I. Preface and conclusion the contract
a) The general terms of delivery and payment will be exclusively applied for all – also prospective – deliveries and services of the Frötek Kunstofftechnik GmbH. Contractor's acknowledgements referring to his own terms and conditions are hereby rejected.
b) Our offers are always subject to change without notice. Declarations of acceptance and orders require to their legal affect our written confirmation. Our employees are not authorised to give verbal additional agreements, which exceed the content of the written contract. The written form is also subject to be rescind only in written.
c) Drawings, illustrations, technical data, specifications of weight, measure and service are almost decisive as far as they are not mandatory indicated in the order acknowledgement. We reserve the property and copy right for these documents, they shall not be made accessible to third parties without our written acceptance.
d) Unless otherwise agreed upon, the „INCOTERMS“ defined by the International Chamber of Commerce in the respective current version are valid for the commercial terms (e.g. ex works).
e) The purchaser is not authorized to assign entitlements of the contractual relationship to third parties.
II. Prices and additional charges
a) Our prices are quoted net ex warehouse.
b) Metalliferous products are sold based on a basic price. Basic prices indicated in the offers will be monthly updated based on the current stock quotations (e.g. copper DEL / MK).
c) If the shipment is arranged by us, the purchaser shall bear all arising expenses. Dispatch is made in customary form without liability for cheapest shipment unless there is no special instruction of the purchaser. On receipt of a damaged shipment or loss of the shipment, the purchaser is obliged to obtain all necessary detections for the evidence of the damage and to directly announce the damage in written form.
a) All stated delivery dates are always without obligation. We do not assume responsibility for delays caused by force majeure – this particularly includes strike, lockout, operation disturbances or official directives – also applicable for our contractors and sub-contractors, even if binding delivery dates have been agreed. The purchaser shall enable us to delay the delivery by the duration of the obstruction in addition to the adequate start-up time or to entirely or partially withdraw from the not fulfilled contract. The same is valid for instances of delayed or impossible delivery due to obstructions which are not caused by us. The purchaser may only withdraw from the contract if he obligatory agreed upon a delivery date which has not been met by us and the purchaser sets a written respite of four weeks at least, which is elapsed in vain starting from the receipt of the respite.
b) We are entitled to carry out partial deliveries as far as they are reasonable for the purchaser.
IV. Passing of the risk
The risk is transferred to the purchaser as soon as the shipment is handed over to the person executing the transport or as soon as the dispatch leaves our stock or those of one of our subcontractors for the purpose of dispatch. If the dispatch is delayed on request of the purchaser, the risk is transferred to him on announcement of readiness of shipment. The same is valid for the assertion of retention of goods.
V. Chattel mortgage, Retention of title
a) The goods remain our property until fulfillment of all entitlements of the contract as well as payment balance requests of account current, on whatever legal ground.
b) Processing and alteration are always carried out for us as manufacturer, but without any obligation for us. In case, our (co-) ownership expires by combination, we already agree now that the (co-) ownership of the purchaser for the uniform object is transferred proportionate (invoice value) to us. The purchaser shall store our (co-) ownership free of charge. Goods, for which we have the (co-) ownership, are called goods subject to retention of title in the following.
c) The purchaser shall undertake to sell and work on the goods subject to retention of title only in the usual course of business to the regular business conditions as far as he is not behind schedule.
d) Claims of the purchaser out of the resale of the goods subject to retention of title on whatever legal ground (insurance, tortious act) together with all ancillary rights shall be transferred to us in full or to the value of our co-ownership share by now.
e) The purchaser is entitled to collect claims out of the resale up to our revocation, which is allowed at any time, as soon as he is not behind schedule. If requested by us, he is obliged to immediately inform his customers regarding our ownership of the goods and to provide us with all information for collection of our claims.
f) The purchaser shall directly inform us regarding distraints or other damnifications of the goods subject to retention of title caused by third parties. As soon as third parties are not able to settle payment, the purchaser exempts us from arising extrajudical and legal charges concerning assertion of our property.
VI. Guarantee, Limitation of liability, Exclusion of liability
a) The goods shall be examined immediately after arrival at the place of destination and be treated with the diligence of a proper Obvious defects shall be reprimanded within two weeks after receipt, other defects immediately on detection. If no correct notice of defect is made, all claims will extinguish.
b) We do not assume liability for defects:
- on non-observance of instructions which are enclosed to the shipment or which can be required from us respectively our branches,
- on improper interpretation, strain or handling,
- on improper reconditioning by the purchaser or third parties.
c) For the evaluation of the condition of the goods only our specification is valid. Our specification is regarded as lead specification as far as it is not amended in written on agreement.
d) On justified immediate notice of defect, we are entitled to decide for amendment or replacement.
e) Warranty claims for defects prescribe after expiration of 12 months as of the date of delivery.
VII. Conditions of payment
a) All of our invoices shall be paid immediately upon receipt without deduction. Grants of allowance require our expressive written confirmation. We are not obliged to accept checks or bills of exchange, acceptance is always only for payment purposes. Discount charges and note charges are to be borne by the purchaser and immediately to be paid.
b) We are entitled to change, adjust or cancel existing credit conditions at any time and without prior notice and to call for provision of bank guarantees, deposits or prepayment as far as objective reasons such as delays or impairment of the financial circumstances of the purchaser exist.
c) Incoming payments shall be set off according to § 366 II, 367 BGB.
d) Assertion of rights of retention or accumulation with counter claims of any kind – on whatever legal ground – or other deductions are illegitimate. This does not apply if the counter claim has been legally declared or is undisputed. The purchaser is also entitled for retention due to counterclaims out of the same contractual relationship.
VIII. Limitation of liability
All claims for damages against us as well as against our auxiliary persons and assistants on whatever legal ground are excluded unless they are based on:
- Infringement of the main obligation
- Intention or gross negligence
- Injury of life, body or health
Regulation is limited to the predictable damage in any case. It is normally assessed according to the value of the corresponding delivery.
IX. Force Majeure
Seller will not be liable for any delay or failure to perform its obligations caused by events or circumstances beyond its control including, but not limited to (a) fires and explosions, floods, storms, earthquakes, tsunamis, wars, military measures, national emergency, civil unrest, terrorism or comparable events (b) pandemics, epidemics, diseases, epidemics (in each case including subsequent outbreaks), quarantine measures or health emergencies (c) strikes or other disputes with employees (with the affected party or a third party ) or trade unions (regardless of whether the respective demands of the employees or trade unions are reasonable), (d) compliance with laws, ordinances, guidelines, export bans, permits, orders, official measures or similar requirements (e) lack of means of transport or transport delay en (f) missing, incorrect or late delivery by suppliers or difficulties in the procurement of required raw materials, raw materials, labor, services, energies, tools, machines or facilities as well as (g) operational disruptions or failure of systems (hereinafter "force majeure ").
If the available delivery quantity of the seller is not sufficient due to force majeure to meet his delivery obligations from the delivery contracts entered into, he is entitled to distribute the remaining products among his customers at his reasonable discretion. The seller is not obliged to procure the products on the open market or from other manufacturers or suppliers, including other companies in the group. If the seller buys or receives products after a force majeure event, he is entitled to use or distribute them at his own discretion.
X. Trademark rights
We ensure that products, which are not manufactured according to descriptions or instructions of the purchaser, do not infringe existing patents concerning the products itself in the United States or Europe to the best of our knowledge. This warranty is not valid for usage of the goods in connection with other products or other material or usage in processes or manufacturing of products. In case the purchaser gains knowledge about claims that the products infringe existing patents in the United States or in Europe, he shall immediately inform us in written and support us by providing information and assistance and shall transfer the exclusive responsibility to us for evaluation, defense and settlement of the claim. The purchaser shall indemnify us from all claims on whatever legal ground on reputed infringement of rights of third parties as well as claims on the basis of product liability or warranty as far as the goods produced or sold by us have been manufactured according to drafts, descriptions or instructions of the purchaser. This is also applicable for the necessary legal costs.
XI. Concealment, Forms and tools, Contractual penalty
We enjoin the purchaser from passing confidential information regarding the subject matter of the contract to third parties without our previous written acceptance. All descriptions, drawings, drafts, material information, manufacturing and process data as well as further information are our sole and exclusive property. The purchaser shall agree to not duplicate, use or pass these documents / information to third parties without our previous written approval. The documents shall be handed back to us on demand in the course of producing or after our completion of the performance. This is also valid for cancellation, finalization, fulfillment or completion of the concrete contract. All forms, tools and equipment („tool“) for the production of the goods of FRÖTEK-Kunststofftechnik GmbH form, irrespective of if payment is done by the purchaser or the vendor, business secrets and protected technology of the vendor, who owns the exclusive right of use. Tools which have been used for the manufacturing of products of FRÖTEK-Kunststofftechnik GmbH, shall not be removed out of our production facility. The purchaser will not receive any information about usage, size, creation etc. of tools before, while or after completion of the order for the contract goods. Design and production method for goods of the FRÖTEK-Kunststofftechnik GmbH remain our property. On demand of the purchaser we will destroy tools for manufacturing of goods of the FRÖTEK Werkstofftechnik GmbH, which have been paid or provided by the purchaser, and hand over notarially certified confirmation about the execution of the demand of the purchaser. On culpable infringement against the regulation of this paragraph, the purchaser forfeits a contractual penalty.
XII. Place of fulfillment, court of jurisdiction and applicable law
a) Place of fulfillment for our deliveries is the respective location of the delivery factory or stock. Place of fulfillment for all other obligations is Osterode am Harz.
b) Exclusive court of jurisdiction is Osterode am Harz. The exclusive jurisdiction shall not bar us from instituting legal proceedings at other courts.
c) The right of the Federal Republic of Germany is valid.