Responsibility and sustainability are more important today than ever before. At Firner Trautwein, we never stand still and are constantly evolving - always taking a long-term perspective. After all, success is only sustainable if it is conceived in harmony with our environment.
§1 Scope of application
These Terms and Conditions of Sale apply to every (supply) framework agreement (hereinafter referred to as “Contract”) and all individual contracts and/or orders within the framework of a contract (hereinafter referred to as “Individual Contract”) with entrepreneurs, legal entities under public law and special funds under public law (hereinafter referred to as “Partner”). Our deliveries and services are provided exclusively on the basis of these Terms and Conditions of Sale. They shall also apply to all future orders and contractual relationships between the Partner and us. Terms and conditions of the Partner that are not expressly recognized by us shall not apply.
§ 2 General provisions
The contracting parties shall immediately confirm verbal agreements in detail in writing. Insofar as the written form is provided for or required in these Terms and Conditions of Sale, the text form (§ 126 b BGB) shall suffice to comply with the written form requirement.
Orders shall only become binding upon our order confirmation.
The information and illustrations contained in brochures and catalogs are approximate values customary in the industry, unless they have been expressly designated by us as binding.
We are also entitled to reject those delivery call-offs and orders of the partner which are placed on the basis of contracts and to refuse to fulfill existing contracts and individual contracts and their extension if it becomes apparent that our claim to payment would be jeopardized by the partner’s inability to pay. This is the case in particular if the creditworthiness of the partner is rated by Euler Hermes as “high risk” (rating level 7) or worse, if and to the extent that the sum insured provided to us by our trade credit insurer to secure our claims against the partner would be exceeded upon acceptance of the delivery call-off or the order, or if our deductible for any loss of receivables of the partner is increased by our trade credit insurer after conclusion of the contract or individual contract by more than 1 O percentage points compared to the deductible at the time of conclusion. The provisions in Clauses 6, 22 and 34 as well as Section 321 BGB and other statutory rights to refuse performance and rights of retention shall remain unaffected.
We are entitled to terminate contracts and individual contracts without notice if there is good cause for doing so. exists for this. Good cause shall be deemed to exist in particular if, after conclusion of the contract, it becomes apparent that our payment claims under the contract are jeopardized by the Partner’s inability to pay – Section 5 (2) shall apply accordingly – and the Partner fails to provide credible assurance of its ability to pay within a reasonable period of time despite being requested to do so. The provisions in Clauses 22 and 34 and other statutory rights of termination and withdrawal shall remain unaffected.
Should individual parts of these Terms and Conditions of Sale be or become invalid, this shall not affect the validity of the remaining provisions.
§ 3 Long-term and call-off contracts, price adjustment
We may terminate contracts and individual contracts that are open-ended or have a term of more than 1 year (“long-term contracts”) with a notice period of 3 months to the end of the month.
If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a certain period (annual requirement). If the Partner purchases less than the target quantity, we shall be entitled to increase the unit price appropriately. If the Partner purchases more than the target quantity, we shall reduce the unit price appropriately, provided that the Partner has announced the additional demand at least 3 months prior to delivery.
In the case of call-off delivery contracts, unless otherwise agreed, we must be notified of binding quantities by call-off at least 3 months before the delivery date. Additional costs caused by a delayed call-off or subsequent changes to the call-off in terms of time or quantity by our partner shall be borne by the partner, unless the partner is not responsible for the delay or subsequent change; our calculation shall be decisive in this respect.
§ 4 Confidentiality
The Partner shall use all documents (including samples, models and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own corresponding documents and knowledge if we have designated them as confidential or have an obvious interest in keeping them secret. This obligation shall commence from the first receipt of the documents or knowledge and shall end 36 months after the end of the business relationship.
The obligation shall not apply to documents and knowledge which are generally known or which were already known to the partner upon receipt without the partner being obliged to maintain confidentiality, which are subsequently transmitted by a third party authorized to disclose them. or which are developed by the partner without using documents or knowledge of our company which are to be kept secret. The provisions of the Act on the Protection of Business Secrets (GeschGehG) shall remain unaffected.
§ 5 Drawings and descriptions
If we provide the Partner with drawings or technical documents relating to the goods to be supplied or their manufacture, these shall remain our property.
§ 6 Samples and production equipment
Unless otherwise agreed, the manufacturing costs for samples and production equipment (tools, molds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to production equipment that has to be replaced due to wear and tear.
The costs for maintenance and proper storage as well as the risk of damage to or destruction of the production equipment shall be borne by the Partner.
If the partner suspends or terminates the cooperation during the production period of the samples or production equipment, all production costs incurred up to that point shall be borne by the partner.
The means of production that we manufacture or procure ourselves shall remain our property even if the partner has paid for them. (wearing parts)
§ 7 Prices
Our prices are quoted in euros excluding VAT, packaging, freight, postage and insurance.
§ 8 Terms of payment
All invoices are due for payment within 14 days of the invoice date with a 2% discount or within 30 days net.
If we have indisputably delivered partially defective goods, our partner shall nevertheless be obliged to make payment for the defect-free portion, unless the partial delivery is of no interest to him. In all other respects, the partner may offset claims for compensation for the costs of remedying defects or completion costs; other counterclaims may only be offset if they have been legally established, are ready for a decision or are undisputed. The partner shall also only have a right of retention or right to refuse performance within these limits.
If payment is overdue, we shall be entitled to charge interest on arrears at the rate charged by the bank for overdraft facilities, but at least the statutory interest on arrears and the lump sum pursuant to Section 288 (2), (5) BGB.
In the event of default of payment, we may, after notifying the partner in writing, suspend the fulfillment of our obligations until the payments have been received.
§ 9 Delivery
Unless otherwise agreed, we deliver “ex works”. Compliance with the delivery date or delivery period shall be determined by our notification of readiness for dispatch or collection.
The delivery period shall commence with the dispatch of our order confirmation and shall be extended appropriately if the requirements of Clause 52 are met.
Partial deliveries are permissible to a reasonable extent. They shall be invoiced separately. Production-related excess or short deliveries are permissible within a tolerance of up to 10 percent of the total order quantity.
§ 10 Dispatch and transfer of risk
Goods notified as ready for dispatch must be accepted by the Partner without delay. Otherwise, we are entitled to ship them at our own discretion or to store them at the partner’s expense and risk.
In the absence of a special agreement, we shall choose the means and route of transportation.
The risk shall pass to the partner when the goods are handed over to the railroad, the forwarding agent or the carrier or when storage begins, but at the latest when the goods leave the factory or warehouse, even if we have assumed responsibility for delivery.
§ 11 Delay in delivery
Specified delivery dates are non-binding unless they have been expressly confirmed by us in writing as “binding delivery dates” or have been agreed as binding. If we can foresee that the goods cannot be delivered within the delivery period, we will inform the partner immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.
If the delivery is delayed due to a circumstance listed in Clause 52 or due to an action or omission on the part of the partner, such as the delayed transmission of necessary information or documents, an extension of the delivery period appropriate to the circumstances shall be granted.
The partner shall only be entitled to withdraw from a contract or individual contract if we are responsible for the failure to meet the delivery date and the partner has unsuccessfully set us a reasonable grace period.
§ 12 Retention of title
We reserve title to the delivered goods until all claims arising from the business relationship with the partner have been settled.
The partner is entitled to sell these goods in the ordinary course of business as long as he meets his obligations arising from the business relationship with us in good time. However, he may neither pledge the reserved goods nor assign them as security. He is obliged to secure our rights in the event of a credited resale of the reserved goods.
In the event of breaches of duty by the partner, in particular default in payment, we shall be entitled to withdraw from the individual contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the partner to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Partner shall be obliged to surrender the goods.
The Partner hereby assigns to us as security all claims and rights arising from the sale or, if applicable, the leasing of goods to which we are entitled. We hereby accept the assignment.
Any processing or treatment of the goods subject to retention of title shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed or mixed items at the time of processing or mixing. If our goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, the partner shall transfer co-ownership to us on a pro rata basis insofar as the main object belongs to him. The partner shall hold the property or co-ownership for us. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the goods subject to retention of title.
The partner must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us or other securities, handing over the documents necessary for intervention. This shall also apply to impairments of any other kind.
If the value of the existing securities exceeds the secured claims by more than 10 percent in total, we shall be obliged to release securities of our choice at the partner’s request.
§ 13 Material defects
The quality of the goods shall be based exclusively on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. Decisive for the contractual condition of the goods is the time of the transfer of risk in accordance with Clause 28. For our deliveries, we comply with the applicable statutory regulations of the European Union (EU) and the Federal Republic of Germany. This applies, for example, where relevant, to the REACH Regulation (Regulation EC No. 1907/2006), the Electrical and Electronic Equipment Act (ElektroG), the Electrical and Electronic Equipment Substances Ordinance (ElektroStoffV) and the End-of-Life Vehicles Ordinance (AltfahrzeugV) as German implementations of EU Directives 2011/65/EU (RoHS 2), 2012/19/EU (WEEE Directive) and EU Directive 2000/53/EC. We shall inform the Partner of any relevant changes to the goods, their deliverability, usability or quality, in particular those caused by the REACH Regulation, and shall coordinate suitable measures with the Partner in individual cases.
We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects that only insignificantly reduce the value or suitability of the goods.
Claims for material defects shall lapse after 12 months. This does not apply if the law prescribes longer periods, in particular for defects in a building and for goods that have been used for a building in accordance with their normal use and have caused its defectiveness. Sentence 1 shall also not apply to damages resulting from injury to life, body or health and in the event of intent or gross negligence or any other breach of material contractual obligations (i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely) of our legal representatives or executives and for any obligation to reimburse the expenses necessary for the purpose of subsequent performance in accordance with § 439 para. 3 BGB.
Warranty rights of the partner presuppose that the partner has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the partner could have detected during a careful acceptance or initial sample inspection shall be excluded.
We must be given the opportunity to determine the defect complained of. Rejected goods must be returned to us immediately upon request; we shall bear the transportation costs if the complaint is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
In the event of a justified, timely notice of defects, we shall, at our discretion, either repair the rejected goods or deliver a faultless replacement.
If we do not fulfill these obligations or do not fulfill them in accordance with the contract within a reasonable period of time, the partner may set us a final deadline in writing within which we must fulfill our obligations. After the unsuccessful expiry of this period, the partner may demand a reduction in the price, withdraw from the individual purchase contract or carry out the necessary rectification itself or have it carried out by a third party at our expense and risk. Reimbursement of costs is excluded if the expenses increase because the goods have been moved to another location after our delivery, unless this corresponds to the intended use of the goods.
The partner shall only have statutory rights of recourse against us to the extent that the partner has not made any agreements with its customer that go beyond the statutory claims for defects. The last sentence of Section 45 shall apply accordingly to the scope of the rights of recourse.
§ 14 Other claims, liability
Unless otherwise stated below, other and further claims of the partner against us are excluded. This applies in particular to claims for damages for breach of duties arising from the contractual obligation and from tort. We shall not be liable for damage that has not occurred to the delivered goods themselves. In particular, we are not liable for loss of profit or other financial losses of the partner.
The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees or in the event of culpable breach of material contractual obligations, i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely. In the event of culpable breach of material contractual obligations, we shall only be liable – except in cases of intent or gross negligence on the part of our legal representatives or executives – for reasonably foreseeable damage typical of the contract.
Furthermore, the limitation of liability shall not apply in cases in which liability exists under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It also does not apply in the event of injury to life, body or health and in the absence of warranted characteristics, if and insofar as the purpose of the warranty was precisely to protect the partner against damage that did not occur to the delivered goods themselves. Finally, the limitation of liability shall also not apply if we have concluded a purchase contract with the partner and are obliged to reimburse the expenses necessary for the purpose of subsequent performance in accordance with Section 439 (3) BGB.
Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
The statutory regulations on the burden of proof remain unaffected by this.
§ 15 Force majeure
Force majeure, labor disputes, riots, armed conflicts, terrorist attacks, official measures, non-delivery by our suppliers, epidemics and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default intentionally or through gross negligence. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
§ 16 Place of performance, place of jurisdiction and applicable law
Unless otherwise agreed, our respective place of business shall be the place of performance.
The place of jurisdiction for all legal disputes arising from and in connection with a contract or individual contract, including in the context of a bill of exchange and check process, is our registered office. We are also entitled to take legal action at the registered office of the partner.
The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG – “Vienna Sales Convention”) is excluded.
