General terms and conditions

Fischer Spezialbaustoffe GmbH

AGB - Fischer Spezialbaustoffe GmbH (PDF)

I. Applicability

These terms and conditions shall apply to companies according to §14 of the german civil code (BGB).
 

II. Acceptance of order/ conclusion of contract

1. Our deliveries and services including suggestions, consultations and other supplementary deliveries are completely based on the following terms and conditions. The terms of business or purchasing conditions of the buyer are entirely rejected, even if not explicitly contradicted on conclusion of a contract. Our conditions are considered as accepted at the latest when the goods are received. 

2. Our quotations are subject to change without notice. Contracts are considered as concluded, when the purchaser receives the order confirmation, or when we have started the delivery of the ordered goods. In case of pick up the contract is considered concluded upon handover of the goods at our stock. 

 

III. Delivery

1. Unless otherwise agreed, our goods are delivered wrapped to the place of destination. (This applies for deliveries within Germany and only mainland)

2. Our products are delivered by vehicles operating on our behalf, starting with an order volume of 25 Ton.or more, within Germany (only mainland) the delivery is free to the receiving station, unless otherwise explicitly agreed upon. 

3. The purchaser has to indicate the destination and recipient correctly and in time prior to delivery. For deliveries to a warehouse, the location of the warehouse is the receiving station. For changes of the destination, we have to be informed immediately. The purchaser has to inform their customer of the recipient station correctly and has to inform them of any changes immediately, if the transfer is organized by our company, to ensure the notification of their own customer. 

4. If the purchaser or their customer is guilty of violating the agreement in Nr.3, to indicate the destination correctly or to inform us of any changes immediately, and we have an unsuccessful attempt of delivering the goods, we are allowed to claim for compensation for damages in the amount of 100,- EUR/Ton., at least 1000 EUR for each transport. It remains for the purchaser to proof a lower damage or for us to proof a higher loss. 

5. With delivery and the transfer of the goods, a delivery note is issued, which contains quantity, type, date and time of delivery, license tag or shipping code of the carrier, order, recipient, destination and purchaser. 

6. The purchaser has to ensure that

6.1 The recipient station is configured in a way that the vehicles can enter and unload unobstructed on a good driving surface without any delays. 

6.2 The storage facilities and/or the silo room is operable and can receive the goods and that authorized staff or unloading staff is available to receive the shipping documents, to direct the vehicle to the stockyard or to the silo room to be filled and to sign the note of delivery. For us the person who instructs the vehicle is authorized. 

6.3 The failure to comply with the obligations stated in Nr. 6.1 and 6.2 entitles us to cancel the delivery and to charge the freight costs and/ or our waiting time. Any further claims shall remain unaffected.

 

IV. Pick up/ Collection of the goods

1. In case of the collection of the goods by the purchaser, the purchaser has to ensure that

1.1 The technical equipment of the vehicles is sufficient, so it can be loaded with the loading equipment properly and safely. 

1.2 The pick up is done by qualified staff according to the guidelines of our stock. 

1.3 The driver confirms the proper reception of the goods. 

2. The purchaser has to ensure the accordance to all requirements and regulations and an adequate securing of the load. Based on the road traffic regulations, we as the loader of the goods, even if the purchaser collects the goods, can be held liable and it entitles us to

2.1 Check the securing of the load.

2.2 In case of reasonable doubts in regards to the securing of the load, we may refuse or deny the load of the goods.

2.3 If the goods are loaded already, to stop the vehicle.

 

V. Delivery dates

1. Delivery dates and leading times have to be specified in the order. The dates are only accepted if we explicitly confirm these. 

2. Orders with particular delivery dates or leading times have to be placed in time and at least 2 working days before delivery date, in writing or by phone, to ensure a delivery on time. For larger orders there has to be a delivery schedule set. 

3. The vehicles are loaded during the regular loading times and in order of the arrivals of the vehicles. There are no consumptions paid for possible waiting times.

 

VI. Limit of responsibility 

The responsibility is limited:

1. In the case of delivery free to the recipient station, with the transfer of goods at the destination. The purchaser has to ensure that possible claims against the carrier are noted in writing and signed before unloading the goods. 

2. In case of collection of the goods with a vehicle on behalf of the purchaser, when the goods have left our loading equipment. 

(For example pedestrian-controlled pallet truck, fork lift stacker, loading belt or any similar equipment)

We are not responsible for damages and losses of the goods, caused during the transport. This shall also apply for damages caused by soiled or unsuitable vehicles of the purchaser. 

3. In case, the purchaser is in delay with the acceptance of the ordered goods.

 

VII. Agreements on condition, processing instructions, consumption details, consulting and information

1. As far as our products are described in product descriptions, for example prospectus, technical information, standards, general construction permits and similar, these descriptions are no guarantees of quality or durability and do not constitute the agreed contractual quality of the product.

2. If our goods are used in working conditions or on constructions sites/ areas other than described in our instructions, our technical advice should be obtained.

3. Consumption figures stated in our processing instructions and technical informations are average values based on experience. Claims in regards to an over- or under-consumption cannot be asserted against us.

4. Technical support and information by word of mouth or in writing are based on our knowledge and experiences. All specifications and information relating to suitability and application of the goods are nonbinding however, and do not release the customer from the need to conduct his own verifications and tests. The purchaser is responsible for the use of our goods.

 

VIII. Prices, freight costs, terms of payment

1. Prices are quoted ex works, unless it is otherwise agreed upon. Prices and freight costs are based on our price list valid on the date of the placed order. Unless we specifically state other prices or freight costs on the order confirmation. In that case the quoted prices and freight costs shall apply as agreed upon, if the purchaser does not contradict within 3 working days. The contradiction of the purchaser applies as the cancellation of the order. Our prices are quoted ex works included packaging. The freight costs are determined according to the place of delivery. We are entitled to adjust the freight costs if necessary, if there are any changes of the place of delivery.

2. Not applicable

3. Extraordinary costs, for example weighting charges, post adjustments, additional costs due to road bypasses, etc. will be charged to the purchaser.

4. The weight of the goods on which the invoice amount is to be calculated is done by the manufacturer´s factory or by the railway authorities.

5. Our invoices are due and payable with the invoice date. Cash discount is granted based on the rates valid on the day after delivery, if there are no other outstanding payments. There is no cash discount granted for freight costs and palettes. The base amount and the time frame for the cash discount are stated on our invoice.

6. Not applicable

7. If the purchaser is in default of payment we will be entitled to claims in accordance to the official regulations. We are entitled to fulfill outstanding deliveries only against advance payment.

8. The right of retention will only exist for the customer in the case of undisputed or legally established payment claims.

9. Offsetting of payments by the purchaser is excluded, unless the claims have been determined legally.

 

IX. Collateral rights

1. All delivered goods remain our property (retained goods) until all demands in respect of these goods have been fulfilled. In particular, also the respective balance accounts receivable, which we have against the customer within the framework of the business relationship.

2. The retained goods are processed and reprocessed on our behalf as manufacturer as per § 950 BGB without any obligation on our part. The goods count as retained goods according to clause 1.

3. With processing, combination and blending of the retained goods, we shall be entitled to proportionate co-ownership in the new item in the proportion of the invoice value of the retained goods to the invoice value of other goods used. If our ownership expires as a result of combining or mixing, the purchaser shall transfer ownership rights to us, for the new item or product in the invoice value of the retained goods and shall hold them in custody on our behalf at no charge. The subsequent arising co-ownership rights shall be considered as retained goods as determined in clause 1.

4. The purchaser is only permitted to resell the retained goods within the normal course of business on his standard terms and conditions of business and if he is not in default provided that he retains title and the receivables arising from such resale are assigned to us in accordance with clause 5-7. The purchaser shall not be entitled to dispose of the retained goods in any other way.

5. The purchaser´s receivables from the resale of the retained goods are herewith assigned to us. They shall be the collateral to the same amount as the retained goods. The same shall apply to any other claims that take the place of the retained goods or arise in regards to the retained goods, e.g. insurance claims or claims in case of loss or destruction.

6. If the retained goods are sold with other products, not sold by us the receivables from the resale shall be assigned to us in the amount of the retained goods. In the case of goods being sold, of which we hold the co-ownership title (according to clause 3), the assignment shall apply in the amount of the co-ownership shares.

7. If the retained goods are used by the purchaser for fulfillment of a contract, the assignment of the contract applies in accordance to clause 5 and 6.

8. The purchaser shall have the right to collect any receivables from the sale according to clause 4 and 7, until we revoke the authorization. We are entitled to cancel the debit authorization, if the purchaser is in default of payment, stops his payment or any other deterioration of his economic and financial situation. The purchaser is not entitled to assign the outstanding amount on our demand, the purchaser shall be obliged to notify his customers of the assignment to us, insofar as we do not do this ourselves to give us the necessary documents and information.

9. If the realisable value of the existing collateral exceeds the claims more than 10%, we will be obliged, if requested by the purchaser, to release collateral to this extend.

10. If third parties take hold of the retained goods, in particular by garnishment, the purchaser has to advise immediately of our property and also to inform us to enable the assertion of our property rights.

11. If the purchaser acts contrary to the contract, especially concerning late payments, we are entitled to take back the retained goods. If the purchaser does not pay the purchase price due, we may assert these rights only if we have first set the purchaser an appropriate time limit for payment without result or if setting a time limit may be dispensed by law. 

 

X. Complaints and Warranty

1. The purchaser has to ensure immediately upon receipt, that the conformity of the delivered goods and the ordered material is assured and the goods are inspected for any defects. The goods are considered accepted unless a written complaint, relating to recognizable defects or other defects that would be recognized in an immediate, careful inspection, is received by us. The purchaser has to ensure that a defective delivery is not being processed or used.

2. Weight indicated on goods packed in bags, may vary in the range of 2% of the net weight. Complaints relating to weight can only be made on the basis of official re- weighting. Otherwise the weight is determined at the manufacturer´s warehouse. Weight discrepancies shall be claimed within 3 days after risk has passed.

3. Any complaint shall contain unambiguous information about the objected product, the type of deficiency, batch number, day of delivery and the warehouse where it was delivered from. All recognizable defects, shortages or wrong deliveries and the complaints have to be proven properly. With every complaint the purchaser has to include a representative sample size with the batch number, to enable the manufacturer to ascertain the objections being raised. The sampling shall be done in accordance with the relevant standards and regulations. In case such a sample of the objected product is not available, the evaluation will be based on the results determined by the manufacturer, the costs for the evaluation will be charged to the purchaser.

4. Within the warranty, we will eliminate the defect or replace the product, at our own choice.

5. The purchaser shall be entitled to withdraw from the contract or to demand a reduction of the purchase price only if the purchaser has granted a reasonable deadline to rectify defects or subsequent delivery of the goods has not accrued. The subsequent performance shall be deemed to have failed, following the second unsuccessful attempt, if it does not appear from the nature of the matter or defect or other circumstances a different conclusion.

6. For claims for compensatory damages due to defects clause XI of these terms and conditions shall apply.

7. For warranty claims the legal statue of limitations periods of liability shall apply. 

 

XI. Liability

1. We shall not be liable for damages, delays or impediments to performance that are beyond our area of responsibility.

2. We shall not be liable for defects due to improper use of our product or use for a purpose for which they were not intended.

3. We shall be liable for intentional and gross negligence. Also we are liable for every culpable violation of essential contractual obligations, for fatal and other injuries to body or health. Essential contractual obligations include the obligation for the timely, deficiency- free delivery and other contractual subsidiary obligations, which enables the purchaser the contractual use of the product and to protect the life and limb of personnel or the property against considerable damages.

4. In cases where slight negligence has led to violation of essential contract obligations, our liability is limited to the amount of the typically foreseeable damage.

5. In cases where damages are caused by ordinary assistants, the liability is limited to the amount of the typically foreseeable damage.

6. Any further liability shall be excluded. The liability of guarantees or the product liability act shall remain unaffected. 

 

XII. Force majeure

If we are not able to fulfill our obligations due to events amounting to force majeure irrespective of whether they occur on our side or on our pre- suppliers, the delivery time shall be extended by the duration of the hindrance plus a reasonable start-up period.

Force majeure shall include obstruction of transport, business disruptions, delay in delivery of raw materials, strike, token strike, lockout and other circumstances not foreseeable and not avertable by the manufacturer. In the case of force majeure or the equivalent circumstances, which make it considerably more difficult or impossible for us to deliver our goods, and the obstruction is not only of temporary duration, we are entitled to withdraw from the contract. If as a result of the delay, the purchaser cannot reasonably be expected to accept the goods, the purchaser may cancel the contract. In case of force majeure or similar circumstances, we will notify the purchaser immediately, if possible.

 

XIII. Place of performance, jurisdiction and applicable law

1. The place of performance for our delivery is:

1.1 In case of delivery free to recipient station, the place of performance is the place of destination.

1.2 In case of pick up of the goods through the purchaser, the performance place is the manufacturer´s warehouse.

2. The place of performance for all other obligations is Heilsbronn.

3. The place of jurisdiction for all disputes resulting from these terms and conditions is Heilsbronn. However we are also authorized to sue the purchaser at his place of jurisdiction.

4. The contractual relationship between the two parties shall be subject to the law of the Federal Republic of Germany, excluding the german international private law and the UN convention on the international sale of movable goods. 

 

XIV. Data processing

The purchaser acknowledges that we are processing personal data of the contractual relationship in accordance to the Federal Date Protection Act. 

 

XV. Severability clause

Should single regulations of these terms and conditions be whole or partly ineffective, the effectiveness of the remaining regulations remain untouched. The invalid regulation shall be replaced by a valid one that comes closest to the economic purposes pursued ba all parties. The same shall apply if there should be any gaps in the terms and regulations.

 

 

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