1.1 All deliveries and related services of fos4X GmbH (hereinafter referred to as “fos4X” or “we”) are concluded exclusively on the basis of these General Terms of Sale (hereinafter “Terms of Sale”) and are subject to these conditions. We hereby object to the validity of terms and conditions of the customer; also as far as they regulate objects not mentioned in our terms of sale, unless we have expressly agreed to their validity in writing. If in the terms and conditions of the customer items are regulated, about which the following terms of sale are silent, then only the applicable dispositive right applies and not a condition deviating from this dispositive right. Our terms of sale also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating conditions of the customer.
1.2 Our terms of sale apply only to entrepreneurs, legal entities of public law or special funds under public law in the sense of § 310 Abs. 1 BGB.
1.3 Our terms of sale also apply to all future transactions with the customer in the context of an ongoing business relationship.
1.4 The fulfilment of the contract is subject to review and fulfilment (including any required approval) of the state export and import regulations. For this the customer has to provide the prescribed documents at our request.
2. Conclusion of contract, scope of delivery
2.1 Our offers are non-binding. With its order, the customer makes an offer in the legal sense. A contract is only concluded by our written order confirmation. Our written order confirmation determines the scope of services to be provided by us.
2.2 All agreements made between the customer and us for the purpose of executing this contract are laid down in writing in this contract. Our sales employees are not generally authorised to make ancillary agreements or assurances that go beyond the content of the written contract.
2.3 We reserve all property rights and copyrights to illustrations, drawings, calculations and other documents; Such documents may not be disclosed to third parties without the prior written consent of fos4X. This also applies to such documents, which are not expressly designated as “confidential”.
2.4 The customer undertakes to comply with the applicable national, European and international anti-terrorism provisions as well as the national and European export control regulations. Furthermore, the customer undertakes to comply with US re-export regulations as well as sanctions regarding the goods or technical data to which the US regulations apply. If, due to the aforementioned legal basis, an approval by the respective competent authorities should be required, the customer undertakes to apply for this independently and at its own expense and to inform fos4X thereof.
3. Prices – Terms of payment
3.1 Unless otherwise stated in the order confirmation, our prices shall apply ex manufacturing at fos4X, Munich, Germany, including carton packaging but excluding sales tax. Transport costs and the costs for special packaging will be invoiced separately. The customer shall bear all public charges, such as any customs duties and, if applicable, the corresponding copyright levy in accordance with the Copyright Act.
3.2 Our prices are the respective list prices published by us, valid at the time of the order confirmation by fos4X, or the prices stipulated in a valid, individual offer.
3.3 Unless otherwise stated in the order confirmation, the purchase price is due net (without deduction) within 14 days from the invoice date. The legal rules regarding the consequences of late payment apply.
3.4 We reserve the right to increase our prices reasonably to the extent necessary to cover such costs incurred after conclusion of the contract due to salary / wage increases of our employees (e.g. collective bargaining) or due to an increase in material costs. Upon request, we will disclose these increased costs to the customer. Conversely, we will pass on cost reductions to the customer.
3.5 For partial deliveries (Item 4.7) we are entitled to submit partial invoices.
3.6 If instalment payment has been agreed, the total amount owed will be due for payment as soon as the customer is substantially in arrears with the payment of an instalment.
3.7 The customer shall only be entitled to offset rights if its counterclaims have been legally established, are undisputed or acknowledged by us. The customer is only entitled to exercise a right of retention or refusal of performance, provided that the aforementioned prerequisites regarding its counterclaims are fulfilled and, in addition, that its counterclaim is based on the same contractual relationship.
3.8 A payment is deemed to be made as soon as we can dispose of the amount. Until this time, we reserve ownership of the goods (see paragraph 5).
3.9 If we are obliged to advance performance and after the conclusion of the contract, we become aware of circumstances in which our claim for payment is jeopardised by the customer’s inability to perform, then we can choose either security within a reasonable period or payment in instalments against delivery desire. If the customer does not comply with this request, we are entitled, subject to further legal rights, to withdraw from the contract.
3.10 fos4X is entitled to assign claims against the customer from deliveries or services to third parties (e.g. a bank or a factorer) to the extend permitted by law. The customer authorizes the transfer of the data necessary for the collection of the claims to the third party.
3.11 If fos4X becomes aware of circumstances after conclusion of the contract which justify reasonable doubts about the solvency or creditworthiness of the customer and due to which there is a threat to the payment claim of fos4X from the contract, fos4X is entitled to execute outstanding deliveries and/or services only if the customer makes an advance payment or security deposit and the customer has settled any other due claims from the business relationship which are in an economic connection with the contract. Furthermore, fos4X is entitled to withdraw from the contract in whole or in part and to claim damages if the customer does not provide the above services after an appropriate period of time. The assertion of further rights by fos4X remains unaffected.
4. Delivery, delivery time and transfer of risk
4.1 Deliveries are made EXW, fos4X manufacturing plant, Thalkirchner Str. 210, 81371 Munich, Germany, Incoterms 2010.
4.2 The risk of loss and damage to the goods shall pass to the customer as soon as the goods (if necessary, cleared for export) have been loaded onto the means of transport provided. This also applies if partial deliveries are made or if we have taken on other services (e.g. shipping or installation).
4.3 Unless otherwise agreed, the delivery time specified by us is always non-binding. Even if delivery times have been declared as binding, fos4X is only liable for delays in delivery if the customer has complied with the obligation to cooperate in the fulfilment of the order in due time, in particular with the necessary clarification of all technical and other questions. If shipment has been agreed, delivery periods and delivery dates refer to the time of transfer to the freight forwarder, carrier or other third party commissioned with the transport.
4.4 We are not liable for delivery delays caused by force majeure or unforeseeable circumstances at the time of the conclusion of the contract for which we are not responsible and are beyond our control, such as natural disasters disruptions, strikes, legitimate lockouts, raw material sourcing difficulties or official orders. An agreed delivery deadline is extended by the duration of the disability. If the hindrance lasts longer than one month, the customer shall be entitled, after expiry of a reasonable period of grace, to fos4X, to withdraw from the contract for the remaining part of the contract after a further month after the occurrence of the delaying event. Services already provided by the customer are to be reimbursed in this case. Claims for damages are excluded.
4.5 Should we be in default of delivery, the customer can only withdraw from the contract after fruitless expiry of a reasonable grace period set by it.
4.6 If the customer is in default of acceptance or if it violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred, including any additional expenses. For the storage and preservation of the goods, we can charge a flat rate of 0.5% of the invoice amount per month, but a maximum of 6% of the invoice amount, or optionally, the actual costs incurred. The risk of accidental loss or accidental deterioration of the purchased item is transferred to the customer at the time at which it is in default of acceptance.
4.7 Partial deliveries and services are permitted provided that no apparent interest of the customer is in conflict.
5. Retention of title
5.1 We reserve the ownership of the delivered items until the receipt of all payments from the business relationship with the customer. In case of breach of contract by the customer, in particular in case of late payment after a reasonable deadline, we are entitled to take back the delivered goods. This does not apply insofar as the customer has already applied for insolvency proceedings or insolvency proceedings have been opened on the basis of which an immediate return of the delivered goods by us is not permitted.
5.2 The withdrawal from the contract does not exclude the assertion of claims for damages against the customer. We are entitled to the exploitation of the delivered goods after their recovery. The proceeds of sale shall be credited against the liabilities of the customer minus reasonable exploitation costs. The exploitation regulations of the Insolvency Code (InsO) remain unaffected.
5.3 The customer is obliged to treat the delivered goods with care; in particular, it is obliged to insure them at its own cost against fire, water and theft damage at replacement value. If maintenance or inspection work is required, the customer must carry it out at its own expense in due time.
5.4 In the case of seizure or other interventions by third parties, the customer must inform us immediately in writing. The customer is liable for the judicial and extra-judicial costs of a possibly necessary suit (third-party objection suit).
5.5 The customer is entitled to resell the delivered goods in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim arising from the resale against its customers or third parties, irrespective of whether the delivered item was resold without or after processing.
5.6 The customer remains entitled to collect this claim even after the assignment. However, we are entitled to collect the claim ourselves if the customer no longer meets its payment obligations from the proceeds received, is in default of payment or has filed an application to open insolvency proceedings or has ceased payments. In these cases, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over all related documents and notifies the debtor / debtors (third parties) of the assignment.
5.7 The processing or transformation of the delivered item by the customer is always carried out for us. If the delivered item is processed with other items not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the delivered item (final invoice amount including sales tax) to the other processed items at the time of processing. Incidentally, the same applies to the thing resulting from processing as to the goods delivered under reserve.
5.8 The customer also assigns to us the claims for securing our claims against it, which accrue by the connection of the delivered thing with a piece of land against a third party.
5.9 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of our securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released is our responsibility.
5.10 If the delivery item is located abroad, the following applies:
5.10.1 If the delivery item has been delivered before payment of all amounts owed by the customer under the contract, it shall remain our property until full payment, insofar as this is permitted under the law in which the delivery item is located. If this does not permit the retention of title, but allows us to reserve other rights to the delivery item, we can exercise all rights of this kind.
5.10.2 The customer is obliged to participate in our measures which we will take to protect our property right or the right that replaces this property right to the delivery item.
6. Quality, warranty, obligation to examine
6.1 The goods shall have the agreed quality upon transfer of risk. This is based exclusively on the written agreement on the characteristics, features and performance characteristics of the goods.
6.2 Information provided in sales catalogues, price lists and other informational documents, as well as other descriptions of the goods, under no circumstances constitute a guarantee of any particular quality of the goods or other services; Such a special quality guarantee must be expressly provided by us in writing.
6.3 We reserve the right to make minor changes to the goods, including minor changes in the colour, shape, dimensions and material of the goods, unless otherwise agreed, and the changes do not affect the usability of the goods for the contractually intended purpose. This also applies to deviations in the scope of commercial custom and deviations, which are due to legal regulations or technical developments, as well as for the replacement of components by equivalent parts.
6.4 All safety precautions, which become necessary because of special conditions in the place of business of the customer, are in principle to be made by the customer at own costs. This also applies if the installation or assembly and commissioning are carried out by us.
6.5 The goods delivered by us are, unless otherwise agreed in individual cases, not suitable or intended for use in particularly security-relevant areas (e.g. nuclear power plants and critical medical areas).
6.6 The warranty rights (claims for defects) of the customer presuppose that the customer inspects the delivered goods immediately upon receipt and reports to us any detected defects immediately after the inspection reports or hidden defects immediately after their discovery under specification of the defect (§ 377 HGB). The aforementioned complaint must be made in writing and contain a detailed description of the defects.
6.7 We reserve the right, at our discretion, to repair, reissue or provide new parts or services for items that have a material defect within the warranty period according to section 6.10, free of charge, provided that the cause of the defect already existed at the time of transfer of risk. Goods that are replaced by us must be returned to us at our request.
6.8 If the customer falsely reports the existence of a defect for reasons for which we are not responsible, the customer must reimburse us for the reasonable expenses incurred for the establishment and / or rectification of the alleged defect.
6.9 Claims of the customer for the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as these expenses increase as a result of subsequent shipment of the delivered item to a place other than the agreed place of delivery, unless it is a shipment presupposed by the contract. We are entitled to charge the customer with such additional costs without prior notice.
6.10 The warranty period is 24 months from the transfer of risk. This does not apply to claims for defects due to defects in goods used for a building (§ 438 para. 1 no. 2 BGB). In this case, the statutory limitation period applies. The statutory limitation periods continue to apply to damages that were not caused by a defect of the goods.
6.11 No. 8 of these terms of sale applies to all claims for damages based on defects in the goods.
7. Intellectual property rights
7.1 fos4X is subject to this no. 7 that the delivered goods are free from industrial property rights or copyrights of third parties.
7.2 Each contracting party shall promptly notify the other contracting party in writing if claims are brought regarding breach of such rights.
7.3 In the event that the contractual use of the delivered goods violates a commercial property right or copyright of a third party, we will modify or exchange the goods in such a way that no rights of third parties are violated any more, but the goods continue to fulfil the contractually agreed functions, or grant the customer the right of use by concluding a license agreement. If we fail to do so within a reasonable period of time, the customer is entitled to withdraw from the contract or to reasonably reduce the purchase price. Any claims for damages of the customer are subject to the restrictions of no. 8 of these terms of sale.
7.4 In the case of infringements by products of other manufacturers supplied by fos4X, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. Claims against fos4X in these cases only exist in accordance with this no. 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or, for example, due to insolvency, is hopeless.
7.5 The rights according to this no. 7 shall not exist insofar as the infringement of property rights of third parties is due to the fact that the customer has made an alteration to the goods not authorised or not approved by the respective contract or if it uses the goods contrary to our instructions or if it combines the goods with programs or data processing systems not approved by us.
8. Liability and damages
8.1 Subject to the provisions of no. 8.5 of these terms of sale, our statutory liability for damages shall be limited as follows:
8.1.1 For the slightly negligent violation of essential contractual obligations, we are only liable for the amount limited to the typically foreseeable damage at the conclusion of the contract.
8.1.2 We are not liable for the slightly negligent violation of non-essential contractual obligations.
8.1.3 Substantial contractual obligations are to be understood as those obligations to be fulfilled by us under the contract which are of decisive importance for the achievement of the purpose of the contract, including the obligation to deliver in a timely manner, as well as our advisory, protective and due diligence obligations, which enable the customer to use the delivered goods in accordance with the contract and to protect it, its employees, its property and third parties from damage.
8.2 The customer is obliged to take appropriate measures for damage prevention and damage reduction. It has to report damages and losses for which we have to pay to us immediately and have them recorded by us
8.3 Insofar as we provide consultancy services on the occasion of a contract or in connection therewith, which are not provided under a contractual (incidental) obligation, this will be done to the best of our knowledge and ability, but – subject to a separate deviating agreement – always without obligation. Our verbal and written information and statements on the suitability and use of our products do not exempt the customer from the obligation to convince itself by its own examination of the suitability of the products offered for the intended use.
8.4 We shall only be liable for damages or futile expenses caused by advice that was not provided in the context of a contractual (incidental) obligation, over which no separate written contract was concluded and which was not separately remunerated, in the case of intent or gross negligence. Unless we are liable for wilful misconduct or gross negligence on the part of our officers or agents, our liability is limited to foreseeable, typically occurring damage.
8.5 The above exclusions of liability and limitations of liability shall not apply if compulsory liability applies under the law, in particular under the Product Liability Act, for liability due to the assumption of a specific guarantee, in cases of fraudulently concealed defects and liability for culpably caused damage to health or body or loss of life.
8.6 Insofar as our liability for damages is excluded or limited, this also applies to the personal liability of our representatives, employees and vicarious agents.
8.7 Insofar as the preceding claims are not subject to the statute of limitations due to a defect of the goods, an exclusion period of 24 months from knowledge of the damage and the person of the injuring party shall apply. This does not apply in the case of physical injury or damage to health, in the case of intentional or grossly negligent damage and fraudulently concealed defects, in terms of liability for guaranteed characteristics and in terms of liability under the Product Liability Act. In that regard, the statutory limitation periods apply.
9. Special regulations for software
9.1 Insofar as the object of the delivery is software that has been manufactured by third parties, the scope of the rights and powers granted to the customer shall be determined by the license conditions of this third party, which are attached to the delivery and transmitted in advance upon request. This applies in particular to software such as operating systems and comparable components of systems to be supplied. We will inform the customer in a suitable manner in advance if software from a third party is the object of delivery, e.g. by naming the third-party manufacturer in the order documents.
9.2 Insofar as the subject of our deliveries is software developed by us (be it as a component in devices or as an independent delivery item), the following regulations apply:
9.2.1 The transfer of the software for use against performance of a one-time payment constitutes a legal purchase.
9.2.2 We grant the customer a simple, non-exclusive, transferable and indefinite right to use the software we develop on a single computer system. The use of the software in the context of the ASP (Application Service Providing), in the network operation, in the data centre operation and in the way of outsourcings is inadmissible, unless we have expressly approved this in writing before.
9.2.3 A transfer of the right of use to a third party requires that the software on the system of the customer completely deleted and the acquirer of the software provided by us is provided with the carrier, including the full documentation, the customer does not retain a copy of the software, and the customer no longer uses the software itself.
9.2.4 The software is installed by the customer.
9.2.5 The customer is not permitted: a) to pass on the software or the associated documents (user documentation) to third parties or otherwise make it available to third parties (with the exception of the complete transmission according to sections 9.2 to 9.5, b) c) to modify works derived from the software or to reproduce the written material (user documentation); or d) to translate or modify or create works derived therefrom without our prior written consent. The above regulations do not apply insofar as the user is expressly entitled to individual acts by law.
9.2.6 The contracting parties agree that a digital user manual also meets the requirements of a proper user manual. fos4X is not obliged to provide the source code underlying the software product.
9.2.7 All rights to the software created by us and the associated documents and to any changes we have made remain with us. The software and the related documents are to be used and kept in a manner that they are adequately secured against non-contractual use, duplication and disclosure.
9.2.8 Making a copy for backup purposes is permitted. In this case, a reference to our copyrights is to be attached to the backup copy or incorporated therein. If there is a copyright notice and / or a registration number in the software, these may not be removed.
9.2.9 Warranty claims of the customer for software supplied by us shall only exist if the supplied software does not substantially fulfil the agreed or contractually assumed main functions, or if it does not comply with the recognised rules of technology, or if it has errors that affect the value or suitability for the usual or contractually presumed use more than marginally or do so completely.
9.2.10 Software supplied by us is not fault tolerant unless expressly stated to the contrary and was not designed or manufactured for use in a hazardous environment where trouble-free operation is required, such as in nuclear facilities, aircraft navigation or communication systems, in air traffic control, in direct life support systems, or in weapons systems where failure of the technology would directly result in death, personal injury or serious damage to property or the environment.
9.2.11 The correction of errors in the software takes place, as far as there is no defect, which limits the usability of the software considerably and this is to be expected of the customer, exclusively by the fact that new program versions are made available in the context of the constant product maintenance. The customer is obliged to support us in the scope of the reasonable in the determination of program errors by sending error logs and other necessary information at our request. With the delivery of a new program version, the warranty period does not start again.
9.2.12 Even after expiry of the warranty period, the customer is not entitled to rectify or have the software rectified without having previously given fos4X the opportunity to carry out the error rectification itself within a reasonable period of time.
9.2.13 For the rest, with regard to software, the general provisions of the contract and these terms of sale apply, in particular with regard to the warranty and our liability.
10. Special arrangements for on-site services
10.1 The customer is obliged to certify the daily working hours of its employees on site. Our employee is instructed to provide the customer with a copy of this working time certificate. If the certificate is not issued, the information provided by our employee will be used as a basis for calculating the working time. We can request a written confirmation of the proper execution of the work. The order should be placed by the customer in such a way that they are completed before weekends (preferably on Fridays, if necessary Saturdays) or public holidays. If the work extends beyond a weekend or over one or more public holidays, and if no work is possible or required on these days, our staff is entitled to a weekend home. The costs are borne by the customer. The same applies to consecutive holidays or holidays that border on a weekend.
10.2 Our staff is instructed to strictly adhere to the maximum working time limits laid down in the applicable working time regulations (in Germany, in particular the Working Time Act, ArbZG) as well as the specified rest periods and break periods.
10.3 If exceeding the permissible working time under certain conditions is permitted in exceptional cases, and the customer uses the working time of our employees beyond the generally permissible extent, it must inform us immediately and of the existence of the conditions for a permissible excess and its duration in accordance with the requirements of the applicable regulations. Work on Sundays and public holidays can only be carried out in accordance with the applicable regulations. Work on Sundays and public holidays can only be carried out in exceptional cases provided for in the current regulations. Even in such a case, the customer has to inform us immediately and issue a corresponding certificate to our staff.
10.4 The dispatch of our employees takes place after a written or telex (telegram, fax, e-mail) order.
10.5 The customer must take the necessary measures for the protection of our personnel according to the general accident prevention regulations and those applicable in the particular case.
10.6 Additional expenses and waiting times, which are not the contractor’s responsibility and are not caused by weather conditions, will be charged at the hourly rate. This also includes additional expenses and waiting times caused by delayed or incorrect information on the part of the client. If the contractor is not responsible for the interruption of the work, the additional time for travelling to the site will be charged.
10.7 The client undertakes to ensure that the contractor’s employees have timely access to the place of service provision and that the execution of the work is scheduled in the contractor’s business organization. This includes in particular that all technical and safety systems required for the activities are tested, operational and approved. The client shall provide the contractor with all necessary information in a timely manner. This includes in particular information about the type and manufacturer of the fall arrest system, hub height, additions to the tower, postal code of the location, detailed location plans, the telephone numbers of the remote monitoring and contact persons, the respectively required emergency numbers and safety regulations. The client shall inform the contractor about special existing site and system-related risks and hazards. The client shall provide the contractor with all necessary work instructions and is responsible for the timely transmission of all changes and additions.
11.1 The contracting parties undertake to keep all non-public commercial and technical details, other trade and / or business secrets, as well as other confidential information of the other contracting party, which they become aware of in the course of their business relations, confidential and not to use them for anything other than the contractual purpose. The obligation to confidentiality does not apply to the extent that information (i) is publicly known at the time of disclosure or becomes so at a later date, and this fact is not attributable to misconduct of the receiving party; (ii) lawfully, and without any breach of any obligation to secrecy, has come to the knowledge of the receiving party by any means other than by the disclosing party or any of its affiliates; (iii) has been evidently developed independently by the receiving party, or (iv) must be made accessible to authorities as required by law, or (v) must be disclosed by order of a court or supervisory authority.
11.2 The contracting parties shall also oblige their employees, subcontractors, etc. accordingly.
11.3 The contracting parties may only advertise their business relationship with the prior written consent of the other party.
12. Insurance contract claims
12.1 Insofar as we have direct claims against the insurer of the customer as co-insured with regard to the delivered goods, the customer hereby already gives us its consent to assert these claims in its own name.
13. Obligations under the Electrical and Electronic Equipment Act (ElektroG)
13.1 The customer assumes the obligation to properly dispose of the delivered goods after the end of use at its own expense in accordance with the statutory provisions. The customer exempts us from the obligations according to § 10 para. 2 ElektroG (take back obligation of the manufacturer) and related claims of third parties.
13.2 The customer shall contractually oblige commercial third parties to whom it delivers the delivered goods to duly dispose of them after the end of use at their expense in accordance with the statutory provisions and to impose a corresponding further obligation on their customers in the case of renewed transfer. On the other hand, if the customer fails to oblige third parties to whom it delivers the delivered goods accordingly, the customer must take back the delivered goods after the end of use at its expense and dispose of them properly in accordance with the statutory provisions.
13.3 The customer may in no case pass on the delivered goods or parts thereof to private third parties due to their classification as exclusively commercially used in accordance with ElektroG.
13.4 The customer assures that it fully fulfils its obligations under the ElektroG.
14. Jurisdiction, place of fulfilment, applicable law
14.1 The place of jurisdiction for all disputes arising from the contractual relationship is Munich (Germany). However, we reserve the right to take legal action against the customer at any other place of jurisdiction.
14.2 Unless otherwise stated in our order confirmation, our place of business is the place of performance and fulfilment.
14.3 The legal relationship of the contracting parties is exclusively governed by the law of the Federal Republic of Germany, excluding the conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.1 The customer may not, in whole or in part, assign its rights under this agreement without our prior written consent or otherwise transfer these or its obligations, insofar as this does not disproportionately affect the interests of the customer.
15.2 With regard to all written documents – if available – only the German text is binding.
15.3 Should individual provisions of the agreement or of these conditions of sale be or become invalid, this shall not affect the validity of the other provisions. An invalid or unclear provision shall be replaced by a provision or interpreted in such a way as to come as close as possible the economic purpose intended with it.