General Terms and Conditions of Business
(As of April 2019)
- All our performances, including those arising from future business transactions, are based exclusively on our following Terms and Conditions of Business. Terms and conditions of business of the client shall not apply, even if we do not expressly contradict them but nevertheless render the performance.
- Partial performances are admissible in so far as they are conscionable for the client.
- Our offers are always non-binding. Following the order or commission from the client, the contract is formed through our written confirmation of order - digital form or fax is, however, sufficient.
- Details concerning the scope of our performance, which are provided prior to the order within the scope of processing the same, are only binding if they are confirmed by us as being binding together with our confirmation of the order or are confirmed subsequently in writing (digital form or fax is likewise sufficient).
- We reserve title and the intellectual property in all work materials which are supplied to the client within the scope of the preliminary negotiations and/or execution of the contract or which are manufactured in accordance with our specifications, such as e.g. samples, drafts, cost estimates, sketches / drawings and similar information of a corporeal and incorporeal nature - including in electronic form. The client is also forbidden to retain any copies or other reproductions. Moreover, the client may neither bring them to the notice of any third parties nor make the same accessible to them; in the case of any contravention, the client shall be liable to us in damages.
- Objects delivered by us (§ 90 BGB - Bürgerliches Gesetzbuch - German Civil Code) remain our property until payment has been made in full of all claims arising from the business relationship between FKFS and the client. This reservation of title also applies in the case of payments by bill of exchange.
- The client shall be entitled to all results which are achieved in connection with the work of the FKFS for the client as they arise - including any inventions -, free from any claims of third parties, for use and exploitation by the Client.
- The FKFS will ensure that any work results to which the FKFS is entitled under the provisions of the Arbeitnehmererfindungsgesetz [Employee Inventions Act]will pass or be transferred to the client without delay.
- In return, the client will reimburse the FKFS for the employee invention remuneration to be paid to the FKFS employee in accordance with the provisions of the Arbeitnehmererfindungsgesetz.
- In the absence of any express commitments to the contrary, the completion / delivery periods quoted by FKFS are non-binding; they only reflect the anticipated completion / delivery period and do not represent any firmly agreed period or calendar date for the completion / delivery.
- Agreed delivery and execution periods shall in no case commence prior to the full finalisation of all details pertaining to the desired performance and its execution. Compliance with these periods is subject to all commercial and technical issues having been resolved between the parties, the client having provided all information necessary for the execution of the works and the client having fulfilled all its obligations. These include, in particular, the procurement of the necessary official certificates or permits, the rendering of a payment on account, the answering of all queries, in each case promptly, and also the delivery of all necessary or requested drawings, documents and test materials in sufficient quantities. Should these conditions not be fulfilled, the delivery /execution period will be extended accordingly; this does not apply if we are responsible for the delay.
- Should the non-compliance with any agreed delivery or execution period result from force majeure, mobilisation, war, insurrection, strike, lockout or other unforeseeable hindrances affecting our operations for which we are not responsible and which occur or become known to us following the conclusion of the contract, the period shall be extended by a reasonable length of time.
- In the case of any deficiencies in its deliveries or performances, the FKFS will initially satisfy its warranty obligations through rectification. This will take place, at the option of FKFS, either through elimination of the defect or replacement delivery / performance. The client shall have a claim to replacement delivery / performance if it cannot reasonably be expected to accept the elimination of the defect. Following the abortive expiration of a reasonable period of time set by the client for FKFS to rectify the defects, within which the FKFS shall be entitled to a number of rectification attempts commensurate with the nature of the defect, its complexity and the other circumstances, the client shall, at its option, be entitled to demand a decrease in the remuneration (price reduction) or cancellation of the contract (rescission) or to eliminate the defect itself and to demand reimbursement of its necessary expenditure thereby incurred. The right of the client to claim damages or the reimbursement of expenditure incurred in vain according to the statutory provisions in addition to rescission remains unaffected, with the exception of the restrictions applying to such claims of the client in accordance with § 6.
- Any claims of the client to damages and reimbursement of expenditure (hereinafter: claims to damages), regardless on which legal ground, in particular on account of any breach of duties arising from the contractual relationship or in tort, are excluded.
- This shall not apply in so far as strict liability applies by virtue of statutory provisions, e.g. under the Produkthaftungsgesetz [Product Liability Act], in cases of deliberate intent, gross negligence, on account of injury to life, limb or health or on account of any breach of fundamental contractual duties. The claim to damages for the breach of fundamental contractual duties is, however, restricted to the foreseeable damage typical for the type of the contract, except in the case of deliberate intent or gross negligence or where there is liability on account of injury to life, limb or health. The foregoing provisions do not result in any reversal of the burden of proof to the detriment of the client.