General terms and conditions
I. Definition, scope of application
- The following terms and conditions apply exclusively to the privity of contract between the orderer and FRIEDRICHS FILTERSYSTEME GMBH (hereinafter referred to as: FFS). Orderers' terms to the contrary or such terms deviating from these terms shall only be deemed accepted if confirmed by FFS. The following terms also apply, even if FFS in knowledge of opposing terms or of terms, which deviate from these terms, unconditionally delivers to the orderer.
- Agreements or subsidiary agreements deviating from these terms shall only be deemed accepted if confirmed by FFS in writing.
- These terms also apply to future orders, even if there is no longer express reference to them.
II. Offers, bidding documents, confirmation of order
- Our offer is subject to confirmation. The contract is concluded by a written confirmation of order or by a written contract. The item, amount, price and terms of delivery are finally determined, excluding verbal agreements, in the confirmation of order or the written contract.
- FFS retains rights of ownership and copyrights to the offer documentation; also in electronic form - such as drawings, calculations or other documents; such documentation may only be made available to third parties with FFS’s consent. The rights of ownership and copyright also apply in particular to such written documents, referred to as "confidential". Their forwarding to third parties by the orderer is prohibited.
FFS is obligated to make documents and information referred to by the orderer as “confidential” accessible to third parties only with the orderer’s consent.
Details of weights and measurements shall be understood as being merely a guideline, save where they are expressly indicated as binding.
- Transmission by data communication complies with the written form. It shall be assumed that the declaration reached the orderer, if FFS can prove the fact that a declaration was sent by fax or by data communication by submittal of the transmission report.
III. Prices, terms of payment
- All prices of FFS are quoted ex factory/ warehouse including loading of goods in the factory, plus the statutory value added tax valid at the time of issuing the invoice. Packaging, dispatch, insurance, etc. are charged separately.
- Unless otherwise agreed, payments shall be effected as follows in cash: Either within 14 days with 2% cash discount or 30 days from the date of invoice or notification of dispatch readiness without any deduction. Payment is affected by transfer or cheque. The receipt of payment by FFS is authoritative for the timeliness of the payment.
- The orderer shall be considered as in default after the due date by means of a reminder, apart from the legal prerequisites. The orderer is also in delay without reminder, if the date of payment is defined by calendar. FFS is also justified to suspend all deliveries or performances, if the orderer is in default of payment.
- FFS is entitled to charge bank interest, at least however at a rate of 8% p.A. without the requirement of formally announcing default, in the case of late or deferred payments. The orderer is however entitled to prove that no damages and/or substantially lower damages resulted for FFS than the accrued interest. FFS is entitled without renouncement of its claims to recover the delivery item until complete payment or withdraw from the contract, if the orderer is in delay of payment.
- If FFS learns of circumstances after entering into the contract, which place the credit-worthiness of the orderer in question or if a substantial endangerment of his pecuniary claim transpires due to financial collapse of the orderer or the orderer is in delay with the payment of the purchase price, then FFS can demand pre-payment or security within an appropriate period and suspend performance up to fulfilment of this request. FFS is entitled to totally or partly withdraw from the contract and to demand compensation for default, if the orderer refuses to comply or after fruitless lapse of time.
- The orderer can only offset with undis puted counterclaims or counterclaims established as non-appealable by a court of law or counterclaims recognised by FFS. The orderer is only entitled to exercise the right of lien, if his counterclaim is based on the same contractual relationship.
- Payments to third parties, to agents or representatives are at the risk of the payer.
- The following applies additionally for deliveries abroad:
- Prices are quoted without value added tax. The respective statutory value added tax is additionally added to the price in the case of tax liability. FFS takes on all other public charges (taxes, fees, tariffs etc.) as far as they accrue in Germany. The orderer shall bear them in all other cases.
- Bank charges shall be paid by the orderer.
- The entire remaining payment be- comes due, if a payment is not made in good time in the case of agreed partial payments.
IV. Retention of title
- FFS retains title to the delivery items out of this business relationship with the orderer, pending performance of all FFS’s claims against the orderer on the basis of the delivery contract including any refinancing or turned bills of exchange. This also applies, if individual or all claims have been compiled in a current account by FFS and the balance has been drawn and recognised. Only the receipt of the equivalent value by FFS is considered as payment.
- FFS is entitled after appropriate reminder to recover and the orderer obligated to surrender the delivered goods in the case of violation of the terms of the agreement by the orderer, in particular delay of payment.
- The assertion of retention of title as well as attachment of the delivery items by FFS are not considered as withdrawal from the contract.
- The orderer is entitled to sell the delivery items in the normal course of business; he shall however now already assign to FFS all claims arising therefrom up to the purchase price agreed upon between FFS and the orderer (including statutory value added tax), which accrue for the orderer from the resale, irrespective of whether the delivery items are resold without or after processing. The orderer is authorised to collect these claims even after assignment. FFS’s authority to collect the claims remains unaffected; however FFS is obligated not to collect the claims as long as the orderer fulfils his payment obligations and is not in delay of payment. In such a case, FFS can demand that the orderer makes known the claims assigned as well as the relevant debtors, makes all data necessary for collection available, surrenders the pertinent documents and notifies the debtors (third parties) of the assignment.
- The processing or reworking of the goods by the orderer is always affected for FFS. If the delivery items are processed together with other items not belonging to FFS, FFS then acquires co-ownership of the new item in the same proportion as the relationship between the value of the delivery items to the other processed items at the time of processing.
- If the delivery items are indivisibly mixed with other items, not belonging to FFS, then FFS acquires co-ownership of the new item in the same proportion as the relationship between the values of the delivery items to the other mixed items. The orderer safe keeps the co-ownership for FFS.
- The orderer may neither pledge the delivery item nor assign transfer as security. The orderer shall immediately notify FFS of any confiscation or other acts of disposal by third parties and make available all necessary information and documents to enable FFS to take steps for the protection of rights.
Executory officers, and/or third parties shall be informed regarding the property of FFS.
- FFS undertakes to release, at the re- quest of the orderer, the security to which it is entitled insofar as the value of the secured receivables, as far as these are not yet settled, exceeds the claim by more than 20%. The selection of the to be released collateral is incumbent on FFS.
- The orderer irrevocably permits FFS to enter the rooms, in which the delivery item is located, during duration of retention of title and to permit access by our employees as well as in the case of withdrawal from contract or exercise of the retention of title to gain possession of and remove the delivery item. The orderer is responsible for all damages, independent of negligence, if surrendering the delivery item including accessories is not possible in due condition.
- The following applies additionally for deliveries abroad:
FFS retains title to the delivery items pending performance of all of FFS's claims against the orderer on the basis of the delivery contract are settled, as far as this is permissible in accordance with the statutory provisions of the country of the orderer or the statutory provisions of the area of application, in which the delivery item is located.
If the statutory provisions of the country of the orderer or the statutory provisions of the area of application, in which the delivery item is located, reserve other rights to the delivery item, then FFS can exercise all such rights and demand the orderer’s appropriate co-operation.
V. Deliveries, delivery period
- The delivery period commences upon dispatch of the order confirmation. The observance of the delivery and performance dates agreed upon therein, presupposes that all commercial and technical details have been clarified between the Contracting Parties and that the orderer has fulfilled all incumbent obligations e.g. provision of documents, permissions and clearances to be supplied by the orderer, as well as the performance of the agreed upon pre-payment. The period shall be extended appropriately, if this is not the case. This does not apply, if FFS has to represent the delay.
- The delivery period shall be deemed complied with, if the delivery items have already left our factory or if the orderer has been informed that the goods are ready for shipment.
- Partial deliveries are admissible, as far as no usage disadvantages ensue.
- The delivery item shall be stored at FFS at the orderer’s risk and expense, if the delivery is delayed for reasons caused by the orderer.
- The delivery period shall be deemed extended accordingly by the duration of obstruction due to force majeure, strike or lockouts, inability without fault, delay of the delivery of substantial raw and building materials as well as unfavorable weather conditions. The aforementioned circumstances are also then not to be represented by FFS, if they occur during an already present delay.
The orderer shall be notified of the beginning and end of such obstructions as soon as possible.
- If the orderer is in default of acceptance or violates other obligations to cooperate, then FFS is entitled to give preference to other orders of third parties and to extend the delivery period appropriately. FFS is justified to demand appropriate damages including any eventual additional expenditure without prejudice to further claims.
VI. Delay in delivery
- FFS is obligated to compensate the orderer for damages caused by delay. This does not apply to loss of profit and damages from business interruption.
- The compensation is limited in the case of slight negligence to extra freight costs, retrofitted costs and after fruitless respite or in the case of loss of interest in the delivery to additional expenditures for covering purchases.
- The compensation amount shall account for the economic situation of FFS, type, scope and duration of the business relationship as well as if necessary also the value of the delivery item, all this in favour of FFS in good faith.
VII. Shipment, passing of risk
- The delivery is agreed upon "ex factory/ warehouse", if the confirmation of order does not determine otherwise. The shipment takes place at orderer's risk and expense. This also applies to return consignments.
- Transportation and other one-way packaging are not taken back.
VIII. Trade mark rights
The orderer agrees to immediately notify FFS of trade mark claims regarding the supplied products by third parties and to surrender the legal defence to FFS at its own expense. FFS is entitled to carry out modifications, also for delivered and paid goods, at its own expense on grounds of trade mark claims of third parties.
FFS provides under exclusion of further claims - subject to Section X - warranty as follows for defects as to quality and defects of title of the delivery:
Defect of quality
- All those parts are to be repaired or replaced free of charge, at the discretion of FFS, which prove to be defective due to a circumstance existing prior to the passing of the risk.
If such defects are established, FFS must be notified thereof in writing immediately in accordance with the terms of a normal business procedure. To that extent FFS waives the objection of late notice of defects. Refrain from an unrequested return of the objectionable delivery (the appropriate costs are not taken over). Any parts replaced are to be immediately made available to FFS by the orderer if requested and at the expense of FFS.
- FFS shall be given the necessary time and opportunity to meet all necessary measures considered suitable by FFS for sorting out as well as repairing or subsequent delivery unless this is unreasonable for the orderer before commencing production (processing or installation) in the case of delivery of defective goods. If this does not take place, then FFS is exempt from liability for defects and/or the appropriate consequences. If FFS cannot accomplish the repair/subsequent delivery or does not immediately comply, then the orderer can withdraw from the contract to this extent and return the goods at the risk of FFS. The orderer has the right to eliminate the defect himself or to have it eliminated by a third party and to hold FFS responsible for compensation of the necessary expenditures in urgent cases of endangerment of the working reliability and/or to prevent disproportionately extensive damages, whereby FFS is to be informed immediately. The orderer is, after a written reminder, also entitled to withdraw from the contract in the case of repeated incorrect delivery with regard to the not yet fulfilled scope of supply, if the same commodity is repeatedly incorrectly delivered.
- The orderer can only claim compensation for additional expenditures according to the provisions of Section IX, numeral 2, if this is contractually agreed upon, if despite observation of the obligation in accordance with Section IX, numeral 1 the error is only determined after commencing production. Section VI, numeral 3 is to be considered in the case of newly entered agreements.
- Should the complaint prove to be justified, FFS shall pay the following direct costs arising from the repair or replacement delivery: the costs of the replacement part including shipping and reasonable costs of deinstallation and installation plus furthermore, if this can be expected according to the situation of the individual case, the costs of providing any of FFS assembly operators and auxiliary personnel which may be necessary.
- The orderer is entitled to withdraw from the contract in the context of legal provisions, if FFS - with consideration to legal exceptional cases - lets a set appropriate period for repair or replacement due to a material defect elapse. The orderer is only entitled to a reduction of the contractual price, if the defect is negligible. The right to reduction of the contractual price is otherwise excluded.
- No warranty is given for the following reasons:
- inappropriate or unprofessional use,
- incorrect storage
- non-sufficient preservation
- defective assembly and/or defective putting into operation either by the orderer or third parties,
- violation of operation, maintenance and installation requirements
- natural wear and tear
- defective or negligent handling
- incorrect mode of operation
- incorrect maintenance
- modifications made to the delivery item by the orderer or third parties
- incorrect dimensioning due to wrong data of the orderer
- inappropriate operating resources
- faulty construction work
- unsuitable foundations
- chemical, electro-mechanical or electrical influences
or similar reasons, as far as they are not the responsibility of FFS. FFS does not warrant for defects in particular of screen clothes or other filter materials, gaskets and packaging, because these shall be regarded as explicit wear parts.
- The warranty shall be cancelled with respect to the consequences of any modification or repair work affected by the orderer or a third party unprofessionally without the prior consent of the FFS.
Defects of title
- FFS will at its own expense procure in principle the right for further use by the orderer or will modify the delivery item in such a reasonable manner for the orderer that there is no violation of commercial trade mark rights, if the use of the delivery item leads to the violation of domestic commercial trade mark rights or domestic copyrights.
The orderer is entitled to withdrawal from the contract, if this is not economically possible or not possible in an appropriate period of time. FFS is also entitled to withdrawal from the contract under the aforementioned terms.
- The obligations of FFS specified in Section IX 8 are final subject to Section X 2 in case of violation of commercial trade mark rights and copyrights. They are only applicable, if:
- The orderer immediately notifies FFS of asserted violation of commercial trade mark rights and copyrights.
- The orderer supports FFS appropriately with the defence of the asserted claims and/or enables FFS to carry out the modification measures in accordance with Section IX 7,
- All preventive measures including amicable arrangements are reserved for FFS,
- The defect of title is not based on instructions of the orderer and
- The infringement was not caused because the orderer arbitrarily modified the delivery item or used it in a non-stipulated way.
- The first testing sample, detailed drawings by FFS or the agreed upon work statement forwarded to the orderer are solely relevant for execution, measurements, weight and suitability. FFS ensures within this context state-of-the-art accuracy of material and workmanship in such a manner, that FFS can at its own discre tion replace or repair the faulty item or issue a credit note in the case of unserviceableness due to proven deviations from the first sample. It is a precondition that this unserviceableness occurs during the period of 6 months after registration date of motor vehicles - at the most how- ever up to a total mileage of 10.000 km -, in the case of other machines during a 6 month period of operation in one-shift operation and after 3 months in the case of day and night operation and that the parts were appropriately stored up to installation. The warranty period ends at the latest 12 months after delivery. Section IX, numeral 2 to 6 applies, if the repair or replacement should be unsuccessful.
- The following deviation applies with regard to the delivery of spare parts: The legal period of limitation and/or warranty is considered as agreed.
- The warranty complies with the statutory provisions, if not otherwise governed. Warranted characteristics must be detailed as such in writing.
- The provisions made in Sections IX and X apply accordingly, under the exclusion of further claims by the orderer, if the delivery item cannot be used as stipulated, due to fault of FFS as a consequence of failure or omission to implement suggestions made before or after entering contract, or other contracted subsidiary obligations, especially instructions for operation and maintenance of the delivered item.
- FFS is only liable – irrespective of the legal reason - for damages, which did not incur on the delivery item itself, in the case of
- gross negligence by bodies or managers
- culpable injury to life, body and health,
- defects, which they wilfully concealed or whose absence they guaranteed
FFS shall also be liable for gross negligence of non-managerial employees and for slight negligence, in latter case limited to reasonably foreseeable damage typical of the type of contract, in the case of a culpable breach of substantial contractual obligations.
Further claims are void.
- In case the orderer is liable under law, which liability cannot be excluded with regard to third party claimants, then the FFS shall hold the orderer free and harmless of any claim to the extent he would himself be liable directly. Compensation between orderer and FFS shall be settled by applying the principles of § 254 BGB correspondingly. This shall also apply if FFS is held liable directly.
- Any liability shall be excluded to the extent the orderer has on his part effectively excluded any liability in relation to his customer. In doing so the orderer shall attempt to stipulate limitations of liability on behalf of FFS to the extent legally possible.
- Any claims of the orderer shall be excluded inasmuch as the damage is caused by the non-observance, attributable to the orderer, of operating, service and installation instructions, to unsuitable or inappropriate use, to incorrect or careless treatment, normal wear and tear or incorrect repair.
- As far as legally bound FFS shall be liable for compensation with regard to actions which the orderer undertakes to avoid any damage (for instance recall actions).
- If the orderer intends to assert a claim against FFS according to the afore stated provisions, he shall forthwith consult FFS and shall comprehensively inform him. He shall give FFS the opportunity to investigate the damage occurred. The contracting parties shall agree upon the steps to be taken, especially in the case of negotiations for a settlement.
- The rules stated in Section VI numeral 1 and 3 shall be applicable accordingly, if FFS has no or no sufficient insurance coverage.
XI. Statute of limitations
All claims of the orderer – irrespective of reason – are subject to statute of limitations of 12 months. The legal respites apply for intent and wilful conduct.
XII. Design, tools
- The trouble-free suitability of the design and construction and of the material of those products which are to be produced by FFS shall be and is subject to the orderer’s tests and trials. All suggestions and recommendations, design drawings and electronic files and other documents which FFS will furnish to the orderer, shall remain FFS’s property and shall not be made accessible or disclosed to any third party without FFS’s written consent. The orderer shall be liable for the lawfulness of the use of any such drawings, drafts, models, etc. which are furnished and submitted to FFS.
- Models, casting moulds, forging dies, moulding tools, devices and other operating media will be separately invoiced. They shall continue to be and remain property of FFS, even in those cases where a certain share was charged and invoiced for their costs.
XIII. Software use
- If software is included in a delivery, the orderer shall be granted a non-exclusive right to use the software and its associated documentation. Such software shall be provided for use with the specific delivery item. The use of the software on more than one system is prohibited.
- The orderer shall only be entitled to copy, revise or translate the software or to convert from object code to source code to the extent permitted by law (Art.69 a et seq. UrhG – German Copyright Act). The customer undertakes to refrain from re moving manufacturer’s markings, in particular copyright notices, or to change these without the prior express consent of FFS.
- All other rights to the software and the documentation including copies thereof shall remain with FFS or the software supplier. The issue of sublicenses is prohibited.
- FFS shall not be liable for errors or damages, which occur due to modifications not authorised by FFS.
XIV Right of withdrawal
- The orderer can immediately withdraw from the contract, if FFS cannot provide complete performance before passage of risk. The orderer can furthermore withdraw from the contract, if the performance of a part of the order is impossible and he has a legitimate interest in declining the partial delivery. The orderer has to pay the contractual price for the partial delivery, if this is not the case. The same applies with inability of FFS. In all other respects Section X 2 applies.
The orderer remains obligated to quid pro quo, if the impossibility or the inability occurs during the default of acceptance or if the customer is solely or predominantly responsible for these circumstances
- The offerer is entitled to withdrawal in the context of the appropriate legal provisions, if he grants FFS in default an appropriate period for performance and if this period is not observed.
- We are entitled to totally or partly withdraw from the contract in the case of unforeseeable events in the sense of Section V, if they substantially change the economic meaning or contents of the performances or considerably affect our enterprise. The right of withdrawal is likewise possible in accordance with Section III.
XV. Place of performance, legal venue, applicable law, miscellaneous
- The legal venue is the court of law, which is responsible for FFS’s place of business, if the orderer is a merchant, a legal entity under public law or a public separate fund asset. FFS is also entitled to file court proceedings with the court responsible for the orderer. The same applies, if the orderer does not have a general domestic legal venue, has moved his domestic domicile or residence abroad after conclusion of contract or his domicile or residence is unknown at the time of filing the action.
- Exclusively German law governs. The applicability of the United Nations Sales Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG –“Vienna Sales Law”) shall be excluded thereby.
- In the event any provision of these terms and conditions or part of any provision is or becomes invalid, the remaining provisions or portions of the provision shall remain unaffected thereby.
Wassenberg, April 2021