Terms and conditions

General Terms for Deliveries and Services of Frölich & Klüpfel Drucklufttechnik GmbH & Co. KG

As at: January 2021

1. Applicability, Generalities

1.1. These General Terms and Conditions for Deliveries and Services with data protection information of Frölich & Klüpfel Drucklufttechnik GmbH & Co. KG, hereinafter referred to as "General Terms and Conditions", apply to all our business relations with our customers, hereinafter referred to as "Customer". These General Terms and Conditions apply in particular to the delivery of goods, works and services to the Customer. These General Terms and Conditions shall only apply if the Customer is an entrepreneur (Unternehmer) within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

1.2. Unless expressly agreed otherwise, these General Terms and Conditions in the latest version notified to the Customer in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

1.3. These General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and condi-tions of the Customer shall only become part of the contract if and to the extent that we have expressly agreed to their applicability. This shall also apply if we carry out the delivery or service to the Customer without reservation in the full awareness of the Customer's general terms and conditions.

1.4. The Vergabe- und Vertragsordnung für Bauleistungen (VOB, Construction Procurement and Contract Regulation), Part B, does not apply.

1.5. Legally relevant declarations and notifications to be made to us by the Customer after conclusion of the contract must be made in writing in order to be effective.

2. Offer, Conclusion of Contract, Scope of Performances, Minimum order value

2.1. All our offers are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. We may accept orders or commissions from the Customer within thirty (30) days of receipt. Acceptance may be declared in writing or by performance of the delivery or service. An order must have a minimum order value of 20.00 euros. Otherwise we have to charge a small quantity surcharge of EUR 10.00.

2.2. Our declarations on the subject matter of the delivery or service, such as dimensions, tolerances and technical data, are only approximate unless the usability for the contractually intended purpose requires an exact agreement. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations which occur due to legal regula-tions or which represent technical improvements, as well as the replacement of materials and components, are permissible provided that they do not impair the usability for the contractually intended purpose.

2.3. The scope of our delivery or service obligation shall be determined by our written order confirmation or, in the case of unconditional provision of the delivery or service without prior order confirmation, by the order or commission of the Customer; these General Terms and Conditions shall remain unaffected.

2.4. We reserve the ownership and copyright to all offers and cost estimates made by us as well as to all documents made available to the Customer. The Customer may not make these objects accessible to third parties without our express consent. At our request, the Customer shall return these items to us in their entirety.

3. Prices, Terms of Payment, Set-off, Retention

3.1. Unless expressly agreed otherwise, our list prices valid at the time of conclusion of the contract shall apply. If delivery or performance is to take place more than four (4) months after conclusion of the contract, our list prices valid at the time of delivery or performance shall apply.

The prices for deliveries of goods are ex works / warehouse plus statutory value added tax. Packaging, transport costs, costs of transport insurance or other insurance requested by the Customer, assembly and operating supplies. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.

Unless otherwise agreed in writing, we shall invoice works or services on the basis of our list prices plus the statutory value added tax per hour worked per employee. Working hours shall also include set-up times, the travel time to and from the location as well as standing and waiting times for which we are not responsible. Travel and accommodation costs as well as goods used for the provision of services shall be invoiced separately. We shall provide the Customer with a monthly list of the hours worked at the end of each month, at the latest however after performance of the service. The service shall be invoiced on the basis of this list, unless the Customer objects to it in writing within five (5) days by giving reasons for his objection. Cost estimates are non-binding unless otherwise agreed in writing.

3.2. Invoice amounts are to be paid within thirty (30) days without any deduction unless otherwise agreed in writing.

However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirma-tion. Payment by cheque or bill of exchange is excluded unless agreed specifically in individual cases.

3.3. With the expiration of the payment period in accordance with Section 3.2 of these General Terms and Conditions, the Customer shall be in default. During the period of default, interest shall be charged on the price at the applicable statutory default interest rate. We reserve the right to assert further claims for damages caused by default.

3.4. The Customer is only entitled to a right of set-off to the extent that his counterclaim has become res judicata or is undisputed. The Customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.

4. Delivery or Service, Export Control, Delivery Period, Delay in Delivery, Partial Delivery

4.1. Unless expressly agreed otherwise, deliveries shall be made ex warehouse; this shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the Customer, the goods shall be dispatched to another destination (Versendungskauf). Unless otherwise agreed, we shall be entitled to determine the type of dis-patch, in particular the transport company, the dispatch route and packaging, ourselves. We shall be entitled to use parts, materials or fabrics other than those contractually agreed upon for the execution of the delivery or service, provided that the change does not impair the suitability of the delivery or service for the ordinary use or the use stipulated in the contract.

If we carry out a delivery or service at the Customer's premises, the Customer is obliged to inform us about the applicable regu-lations on work safety. We are obliged to ensure that our em-ployees comply with these regulations.

4.2. Our obligations as well as the obligations of the Customer arising from the contract or from these General Terms and Conditions are subject to the proviso that their fulfilment does not violate applicable export control regulations.

4.3. Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If dispatch has been agreed, delivery deadlines and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

4.4. Irrespective of our rights arising from the Customer's default, we may demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the Customer fails to meet its contractual obligations towards us.

4.5. The occurrence of our delay in delivery or performance shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Customer is required. We shall not be liable for impossibility of delivery or for delays in delivery insofar as these were caused by force majeure or other events not foreseeable at the time of conclusion of the contract for which we are not responsible. Insofar as such events make the delivery or service for us considerably more difficult or impossible and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot be reasonably expected of the Customer as a result of the delay, he may withdraw from the contract by immediate written declaration.

4.6. If we are in default with a delivery or service or if a delivery or service becomes impossible for us for whatever reason, our liability for damages shall be limited in accordance with Section 12 of these General Terms and Conditions.

4.7. We shall be entitled to make partial deliveries if the partial delivery can be used by the Customer within the scope of the contractual purpose, if the delivery of the remaining ordered goods is ensured and if the Customer does not incur any significant additional expenses or costs as a result thereof.

5. Putting into Operation, Acceptance of Work Performances

5.1. The delivered goods shall be put into operation under our responsibility and management, unless expressly agreed otherwise or unless we expressly or impliedly waive putting into operation by reason of the nature or condition of the goods. We carry out the putting into operation with the operating and maintenance personnel of the Customer. Putting into operation shall be effected by carrying out an empty running test on a trial basis.

5.2. The Customer is obliged to approve our work performed in accordance with the contract. The work performance shall be deemed approved if the Customer has not refused approval within a period of fourteen (14) days after completion of the work stating at least one defect.

6. Transfer of Risks, Default of Acceptance

6.1. In the case of deliveries of goods, the risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are handed over. In the case of sale by delivery to destination (Versendungskauf), however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer upon delivery of the goods to the forwarding agent, the carrier or the person otherwise designated to carry out the shipment. In the case of performance of works or if reception has been agreed, the risk of accidental loss and accidental deterioration shall pass upon reception. Delivery or reception shall be deemed to have taken place if the Customer is in default of acceptance.

6.2. If the Customer is in default of acceptance, if he fails to co-operate or if our delivery or service is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses. For this we charge a lump-sum compensation of 0.25% of the invoice amount per expired week. The proof of a higher damage and our legal claims, in particular the withdrawal, remain unaffected; however, the lump sum shall be set off against further monetary claims. The Customer shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the aforementioned lump sum.

7. Retention of Title

7.1. The retention of title agreed below serves to secure all our current and future claims against the Customer arising from the delivery or service relationship existing between us, including balance claims from a current account relationship limited to this delivery or service relationship.

7.2. The goods delivered by us to the Customer or the work produced by us shall remain our property until all secured claims have been paid in full. The goods or the work as well as the goods covered by the retention of title and taking their place in accordance with the following provisions shall hereinafter be referred to as "goods subject to retention of title".

7.3. The customer shall keep the goods subject to retention of title in safe custody for us free of charge.

7.4. The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation in accordance with Section 7.9 of these General Terms and Conditions has occurred. Pledges and transfers by way of security are not permitted.

7.5. If the goods subject to retention of title are processed by the Customer, it is agreed that the processing takes place in our name and for our account as manufacturer and that we directly acquire the ownership or, if the processing takes place from materials of several owners or the value of the processed object is higher than the value of the goods subject to retention of title, the co-ownership of the newly created object in the ratio of the value of the goods subject to retention of title to the value of the newly created object. In the event that no such acquisition of ownership should occur with us, the Customer hereby transfers his future ownership or, in the above-mentioned propor-tion, co-ownership of the newly created item to us as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Customer shall assign to us, to the extent that the main item belongs to him, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.

7.6. In the event of resale of the goods subject to retention of title, the Customer hereby assigns to us by way of security the resulting claim against the purchaser; in the event of coownership of the goods subject to retention of title, this shall be pro-portionate to our co-ownership share. The same applies to other claims which take the place of the goods subject to reten-tion of title or otherwise arise with regard to the goods subject to retention of title. We revocably authorise the Customer to collect the claims assigned to us in his own name. We may only revoke this direct debit authorisation in the event of realisation.

7.7. If third parties encroach on the goods subject to retention of title, in particular by seizure, the Customer shall immediately inform them of our ownership and inform us thereof in order to enable us to enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to us for such costs.

7.8. We shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. We shall have the right to select the items to be released there-after.

7.9. If we rescind the contract in the event of breach of contract by the Customer, in particular in the event of default in payment (event of realisation), we shall be entitled to demand the return of the goods subject to retention of title.

7.10. Parts removed by us in the Customer's premises shall become our property unless otherwise agreed in writing.

8. Warranty for Defects

8.1. The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title, including incorrect and short deliveries as well as improper assembly or defective assembly instructions, unless otherwise provided below.

8.2. The basis of our liability for defects is the agreement of the parties regarding the quality of the goods. If the quality has not been agreed, it shall be judged according to the statutory provisions whether a defect exists or not.

8.3. Insofar as the Customer is subject to statutory obligations to examine and give notice of defects, his claims based on defects presuppose that he has fulfilled these obligations. If a defect becomes apparent during the inspection or later, we must be notified of this immediately in writing. The notification shall be deemed to have been made immediately if it is made within two (2) weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of his obligation to examine and give notice of defects, the Customer must notify us in writing of obvious defects, including incorrect and short deliveries, within two (2) weeks of delivery, whereby here too the timely dispatch of the notification shall suffice to meet the deadline. If the Customer fails to properly inspect the goods or to notify us of any defects, our liability for the defect not notified shall be excluded.

8.4. If the delivered goods are defective, we may in the first place choose whether we provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to re-fuse subsequent performance under the statutory conditions shall remain unaffected. We shall be entitled to make the subsequent performance owed dependent on the Customer paying the price due. However, the Customer shall be entitled to retain a reasonable part of the price in proportion to the defect.

8.5. The Customer must give us the time and opportunity required for the owed subsequent performance, in particular the Customer must hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation, unless we are contractually obliged to install it.

8.6. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, but not the dismantling and installation costs, if a defect actually exists. Otherwise, we may demand compensation from the Customer for the costs incurred.

8.7. If the supplementary performance has failed or a deadline to be set by the Customer for the supplementary performance has expired or is dispensable according to the statutory provisions, the Customer may withdraw from the contract or reduce the price. In the case of an insignificant defect, however, there is no right of withdrawal.

8.8. Claims of the Customer for damages or for reimbursement of futile expenses shall only exist in the case of defects in accordance with Section 12 of these General Terms and Conditions and shall otherwise be excluded.

9. Repairs, Subject Matter and Placement of Orders

9.1. The order may provide for the use of new original parts, exchange parts and used parts. New original parts will be used unless otherwise agreed in the order.

9.2. The order relates only to the services specified in it.

9.3. The Customer shall receive a copy of the order.

10. Cost Estimates, Price Information in the Order Form

10.1. If the Customer requests a written cost estimate, the work and spare parts shall each be listed individually and assigned the respective price.

11. Early Termination of the Order

11.1. The Customer is entitled to terminate the contract at any time until the repair work has been completed.

11.2. If the tool is to be returned unrepaired or is scrapped by us, a processing fee of EUR 15.00 shall apply in either case. The Customer may prove that lower costs were incurred. Packaging and return shipping costs shall be borne by the Customer. In all other respects, the statutory provisions shall apply.

12. Liability

12.1. Unless otherwise provided in these General Terms and Conditions, we shall be liable for any breach of contractual or non-contractual obligations in accordance with the statutory provisions.

12.2. Within the scope of liability based on fault, we shall be liable for damages, irrespective of their legal basis, in cases of intent and gross negligence. In cases of ordinary negligence, subject to a less stringent standard of liability under statutory provisions, we shall only be liable:

(a) for damage arising from injury to life, body or health; and

(b) for damage arising from a breach that is not insignificant of an obligation whose fulfilment is essential for the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely. In this case, however, our liability shall be limited to compensation for foreseeable damage typical of the contract.

12.3. The limitations of liability set out in Section 12.2 of these General Terms and Conditions shall also apply to breaches of duty by, and for the benefit of, persons for whose fault we are responsible under statutory provisions. They shall not apply where we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods, or to claims of the Customer under the German Product Liability Act.

12.4. In the event of a breach of duty that does not consist of a defect, the Customer may only withdraw from the contract if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences shall apply.

13. Confidentiality

The parties undertake to keep confidential, for an unlimited period, all knowledge of confidential information and trade and business secrets of the other contracting party obtained during the performance of the contract, and to use it exclusively for the performance of the contract, unless such confidential information or trade or business secrets have already become publicly known without a breach of this confidentiality obligation.

14. Limitation Periods

14.1. For deliveries of goods, the general limitation period for claims arising from material defects and defects of title shall, in deviation from Section 438(1) No. 3 of the German Civil Code (BGB), be twelve (12) months from commissioning, but no longer than eighteen (18) months from delivery. For spare parts, the general limitation period for claims arising from material defects and defects of title shall be twelve (12) months from delivery. Where acceptance has been agreed, acceptance shall replace delivery in the preceding sentence. Special statutory provisions governing limitation periods, in particular Sections 438(1) Nos. 1 and 2 and 444 BGB, shall remain unaffected.

For the production of a work, the general limitation period for claims arising from material defects and defects of title shall, in deviation from Section 634a(1) No. 3 BGB, be twelve (12) months from acceptance. Special statutory provisions governing limitation periods, in particular Sections 634a(1) Nos. 1 and 2 and 639 BGB, shall remain unaffected.

14.2. The above limitation periods under sales law and the law governing contracts for work shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect in the goods, unless application of the regular statutory limitation period would result in a shorter period in an individual case. However, claims for damages of the Customer under Section 12 of these General Terms and Conditions and under the German Product Liability Act shall be subject exclusively to the statutory limitation periods.

15. Final Provisions

15.1. Amendments or additions to the agreements made, including these General Terms and Conditions, must be in writing to be effective.

15.2. Insofar as the contract or these General Terms and Conditions contain gaps, those legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions, had they been aware of the gap, shall be deemed agreed to fill it.

15.3. The relationship between us and the Customer shall be governed exclusively by the law of the Federal Republic of Germany, excluding the provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).

15.4. These General Terms and Conditions shall be interpreted according to the German understanding of the law, even if they are used in English or French. If the English or French meaning differs from the German meaning, the German meaning shall prevail.

15.5. The exclusive place of jurisdiction for all disputes arising out of or in connection with the contract or these General Terms and Conditions shall be our registered office. However, we shall also be entitled to bring proceedings at the place of performance of the delivery obligation under these General Terms and Conditions or a prevailing individual agreement, or at the Customer's general place of jurisdiction. Overriding statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.