(1) fiss Klaus Friedrich e.K. Hauptstraße 8, 73650 Winterbach ("fiss") provides its deliveries and services in business transactions with entrepreneurs domiciled in Germany, legal entities under public law or special funds under public law exclusively on the basis of these General Terms and Conditions of Delivery ("GTC"), unless otherwise agreed in individual contracts. Insofar as performance or services are referred to in the following, this is understood to mean all deliveries and services of any kind by fiss to the customer.
(2) fiss does not provide services to consumers within the meaning of § 13 BGB. In connection with the services mentioned in paragraph 1, the GTC also apply to all pre-contractual obligations as well as to all future contracts, even if they are not expressly agreed again.
(3) In the event that the customer does not wish to accept the GTC, he must notify fiss of this in writing in advance. Deviating (purchasing) terms and conditions of the customer or third parties are objected to. Therefore, the terms and conditions of the customer or third parties do not apply even if fiss does not separately object to their validity in the individual case or if fiss refers to a letter that contains or refers to terms and conditions of the customer or a third party.
For the purposes of these GTC, the following is or are
(1) An individual contract and thus a contractual obligation for the individual services comes about through an order confirmation from fiss, through conclusive action, in particular if fiss begins to provide services in accordance with the contract after the order, or through the customer accepting a binding offer from fiss. The product and service descriptions of fiss do not yet constitute a binding offer.
(2) The customer shall be bound by orders for 14 days.
(3) fiss reserves the ownership and copyright to all offers and cost estimates submitted by fiss as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items accessible to third parties as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without the express consent of fiss. At the request of fiss, the customer must return these items in full to fiss and destroy any copies made if they are no longer required by him in the ordinary course of business or negotiations do not lead to the conclusion of a contract.
(1) The concrete content of the services owed by fiss results from the individual contract together with any agreed amendments and supplements to the contract.
(2) fiss is entitled to minor deviations from the agreed service provision insofar as these do not impair the quality of the service and are reasonable for the customer.
(3) Product descriptions, representations, test programmes etc. are descriptions of performance and do not constitute a guarantee of characteristics. The guarantee must be in writing to be effective. It can only be effectively declared by the owner or the commercial management of fiss. Other employees of fiss are not authorised to declare guarantees.
(4) As long as services provided by fiss are free of charge for the customer, the services provided by fiss are purely voluntary and the customer has no claim against fiss for the continuation of the services. fiss reserves the right to discontinue the free services at any time without prior notice.
(5) fiss may also provide its services through third parties.
(1) The prices of the deliveries and services of fiss result from the individual contract together with any agreed contract amendments and supplements. In the absence of an individual contract, the prices are derived from the current price list valid at the time of the agreement of the respective service provision, which can be requested from fiss at any time.
(2) The prices quoted are exclusive of the costs of insurance, packaging, shipping, loading and unloading, any taxes, levies and customs duties that may be incurred in the cross-border movement of goods and services, ancillary costs of monetary transactions and the respective statutory value added tax, where applicable.
(1) Unless otherwise agreed, the invoices of fiss are payable without deduction immediately after receipt of the invoice and delivery of the goods. In the case of a permissible partial delivery, this can be invoiced immediately.
(2) Insofar as payment in advance has been agreed, the service will only be provided by fiss after receipt of payment.
(3) If the customer fails to pay on the due date, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; we reserve the right to claim higher interest and further damages in the event of default.
(4) If the customer is in default, he will be charged interest at the statutory rate from the relevant point in time. fiss reserves the right to claim higher damages for delay.
(5) fiss is entitled to offset payments against the customer's older debts first, despite the customer's provisions to the contrary, and will inform the customer of the type of offsetting that has taken place. If costs and interest have already been incurred, fiss is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.
(6) A payment shall only be deemed to have been made when fiss can dispose of the amount.
(7) If fiss becomes aware of circumstances that objectively call into question the creditworthiness of the customer, in particular if the customer stops payments or if a direct debit is returned for lack of sufficient cover, fiss is entitled to call due the entire remaining debt. fiss is also entitled in this case to demand advance payments or the provision of security.
(1) Delivery and performance dates or deadlines may be agreed as binding or non-binding. If they are to be binding, they must be in writing in order to be effective. If shipping has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
(2) fiss is not liable for impossibility of delivery or delays in performance due to force majeure or other events not foreseeable at the time of conclusion of the contract - these include in particular operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, official orders or non-delivery, incorrect delivery or late delivery by suppliers, even if they occur at suppliers of fiss or their sub-suppliers - for which fiss is not responsible. fiss will inform the customer immediately about such an impossibility of delivery or delay in performance.
(3) Insofar as events within the meaning of paragraph 2 make it significantly more difficult or impossible for fiss to deliver or perform and the hindrance and obstacle is not only of temporary duration, fiss is entitled to withdraw from or terminate the respective individual contract. If such events lead to hindrances of temporary duration, the delivery or service deadlines are extended or the delivery or service deadlines are postponed by the period of the hindrance plus a reasonable start-up period. If the impediment lasts longer than two months, the customer is entitled to withdraw from the unfulfilled part or to terminate the respective individual contract after setting a reasonable grace period with the threat of refusal.
(4) Paragraph 3 sentence 2 shall apply accordingly if the customer fails to cooperate in breach of the contract, e.g. fails to provide information, fails to provide a supply, or the customer is in default of payment. However, the customer's right to withdraw from or terminate the contract is excluded in these cases.
(5) If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(6) The rights of the customer according to § 15 (Liability of fiss) and the statutory rights of fiss, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
(1) The termination of the further exchange of services as a result of performance problems (e.g. in the case of withdrawal, termination for good cause or compensation for damages instead of performance) as well as the reduction of the agreed remuneration by the customer must always be threatened by stating the reason and setting a reasonable grace period for rectification. Only after fruitless expiry of the deadline can the termination or reduction become effective. In the cases of § 323 para. 2 BGB, the setting of a deadline may be omitted.
(2) All declarations by the customer in this context, in particular reminders and extensions of time, must be in writing to be effective. A grace period must be reasonable. A deadline set by the customer of less than two weeks shall only be reasonable in the event of particular urgency.
(1) The customer is only entitled to set-off and retention if the counterclaims due have been legally established, are undisputed or are ready for decision. The customer is, however, without the further prerequisites from sentence 1
a) is also entitled to offset if he wants to offset a claim against a claim of fiss which is in a reciprocal relationship to the claim of the customer (e.g. offsetting a claim for damages due to non-performance or default against the claim for payment of the remuneration owed),
b) shall also be entitled to retention if the right of retention is asserted due to counterclaims from the same contractual relationship.
(2) Except in the area of § 354a HGB (German Commercial Code), the customer may only assign his claims against fiss to third parties with the prior written consent of fiss.
(1) In the absence of any other agreement, all deliveries shall be made at the risk and expense of the customer. Further details on the delivery, e.g. the determination of the place of delivery and the agreement of INCOTERMS, shall be regulated in the individual contract.
(2) fiss is entitled to make partial deliveries if the partial delivery is usable for the customer within the scope of the contractual intended purpose, the delivery of the remaining ordered services is ensured and the customer does not incur any significant additional expenditure or additional costs as a result (unless fiss agrees to bear these costs).
(1) Until fulfilment of all claims from the business relationship (including all balance claims from a current account relationship limited to this business relationship) to which fiss is entitled against the customer for whatever legal reason, fiss is granted the following securities.
(2) Delivered goods remain the property of fiss until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place according to the following provisions are hereinafter referred to as "goods subject to retention of title". Insofar as the value of the goods or an item is referred to in the following, the invoice value is meant, in the absence of an invoice the list price and again in the absence of a list price the objective value.
(3) The customer stores the reserved goods free of charge and with the care of a prudent businessman for fiss. He is obliged to properly insure the reserved goods and to provide fiss with proof of such insurance upon request.
(4) The customer is entitled to process the goods subject to retention of title in the ordinary course of business and to combine and mix them with other items including real estate (hereinafter also referred to collectively as "processing" or "processing") and to sell them until the case of realisation occurs (paragraph 11). Pledges and transfers of ownership by way of security are not permitted.
(5) If the reserved goods are processed by the customer, it is agreed that the processing is carried out in the name and for the account of fiss as manufacturer and that fiss directly acquires the ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - the co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur in favour of fiss and the newly created item is a movable item, the customer already now transfers his future ownership or co-ownership of the newly created item in the ratio mentioned in sentence 1 to fiss as security.
(6) In the event of resale of the reserved goods, the customer already now assigns to fiss by way of security the resulting claim against the purchaser - in the event of co-ownership of fiss in the reserved goods, however, only proportionally according to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction.
(7) If the customer processes the goods subject to retention of title on behalf of his customer ("end customer"), he already now assigns his claim to which he is entitled as remuneration for the delivery and processing to fiss by way of security - but only proportionally according to the co-ownership share of fiss. If the goods subject to retention of title are combined with real estate, the amount of the assigned claim is determined proportionately according to the ratio of the value of the goods subject to retention of title delivered by fiss to the other combined movable objects.
(8) Until revoked, the customer is authorised to collect the claims assigned in accordance with paragraphs 6 and 7. The customer shall immediately forward payments made on the assigned claims to fiss up to the amount of the secured claim. In the event of good cause, in particular default of payment, cessation of payments or justified indications of over-indebtedness or imminent insolvency of the customer, fiss is entitled to revoke the customer's collection authority. fiss is also entitled, after prior warning and observance of a reasonable deadline for payment and its fruitless expiry, to disclose the assignment by way of security, to realise the assigned claims and to demand disclosure of the assignment by way of security by the customer to the end customers. In the event of the existence of an important reason according to sentence 3 or fruitless expiry of the deadline according to sentence 4, the customer must provide fiss with the information required to assert its rights against the end customer and hand over the necessary documents.
(9) If third parties gain access to the goods subject to retention of title, in particular through seizure, the customer will immediately inform them of the ownership of fiss and inform fiss of this in order to enable fiss to enforce its ownership rights. If the third party is not in a position to reimburse fiss for the court or out-of-court costs incurred in this connection, the customer is liable to fiss for this.
(10) fiss will release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 10%. The selection of the items to be released thereafter lies with fiss.
(11) If fiss withdraws from the contract in the event of behaviour contrary to the contract on the part of the customer - in particular default of payment - (realisation event), fiss is entitled to demand the return of the reserved goods.
(1) The customer shall inspect the goods immediately after delivery and, if a defect becomes apparent, notify us of this in writing without delay, giving a precise description of the symptoms of the defect, insofar as this is feasible in the ordinary course of business. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects that are not apparent on inspection must be reported within the same period of time from discovery. The customer shall thoroughly test each essential function before commencing operational use.
(2) Paragraph 1 shall also apply to subsequent deliveries received by the customer within the scope of liability for defects.
(3) If the customer fails to give notice, the goods shall be deemed to have been approved, unless the defect was not recognisable during the inspection.
(4) If such a defect only becomes apparent after delivery, the notification must be made immediately after discovery; otherwise the goods shall be deemed to have been approved also in view of this defect.
(5) If fiss has fraudulently concealed a defect or assumed a guarantee for the quality of the performance, fiss cannot invoke the above provisions.
(1) The goods have the agreed quality as described in the individual contract, are suitable for the contractually presupposed, otherwise the usual use and have the quality usual for goods of this type.
(2)Claims for material defects are excluded in particular in the case of
a) in the case of a contract of sale for the supply of second-hand goods;
b) Deliveries and services by fiss for which the customer does not owe any consideration, in particular training and instruction;
c) only insignificant deviations from the agreed quality and only insignificant impairments of the usability;
d) Impairments based on the fact that the customer or a third party commissioned by the customer has stored, transported, installed, operated or used the goods incorrectly, has made changes or modifications to the goods, has replaced parts or used consumables that do not comply with the original specifications, insofar as this is not the fault of fiss;
e) a breach of the contractual duty to examine or to give notice of defects in accordance with § 12;
f) a breach of the statutory obligation to inspect or give notice of defects in accordance with §§ 377 and 381 of the German Commercial Code (HGB);
g) defects of which the customer was aware at the time of conclusion of the contract; if a defect has remained unknown to the customer as a result of gross negligence, the customer can only assert rights due to this defect if fiss has fraudulently concealed the defect or has assumed a guarantee for the quality of the item;
h) of a delivery or service abroad as well as in the event that the goods are intended to be resold or used in a territory outside the Federal Republic of Germany if the goods violate technical standards, legal or other sovereign regulations which apply in the country of the customer or in another territory outside the Federal Republic of Germany in which the goods are intended to be resold or used and which fiss neither knew nor should have known; fiss is not obliged to examine the specifics of foreign law.
(3) The customer shall support fiss in the analysis of errors and the elimination of defects by describing problems that occur in concrete terms, informing fiss comprehensively and granting fiss the time and opportunity required for the elimination of defects.
(4) The defect shall be remedied at the discretion of fiss by removing the defect on site or at the business premises of fiss or by delivering goods that do not have the defect. Due to a defect, at least three attempts at rectification are to be accepted.
(5) In order to examine the defectiveness of the goods, at the discretion of fiss
a) the goods or the part of the goods is sent to fiss for repair and subsequent return; unfree or insufficiently franked shipping is to be refrained from, unfree or insufficiently franked shipments will not be accepted by fiss;
b) a service technician from fiss will carry out the repair on site at the customer's premises after prior consultation with the customer.
(6) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs shall be borne or reimbursed by fiss in accordance with the statutory regulations if there is actually a defect. This does not apply if the costs increase because the goods are located at a different place than the place of intended use. Insofar as a defect notified by the customer cannot be determined or fiss is not responsible for the functional impairment, in particular according to paragraph 2 lit. d), the customer bears the costs of fiss according to the agreed or usual prices, unless the lack of defectiveness was not recognisable for the buyer.
(7) In the case of defects in objects of other manufacturers delivered by fiss, which fiss cannot remedy for licensing or factual reasons, fiss will, at its discretion, assert its claims for defects against its supplier or assign them to the customer. Claims for defects in accordance with this § 13 against fiss exist in the case of assignment of the claims for defects to the customer only insofar as the legal enforcement of the aforementioned claims against the supplier of fiss was unsuccessful, without the customer being responsible for this, or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant defect claims of the customer against fiss is suspended. fiss reimburses the customer for the costs of the legal dispute that are reimbursable according to the cost laws, insofar as the customer and his legal representatives could consider them necessary under the circumstances and they are not recoverable from the supplier of fiss.
(8) The exclusions and limitations of the customer's rights under this § 13 do not apply insofar as fiss has acted fraudulently or has assumed a guarantee for the quality of the item.
(9) The scope and amount of liability for damages and reimbursement of futile expenses due to a defect for which fiss is responsible is governed by § 15 (Liability of fiss).
(1) fiss guarantees that the goods are not subject to any third party rights in the Federal Republic of Germany. fiss is only obliged to check conflicting industrial property rights or other intellectual property of third parties for the territory of the Federal Republic of Germany.
(2) In the event of a delivery abroad and in the event that the goods are intended to be resold or used in an area outside the Federal Republic of Germany, a defect of title due to a conflicting industrial property right or other intellectual property of third parties only exists if fiss knew or should have known of this at the time of conclusion of the contract.
(3) In the event of defects of title, fiss provides a warranty in that, at the discretion of fiss, the goods are modified or replaced in such a way that the rights of third parties are no longer infringed, but the goods continue to fulfil the contractually agreed functions, or the customer is provided with the right of use by concluding a licence agreement.
(4) The customer shall inform fiss immediately in writing if third parties assert property rights (e.g. copyright, trademark or patent rights) to the goods. The customer authorises fiss to conduct the dispute with the third party alone. If fiss makes use of this authorisation, the customer may not acknowledge the claims of the third party on its own initiative without the consent of fiss. fiss will then defend the claims of the third party at its own expense and indemnify the customer against all necessary costs associated with the defence against these claims, insofar as these are not based on conduct of the customer in breach of duty (e.g. use of the goods in breach of contract).
(5) § 13 paragraph 2 lit. e) and f) as well as paragraphs 6, 7, 8 and 9 shall apply accordingly.
(1) The liability of fiss for damages, irrespective of the legal grounds (e.g. impossibility, delay, defective or incorrect delivery or performance, breach of contract and tort), is limited in accordance with this § 15 (Liability of fiss), insofar as the liability presupposes fault on the part of fiss.
(2) The liability of fiss for simple negligence is excluded unless there is a breach of a cardinal obligation. In the event of a breach of such a cardinal obligation, the liability of fiss for simple negligence is limited to damages foreseeable at the time of conclusion of the contract and typical for the contract. fiss is liable for simple negligence, however, at most to the amount of the liability limits agreed in the individual contract.
(3) In the event of gross negligence, the liability of fiss is limited to damages foreseeable at the time of conclusion of the contract and typical for the contract.
(4) Insofar as the breach of duty by fiss concerns deliveries and services which fiss provides to the customer voluntarily and free of charge (e.g. within the framework of a gift, loan or free business service as well as in the case of pure favours), liability for simple negligence is excluded as a whole. Insofar as fiss provides technical information or advice after conclusion of the contract and this information or advice is not part of the contractually agreed scope of services owed by fiss, this is done free of charge and to the exclusion of any liability for negligent false information or advice.
(5) The exclusions and limitations of liability of this § 15 (Liability of fiss) apply accordingly to claims for reimbursement of futile expenses.
(6) The exclusions and limitations of liability of this § 15 (Liability of fiss) apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of fiss. Likewise, in the case of defective delivery or service, they also apply in favour of those suppliers from whom fiss has obtained the defective delivery or service in whole or in part.
(7) The restrictions of this § 15 (Liability of fiss) do not apply to the liability of fiss due to intentional conduct, due to injury to life, body or health, in cases of fraudulent intent, in the event of the assumption of a guarantee or in the event of claims under the Product Liability Act.
(1) The limitation period is
a) for claims arising from material defects or defects of title for repayment of the remuneration from withdrawal or reduction one year from the submission of the effective declaration of withdrawal or reduction; the withdrawal or reduction is only effective if it is declared within the period of lit. b) for material defects or the period of lit. c) for defects of title;
b) one year in the case of claims arising from material defects which are not the subject of repayment of the remuneration from withdrawal or reduction;
c) two years in the case of claims arising from defects of title which do not have as their object the repayment of the remuneration arising from withdrawal or reduction; however, if the defect of title lies in an exclusive right of a third party on the basis of which the third party can demand surrender or destruction of the items handed over to the customer, the statutory limitation period shall apply;
d) two years in the case of claims for repayment of the remuneration, damages or reimbursement of futile expenses not based on material defects or defects of title.
(2) Subject to a deviating individual contractual provision, the limitation period shall commence in the cases of paragraph 1 lit. b) and c) in accordance with the statutory provisions, in particular the applicable defect liability law, in the case of lit. d) from the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence.
(3) The limitation period shall commence at the latest upon expiry of the maximum periods stipulated in § 199 BGB.
(4) Notwithstanding the foregoing, the statutory limitation provisions shall apply
a) in the case of claims for damages and reimbursement of futile expenses arising from gross negligence and in the cases specified in § 15 paragraph 7,
b) in the case of claims due to a defect in the cases of § 438 para. 1 no. 2 BGB,
c) in the case of claims for reimbursement of expenses after termination of a tenancy agreement as well as
d) for all claims other than those referred to in paragraph 1.
(1) The Client undertakes to treat all confidential information as strictly confidential and to use it only for the purposes of implementing the individual contract.
(2) Confidential information is all information from the business relationship that is required to be kept secret according to the express wish of fiss and/or according to the circumstances of the individual case.
(3) The duty of confidentiality does not extend, or no longer extends, to information that is demonstrably
a) were known or generally available to the public prior to disclosure or became known or generally available to the public after disclosure without the involvement or fault of the customer or,
b) are already known to the customer prior to the notification or are subsequently disclosed to him by a third party without breach of a confidentiality obligation,
c) have been developed by the customer independently of the communication,
d) must be disclosed due to a binding official or judicial order or mandatory legal provisions, whereby it is sufficient that the customer could reasonably assume such an obligation to disclose after careful examination; the customer must inform fiss. in advance of the enforced disclosure, insofar as this is lawful, and limit the disclosure to what is necessary.
(5) The above provisions on confidentiality shall remain unaffected by the termination of the contract and shall apply for an unlimited period. Further legal obligations to maintain confidentiality shall remain unaffected.
(6) The customer shall comply with the currently applicable data protection regulations.
(1) Subject to a deviating regulation, the text form pursuant to § 126b BGB (e.g. e-mail and fax) is sufficient, but also necessary, for the effectiveness of declarations and notifications that involve the ordinary execution of the contract. However, declarations which change, terminate or otherwise restructure the contractual relationship (e.g. notices of termination) or for which these GTC or the law expressly prescribe this must be in writing (§ 126 BGB), whereby transmission by telecommunication is sufficient to meet the deadline if the recipient receives the original written declaration as soon as possible. The written form requirement pursuant to sentence 2 shall also apply to an agreement to waive the written form requirement.
(2) An e-mail shall be deemed to originate from the other party, subject to proof to the contrary, if the e-mail contains the sender's name and e-mail address and a rendition of the sender's name as the closing of the message.
(1) These GTC as well as all individual contracts concluded under their inclusion are exclusively subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded; mandatory provisions of the UN Convention on Contracts for the International Sale of Goods (in particular Art. 12, Art. 28 and Art. 89 et seq. CISG) remain unaffected.
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes in connection with the individual contracts concluded with the inclusion of these GTC is the registered office of fiss. In addition, any other legal place of jurisdiction applies for legal actions of fiss against the customer. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this regulation.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance is the registered office of fiss, unless otherwise stated in the individual contract.
(4) Insofar as the individual contract concluded with the customer on the basis of these GTC contains loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the parties would have agreed in accordance with the economic objectives of the individual contract if they had known about the loophole.