Fass-Frisch GmbH
Dispensing systems & accessories • plastics technology

Our general terms and conditions of business for merchants

§ 1 Applicability of these General Terms and Conditions of Business

(1) These General Terms and Conditions of Business (T&Cs) apply to our supplies and services rendered towards public-law entities, public-law funds or an entrepreneur acting in the exercising of his commercial or freelance business activity at the conclusion of the contract. If you are a consumer or if you have ordered in our webshop, these T&Cs are not applicable.

(2) These T&Cs shall also apply towards the clientele stated in subsection 1 sentence 1 in all future business relationships, even if they are not expressly agreed once again.

(3) Incorporation of T&Cs of a customer which contradict our General Terms and Conditions of Business is expressly contradicted.

§ 2 Conclusion of contract

(1) Our quotations are subject to change without notice and non-obliging, unless we have expressly confirmed the obligingness. This shall also apply if we have provided catalogues, technical documentations, product descriptions or other documents to the customer.

(2) An order has only been accepted by us when it has been confirmed by us in writing or if the service or the supply has been rendered.

(3) Diagrams, illustrations, dimensions, weights and other performance data shall only be understood as being approximate, in particular not portraying an assurance of properties, unless they have expressly been designated binding in writing.

(4) We reserve ownership and copyrights to product diagrams and specifications and also product-specific documents which we provide to the customer; they may not be made accessible to third parties. This shall in particular apply to written documents which have been designed “confidential”; before forwarding them to third parties, the customer shall require our express written consent.

(5) Devices, tools and other templates for performance of the order which have been produced by us shall remain our property, even if pro rata costs have been charged to the customer for them.

§ 3 Call orders

Call orders shall be limited to 1 year if nothing to the contrary has been agreed. At the end of a period of a call order, we shall supply and charge the items still open – even without an express call by the customer. Quantity rebates shall be granted according to the rebate stagger for the supplied goods and credited retroactively for further calls.

§ 4 Delivery dates or periods

(1) Delivery dates or periods not expressly agreed as being binding between ourselves and the customer shall exclusively portray non-binding statements. They shall begin no earlier than the final agreement about the performance of the order and the provision of any documents, approvals and releases to be procured by the customer. The same shall apply if the customer has to provide material itself.

(2) A delivery date or delivery period shall be complied with if the object of supply has left our factory or readiness for dispatch has been notified before its expiry.

(3) The delivery period shall be extended suitably in the event of unforeseen incidents, e.g. force majeure, strike, lock-outs, other disturbances of operation for which we are not answerable or in the event of the aforementioned disturbances of operation occurring with our suppliers. If such disturbances lead to a postponement of service of more than 30 days, the customer shall be entitled to withdraw from the contract. In all these cases, claims to damages on the part of the customer have been ruled out.

(4) In the event of arrears in supply for which we are or one of our vicarious agents is answerable, the following shall apply: if the customer justifiably claims the loss of its interest in the further performance of the contract, our liability shall be limited to the foreseeable damage typically occurring, unless the arrears in supply are based on a deliberate or grossly negligent breach of duty for which we are or one of our vicarious agents is answerable.

(5) If there is no loss of interest pursuant to subsection 4, the customer can claim liquidated damages to the amount of 1% of the value of the supply, albeit no more than 10% of the value of the supply, for each completed week of arrears in the event of arrears in supply for which we are or one of our vicarious agents is answerable. However, we reserve the right to prove that the customer has not suffered any damage or only considerably less damage than the aforementioned liquidated damages.

Further-reaching liability for arrears in supply for which we are or one of our vicarious agents is answerable has been ruled out unless the arrears in supply are based on a deliberate or grossly negligent breach of duty for which we are or one of our vicarious agents is answerable.

(6) If the customer falls into arrears in acceptance, fails to provide an action of cooperation or if our supply is delayed for other reasons for which the customer is answerable, we shall be entitled to demand indemnification of the damage incurred and other additional expenditure (e.g. costs of storage). For this, we charge liquidated damages to the amount of 1% of the value of the supply for each commenced week of arrears, starting with the delivery period or – in the absence of a delivery period – with the notification of readiness for dispatch of the goods. Proof of higher damage and our statutory claims shall remain unaffected; the liquidated damages shall however be offset against further-reaching claims to money.

The same shall apply if the customer culpably breaches duties to cooperate. The risk of chance deterioration or chance destruction of the goods shall pass to the customer upon occurrence of the arrears in acceptance or debtor’s arrears.

§ 5 Supply, packaging and passage of risk

(1) Supply shall be ex works inclusive of packaging; our works shall also be contractual place of performance. If the goods are sent by us to a different destination by the customer’s request and at its expense, the principles of sale by dispatch shall apply, i.e. dispatch is done at the customer’s account and risk. This shall also apply to franco supplies and in the event of all and any returns.

To the extent not agreed to the contrary, we shall be entitled to determine the nature of dispatch (in particular transport company, dispatch route, packaging) ourselves.

(2) Part supplies and part services shall be admissible to the extent that this can be reasonably expected of the customer.

(3) For sample and special productions outside our valid supply range, suitable additional or short quantities shall be deemed agreed.

(4) Disposable packaging such as cardboard shall be charged at purchase costs and not taken back by us.

(5) The risk of chance destruction and chance deterioration of the goods shall pass to the customer at hand-over at the latest. In sale by dispatch however, the risk of chance destruction and chance deterioration of the goods and the risk of delay shall pass as early as provision of the goods to the haulier, the forwarder or the persons otherwise intended for performance of the dispatch. To the extent that acceptance has been agreed, this shall be decisive for the passage of risk. Apart from this, the statutory directives on law of contracts for works shall apply accordingly to an agreed acceptance. Hand-over or acceptance shall be equated to the customer being in arrears in acceptance.

§ 6 Material provision by the customer / special productions / devices for performance of the order and patent and related rights

(1) If materials are to be supplied by the customer according to the contractual agreement, they shall be supplied to our factory in good time at its expense and risk and in a flawless condition and with a suitable additional quantity.

(2) If the customer’s supply is not fulfilled, our delivery time shall be extended suitably, in which case the customer shall bear the additional costs incurred.

(3) If pre- and interim products are sent to the customer for approval in the case of special productions, it shall be obliged to careful examination. The consequences of all and any errors after approval for production shall be borne by the customer to the extent that these are not errors which have only originated or were only recognised in the production process following the approval for production. The same shall apply to all approval declarations by the customer for further production.

(4) Templates, diagrams, raw materials, moulds or other objects for re-use supplied to us by the customer for the performance of the order and semi-finished and finished products supplied by the customer shall only be kept by us after the delivery date following prior agreement and against specific remuneration. The aforementioned objects shall be treated carefully until the delivery date to the extent that they have been provided to us by the customer. We shall only be liable for damage to or loss of the aforementioned objects in the event of malice aforethought or gross negligence. If these objects are to be insured, the customer shall attend to the insurance itself.

(5) The customer alone shall be responsible for the fact that no third-party rights, in particular copyrights, patents or utility models, are impinged as a result of the performance of its order. The customer is obliged to indemnify us against all claims by third parties on account of such impingements of rights.

§ 7 Prices and payment terms

(1) If not agreed to the contrary in the individual case, our prices valid at the time of the conclusion of the contract shall apply (according to our price list), this being ex warehouse, exclusive of the statutory value added tax valid at the time.

(2) In sale by dispatch (§ 5 subsection 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance which it requires. All and any customs, fees, taxes and other dues shall be borne by the customer.

(3) Payments can only be made with legal effectivity directly to us, this being

1. a) with 3% discount within 8 days of the date of the invoice or
   b) within 30 days of the date of the invoice or (without discount) or
   c) by advance transfer to one of our accounts.

No deduction of discount shall be granted on repair invoices; they shall be due for payment without delay following receipt of the invoice.

Deviating payment terms must be specifically agreed and confirmed by us in writing.

(4) If the agreed payment period is exceeded (arrears in payment), the statutory default interest, i.e. interest to an amount of 9 percentage points above the base rate of interest at the time, shall be charged by us. Our claim to commercial maturity interest pursuant to § 353, German Commercial Code, shall remain unaffected.

(5) We shall be entitled to demand a lump-sum of 40 Euros in the event of arrears in payment pursuant to § 288 subsection 5 German Civil Code. This shall also apply if the claim, with payment of which the customer is in arrears, is an advance payment or any other instalment payment. The lump-sum according to sentence 1 shall be offset against any damages owed by the customer to the extent that the damage is substantiated by costs of legal prosecution.

§ 8 Transport damage in delivery

If our goods are supplied with obvious transport damage, the customer shall be obliged to notify this to the transport company immediately and to get in touch with us without delay.

§ 9 Right of offset and retention

(1) A right of offset shall only accrue to the customer if its counterclaim is legally effective, is not disputed by us or has been acknowledged.

(2) The customer may only exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

§ 10 Retention of title

(1) We reserve title to all goods supplied by us until complete payment of all our current and future claims (including costs and interests) from the contract and a current business relationship. If our supplies and services are performed on current account, the retention of title shall also serve securing of the balance.

(2) The customer is authorised to dispose of our goods under retention of title in the ordinary course of business, in particular to process and/or to resell or rent the objects. In this context, the following shall apply:

a) Our retention of title shall extend to the products originating as a result of processing, blending or combining of our goods to their complete value. We shall be deemed manufacturer in this context. If a third party’s title remains in a processing, blending or combining with its goods, we shall acquire co-ownership in the ratio of the value of the goods provided by us to the outside goods which have also been used. Apart from this, the same shall apply to the product which originates as to the goods supplied under retention of title.

b) The customer here and now assigns the claims against third parties resulting from the resale of the goods or the products or the rental of goods to us to the complete amount or – if outside goods are also used – to the amount of our possible share of co-ownership according to the previous subsection by way of security. We accept the assignment.

c) Alongside us, the customer shall remain entitled to collect the claim. We undertake not to collect the claim as long as the customer properly fulfils its payment obligations towards us. If this is not the case or if there is reason to assume that this will no longer be the case in future, the customer shall be obligated, by our request, to provide us with all the information about the claims assigned and the debtor in question, to hand over all the documents necessary for collection of the claim and to notify the debtors of the assignment.

d) The customer shall notify interventions against our conditional commodities by third parties immediately. In addition, it shall notify us immediately if opening of insolvency proceedings is to be expected.

e) If the aforementioned collateral exceeds our claims by more than 10%, it shall be released by us upon request by the customer to the extent that its realisable value exceeds the secured claims by more than 10%. Realisable shall be the estimated value for conditional commodities and the par value of claims assigned by way of security.

§ 11 Warranty

(1) According to § 377, German Commercial Code, the customer is obliged to examine the goods with the necessary due care immediately after supply and to notify us without delay if a defect is seen in this. This shall apply to deviations both in quality and also in quantity. If this examination or punctual notification is not done, the goods shall be deemed approved unless it is a question of a defect which was not recognisable at the examination. Punctual dispatch of the complaint shall suffice for compliance with the period. The duty to notification without delay (from discovery) shall also apply to hidden effects discovered later.

(2) Defects in a part of the supplied goods shall not entitle to complaints about the entire supply, unless the part supply is provably of no interest to the customer.

(3) Claims to warranty shall not exist if the defect in question is to be ascribed to improper treatment or improper use of the goods or to interventions or changes to the goods carried out by the customer.

(4) In the event of justified notifications of defect, we shall warrant by after-working or replacement delivery (subsequent performance) at our choice. In the event of after-working, we shall not bear the additional costs caused by transportation of the goods to a place other than the place of performance (Eppingen unless a different place of performance has expressly been agreed between the customer and us), unless transportation is equivalent to the proper use of the goods. If the subsequent performance fails, the customer can demand a reduction of the price or withdraw from the contract at its choice.

• 12 (Liability), not § 11 (Warranty) shall apply to all claims to damages, also for subsequent damage from defects.

(5) The warranty period shall be one year from supply of the goods.

(6) Defect-free goods may only be returned if this has been approved by us beforehand in a textual form. If a credit is granted for returned defect-free goods, an amount of 10% of the value of the goods shall be deducted or charged by us as a lump-sum, unless we have expressly made an agreement to the contrary with the customer in the run-up to the return.

§ 12 Liability

(1) We shall be liable without limitation for malice aforethought or gross negligence and according to the provisions of the German Product Liability Act. For slight negligence, we shall always be liable in the event of damage from an injury to life, limb or health of persons.

(2) Apart from this, our liability has been limited as follows: for slight negligence, we shall only be liable in the event of a breach of an essential contractual duty, performance of which is necessary to make proper performance of the agreement possible and in compliance with which the contracting party regularly trusts and may regularly trust (cardinal duty). Liability for slight negligence is limited as regards the amount to the damage foreseeable at conclusion of the contract, origination of which may typically be expected. This limitation of liability shall also apply in favour of our vicarious agents according to § 278 German Civil Code.

(3) Our liability on account of arrears in supply has been finally regulated in § 4.

§ 13 Final provisions

(1) If one or more of the provisions of these General Terms and Conditions of Business is/are or become(s) ineffective, the validity of the remaining provisions shall not be affected. The same shall apply to the extent that a loophole is found in this contract. The ineffective provision shall be replaced or the loophole shall be filled by a suitable regulation coming commercially closest, to the extent legally admissible, to what the contracting parties intended or would have intended according to the sense and purpose of the contract if this point had been considered.

(2) Concluded purchase agreements shall exclusively be governed by German law. Applicability of the provisions of the “United Nations Convention on Contracts for the International Sale of Goods“ (CISG, also called “UN Purchase Law”) has been ruled out.

(3) Heilbronn shall be the exclusive place of jurisdiction for all present and future claims from or in connection with the contractual relationship. At our choice, we shall be entitled to sue at the customer’s registered office.

(4) Place of performance shall be Eppingen unless a different place of performance has expressly been agreed between us.

Volksbank
Kraichgau eG

BIC: GENODE61WIE

IBAN: DE40 6729 2200 0022 0968 18