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General terms and conditions

§ 1. General information
These general terms and conditions (GTCs) apply to all offerings and deliveries of FIBALON GmbH to companies within the meaning of the BGB [German Civil Code]. Conditions of the co-contractor which conflict or deviate from these are to be disregarded, unless they are explicitly accepted in writing. All oral information and agreements, especially if given/made by the FIBALON GmbH sales force, agents or employees, require the written explicit confirmation of FIBALON GmbH in order for them to be binding on FIBALON GmbH.

§ 2. Delivery and delivery times
Business is not concluded with FIBALON GmbH on the basis of a fixed date in any case. The stated delivery periods constitute approximate information, merely referring to approximate delivery period. If, in individual cases, a delivery deadline is agreed in writing, this is to deemed to have been met if the product to be delivered is dispatched by that deadline or if – insofar as the buyer is to collect it – the buyer has been notified of the product’s readiness for dispatch.

In the event of force majeure or of exceptional occurrences which are beyond the influence of FIBALON GmbH and which make delivery within the agreed delivery period more difficult or impossible (e.g. strikes, illnesses, disruptions in the business operations of the upstream suppliers), the delivery period shall be extended by the duration of the hindrance. FIBALON GmbH shall notify the buyer immediately upon the onset of such events as soon as it determines that the delivery period will be affected. FIBALON GmbH will at the same time advise on the expected duration of the required extension of the delivery period. FIBALON GmbH is also entitled, in these cases of unavailability, to withdraw from the contract, if it has not yet been fulfilled. FIBALON GmbH shall notify the buyer immediately after becoming aware of the lack of availability, if it withdraws from the contract.

If FIBALON GmbH is delayed in delivery, an additional delivery period of 15 days begins to run. The buyer can only withdraw from the contract after this additional period has expired without result, and is limited to the unfulfilled part of the delivery obligation, if it notifies FIBALON GmbH in writing after the occurrence of delayed delivery that it will refuse the fulfilment of the contract after the fruitless expiry of a grace period of at least 18 days. The buyer may in this case only demand damages for non-fulfilment instead of the right of withdrawal if FIBALON GmbH or its agents have caused the delay in delivery intentionally or through gross negligence. Exceptionally, the buyer under the above assumption shall be entitled, in the case of a partial delay in delivery by FIBALON GmbH, to withdraw from the whole contract or to claim damages for non-fulfilment of the entire delivery obligation if the partial fulfilment of the contract is of no benefit to the buyer, subject to rigorous assessment criteria.

§ 3. Prices
The prices are net prices ex works, unless otherwise agreed in writing. The VAT applicable at the time of the order will be shown separately in the invoice.

§ 4. Payment
Unless otherwise agreed, the following payment conditions apply: The purchase price must be paid within 30 days of invoicing. After this period counterparty is deemed to be in default.

§ 5. Offsetting and right of retention
a) The co-contractor has a right to offset only if its counterclaims have been legally established or are undisputed.
b) The co-contractor has a right of retention only insofar as its counterclaim is based on the same contractual relationship.

§ 6. Transfer of risk during shipment
If the goods are dispatched at the request of the co-contractor, then Section 447 BGB applies. This rule applies regardless of who bears the freight charges, or of whether the shipment of goods is from the place of performance. FIBALON GmbH is obliged to have transit insurance in place only at the express request of the buyer. The costs are to be borne by the buyer.

§ 7. Retention of title
The goods remain the property of FIBALON e.K until the full payment of all claims resulting from the supply contract. The co‑contractor is obliged to handle the goods carefully up until the transfer of title. Should the product be seized before the transfer of ownership or should it be subject to other interventions by third parties, FIBALON GmbH must be notified thereof immediately in writing. Should the third party not be able to reimburse the judicial and extrajudicial costs of successful third-party proceedings or other legal remedies, the co-contractor is obliged to compensate for the resulting damage.

The co-contractor is entitled to resell the goods in the ordinary course of business. The resulting claims of the co-contractor will be assigned to FIBALON GmbH at the amount of the claim resulting from this delivery (including VAT). This applies regardless of whether the goods subject to retention of title have been resold without being processed or after processing. FIBALON GmbH hereby accepts this assignment.

The co-contractor remains entitled to collect the assigned claim, whereby FIBALON GmbH’s authority to collect the claim itself remains unaffected. The claim will not, however, be collected by FIBALON GmbH as long as the co-contractor fulfils its payment obligations.

With regard to the processing and combination of the goods subject to retention of title with other items not owned by FIBALON GmbH, FIBALON GmbH shall acquire joint ownership of the new item in a proportion of the objective value of the goods subject to retention of title to that of the other processed items as at the time they are combined. The same applies to mixing, even if the item owned by FIBALON GmbH is not regarded as the main item. In this case it is agreed that the FIBALON GmbH’s co-contractor shall transfer FIBALON GmbH the relevant proportion of the corresponding co-ownership and keep it safe for FIBALON GmbH.

§ 8. Liability and warranty exclusion
The buyer undertakes to carefully check the goods immediately after receiving them. It must notify FIBALON GmbH, in writing, of all defects and complaints within 10 days of receipt. Where the buyer is an entrepreneur under Section 14 BGB, the defects and complaints must be demonstrated and evidenced by a photograph.

Warranty rights do not exist if the buyer makes changes to the delivered goods, provokes such changes or tolerates them by third parties. In the event that the prescribed application areas for the acquired product type and the predetermined processing rules are not adhered to, FIBALON GmbH rules out any warranty or product liability.

Commercial and/or minor and/or technically unavoidable deviations in quality, colour, weight and dimensions in the execution or design do not signify an entitlement to send a notification of defect, and do not lead to warranty claims, unless such compliance has been expressly agreed in writing.

In the case of defects, FIBALON GmbH is entitled to rectify them or supply a defect-free replacement within two weeks after receipt of the returned goods. The return of the goods is only permitted if FIBALON GmbH has agreed to this. If FIBALON GmbH selects rectification or the delivery of a replacement and this fails, the buyer may – at its discretion – demand a reduction of the purchase price or withdraw from the contract with regard to the goods for which rectification or replacement has failed.

The buyer may assert a right of retention to the purchase price owed by the buyer, where this right is due to material defects or omissions, only in respect of that part of the sum which it would owe for the defective or missing parts in the event of correct contractual delivery. Any further withholding of payments to FIBALON GmbH entitles the latter to refuse to fulfil its warranty obligations until receipt of such payments.

The limitation period for warranty claims for new objects/services is one year from the transfer of risk. By contrast, the statutory limitation period remain unaffected as per Section 478 BGB.

Where the buyer’s complaint is deemed to be unjustified, the buyer shall bear the shipping costs of returning the goods. Furthermore, the buyer shall bear a processing fee of 5,00 Euro per item, for which FIBALON GmbH will send an invoice upon returning the goods, unless the buyer can prove that lower costs were incurred than the calculated fee.

Claims of the buyer, and in particular for damages, consequential damages or lost profits are excluded, unless they are based on an intentional or grossly negligent infringement by FIBALON GmbH or by its legal representative or agents.

Should FIBALON GmbH, even in the case of simple negligence, be liable for damage compensation due to special agreements or mandatory statutory provisions, then the amount FIBALON GmbH is liable to pay by way damages is limited to 100% of the value of the goods to be delivered, and is limited to that damage which FIBALON GmbH should have foreseen upon contract conclusion, taking into account all possible consequences of breaching the contract known to it in practice at that time, or of other acts which would oblige it to pay damage compensation. In the case of a delay, damage compensation is also limited to a maximum of 0.5% of the value of the goods to be delivered for each full week of delay.

The liability of FIBALON GmbH for expenditures in the context of expansions or installations according to § 439 Abs. 3 BGB is excluded.

§ 9. Place of performance and jurisdiction
The place of performance and exclusive jurisdiction for all disputes arising from this contract is Munich, or the competent district court / chambers for commercial matters if both parties are merchants. This also applies disputes regarding bills of exchange and cheques.

§ 10. Miscellaneous
The law of the Federal Republic of Germany, excluding the CISG, applies exclusively to this contract and to the entire legal relationship between the parties. This law is also crucial for assessing whether a buyer has agreed, upon conclusion of the contract or at a later date, with the validity of these general terms and conditions.

In the event that individual provisions are or become invalid, the remaining provisions shall remain unaffected. Invalid provisions shall be replaced by the relevant statutory provisions.

If these General Terms and Conditions are translated into a language other than German, the German provisions shall take precedence in the case of any doubt.

Date: January 2018

FIBALON^® and DyFix^® are registered trademarks of FIBALON GmbH in Germany and / or other countries.