General terms & conditions of Fiberpreg GmbH

 

1. General

 

• These Terms and Conditions (hereinafter referred to as “TC” or “Terms and Conditions”) govern, in accordance with the provisions of Section 310 1 and 305 par. 1 of the German Civil Code, as amended (hereinafter also referred to as the “Civil Code”), the mutual rights, obligations and relationships arising between the Parties under or in connection with offers and purchase agreement, between Fiberpreg GmbH with its registered office at Carl-Zeiss- Strasse 7, 89231 Neu-Ulm, registered with Amtsgericht Memmingen – Handel register under File HRB 168 68, as the seller, (hereinafter referred to as the “Seller”) and the purchaser (hereinafter referred to as the “Purchaser”). The Purchaser and the Seller are hereinafter jointly referred to as the “Parties” or each separately as a “Party”.
• By placing an order, deemed a proposal for the conclusion of a purchase agreement, or by concluding a framework purchase agreement, the Purchaser confirms it has read these Terms and Conditions and that it expressly agrees to them, in the version valid and effective at the time of sending the order or concluding the framework purchase The Purchaser also agrees that the mutual relations between it and the Seller will be governed by these Terms and Conditions.
• Written provisions arranged by the Parties in the purchase agreement derogating from these Terms and Conditions will prevail over the provisions of the TC.
• The provisions of the Terms and Conditions will prevail over non-mandatory provisions of laws and regulations, including without limitation the Civil Code.
• These Terms and Conditions also apply for all future Seller’s transactions with the

 

 

2. Offer

 

• An offer made by the Seller in any form is valid for four weeks; however, the purchase agreement cannot be concluded until the Seller has confirmed the order.
• The purchase agreement is entered into upon delivery of a written confirmation of the order by the Seller to the Purchaser, including where the Purchaser´s order was preceded by an offer from the For the purposes of these Terms and Conditions, e-mail is also deemed communication in writing.
• The Purchaser is obliged to provide correct and truthful information in the order. The information provided by the Purchaser in the order will be deemed correct by the Seller.

 

 

3. Price

 

• For the purposes of these Terms and Conditions, the purchase price means a sum of money required to be paid by the Purchaser to the Seller for the delivery of the goods and the transfer of title thereto.
• Unless otherwise stated, the purchase price quoted in the Seller´s price list or the purchase agreement is set without The Seller will add VAT to the purchase price so stated in the statutory amount as per the relevant legislation on the date of the purchase agreement.
• Unless otherwise agreed, the purchase price is exclusive of freight, packing, duties or other related export charges. The Purchaser will reimburse the Seller for such costs.

 

 

4. Delivery

 

• The Purchaser acknowledges that due to the nature of the goods it is not possible to deliver the exact quantity of goods ordered and the ordered quantity of goods may be delivered with a deviation of up to 5% from the ordered quantity for the entire delivery under the relevant purchase agreement. If the goods are delivered in a quantity within this variation, the Purchaser shall not be entitled to require delivery of an additional quantity nor shall the Buyer be entitled to require the Seller to take back the surplus goods. The Seller shall not be entitled to the return of the excess quantity if the specified deviation is not exceeded. Unless otherwise agreed, a particular roll length will not be due.
• Delivery within roll length tolerance of +-2% (invoiced length vs. actual length) for each delivered roll shall not be considered a breach of agreement.
• Partial deliveries will be
• The goods are delivered to the Purchaser once they are handed over to the Purchaser or to the first carrier for transport, whichever occurs first.
• Unless otherwise agreed, delivery deadlines and dates are only
• The beginning of a delivery period specified by Seller will assume that all technical questions are clarified.
• If force majeure or other objective circumstances occur after the conclusion of the purchase agreement that prevent the Seller from delivering the goods to the Purchaser on time, the Seller has the right to extend the delivery time limit or withdraw from the purchase agreement. If the Seller proves that it could not, even with exercise of reasonable care, have prevented the extension of the delivery time limit, no liability will be borne by the Seller for any damage caused to the Purchaser by such extension except for compensation claims exempted from the exclusion of liability under clause For the purpose of these Terms and Conditions, “Force majeure” means an extraordinary, unforeseeable and insurmountable obstacle arising independently of the will of the Parties which has prevented one or both Parties from performing their obligations temporarily or permanently. For the purposes of these Terms and Conditions, such an obstacle includes, without limitation, natural disasters, acts of god, accidents, terrorist attacks, wars, civil commotions, insurrections or revolutions, large-scale strikes, epidemics, pandemics, global shortages of materials (“carbon shortages”), as well as imposition of measures under laws and regulations which substantially limit the Party´s ability to perform its obligations and which are adopted in connection with a force majeure within the meaning of these Terms and Conditions.
• If the delivery date has been surpassed, then the Purchaser must set a reasonable period of grace at least 30 days.
• If for reasons on the Purchaser´s side it is necessary to deliver the goods repeatedly or differently than specified in the order, the Purchaser is obliged to pay the costs associated with the repeated delivery of the goods, or the costs associated with a different method of
• The goods delivered may only be sold on in unprocessed condition with the prior written consent of Seller.

 

 

5. Transfer of Risk and Acceptance

 

• The risk of damage to the goods passes to the Purchaser in case of personal pick-up of the goods by the Purchaser at the Seller´s registered office upon receipt of the goods by the Purchaser or the Purchaser´s representative, and in case of dispatch of the goods to the Purchaser by carrier, the risk passes to the Purchaser in accordance with the agreed INCOTERMS 2020 parity.
• Upon receipt of the goods, the Purchaser will confirm the type and quantity of the goods to the carrier on the delivery If the Purchaser discovers obvious differences or defects in the goods, e.g. in the type or quantity of goods stated on the delivery note, external damage or marking, the Purchaser will indicate any differences or defects on the delivery note, as well as its name and date (Purchaser´s name and date must be legible), and, if applicable, stamp and confirm everything by its signature. Such delivery note must also be confirmed by the carrier. Later claims for incorrect quantity of packed goods and damaged goods will be declined.
• The Purchaser, regardless of his rights under a warranty, is obligated to accept the goods, even if they show minor defects.

 

 

6. Payment

 

• The purchase price for the goods is due:
  • in case of personal pick-up of goods at the Seller´s registered office on the date of personal pick-up,
  • in case of carriage by a carrier, on the date of pick-up of the goods by the carrier,
  • if the Purchaser so chooses, or if the Seller so determines and notifies the Purchaser in accordance with the provisions of Article 6.3 of these Terms and Conditions, prior to shipment or prior to acceptance of the goods by transfer to the Seller´s bank account (i.e. advance payment of the purchase price).
• An invoice (tax document) containing the purchase price will be sent to the Purchaser electronically in PDF Alternatively, on request, it may be sent in a single copy to the address of its registered office, place of business or place of residence, or to the address expressly indicated to the Seller as the delivery address. The Purchaser is obliged to notify the Seller immediately if the invoice (tax document) is not received.
• The Seller is entitled, in particular in the case of an order with significant value, or if the Purchaser has placed an order with the Seller for the first time and no purchase agreement has been concluded yet, or in the case of a Purchaser whose claim cannot be insured to a sufficient amount, to require advance payment of the purchase price, e. before the goods are shipped to the Purchaser, or before the Purchaser takes over the goods.
• Payments will only be deemed completed to the extent that Seller can freely dispose with the amount on the bank account indicated on the invoice (tax document). The acceptance of cheques or promissory notes is not allowed.
• If the Purchaser is more than three weeks late with a due payment, then all the Seller’s claims against the Purchaser shall become due immediately.
• All costs arising in connection with the contract in the Purchaser’s country, including fees and taxes which were not known upon conclusion of the contract, shall be for the account of the

 

7. Retention of title

 

• Seller will retain title to the goods delivered by it (the “reserved goods”), until the Purchaser has settled all the whole purchase price under relevant purchase agreement.
• The title also covers the full value of new products created by the processing of the reserved goods by Purchaser. If a third party retains its title to its goods contained in the processed goods, then Seller acquires joint title pro-rata to the respective invoice values of the goods supplied by Seller and that third party.
• All receivables from the sale of the reserved goods, together with all ancillary and security rights, including promissory notes and checks securing the claims as per sec. 7.1 above are already hereby assigned by the Purchaser to Seller. To the extent that, in the processing of the reserved goods, any third-party title remains, then the assignment of the receivables from the sale will amount to the proportion of the value of the share acquired per 7.2 above. The Purchaser already hereby assigns the same amount of any current account balance claims, including the final balance, to Seller in case the receivables from a sell-on are incorporated in an existing current account relationship with a customer of the Purchaser.
• If the Purchaser does not pay the debt, despite it having fallen due, within a reasonable period of grace, then the Purchaser must, upon demand, return the reserved goods to Seller, for the latter‘s free disposition; whereby the taking back of the goods shall not represent a withdrawal from the contract.
• If the value of the security exceeds the value of the debt being secured by more than 20%, then Seller, upon the Purchaser’s demand, is obligated to release securities of his choice, to that extent.

 

 

8. Defects liability

 

• The Seller guarantees to the Purchaser that goods are free from defects upon receipt. Without limiting the generality of the foregoing, the Seller guarantees to the Purchaser:
  • the goods have the characteristics agreed between the Parties and, in the absence of an agreement, have the characteristics described by the Seller or the manufacturer in the technical documentation;
  • the goods correspond in quality of workmanship to the agreed sample or specimen, if the quality of workmanship was determined according to an agreed sample or
• The Purchaser is obliged to notify the defect in writing to the Seller without undue delay after the Purchaser has had the opportunity to inspect the goods and discover the defect. The defect can be claimed within 3 months from receipt of the goods at the latest.
• In the event that the Purchaser discovers any defects during the inspection of the goods, the Purchaser may not refuse the whole delivery, but only the defective part.
• The claims under the defect’s liability are limited, at the Seller’s option, to reworking the defective goods or replacing them with defect-free goods. If the Seller should be delayed with rectification of the defects, the Purchaser shall be entitled to demand a price reduction or the rescission of the contract.
• The Seller will decide on the Purchaser´s claim without undue delay, no later than thirty working days from the moment when the Purchaser informs the Seller about the The time required for an expert assessment of the defect is not included in this time limit.
• The Purchaser is obliged to follow the user`s recommendation of the Seller and the Technical Data Sheet (especially, but not limited to the open time and storage conditions). In case a defect arises due to the fact that the Purchaser did not comply with the user`s recommendation, any defects liability rights of the Purchaser are excluded.
• Unless otherwise expressly agreed, normal commercial or material variations will not be considered defects. The same applies to differences in raw and color tones of the goods supplied unless the latter leads to a substantial limitation on the usability of the products.
• The Purchaser’s warranties require that he has complied with his inspection and complaint obligations under 377 of the German Commercial Code (in German: HGB) without delay, otherwise the goods will be deemed approved. The right to complain lapses, in any event, 12 months after the production date of the goods (or earlier, if the shelf life of the products given in Technical Documentation is shorter than 12 months), insofar as Fiberpreg GmbH has not fraudulently concealed the defect complained of.
• If goods previously subjected to a complaint, or recognizably defective goods are processed in some way, or sold, without the Seller’s written approval, the goods will be deemed approved and all defect claims lapse. This will apply, in particular, to the passing on of the warranty claims which accrue to the Purchaser’s customers from the sale of the processed goods to a third party.
• Claimed goods must be properly packaged, must not be contaminated or damaged in any way and original packaging must be intact. The cost of shipping the goods back to the Seller will be borne by the Purchaser.
• The Purchaser is obliged to verify that the goods are suitable for the particular purpose; the Seller is not liable for the suitability of the goods for any purpose, including the usual

 

 

9. Claims for Compensation

 

• A Purchaser’s claims for compensation – also extra-contractual types – are debarred in cases of minor negligent breaches of duty by Seller, his executive staff and his other agents or representatives, unless it involves a breach of duty which is of fundamental importance in achieving the contractual purpose. In the latter case, the liability of Seller is limited to damages foreseeable and typical for such types of contracts at the time of the conclusion of the contract.
• To the extent that the liability of Seller is excluded, this shall also apply equally to his employees in cases of the Purchaser’s direct recourse thereto.
• The aforementioned limitations do not apply to life, body or personal The mandatory statutory liability of the Seller, e.g. under the Civil Liability and Product Liability Acts, remains unaffected by these conditions.

 

10. Miscellaneous

 

• This purchase contract is subject to the law of the Federal Republic of The application of the German conflict of laws rules and the uniform laws relating to the international sale of goods and services, as well as the entering into international sale contracts for goods – both dated 17 July, 1973 – as well as the UN Convention on the International Sale of Goods dated 11 April, 1980 is excluded.
• Place of performance and jurisdiction for all claims under the business relationship is the Seller´s registered However, the latter also has the right to assert his claims within the Purchaser‘s general place of jurisdiction.
• Without the prior express written consent of the Seller, the Purchaser will not be entitled to assign (including assignment of a claim or right as security) or pledge its claims against the Seller or assign the purchase agreement or any part thereof or the rights and obligations thereunder.
• Without the prior express written consent of the Seller, the Purchaser will not be entitled to set off its claims against the Seller´s claims.
• All documentation provided to the Purchaser in connection with the purchase agreement (including without limitation technical sheets, drawings, calculations, ) is not subject to the purchase agreement, is provided for the Purchaser only and must not be provided by the Purchaser to any third party.
• The Purchaser is obliged to maintain the confidentiality of all facts encountered in connection with the purchase agreement, including without limitation the content of any documentation provided to the Purchaser, the prices of the goods, or any disputes with the Seller. The obligation of confidentiality lasts for an unlimited period of time.
• Provisions on contractual penalty are without prejudice to the Seller´s right to claim damages from the Purchaser in full.
• The payment of the contractual penalty by the Purchaser will not affect the Purchaser´s original obligation which must be fulfilled by the Purchaser regardless of any
• The Parties have communicated to each other prior to the conclusion of the agreement all actual and legal circumstances of which they knew or should have known at the time of entry into the agreement and which are relevant for its conclusion. Apart from the representations given by the Parties to each other in the agreement, neither Party will have any further rights or obligations in relation to any facts which come to light and which the other Party did not notify during the negotiation of the The exception to this rule is where a Party has deliberately misled the other Party as to the subject-matter of the agreement.
• The Parties do not wish any rights and obligations beyond the express provisions of the agreement or the Terms and Conditions to be inferred from past or future practice established between the Parties or customary practices generally or in the industry relating to the subject-matter of the agreement, unless otherwise expressly provided for in the agreement. In addition to the foregoing, the Parties acknowledge they are not aware of any custom or practice heretofore established between them. If either Party overlooks or disregards any default, breach, delay or failure to perform any obligation under the agreement, this will not constitute a waiver of the right to perform such obligation and no waiver will be deemed effective unless expressed in writing in each case.
• Except for the exemptions stated in section 9 of the TC, the following applies: the Seller will not be liable for the Purchaser´s loss of profit caused by breach of the purchase agreement or any defect in the The Seller will not be liable for any damage caused by the use of the goods for an improper purpose. Any claim by the Purchaser for damages will be limited to the price of the goods in connection with which the Purchaser seeks compensation. The Purchaser is obliged to act in such a way as to minimize the risk of damage resulting from the use of the goods; if the Purchaser discovers any defect in the goods, the Purchaser is obliged to immediately cease using the goods delivered under the relevant purchase agreement in its production processes.
• The Purchaser will inform the Seller of the intended use of the goods prior to entering into the purchase agreement, including without limitation if the end use of the goods is for military or similar purposes. By concluding the purchase agreement, the Purchaser confirms that the goods are not to be used (even after processing) for military or similar purposes, unless the Purchaser has previously notified the Seller of this.
• The Purchaser is aware that purchase of goods from the Seller´s portfolio does not vest in the Purchaser any rights to use trademarks, trade names, company logos or patents of the Seller or other persons, unless otherwise agreed in a specific case by a special agreement.

 

11. Final Provisions

 

• In the event that any provision of the Terms and Conditions or the agreement is or becomes in the future invalid, ineffective or unenforceable, or is found to be so by a competent authority, the other provisions of the Terms and Conditions or the agreement will remain in force and effect unless the nature of such provision or its contents or the circumstances in which it was entered into show that it cannot be severed from the remainder of the Terms and Conditions or the The Parties undertake to replace the invalid, ineffective or unenforceable provision of the Terms and Conditions or the agreement with another provision whose content and meaning most approximates the original provision and the Terms and Conditions or the agreement as a whole.
• The Terms and Conditions and the purchase agreements concluded thereunder contain a complete arrangement of the subject-matter of the agreement and all the particulars which the parties had to and wanted to arrange in the agreement and which they consider important for the binding nature thereof. No act of the Parties made during the negotiation of the agreement or any act made after the conclusion of the agreement will be construed contrary to the express provisions of the agreement and the Terms and Conditions and will impose any obligation on either Party.

 

12. Term and Effect

 

• These Terms and Conditions are valid and effective from 11. 2023 until an updated version of the Terms and Conditions is issued.
• The current version of the Terms and Conditions is available on the Seller´s website fiberpreg.de