Terms of Service

GENERAL TERMS AND CONDITIONS

1. Scope

(1) These General Terms and Conditions shall apply to all our business relations (all sales and/or deliveries and/or services) with our customers. We deliver exclusively to entrepreneurs (section 14 of the German Civil Code (BGB)), legal entities under public law or special funds under public law. Customers are subject to appropriate verification (ERP/address check). These General Terms and Conditions shall only apply to them.

(2) Our General Terms and Conditions shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their applicability at least in text form. This requirement of consent shall always apply, e.g. even if we carry out the delivery to the customer without any reservation, being aware of the customer's general terms and conditions.

(3) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall always take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(4) Any legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. at least in text form.

2. Conclusion of contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation (e.g. drawings, samples, references to DIN standards), other product descriptions or other documents (also in electronic form). We reserve the property rights and copyrights to all aforementioned documents.

(2) The order of the goods by the customer shall be deemed to be a binding offer of contract. If we accept the offer, our acceptance can be concluded either at least in text form (e.g. order confirmation) or by our delivery and/or service to the customer.

3. Delivery period and delay in delivery

(1) Delivery dates are generally non-binding.

(2) If the agreed delivery period has expired, the customer is entitled to give us a two-week grace period for delivery in writing, starting from the day of the written notice of default, and, if this period is not met, to withdraw from the contract or claim damages. However, the provision in clause 9 shall always apply.

(3) In the event that we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the customer without delay, notifying him of the expected new delivery period. If the performance is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; in such case we shall immediately refund any payment already made by the customer. Such case of non-availability of performance shall be, in particular, failure of our supplier to deliver on time if we have concluded a matching hedging transaction, if neither we nor our supplier are at fault or if we are not obliged to procure the goods or service in the individual case.

(4) The occurrence of our delay in delivery shall be determined according to statutory provisions. However, a reminder by the customer shall always be required.

(5) The rights of the customer pursuant to clause 9 and our statutory rights, in particular in the event of an exclusion of the obligation to perform, shall remain unaffected.

4. Minimum order value, packaging and shipping

(1) The minimum order value is 50.00 €, below which we shall charge a handling fee of 7.50 €.

(2) Our catalogue prices include costs for the usual packaging. Only particularly elaborate packaging, which is necessary in particular to protect the goods or which is applied at the special request of the customer, will be charged separately.

(3) To the extent that we are obliged to take back the packaging used for transport under the German Packaging Act (VerpackG), the customer shall bear the costs of the return transport of the packaging used. This shall not apply if the customer is a private household. For recurring deliveries, we reserve the right not to take back the packaging directly, but only with one of the next deliveries. In all other respects, the German Packaging Act shall apply in its currently applicable version.

(4) Shipment within the Federal Republic of Germany shall be carriage paid, unless “ex works” has been agreed. Special conditions apply for islands. As freight payer, we determine the mode of shipping. For export, please enquire specifically. To avoid transport damage, we reserve the right to deliver the products pre-assembled.

5. Prices

(1) All prices quoted by us are in Euro plus statutory VAT, taking into account our freight terms and insurance, if any. Statutory VAT is only included in the price if this is stated in the quote or order confirmation.

(2) In the event of a change in the cost situation, we reserve the right to make an appropriate price adjustment at our reasonable discretion, provided that this is decisive for the pricing (e.g. steel, logistics costs) and an increase cannot be compensated by cost savings. This shall not entitle the ordering party to withdraw from the contract, provided that there are more than 6 months between the conclusion of the contract and delivery. The increase may not exceed 5% of the originally agreed price. This shall not apply if a fixed price has been expressly agreed in an individual contract.

6. Terms of payment

(1) The purchase price is due and payable within 30 days from the date of invoice and delivery of the goods. If payment is made within 8 days of invoicing and delivery of the goods, a discount of 3% shall be allowed. If payment is made within 14 days of invoicing and delivery of the goods, a discount of 2% shall be allowed. The above cash discount provision shall not apply if other agreements have been made in individual contracts.

(2) Upon expiry of the above payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the respective statutory default interest rate. We reserve the right to assert further damages caused by default. With respect to merchants, our claim to the commercial due date interest rate (section 353 of the German Commercial Code (HGB)) remains unaffected.

(3) If the customer is in default with the payment of a due invoice, all existing claims against him shall become due immediately, even if the originally granted payment period has not yet expired.

(4) In the case of delivery to unknown customers or customers where we do not have sufficient information about their creditworthiness, we reserve the right to demand advance payment or other securities. However, even within an ongoing business relationship, we shall be entitled at any time to make a delivery in whole or in part only against advance payment. If we make use of the advance payment option, we will inform the customer immediately. In this case, the delivery period shall commence upon payment of the purchase price and shipping costs.

(5) If instalment payments are granted, the remaining amount shall become due if the customer exceeds the agreed payment date with an instalment in whole or in part.

(6) The customer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. Notwithstanding the foregoing, he shall be entitled to set-off against our claims if he asserts notices of defects or counterclaims arising from the same purchase contract.

7. Retention of title

(1) The delivered goods (goods subject to retention of title) shall remain our property until full payment of all our present and future claims arising from the purchase contract and until full payment of our total claims arising from the business relationship, in particular also the respective balance claims, including all ancillary claims.

(2) If the customer behaves in breach of contract – in particular if he is in default with the payment of a claim for payment – we have the right to withdraw from the contract after we have set a reasonable deadline for performance. The customer shall bear the transport costs incurred for taking back the goods. If we take back the goods subject to retention of title, this shall already constitute a withdrawal from the contract. It also constitutes a withdrawal from the contract if we attach the goods subject to retention of title.

(3) Until full payment of the secured claim, the customer shall not be entitled to pledge the goods subject to retention of title to any third parties or to assign them as security. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access (e.g. by way of attachment) to the goods subject to retention of title and point out our ownership, enabling us to enforce our ownership rights. If the third party is unable to reimburse us for the costs incurred in this connection, the customer shall be liable for them.

(4) The customer is entitled to sell and process the goods subject to retention of title in the ordinary course of business as long as he is not in default of payment. The following additional agreements shall apply in this respect:

a) Any processing of the goods subject to retention of title by the customer shall be carried out for us. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed items at the time of processing.

If the goods subject to retention of title are inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the customer's item is to be regarded as the main item, the customer and we already now agree that the customer shall transfer co-ownership of this item to us on a pro rata basis. We shall accept this transfer.

The customer shall hold the sole or co-ownership of an item thus created in safe custody for us. In all other respects, the same shall apply to the resulting product as to the goods subject to retention of title; in particular, the retention of title shall extend to our co-ownership share in the products thus created.

b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or to the share in which the seller has acquired co-ownership of the new item in such a way that the claim arising against the third party is transferred to us without the need for any special agreement in the individual case. We shall accept this assignment.

The customer may collect these claims assigned to us as long as we do not revoke this authorisation. This shall not affect our right to collect the claim ourselves; however, we shall not assert the claim ourselves and shall not revoke the authorisation to collect as long as the customer duly meets his payment obligations. However, if the customer acts in breach of contract, in particular if he is in default with the payment of a claim for payment, we may demand that the customer informs us of the assigned claims and the respective debtors, notifies the respective debtors of the assignment and hands over to us all documents and provides all information that we require to assert the claims.

(5) At the customer's request, we shall release securities of our choice if the realisable value of the securities exceeds our outstanding claims by more than 10%.

8. Claims for defects

(1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title, unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier's recourse pursuant to section 478 BGB). If the defective goods are further processed by the customer or another entrepreneur, any claims based on supplier recourse shall be excluded.

(2) Claims for defects by the customer, to whom the statutory obligations to inspect for defects and give notice of defects pursuant to section 377, 381 HBG apply, require that the customer has complied with these obligations. If a defect becomes apparent upon delivery, inspection or at a later point in time, the customer shall notify us in writing immediately. Obvious defects must always be reported in writing within 5 working days from delivery; defects not recognisable during the inspection must always be reported within the same period starting from their discovery. Our liability for any defect not being reported or not being reported in time or not being reported properly shall be excluded in accordance with the statutory provisions if the customer fails to carry out the proper inspection and/or report the defect.

(3) We shall have the right to choose with regard to supplementary performance (rectification of the defect or delivery of a defect-free item). Our right to refuse supplementary performance under the statutory conditions remains unaffected.

(4) If we owe supplementary performance, we shall be entitled to make this dependent on the customer paying the due purchase price. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.

(5) If the supplementary performance has failed or if a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.

(6) Claims of the customer for damages or reimbursement of futile expenses may even in the case of defects only be asserted in accordance with clause 9 (liability) and shall be otherwise excluded.

(7) Any seller's warranties given by us for certain articles shall be in addition to the claims for material defects or defects of title as stipulated under paragraph (1). We guarantee to the customer in accordance with the following provisions for fetra products purchased by the customer from fetra within a period of generally 120 months from delivery (warranty period) (in exceptional cases indicated in the fetra product catalogue only 12 or 24 months) that the product will be free from material or manufacturing defects (scope of warranty). The warranty period starts at the time of delivery. Any warranty claims may only be asserted against presentation of the original invoice with the date of purchase. In the event of a valid warranty claim, we will, at our discretion, replace or repair the defective product. If parts are replaced, the replaced parts shall become our property. If the customer or a third party has made any changes to the delivered goods which have led to the defect, the warranty shall not apply. Furthermore, it does not apply to defects caused by improper use and also not to consequential or incidental damage or damage due to loss of use.

9. Other liabilities

(1) If nothing to the contrary results from these General Terms and Conditions including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

(2) Irrespective of the legal grounds, we shall be liable for damages under fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in own affairs) only:

a) for damages resulting from injury to life, body or health;

b) for damages resulting from the breach of an essential contractual obligation. An essential contractual obligation is an obligation that must be fulfilled in the first place in order to enable the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely. In this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 above shall also apply in the event of breaches of duty by or in favour of persons for which we are responsible in accordance with the statutory provisions. If we have given a guarantee for the quality of the goods or have fraudulently concealed a defect, the limitations of liability shall not apply. Furthermore, they shall not apply to claims of the buyer under the Product Liability Act.

10. Applicable law and jurisdiction

(1) The contractual relationship between us and the customer, including these General Terms and Conditions, shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) The exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Borgholzhausen. However, we shall also be entitled in all cases to take legal action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions and/or a prior individual agreement, or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected.

11. Miscellaneous

Should any individual provisions in these General Terms and Conditions or other contracts between fetra and the customer be or become invalid in whole or in part or be incomplete, this shall not affect the validity of the other provisions.