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General Terms and Conditions of Sale and Delivery

The following General Terms and Conditions of Sale and Delivery shall become part of the purchase contract. Conflicting or deviating purchase conditions or other Buyer restrictions shall not be recognised unless the Seller – hereinafter referred to as FÖRCH – has expressly agreed to the same in writing on a case-by-case basis.

1. Quotations, orders

1.1 Quotations issued by FÖRCH are subject to change without notice with regard to price, quantity, delivery period and availability until the delivery date.

1.2 Orders placed by the Buyer shall become binding for FÖRCH by means of the Seller’s written or printed confirmation (also invoice or delivery note).

2. Charging

2.1 The Seller’s prices that are valid at the time of delivery, plus VAT at the statutory rate, shall be charged.

2.2 All quoted and list prices are understood to be ex works from FÖRCH. Shipping costs shall be charged separately.

2.3 If the basis on which the price is calculated changes between the order being placed and delivery taking place, FÖRCH shall be entitled to adjust the price in accordance with the change to the cost basis.

3. Payment

3.1 Unless otherwise agreed, invoices shall be payable without deduction within 30 days of the invoice being issued. If payment is made within 14 days of the invoice being issued, a 2% discount shall be granted. The terms of payment stated in the order confirmation shall be deemed agreed.

3.2 If there are justified doubts as to the Buyer’s solvency or creditworthiness and if the Buyer is unwilling to pay in advance or to provide suitable security for the performance incumbent upon them despite being requested to do so, FÖRCH shall be entitled to withdraw from the contract insofar as it has not yet undertaken performance itself.

3.3 Bills of exchange or cheques may only be submitted with FÖRCH’s consent; submission is carried out on account of payment. The maximum term for bills of exchange is ninety days from the invoice date.

3.4 Payments shall only be deemed to have been made when the amount is finally available in an account held by FÖRCH.

3.5 The Buyer may not retain payments. The Buyer may only offset payments against undisputed or legally established claims.

3.6 Representatives are not entitled to accept payments without a written power of attorney from FÖRCH.

4. Delivery

4.1 FÖRCH shall endeavour at all times to deliver as quickly as possible. Fixed delivery periods are not provided.

4.2 If a fixed delivery date has been agreed in derogation from the above, the Buyer shall set a reasonable grace period in the event of a delay in delivery.

4.3 The delivery date shall be the date on which the goods leave the factory or warehouse and, if this date cannot be determined, the date on which the goods are placed at the Buyer’s disposal.

5. Shipping

5.1 The ordered goods shall be shipped at the Buyer’s expense.

5.2 FÖRCH reserves the right to choose the shipping route and method. Additional costs incurred on account of special shipping requests made by the Buyer shall be borne by the same. This also applies to increases in freight rates that occur after the contract has been concluded, any additional costs for diversion, storage costs, etc., unless freight-free delivery has been agreed.

5.3 The risk of destruction or loss of, or damage to the goods shall pass to the Buyer when the goods are dispatched or, if the Buyer is collecting the same, when the goods are made available.

6. Retention of title

6.1 Title to the goods shall only pass to the Buyer once they have met all their obligations arising from the business relationship with FÖRCH, including ancillary claims, claims for damages and payment of cheques and bills of exchange. Title to the goods shall also continue to be retained if individual claims of FÖRCH are included in outstanding invoices and the balance has been determined and acknowledged.

6.2 FÖRCH is entitled, without setting a grace period or revoking the contract, to demand that the Buyer return the goods subject to retention of title if the latter is in default with meeting their obligations vis-à-vis FÖRCH. Taking back the goods subject to retention of title shall only constitute a revocation of the contract if FÖRCH expressly declares this in writing. If FÖRCH revokes the contract, it may demand reasonable remuneration for the duration for which the Buyer had use of the goods.

6.3 In the event that the goods subject to retention of title are processed, the Buyer shall act for FÖRCH, but shall not acquire any claims against FÖRCH due to the processing activities. FÖRCH’s retention of title therefore extends to the products resulting from the processing activities. If the goods subject to retention of title are processed together with goods that are the property of third parties, or if the goods subject to retention of title are mixed or combined with goods that are the property of third parties, FÖRCH shall acquire co-ownership of the resulting products in the ratio of the invoice amount of the goods subject to retention of title to the invoice amount of the goods that are the property of third parties. If the goods are combined or mixed with a main item belonging to the Buyer, the Buyer hereby assigns their ownership rights to the new item to FÖRCH.

6.4 As long as the Buyer duly meets their obligations vis-à-vis FÖRCH, they shall be entitled to dispose of the goods subject to retention of title in the course of normal business; however, this shall not apply if and insofar as a prohibition of assignment with regard to the purchase price claim has been agreed between the Buyer and their customers. The Buyer is not permitted to pledge, assign by way of security or otherwise encumber the reserved goods. In the event of resale, the Buyer shall make the transfer of ownership dependent on full payment of the goods by their customers.

6.5 The Buyer hereby assigns to FÖRCH in advance all claims arising from a resale of the goods subject to retention of title with all ancillary rights and security interests, including bills of exchange and cheques, as security for all claims arising for FÖRCH against the Buyer from the business relationship. If the goods subject to retention of title are sold together with other items for a total price, the assignment shall be limited to the proportionate amount of FÖRCH’s invoice for the goods subject to retention of title also sold. If goods in which FÖRCH has a co-ownership share in accordance with clause 3 above are sold, the assignment shall be limited to that part of the claim that corresponds to FÖRCH’s co-ownership share.

6.6 If it appears to FÖRCH that the fulfilment of its claims is at risk, the Buyer shall inform their customers of the assignment upon request and provide FÖRCH with all necessary information and documents. The Buyer shall notify FÖRCH immediately if the goods subject to retention of title and assigned claims are seized by third parties. If the value of the securities to which FÖRCH is entitled exceeds by more than 20% FÖRCH’s claims against the Buyer that are to be secured, FÖRCH shall be obligated to release securities to this extent at the Buyer’s request. The security to be released is selected by FÖRCH.

7. Compensation for damages

7.1 FÖRCH’s liability for damages, irrespective of the legal basis, and in particular for impossibility, delay, defective delivery, breach of contract and tort, shall be limited in accordance with this section 7 to the extent that this it is at fault in each case.

7.2 FÖRCH shall not be liable in the event of simple negligence on the part of its constitutive bodies, legal representatives, employees or other vicarious agents, insofar as fundamental contractual obligations are not breached. The obligation to deliver the contractual item on time, the contractual item’s freedom from defects in title and material defects that more than insignificantly impair its functionality or usability, as well as obligations to provide advice, protection and care, which are intended to enable the Buyer to use the contractual item in accordance with the contract, are considered fundamental contractual obligations.

7.3 Insofar as FÖRCH is liable for damages in accordance with 7.2, this liability shall be limited to damages that, at the time the contract was concluded, FÖRCH foresaw as a possible consequence of a breach of contract or that FÖRCH should have foreseen if it had exercised due care. Indirect damages and consequential losses resulting from defects in the contractual item shall only be eligible for compensation if such losses are typically to be expected when the contractual item is used in accordance with its intended purpose.

7.4 The above exclusions and limitations of liability shall apply to the same extent in favour of FÖRCH’s constitutive bodies, legal representatives, employees and other vicarious agents.

7.5 The limitations of this section 7 do not apply to FÖRCH’s liability in cases of an intentional act or omission, or gross negligence, to guaranteed characteristics, to injury to life, limb or health or in accordance with the German Product Liability Act.

8. Notifications of defects

8.1 Notifications of defects shall only be considered if they are made immediately and in writing, but at the latest within fourteen days of the goods being received, by sending documents, samples and packing slips, and by stating the invoice number, the invoice date and the signatures on the packages.

8.2 In the case of concealed defects, the written notification must be made immediately after the defect is discovered, but at the latest within five months of the goods being received; the limitation period remains unaffected by this. The burden of proof that the defect is concealed lies with the Buyer.

8.3 Disputed goods may only be returned with FÖRCH’s express consent.

9. The Buyer’s rights in the case of defects

9.1 The Buyer’s claims for defects are limited to the right to subsequent performance. If subsequent performance by FÖRCH fails, the Buyer may reduce the purchase price or revoke the contract at their discretion. Claims of the Buyer regarding the necessary expenses incurred for the purpose of subsequent performance – particularly transport, travel, labour and material costs – are excluded if the expenses increase because the contractual item was subsequently taken to a location other than the Buyer’s subsidiary.

9.2 The Buyer shall be obligated to notify FÖRCH immediately upon becoming aware of any case of recourse occurring in the supply chain. The Buyer may only make statutory recourse claims against FÖRCH insofar as they have not made any agreements with their own customer that extend beyond the statutory claims for defects.

9.3 Agreements concerning warranties shall be made in writing and be signed. A warranty statement shall only be effective if it sufficiently describes the contents of the warranty as well as the duration and the territorial scope of the warranty protection.

10. Limitation period

10.1 In the case of Section 438 (1) (3) of the German Civil Code (BGB), claims for defects shall become statutebarred one year after the commencement of the statutory limitation period. In the case of Section 438 (1) (2) of the German Civil Code (BGB), they shall become statute-barred two years after the commencement of the statutory limitation period. Mandatory statutory limitation and liability regulations – such as liability for the assumption of a warranty, liability for intentional acts and omissions and gross negligence, liability for injury to life, limb or health, liability for the breach of fundamental contractual obligations, liability under the German Product Liability Act and the regulations on the sale of consumer goods – remain unaffected.

11. Characteristics of the goods, technical advice, use and processing

11.1 Only the characteristics stated in FÖRCH’s product descriptions, specifications and designations shall be regarded as characteristics of the goods. Public statements, promotions or advertising do not constitute information regarding the characteristics of the purchased item.

11.2 FÖRCH’s technical advice – whether verbal, in writing or by performing tests – shall be given to the best of its knowledge, but shall only be deemed to be a non-binding indication, including with regard to any third-party industrial property rights, and shall not release the Buyer from their obligation to inspect the suitability of the products that FÖRCH supplies for the intended processes and purposes. Application, use and processing of the products all take place outside of FÖRCH’s control and are therefore the sole responsibility of the Buyer.

12. Trademarks

12.1 It is not permitted to offer or supply substitute products instead of FÖRCH’s products with reference to these products, as well as to associate FÖRCH’s product designations, whether protected or not, with the word ‘substitute’ in price lists and similar business documents, or to compare them with the designations of substitute products.

12.2 It is further not permitted to use FÖRCH product designations, particularly FÖRCH trademarks, on such goods or their packaging or in the associated printed and advertising material without FÖRCH’s prior consent, particularly as an indication of components, when using FÖRCH products for manufacturing purposes or during further processing activities. Products supplied under a trademark shall not be considered consent to use the same trademark for the products manufactured therefrom.

13. Place of performance and place of jurisdiction

13.1 The place of performance for the delivery is the respective shipping point; the place of performance for the payment is Neuenstadt, Germany.

13.2 Jurisdiction is vested in the courts of Heilbronn, Germany, insofar as the Contracting Parties are registered traders. Additionally, FÖRCH is entitled to assert its claims in the courts responsible for the Buyer’s general place of jurisdiction.

Last updated: 01/2018