General terms and performance conditions
1. General The following terms and conditions apply for all Febauma Ltd. given offers and concluded contracts. They also apply to all future business relationships and are also effective when Febauma does not expressly refer to them in later contracts under an ongoing business relationship. Different conditions of the customer that are not explicitly acknowledged by Febauma in writing are not binding for Febauma, even if they are not expressly contradicted. They also apply to leased goods and from closed leases.
2. Offers and orders 2.1. Offers from Febauma are subject to change, particularly with regard to price, quantity, delivery time and delivery potential. 2.2. Verbal commitments and amendments and supplements to a closed contract can only be concluded after the written confirmation by authorised representatives from Febauma. 2.3. Obvious mistakes or errors in quotations, order confirmations or invoices may be corrected by Febauma. Legal claims by the Purchaser with regard to false information made by mistake which are in obvious contradiction to other sales documents are excluded.
3. Information to and documentation for delivered goods 3.1. Information regarding the specifications of a delivery item and to associated documents such as illustrations, drawings, weights and measurements when in doubt are only approximations and not binding. Structural or design modifications, which are due to the improvement of technology or to requirements of the law, remain reserved during the delivery period, provided that the delivery item is not substantially changed and the changes are reasonable for the purchaser. 3.2. Febauma reserves property and copyrights on drawings, cost information and other documents accompanying the services. They must not be made accessible to third parties without express consent and must be returned upon request. 3.3. Febauma reserves the right to construction and form changes up to delivery as long as the interests of the purchaser shall not be unreasonably affected.
4. Prices, payment conditions and delay 4.1. All prices are in Euro net ex Febauma including loading at Febauma, excluding VAT and packaging. Any changes occurring after the contract conclusion of any agreed foreign currency or the exchange rate for € must be met by the purchaser. In case of default the Purchaser shall pay a flat rate of 5% interest above the current base rate according to § 1 DÜG (German Transitional Discount Rate Law). However, the buyer is allowed to prove that Febauma suffered no damage due to late payment or the damage is substantially lower than the lump-sum default interest.
5. Delivery and delay 5.1. Delivery periods and delivery dates shall be deemed only approximate, if they have been expressly designated as binding in writing. The scope of delivery is determined by the written order confirmation. The binding delivery promise is subject to the timely transmission of information and documents necessary for the execution of the order by the Purchaser, the grant of all other necessary permits and approvals as well as the receipt of an agreed down payment. The delivery period begins with the dispatch of the acknowledgment, but in no event before the provision by the customer, if necessary, of documents, permits and approvals or before receipt of any agreed down payment. 5.2. The delivery deadline is met if prior to deadline expiry the delivery item has left the factory or readiness for dispatch has been notified. 5.3. Partial deliveries are allowed. 5.4. If a non-binding delivery is not complied with, a reasonable period is to be agreed; by doubt, a reasonable period is considered four months. Delay occurs only after uninterrupted expiry of the new deadline. The delivery period is extended accordingly in case of labor disputes, especially strikes and lockouts as well as the occurrence of unforeseen obstacles which are beyond the control of Febauma. 5.5. If Febauma is responsible for a delivery delay or if a delivery becomes impossible, the Purchaser may withdraw from the contract after setting a reasonable deadline within the statutory provisions. 5.6. Febauma is liable for damages caused by delay only due to willful or grossly negligent causation by agents or auxiliary persons. This standard of liability also applies to the obligation to pay compensation for damages of other types - also from positive breach of contract, tort and non-performance. The liability for this is limited to typically expected damage.
6. Shipping and transfer of risk 6.1. The risk for new appliances is transferred to the purchaser at the latest with the dispatch from the respective agreed upon factory and also in cases of partial deliveries and agreed freight-free delivery. All merchandise returned to Febauma is made at the risk and expense of the purchaser. 6.2. For used equipment the risk shall pass to the purchaser at the latest by acquisition of equipment or machinery at the site by the purchaser. Merchandise returned to Febauma is made at the risk and expense of the purchaser. 6.3. If dispatch or acceptance of the delivered goods is delayed for reasons that Febauma is not responsible for, the risk passes over to the customer with the receipt of notification of readiness for shipment. 6.4. Insurance against damage is the responsibility of the purchaser, to the extent nothing else has been agreed in individual cases. 6.5. The buyer is obliged to accept the delivery item. He has the right to check the delivery item within 14 days after receipt of notification that the goods are ready for collection or any other notification of the completion at the delivery site / factory. If the buyer willfully or negligently refuses acceptance of the delivery item longer than 14 days, Febauma is entitled to withdraw from the contract after setting a respite of a further 14 days. Independently of that Febauma can claim damages.
7. Retention of title 7.1. Delivered goods remain the property of Febauma until all demands from the business relationship with the customer including claims arising in the future, in particular, interest and costs, have been settled fully. 7.2. Property delivered by Febauma under retention of title and owned by Febauma may only be resold with express consent. Pledges or security transfers are not permissible. The assertion of title and the seizure of delivered goods by Febauma do not constitute withdrawal from the contract. 7.3. Those claims and other claims along with all ancillary rights arising from the resale of the reserved goods are to be transferred now by the Purchaser to Febauma for Febauma to secure them. Febauma accepts the transfer. 7.4. The Purchaser is entitled to collect in his own name the receivables due to Febauma on Febauma´s behalf only as long as the Purchaser fulfils his contractual obligations to Febauma and does become insolvent or run into financial difficulties. On demand, the Purchaser shall disclose the transfer. 7.5. If the value of unpaid receivables exceeds the existing securities available to Febauma by more than 20%, Febauma is to demand a release of an appropriate scale of securities of its choice from the purchaser or a third party disadvantaged by the overcollateralization. 7.6. In case of seizure, confiscation or other third-party access to the reserved goods, the Purchaser shall immediately draw attention to the property of Febauma and notify Febauma immediately while making available any necessary documentation for an intervention. Costs and damages shall be borne by the Purchaser. 7.7. Febauma is entitled to insure the delivery item at the Purchaser's expense against theft, breakage, fire, water and other damage, unless the Purchaser itself has verifiably closed insurance. The buyer is obliged to keep the reserved goods in proper working condition, to treat them with care, to store them carefully and to only use the goods for their intended purpose.
8. Liability for defects and warranty for new devices 8.1. For defects on newly manufactured delivery items, which include the absence of guaranteed properties, Febauma shall be liable as follows excluding any other claims: Defective parts are to be improved, repaired or a replacement newly delivered free of charge according to Febauma´s choosing. This is true for equipment or parts of a machine which, within 12 months or a total of 2,000 operating hours after delivery - whichever comes first – and before the transfer of risk - verifiably due to a situation, in particular due to faulty design, poor construction materials or faulty execution, prove to make the machine unusable or considerably impaired in its usability. The warranty expires in any event no later than 18 months after the product has left Febauma. The presence of these defects must be notified immediately in writing to Febauma, an authorised dealer or an authorized customer service representative. Recognized defects may only be remedied by Febauma or by personnel authorised by Febauma. Replaced parts become Febauma´s property. Natural wear and tear shall be excluded in any event from the guarantee. This applies in particular for all wear and tear parts. Furthermore, the warranty also covers no mechanical routine adjustments according to the operating Instructions. 8.2. The warranty is valid only for defects which occur under normal operating conditions and under proper use. Excluded warranty claims are in particular damage occurring for the following reasons: Unsuitable or improper use, faulty installation or commissioning by the purchaser or third parties, incorrect or improper maintenance, use of unsuitable fuel or other operation agents, replacement materials, excessive stress, normal wear and tear, exceptional chemical, electric and electrochemical influences, exceptional weathering and natural influences. The liability expires when reworking, modifications or repairs have been made improperly by the purchaser without prior consent from Febauma. This does not apply if imminent danger requires immediate action. 8.3. Febauma is to granted adequate time and opportunity to undertake repairs and spare parts deliveries; if this is refused, the warranty will void. 8.4. For failure of the repair or replacement by Febauma, notably in cases of impossibility, failure or the refusal of legitimate improvement requests by Febauma, the Purchaser is entitled to compensation by deciding to reduce payment or withdraw from the contract. The same applies if Febauma allows a reasonable extension time fixed by the buyer for the repair or replacement with regard to a defect in the sense of the above conditions to elapse fruitlessly through their, Febauma´s, fault. 8.5. Further claims by the purchaser, in particular claims for compensation for damages which have not arisen on the delivery item itself are, as far as legally possible, excluded. This disclaimer does not apply to intent or gross negligence of organs or agents. Nor does it apply in the absence of properties, in accordance with Section 8.6. which were promised when the guarantee was intended to protect the customer against consequential damages. 8.6. From Febauma mentioned technical data and product information of any kind are not considered as guaranteed characteristics in the sense of § 459 BGB (German Civil Law), unless they have been demonstrably confirmed by Febauma to the Purchaser as such.
9. Liability and Used Equipment Used or refurbished equipment, delivery items, etc. are carefully checked by Febauma before delivery. Liability for defects is excluded for delivery of such delivery items, machines etc.. The used equipment is bought as seen. The same applies to the rental of used equipment. From Febauma mentioned technical data and product information of any kind are not considered as guaranteed characteristics in the sense of § 459 BGB (German Civil Law), unless they have been demonstrably confirmed by Febauma to the Purchaser as such. With regard to claims for damages shall Section 8.5. sentences 2 and 3 and 8.6. accordingly shall apply.
10. General liability In addition to the warranty conditions under Section 8, Febauma is liable - unless damage to body, life or health is caused - only for intent or gross negligence of its agents or servants. This applies in particular to claims arising from culpa in contrahendo, positive contract breach of advice or other support services and tort.
11. Place of performance, jurisdiction and applicable law 11.1 Place of performance for both parties is Lünen, Germany. 11.2. The jurisdiction of legal disputes arising from the or out of the contractual relationship is Lünen, Germany.
12. Scope These terms of sale and delivery shall only apply in business with merchants or with legal entities of public law or with public separate estate/special funds in accordance with § 310 BGB (German Civil Law).
13. For rental contracts our rental conditions apply additionally.
Lünen, Germany March 2014