debtors, provide all the information required for collection, submit the corresponding documentation and inform the debtors of the assignment.
The supplier undertakes to release the securities due to them insofar as their value exceeds the receivables to be secured by more than 25% insofar as these have not yet been settled.
Where the goods subject to the reservation of title are processed or transformed, including with other items not belonging to the supplier, the supplier shall acquire joint ownership of the item in the ratio of its invoice value to the value of the new item at the time it was processed. In all other respects, the same shall apply to the item resulting from the processing as to the goods subject to the retention of title.
VI. Claims for defects
The supplier is liable for material defects and defects of title in the delivery to the exclusion of other claims – subject to Section VII – as follows:
If the parties have agreed on a particular property of the purchased item, objective specifications regarding the purchased item do not apply in this respect.
- All of the parts proving to be defective as a result of circumstances occurring before the transfer of risk must be repaired or replaced as free from defects at the supplier’s discretion. The supplier must be informed in writing of such defects as soon as they are noticed. Any claims for defects by the customer are subject to the customer’s having fulfilled their statutory duties to inspect the goods and to give notice of any defects (German Commercial Code (HGB) §§ 377, 381).
- Replaced parts become the property of the supplier.
- The customer shall, after consultation with the supplier, give the supplier the necessary time and opportunity to perform all of the repairs and replacement deliveries that appear necessary to the supplier; otherwise the supplier shall be released from liability for the ensuing consequences. The customer may only repair the defect themselves or have it repaired by a third party and demand reimbursement of the necessary costs in urgent cases of risk to operating safety or to prevent disproportionally greater damages, in which case the supplier must be informed immediately.
- Provided the complaint turns out to be legitimate, the supplier shall cover the necessary costs for the purposes of supplementary performance, provided the supplier incurs no disproportionate liability. The supplier shall also reimburse the customer for costs arising from rights of recourse in the supply chain within the scope of their legal obligation if a newly manufactured item is purchased. Supplementary performance does not include removal of the defective item or reinstallation if the supplier was not originally obliged to install the item. The costs arising from the inspection and supplementary performance, in particular transport, travel, labour and material costs as well as any removal and installation costs shall be borne or reimbursed by the supplier in accordance with the statutory provisions if there is an actual defect. Otherwise, the supplier may demand reimbursement of the costs arising from the unjustified demand to remedy the defect (in particular inspection and transport costs) from the customer, unless the customer could not have been aware that there was no defect.
- The customer is entitled to withdraw from the contract within the framework of the statutory provisions if the supplier – taking into account the statutory exceptions – allows a reasonable timeframe set for the repair or replacement delivery of a material defect to lapse without effect. If there is only a minor defect, the customer shall only be entitled to a reduction in the contract price. In all other cases the right to a reduction in the contractual price is excluded.
- Other claims shall be determined exclusively in accordance with Section VII 2 and 3 of these terms and conditions.
- In particular, no liability shall be accepted in the following cases:
inappropriate or improper use, incorrect installation or operation by the customer or third parties, natural wear and tear, incorrect or careless handling, improper maintenance, unsuitable operating materials, defective building work, an unsuitable surface, or chemical, electrochemical or electrical influences – insofar as these are not within the supplier’s sphere of responsibility.
- If the customer or a third party makes improper repairs, the supplier shall not be liable for any ensuing consequences. The same applies for modifications made to the delivery item without the prior consent of the supplier.
- The warranty shall be void if the customer modifies the delivery item or has it modified by a third party without the consent of the supplier and this makes the repair impossible or unreasonably difficult. In any case, the customer must cover the additional costs of repair incurred as a result of the modification.
Defects of title
- If use of the delivery item results in an infringement of industrial property rights or copyrights in Germany, the supplier must, at their own expense, ensure that the customer has the right to continue to use or to modify the delivery item in a way that is reasonable for the customer, such that there is no longer any infringement of industrial property law. If this is not possible within reasonable financial means or within a reasonable period of time, the customer is entitled to withdraw from the contract. The supplier is also entitled to withdraw from the contract under the above conditions. Furthermore, the supplier shall indemnify the customer from undisputed or legally established claims by the owners of those rights.
- The supplier’s obligations as set out in Section VI 10 are conclusive subject to Section VII 2 in the event of a breach of industrial property rights or copyright.
They only exist if
- the customer informs the supplier immediately of alleged breaches of industrial property rights or copyrights,
- the customer provides reasonable assistance to the supplier in defending the alleged claims or allows the supplier to make modifications in accordance with Section VI 10,
- the supplier reserves the right to all defensive measures, including out-of-court arrangements,
- the defect of title is not based on an instruction of the customer and
- the infringement is not the result of the customer having made changes to the delivery item without authorisation or used it in a non-contractual manner.
VII. Supplier’s liability, limitation and exclusion of liability
- If the delivery item cannot be used by the customer in accordance with the contract as a result of culpably omitted or erroneous suggestions or advice by the supplier, either prior to or after the contract was entered into, or as a result of a culpable breach of other contractual secondary obligations – in particular guidance for operating and maintaining the delivery item – the provisions in Sections VI and VII 2 and 3 apply to the exclusion of any other claims by the customer.
- The supplier shall only be liable for damages that did not occur to the delivery item itself – irrespective of the legal grounds – in the case of
- gross negligence by the owner/organisation or its chief executives,
- culpable injury to life, limb, health or freedom,
- defects that the supplier fraudulently concealed,
- a promise of guarantee,
- defects to the delivery item, insofar as product liability law provides for liability for personal injury and damage to property on privately used items.
In the case of a culpable breach of essential contractual obligations (i.e. obligations that must be fulfilled for proper execution of the contract in the first place and that the contracting parties may routinely rely on being fulfilled), the supplier shall also be liable in the case of gross negligence by non-executive employees, and in the case of slight negligence, the latter being limited to reasonably foreseeable damage typical for the contract. Essential contractual obligations include, but are not limited to, the obligation to punctually deliver and install the delivery item (if installation has been agreed), its freedom from defects of title as well as from material defects that compromise functionality or usability to a more than a merely slight extent, as well as advisory, protection and care obligations which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s staff or to protect their property from significant damage.
Any other claims are excluded.
- In the event of liability for ordinary negligence, the supplier’s liability for material damages and other resulting financial losses, including a breach of essential contractual obligations, shall be limited to EUR 1,000,000.00 (in words: one million euros) per claim and a concurrent maximum liability of ten million euros for all damages suffered by the customer in the calendar year (in accordance with the highest sum insured under the supplier’s business and product liability insurance). This limitation does not apply to the supplier’s liability in the event of any injury to life, limb or health or liability in accordance with product liability law.
- The above exclusions and limitations of liability apply equally in favour of the supplier’s organisations, legal representatives, employees and other vicarious agents.
VIII. Statute of limitations
All of the customer’s claims – irrespective of the legal grounds – shall become time-barred 12 months after the legal commencement of the statute of limitations; this also applies to the limitation of rights of recourse in the supply chain pursuant to the German Civil Code (BGB) § 445b para. 1. This does not affect the suspension of expiration of prescription under § 445b para. 2 of the German Civil Code; it ends no later than five years after the date on which the supplier delivered the item to the buyer. These provisions on the limitation of rights of recourse and the suspension of expiration of prescription do not apply if the last contract in this supply chain is a sale of consumer goods. The statutory periods apply to claims for damages pursuant to Section VI 2 a-d and f. They also apply to defects in a building or to delivery items that have been used in the usual way for a building and have caused its defectiveness.
IX. Use of software
If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use this software, including the corresponding documentation. This is granted for use on the intended delivery item. It is not permitted to use the software on more than one system.
The customer may only copy, revise, or translate the software or convert the object code to the source code to the extent permitted by law (German Copyright Act (UrhG) §§ 69a et seq.). The customer undertakes not to delete or modify the manufacturer’s data – in particular copyright notes – without the prior express consent of the supplier.
The supplier or software supplier retains all other rights to the software and the documentation, including copies. Sub-licences may not be issued.
X. Applicable law, place of jurisdiction
- All legal relationships between the supplier and the customer are exclusively subject to German law, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- If the customer is a trader in the sense of the German Commercial Code, a corporate body under public law or a special property or fund under public law, or if the customer does not have a place of general jurisdiction in the Federal Republic of Germany, the court responsible in the place of the supplier’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the customer is a businessperson in the sense of § 14 of the German Civil Code (BGB). However, the supplier is also entitled to institute legal proceedings in the place where the customer has their registered office. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
XI. Precedence of the German version
In the event of doubts about interpretation, a contradiction or any ambiguities between the English and the German version of these General Terms and Conditions of Delivery, the German version shall be authoritative.