General Terms and Conditions of FIDICA GmbH
1. Scope of Application
1.1.
FIDICA’s offers, deliveries and services shall be based exclusively on these Terms and Conditions. Unless otherwise agreed, these conditions shall also apply to future business relations granted the transactions are similar in nature, as well as customer service, maintenance and other services.
1.2.
Our Terms and Conditions shall apply exclusively. A Purchaser’s deviating, contrary or additional General Terms and Conditions shall only apply if and to the extent that FIDICA agreed to their application. This consent is required in any case, e.g. also if FIDICA makes deliveries without reservation while being aware of the Purchaser’s General Terms and Conditions.
1.3.
General Terms and Conditions shall apply only if the Purchaser is an entrepreneur (§ 14 German Civil Code BGB), a corporate body under public law or a public separate estate according to § 310 (1) BGB.
2. Offers / Information regarding Services
2.1.
Offers made by FIDICA are without engagement and nonbinding and are not to be viewed as offers according to § 145 BGB if not clearly marked as binding.
2.2.
Illustrations, drawings, measurements, weights and other information regarding an item of delivery or service (hereinafter „Documents“) shall only be binding unless their usability for the contractually intended purpose requires an exact match. Unless expressly otherwise agreed, Documents are neither agreements on characteristics nor guaranteed characteristics but merely descriptions or labels of a service.
2.3.
FIDICA reserves property rights and copyright for all Documents surrendered to a Purchaser for the purpose of order placement – in digital format as well – such as calculations, drawings etc. These Documents may not be made accessible for third parties unless written consent is expressly given.
3. Delivery Contents and Times
3.1.
Any order toward FIDICA becomes binding only when confirmed by FIDICA in written or form of text to the Purchaser. Any dates and time periods stated by FIDICA are nonbinding unless expressly agreed otherwise.
3.2.
If a delivery period was agreed on, it begins at the following times at the latest:
- Date of order confirmation and
- Date of fulfilment of all technical, commercial and other requirements of the Purchaser and
- Date of receipt of a deposit before delivery of goods or any other collateral by the Purchaser.
3.3.
A delay in delivery on FIDICA’s part shall be determined according to statutory provisions. However, a reminder by the Purchaser is necessary in any case.
3.4.
FIDICA is not liable for impossibility of delivery or delays if those are caused by acts of nature or any other events unpredictable at the time of the conclusion of contract (e.g. operational disruptions of any kind, strikes, legitimate lockouts, shortage of staff, energy or materials including fuel, mobilisation, war, blockades, export or import bans, fire, traffic stoppages) for which FIDICA is not responsible. FIDICA is entitled to withdraw from the contract or cancel it if the events mentioned in sentence 1 considerably hinder or prevent delivery and if this hindrance is not temporary. In case of a temporary hindrance, delivery periods will be extended or delivery dates will be postponed by the duration of the hindrance and an adequate starting period. If the fulfilment of the contract is unacceptable to the Purchaser due to the delay, he may withdraw from the contract by written declaration to FIDICA.
4. Delivery, Transfer of Risk, Default
4.1.
Delivery shall be effected ex works. Upon the request and at the expense of the Purchaser, the goods shall be shipped to another destination (sale to destination). Unless agreed otherwise, FIDICA is entitled to determine the type of shipment (particularly carrier, dispatch route, packaging).
4.2.
Unless expressly agreed otherwise, risk shall be transferred to the Purchaser upon provision of the goods, however at the latest upon handover of the delivery item to the forwarder, carrier or other third parties tasked with delivery. This applies regardless of whether the shipment of goods is effected from the place of fulfilment or who bears the costs of transport.
4.3.
If the Purchaser is in default of acceptance or culpably violates other duties to cooperate, FIDICA is entitled to compensation of the resulting damage including the refund of additional expenses (e.g. costs for storage/warehousing). For refunds of additional expenses, FIDICA shall invoice a lump sum of 0.5% of the invoice amount for every full week since the beginning of the default of acceptance, but a maximum of 5% of the invoice amount. FIDICA reserves the right to prove higher damage and any other rights, particularly the withdrawal from a contract. The value of the lump sum invoiced shall be set off against further monetary claims. The Purchaser is free to provide evidence that FIDICA has incurred less damage than the lump sum invoiced. If the aforementioned conditions are present, accidental risk of loss or deterioration of the items purchased is transferred to the Purchaser as soon as he defaults in acceptance or payment.
5. Pricing and Terms of Payment
5.1.
The prices stated in the order confirmation by FIDICA plus applicable VAT shall apply. Additional deliveries and services shall be billed separately. Prices shall be quoted ex works exclusive packaging. If no fixed prices were determined, FIDICA reserves the right to adequate pricing changes due to changes in wage, material or distribution costs for deliveries made at least 3 months after conclusion of contract.
5.2.
Payments to FIDICA must be made in the agreed currency. Bills of exchange and cheques shall only be accepted on account of payment and the Purchaser shall bear all associated costs. In the case of cheques, payment shall be deemed complete when the cheque has been irreversibly cashed.
5.3.
Payment must be effected within 30 days after the date of the invoice unless differently agreed in written form. Payment of the purchasing price must be made exclusively to the account stated overleaf. The deduction of discounts is only acceptable if a special written agreement has been made. Default interest shall be calculated at 8% above the respective base interest rate p.a. FIDICA reserves the right to claim higher default damage.
5.4.
The Purchaser shall only be entitled to set off and retention rights if his claims are found absolutely or are undisputed.
5.5.
If, after conclusion of the contract, it becomes apparent (e.g. due to an application for the initiation of insolvency proceedings) that FIDICA’s claim to the purchasing price is at risk due to a lack of ability to perform on the part of the Purchaser, FIDICA is entitled to refuse service and – if applicable, after setting a deadline – to withdraw from the contract according to statutory provisions (§ 321 BGB). For contracts regarding the manufacturing of non-substitutable goods (custom manufacturing), FIDICA may declare withdrawal immediately; statutory regulations regarding the dispensability of setting a deadline remain unaffected.
6. Retention of Title
6.1.
FIDICA is entitled to the ownership of the goods (reserved goods) until all claims resulting from the business relation have been fulfilled. Prior to this, the Purchaser may not pledge or transfer the goods. This shall also apply to all future deliveries, even if not explicitly quoted by FIDICA. FIDICA is entitled to demand the return of the items purchased if the Purchaser acts in breach of contract. The Purchaser shall be obliged to treat the item with care until ownership has been transferred to him. He shall particularly be obliged to adequately insure it at replacement value against damage caused by theft, fire or water at his own cost (Notice: only applicable to sales of high-value goods). If maintenance or inspection work is necessary, the Purchaser shall be obliged to perform them timely and at his own cost.
6.2.
Any treatment or processing of the reserved goods shall be carried out for FIDICA without FIDICA incurring any obligations from this. In this case, expectancy rights of the Purchaser shall carry over to the reworked goods. In the case of processing foreign products not belonging to FIDICA, the latter shall be entitled to the resulting joint title to the new item in relation of the invoice value of the reserved goods to the invoice value of the other goods. The same shall apply if the Purchaser acquires sole ownership according to § 947 (2) BGB. The new item stored at no cost for FIDICA by the Purchaser shall be a reserved good as defined by this provision. The same shall apply in the case of intermixture. If goods are mixed so that the Purchaser’s item can be viewed as the main item, it is deemed as agreed that the Purchaser grants FIDICA proportional joint ownership and stores the thus formed sole or joint property for FIDICA. For the security of FIDICA’s claims against the Purchaser, the Purchaser shall also assign any claims to FIDICA which arise to the Purchaser against a third party as a result of the linkage of the reserved goods with real estate; FIDICA hereby accepts this arrangement.
6.3.
The Purchaser may resell the reserved goods in the ordinary course of business under reservation of ownership.
6.4.
Any claims of the Purchaser resulting from the reselling of reserved goods are hereby assigned to FIDICA at the value of the final invoice amount (including VAT). They shall serve as collateral to the same extent as the reserved goods. If the reserved goods are sold by the Purchaser in combination with other goods not sold by FIDICA, any claims resulting from the reselling shall only be assigned at the reselling value of the respective reserved goods sold. In the case of reselling goods which FIDICA owns joint ownership shares of according to Section 6.2, claims shall be assigned at the value of these joint ownership shares. This assignment of claims applies regardless of whether the items purchased were resold without or after reworking. The Purchaser shall still be entitled to collect any claims even if assigned. Our entitlement to collect the claim ourselves remains unaffected.
6.5.
The Purchaser is entitled to collect claims resulting from reselling until FIDICA’s revocation, which is possible at any time. FIDICA shall only make use of this right to revocation if the Purchaser does not fulfil his payment obligations toward FIDICA, is in default of payment, if an application for the initiation of insolvency proceedings has been made or in case of another substantial lack of solvency. The Purchaser shall only be entitled to assign any claims – including the assignment of claims to factoring banks – with FIDICA’s prior written consent. Upon FIDICA’s request, he is obliged to immediately inform the acceptor of the assignment to FIDICA and provide FIDICA with the information and documents necessary for the collection. FIDICA is entitled to inform the acceptor of the assignment themselves.
6.6.
In the event of attachments, seizures or other third-party dispositions, the Purchaser must inform FIDICA immediately. As far as the third party is not able to refund the judicial or extrajudicial expenses of a lawsuit to FIDICA according to § 771 German Civil Procedure Rules (ZPO), the Purchaser shall be liable for the loss incurred.
6.7.
In the event of any violation of obligations by the Purchaser, particularly default in payment, and after the unsuccessful expiry of a reasonable deadline set for the Purchaser, FIDICA is obliged to withdraw from the contract and take back the reserved goods as well as enter the Purchaser’s premises for this purpose and use the goods to offset the liabilities caused.
6.8.
If the realisable value of all collateral exceeds the liabilities by more than 10%, FICIDA will release the collateral upon request of the Purchaser but at FIDICA’s discretion.
7. Claims for Defects of the Purchaser
7.1.
Unless otherwise stated in these Terms and Conditions, FIDICA shall assume any liability for any defects toward the Purchaser according to statutory regulations. The rights of the Purchaser according to §§478, 445a BGB remain unaffected.
7.2.
Claims for defects of the Purchaser require him to fulfil his statutory obligation for inspection and notification (§§ 377, 381 German Commercial Code HGB). If a defect is discovered upon delivery, inspection or at a later point in time, the Purchaser must notify FIDICA immediately. In any case, obvious defects must be reported in written form within 7 weekdays after delivery; defects not apparent during the inspection must be reported within the same period after discovery. If the Purchaser fails to inspect the goods and/or report any defects as stipulated, FIDICA’s liability for unreported, not timely reported or incorrectly reported defects shall be excluded according to statutory regulations.
7.3.
Claims for defects cannot be made for irrelevant deviation from the agreed quality, irrelevant impairment of usability, natural wear and tear and any damage occurring after transfer of risk due to incorrect or careless use, excessive loading, inappropriate equipment, defective construction, unsuitable construction ground or special external circumstances not provided for in the contract. Likewise, if the Purchaser or third parties carry out improper repair work or modifications, claims for defects cannot be made für these and resulting damage.
7.4
If the item delivered is defective, FIDICA may at its own discretion decide between supplementary performance by removal of the defect (repair) or by supply of a defect-free item (replacement). FIDICA’s right to refuse supplementary performance under the statutory provisions remains unaffected. Supplementary performance does not include upgrades or reassembly of the defective item if FIDICA was not originally obliged to assemble the item.
7.5
Claims of the Purchaser regarding expenses necessary for supplementary performance, particularly costs for transport, journey, labour and material as well as possible costs for disassembly and reassembly shall be excluded, unless expenses increase because the item delivered by FIDICA was afterwards transferred to any other place than the Purchaser‘s branch office and this transfer does not correspond to the intended use.
7.6
Claims of recourse of the Purchaser against FIDICA only exist to the extent that the Purchaser has not entered any agreements with his customer exceeding statutory warranty claims. Regarding the extent of the Purchaser’s recourse entitlement against the supplier, the aforementioned provisions shall be applied correspondingly.
7.7.
FIDICA may make supplementary performance dependent on the Purchaser paying the purchasing price due. The Purchaser is however entitled to retain a part of the purchasing price appropriate to the extent of the defect.
7.8.
If supplementary performance fails or a reasonable deadline for supplementary performance set by the Purchaser expires unsuccessfully or may be dispensed according to statutory provisions, the Purchaser may withdraw from the contract or lower the purchasing price. In case of an irrelevant defect, however, no right to withdrawal shall exist.
7.9.
The warranty shall become void if the Purchaser modifies the item delivered or has it modified by third parties without FIDICA’s consent and if these modifications make the removal of defects impossible or unreasonably difficult. In any case, the Purchaser must bear the additional defect removal costs caused by to the modification.
7.10.
In deviation of § 438 (1) No. 3 BGB, the general limitation period for warranty claims shall be one year from the date of delivery. The same shall apply to services from the date of acceptance in deviation of § 634a (1) No. 1 BGB. This shall not apply to warranty claims resulting from deliberate or grossly negligent breach of duty as well as the cases laid out in Section 8.2. Claims for recourse in case of final delivery to a customer (§ 478 BGB) also expire according to statutory regulations.
7.11.
Claims of the Purchaser for damages or reimbursement of additional expenses shall exist only in case of defects in accordance with the conditions set out in Section 8 and are otherwise excluded. The application of Section 7.8 remains unaffected so that under aforementioned conditions, warranty claims for defects shall expire within a year.
8. Other Liabilities
8.1.
FIDICA shall be liable for damages – on whatever legal grounds – within the scope of fault-based liability in the event of malicious intent and gross negligence. However, FIDICA shall not be liable for simple negligence regarding damage resulting from a breach of contractual obligation (i.e. an obligation essential for the proper fulfilment of the contract on whose observance the other party relies and may rely on regularly); although in this case, FIDICA’s liability is limited to typical damages which FIDICA could have foreseen as possible consequence of such a breach at the time of conclusion of the contract.
8.2.
Limitations of liability according to Section 8.2 do not apply in the following cases:
- in case of injury life, limb or health,
- if FIDICA has maliciously concealed a defect,
- if FIDICA has assumed a guarantee for the quality of the goods, or
- for claims of the Purchaser according to the Product Liability Act.
9. Place of Fulfilment, Governing Law and Legal Jurisdiction
9.1.
Unless agreed otherwise, the place of fulfilment shall be the place of business of FIDICA.
9.2.
These Terms and Conditions and the contractual relation between FIDICA and the Purchaser are subject to the law of the Federal Republic of Germany with exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN purchasing law).
9.3.
The exclusive place of jurisdiction for all and any disputes arising from or in connection with these Terms and Conditions and the contractual relation between FIDICA and the Purchaser shall be Aschaffenburg. FIDICA is furthermore entitled to take legal action at the place of fulfilment for the delivery commitment according to these General Terms and Conditions or at the general place of jurisdiction of the Purchaser.
9.4.
All agreements made between the parties for the purpose of the execution of this contract are stipulated in this contract.
Effective: June 2023
