General Terms and Conditions
General Terms and Conditions of business and delivery OF Frielinghaus GmbH
Our terms and conditions apply only to entrepreneurs pursuant to § 310 of the German Civil Code and to all our contracts, deliveries and other services, unless they are amended or precluded with our express written consent. They also apply in particular if we perform the delivery or service unconditionally, and are aware of our customer’s deviating terms and conditions. The general terms and conditions of our contract partner apply only if we confirm them in writing. Our terms and conditions also apply to all future contracts, deliveries and other services, also if their text is not again sent to our contract partner with our offer or order confirmation.
II. Offer and conclusion of contract, scope of delivery, additional and reduced services, minimum order value
1. Our price lists, prices stated in brochures, and our offers are always conditional. Information is provided without a guarantee of accuracy, and we reserve the right of ownership and copyright to all relevant documents. Disclosure, publication, reproduction or realization by third parties is not permissible. We reserve the right, at any time and without separate notice, to modify the particular product or service as described or depicted, while retaining the essential properties. In the event of calculation or printing errors, we reserve the right to correct the errors.
2. Contracts and other agreements are not binding until we have given our written confirmation or carried out the delivery or service. All agreements between us and our contract partner are to be set down in writing upon conclusion of the contract. Agreements made between our contract partner and our employees or representatives at the time of or after conclusion of the contract must be confirmed in writing by our management, authorized signatory or authorized agent to be valid; the representative authority of our employees and representatives is restricted in this respect.
3. Our written confirmation defines the scope of the delivery. We reserve the right to modify the scope of delivery, including changes to the design and form that are based on governmental or statutory orders or requirements. Excluding other claims and rights, our contract partner is entitled in this case to cancel the contract if the change in the scope of delivery is substantial and unreasonable for the contract partner.
4. We reserve the right to deliver up to 5% (in the case of special designs up to 10%) below or above the ordered quantity. In any case, our contract partner will pay for the quantity actually ordered. 5. For ordered quantities with a net merchandise value of less than €50 there will be a net surcharge of €15 for small-volume orders.
III. Prices, price increases, payment, discounts, setoff and retention
1. Our prices apply to the delivery or service ex works and do not include packaging, freight, postage, customs duties and statutory value added tax at the rate applicable on the date of delivery or service.
2. We reserve the right to adjust – in particular to increase – the agreed price appropriately, due to any price increases by our suppliers or exchange rate fluctuations of foreign currencies against the euro after conclusion of the contract, or any changes in the applicable wage or salary tariff between conclusion and performance of the contract, therefore affecting our calculation and our price. The increase will be in proportion to the percentage share of the relevant purchase price and/or the agreed wage costs to the agreed price.
3. Our invoices are due immediately upon receipt, with no deductions. A cash discount is permissible only if agreed to in writing and all our invoices due at the time of the cash discount are also settled at the same time. 4. We are entitled to statutory interest starting from the due date without further reminder, in the amount of at least 8 percent above the applicable base interest rate. Further claims, in particular due to default on the part of our contract partner, are not affected.
5. We are entitled to set off payments made by the customer in accordance with §§ 366, para. 2, 367, para. 1 of the German Civil Code, also if our customer specifies a different set-off.
6. Offsetting against counterclaims that are disputed by us and are not finally decided is not permissible. The assertion of a right of retention due to claims that are not based on the same contractual relationship is permissible only in the case of undisputed and finally decided claims. Our customer may withhold payments due to a notice of defect only if there can be no doubt as to the legitimacy of the notice of defect, and beyond that only to an extent that is
reasonable in proportion to the defects that have occurred.
IV. Deterioration of the contract partner’s assets
If in-court or out-of-court insolvency proceedings are filed against the assets of our contract partner or if the initiation of such proceedings is rejected for lack of assets, or if written credit information is available from a bank or credit agency indicating that our contract partner is not creditworthy, or if we learn only after conclusion of the contract of one of the above circumstances that already existed at the time the contract was concluded, we are entitled to demand advance payments by our customer in the amount of the agreed price. If our contract partner does not comply with this demand within a reasonable period set by us, we are entitled to cancel the contract and to claim damages in lieu of performance, however only regarding the part of the contract not yet performed by us.
V. Place of performance, dispatch, transfer of risk, insurance
1. Unless we have agreed otherwise in writing with our contract partner, our performance obligations will be fulfilled exclusively at our place of business. The risk will in any case pass to our contract partner upon dispatch of the goods, irrespective of the place of dispatch, also if carriage paid delivery and/or assembly have been agreed by way of exception. This does not apply if the dispatch is carried out by our own employees, or in the event of goods that are lost or damaged due to the fault of our employees.
2. If our contract partner provides no dispatch instructions or if a deviation from such appears to be necessary, we will dispatch the goods according to our best judgment without any obligation to use the least expensive or fastest means of dispatch. Only at the request of our contract partner and at the latter’s expense will we insure the goods against every insurable risk requested by our contract partner, in particular against theft and transport damage. Claims for transport damage must be reported to us without delay, and the recipient is responsible for filing any claims and reservations with the carrier at the time of delivery. If dispatch is delayed at the request of our contract partner or for reasons within the responsibility of our contract partner, the risk is already transferred to our contract partner at the time of our notification that the goods are ready for shipment. In this case, the goods will be stored at the expense and risk of our contract partner.
VI. Delivery periods, call-off orders, partial delivery/partial performance
1. Delivery periods and dates are deemed binding only if confirmed by us in writing. A period of performance based solely on duration commences at the end of the day on which all details of the order content have been agreed, at the earliest upon our acceptance of the order, however not before the submission of all documents/services, approvals and releases to be procured/provided by the purchaser, and not before receipt of any advance payment to be made by the purchaser. A delivery deadline or delivery date is deemed to have been met if the goods or, in cases where the goods cannot or are not to be dispatched, we have sent our notification of our readiness to deliver by the deadline.
2. Delivery periods will be extended appropriately, even within a delay, in the event of force majeure and unforeseen obstacles occurring after conclusion of the contract that are beyond our control, insofar as such obstacles demonstrably have a substantial effect on the delivery of the sold goods. Strikes and lockouts are deemed to be acts beyond our control in the sense of this paragraph. If such delays in delivery last longer than 6 weeks, our contract partner is entitled to cancel the contract, precluding any further claims. The above provisions also apply if the delaying circumstances occur at the premises of our suppliers or their sub-suppliers.
3. Delivery periods will be extended by the period by which the customer is in default with his obligations – within an ongoing business relationship also from other contracts – or fails to fulfill the prerequisites for the start or continuation of the work, in particular if the customer fails to provide required documents, plans or other specifications or preliminary work. The burden of proof that the customer has fulfilled the prerequisites and has provided the necessary documents, plans or specifications/preliminary work is on our contract partner.
4. Call-off orders will be accepted only with deadlines for accepting delivery. If the period for accepting delivery is not specified precisely, it will end no later than 12 months after conclusion of the contract or our first order confirmation. In this case, the goods are to be accepted in approximately equal monthly quantities, and the customer is obligated to specify the approximate call-off dates and quantities in due time to allow for production and delivery. If the single call-offs exceed the agreed total quantity, we are entitled, but not obligated, to deliver the excess quantity. If the customer does not allocate the goods as obligated no later than one month after expiration of the deadline agreed upon for the allocation, or, in the absence of such an agreement, no later than one month after our request to do so, we are allowed to allocate and deliver the goods at our discretion. In addition, we are entitled to set a grace period for allocation by our contract partner, accompanied by the warning that we will refuse delivery of the goods in the event of futile expiration of the deadline. In the event of futile expiration of this grace period, we are entitled to cancel the contract by terminating our delivery obligation and to claim damages in lieu of performance, limited however to the part of the contract not yet performed by us.
5. If acceptance does not take place within the agreed period, we are at liberty to deliver finished deliveries without further notice or to store them at the expense of our contract partner. In addition, we are entitled to set a grace period for acceptance by our contract partner, accompanied by the warning that we will refuse delivery of the goods In the event of futile expiration of this grace period. In the event of futile expiration of this grace period, we are entitled to cancel the contract by terminating our delivery obligation or to claim damages in lieu of performance, however only regarding the part of the contract not yet fulfilled by us.
6. We are entitled to make partial deliveries/perform partial services at any time, if allowed by the nature of the delivery or service, and to invoice them separately.
VII. Declaration of the choice of rights after setting a deadline for subsequent performance
In all cases in which our customer has set a deadline for our subsequent performance due to non-delivery or improper delivery and this deadline has expired, we are entitled to demand that the customer declare within a reasonable period whether the customer will continue to pursue the claim for performance/subsequent performance despite expiration of the deadline or opt for the other rights optionally granted to the customer. If our customer does not make a declaration within the reasonable set period, the claim for performance/subsequent performance will be ruled out. If our customer informs us within the reasonable set period that they still demand performance/subsequent performance, the customer will be at liberty to set a new period for this purpose and, in the event of futile expiration of the deadline, to make use of the other rights.
VIII. Default; preclusion of the obligation to perform
If we are in delay of delivery or if our obligation to perform is precluded pursuant to § 275 of the German Civil Code, we are liable under the conditions and to the extent of section XII, no. 4 for damages, however with the following additional conditions:
1. In the event of slight negligence on our part, claims for damages on the part of our contract partner are limited to lump-sum compensation amounting to 1% of the value of the delivery for each full week of the delay, but no more than 5% of the value of the delivery; we reserve the right to prove that no damage or lesser damage has occurred as a result of the delay in delivery.
2. In the event of delay on our part, our customer is entitled to claim damages in lieu of performance only if he has previously granted us a reasonable and – insofar as not unreasonable for the customer – at least 4-week grace period for the delivery/service.
3. A right of cancellation to which the customer is entitled and a claim for damages to which the customer is entitled is fundamentally limited to the part of the contract not yet fulfilled, unless the customer no longer has a reasonable interest in the part of the contract already fulfilled.
4. Claims for damages against us due to default or preclusion of the obligation to perform in accordance with § 275 of the German Civil Code become statute-barred after the expiration of one year from the start of the statutory limitation period.
5. The foregoing provisions do not apply in the event of damage resulting from injury to the life, limb, health or freedom of our contract partner, or if the damage is based on an intentional or grossly negligent breach of duty by us, or one of our legal representatives or vicarious agents; furthermore, in the case of default, they do not apply in the event of a transaction for delivery by a fixed date.
IX. Default of acceptance by our contract partner
1. If our contract partner is in delay of accepting our services in whole or in part, we are entitled, after the fruitless expiration of a reasonable grace period set by us for acceptance, either to cancel the contract or to claim damages in lieu of performance, however only regarding the part of the contract not yet fulfilled by us. We are not entitled to claim damages if our contract partner is not at fault for the delay in acceptance. Our statutory rights in the event of delay of acceptance on the part of our contract partner are not affected by this clause.
2. If the delivery of the goods is delayed at the request of the customer or if the customer is in delay of acceptance, we are entitled, after the expiration of one month since sending notification of our readiness to deliver, to charge warehousing expenses in the amount of the customary local costs of storage at a specialized company, in which case we reserve the right to claim the higher damage actually incurred, in particular warehousing expenses, leasing and insurance expenses for goods that are due for acceptance, but have not been accepted. We are under no obligation, however, to insure stored goods.
X. Damages in lieu of performance
If we are entitled to claim damages in lieu of performance, we can demand 15% of the share of the contract price that corresponds to the relevant part of the goods as compensation for damages without delivering proof, in which case our customer is entitled to prove that no damage or only lesser damage has occurred. Our right to claim higher damages actually incurred is unaffected by this clause.
XI. Machining of sent-in parts and liability for defects and compensation for damages during machining
Our customers must inform us of the material of which the parts sent in for machining are made. The material must ensure optimal machining. We are under no obligation to inspect parts for defects that were sent to us for machining, and we will assume no liability for defective parts sent to us for machining. Furthermore, we are liable for the machining of parts sent in by our contract partner pursuant to section XII, however only up to the amount of the remuneration to which we are entitled for the machining. If these products are further used in complete components, we assume no liability whatsoever for any consequential damage.
XII. Liability for defects and compensation for damages
1. Claims on the part of our customer due to defective goods presuppose that the customer has duly fulfilled their obligations to inspect the goods and give notice of defects pursuant to § 377 of the German Commercial Code, in which case the complaint must be made in writing. If our customer fails to give proper and timely notice of defects, claims based on the circumstances to be notified can no longer be asserted, unless we have acted maliciously.
2. Claims on the part of our customer due to defective goods delivered by us become statute-barred after the expiration of one year from the delivery of the goods. In the event of claims for damages and rights of indemnity pursuant to §§ 437, no. 3, 478 and 634, no. 4 of the German Civil Code, however, only the statutory limitation period applies, if the damage results from injury to the life, limb, health or freedom of our contract partner or if the damage results from an intentional or gross dereliction of duty on our part or on the part of one of our legal representatives or vicarious agents. The statutory limitation period also applies if we have maliciously concealed the defect. In the cases of §§ 478, 479 of the German Civil Code, only the provisions made therein apply; for claims for damages, however, the foregoing sentences 1, 2 and 3 then also apply.
3. The rights of our customer due to defective goods are decided in accordance with the statutory provisions subject to the proviso that our customer must grant us a reasonable and, if not unreasonable for him, at least 4-week period for subsequent performance, in which case we can opt whether to remedy the defect or deliver a defect-free replacement. The period for subsequent performance will in no case commence before the time at which our customer has returned the defective goods to us; we will bear the costs of the return. If only part of the goods delivered by us is defective, the right of our contract partner to demand cancellation of the contract or compensation for damages in lieu of performance is limited to the defective part of the delivery, unless this limitation is impossible or unreasonable for our contract partner.
4. Our liability for damages resulting from injury to the life, limb, health or freedom of our contract partner that are based on a culpable breach of duty is neither precluded nor limited. We are liable for other damages incurred by our contract partner if they are based on an intentional or gross dereliction of duty by us, one of our legal representatives or vicarious agents. If we caused the damage only as a result of slight negligence, we are liable only if essential contractual obligations have been breached, and only to the extent of reasonably foreseeable damage that is typical for the contract. Other claims for damage by our contract partner due to breach of duty, tort or other legal grounds are precluded. The foregoing limitations of liability do not apply in the absence of warranted characteristics, if and insofar as the purpose of the warranty was to protect the contract party from damage that did not occur to the delivered goods themselves. Insofar as our liability is precluded or limited, this also applies to the personal liability of our staff, employees, representatives and vicarious agents. The foregoing exclusions of liability also apply in any case to
consequential damages. The foregoing exclusions of liability do not apply, however, to claims under the Product Liability Act.
XIII. Manufacturer’s liability
Our contract partner will exempt us from all third-party claims for damages asserted against us based on the provisions concerning tort, product liability or by virtue of any other provision due to defects or deficiencies in the goods manufactured or delivered by us or by our contract partner, insofar as such claims would also be legitimate against our contract partner or are no longer legitimate simply because they have meanwhile become statute-barred. Under these conditions, our contract partner will also exempt us from the costs of legal disputes instituted against us based on such claims. If the asserted claims are also legitimate against us or are no longer legitimate simply because they have meanwhile become statute-barred, there will be a proportionate entitlement to exemption by us vis-à-vis our contract partner, the scope and amount of which will be determined in accordance with § 254 of the German Civil Code. Our claims for exemption, rights of indemnity and claims for damages pursuant to §§ 437 no. 3, 478, 634 no. 4 of the German Civil Code or on other legal grounds are not affected by the foregoing provisions.
XIV. Retention of title
1. Delivered goods remain our property until complete fulfillment of all claims to which we are entitled vis-à-vis our contract partner now or in the future. We will release this security on request at our discretion insofar as its nominal value exceeds our claims permanently and by more than 20%.
2. Processing or conversion are always carried out for us as the manufacturer, however with no obligation on our part. If the goods delivered by us are processed together with goods which do not belong to us, we acquire joint ownership in the new goods in proportion of the invoice value of the goods delivered by us to the invoice value of the other goods used at the time of processing. If our goods are combined with other movable objects to form a unified object and if the other object is to be regarded as the main object, our customer will transfer to us proportional co-ownership insofar as the main object belongs to the customer. Any surrender of goods that is necessary for the acquisition of ownership or co-ownership by us is replaced by the agreement already made that our customer will keep the item for us as a borrower or, insofar as the customer does not own the item, hereby replace the surrender by assigning the claim for surrender vis-à-vis the owner to us. Objects to which we are entitled to ownership or co-ownership pursuant to the foregoing provisions are hereinafter referred to as reserved goods.
3. The customer is entitled to sell the reserved goods in the ordinary course of business and to combine them with objects belonging to others. The customer hereby assigns to us any claims arising from the sale or combination of the reserved goods or on other legal grounds in connection with the reserved goods in whole or in proportion to our entitlement to co-ownership of the sold or processed object. If such claims are included in current invoices, this assignment also applies to all outstanding claims. The assignment has first priority.
4. We authorize the customer, subject to countermand, to collect assigned claims. The contract party will immediately transfer the collected amounts to us insofar and as soon as our claims are due. Insofar as our claims are not yet due, the amounts collected will be documented separately by the contract partner. Our entitlement to collect the claim ourselves is not affected by this clause. However, we agree not to collect the claims as long as our customer meets their payment obligations from the collected revenue, is not in default of payment and, in particular, no application for initiating insolvency or settlement proceedings has been filed or payments have not been suspended.
5. At our request, our contract partner is obligated to inform us of the assigned claims and their debtors, to surrender to us the relevant documents and to provide us with all necessary information for collection. If we are entitled to collect the claims, our contract partner is obligated to provide us with all necessary information for collection and to notify the third-party debtors of the assignment; however, we are entitled to notify the debtor of the assignment ourselves.
6. Upon suspension of payments, application for or initiation of insolvency proceedings, in-court or out-of-court settlement proceedings, the rights of our customer to resell, process, combine or install the reserved goods and the authorization to collect the assigned claim will expire, also without our revocation.
7. Our contract partner must inform us immediately of any access by third parties to the reserved goods and to the assigned claims. The contract partner will bear any costs connected with interventions or their prevention. The contract partner is obligated to handle the retained goods with care and, in particular, to insure them for the replacement value at the contract partner’s own expense against fire and water damage, as well as theft.
8. In the event of conduct by the contract partner contrary to the terms of the contract, in particular delay of payment, we are entitled to repossess the reserved goods at the contract partner’s expense or to request assignment of the contract partner’s claims for restitution vis-à-vis third parties without having to declare our cancellation of the contract beforehand or at the same time. Repossession or seizure of the reserved goods by us will therefore not constitute cancellation of the contract unless we expressly declare this in writing.
9. In the event of a delay of payment or a breach of our contract partner’s obligation to preserve and insure the reserved property, we can cancel the contract, demand the return of the goods by our contract partner or dispose of them in the best manner possible by sale in the open market after giving written notice and observance of a reasonable period. At the request of our contract partner, an expert may be called in at the expense of the former to assess the value of the repossessed goods. Our contract partner will bear the expense of repossession and disposal of the goods, in which case 10% of the revenue from disposal will be applied to the cost of disposal, if and insofar as our contract partner or we do not prove lower or higher
costs of disposal. We are entitled to payment by our contract partner of the price agreed for the repossessed goods minus the revenue from disposal adjusted by the cost of disposal, assessment of the value by an expert called in, at least for the value determined by the expert (adjusted for the cost of disposal).
10. Should our retention of title lose its validity in the event of international deliveries or for other reasons, or should we lose ownership of the reserved goods on any grounds whatsoever, our customer is obligated to provide us with other security for the reserved goods or other security for our claims, which is effective according to the law that applies at the customer’s place of business and which most nearly corresponds to retention of title according to German law.
XV. Property rights
1. If the goods are to be manufactured based on drawings, samples or other specifications of the contract partner, the contract partner is responsible for ensuring that no third-party rights, in particular patents, utility models, other property rights and copyrights are infringed as a result. The contract partner will exempt us from third-party claims arising from any infringement of such rights. Furthermore, our contract partner will bear all costs incurred by us as a result of third-party claims for infringement of such rights and our defense against such claims.
2. If results, solutions or methods arise during the course of our development activities that are in any way capable of protection through property rights, we will be the exclusive owner of the resulting property rights, copyrights and rights of use, and we reserve the right to apply for the relevant property rights on our own behalf and in our name.
XVI. Tools, dies, equipment, test parts
1. There will be an additional charge for test parts required for testing.
2. If tools, dies or equipment are manufactured or procured by us for the manufacture of the goods as agreed, we will invoice the costs as a production share. Remuneration for tools, dies or equipment by our contract partner in no way constitutes an entitlement to the tools, dies or equipment. They will remain our property and will remain in our possession. We are obligated to retain the tools, dies and equipment for the contract partner for a period of 1 year after the last delivery.
If our contract partner informs us before expiration of this period that orders will be placed within a further year, the retention period will be extended by a further year. After this time, and in the absence of replenishment orders, we can freely dispose of the tools, dies and equipment.
Any amortization agreements apply for a maximum term of 3 years. Any shares of remuneration for tools, dies and equipment not provided through acceptance of parts will then be paid for immediately in cash by our contract partner.
XVII. Concluding provisions, place of performance, place of jurisdiction, applicable law
1. The place of performance and exclusive place of jurisdiction for deliveries, services and payments, including actions on checks and bills of exchange, as well as all disputes arising between the parties, is Ennepetal; however, we also have the right to take legal action against our contract partner at another applicable place of jurisdiction pursuant to §§ 12 ff of the German Code of Civil Procedure.
2. The relationship between the contracting parties is governed exclusively by the applicable laws of the Federal Republic of Germany, excluding international sales law, in particular the UN Sales Convention on Contracts for the International Sales of Goods and other international agreements on laws governing sales and contracts for work and services.
(Last revised: 10/2023)
Breckerfelder Str. 138
+49 2333 8369-0