General Terms And Conditions

1. Scope of application

a) The deliveries of FOSBA GMBH are made only under the following conditions of sale. Agreements or business conditions of the customer deviating from these require the explicit, written consent of the seller to be effective, as far as they contradict these conditions. The sales conditions of the seller become part of the contract at the latest with acceptance of the delivery.

b) The Seller's general terms and conditions of delivery and payment shall apply exclusively. The Purchaser's general terms and conditions shall only apply to the extent that the Supplier/Orderer has expressly agreed to them in writing.

2. offer and conclusion of contract

The offers of the seller are subject to confirmation and non-binding. Delivery conditions of the customer are only effective if they are confirmed in writing by the seller. Acceptances of offers require our express written confirmation in order to be valid. The same applies to supplements, collateral agreements and amendments.

The agreed price shall be the price valid on the day of delivery plus the taxes to be shown openly in the invoices, unless they conflict with separate agreements.

The Seller reserves its unrestricted proprietary and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter referred to as "Documents"). The documents may only be made accessible to third parties with the prior consent of the Seller and must be returned to the Seller immediately upon request if the order is not placed with the Seller.

3. obligations of the purchaser

If the Purchaser is in default of acceptance, the Seller shall be entitled, after setting a reasonable grace period, to withdraw from the contract and claim damages instead of performance. In the latter case, the Seller shall be entitled to demand either a lump sum of 5% of the invoice amount agreed in accordance with Clause 2 or compensation for the actual damage incurred, unless the Buyer can prove a lesser damage.

4. terms of use online shop

4.1 Access data

With the login and the associated acceptance of the GTCs and the data protection declaration of the online shop, the online shop user undertakes not to pass on his access data (customer number and assigned password) to third parties.

4.2 Retirement of employees of the user company FOSBA GmbH. The online shop user notifies FOSBA GmbH immediately if an employee who was familiar with the online shop leaves the company of the online shop user. In this case, FOSBA GmbH will provide the respective company with new access data.

5. payment

5.1 The invoice amounts shall be paid by direct debit or in accordance with the Seller's conditions on the order confirmation or invoice. Payment periods stated on the order confirmation and/or invoice, in particular also for the calculation of discount deductions, shall commence on the invoice date. Agreed cash discounts are only permissible if no invoices already due are to be paid. In the event of default on the part of the Purchaser, the Seller shall be entitled to demand interest at a rate of 8% above the respective base interest rate. Default interest is due immediately. The Purchaser may only offset or assert a right of retention against such claims which are undisputed or have been established as legally binding.

5.2 Irrespective of the agreed method of payment, the Seller may also demand security prior to delivery if, after conclusion of the contract, justified doubts arise as to the solvency or creditworthiness of the Buyer, if agreed payment or delivery terms are not met in material respects or if material changes occur in the business relationships of the Buyer. If the Buyer refuses to provide security within a reasonable period of time set for him, the Seller may rescind all contracts concluded with the Buyer in whole or in part. We reserve the right to assert further claims.

5.3 Seller's employees shall only be entitled to collect debts upon presentation of a special identification document.

6. delivery

6.1 In the absence of special instructions from the Purchaser, the choice of the route of transport shall be made by the Seller at its dutiful discretion. Cartage at the place of destination, surface freight as well as additional freight for express goods and air freight shipments shall in any case be borne by the Purchaser. Freight reimbursements in the case of self-collection by the Purchaser shall be calculated in accordance with the freight tariff most favourable to the Seller in each case.

6.2 For the determination of the weight of the delivery, the weight determined upon dispatch at the supplying plant or warehouse shall be decisive.
6.3 The agreed delivery period begins with the dispatch of the order confirmation, but not before the provision of the documents, approvals and releases to be procured by the customer. If an agreed delivery date is exceeded by more than two weeks, the Purchaser shall be entitled to set the Seller a grace period of a further two weeks with a threat of rejection. If the delivery obligation is not fulfilled by the end of the grace period, the Purchaser shall have the right to withdraw from the contract. Withdrawal must be declared in writing immediately after expiry of the period of grace set, at the latest within two weeks of expiry of this period.

6.4 Events for which the Seller is not responsible and which make delivery or its transport impossible or unreasonably difficult shall entitle the Purchaser to withdraw from the contract if such events last longer than three months. The seller's right to postpone the delivery until the obstacle has been removed shall be independent of this. These circumstances shall be communicated by the Seller to the Purchaser without undue delay. Partial deliveries which have already taken place shall be considered as an independent transaction; payment of the partial deliveries may not be refused on account of the quantities still outstanding. In the event that the delivery is postponed for the aforementioned reasons, the customer shall not be entitled to set a grace period or to withdraw from the contract. In case of at least grossly negligent delayed delivery/partial delivery or complete or partial non-delivery, claims for damages shall be limited to the typical, foreseeable damage. Otherwise claims for damages are excluded.

7. transfer of risk

Unless otherwise agreed, the risk shall pass to the customer upon dispatch of the delivery from the supplying plant or warehouse. The customer bears the risk for all returned deliveries during the return transport as well as for the packaging during the outward and return transport.

8. liability for defects

8.1 Recognisable defects must be notified to the seller immediately, at the latest within eight days of receipt of the delivery at the place of destination. Samples of the delivery complained about shall be sent in. In the event of a defect, the Purchaser may - unless otherwise agreed - only demand remedy of the defect or subsequent delivery of the delivery complained about. If the subsequent performance/delivery fails, the customer shall be entitled to reduce the purchase price or withdraw from the contract. The agreed liability for defects shall apply to all deliveries within the scope of remedying the defect. Unless otherwise stated below, other and further claims of the customer are excluded. This applies in particular to claims for damages due to breach of duties arising from the contractual obligation and tort. In the event of intent or gross negligence, the Seller shall be liable in accordance with the statutory provisions. The Seller's liability shall in any case be limited to the foreseeable, typically occurring damage, provided that there is no intentional action or omission on the part of the Seller's executive bodies, or provided that an essential contractual obligation is not culpably breached. The liability according to the product liability law remains unaffected. The above limitation of liability shall also not apply in the event of injury to life, limb or health. Insofar as the Seller's liability is excluded or limited, this shall also apply in favour of its employees in the event of direct recourse to them by the Buyer.

8.2 If the railway, shipping company or other carrier accepts the delivery without complaint, the Seller's liability for improper packaging or loading shall be excluded, unless the Seller is liable for intent or gross negligence.

8.3 The verbal and written technical advice provided by the Seller is non-binding and does not release the Purchaser from his obligation to check the suitability of the products. This shall also apply if the delivery is generally recommended for a specific purpose. Should a liability of the seller nevertheless come into question, the regulation of the agreed liability for defects shall apply accordingly. It is the sole responsibility of the customer to comply with any industrial property rights of third parties, e.g. application patents, and statutory regulations when processing the delivery.

8.4.1 The limitation period for claims and rights due to defects - irrespective of the legal basis - is one year. This limitation period shall also apply to other claims for damages against the Contractor, irrespective of their legal basis. It shall also apply if the claims are not related to a defect.

8.4.2 The limitation period according to paragraph 1 shall apply with the following proviso:
a) The limitation period does not generally apply in the case of intent.

b) The period pursuant to paragraph 1 shall also not apply if the Contractor has fraudulently concealed the defect [or if the Contractor has assumed a guarantee for the quality of the delivery item].

c) The limitation period specified in para. 1 shall also not apply to buildings or a work whose success consists in the provision of planning or monitoring services for these.

d) Furthermore, the limitation periods shall not apply to claims for damages in cases of injury to life, limb or health or freedom, to claims under the Product Liability Act, to grossly negligent breaches of duty or to culpable breaches of material contractual obligations.

8.4.3 The limitation period for all claims for damages shall commence upon acceptance.

8.4.4 Insofar as claims for damages are referred to in this provision, claims for reimbursement of futile expenses shall also be covered.

8.4.5 Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the expiration of the limitation period, suspension and recommencement of the limitation period shall remain unaffected.

8.4.6 A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.

9. retention of title

9.1 The delivery shall remain the property of the Seller until all outstanding claims from the joint business relationship, including interest and costs, have been settled in full or until the cheques or bills of exchange given for this purpose have been cashed in full. The seller is entitled to assert the retention of title by simple declarations. The retention of title also extends to the resold delivery and to the products resulting from processing. If the goods are combined or mixed with material which does not belong to the Seller, the Seller shall always acquire co-ownership of the manufactured new item in the ratio of the value of the reserved goods to the value of the new item. In this case, the purchaser shall be deemed the custodian for the seller. If the Seller does not acquire co-ownership when several items are combined, the Purchaser hereby assigns to the Seller the co-ownership share determined in accordance with sentence 4.

9.2 The customer is revocably entitled to sell the delivery within the framework of a proper course of business. Any other disposal, in particular pledging, transfer by way of security or transfer in exchange is not permitted. The seller must be notified immediately of any attachments made by third parties - even after mixing or processing - as well as any other impairment of the rights to the delivery owned by the seller. The customer hereby assigns to the seller accepting the assignment, irrespective of any processing, all claims and ancillary rights to which he is entitled from the resale and the business relationship with his customers in connection with the resale. In the event that the delivery is sold by the customer together with other goods not belonging to the seller, the assignment of the purchase price claim shall only apply to the amount of the value of the delivery.

9.3 The purchaser is revocably authorised to collect the claim from the resale of the delivery. The authorisation to collect and the right to process shall also expire without express revocation if the Purchaser ceases payments, in the case of Clause 4.2, a cheque or bill protest or a seizure. Any assigned accounts receivable received thereafter shall be collected immediately on a special account with the designation to be indicated separately by the Seller. At the Seller's request, the Buyer shall immediately inform the Seller in writing of the debtors of the assigned claim and notify the debtors of the assignment. The Seller undertakes, at his discretion, to release the securities given to him at the request of the Buyer if their realisable value exceeds the Seller's total claim to be secured by 20%.

9.4 If the purchaser defaults on his payment obligation towards the seller or violates one of the obligations arising from the agreed retention of title, the entire remaining debt shall become due immediately. In such cases, the Seller shall be entitled, subject to § 107 (2) InsO, to demand the surrender of the delivery and to collect it from the Purchaser. The Purchaser shall have no right of possession. The seller is entitled to inform the purchaser's customers of the assignment of the purchaser's claim to the seller and to collect the claim. Any return of goods shall always only be effected as security; even if partial payment is subsequently permitted, this shall not constitute a withdrawal from the contract.
10. final provisions

10.1 If individual provisions of these Terms of Delivery or of the delivery transaction are or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall be obliged to agree on a new provision which comes as close as possible to the purpose pursued by the invalid provision.

10.2 Unless otherwise agreed, the place of performance for all obligations arising from the delivery transaction and the place of jurisdiction for all disputes in connection with the delivery transaction and/or a documentary process shall exclusively be Brilon.

10.3 The relations between seller and buyer are exclusively subject to the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.