5. Without prejudice to revocation, the other party to the contract is entitled to call on any claims arising from resale etc. FMB shall not make use of its entitlement to such claims, provided the other party to the contract meets its payment obligations.
6. If the other party to the contract is in arrears, if requested to do so by FMB, the other party shall notify its debtors of the assignment of claims and shall provide all information necessary for the claiming of its rights against its debtors, and hand out all necessary documentation.
7. The other party to the contract may not pledge or offer as security the machines and/or machine parts subject to retention of title. Any seizure carried out at the instigation of a third party must be notified immediately.
8. FMB reserves the right to make the export of the goods supplied subject to its express prior agreement.
VI. Warranty
1. Any obvious defects or incorrect deliveries must be notified in writing within one week of delivery, and always prior to any processing or installation. In the case of delivery by trucks belonging to FMB or a haulage firm it has appointed, the goods must be inspected, and any damage determined, in the presence of the driver. No complaints made after resale or installation of the goods will be accepted. FMB does not accept any liability for damage arising during or after installation, or which occurs as a result of insufficient planning or improper installation.
2. Hidden defects must be notified in writing within one week of their discovery.
3. FMB may choose to rectify duly notified and justified defects to the machines and/or machine parts by repairing or replacing them as it sees fit. If replacements or repaired items prove defective, or if FMB is late with the replacement or repair, or if FMB demands unreasonable remuneration, the only remedy is a reduction in the purchase price. Before seeking to rectify any problems itself, the other party to the contract must reach an agreement with FMB concerning the scope and cost.
4. The warranty period begins on the readiness for shipment of the goods at the works or distribution centre, but may not begin before the agreed deadline. Warranty claims become statute-barred after 12 months.
5. The warranty only extends to goods operated in accordance with the intended use, and in general – although an agreement may be made to the contrary in individual cases – in the country in which the purchaser has its registered premises or branch, as far as the external borders of the EU.
VII. Liability
1. If FMB reserves production capacities at the instigation of the other party to the contract and production is delayed or not initiated for reasons that are not the liability of FMB, the other party to the contract shall be liable for any losses thus incurred.
2. Any claims for damages and costs by the other party to the contract, on any legal basis whatsoever, in particular as a result of breaches of obligation or liability in tort, are excluded.
3. This shall not apply in the event of compelling liability, e.g. in accordance with the product liability laws, in cases of wilful intent, gross negligence, injury to life, limb or health, or in cases of serious breach of essential contractual obligations. However, a claim for damages in the event of breaches of essential contractual obligations, shall be limited to foreseeable damages typical for this type of contract, insofar as there is no liability arising from wilful intent or gross negligence or damages resulting from injury to life, limb or health. The foregoing provisions are without prejudice to the onus of proof on the other party to the contract.
4. If the other party to the contract is entitled to claim damages under this Section VII., such claims shall be statute-barred on expiry of the one-year period that applies to claims for defects.
VIII. Terms and conditions of payment
1. Prices are quoted from the distribution centre or the premises of the company contracted by FMB, and exclude freight costs and VAT, unless any agreements to the contrary have been made.
2. Unless agreed to the contrary, FMB invoices are payable within 10 days of receipt, and no discount shall be deducted for payment on the date of the invoice.
3. The acceptance of cheques and bills of exchange is at the discretion of FMB. Acceptance is always subject to clearance of the cheque or bill. Discount and collection charges and all other costs shall be borne by the other party to the contract and must be paid immediately in cash. There is no obligation for FMB to present cheques promptly, protest bills, etc. In the event of payment by cheque or bill of exchange, the value paid by the bank applies as the amount of payment, subject to the cheque or bill clearing.
4. If the other party to the contract is in arrears with a payment or if its financial circumstances deteriorate substantially, as provided by Section 321 of the German Civil Code, after conclusion of the contract, or if such deterioration only becomes apparent after conclusion of the contract, FMB may cancel the term of payment for any deliveries still outstanding under current contracts and demand payment in cash, or may refuse to make any further deliveries and, subject to giving 10 days’ notice, withdraw from the contract or demand compensation for non-fulfilment. This shall not apply to any part of a delivery that has defects justifiably notified by the other party to the contract, or if the latter provides security.
5. In the case of late payments received from the other party to the contract, interest shall be charged at a rate equivalent to the usual bank debit interest, but at least 5% above the discount rate at the time of the Deutsche Bundesbank or, from 01.01.1999, the comparable interest rate of the European Central Bank.
IX. Place of jurisdiction, application of German law
1. The contractual relations between the parties are governed by German law.
2. Where the other party to the contract is a registered merchant, the place of performance and place of jurisdiction is Faulbach.
3. The UN Convention on the International Sale of Goods does not apply.
X. General provisions
1. The FMB General Terms and Conditions apply even if, within the course of an existing commercial relationship, they are not expressly referred to in subsequent contracts.
2. If any provision of these GTC is invalid, this shall not affect the validity of the remaining provisions.
3. The invalid provision of the GTC shall be replaced by the provision that most closely approximates to the economic intentions of the invalid clause.
4. Any collateral agreements are only valid if made in writing.
Valid as of 03.08.2010