General terms and conditions of Fliegl Bau- und Kommunaltechnik GmbH
1. All offers, deliveries, services and sales are without exception subject to these general terms and conditions. These general terms and conditions apply both to contracts with consumers and to contracts with operators.
The applicable version is the one valid at the time the contract is concluded.
2. For the purpose of the general terms and conditions, consumers are natural persons with whom there is a business relation, by which they are not exercising or acting for the purpose of a commercial or independent professional activity.
For the purpose of the general terms and conditions, operators are natural and legal persons or legally incorporated bodies and companies with whom there is a business relation, by which they are exercising or acting for the purpose of a commercial or independent professional activity.
For the purpose of the general terms and conditions, customers are both consumers and operators.
3. Where the contractual partner is an operator who has an ongoing business relation with us, the general terms and conditions are an agreed part of all contracts and are valid for all present and future terms of business, even though they may not have been expressly included.
4. Diverging, contradictory, or supplementary terms and conditions, even if they are known, are not included in the contract unless their validity is accepted in writing.
5. Changes to the VAT number, company name or address must be reported to us unrequested and immediately in writing. If the customer fails to meet this disclosure obligation, he shall be obliged to compensate us for any tax disadvantages that result.
II. Conclusion of contract:
1. Offers made in our catalogue or on our website are made without obligation and represent a non-binding invitation to customers to make an order for goods. This also applies to customer quotation requests made by telephone and details exchanged in the course of the telephone conversation.
2. The customer is bound to place the order by six weeks. A contract is concluded only when the customer has signed the order confirmation, which we prepare and send to him in writing or by electronic means, and returned it to us in writing or by electronic means.
Collateral agreements, supplements or modifications, require written confirmation in order to be accepted by us.
For the scope of delivery, and the nature and dimensions of the delivered item, our confirmation in writing or by electronic means shall alone be valid.
3. To an extent which is reasonable, the goods are subject to technical modifications, or changes to their shape and/or colour.
4. Our employees are not authorized to make collateral agreements verbally or provide verbal guarantees which go beyond the content of the written contract.
5. Any transfer of the customer’s rights and obligations in the contract require our written consent.
1. For contracts with consumers, our stated prices apply ex-works at Mühldorf. These prices include VAT (without packaging costs); delivery and shipping costs are not included in our prices.
For contracts with operators, unless otherwise agreed in writing, our prices apply ex-works at Mühldorf without the packaging costs and VAT at the applicable rate. Packaging costs are billed separately.
2. We shall be bound to the prices stated in the initial order confirmation for four months starting from the date of issue.
If the time between conclusion of contract and the agreed delivery date extends beyond four months, price changes shall be permitted only for valid reasons, in particular due to a rise in production costs, increased labour costs, or other equivalent grounds. If these changes would cause a major disturbance to the contractual equilibrium between the parties, no change will be made. Moreover, changes shall require the consent of the customer.
If the increase is more than 5% of the agreed net price, the customer shall have the right of cancellation.
3. The costs of transport insurance, shipping, transfer, forwarding, and customs and official fees, shall be charged to the customer.
1. Our invoices shall be due for payment, in cash and without deduction, at handover of the purchase item, but at the latest at receipt or transmission of the invoice for payment, unless otherwise agreed in writing.
2. If a customer does not specify debt repayment, we shall be entitled to credit payments to older arrears of this customer. We shall then inform the customer about the type of credit offset that has been made. If costs and interest have already accrued, we shall be entitled to apply payments first to the costs, then to the interest, and finally to the main service. Deviations from this rule are allowed only where it has not taken reasonable account of the interests of the customer.
3. Payment shall not be considered complete until the related amount becomes available to us.
4. If the customer falls partly or wholly into arrears with payment, then he must - without prejudice to any of our other rights - pay interest on the arrears starting from that time, at the currently applicable legal rate. Moreover, we shall be entitled to claim a flat rate charge of 40.00 EUR from the operator.
If, as a result of the arrears, we suffer interest damage higher than that of the statutory rate, we shall be entitled to demonstrate this to the customer and make a claim for compensation. In this case, the consumer shall, however, have the option of demonstrating to us that the claimed damage due to arrears has not in fact incurred, or at least that it was incurred at a significantly lower rate.
5. If we become aware of circumstances which place in doubt the creditworthiness of the customer, in particular if the customer stops the payments, or if we learn of other circumstances which place the customer’s creditworthiness in question, then we shall be entitled to declare all of the remaining debt payable. In this case, we shall also be entitled to demand down payments or sureties.
6. The customer shall have the right to offsets only if his claims are legally valid and undisputed. The customer shall also be entitled to offsets if claims for defects or counter-claims can be demonstrated in relation to the same contract.
7. The customer shall be entitled to exercise a right of retention only if the counter-claim is related to the same contract.
V. Delivery and delayed delivery:
1. Delivery dates and deadlines are to be set out in writing.
2. Delivery deadlines normally start at the time the contract is concluded. If changes or additions to the contract are agreed later, the delivery deadlines shall be re-started from the time these changes or additions to the contract were concluded, unless otherwise agreed.
3. If the delivery date or deadline is exceeded, the customer shall be able, within a reasonable period, to send us a reminder in writing. At the receipt of this reminder, we shall be in arrears.
4. In the case where the delivery date or deadline is exceeded, the customer shall be entitled to claim compensation for any damage due to the delay. In the case of slight negligence attributable to us or to our legal representatives or vicarious agents, claims for damage compensation shall be excluded.
If the grace period elapses without a resolution, the customer shall be entitled to withdraw from the purchase contract by written notice or demand compensation for damages due to non-performance. In the case of slight negligence attributable to us or to our legal representatives or vicarious agents, claims for damage compensation shall be excluded.
While we are in arrears with delivery, if delivery then becomes impossible for any reason, then we shall be liable within the above limits of liability. We shall not be liable if the damage was incurred even though delivery was made on time.
5. We cannot be liable for delays in delivery due to force majeure or events which make deliveries difficult or impossible for us, such as strikes, lock-outs, official injunctions, operational disruptions, shortage of materials with us or our subcontractors, etc., including with our suppliers and their sub-suppliers of these suppliers. In this case there is no late delivery. We shall be entitled to postpone the delivery or service by the duration of the hold-up plus a reasonable start-up time, or to withdraw from the contract entirely or partially because of the part that remains unfulfilled.
6. If an obstruction as described at Point 5 lasts longer than four months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract regarding the part that remains unfulfilled. If the delivery time is extended or if we are freed from this obligation, the buyer shall not be able to claim for related damage compensation. We shall be able to invoke the above circumstances only after informing the customer immediately.
7. During the delivery period, the manufacturer reserves the right to make changes to the design and shape, changes to the colour, and changes to the scope of delivery, provided there is no significant change to the purchase item that is unreasonable for the buyer.
8. The details given in descriptions which are valid at conclusion of the contract regarding scope of delivery, appearance, services, dimensions and weights, consumption of operating materials, operating costs etc. of the purchase item, are part of the contract. These should be considered as approximate and are not guaranteed commitments. They should rather be considered as a yardstick for determining whether the purchase item is free of defects for the purpose of the legal guarantee regulations, unless we explicitly confirm otherwise.
9. If we use symbols or numbers to designate the order or the ordered purchase item, no entitlements can be derived from these alone.
VI. Transfer of risk:
1. For consumers, the risk of accidental loss and accidental deterioration of the goods sold passes to the consumer at handover of the goods, including in case of sale by mail order.
2. For operators, in the case of mail order, the risk of accidental loss and accidental deterioration of the goods sold passes to the operator at delivery of the goods to the shipping agent, carrier, or other person or body in charge of shipment.
3. Handover shall be considered effective even if there is a delay in acceptance by the customer.
4. We shall be entitled to make partial shipments where this is considered reasonable for the customer. In this case, the partial deliveries must be paid pro rata after delivery.
1. The customer has the right to test the purchase item at the agreed acceptance location within eight days of receipt of notification of delivery.
2. The customer is obliged to accept the purchase item within eight days of receipt of notification of delivery. In the case of non-acceptance, we shall be able to exercise our legal rights.
3. Trial runs before acceptance must be kept within the limits of customary trial runs, and are not to exceed 20 km/h.
4. If the customer is in delay with acceptance of the purchase item for more than 14 days from receipt of notification of delivery, and this is due to wilful intent or gross negligence, we may set the customer a grace period of 14 days in writing, stating that the customer will be considered to have refused acceptance after this period. If the grace period elapses without resolution, we shall be entitled to withdraw from the contract by written notice or to demand damage compensation instead of performance. The setting of a grace period is not necessary if the customer seriously and finally refuses acceptance, or is obviously not in a position to pay the purchase price within this time. In this case, no delivery is required either.
5. If we demand compensation, this shall amount to a flat-rate 15% of the gross purchase price. This will be increased if we can demonstrate higher loss, and lower if the customer can demonstrate lower loss. The customer shall also have the option of demonstrating that no losses were in fact incurred.
6. If the customer or his representative takes control of the purchase item for a trial run before acceptance, or it is driven by persons previously designated, the customer shall be responsible for any damage to the purchase item during the trial run.
VIII. Retention of title:
1. Ownership of the delivered goods shall be reserved by us up till full payment of the purchase price plus VAT.
2. If the customer is a trader for the purposes of the German Commercial Code, we reserve ownership of the goods up till settlement of all accounts receivable which exist at the time of delivery or later as the result of an existing business relation.
In this case, retention of title shall lapse only when the trader for the purposes of the German Commercial Code has settled all receivables resulting from the business relation, and in particular has settled the account balance (current account reservation). On demand by the trader for the purposes of the German Commercial Code, we shall be obliged to waive retention of title if the trader for the purposes of the German Commercial Code has satisfied all receivables related to the purchase item, and an appropriate surety is in place for the remaining receivables resulting from the business relation.
3. During the period of retention of title, we shall be entitled to ownership of registration certificate Part I. The customer shall be obliged to apply to the registration office in writing to have registration certificate Part II to be issued to us.
4. If there is breach of contract by the customer, and in particular if he is in arrears of payment, we shall be entitled to cancel the contract, demand return of the retained goods, and, where necessary, demand surrender of the customer’s repossession claims with respect to third parties.
5. For as long as ownership has still not passed to the customer, the customer shall be obliged to treat the purchase item with care. In particular, he is obliged, at his own cost, to arrange sufficient insurance to cover replacement in the event of theft, fire, and water damage. Where maintenance and inspection work is required, the customer must carry out these regularly at his own cost.
For as long as ownership has not been transferred, the customer must inform us immediately, at least in text form, if the delivered goods are facing seizure or other actions by third parties. Where the third party is not in a position to reimburse our judicial and extra-judicial costs for legal action according to § 771 of the Code of Civil Procedure, the customer shall be liable for the loss incurred.
6. The operator shall be entitled to resell the retained goods as part of the normal course of business. He hereby cedes to us all receivables, to the amount of the invoice total including VAT, which accrue to us through resale to third parties. We hereby expressly accept this cession. After ceding, the operator shall be empowered to collect the receivables. We reserve the right to collect receivables by ourselves if the operator does not fulfil his payment obligations correctly and falls into arrears.
If we are joint owners of the delivered goods as a result of retention of title, receivables shall be ceded in the ratio of the proportion of ownership.
On demand, the operator must make known to us which receivables have been ceded and disclose the details of the debtor. Moreover, he must provide us with all information necessary for collecting the receivables and hand over the documents that refer to the ceded receivables. The operator must also inform the debtor about the cession.
7. Any machining and finishing work by the operator on the retained goods shall be performed on our behalf and in our name. In this case, the customer continues to have expectant right to the retained goods in their unfinished form.
8. If the retained material is processed, blended or mixed with other materials not supplied or owned by us, we shall have joint ownership of the new item in the ratio of the objective value of our retained material to the value of the other materials added at the time of processing. Where the mixing is made in such a way that the customer’s material will be seen as the main item, it shall be considered as agreed that the customer cedes proportionate joint ownership and safeguards the resulting sole ownership or joint ownership on our behalf.
1. If goods sold to a consumer are defective at the time of transfer of risk, the mandatory legal rights protecting the consumer shall not be affected by the following terms and conditions, with the exception that the contracting parties agree to a warranty period of one year for the consumer for the delivery of used goods.
2. Not only in the case of minor defects, we shall first be entitled to provide subsequent performance. If both types of subsequent performance (rectification and replacement delivery) are not possible, we shall be entitled to refuse them.
Consumers have the choice of whether subsequent rectification or a replacement delivery is to be carried out. We shall be entitled to refuse the type of supplementary performance selected if this is possible only at excessive cost and the other type of subsequent performance has no significant disadvantages for the consumer.
For operators, in the case of defective goods, subsequent performance will be provided either in the form of rectification or replacement delivery, at our discretion.
3. If the rectification or replacement delivery fails after a reasonable period, the customer may, at his discretion, demand reduction of the purchase price or demand cancellation of the contract with damage compensation. A rectification is considered to have failed after the second unsuccessful attempt, unless there is some other special consideration due to the nature of the product or defect or other circumstances.
If the customer chooses damage compensation, the limitations of liability as defined in § 7 of these terms and conditions shall apply.
4. Warranty claims have a time limitation of two years starting from delivery of the new goods, and for deliveries of used goods the warranty period is one year. For operators, the warranty period is one year starting from delivery of the new goods, and for deliveries of used goods the warranty is excluded.
For claims for damage in the case of wilful intent or gross negligence, loss of life, physical injury, or damage to health, which result from wilful or negligent breach of obligation by us, our representatives or vicarious agents, the statutory limitation period shall apply.
5. If our operating and maintenance instructions are not followed, or if changes are made to the purchase item, or parts are replaced or materials are used that do not meet the original specifications, any warranty shall be rendered null unless the buyer can refute a substantiated claim that it was one of these circumstances which caused the defect.
6. If the customer is a trader, he must inspect the delivered goods immediately on receipt for quality and presence of defects and, if a defect is found, report it to us in writing, otherwise claims under warranty shall be excluded.
The trader must report discovered defects in writing within a period of one week from the time they were discovered. To keep to the deadline, it is sufficient to send notice of defect within the above period. The operator shall have the full burden of proof for all qualifying requirements of the claim, particularly for the defect itself, the time at which the defect was discovered, and for the time at which notice of defect was sent.
7. Liability for normal wear is excluded. Normal wear is considered as those defects which occur as a result of ageing or service mileage of the product.
1. Notwithstanding the above terms and conditions and the following liability limitations, we shall be unconditionally liable for loss of life, physical injury, or damage to health which result from negligent or wilful breach of obligation. This also includes loss of life, physical injury, or damage to health caused by negligent or wilful breach of obligation by our legal representatives or vicarious agents. We shall further be liable for all damage resulting from wilful or grossly negligent breach of contract or malice either by our legal representatives or vicarious agents. Where we have granted a quality and/or durability guarantee in respect of the goods or parts thereof, we shall also be liable under this guarantee. However, for damage which is due to failure of the guaranteed quality or durability but which does not occur in the goods themselves, we shall be liable only if the risk of such damage is covered by the quality or durability guarantee. The possible liability according to the principles of recourse of the operator as described in §§ 478, 479 of the German Civil Code remains unaffected.
2. We shall also be liable for damage which is the result of simple negligence, provided this negligence is related to a breach of those contractual obligations which are of essential importance for achieving the object of the contract (cardinal obligations). We shall be liable, however, only insofar as the damage is typically related to the contract and was foreseeable. For breaches of non-essential secondary obligations by simple negligence, we shall otherwise not be liable. The liability limitation also applies where the liability affects our legal representatives, management personnel or other vicarious agents.
The cardinal obligations are the essential main contract obligations, i.e. those obligations which have to be fulfilled first if the contract is to be properly executed at all, and on the fulfilment of which the contracting partners rely and are relied upon.
3. Further liability is excluded without regard to the legal nature of the claim being made. Where our liability is excluded or restricted, this also applies to the personal liability of our employees, workers, colleagues, representatives and vicarious agents.
4. The above liability limitations and exclusions apply also to claims for default at the time of conclusion of the contract.
XI. Permission to process data - confidentiality
We shall be entitled to process all legally protected data relating to the customer after obtaining prior consent, or within the framework of the legal regulations. In this connection, please refer to our data privacy statement.
XII. Design changes:
We reserve the right to make changes to the design at any time, but shall not be obliged to make such changes to items that have already been delivered.
XIII. Applicable legislation:
Contractual relations between us and the customer are subject to the legislation of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are not applicable.
XIV. Place of performance and legal venue
1. For traders, the place of performance for all deliveries for the purposes of the German Commercial Code shall be our company location.
2. If the customer is a trader for the purposes of the German Commercial Code, the place of jurisdiction for all disputes shall be exclusively the district court in Traunstein or the local court in Mühldorf, depending on the size of the disputed amount.
3. Should one or more of the provisions in the contract with the contracting partner, or in these general terms and conditions, should prove to be wholly or partially unworkable, the validity of the other provisions shall remain unaffected. The wholly or partially unworkable provisions should be replaced by one which comes as close as possible to the financial intention of the unworkable provision.
Version: April 2018