Last updated: June 2020
1. General Information / Validity and Scope / Written Form
(1) All of our deliveries, performances and quotations are exclusively based on these service and sales conditions. They are part of all the contracts we conclude with our contractual partners (hereinafter referred to as “purchasers”) about the deliveries and performances quoted by us. They also apply to all future deliveries, performances or quotations to our purchasers even if they are not agreed again separately.
(2) Terms and conditions of our purchasers or third parties do not apply even if we do not object to them in every individual case. Even if we are referring to a letter containing or pointing to the terms and conditions of our purchaser or a third party, this does not constitute our agreement with the application of those terms and conditions.
(3) Supplements and modifications of the concluded agreements, including these service and sales conditions, must be made in writing in order to become effective. In order to comply with the written form requirement, transmission via telecommunication media, in particular, fax or e-mail, suffices, provided the copy of the signed statement is transmitted.
2. Quotations and Contract Conclusion
(1) Unless expressly declared as binding, our quotations are non-obligatory; the purchaser’s order is qualified as a quotation according to Sect. 145 German Civil Code (BGB) and general rules of the law of obligations.
(2) Information about the object of delivery or performance (e.g., weight, dimensions, present utilisation worth, load capacity, tolerances, specifications) and our illustrations thereof (e.g., drawings and figures) have only approximate authority unless their usability for the contractually intended purpose requires exact conformance. This information constitutes no guaranteed composition characteristics but serves to describe or identify the delivery or performance. Deviations that (i) are customary; (ii) are performed because of statutory regulations; or (iii) constitute technical improvements, as well as the replacement of components by equivalent parts are permitted insofar as they do not impact usability for the contractually intended purpose.
(3) We retain ownership or copyrights to all the quotations and cost estimates we have provided as well as to information, drawings, figures, calculations, catalogues, models and other documents and aids we have made available to the purchaser. The purchaser is not permitted to make these objects available to third parties as such; inform them about their content; publish them; use or copy them themselves or through third parties; unless we give our express consent. Upon our request, these objects are returned to us in full and any copies that may have been made are destroyed if they are no longer needed for the proper course of the purchaser’s business. Excluded from the above is the storing of electronically provided data for customary data backup.
Our prices apply to the performance and delivery scope listed in our order confirmations. Additional or special performances are charged separately. Our prices are therefore in EUR ex works, excluding packaging, order-specific costs, statutory value-added tax, customs duties for export deliveries, fees and other public dues.
4. Payment Terms / Offsetting / Right of Retention
(1) Our invoices are due without any discounts within 30 days of invoice date.
(2) Non-observance of our payment terms entitles us to add interest to the receivables during default. The annual default interest rate is 5% points above the relevant base interest rate. If the purchaser is not a consumer, the interest rate for due payments is 9% points above the relevant base interest rate. We are entitled to demand higher interest rates for other legal reasons and reserve the right to further claims of damages.
(3) Regardless of agreed payment details, our receivables are due immediately if circumstances arise for the purchaser which make it unacceptable for us to retain agreed payment details; this includes, in particular, financial collapse, insolvency proceedings, negative changes to the insurability at commercial credit insurers, and similar. In such cases we already lodge an exception according to Sect. 321 Para. 1 S. 1 BGB (Objections Due to Uncertainty). In such as case we continue to be entitled to determine a reasonable period obligating the purchaser to effect our delivery and/or performance step by step or to provide suitable securities or advance payments.
(4) Asserting the right to retention and/or offsetting with counterclaims against us is excluded insofar as the demand(s) made by the purchaser is/are not undisputed and/or has/have been legally recognised.
5. Right to Non-Delivery / Partial Deliveries
(1) All of our promises of delivery are made, unless otherwise expressly agreed in writing, under the reservation that we ourselves receive our deliveries from third party upstream suppliers correctly and, in particular, on time.
(2) If our inability to deliver is caused by reasons of the upstream supplier not within our control, we as well as the purchaser can withdraw from the contract if the agreed delivery date has not insignificantly been exceeded or will be exceeded in all probability. We undertake to immediately inform the purchaser about such non-availability and to immediately reimburse them any already received considerations (payments).
(3) We reserve the right to make partial deliveries at any time.
6. Delivery Periods and Delivery Dates
(1) Fixed transactions presume an express designation as such in writing. Otherwise, the purchaser is always obligated to set us a reasonable grace period in writing if the dates and/or periods we promised are not kept. If the grace period is also not kept, the purchaser is entitled to withdraw from the contract. Damages depend on the regulations, limitations and disclaimers in Clause 10.
(2) In case of force majeure, in particular in case of epidemics, pandemics, traffic disruptions and instructions of higher authority and/or other exceptional and/or involuntary circumstances we cannot foresee, even if they occur at our upstream suppliers, the delivery period we promised is extended until the previously mentioned event has been resolved, unless it takes an unreasonably long time to resolve the previously mentioned event. An unreasonable time is to be assumed if a period of more than 8 weeks has passed. After that, the purchaser and we are entitled to withdraw from the concluded contract. In that case, no damages can be sought against us. We undertake to inform the purchaser as soon as we become aware of the previously mentioned circumstances and, in case of withdrawal from the contract, to immediately reimburse them any already received considerations.
(3) If keeping the date depends on the purchaser providing certain information and/or plans, release statements or similar, the delivery period only begins when we have the complete information of the purchaser in writing.
(4) If the purchaser requests the delivery to be delayed beyond the contractually specified time, we can, after a period of at least 5 working days after we notified of the goods’ readiness for dispatch, charge the purchaser for each started month a storage fee of 0.5%, up to a maximum of 5% in total, of the invoice amount.
7. Make-and-Hold Orders
(1) A make-and-hold order is a quantity-oriented variable agreement where the purchaser defines a period after which the deliveries take place.
(2) After placing make-and-hold orders, the acceptance period is a maximum of 6 months from the day of order confirmation, unless a deviating agreement was made in writing. At the end of the contractual term, the remaining stock can be delivered.
(3) In case of make-and-hold orders without agreed contractual terms, batch sizes and acceptance dates, Faber Infrastructure GmbH can demand a binding definition no later than three months after order confirmation. If we receive a make-and-hold order and no separate dates are agreed in writing about the make-and-hold dates, the purchaser is obligated to notify us of the individual make-and-hold dates in a way that there are at least 14 working days between receipt of the make-and-hold notice by us and delivery, and that the last delivery is no later than 90 days after our order confirmation.
8. Transfer of Risk and Risk of Loss
(1) The contractual parties agree on sales shipments in terms of Sect. 447 Para. 1 BGB. The risk is transferred at the time of dispatch of the ordered goods to the forwarding agent, freight carrier or other individual or institution designated to perform the shipment.
(2) If we make the ordered goods ready for dispatch and shipment or make-and-hold is delayed for reasons not within our control, the risk is transferred to the purchaser when they receive our notification of the goods’ readiness for dispatch.
(3) Return consignments to us, which we did not confirm beforehand in writing, are made at the purchaser’s sole risk.
9. Liability for Defects
(1) The risk is transferred to the purchaser no later than when the delivery object (the start of the loading process is relevant) is handed over to the forwarding agent, freight carrier or other third party specified for performing the shipment. This also applies in case of partial deliveries or if we have also assumed other performances.
(2) The delivered objects must be thoroughly inspected immediately following delivery to the purchaser or the third party specified by them. In terms of obvious defects or other defects that would have become apparent during an immediate, thorough inspection, they are deemed approved by the purchaser unless we receive a notice of defects in writing within seven working days after delivery. In terms of other defects, the delivery objects are deemed approved by the purchaser if we do not receive a notice of defects within seven working days after the moment the defect became apparent or when the defect would have become apparent with normal use or would have been detectable by the purchaser.
(3) In case the purchased item exhibits a defect that we were notified of in time and that is not just insignificant, we have the right of choice to remove the defect or deliver a replacement (subsequent fulfilment).
(4) Storage costs after transfer of risk are borne by the purchaser. If we perform the storage, the storage costs amount to 0.125% of the invoice amount of the delivery objects to be stored per completed week. We reserve the right to assert and document higher or lower storage costs.
(5) We only insure the shipment on the purchaser’s express request and at their cost against theft, breakage, transport, fire and water damage or other insurable risks.
(6) We bear the expenses for subsequent fulfilment in terms of working, material, expansion and testing costs insofar as they are required and are not disproportionate. We do not bear the costs if they increase because the delivery object is at a location other than the one of its intended use.
(7) If we are not prepared to or are not in a position to rectify the defect or execute a replacement delivery, or if this situation extends beyond appropriate periods of grace for reasons within our control or fails in another manner, the purchaser has the right to withdraw from the contract or to demand a reduction in the purchase price.
(8) Further demands of the purchaser, in particular damages, depend on the regulations, limitations and disclaimers in Clause 10.
(9) The warranty period is one year from delivery of the goods. For damages in case of intent or gross negligence and in case of damage to life, limb or health, based on an intentional or grossly negligent breach of duty by us, the legal statute of limitations applies. Insofar as the law according to Sect. 438 Para. 1 No. 2 BGB (building structures and components for building structures), Sect. 445 b BGB (right of recourse) demands longer periods, these periods apply.
10. Damages / Aggregate Liability
(1) We assume liability for intent and gross negligence as well as for damage from damage to life, limb or health, caused by at least grossly negligent breach of duty on our part or our legal representatives or vicarious agents; we also assume liability in case of guarantees we have assumed and/or handed over for the composition or existence of successful performance or assumption of a procurement risk as well as in case of a liability according to the German Product Liability Act and/or according to any other mandatory statutory liability provisions.
(2) In case of property damage or financial losses due to negligence, we assume liability if we breach a material contractual duty; the amount is, however, limited to the damage that is foreseeable at contract conclusion and contractually typical; material contractual duties are those whose fulfilment characterises the contract and which the purchaser may trust.
(3) In all other respects, liability is excluded, regardless of the legal reason (including tort liability).
11. Retention of Title
(1) We reserve ownership of the delivered goods—hereinafter referred to as reserved goods—until full payment of all claims arising from the business relationships with the purchaser has been satisfied. Retention of title also remains if individual claims are added to an active invoice (current account reservation).
(2) The purchaser is entitled to resell reserved goods within the course of ordinary business. The purchaser already assigns to us as security the compensation claims, amounting to the value allotted to the reserved goods, arising to them against their customers from such a sale. While the purchaser properly meets their obligations towards us, they are authorised to collect the claims assigned to us. In case of justified reasons, in particular if the purchaser culpably no longer fulfils their contractual obligations towards us, we are, however, entitled to revoke the above direct debit authorisation and to disclose the assignment made in our favour; in such a case the purchaser must immediately provide us with the documents necessary for disclosure.
(3) If the purchaser pledges reserved goods to third parties, assigns them as collateral security and/or makes them the object of factoring and/or sale-lease-back procedures and/or if assigning compensation claims is excluded in the purchaser’s customer’s contract terms, the sale is not regarded as a sale during the proper course of business. In any such cases, the purchaser is always obligated to obtain our prior approval in writing before conducting the intended transaction.
(4) In case reserved goods are modified and/or processed, this occurs on behalf of and for us as the manufacturer in terms of Sect. 950 et seq. BGB. In such a case we are entitled to ownership of the item(s) resulting from modifying / processing the reserved goods in the ratio of the reserved goods to the value of the new item(s) at the time of modification / processing. If the goods are simultaneously processed with others not belonging to the purchaser, we acquire co-ownership of the new item in the ratio of the invoice value of the individual processed goods to the achieved total value. Insofar as the purchaser resells the item newly produced by them, the claim arising to the purchaser from that and amounting to the value of the reserved goods is also assigned to us as security.
(5) If the reserved goods are damaged, perish or if claims of the purchaser against third parties—in particular against insurers—arise to the purchaser from an impacted value of the reserved goods, these claims are also assigned to us in the course of the above and the following provisions to secure our claim(s). If such demands arise, we must be immediately notified of them in writing.
(6) If the value of the securities assigned to us (relevant sales value minus statutory VAT minus earlier charges from third parties) effectively exceeds the claim(s) we are entitled to by more than 20%, we are obligated, at the purchaser’s request, to release no longer needed securities according to our due discretion.
(1) The right of the Federal Republic of Germany exclusively applies. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(2) Place of jurisdiction according to our choice is Saarbrücken, Germany.
(3) Once these service and sales conditions are published on the Internet, any conditions previously used by us become null and void.
© Faber Infrastructure GmbH 2020