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General Delivery Terms

Overview

§ 1
General Terms / Applicability

  1. Our Delivery Terms are the only applicable ones. They apply to all our offers, deliveries and services. If the customer had no opportunity to read them in the process of concluding the contract, they will still apply if the customer knew or should have known them from previous business dealings.
  2. We do not recognize the customer’s contradicting terms and conditions which deviate from our Delivery Terms. If we perform our delivery or services, knowing of such terms and conditions of the customer, we nonetheless do not recognize the terms and conditions of the customer, even if our Delivery Terms are not in conflict with them.
  3. There have been no additional oral agreements. All future amendments to this contract must be done in writing; this includes the waiver of this formal requirement. Our field staff are not authorized to waive the text form requirement orally, and changes will only become effective once they have been confirmed by the management or by our sales department in text form.
  4. Our terms and conditions only apply towards business customers within the meaning of § 14 BGB, not towards consumers within the meaning of § 13 BGB.

§ 2
Offer – Conclusion of Contract

  1. The presentation of our offer on the website is merely an invitation to the customer to make an offer. Our offers are non-binding, unless stated otherwise.
  2. If the customer’s order is an offer to enter into a contract, we have 14 days to accept this offer.
  3. Deviating from § 312 g para. 1 no. 1 through 3 BGB, the customer is not entitled to the provision of technical means to correct the order, separate information about the technical steps to the conclusion of the contract, information about the storage of the contract, the available languages and codes of conduct as well as the immediate confirmation of the order.
  4. We retain the right to all property rights and copyrights for depictions, drawings, calculations and other documents. This applies in particular to such written documents that have been marked as „confidential“. Before passing them to third parties, the customer requires our explicit written consent.

§ 3
Prices – Payment Terms

  1. Unless otherwise agreed, all prices are ex stock or ex factory, including packaging. Installation and other costs for works always have to be paid separately based on the agreed prices as per our offer, or alternatively based on the appropriate prices that are paid locally.
  2. Our employees are only allowed to collect payments if it has been previously confirmed by our management in text form to the customer.
  3. The customer’s payment is due immediately. The customer is advised that it will be in default of payment 30 days after receipt of the invoice at the latest, but usually, the customer will be in default earlier than that based on general rules about default. We may avail ourselves of the remedies set out in § 288 BGB, in particular payment of default interest per paragraph 2 and the fixed compensation per paragraph 5.
  4. The customer may only set-off with counterclaims that have been finally determined by a court, which are not disputed or which have been recognized by us or if the customer’s claim is based on the customer’s rights due to faulty or non-performance under the same contractual relationship.
  5. We may exercise the right of retention with regard to all claims arising from the business relationship with the customer.

§ 4
Delivery – Delivery Schedule

  1. The commencement of our delivery schedule requires that all technical questions have been resolved and that the customer’s obligations have been properly met in due time. We retain the right to object for non-fulfillment of the contract.
  2. Force majeure or interruptions of our or our sub-contractor’s business, e.g. due to riots, strike, lock-out which temporarily prevent us from supplying the purchased item by the agreed date or within an agreed timeframe without our fault, will extend our stated delivery times or delivery deadlines by the duration of the interruption of services caused thereby. If such a disruption will lead to an extension of more than two months, the customer may cancel the contract.
  3. If the subject of the contract is not a specific item, we must deliver an item of average kind and quality from the agreed class. The obligation to provide such an item is limited by the stock in our warehouse or to items from our own production. If we are not producing  the selected goods or if we haven’t received them ourselves, self-delivery remains an option. The same applies accordingly to the purchase of specific items of which we don’t yet have ownership. We are not liable for non-delivery by our supplier if we are not culpable. The same applies in case of our supplier’s delay of delivery if we are responsible.
  4. During the delivery time, it will be possible that the design or the form change, that the colour tone deviates, as well as changes to the scope of the delivery on the part of the supplier, as long as the purchased item won’t be changed substantially and the customer cannot reasonably be expected to accept the change.

§ 5
Delayed Delivery

  1. We are liable for delays based on the statutory provisions
    • as far as the underlying purchase contract is a deal with a drop dead date within the meaning of § 376 HGB;
    • if the customer no longer maintains an interest in the continued performance of the contract due to delayed delivery for which we are responsible;
    • if the delayed delivery is due to an intentional or grossly negligent breach of contract for which we are responsible, which includes culpability on the part of our agents or vicarious agents,
    • if our delay has led to loss of life, limb or health of the customer.
  2. We are liable in accordance with the statutory provisions, but limited to foreseeable and typical losses,
    • if the delayed delivery is due to an intentional breach of contract for which we are responsible;
    • if the delayed delivery is due to the slightly negligent breach of an essential contractual duty for which we are responsible.
  3. If our delayed delivery is only due to the non-culpable breach of a non-essential contractual duty, the customer’s claim is limited to 20 % of the delivery value.

§ 6
Jeopardy of Performance / Bankruptcy

  1. If we realize after entering into the contract that the (further) performance of the contract is endangered by the customer’s non-performance, we may refuse to provide services under this contract until the corresponding payment has been made by the customer or security has been deposited.
  2. We may withdraw from the contract or terminate it without notice if the customer does not fulfill his/her part of the contract despite a reminder with a reasonable deadline in exchange of the contractor’s service or does not post any security.
  3. If the customer is insolvent or overindebted or if a bankruptcy or similar proceeding is requested or initiated for his/her assets, we may withdraw from the contract or terminate it without further notice.
  4. If we terminate the contract or withdraw from it pursuant to paragraph 2 or 3, we may request the customer to pay damages in lieu of performance or compensation for frustrated expenses.

§ 7
Acceptance

  1. The customer has to carry out the actions required for us to perform the contract, in particular to accept the goods. If the customer fails to do so and cannot prove lack of culpability, the customer must compensate us for the resulting losses, in particular for additional expenses. We retain the right to make further claims.

  2. If the customer is in delay with the acceptance of the contractual object for more than 14 days since receiving the notification of availability or the proper first delivery from us, we can notify the customer in writing and grant an extended deadline of 14 days.

    After the extended deadline expires without success, we may withdraw from the delivery contract in writing or demand damages in lieu of performance. An extended deadline is not necessary if the customer seriously and finally denies acceptance or if the customer obviously wouldn’t be able to pay even if an extended deadline would be granted. In that case, we are entitled to demand 10 % of the agreed delivery price for lost profits. But the customer retains the right to prove that we did not suffer any losses or no losses in that scope. We also retain the right to prove higher losses and claim them accordingly.

§ 8
Shipping – Passing of Risk

  1. Unless the order confirmation states otherwise and we have agreed to delivery and installation by us, delivery has been agreed as „ex stock“ or „ex factory“, i.e.

    EXW Melle, Germany (Incoterms 2020).

  2. If we order shipping services, this is merely an additional service as part of a sales shipment. The place of performance for the delivery, Troisdorf, remains unaffected by that. In case of a cross-border delivery, only the customer is responsible for the import, the transaction thereof and the costs, in particular the import permit and the import duties.
  3. We do not take back freight packaging or other packaging, except pallets.
  4. We only buy transport insurance if this has been contractually agreed. The related costs shall be borne by the customer.
  5. We have the right to make partial deliveries, as far as reasonable.

§ 9
General Rules in case of Defects of the Delivered Goods

  1. In the case of the delivery of new goods, we are liable for defects per the following terms. For used goods, the warranty is ruled out, unless we have guaranteed the absence of the defect; our liability for injuries to life, limb or health do however remain in place in case the customer is entitled to damages.
  2. All of the customer’s warranty rights are based on the condition of the customer having complied with the obligation to examine the goods and to notify us of defects in accordance with § 377 HGB.
  3. Advertisement statements made by third parties are only binding for us if they have been approved by the manufacturer or by us.
  4. If the customer does not comply with our or the manufacturer’s operational or maintenance instructions, makes changes to the products, changes parts or uses consumables which do not comply with the original specifications, the warranty will be cancelled, unless the customer can refute the substantiated claim that one of these factors has led to the defect.

§ 10
Supplementary Performance

  1. If the item is defective, at first the customer only has the right to to ask us for supplementary performance, unless supplementary performance cannot be reasonably expected from us or unless we have declined it seriously and finally.
  2. Supplementary performance may be a replacement of the item or repairing it by us or a third party instructed by us. In either case, we have to bear all expenses incurred in the effort to repair the defect, especially expenses for transport, driving, labour and materials.
  3. We may deny the type of supplementary performance selected by the customer if the respective other type of supplementary performance would cause us at least 15% lower costs. The remaining value of the item to be returned in case of a replacement will have to be credited.
  4. We may make the supplementary performance conditional upon an appropriate part of the delivery price having been paid. We also have the right to deny the supplementary performance altogether if the incurred costs would be higher than the delivery price. If we are culpable for the defect or if we have guaranteed the absence of the defect, we can only deny supplementary performance altogether if its costs would exceed the delivery price by a third. The remaining value of the item to be returned in case of a replacement will have to be credited.
  5. Any supplementary performance by us will be ex gratia, unless we have explicitly recognized the defect. Our technicians or mechanics are not authorized to recognize defects.
  6. If a specific item is the object of this contract, we have the right to repair it if a repair by us or by a third party instructed by us is possible. We also have the right to deliver a different than the stipulated item if it is equally suitable for the customer’s contractual purposes as the stipulated item.

§ 11
Further Rights in Case of Defects

  1. If the supplementary performance pursuant to § 440 BGB fails, the customer may decide to exercise the rights under § 437 no. 2 BGB (withdrawal or price reduction) or under § 437 no. 3 BGB (damages) or the relevant clauses for contracts for work, depending on the customer’s discretion and the statutory requirements, as well as considering §§ 10, 11, 12 and 13 of the present General Delivery Terms.
  2. In the case of immaterial defects of the item, the customer is not entitled to demand damages pursuant to § 280 paragraph 1 BGB. The right to reduce the delivery price is also excluded in cases of immaterial defects.

§ 12
Limitation Period of Warranty Rights

  1. The customer’s rights for defects of the item are subject to a limitation period of one year from the delivery of the item. The same applies to the customer’s rights to damages or damages in lieu of performance, also for all losses to other legally protected interests of the customer caused by the defect, unless they are injuries to life, limb or health of the customer or unless we are liable for the defect due to premeditation or gross negligence.
  2. If rights are the subject of this contract, the limitation period of the customer’s warranty rights begins with the parties’ agreement about the transfer of the rights to the customer.

§ 13
Withdrawal and Damages in lieu of Performance because of Breach of Duty

  1. If the customer sets a deadline for supplementary performance, it must be at least 14 days, unless there are exceptional reasons for urgency. The customer has to prove the exceptional reasons.
  2. Also, after a reasonable extended deadline has expired without results, the customer only has the right to withdraw from the contract or to demand damages in lieu of performance if the customer has threatened these consequences when issuing the extended deadline or with reasonable advance warning.
  3. If the customer repeatedly grants a deadline for supplementary performance, the customer may not withdraw from the contract or demand damages in lieu of performance before the deadline has expired.

§ 14
Liability

  1. We are not liable for breaches of duty committed with light negligence, unless they concern essential contractual duties or we have provided a guarantee for the performance of that duty or for the outcome not attained due to the breach of duty. This also applies to such actions by our officers and vicarious agents.
  2. This exclusion of liability does not apply to loss of life, limb or health or to claims under the Product Liability Act.
  3. We have a corporate insurance and a product liability insurance. As far as this insurance provides cover, the exclusion of liability in paragraph 1 of this clause will not apply, but the entitlement to damages will be limited in each specific case to an overall maximum of € 1,500,000.–.
  4. Any claim for damages by the customer based on grossly negligent breach of duty or a grossly negligent tortious act on our part is limited to the damage that we could have foreseen.
  5. Paragraphs 1 through 4 of this clause apply appropriately torts committed by our employees and vicarious agents.

§ 15
Retention of Title

  1. We retain title in the delivered goods until we receive all payments under the delivery contract. In the case of breach of contract by the customer, in particular in case of late payment, and after an extended deadline has expired without result (unless the law doesn’t require it), we have the right to retake the purchased goods. Reclaiming the delivered goods by us constitutes a withdrawal from the contract. After reclaiming the purchased goods, we are allowed to monetize them, the proceeds will be deducted from the customer’s liabilities – minus reasonable expenses for the sale.
  2. The customer must handle the delivered goods with care; in particular, the customer must insure them at their original value against losses from fire, water or theft and at the customer’s expense. If maintenance and inspection works are necessary, the customer has to have these carried out in due time at the customer’s expense.
  3. In the case of seizures or other interference by third parties, the customer must notify us in writing and without delay, so we can bring legal action in accordance with § 771 ZPO. As far as the third party is unable to compensate us for the complete legal fees of a lawsuit in accordance with § 771 ZPO, the customer is liable for our loss.
  4. When the customer requests, we undertake to release the collateral when the value of our collateral which could be monetized exceeds the amount of the claims to be secured by more than 10 %; the choice between different items of collateral to be released is up to us.

§ 16
Repair and Installation

  1. As far as the contract covers installation, repairs or other works to be carried out by us, the present Delivery Terms apply accordingly. In addition, the rules of this clause apply.
  2. To secure our claims against the customer arising from orders within the meaning of paragraph 1 and in addition to the statutory lien, the customer establishes a contractual lien in the items handed to us for the purposes of repair or other processing. This contractual lien also secures our other claims against the customer that are not directly based on the repair order. The customer has to let its current address be known to us as long as the lien continues to exist. Otherwise, the customer cannot enforce any rights if we sell the item in the case of a – justified – sale of the lien and have sent the announcement of the impending sale of the lien only to the last address known to us and if a new address was not easily investigatable through a public-records search.

§ 17
Data Protection

  1. Die Darstellung unserer Angebote auf der Webseite ist nur eine Einladung an den Auftraggeber, ein Angebot abzugeben. Unsere Angebote sind freibleibend, sofern nicht ein anderes bestimmt ist.
  2. Ist die Bestellung des Bestellers ein Angebot zum Vertragsschluß, so können wir dieses innerhalb von 14 Tagen annehmen.
  3. Abweichend von § 312 g Abs. 1 Nr. 1 bis 3 BGB hat der Besteller bei einem Vertragsschluss online keinen Anspruch auf die Bereitstellung technischer Mittel zur Korrektur seiner Bestellung, gesonderte Informationen zu den technischen Schritten zum Vertragsschluss, Informationen über die Speicherung des Vertrages, die zur Verfügung stehenden Sprachen und Verhaltenskodizes sowie eine unverzügliche Bestätigung seiner Bestellung.
  4. An Abbildungen, Zeichnungen, Kalkulationen und sonstigen Unterlagen behalten wir uns sämtliche Eigentums‑ und Urheberrechte vor. Dies gilt insbesondere für solche schriftlichen Unterlagen, die als „vertraulich“ bezeichnet sind. Vor ihrer Weitergabe an Dritte bedarf der Besteller unserer ausdrücklichen schriftlichen Zustimmung.

§ 18
Mediation

  1. In the case of a dispute based on the business relationship between us and the customer, the parties shall strive to find an amicable solution. If no agreement can be reached, they agree to use mediation to solve their differences prior to filing a legal action. The option of filing for an injunction remains unaffected. Mere failure to pay without providing any reasons does not count as a dispute within the meaning of this clause.
  2. If one party requests a proceeding of mediation from the other party, both parties shall agree on a mediator within eight days. If no agreement is reached within that time, an attorney who works as a mediator – preferably one offering online mediation – shall be appointed by the president or one of his/her deputies of the Bar Association with jurisdiction for the supplier’s business address upon the request by either party and with binding effect on the other party. This shall also be the venue for the mediation in case the Bar Association does not propose an online mediator. The language of the mediation proceeding shall be German, unless all participants agree on a different language.
  3. Judicial redress (or an alternatively agreed arbitration proceeding, if applicable) is only allowed once the mediation has failed because (a) both parties declare the mediation to be over, (b) one party refuses further negotiations after the first mediation session, (c) the mediator declares that the mediation has failed or (d) no agreement can be reached within three months from the first mediation session, unless both parties agree to extend the deadline.
  4. The costs of an unsuccessful mediation shall be shared between both parties internally at equal parts and shall be paid to the mediator in equal parts. Notwithstanding this clause regarding the relationship towards the mediator, both parties retain the right to try to get these costs and the costs of legal counsel for the mediation proceeding awarded in a subsequent judicial proceeding; the costs will then be awarded by the court. If there is an agreement, it shall include a ruling on costs.

§ 19
Jurisdiction – Place of Performance

  1. If the customer is a business person or entity, our registered company seat is the venue of jurisdiction, although we may also bring legal action against the customer at the seat of the customer’s residence or business.
  2. In the case of cross-border deliveries and if the supplier is a business within the meaning of the German Commerce Code, exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Bremen in the Federal Republic of Germany. We do however have the right to sue the supplier before any other court that has jurisdiction based on the European Convention on Jurisdiction and the Enforcement of Judgements  (Brussels-I Directive) or other statutes or international agreements.
  3. Unless the order confirmation says otherwise, the place of our business is the place of performance.
  4. All legal relations between us and the customer under this contract shall be governed by the law at our registered place of business (German law) as it would apply to the legal relations between domestic parties, excluding foreign law. The UN Agreement on the International Sale of Goods (CISG) shall not apply.
FRIGOQUIP GmbH
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