GENERAL CONDITIONS OF SALE AND DELIVERY OF FERNCAST GMBH
(hereinafter referred to as „Ferncast“)
The following Conditions of Sale and Delivery refer only to contracts of sale and delivery agreed with entrepreneurs and companies according to Sec. 14 German Civil Code. The ordering party accepts these Conditions as legally binding. Deviations from these Conditions, including deviating conditions from the ordering party, together with alterations and additions, must be confirmed in writing by Ferncast to be legally effective. Verbal agreements of any nature are ineffective.
1. An order of the customer as well as collateral agreements and other stipulations must be confirmed by Ferncast in writing to become valid, even if Ferncast has submitted an offer prior to conclusion of the contract.
2. Ferncast’s offers are without engagement. Deliverable are only those goods which are set forth in the actual price list of Ferncast. Partial deliveries are allowed; they can be charged additionaly. Orders on call have to be made at least 2 weeks before the required delivery date.
3. Delivery times are indicated to the best of Ferncast’s ability so that they can be fulfilled on the basis of normal production/ subcontractor delivery conditions. There are no fixed delivery times unless Ferncast declares them binding in writing. The fulfillment of the delivery obligation requires that the ordering party has completed all other preconditions in her responsibility.
4. Ferncast decides on the mode and route of transport at her discretion, unless the parties have reached an explicit written agreement on another mode of transport. Unless otherwise agreed, delivery is executed from Flensburg, as place of production, or from the seat of Ferncast. The risk of accidental loss or deterioration is transferred to the ordering party at the moment in time when the goods are passed on to the carrier.
5.1 Ferncast has to be notified in writing of apparent defects maximum two weeks after receipt of the goods; hidden faults have to be notified immediately after discovery. Ferncast is not liable for any faults for which notification is received by Ferncast after expiration of this delay. The ordering party has to prove all preconditions for the warranty claim, especially the fault, the time of its detection and the due time of notification.
5.2 In case of justified faults Ferncast will react in her option by reworking the goods free of charge or by replacing the goods. If Ferncast fails to eliminate the faults within an appropriate period of time, the ordering party is entitled to withdraw from the contract or to reduce his payments.
5.3 Ferncast grants a warranty of 12 months.
5.4 There is no guarantee for damages which are caused by improper use or fair wear and tear by the ordering party or third parties.
6.1 Ferncast is only liable for faults – no matter on which legal ground they are based – caused by her or her vicarious agents in willful intent or gross negligence, unless an inherent covenant has been violated. Any claims of damages from the ordering party based on negligence at the formation of the contract, collateral negligence or tort are limited to the foreseeable damage.
6.2 Ferncast’s liability is limited to direct damages. Ferncast´s liability for indirect or consequential damages, especially loss of production, is excluded, unless the damage is caused by willful intent or gross negligence of an inherent covenant.
6.3 The limitation of liability applies also to the personal liability of employees, staff members, representatives and vicarious agents of Ferncast.
6.4 In the event of damage to person’s life, body or health, Ferncast is compulsory liable. Also, Ferncast is responsible for product liability.
6.5 Damage claims of the ordering party due to a fault of a good prescribe one year after the delivery of the good. This limitation does not apply in case of fraud.
6.6 In case Ferncast produces or processes the goods according to a specification of the ordering party, the ordering party is liable for all damages which are caused if the treatment turns out to be an infringement of a patent, copyright, trademark or other protective right of a third party. Ferncast reserves the right to adapt the required specification to legal demands or to reject it in total.
6.7 The customer releases Ferncast from liability onto §10 para. 2 german WEEE (“ElektroG”) and therefore withstanding claims of third parties.
7. In the event of force majeure, labour disputes, particularly strikes and lock-outs or in the event of other unforeseen circumstances at Ferncast or her subcontractors, Ferncast will be discharged from delivery for the period of irregularities. If the time of delivery will exceed more than 8 weeks, both parties can withdraw from the contract.
8.1 Prices are according to the actual price list of Ferncast. Prices are to be understood on Ferncast products EXW Aachen, Germany, depending on the ordered products, excluding packing, transport, transport insurance and customs. For domestic deliveries and for transport insurance, deliveries to ordering parties located in one of the European Community countries who have not notified Ferncast of the turnover tax identification number, statutory value added tax is added to the net prices.
8.2 Ferncast reserves the right to adapt the prices in line with a new cost situation, if the basic cost factors in Ferncast’s price calculations change after the purchase contract has been concluded.
8.3 Unless otherwise agreed, Ferncast’s invoices are to be paid within 10 days beginning with the invoice date or from notification that the goods are ready for dispatch, without any deductions. When the ordering party is overdue for payment, default interest is charged pursuant to Sec. 247 German Civil Code. Ferncast reserves the right to claim a higher damage caused by any delay.
8.4 If circumstances become known to Ferncast which give rise to fear that the ordering party’s financial situation is poor (excessive delays in making payments, submission of uncovered cheques, bill protests, compulsory execution measures, etc.), all outstanding invoices of Ferncast become immediately due for payment. In addition, Ferncast is entitled to proceed with further deliveries only against advance payment, payment on delivery, or on provision of bank guarantees or similar securities. Also Ferncast has the right to withdraw from the contract without setting the ordering party an extended time period and to claim the hereby caused damages.
8.5 Cheques and bills are only accepted pending full discharge of the debt. Bills are only accepted if Ferncast gives her explicit consent. The acceptance of a bill leaves the due date of the purchase claim unaffected. Discount and charges are at the expense of the ordering party.
8.6 Ferncast reserves the right to use incoming payments for the anterior and due account adding interest and extras, satisfying extras before interests before main claim.
8.7 The ordering party may only offset any claims or exercise any right of retention when his counterclaims are undisputed or have been declared to be legally effective.
8.8 In case the ordering party withdraws without reason from its order, Ferncast can claim 10 % of the net purchase price to cover the costs caused by processing the order and lost profit, notwithstanding the possibility to claim a higher loss. The ordering party reserves the right to prove a smaller loss.
9.1 The delivered goods remain Ferncast’s property until the purchase price has been completely paid and until all previous and future outstanding accounts within the business relationship have been paid and settled. The ordering party is obligated to execute all measures necessary to effectuate the reservation of property rights at his seat.
9.2 The conditional goods are worked and processed on behalf of Ferncast without its engagement. The ordering party does not earn ownership, deviating from Sec. 950, German Civil Code. When the goods are processed by the ordering party with goods which do not belong to Ferncast, Ferncast acquires co-ownership of the new product to the value of the invoice amount for the conditional goods according to Sec. 947, 948, German Civil Code. The new product resulting from this processing is considered to be conditional in the sense of these clauses.
9.3 If the ordering party defaults in his payment obligations, Ferncast is entitled to demand the surrender of the conditional goods at any time – even if Ferncast does not withdraw from the contract and without setting the ordering party an extended time period. For this, the ordering party grants Ferncast and her agents access to its factory premises and repository as well as the right to take away the conditional goods.
9.4 The ordering party has to treat well the conditional goods. The ordering party is obligated to insure the conditional goods adequately at their original value at his costs against fire-, water-, burglary damages and storm and tempest and transfers herewith his claims of these insurance contracts to Ferncast, who accepts this transfer.
9.5 The ordering party is only entitled to transfer ownership of the conditional goods to his customers as long as he fulfills his contractual obligations, he does not default in his payment obligations and there is no initiation of bankruptcy proceedings.
The ordering party has to secure payment by his customers before transferring ownership of the conditional goods to them. With immediate effect, the ordering party transfers all claims including secondary rights from the resale of the conditional goods to Ferncast as security, who accepts this transfer. The transfer is executed no matter if the goods have been sold without or after processing them.
9.6 The ordering party is only entitled to collect debts out of resales under the conditions of 9.5. Nevertheless, Ferncast reserves the right to collect transferred debts herself.
9.7 The ordering party has no right to pledge, mortgage or charge the conditional goods in any way. He has to notify Ferncast immediately in writing of seizures or other interventions of third parties and to send Ferncast a report of the seizure as well as an affidavit concerning the identity of the seized good.
9.8 Ferncast undertakes to release at her own discretion securities to which she is entitled at the ordering party’s request in so far as their actual value exceeds the claims thus being safeguarded by 20 % or more.
10. The ordering party is obligated to refrain from competitive advertising when selling the goods. Without prior consent of Ferncast it is forbidden to use protected rights (trademarks) for goods of other producers or for processed original Ferncast products.
11.1 Place of fulfillment for the contractual obligations of both parties is the seat of Ferncast.
11.2 Exclusive place of jurisdiction is Hamburg. Ferncast is how – ever entitled to sue the ordering party at the place of jurisdiction which is generally responsible for the ordering party.
11.3 All contracts between the parties shall be governed by and construed in accordance with the Laws of Germany, with the exception of the UN-Convention on the International Sale of Goods (CISG), dated April 11, 1980.
12. If any individual clauses of these conditions or the purchase contracts should become ineffective, the effectiveness of the remaining clauses remains unaffected, unless the clause presents an undue hardship for one party. Should a clause of these conditions be or become null and void, the parties will replace it by the valid clause which represents the purpose of the void clause in the best way.