Fischer CNC-Technik GmbH`s german general terms and conditions (link) aplly to all deliveries and contracts. As a service for international customers and suppliers a non-binding english translation of the standard terms and conditions of sale and purchase is provided below.
----------Standard Terms and Conditions of Sale for Fischer CNC-Technik GmbH----------
The following terms of business, delivery and payment apply exclusively to all customer orders. Other customer conditions are not valid under any circumstances unless confirmed in writing by us as the contractor.
II. Order placement
Orders must generally be placed in writing (including by fax or by email). In the event of oral order placement, responsibility for communication errors or misunderstandings is borne by the ordering party. If a written order confirmation is available, the order scope and content is based on this document.
(1) The costs and risks of shipping the goods are borne by the client. The contractor fulfils the duties under the contract by providing the goods or handing them to a postal or haulage service (duty to deliver or collect). As regards culpability due to the above, the contractor is liable only for wilful intent and gross negligence. The client bears sole responsibility for arranging insurance for shipments against loss and damage in transit. The client shall arrange any returns of goods via UPS, by stating the contractor’s UPS number.
Delivery dates are non-binding except where such dates have been expressly
confirmed in writing by the contractor or have been designated as binding.
(3) If the contractor is unable to deliver on time, then the latter shall first be granted an appropriate grace period. The client is entitled to withdraw from the contract on the fruitless expiry of this period. Compensation claims for losses due to the delay are limited to the order value (internal labour excluding preliminary work and materials), except in cases where the delay was caused by the contractor’s wilful intent or gross negligence.
(4) Disruptions to business such as strikes, lockouts, war, riot or any other instance of vis major, such that affect either the contractor’s company or that of a supplier, cannot be used as justification for terminating the contractual relationship. This does not affect the validity of the principle of frustration of purpose.
(5) The delivered goods remain the property of the contractor until full payment of all receivables owed by the client to the former at the invoice date. The client is entitled to resell the goods only in the course of ordinary business.
The client hereby assigns all claims arising from resale to the contractor. The contractor hereby accepts this assignment. If requested to do so, the client shall inform the contractor of the individual to whom the resale has been made, giving precise details of the latter’s address.
(6) The contractor enjoys retention of title pursuant to Section 369 of the German Commercial Code (HGB) until the full satisfaction of all claims from the business relationships. This also applies to any digital data as supplied by the client.
(1) Prices are specified in the individual agreement made between the contractor and client or, in case of doubt, are as stated in the price list valid at the time the order was placed.
(2) If the contractor submits a quotation, then the prices apply as stated therein, with the proviso that the order data on which the quotation is based must then remain unchanged. All prices specified are net prices exclusive of value-added tax at the applicable statutory rate. All deliveries are made at the client’s expense.
(3) Subsequent changes made at the request of the client, including any production downtime resulting from these changes, will be billed to the client. The term “subsequent change” also covers the repeat manufacture of a product that was ordered by the client and which, following placement of the order, was then modified in comparison to the order as originally placed.
(1) The contractor can supply goods on invoice, payable within the period stated on the invoice, or as collect on delivery (C.O.D.). Invoices give details of the delivery date, a partial delivery or the readiness of the goods (duty to collect, default re acceptance).
(2) The client may not offset payments with claims unless these are legally enforceable or have been acknowledged in writing. A client who is a merchant in the sense defined by HGB has no rights of retention or offsetting, insofar as this is legally permissible.
(1) The client is in default if he or she does not make payment on receipt of a reminder from the contractor sent on expiry of the receivable’s due date. Independently of this, the client is also in default if no payment is made by the calendar date for payment agreed in the contract. This does not affect the statutory provision whereby the invoiced party is automatically in default 30 days after receipt of an unpaid invoice.
(2) If the satisfaction of the claim for payment should become threatened by a worsening of the client’s financial circumstances, such as has either occurred or become known following contract conclusion, the contractor is entitled to demand prior payment as well as immediate settlement of all invoices regarding whose payment the client is in default, and to keep back any goods as yet undelivered, and to cease any work on ongoing orders. The contractor may also exercise these rights if the client does not render payment despite receiving a reminder notifying the latter of default.
(3) In the event of default, late payment interest must be paid at the statutory rate. This does not preclude the assertion of additional claims for compensation.
(1) The client shall verify without delay and in all cases the conformity of delivered goods to contractual specifications, and inspect any pre-materials and intermediate products supplied for this purpose. The risk due to defects passes to the client on the latter’s release declaration, insofar as these are not defects that have occurred or could be identified only in the production process following the client’s release. The same applies to all other release declarations made by the client for subsequent production.
(2) Written notice of defects must be submitted to the contractor promptly and within one week of receipt of the goods. If the client fails to notify the contractor in this way, goods are considered delivered in accordance with the contract. Latent defects not identifiable by the goods receipt inspection must also be communicated to the contractor without delay following their discovery. No further claims for defects may be made following the expiry of the statutory warranty period.
(3) In the event of a legitimate complaint, the contractor shall, at the latter’s discretion and to the exclusion of other claims, choose between rework and/or substitute delivery up to the order value, except in cases where a warranted property is absent or the contractor or the latter’s vicarious agents are culpable of wilful intent or gross negligence. The same applies for a legitimate complaint concerning rework or substitute delivery. In the event of delayed, neglected or unsuccessful rework or substitute delivery, the client may reduce the remuneration paid or demand the unwinding of the contract. No liability for consequential losses from defects is borne by the contractor unless the latter or the latter’s vicarious agents are culpable of wilful intent or gross negligence. If the subject of the contract concerns contract processing work or the further processing of products, then the contractor is not liable for the impairments thereby caused to the products to be contract processed or further processed, except where the loss was caused by wilful intent or gross negligence.
(4) A complaint affecting the entire delivery cannot be justified by defects concerning a minor part of the delivery except in cases where the client has no interest in the partial delivery.
(5) For deviations in the state of the material utilised, the contractor is liable only to the maximum extent of the latter’s own claims against the respective supplier. In such a case, the contractor is exempted from liability if the contractor’s claims against the supplier are assigned to the client. The contractor is liable as a guarantor in cases where the contractor’s own culpability means claims against the supplier have no basis or are not enforceable.
(6) The contractor is not obliged to inspect any deliveries (including data media or data transfers) made to the former by the client or by a third party employed by the latter. This does not apply in the case of data that is clearly unable to be processed or read. In the case of data transfers, the client must deploy antivirus programs meeting the very latest technical standards before commencing the data transfer. The client is solely responsible for data backups. The contractor is entitled to create a copy of the data.
(7) Excess or short orders of up to 10% of the amount ordered offer no grounds for complaint. Invoices always reflect the quantity delivered.
VIII. Safekeeping, insurance
(1) Masters, raw materials, drawings, print media and other objects suitable for reuse, as well as semi-finished and finished goods, will, except where picked up or requested for surrender by the client on completion of the order, be kept in safe custody beyond the outbound delivery date. In this case, however, the contractor is liable only in the event of wilful intent and gross negligence.
(2) Insofar as supplied by the client, all of the objects stated above, including stocks, will be handled with due care until the outbound delivery date. The contractor is liable for damage only in the event of wilful intent or gross negligence.
(3) If the abovementioned objects/stocks should be insured, then the client is responsible for arranging such insurance.
The period of limitation for warranty and compensation claims made by the client (section VIII) is one year, beginning with the delivery/pickup of the goods. This does not apply if the contractor is guilty of fraudulent conduct.
X. Trade practice
Commercial transactions are also governed by the trade practice of the metalworking trade, unless provisions to the contrary are made in these T&Cs.
XI. Ownership, copyright
(1) The process equipment we employ in manufacturing the contractually-agreed products – especially tools, etc. – remains our property even if billed for separately and does not form part of the delivery.
(2) The client bears sole liability in the event of contract execution infringing rights, and third-party copyright in particular. The client shall indemnify the contractor against any and all third-party claims arising from a rights infringement of this nature.
XII. Place of performance and jurisdiction, legal validity
(1) The place of performance and jurisdiction for all claims and legal disputes arising from legal and contractual relationships, including summary procedures such as bill enforcement proceedings, is the contractor’s registered place of business if the client and the former are merchants as defined by the HGB. The contractual relationship is governed by the Law of the Federal Republic of Germany. The application of UN CISG is expressly excluded.
(2) Any legal invalidity of one or more provisions does not affect the legal validity of the remaining provisions.
Last updated April 2016
----------Standard Terms and Conditions of Purchase for Fischer CNC-Technik GmbH----------
(1) All deliveries, services and offers are made or offered by our suppliers on the sole basis of these Standard Terms and Conditions of Purchase. These conditions form an integral part of all contracts that we conclude with our suppliers concerning the deliveries or services they offer. These conditions apply to all future deliveries, services or offers made or offered to the client, even if they are not agreed subsequently and separately.
(2) The application of terms of business from our suppliers or third parties is excluded even in the event that these terms are not specifically excluded. Even if we should refer to correspondence containing or referring to terms of business from a supplier or a third party, this in no way constitutes our acceptance of the validity of the terms of business in question.
II. Orders and purchase orders
(1) Insofar as our quotations do not state an explicit period of validity, we agree to be bound by our offer for one week from the quotation date. Timely acceptance of an offer is based solely on the date on which we receive the acceptance letter.
(2) We are entitled to communicate changes to the time and place of delivery and the type of packaging used in writing at any time within a period ending 10 calendar days before the agreed delivery date. The same applies to changes to the product specifications, insofar as these changes can be implemented as part of the supplier’s normal production process without significant additional effort; in this case, the notification period according to the preceding sentence is 2 weeks. We will reimburse the supplier for additional costs incurred by the change where these are appropriate and properly documented. If such changes cause delays to delivery that cannot be avoided with the application of reasonable effort in the course of the supplier’s normal production and business processes, the delivery date originally agreed is postponed as appropriate. The supplier will make a careful estimate of the expected cost overrun or delay to deliveries and submit this to us in writing well in advance of the delivery date and no later than 5 working days following receipt of our notification according to (1) above.
(3) We are entitled to terminate the contract at any time by providing a written explanation of the reasons for doing so if we can no longer utilise the products ordered in our company’s business due to circumstances arising following contract conclusion. In this case, we will reimburse the supplier for the partial performance rendered by the latter.
III. Prices, terms of payment, invoice format
(1) The price stated in the purchase order is binding.
(2) In the absence of any written agreement to the contrary, the price includes packaging, and delivery and carriage to the shipment address stated in the contract.
(3) Insofar as the agreement made means the price is net of packaging and the fee charged is not expressly intended to cover packaging (which is not merely provided on loan), this fee must be charged at cost (proof of the cost price must be provided on demand). At our request, packaging must be returned to the supplier at the latter’s expense.
(4) Unless otherwise agreed, we will pay for goods following delivery and receipt of the invoice either with a 3% discount on the purchase price within 14 days or 30 days net. Payments we make are considered to be made on time if our bank receives our wire transfer form by the invoice date.
(5) Our PO number, article numbers, delivery quantities and delivery address are to be specified on all order confirmations, shipping documents and invoices. If one or more of these particulars is absent and thus hinders processing at our company during our normal course of business, the payment periods stated in para. 4 are extended by the length of the delay so caused.
(6) In the event of our default, we owe default interest in the amount of 5 percentage points above the base rate pursuant to section 247 of the German Civil Code (BGB).
IV. Lead time and delivery, transfer of risk
(1) The lead time stated in the purchase order (delivery date or period) is binding. Early deliveries are not permitted.
(2) The supplier shall inform us in writing without delay if circumstances arise or are identified that will prevent compliance with the agreed lead time.
(3) If the latest date on which the delivery can be made can be identified from the contract, then the supplier is in default at midnight on this date without the sending of a reminder notice being necessary on our part.
(4) In the event of a supplier default, we may exercise the full range of statutory rights at our disposal, including the right of withdrawal and the right to claim compensation in lieu of performance following the fruitless expiry of an appropriate grace period.
(5) In the event of a delayed delivery and after providing the supplier with a written warning, we are entitled to demand a contractual penalty of 0.5% for each week of or part thereof the delivery is delayed, to a maximum of 5% of the order value. This contractual penalty is subtracted from the supplier’s reimbursement of losses caused by the delay.
(6) The supplier is not entitled to make partial deliveries without our prior written consent.
(7) Even when a shipment has been agreed, the risk is transferred to us only once the goods have been handed over at the agreed place of destination.
V. Rights of ownership
(1) We retain all rights of ownership and copyright to purchase orders and orders that we issue, as well as drawings, illustrations, calculations, descriptions and other documents that we share with the supplier. Without our express permission, the supplier may not share these materials with third parties, nor may they be published, used or reproduced by the supplier or a third party. The supplier must return these materials in their entirety at our request, either if the former no longer has a use for them in the course of ordinary business or if negotiations do not lead to the conclusion of a contract. In this case, any copies of the materials made by the supplier must be destroyed; this requirement does not apply to the retention of materials in accordance with the legal duties of retention or to the storage of data in backups as part of normal data backup procedures.
(2) We either retain or acquire rights of ownership, as appropriate, to tools, apparatus and models that we provide to the supplier or which are manufactured for the purposes of the contract and which are billed to us separately by the supplier. The supplier must clearly mark these objects as our property, and they must be stored with due care, protected from damage of any kind and used only for the purposes of the contract. In the absence of any agreement to the contrary, each party to the contract bears 50% of the costs for the maintenance and repair of these objects. In cases where these costs can be attributed to defects in such objects as manufactured by the supplier or are due to improper use on the part of the supplier or the supplier’s employees or other vicarious agents, these costs are borne solely by the supplier. The supplier will notify us promptly of all cases of significant damage suffered by these objects. On receiving a request to do so, the supplier shall surrender these objects to us in an orderly state in the event of the supplier no longer needing these objects to complete our mutual contracts.
(3) Retention of title on the part of the supplier is applicable only insofar as it relates to our payment obligations concerning those products for which the supplier retains title. Claims for expanded or extended retention of title are expressly excluded.
VI. Warranty claims
(1) In the event of defects, we have the full range of statutory rights at our disposal. A different warranty period of 30 months is hereby agreed, however.
(2) Complaints concerning deviations in terms of quality and quantity are considered timely if we report these to the supplier within 5 working days of receipt of the goods. Complaints concerning latent defects are also considered timely if we report these to the supplier within 5 working days of their discovery.
(3) We do not relinquish our rights to assert warranty claims merely by our acceptance or approval of specimens or samples.
(4) The receipt of our written defect report by the supplier suspends the period of limitation for asserting warranty claims. Following substitute delivery and the rectification of defects, the warranty period restarts for parts replaced or reworked, except if, on the basis of our assessment of the supplier, we have assumed that the latter did not consider this work an obligation but offered substitute delivery or the rectification of defects as a gesture of goodwill or for similar reasons.
VII. Product liability
(1) The supplier is responsible for all third-party claims asserted due to personal injury or damage to property attributable to a defective product delivered by the supplier, and the latter shall also indemnify us against any liability arising from such circumstances. Should we be obliged to initiate a product recall with third parties due to a defect in a product delivered by the supplier, then the supplier shall bear all costs associated with this product recall.
(2) The supplier shall, at the supplier’s expense, take out and maintain a product liability insurance policy offering coverage of at least EUR 5 million; unless agreed otherwise on a case-by-case basis, this policy does not need to provide coverage for recall risk or punitive or similar damages. At our request, the supplier shall forward us a copy of the liability insurance policy.
VIII. Property rights
(1) The supplier is responsible for ensuring that the latter’s deliveries do not infringe third-party property rights in the countries of the European Union, Switzerland, North America and India, in which the supplier manufactures the products (under contract).
(2) The supplier shall indemnify us against all claims asserted against us by third parties due to the infringement of industrial property rights as stated in (1), and shall reimburse us for all expenses incurred in connection with the assertion of such claims. This does not apply if the supplier can prove that the latter neither bears responsibility for the rights infringement nor could have known of this infringement at the point of delivery by applying the merchant’s duty of care.
(3) This does not affect our further legal entitlements due to defects of title affecting the products supplied to us.
IX. Replacement parts
(1) The supplier shall hold replacement parts in stock for the products delivered to us for a minimum period of 5 years following delivery.
(2) If the supplier intends to discontinue the production of replacement parts for the products delivered to us, the supplier shall inform us of this intention immediately following the decision to do so. A decision to discontinue parts must not contradict the terms of (1) and must be taken at least 6 months before production stops.
(1) The supplier shall treat the conditions of purchase as well as all other information and documentation provided for this purpose (with the exception of information in the public domain) as strictly confidential for a period of 2 years following contract conclusion and shall use these materials solely for processing the order. On request, the supplier shall return these materials to us promptly after responding to the RFQ or processing the order.
(2) Without our prior written approval, the supplier may not refer to our business relationship in advertising materials, brochures, etc. nor exhibit objects manufactured on our behalf to the public.
(3) The supplier shall require subcontractors to agree to the terms of this section X.
The supplier is not entitled to assign claims from the contractual relationship to third parties. This does not apply in the event of these being monetary claims.
XII. Place of performance and jurisdiction, applicable law
(1) The place of performance for both parties and sole place of jurisdiction for all disputes arising from the contractual relationship is Neustadt an der Weinstraße, Germany.
(2) The contracts we conclude with the supplier are governed by the laws of the Federal Republic of Germany with the express exclusion of the application of the United Nations Convention on Contracts for the International Sale of Goods (UN CISG).
Last updated May 2016