General Terms and Conditions of Purchase of FKB GmbH
as of February 2021
I. GENERAL INFORMATION
1. These General Terms and Conditions of Purchase apply to any business relationships with our business partners and suppliers ("Supplier"). The General Terms and Conditions of Purchase shall only apply if the Supplier is a businessman (Sec. 14 German Civil Code), a legal entity under public law or a special fund under public law.
2. The General Terms and Conditions of Purchase shall particularly apply to our purchase orders and transactions concerning movable goods, regardless of whether the Supplier manufactures the goods himself or obtains them from sub-contractors. Deviating Terms and Conditions of Sale of the Supplier shall only be valid if we have confirmed them in writing. Acceptance of goods or services without any restrictions or payment of the same shall not be construed as an acceptance of the Supplier's Terms and Conditions by our company.
3. When the Supplier first delivers subject to these General Terms and Conditions of Purchase, the Supplier also acknowledges their exclusive validity for all further purchase orders and transactions.
II. PURCHASE ORDER / ORDER CONFIRMATION
1. Our purchase orders must be issued in writing. Prior to acceptance, the Supplier shall make us aware of any obvious mistakes (e.g. typing and calculation errors) and incompleteness of the purchase order including the order documents for the purpose of correction or completion; otherwise the contract will not be regarded as concluded.
2. If the Supplier has not accepted a purchase order within 2 weeks, we shall be entitled to withdraw it.
3. If a master agreement for certain products has been concluded with the Supplier in writing, no order confirmation shall be required for an order or request for delivery. Individual orders within the master agreement shall become effective if the Supplier does not refuse acceptance within 5 working days after receipt. In case of call-offs acc. to agreed delivery schedule, the Supplier shall not be entitled to refusal.
4. An order confirmation or acceptance of a purchase order which deviates from the order shall only become effective if confirmed by us in writing. Any provisions, specifications, standards and any other documents which are attached to or mentioned in the order shall be part of the order.
5. The Supplier shall treat confidentially the purchase order and all commercial and technical details that are not obvious and that become known to him during the business relationship. The Supplier shall be liable for any damage arising for us from an infringement of the aforementioned obligation.
III. CHANGES OF DELIVERY QUANTITY AND DELIVERY ITEM
1. Excess or short deliveries due to production are permissible only if agreed upon in writing. If we request a modification of the delivery item, the Supplier must inform us immediately in writing about any additional increases or decreases in price and any effects on the dates of delivery and provide evidence therefor.
Unless otherwise agreed in writing, prices are quoted all costs paid to our factory (CIF INCOTERMS® 2020), including packaging, transport and all additional charges. Legal value added tax is not included in the prices. It is stated separately in the invoice with the legally applicable amount at the day of invoicing.
V. DELIVERY TIME
1. Agreed dates and times of delivery shall be binding.
2. When this time is exceeded, the Supplier automatically gets in default without reminder, unless he is not responsible for the failure to meet the deadline. The Supplier shall inform us immediately about any foreseeable delays in delivery. All agreed delivery dates are binding.
3. The date of receipt at our business location is decisive for adherence to the delivery date or deadline. The respective destination for each delivery shall also be the place of performance of the delivery and any possible supplementary performance.
4. In case of default in delivery, we are entitled to request a contractual penalty of 0.3% of the net order value of the affected delivery for each complete workday - limited, however, to 5% of the net order value. We are entitled to reserve the right to a contractual penalty until the affected goods are paid for. Any further rights due to default in delivery remain unaffected; a contractual penalty, however, shall be taken into account.
5. An unconditional acceptance of the delayed delivery shall not be construed as a waiver of our claims for damages. The Supplier's liability for compensation also includes any lump-sum compensation and contractual penalty which we owe to our customer due to the Supplier's default in delivery, provided we have informed the Supplier about the lump-sum compensation or contractual penalty agreed with the customer. We reserve the right to provide proof that a higher damage has been incurred.
VI. DELIVERY, TRANSFER OF RISK
1. All shipping documents must include the data prescribed by us, in particular order number, item and identification number, country of origin of the item ordered, dimensions as well as lot size and weight per item. Any costs arising due to non-compliance with our forwarding instructions shall be borne by the Supplier. As to lot sizes, weights and dimensions, the figures determined in the course of our incoming inspection shall be decisive unless any other evidence can be provided.
2. Partial deliveries shall require our consent and must be marked as such in the shipping documents.
3. If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.
4. The goods shall be shipped in appropriate packaging in accordance with the general provisions for transportation and freight. The costs for transportation insurance and packaging shall be borne by the Supplier, unless otherwise agreed in writing. If the Supplier must take back the used packaging pursuant to the packaging regulations, he shall bear the costs for the return transportation and the recycling.
5. Without our prior written consent, the Supplier shall not be entitled to have the services owed by him provided by any third party (e.g. sub-contractors). The Supplier shall bear the risk of procurement for his services, unless otherwise agreed in the individual case (e.g. limitation to stocks).
6. The risk of accidental loss and accidental deterioration of the item shall pass to us upon handing over at the place of performance. Provided that an acceptance has been agreed, this shall be decisive for the transfer of risk.
VII. INVOICE AND PAYMENT
1. For each individual delivery of goods or services, the Supplier shall submit a bill separately from the shipment. The wording of the invoice must correspond to the wording of the order description and the data on the delivery note, in particular with respect to the country of origin of the individual item, and include our order number as well as the date of performance. The exact name of the department within our company which placed the order and the order date must be specified. Any invoices which do not include these details shall be sent back by us and shall not be due for payment.
2. Unless otherwise agreed in writing, we shall settle payments 30 days after receipt of the correct invoice and the goods with a cash discount of 3% or after 60 days without deduction, on a 10th, 20th or 30th of the month following the delivery.
3. If we accept an early delivery to which we are not obligated, the due date is calculated from the agreed delivery date.
4. In case of faulty deliveries, we shall be entitled to retain payment proportionally until the order has been fulfilled properly, without losing the sales/cash discounts or similar payment benefits.
5. Our legal rights of set-off or retention shall remain unaffected. The Supplier may only set off against undisputed or legally enforceable claims. We do not owe any statutory overdue payment interests.
VIII. WARRANTY and statute of limitations
1. Unless otherwise agreed in the following, the statutory regulations shall apply to our rights regarding material defects and defects of title of the goods (including wrong or short delivery as well as improper mounting, deficient mounting instructions/operating instructions/user manuals) and any other breaches of duty by the Supplier.
2. According to the statutory regulations, the Supplier is particularly liable for the fact that the goods have the agreed condition upon transfer of risk to us. At least those product descriptions which are the object of the respective contract or have been incorporated into the contract in the same way as these General Terms and Conditions of Purchase – particularly by designation or reference in our purchase order – shall be regarded as an agreement on the condition. It does not make a difference whether the product description originates with us, the Supplier or the manufacturer.
3. For his deliveries, the Supplier complies with the applicable legislation of the European Union and the Federal Republic of Germany, such as REACH Regulation (EC) No. 1907/2006, the German law on placing on the market, return and environmentally sound disposal of electrical and electronic equipment (Electrical and Electronic Equipment Act - ElektroG) and the German regulation on the disposal, return and environmentally sound disposal of end-of-life vehicles (AltfahrzeugV). The Supplier shall promptly inform us about any relevant modifications to the goods, to their availability, usability or quality due to new legal regulations, in particular of the REACH Regulation, and shall agree suitable measures with us in relevant cases. The same shall apply as soon and as far as the Supplier becomes aware of the fact that such modifications are likely to occur.
4. We check the goods promptly after having received them according to recognized sampling procedures in the ordinary course of business, at least for obvious and visible deviations of quantity and identity and transport damages. The Supplier waives the objection of late notice of defects if he is notified in writing of the defects detected in the above-mentioned procedure and any defects detected later on at the latest 5 days after they were detected, whereby sending the notification within this period is sufficient.
5. If it is agreed that the goods are directly delivered to a third party, this third party is responsible for the incoming goods inspection. This replaces our inspection.
6. If defects occur in the delivery item within the warranty period, the Supplier shall remedy the defect or replace the goods free of charge - at our option - after written notification with a reasonable deadline set by us.
7. In urgent cases and for preventing disproportionately high damage, we shall be entitled to remedy the defect ourselves or to have it remedied by a third party after having consulted the Supplier and to request reimbursement of the costs required, unless the Supplier is not responsible for the defect. Other legal rights of set-off or retention shall remain unaffected.
8. Should the Supplier not fulfill his supplementary performance obligation by remedying the defect (repair) or by delivering a defect-free good (replacement) - at our option - within a reasonable period set by us, we may remedy the defect ourselves and request reimbursement or advance of the required costs from the Supplier. If supplementary performance by the Supplier has failed or is unacceptable for us (e.g. for exceptional urgency, danger to operational safety or imminent occurrence of disproportionate damage), setting a deadline is not required; we will inform the Supplier of such circumstances immediately, if possible in advance.
9. The supplementary performance also comprises the removal of the defective good and the reinstallation, provided that the good has been installed in or affixed to another good pursuant to its nature and its intended purpose; our statutory claim for compensation of the respective expenditure shall remain unaffected. Any expenditure required for the purpose of checking and supplementary performance shall be borne by the Supplier even if it turns out that there actually was no defect. Our liability for damages shall remain unaffected in the event of unjustified request for removal of defects; in this respect we shall, however, only be liable if we have recognized or not recognized as a result of gross negligence that there was no defect.
10. The mutual claims of the contractual parties become statute-barred according to the statutory regulations, unless otherwise stipulated in the following. In derogation from Sec. 438 (1) no. 3 German Civil Code, the general limitation period for our claims for defects shall be 3 years from the transfer of risk. Provided that an acceptance has been agreed, the limitation period shall start upon acceptance. The 3-year limitation period also applies to claims arising from defects of title accordingly, with the statutory period of limitation for third-party claims for restitution of items (Sec. 438 (1) no. 1 German Civil Code) remaining unaffected; claims arising from defects of title will furthermore not become statute-barred in any case as long as the third party can still assert the right against us – particularly for lack of statute of limitations.
11. The limitation periods of the sale of goods law including the above extension shall apply to all contractual claims for defects - to the statutory extent. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory period of limitation (Sec. 195, 199 German Civil Code) shall apply unless the application of the statutes of limitation of the sale of goods law results in a longer limitation period in the individual case.
IX. PRODUCT LIABILITY
1. In the event that a customer or a third party raises any claims against us on grounds of product liability, the Supplier shall be obligated to indemnify us against such claims if and as far as the damage was caused by a fault of the product delivered by the Supplier.
2. In such cases, the Supplier shall bear all costs and expenses including the costs for legal proceedings or product recall. As far as possible and reasonable, we shall coordinate the content and volume of such a recall with the Supplier. In all other respects, the statutory provisions shall apply.
3. The Supplier must take out and maintain a product liability insurance with a lump-sum coverage of at least 10 million euros per damage to persons/property. On request, the Supplier shall send us a copy of the liability insurance policy.
X. PROPERTY RIGHTS
1. The Supplier guarantees that his delivery does not violate any property rights of a third party.
2. If a third party raises any claim against us for such an infringement, the Supplier shall indemnify us against such claims and bear all necessary expenses in relation to the claim.
XI. Nondisclosure and retention of title
1. All documents, data, IT information, software and objects (specimens, designs, etc.) which we provide to the Supplier for execution of an order shall remain our property. Without our written consent, they shall not be used for other purposes, duplicated or made accessible to third parties, neither after termination of the contract.
2. Products which are manufactured by means of our property, according to our instructions or with major participation of our company in the development, may be delivered to third parties only if we have given our written consent.
3. Any copies produced by the Supplier shall be destroyed in this case; only the retention in the context of statutory obligations to preserve records as well as the storage of data for backup purposes in the context of usual data backups shall be excepted from this.
4. Supplier's reservations of ownership shall only apply if they refer to our payment obligation for the respective products of which the Supplier reserves the ownership. Particularly an extended or prolonged reservation of ownership is not permissible.
5. Processing, mixing or combination (further processing) by the Supplier of any items provided by us shall be performed for us. The same shall apply if we further process the delivered goods so that we are regarded as manufacturer and obtain the property in the product in accordance with statutory regulations upon further processing at the latest.
XII. Data protection
1. We collect, process, store and use the Supplier's personal data in order to process and fulfill any contracts concluded. We observe the applicable data protection regulations, in particular the European General Data Protection Regulation (GDPR) and the German Federal Data Protection Act, and have adopted technical and organizational measures which ensure that the provisions on data protection are observed both by us and by any possible external service providers.
2. For further information on data protection, particularly on customer's rights, please refer to www.fkb-gmbh.com/de/datenschutz/.
XIII. FINAL PROVISIONS
1. Our contracts and these General Terms and Conditions of Purchase shall exclusively be governed by German law, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Should individual provisions of a contract or these Terms and Conditions of Purchase be invalid, this shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision which comes closest to the purpose of the invalid one.
3. The exclusive legal venue for all disputes from and in connection with this contract is Rottweil. We shall, however, be entitled to sue the Supplier at his place of business.
4. The place of performance for all services to be provided by both Parties shall be Oberndorf-Aistaig. The Supplier shall carry out the repair at the location where the defective goods are located.
General Terms and Conditions of Sale for Supplies and Services of FKB GmbH
as of February 2021
I. CONCLUSION OF CONTRACT
1. The following Terms and Conditions of Sale shall apply to all our offers, deliveries and services, including all information and advice. Unless explicitly agreed otherwise, they shall also apply to all future business relations with customers even if we do not explicitly refer to them again when the individual contract is concluded.
2. Deviating terms and conditions of the Customer shall not apply even if we do not explicitly object to them once again. An unconditional acceptance of payments shall not be construed as an acceptance of the Customer's terms and conditions by our company. Any additions, modifications or ancillary agreements shall require our written confirmation to become effective. This shall also apply to any waiver of this requirement of written form.
3. Our offers shall be subject to confirmation unless a period of validity has been explicitly agreed. A contract shall only become effective if we confirm the Customer's order in writing or if we provide the delivery or service per order without separate confirmation.
II. DATES AND DEADLINES
1. The dates and deadlines for our deliveries and services shall not be binding unless explicitly agreed otherwise in writing. The deadlines shall start only if an agreement has been reached with respect to all details of the execution, the Customer has provided all information, documentation and materials which he is obligated to supply and – as far as payment in advance or down payment has been agreed - the agreed price or down payment has been received. If the Customer fails to cooperate or requests any modifications to the order, this shall lead to an adequate postponement of dates or extension of deadlines.
2. The occurrence of our default in delivery is determined by the statutory regulations. In any case, a reminder by the purchaser is required.
3. Unforeseeable and inevitable events (e.g. war, conditions similar to war, shortage of power or raw materials, sabotage, strike, epidemics or pandemics) as well as any other circumstances beyond our control shall release us from the obligation to deliver or perform for as long as these events persist, even if they occur during an already existing default in delivery. The dates or deadlines shall be adequately postponed or extended as a result of these circumstances. This shall also apply if supplies and services of our suppliers have not been made in due time or in the correct way, unless we are responsible for such circumstances. If the service is still not available within the new delivery time, we shall be entitled to withdraw from the contract in whole or in part; we will immediately reimburse any counterperformance already made by the Customer. A case of non-availability of the service to that effect shall particularly be the fact that we have not been supplied by our supplier in due time, we have concluded a congruent hedging transaction, it is attributable neither to our nor our supplier's fault or we are not obliged to procurement in the individual case.
III. PRICES AND TERMS OF PAYMENT
1. Our prices are net prices ex works (EXW, INCOTERMS® 2020).
2. If there are more than four months between conclusion of the contract and performance, and if market price or our production costs have increased until the moment of performance, we are entitled to increase the price by a reasonable amount. If the new price is (more than) 10% higher than the agreed price, the Customer is entitled to rescind the contract. This right must be claimed promptly after having been informed of the higher price.
3. Unless explicitly agreed otherwise in writing, all payments shall be due within 14 days with a cash discount of 2% or without deduction 30 days after the date of receipt of the supply and invoice at the Customer's. The date of receipt of the payment is decisive for the payment to be deemed in time. Checks shall only be accepted if this has been agreed and only on account of performance. In these cases, the payment shall be considered as settled only when the amount in question is finally at our disposal. All costs arising in connection with the payment shall be borne by the Customer exclusively.
4. Default in payment starts on the 31st day after receipt of delivery and invoice, without additional reminder. If the date of receipt of the invoice is not clear, the Customer shall be in default at the latest on the 31st day after receipt of the delivery and after the due date determined based on the payment conditions.
5. If the Customer is in default of payment, we are entitled to claim interest on arrears at the statutory rate. Assertion of any further damage is not excluded. After written information sent to the Customer, we may also stop fulfilling our obligations until we have received the payment. Section 353 of the German Commercial Code (HGB) shall remain unaffected.
6. The Customer shall be entitled to offset or retain payments only if his counter-claims are final and conclusive, undisputed or acknowledged by us.
7. An assignment of the Customer's claims towards us to a third party shall only be admissible if we have given our explicit written consent. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
8. We retain the right to request in writing down payment or a security deposit equal to the invoice value of the delivery if circumstances arise subsequently or we become aware of circumstances due to which our payment claim is at risk, with any deadlines and dates being extended or postponed correspondingly. If the Customer does not effect down payment or a security deposit within an adequate period after having been requested in writing to do so, we shall be entitled to rescind the contract without further grace period. If we have already delivered, we may request immediate payment of our invoice, differing from no. 3.
IV. DELIVERY AND TRANSFER OF RISK
1. Unless otherwise stated in the contract, the place of performance is our place of business. The risk of accidental loss or accidental deterioration of the goods shall pass to the Customer when the goods are handed over to the first freight forwarder. This shall also apply to partial deliveries or if we assume responsibility for additional services (e.g. shipment or shipping costs).
2. We are entitled to deliver or perform in parts unless the Customer does not have a clear interest in partial deliveries or partial performances or they can clearly not be requested of him in a reasonable way.
3. If delivery is delayed due to reasons the Customer is responsible for, he shall bear the costs for the unsuccessful offer as well as for storage at the delivery factory or at a warehouse of our choice. In these cases, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer when the ready-for-dispatch note is issued.
V. PRODUCTION ACCORDING TO THE CUSTOMER'S INSTRUCTIONS
1. In case of manufacture according to the drawings, samples and other instructions of the Customer, we do not assume any warranty and liability for the fitness for purpose of the product, the suitability for a specific purpose and for other properties, as far as these are based on the Customer instructions.
2. The Customer indemnifies us from all third party claims, including product liability claims, for damages caused by the products, insofar as these are caused by Customer drawings, samples and other instructions of the Customer.
3. The Customer shall warrant that the production, delivery and use of the goods produced on the basis of his instructions do not violate any property rights of a third party. If a third party raises any claims towards us on grounds of property rights, we shall be entitled to withdraw from the contract after consultation with the Customer unless the third party revokes the assertion of its property rights in a written statement submitted to us. The Customer shall be obligated to reimburse us the damage and the costs we incur because of the assertion of property rights. In case of a withdrawal, the work already executed by us in connection with the product or the service must be paid by the Customer as invoiced by us.
4. The molds, tools and construction tools ("production materials") which are manufactured by us or at our request and which are required to execute the purchase order are our exclusive property. The Customer is not entitled to any right to these, even if he has contributed to the manufacturing costs of the production materials. We are entitled to destroy the production materials at the latest 5 years after executing the last purchase order for the Customer, unless otherwise agreed in writing.
5. We reserve the property, copyright and other intellectual property rights in all documents transferred or handed over to the Customer. They may not be disclosed to third parties or used commercially, and they shall be returned to us on request together with all copies and reproductions made.
VI. MATERIAL PROVIDED BY THE CUSTOMER
If the Customer provides parts, material or other substances for his purchase order to be executed, the Customer shall be responsible for their usability. Unless explicitly agreed otherwise in writing, we shall not perform an incoming goods inspection and suitability check. If the material provided by the Customer is useless or unsuitable for the purchase order and this is not obvious for us, the Customer is not entitled to any warranty or liability claims against us. Furthermore, the Customer shall replace us the damage caused by the uselessness or unsuitability of the material, unless he is not responsible for uselessness or unsuitability.
VII. TECHNICAL MODIFICATIONS AND QUANTITY DEVIATIONS
1. Unless explicitly agreed otherwise, we reserve the right to technically required or appropriate modifications (in particular, of construction, selected material, specification, type).
2. When manufacturing special alloys, there may be variations in output for manufacturing reasons. Therefore, excess or short deliveries up to 10% of the ordered quantity for reasons of production are permitted; this applies both to total and individual partial quantities. The total price changes according to the volume.
VIII. WARRANTY AND INCOMING GOODS INSPECTION
1. In the context of the following provisions, we shall warrant that the products delivered and the services performed, at the moment of the passing of the risk, are free from material defects or defects of title. Defective products or services shall be repaired, delivered new or rendered new free of charge at our choice. We shall not be liable for wear and tear due to normal operation or for defects caused by inappropriate use, inadequate handling and storage or by non-observance of the manufacturer's documentation or the installation and mounting instructions. In the event of final delivery of the unprocessed goods to a consumer - even if they have processed them further - the statutory special provisions shall remain unaffected in any case. Any claims arising from recourse against suppliers shall be excluded, if the defective goods have been processed by the Customer or any other businessman, e.g. by installation into another product.
2. Unless agreed otherwise in writing, the information about our products, in particular the figures, drawings, technical data and references to standards and specifications contained in our offers and brochures, shall not constitute any warranties of quality and/or durability within the meaning of Section 443 of the German Civil Code (BGB), they are rather meant to be descriptions and characterizations. The same shall apply to the delivery of specimens or samples. The basis of our liability for defects shall particularly be the agreement made on the condition of the goods. Any product descriptions and manufacturer's information which are the object of the individual contract or had been made public by us at the time of conclusion of contract (in particular in catalogs or on our internet homepage) shall be regarded as agreement on the condition of the goods. Insofar as the condition has not been agreed, the fact whether a defect is present or not shall be assessed according to statutory regulations (Sec. 434 paragraph 1 clause 2 and 3 German Civil Code). We are not liable for any public statements by the manufacturer or any other third party (e.g. advertising messages) of which the Customer has not made us aware as crucial for his purchasing decision.
3. Warranty rights of the Customer presuppose that he has duly complied with his inspection and complaint obligations pursuant to Section 377 of the German Commercial Code (HGB). Any complaints with regard to number of pieces, weight or quality shall be notified to us in writing immediately after having detected them, but at the latest one week after having received the delivery, notwithstanding any earlier legal notification duty. In case of construction materials and other goods intended for installation or any other further processing, an inspection shall be carried out immediately before processing in any event. Should a defect appear upon delivery, the inspection or any later point of time, we must immediately be informed of this in writing.
4. Customer's claims for defects become time-barred within 12 months from delivery. This shall not apply if longer periods are stipulated by law, in particular for goods that, acc. to their usual purpose, are used in a building and which have caused the defectiveness of the building. Sentence 1 does neither apply for damage resulting from injury to life, body or health, from intent or gross negligence, in case of a guarantee with regard to the existence of a property, in case of breach of essential contractual obligations (these are obligations that have to be fulfilled for a proper execution of the contract in the first place and in the fulfillment of which the Customer regularly trusts and may trust), for claims arising out of the German Product Liability Act (ProdHaftG) as well as for our obligation to replace the expenses required for supplementary performance according to Section 439 paragraph 3 of the German Civil Code (BGB).
5. We bear all costs required for the purpose of supplementary performance (in particular, transport, shipping, labor and material costs). Insofar as expenses are increased because of the fact that the objects were moved to another place than the place of delivery after having been delivered, the Customer shall bear the extra cost, unless the transport corresponds to their intended purpose. In case of supplementary performance, the Customer shall make this promptly possible for us and make the objected goods available to us for inspection and processing.
6. Any costs incurred due to unjustified complaints shall be borne by the Customer, unless he is not responsible for the unjustified complaint. Lump-sump cost charges for complaints shall not be accepted.
7. After failed repair or replacement, the Customer shall be entitled to claim decrease of the remuneration or to rescind the contract, notwithstanding any claims for damages.
8. There is no right to claims for defects in case of insignificant deviation from the agreed condition and only insignificant impairment of the usability.
9. Unless otherwise agreed in these Terms and Conditions of Sale, any further claims shall be excluded.
IX. RETENTION OF TITLE
1. We shall reserve the title to the goods delivered as well as to the objects created by processing or transforming these goods (goods subject to retention of title) until all and any of our present and future claims towards the Customer - also those that are constituted after conclusion of the contract - have been settled in their entirety. For current account claims the goods subject to retention of title serve as a security for our balance claims.
2. Processing or treatment is only permitted in the ordinary course of business and shall then be carried out by the Customer for us without any obligations for us arising thereof. If processing is done by combining with other materials, we shall acquire co-ownership in the new goods in proportion of the gross purchase price agreed between the Customer and us to the value of the other materials. The Customer herewith assigns us his co-ownership arising out of any combination, mixing or blending of the reserved goods with other materials. We hereby accept this assignment.
3. The Customer shall be the custodian for all goods that are our sole or joint property and shall store them with the due diligence of an ordinary businessman. If he takes out insurances for the reserved goods, he herewith assigns us his rights arising out of the insurance contracts, in case of co-ownership, in the proportion of our co-ownership share compared to all co-ownership shares. We hereby accept this assignment.
4. The Customer is only entitled to dispose of the reserved goods in case of sale in the ordinary course of business, and only if it is guaranteed that all receivables arising out of it are assigned to us. He is not entitled to any other disposal (in particular, pledges and security assignments).
5. The Customer herewith assigns to us as security all receivables arising out of the sale of the reserved goods or any other legal ground in relation to the reserved goods. If the assigned claim is part of an open invoice, the Customer hereby assigns to us part of his balance claim, including the closing balance, in the amount of his receivables for resale. If he sells the goods subject to retention of title after processing or transforming them or after combining, mixing or mingling them with other products or if he sells them together with other products, it is agreed that the assignment of the claim shall amount to the part corresponding to the gross price agreed between us and the Customer plus a security margin of 20% of this price. We hereby accept the assignments. The Customer shall be entitled to collect the claims assigned to us.
6. The right to dispose of the reserved goods and the right to collect the receivables assigned to us may be revoked at any time if the Customer fails to properly fulfill his obligations to us.
7. The Customer shall be obligated to provide us at any time all information we desire with respect to the goods subject to retention of title and the claims assigned to us and to submit the corresponding documents to us. At our request, the Customer must inform the debtors about this assignment.
8. If a third party has access to or raises claims concerning the goods subject to retention of title (including any enforcement measures), the Customer must inform us immediately and provide the relevant documents to us. He shall inform third parties without delay about our retention of title and the assignment by way of security. Any costs for such actions shall be borne by the Customer.
9. If the Customer is in default of payment or violates his obligations arising from these Terms and Conditions, we shall be entitled - notwithstanding our other rights - to take back the products subject to retention of title, to disclose the transfer by way of security and to realize the claims assigned to us for satisfying the Customer's outstanding debts towards us. In such a case, the Customer shall immediately grant access to the reserved goods and hand them over to us or our authorized agents. Our request to return the goods or a seizure initiated by us as an enforcement measure shall not be considered as a withdrawal from the contract.
X. CLAIMS FOR DAMAGES, LIMITATION OF LIABILITY
1. Any claims for damages on the part of the Customer, irrespective of the legal cause, in particular for violation of contractual obligations and for tortuous act, shall be limited to the foreseeable damage typical for the contract.
2. This shall not apply to damage resulting from injury to life, body or health, from intent or gross negligence, in case of a guarantee with regard to the existence of a property, in case of breach of essential contractual obligations (these are obligations that have to be fulfilled for a proper execution of the contract in the first place and in the fulfillment of which the Customer regularly trusts and may trust) and for claims arising out of the German Product Liability Act (ProdHaftG). Exclusion of liability shall not apply either for our obligation to replace the expenses required for supplementary performance according to Section 439 paragraph 3 of the German Civil Code (BGB).
3. The Customer is only entitled to any recourse claims against us to the extent that the Customer has not made any agreements with his customer beyond the statutory rights.
4. Any further claims for damages, for whatever legal reason, shall be excluded. This shall also apply if the Customer demands compensation of the wasted expenditure instead of the claim for compensation of the damage.
5. The liability limitations resulting from section 1 and 5 shall also apply towards any third parties as well as in the event of breaches of duty by persons (also in their favor) whose fault we are responsible of according to statutory regulations (in particular with regard to the personal liability of our employees, representatives and agents).
6. The preceding regulations do not imply any change in the burden of proof to the detriment of the Customer.
XI. SOFTWARE USE
1. As far as software is included in the delivery, the Customer shall be granted the non-exclusive right to use the software and the corresponding documentation. Its use shall be permitted on the items delivered that are meant for this purpose. Any further use of the software shall not be allowed.
2. The ordering party may only duplicate, edit, translate or reverse engineer the software to the legally permissible extent (sections 69a et seqq. of the German Copyright Act [UrhG]). The ordering party undertakes not to remove nor to change any manufacturer information - in particular, copyright notes - without our prior express consent.
3. All other rights in the software and documentation, including copies, remain with us and/or the software supplier. Any granting of sub-licenses shall not be permitted.
XII. Data protection
1. We collect, process, store and use the Customer's personal data in order to process and fulfill any contracts concluded. We observe the applicable data protection regulations, in particular the European General Data Protection Regulation (GDPR) and the German Federal Data Protection Act, and have adopted technical and organizational measures which ensure that the provisions on data protection are observed both by us and by any possible external service providers.
2. For further information on data protection, particularly on Customer's rights, please refer to www.fkb-gmbh.com/de/datenschutz/.
XIII. FINAL PROVISIONS
1. Our contracts and these General Terms and Conditions of Sale shall exclusively be governed by German law, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Should individual provisions of a contract or these Terms and Conditions of Sale be invalid, this shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision which comes closest to the purpose of the invalid one.
3. The exclusive legal venue for all disputes from and in connection with this contract is Rottweil. We shall, however, be entitled to sue the Customer at his place of business.