The following General Terms and Conditions of Sale and Delivery form an integral part of the purchase agreement. The Purchaser's contrary or deviating terms and conditions or any other such restrictions are not recognised unless the Vendor - hereinafter FÖRCH - has expressly agreed to them in writing in each particular case.
1. Offers, Orders
1.1 Offers made by FÖRCH are, to the day of delivery, non-binding with respect to price, quantity, delivery period and delivery options.
1.2 The Purchaser’s orders will become binding for FÖRCH with the Vendor's written or printed confirmation (including by invoice or delivery note).
2.1 The delivery will be charged at the Vendor's currently valid prices, plus the additional statutory VAT.
2.2 All offered and listed prices are based on delivery ex FÖRCH’s place of business.
Shipping costs will be separately charged.
2.3 If the fundamental basis on which prices are calculated changes between order and delivery, FÖRCH is entitled to adjust the price in accordance with the change in the cost basis.
3.1 Unless otherwise agreed, invoices are payable without deduction within 30 days after having been issued. A discount of 2% will be granted in respect of payments made within 14 days after issue of the invoice. The payment conditions set out in the order confirmation are deemed accepted.
3.2 If there are justified reasons for doubting the Purchaser’s ability to pay or its creditworthiness and where, despite having been issued a request, the Purchaser is unwilling to make payment in advance or to arrange collateral security in respect of the payment it is liable to pay, FÖRCH, provided it has not yet rendered performance, is entitled to rescind the agreement.
3.3 The submission of bills of exchange or cheques requires the consent of the FÖRCH; this is made on account of payment. The maximum clearance period for bills of exchange is ninety days after date of invoice.
3.4 Payments are only deemed settled once the payment amount is available without restriction in an account held by FÖRCH.
3.5 The Purchaser has no right to withhold payment. The Purchaser is only entitled to set-off in respect of undisputed claims or claims that have been upheld by a final legal judgement.
3.6 Agents are not entitled to receive payments without the written authority of FÖRCH.
4.1 FÖRCH continually strives to make deliveries as quickly as possible. There are no fixed periods for delivery.
4.2 Where a fixed delivery is agreed, the aforementioned provision notwithstanding, in the event of a delay in delivery the Purchaser must stipulate a reasonable supplementary period in which the delivery is to take place, the said supplementary period as a rule to be four weeks. FÖRCH reserves the right to undertake the correct and scheduled delivery itself.
4.3 The day of delivery is deemed to be the day on which the goods leave the plant or a warehouse, and if this day is not determinable, it is the deemed to be the day on which they are made available to the Purchaser.
5.1 Shipment of the goods is, as a basic rule, performed at the cost of the customer.
5.2 FÖRCH reserves the right to choose the shipping method and mode. Additional costs incurred as a result of the Purchaser's special shipment requirements must be borne by this party. The same applies to increases in shipment costs, any additional costs of rerouting, warehousing costs etc. incurred after the conclusion of contract, unless freight-free delivery has been agreed.
5.3 The risk of destruction, loss or damage to the goods passes to the Purchaser upon the time of dispatch or at the time that they are made ready for collection for the Purchaser.
6. Retention of Title
6.1 The goods only become the property of the Purchaser, once the Purchaser has settled all its liabilities arising from its business relationship with FÖRCH, including ancillary demands, claims for compensation and redemptions of cheques and bills of exchange. The retention of title persists even where individual claims of FÖRCH are assumed into one current invoice and the balance is drawn and recognised.
6.2 FÖRCH is entitled, without stipulation of a supplementary period and without rescinding the agreement, to demand that the Purchaser surrender the goods subject to this retention of title, if the latter is in default of its liabilities vis-à-vis FÖRCH. The taking back of goods subject to this retention of title only constitutes a cancellation of the agreement if FÖRCH expressly declares this in writing. If FÖRCH cancels the agreement, it may demand adequate compensation for the use of the goods during the period of assignment.
6.3 In the event that the goods subject to this retention of title are processed, the Purchaser will act on behalf of FÖRCH but without acquiring any claims against FÖRCH by reason of the processing. The property under this retention of title of FÖRCH therefore extends to the products produced by the processing. If the goods subject to this retention of title are processed together with goods that are the property of a third party, or the goods subject to this retention of title are combined or joined with goods that are the property of a third party, FÖRCH will acquire co-ownership in the products hereby created, with the degree of co-ownership based on the ratio of the invoice value of the goods subject to this retention of title compared to the invoice value of the good that are the property of the third party. If the said goods are combined or joined with a main object belonging to the Purchaser, the Purchaser here and now assigns its rights of ownership in the new article to FÖRCH.
6.4 So long as the Purchaser fulfils its obligations vis-à-vis FÖRCH in an orderly manner, it is entitled to dispose of the goods subject to this retention of title in the normal course of its business; this does not apply however if and to the extent that a prohibition on the assignment of the purchase price has been agreed between the Purchaser and its own buyers. The Purchaser is not permitted to arrange attachments over the goods or otherwise use them as collateral or subject them to any other such charges. When reselling the goods the Purchaser must make the assignment of ownership dependent upon the full payment by the buyer for the goods.
6.5 The Purchaser hereby in advance assigns to FÖRCH all its rights arising out of a resale of the goods subject to this retention of title with all ancillary and collateral rights including with respect to bills of exchange and cheques. The said assignment is for the purpose of providing collateral security for all the claims of FÖRCH established vis-à-vis the Purchaser by reason of this business relationship.
If the goods subject to this retention of title have been resold together with other goods for one total price, the assignment is restricted to the amount of FÖRCH’s invoice relating to the co-sold goods which are subject to this retention of title. If goods are sold in which FÖRCH owned a portion as a co-owner pursuant to paragraph 3 above, the assignment is limited to that part of the claim corresponding to the co-ownership share of FÖRCH.
6.6 If it is apparent to FÖRCH that the realisation of its claims is at risk, the Purchaser must, upon demand, disclose the fact of the assignment to its buyers and provide FÖRCH with all requisite information and documentation. The Purchaser must inform FÖRCH immediately with regard to any third party interference in relation to the goods subject to this retention of title and the assigned claims. If the value of the collateral arranged in favour of FÖRCH exceeds its claims secured against the Purchaser by more than 20%, FÖRCH is obliged, upon demand of the Purchaser, to release the collateral security to that extent. The selection of the collateral to be released is at the discretion of FÖRCH.
7.1 Claims for compensation in favour of the Purchaser- including of a non-contractual type - are excluded where there is only a slightly negligent breach of duty on the part of FÖRCH, its executive management or other vicarious agents.
7.2 FÖRCH is only liable for damage/loss not predictable at the time that agreement was concluded, if it or its executive management has been grossly negligent in causing the damage/loss.
7.3 The foregoing does not apply to binding statutory regulations governing liability, as well as liability in respect of a warranty or the Product Liability Act.
8. Notification of defects
8.1 Notifications of defects are only taken into consideration if these are submitted immediately in writing, but in any case no later than fourteen days after receipt of the goods. The notification must include documentation, samples, packing slips and details of the invoice number, invoice date and the signatures on each package.
8.2 With respect to non-apparent defects, the written complaint must be submitted directly after the defect has been discovered, but no later than five months after the goods were received; the limitation of actions provisions remain hereby unaffected. The Purchaser carries the burden of proving that the matter is one of a non-apparent defect.
8.3 Goods about which a complaint is made may only be returned with the express consent of FÖRCH.
9. Rights of the Purchaser in the event of a defect
9.1 The rights of the Purchaser in relation to defects are limited to the right to subsequent performance. If the subsequent performance by FÖRCH is unsuccessful, the Purchaser is entitled to either opt to reduce the purchase price or rescind the agreement. The Purchaser's claims with respect to the requisite costs, in particular transport, carriage taxes, personnel and material costs, which are incurred in order to facilitate subsequent performance, are excluded to that extent that these expenses increase because the subject matter of the delivery was subsequently taken to another location other than the Purchaser's place of business.
9.2 The Purchaser is obliged to inform FÖRCH immediately with respect to any knowledge it has in relation to recourse actions occurring within the supply chain. Statutory rights of recourse in favour of the Purchaser against FÖRCH only exist to the extent that the Purchaser has not made any agreements with its buyers that exceed the statutory rights in respect of defects.
9.3 Warranties must be agreed in writing. A declaration of warranty is only effective if it adequately sets out the contents of the warranty together with its duration and the territorial scope of protection afforded by the warranty.
10. Limitation of actions
10.1 Claims in respect of defects as defined under Section 438 para. 1 no. 3 German Civil Code expire one year after the statutory limitation period started. For defects as defined under Section 438 para. 1 no. 2 German Civil Code, such claims expire two years after the statutory limitation period started. Binding statutory regulations concerning limitation of actions and liability, such as liability in relation to the provision of a warranty, for intentional and grossly negligent acts, for personal injury and death, the infringement of fundamental contractual obligations, the liability in relation to Product Liability Act and the sale of consumer goods remain hereby unaffected.
11. Characteristics of goods, technical advice, application and processing
11.1 The characteristics of the goods, as a rule, are expressly defined in the product descriptions, specifications and product codes of FÖRCH. Public statements, blurbs and advertising do not constitute any declaration relating to the characteristics of the purchased goods.
11.2 The technical application advice of FÖRCH given orally, in writing and through testing is made according to the best knowledge available but may only be regarded as non-binding advice, including in relation to the intellectual property rights of third parties, and does not release the Purchaser from making its own check of the goods supplied by FÖRCH to ascertain that these are indeed suitable for the intended processes and purposes. The application, use and processing of products is performed outside of FÖRCH's control and is therefore the sole responsibility of the Purchaser.
12.1 With regard to substitute products, it is not permitted to market or supply these instead of FÖRCH products whilst making reference to the latter products, nor is it permitted to use pricelists or other business documentation to establish a connection between FÖRCH product names, irrespective of whether these are protected or not, with the word "substitute" or to place them alongside the names of substitute products.
12.2 When using FÖRCH products for manufacturing purposes or when processing goods it is also prohibited, without the prior consent of FÖRCH, to use the product names of FÖRCH, and its brand names in particular, on such goods and their packaging or to use FÖRCH product names etc. in the accompanying print and advertising materials. The supply of product under a brand name should not be taken as consent to use this brand name for the products thereby produced.
13. Place of performance and court; severability clause
13.1 The place of performance for delivery is the relevant point of shipment; place of performance for payment is Neuenstadt.
13.2 Provided both parties are registered traders, the court with jurisdiction for hearing disputes arising out of this agreement is the relevant court in Heilbronn. FÖRCH is entitled, however, to assert its claims at the court with general jurisdiction for the registered address of the Purchaser.
13.3 If any of the provisions of these General Terms and Conditions of Sale and Delivery are wholly or partially invalid, this circumstance does not affect the validity of the remainder. The parties will undertake to substitute the ineffective provision for an effective one that most closely fulfils the commercial purpose of the original.
Theo Förch GmbH & Co.KG, Updated 01.01.2004