General Terms and Conditions of Business
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Scope of validity
The following General Terms and Conditions of Purchasing, which you (hereinafter “Supplier”) recognize by making an offer or accepting an order, apply to the business relationship between the Supplier and the purchaser (hereinafter “FiMAB GmbH”) when FiMAB places orders.
FiMAB GmbH only places orders according to the following purchasing terms and conditions, also insofar as, in the case of ongoing business relationships, no subsequent express reference is made to these terms and conditions. Changes to these terms and conditions, in particular Supplier’s deviating or supplementary terms and conditions of business, are herewith rejected. FiMAB GmbH’s lack of reaction to order confirmations which refer to deviating or supplementary terms and conditions of business may not be viewed as consent. Such terms and conditions shall not become valid, also when an order placed by FiMAB GmbH is being carried out. Rathermore, by carrying out the order the Supplier recognizes FiMAB GmbH terms and conditions of purchasing. FiMAB GmbH will judge any change to the terms and conditions included in an order confirmation to be a rejection of the order. Should, despite this, delivery take place, then, in accordance with the above, this will be deemed as consent to FiMAB GmbH terms and conditions of purchasing.
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Conclusion of contract
Only orders placed in writing will be binding for FiMAB GmbH. Verbal agreements made when the contract is concluded must be confirmed in writing by FiMAB GmbH to be valid.
Orders placed by FiMAB GmbH must be confirmed immediately by the Supplier. Should confirmation not be made within 8 days, then FiMAB GmbH reserves the right to cancel the order free of charge.
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Offer, Price, Scope of delivery and service
All services required for faultless delivery respectively for a faultless manufacturing and assembly process will be included in the Supplier’s scope of service even if they are not expressly included in the contract.
Insofar as, in individual cases, no other agreement is made, the Supplier will be bound by his offer for 8 weeks (calculated from the date of receipt of the offer by FiMAB GmbH).
The prices agreed are fixed prices. The price includes free delivery to the receiving point specified by FiMAB GmbH including orderly packaging and all ancillary costs (insofar as not otherwise agreed in writing). Should no receiving point be agreed, then the receiving point will be D-75387 Neubulach.
FiMAB GmbH has the right to specify the type of packaging; choice of transport means and transport route as well as the type of transport insurance.
Freight, customs duty, taxes (excluding VAT) and any other levies are included in the prices.
The Supplier is obliged to obtain all required shipping documents, travel documents and other freight papers at his own cost and to present this to FiMAB GmbH in good time.
All above-mentioned documents must include a precise description of the scope of delivery according to item, type, quantity and order number.
Should the order include research, construction, development, drafts or similar services, then the Supplier is obliged to hand over all results, in particular construction and manufacturing drawings and documentation, user handbooks, etc. In the case of software development the scope of delivery includes, in particular, delivery of the software in source and object programme form and documentation of the programme development and application; this also applies to later updates within the scope of a service contract.
Any claim to remuneration for changed or additional services, no matter for what legal reason, is excluded if the Supplier does not given notice of his claim to remuneration prior to performance. Notice may, in individual cases, not be required in good faith, for example because the remuneration claim is obvious or the matter is urgent. In the case of changed services, additional and reduced services must be taken into consideration when making any claim to remuneration. For the rest, any possible claim to remuneration will be based on the pricing for the contractual service.
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Delivery date, Delivery quantity, Delivery
The delivery dates specified by FiMAB GmbH are dates for receipt of delivery/service and compliance is binding.
Partial deliveries/services will only be permitted if FiMAB GmbH consents to this.
The FiMAB GmbH goods receipt note is the binding document regarding the quantity supplied.
Should the Supplier be responsible for any doubt concerning his ability or willingness to deliver either before or after the due date, in particular because the Supplier has already announced that he cannot or does not want to deliver in good time, then FiMAB GmbH may, either before or after the due date, set the Supplier a deadline to provide a declaration concerning his ability or willingness to deliver and, where applicable, to provide proof of this. Should the deadline expire without success, then FiMAB GmbH may withdraw from the contract and/or demand damages instead of performance. Further claims will remain unaffected by this.
Should it become clear that a delivery date cannot be complied with, then the Supplier must contact FiMAB GmbH immediately. Should he fail to provide immediate notification or should he be late in doing so, then he must, notwithstanding further claims, provide compensation for any damages incurred as a result of the omitted or late notification.
Labour disputes; governmental interventions; interruption of operations; difficulties in obtaining raw materials or energy or other unforeseeable, exceptional circumstances beyond control will exempt FiMAB GmbH from accepting the delivery/the service for as long as they last. FiMAB GmbH must notify the Supplier immediately concerning the occurrence and probable duration of such circumstances. Insofar as these circumstances make it impossible or no longer economically reasonable for FiMAB GmbH to fulfil the contract, then FiMAB may terminate the contract extraordinarily. Claims by the Supplier to compensatory measures and/or damages will be excluded in such cases.
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Transfer of risk
Risk will be transferred to FiMAB GmbH upon handing over of the goods at the specified receiving point.
In the case of contracts for labour and materials (delivery including assembly) risk will not be transferred to FiMAB until the service has been accepted.
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Issuing of invoices, Terms of payment
Invoices must be sent after the goods have been dispatched. On no account may they be included with the goods. The invoice must include all the order details. Partial invoices are only possible if corresponding partial deliveries have been ordered.
Payment will, insofar as nothing else has been agreed, be made after 14 days with 3% discount or after 30 days net. The deadline for payment will commence on receipt of the invoice, however at the earliest upon acceptance of the delivery or the service.
In the case of notifications of defects FiMAB GmbH is authorized to defer payment of the invoice to a reasonable amount until the claim has been fully clarified and, following this period, to deduct the discount as per Item 6.2 above for the withheld sum.
Advance payments and instalments will require a special agreement. Should, in individual cases, payment in advance have been agreed in writing with the Supplier, then the Supplier must provide a reasonable security as chosen by FiMAB GmbH.
FiMAB GmbH has the right to offset outstanding own claims against those of the Supplier.
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Defects
The Supplier’s deliveries and services must comply with recognized rules of engineering; existing safety regulations and the agreed technical data, measurements, weights and other characteristics. Manufacturing based on drawings or approved samples must correspond to specifications. Insofar as the order does not make any additional requirements, deliveries and services must be performed in particular in customary commercial quality and, insofar as DIN, VDE, VDI or equivalent national or EU standards apply, in accordance with these standards. They must, in particular, be performed in such a way that they correspond to the legal regulations which apply at the reception point specified by FiMAB GmbH for the delivery/service respectively at the delivery’s/service’s final place of destination with the FiMAB GmbH customer, in particular regarding technical working materials; prevention of accidents; safety in the workplace; hazardous substances; emission protection; water protection and waste laws. Freedom for legal defects also applies to the final place of destination specified by FiMAB GmbH.
The Supplier must examine plans, drawings and other information provided to perform the FiMAB GmbH service or substances and components or services provided by other suppliers, insofar as they concern him, to ensure that they are complete, correct and fit for the intended purpose. Should there be doubts in this context, then the Supplier must inform FiMAB GmbH of this in writing immediately. Should he fail to do so, then he is, to this extent, also liable to provide a warranty.
The obligation to inspect goods and notify defects shall apply for 3 weeks from delivery at the receiving point respectively from acceptance of the service. In the case of defects which are not recognizable during the inspection, this period shall be three weeks from discovery of the defect. Should, in individual cases, a longer period be reasonable, then this period shall apply.
Should FiMAB GmbH demand rectification, then FiMAB GmbH shall be entitled to choose the type of rectification. In the case of purchase contracts FiMAB GmbH shall also be entitled to remedy the defect itself. In urgent cases FiMAB GmbH must, if it remedies the defect itself, not set a deadline.
The statute of limitations shall be 24 months and begin upon delivery to the receiving point respectively upon acceptance of the service, insofar as the law does not specify a longer period and the defect was not maliciously concealed and/or insofar as no special guarantees in the form of a manufacturer’s warranty have been accepted by the Supplier.
The administrative fee for processing of complaints is € 30.00. This includes compilation of a 6D report and documentation of the defects with image files. Where the complaint fee is exceeded or fallen short of, then it will be charged accordingly.
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Manufacturer liability, Product liability
Should FiMAB GmbH be subject to a claim resulting from manufacturer liability based on German or other law, then the Supplier shall be obliged to indemnify FiMAB GmbH from third-party claims for damage, insofar as he is responsible for the error which triggered liability. The Supplier shall, within the scope of this, also be obliged to reimburse expenses which are incurred as a result of or in connection with recall measures carried out by FiMAB GmbH or other measures to remedy or prevent damages. The Supplier thus waives any statute of limitations defence, unless FiMAB GmbH can argue the statute of limitations when responding to the plaintiff’s claim.
The Supplier is obliged to take out sufficient insurance to cover all risks arising from product liability and to provide proof of this insurance on demand.
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Assignment of claims
Claims arising from deliveries and services may only be assigned to third parties with the written consent of FiMAB GmbH.
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Provision of material
Material/parts provided by FiMAB GmbH will remain the property of FiMAB GmbH and must be stored separately by the Supplier and only used for FiMAB GmbH orders. The Supplier is liable for damages or losses, even if he is not responsible for them.
The Supplier will carry out processing or re-structuring on behalf of FiMAB GmbH. Should the item provided be processed together with other objects not provided by FiMAB GmbH, then FiMAB GmbH will acquire part-ownership of the new object in proportion to the value of the FiMAB GmbH item against the value of the other processed objects at the time of processing.
Should the item provided by FiMAB GmbH be amalgamated with other objects not belonging to FiMAB GmbH, then FiMAB GmbH will acquire part-ownership of the new object in proportion to the value of the FiMAB item against the value of the other objects at the time of amalgamation. Should amalgamation take place in such a way that the Supplier’s item must be viewed as the main item, then it is deemed to have been agreed that the Supplier will transfer a proportional share of ownership to FiMAB GmbH. The Supplier will manage FiMAB GmbH’s share of ownership. These provisions will apply correspondingly if the Supplier mixes or blends the item provided by FiMAB GmbH with other items.
The Supplier must take out insurance against material damages, loss, etc. for the item for which FiMAB GmbH is entitled to sole or part-ownership.
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Confidentiality, Ownership rights, Usage rights
The Supplier is obliged to treat the information and knowledge made available to him within the scope of carrying out the order as confidential, also following completion of the order, and not to exploit this information and knowledge for his own purposes.
All objects, in particular models, tools, samples, drawings, plans and documents of any kind, which are given to the Supplier will remain the property of FiMAB GmbH. The Supplier must keep such objects confidential and return them free of charge at any time should FiMAB GmbH so request. The Supplier may not make such objects available to third parties for study or make them otherwise accessible, nor may he reproduce them nor use them for his own purposes.
The same applies to moulds, tools or similar equipment or aids used to manufacture the delivery object and which are produced according to such documents and paid for either fully or in part by FiMAB GmbH. Changes to this may only be made with the consent of FiMAB GmbH. It is deemed to have been agreed that the above-mentioned objects will become the property of FiMAB GmbH (insofar as remuneration has been agreed, upon payment) and that these items will be managed for FiMAB GmbH free of charge and in an orderly manner. Should FiMAB GmbH have paid for the above-mentioned objects prior to completion, then it will correspondingly acquire ownership of the semi-finished product as per this provision.
The Supplier undertakes to take out insurance against material damages, loss, etc. for the objects stated in Items 11.2 und 11.3 which are the property of FiMAB GmbH.
In cases covered by Item 3.8 FiMAB GmbH will have the sole right, unlimited by time and geography, to use the results in any and all ways. Insofar as relevant, FiMAB GmbH is entitled to register protective rights. Insofar as the Supplier uses standard software for his deliveries and services, then FiMAB GmbH shall have a sole right, unlimited by time and geography, to use this software to at least the extent permitted by law. FiMAB GmbH is, in particular, entitled to use such software without limitation to individual systems and to grant FiMAB GmbH customers a simple usage right to this software.
Should the Supplier carry out improvements in connection with the order, then FiMAB GmbH shall have a free, non-exclusive usage right to the commercial exploitation of the improvement and any protective rights to it.
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Place of fulfilment and jurisdiction
The place of fulfilment is FiMAB GmbH’s domicile, D-75387 Neubulach.
With regard to commercial dealings the parties agree that the sole place of jurisdiction for any and all disputes arising within the scope of performance of this contract will be the domicile of FiMAB GmbH. The domicile of FiMAB GmbH will also be the place of jurisdiction for non-commercial dealings if the Supplier has no general place of jurisdiction in Germany or, following conclusion of the contract, relocates his place of residence or place of habitual residence outside the jurisdiction of the Federal Republic of Germany. This will also apply for cases in which the Supplier’s place of residence or of habitual residence are not known at the time the legal action is brought.
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Concluding provisions and applicable law
The Supplier confirms that he complies with the legal regulations of the German Minimum Wage Act (MiLoG) to their full extent and with other regulations such as, for example, reporting and recordkeeping obligations. In addition to this, the Supplier expressly assures that any and all contractual relationships and sub-contractors employed by the Supplier also comply with MiLoG regulations.
Should a provision of this contract be or become invalid, then the remaining provisions of this contract will remain valid. The contracting partners agree that the invalid provision will be replaced by a valid provision which best corresponds to the contracting partners’ economic objective. The same applies in the event that the contract has loopholes.
The business relationship and all legal issues relating from it are solely subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Download General Terms and Conditions of Purchasing as a file
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Scope of validity
The following General Terms and Conditions of Sale and Delivery, which you (hereinafter “Purchaser”) recognize by making an order, apply to the business relationship between the Purchaser and the vendor (hereinafter “FiMAB GmbH”) when making orders.
Purchasers can be consumers or entrepreneurs. A consumer is a natural person who enters into legal transaction for purposes that are predominantly outside his trade, business or profession (Sect. 13 German Civil Code, BGB). An entrepreneur means any natural or legal person or partnership with a legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (Sect.14 BGB).
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Conclusion of contract
Offers made by FiMAB GmbH are non-binding and subject to confirmation. A contract between FiMAB GmbH and the Purchaser will only come into being when FiMAB GmbH has confirmed the Purchaser’s order in writing.
The service to be performed by FiMAB GmbH is subject to FiMAB itself receiving complete and timely deliveries from its suppliers. Should the goods ordered no longer be available and/or require an unreasonable effort to procure, then FiMAB GmbH is entitled to withdraw from the contract. FiMAB GmbH will, in such cases, inform the Purchaser immediately and refund any payments received for the goods concerned. Any responsibility of FiMAB GmbH for intent or also negligence as defined by the scope of liability in Section 10 of these General Terms and Conditions of Sale and Delivery below will remain unaffected by this. FiMAB GmbH will also be entitled to withdraw if, following conclusion of the contract, it gains knowledge of the Purchaser’s objective lack of creditworthiness, thus putting FiMAB GmbH’s payment claims at risk.
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Delivery time
The agreed delivery time begins upon receipt and approval of all manufacturing-relevant documents respectively is extended by the period of time during which the Purchaser does not fulfil his own contractual obligations, in particular does not provide required material or information, in particular clear construction or manufacturing instructions, or does not provide drawings. Should, despite a written request, this not take place within a period of 10 days, then FiMAB GmbH is entitled to withdraw from the contract.
Processing will take place on the basis of the information provided by the Purchaser. Where provision of material has been agreed, the Purchaser must always include a delivery note with exact work instructions with the material. Should this information be missing, it could result in delivery delays caused by the need to clarify requirements. FiMAB GmbH will not bear responsibility for such delays.
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Delivery
The scope of services for the delivery will be based on the written order confirmation respectively on the delivery note or invoice.
Should the contract specify that FiMAB GmbH is responsible for handling shipping, then this will be carried out by a freight forwarder to be selected by FiMAB GmbH to the delivery address stated by the Purchaser when making the order. Should the Purchaser not have provided a delivery address, then shipment will be to the address of the Purchaser’s offices.
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Transfer of risk
Risk will be transferred to the Purchaser upon handing over of the goods to the Purchaser. Should the delivery be delayed for reasons for which the Purchaser is responsible, then risk will be transferred to the Purchaser at the point in time at which he is in default of acceptance.
Should the Purchaser not be a consumer (definition see Section 1.2 above), then risk will be transferred to the Purchaser when the goods are handed over to the individual carrying out transport.
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Prices, Terms of payment
The sums stated as purchase prices are net prices excluding the legal rate of value added tax. The Purchaser must pay prices for packaging, freight, postage and insurance separately.
Price calculations are based on the CAD data provided. In the case of 2D construction in dwg or dxf format; in the case of 3D construction in step or iges format. In all other cases, construction costs will be invoiced according to time and materials.
General price validity is 3 months unless otherwise agreed.
In individual cases where goods are shipped across borders taxes (e.g. in the case of purchase within the EU) and/or levies (e.g. customs duties and/or other costs) may be incurred and must be paid in addition by the Purchaser.
The agreement on terms of payment will be based on FiMAB GmbH’s written order confirmation respectively its invoice. The period for payment of the invoice sum begins on the date the invoice is issued.
Should FiMAB GmbH agree payment in advance by bank transfer with the Purchaser, then delivery will not be made until the agreed purchase price has been received. In such cases the Purchaser undertakes to pay the entire sum at the latest seven days after receiving the request for payment and without any deductions. Should the deadline expire without success, then the Purchaser will be in default of payment without any further declaration being required.
The Purchaser may only exercise a right of retention if his counter-claim arises from the same contractual relationship.
The Purchaser will only be entitled to offsetting if his counter-claim against FiMAB GmbH is uncontested by FiMAB GmbH or if FiMAB GmbH disputes it, however, is non-appealable or, at least, is ready for judgement to be issued.
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Warranty
Legal regulations apply to claims by the Purchasers against FiMAB GmbH due to defects. In particular, damages caused by measures by the Purchaser which are inappropriate, improper or contrary to contract will not represent grounds for claims by the Purchaser.
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Warranty to companies
If the Purchaser is not a consumer (Definition as per Item 1.2 above), then the following applies in addition to legal regulations on warranties:
Warranty claims by the Purchaser depend on the Purchaser inspecting the goods immediately following hand-over and informing FiMAB GmbH of defects in writing immediately after hand-over. In the case of delivery of concealed defects the Purchaser must notify them in writing to FiMAB GmbH immediately after their discovery.
Should the Purchaser have valid claims due to a defect, then FiMAB GmbH has the right, at its discretion, to remedy the defect free of charge to the Purchaser or, alternatively, to supply goods without defects.
Warranty claims will expire within 12 months from the time at which risk is transferred. This does not apply in cases of delivery recourse as per Sect. 478,479 BGB and/or insofar as the relevant defect has been maliciously concealed and/or insofar as FiMAB GmbH has given special guarantees in the form of a manufacturer’s warranty.
The above shortening of the statute of limitations does not apply to claims for damage for which, under the provisions of Item 10 below, FiMAB GmbH is liable.
FiMAB GmbH must perform remedying of defects relating to warranty claims at the place of fulfilment.
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Retention of title
FiMAB GmbH reserves ownership of the goods until receipt of all payments arising from the business relationship with the Purchaser. In the event that the Purchaser behaves in a manner which is in breach of contract, in particular where he is in default of payment, FiMAB GmbH will be entitled to recover the goods. By recovering the goods FiMAB GmbH will be withdrawing from the contract. Following recovery of the goods FiMAB GmbH will be authorized to liquidate them; the proceeds of liquidation must be offset against the Purchaser’s debts – minus reasonable liquidation costs.
The Purchaser is obliged to treat the goods with care; he is, in particular, obliged, to take out sufficient insurance at his own cost to cover the cost of buying new goods if the goods are damaged by fire, water and theft. Insofar as maintenance and inspection work is required, then the Purchaser must carry it out in good time and at his own cost.
The Purchaser must, in the event of seizures or other action by third parties, notify FiMAB GmbH immediately in writing so that FiMAB GmbH can initiate legal proceedings in accordance with Sect. 771 German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse FiMAB GmbH for the legal and out-of-court costs of legal proceedings in accordance with Sect. 771 ZPO, then the Purchaser will be liable for the losses incurred by FiMAB GmbH.
The Purchaser is entitled to sell on the goods within the ordinary course of business; the Purchaser will, however, now assign to FiMAB GmbH all claims amounting to the sum of FiMAB GmbH’s final invoice amount (including VAT) which accrue to him against his customers or third parties as a result of selling on, independent of whether the goods have been sold on without or following further processing. The Purchaser shall retain his authorization to enforce this claim even after assignment. The authorization to enforce the claim independently will remain unaffected by this. FiMAB GmbH, however, undertakes not to enforce the claim as long as the Purchaser fulfils his payment obligations arising out of the proceeds collected; does not default on payment and, in particular, has not made any application for the initiation of insolvency or bankruptcy or payments have been suspended. Should, however, this be the case, then FiMAB GmbH may demand that the Purchaser discloses all assigned claims and their debtors; provides all information required to enforce them; hands over the relevant documents and notifies the debtors (third parties) of the assignment.
Processing or re-working of the goods by the Purchaser will also be carried out for FiMAB GmbH. Should the goods be processed together with other objects not belonging to FiMAB GmbH, then FiMAB GmbH will acquire part-ownership of the new object in proportion to the value of the goods (final invoice amount including VAT) against the value of the other processed objects at the time of processing. For the rest, the same shall apply to the object created by processing as for the goods delivered subject to retention of title.
The Purchaser also assigns to FiMAB GmbH the claims for securing of third-party claims against him arising from the connection of the goods to real estate.
FiMAB GmbH undertakes, at the request of the Purchaser, to release the securities to which it is entitled insofar as the realizable value of its securities exceeds the claims being secured by more than 10%; FiMAB GmbH will be responsible for selecting the securities being released.
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Liability
FiMAB GmbH is liable without limitation for damages resulting from intent or gross negligence on the part of FiMAB GmbH, its employees and vicarious agents; where defects have been fraudulently concealed; where a quality warranty has been given and for damages resulting from loss of life, bodily injury or damage to health.
FiMAB GmbH will only be liable for other damages insofar as an obligation is breached whose fulfilment is required to make proper execution of the contract possible and the observance of which the contractual partner can regularly rely upon (cardinal obligation) and insofar as the damages resulting from contractual use of the services are typical and foreseeable. Any liability resulting from the German Product Liability Act (Produkthaftungsgesetz) will remain unaffected by this. Any liability of FiMAB GmbH exceeding the above is excluded.
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Place of fulfilment and jurisdiction
The place of fulfilment is FiMAB GmbH’s domicile.
With regard to commercial dealings the parties agree that the sole place of jurisdiction for any and all disputes arising within the scope of performance of this contract will be the domicile of FiMAB GmbH. The domicile of FiMAB GmbH will also be the place of jurisdiction for non-commercial dealings if the Supplier has no general place of jurisdiction in Germany or, following conclusion of the contract, relocates his place of residence or place of habitual residence outside the jurisdiction of the Federal Republic of Germany. This will also apply for cases in which the Supplier’s place of residence or of habitual residence are not known at the time the legal action is brought.
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Concluding provisions and applicable law
FiMAB GmbH does not recognize any general terms and conditions of business and contract of the Purchaser which contradict or deviate from these General Terms and Conditions of Sale and Delivery, unless their validity has been expressly consented to in writing. These General Terms and Conditions of Sale and Delivery will also apply if, in the knowledge of terms and conditions of the Purchaser which contradict or deviate from these terms and conditions of sale, FiMAB GmbH renders delivery to the Purchaser without reservation.
Should a provision of this contract be or become invalid, then the remaining provisions of this contract will remain valid. The contracting partners agree that the invalid provision will be replaced by a valid provision which best corresponds to the contracting partners’ economic objective. The same applies in the event that the contract has loopholes.
The business relationship and all legal issues relating from it are solely subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Download General Terms and Conditions of Sale and Delivery as a file
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Exclusion of withdrawal
The products offered via the FiMABKONFIGURATOR are manufactured exclusively to customer specifications. The consumer’s right to cancel a distance selling contract as per Sect. 312 d Para. 4 (1) German Civil Code (BGB) is excluded for these products.
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We herewith declare our consent to receiving all invoices and reminders from FiMAB Maschinenbau Blechbearbeitung GmbH as PDF files by email, effective immediately.
Download declaration of consent to receiving invoices by email as a file