Terms of Service
I. Conclusion of the contract
1. All deliveries are subject to our following terms of delivery and payment.
The scope of our deliveries and services shall be determined by our written order confirmation.
2. The terms and conditions shall also apply to future purchase contracts and to future cases of technical advice provided by FLT, without the customer having to be separately made aware of this in each individual case.
3. General terms and conditions of the customer do not apply, even if FLT has not expressly objected to them. Individual agreements take precedence over these terms and conditions.
II. Execution of deliveries, delivery periods and dates
1. Our delivery obligation is subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our own responsibility.
2. Information on delivery times is only approximate, delivery periods begin on the date of our order confirmation and are only valid on condition that all details of the order are clarified in due time and that all obligations of the buyer are fulfilled in due time, e.g., provision of all official certificates, obtaining letters of credit and guarantees or advance payments.
3. The date of dispatch ex works or ex warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been complied with upon notification of readiness for dispatch, even if the goods cannot be dispatched on time through no fault of our own.
Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period. This shall also apply if such events occur during a delay in delivery that has already occurred. Force majeure shall be deemed to include monetary, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible (e.g. fire, breakdown of machinery, shortage of raw materials or energy), obstruction of traffic routes, delays in import/customs clearance, strikes as well as all other circumstances which make deliveries significantly more difficult or impossible without being our fault. It is irrelevant whether these circumstances arise at our own facilities or that of one of our sub-supplier’s. If, as a result of the aforementioned events, the execution of the contract becomes unreasonable for one of the contracting parties, in particular if the execution of the material parts of the contract is delayed by more than 6 months, either party may withdraw from the contract; the withdrawal is only valid in written form.
4. The delivery period begins after clarification of all technical and business details of the order, but not before receipt of an agreed advance payment. The delivery period shall be extended appropriately in the event of unforeseen events beyond our control, e.g. operational disruptions, delays in the delivery of essential raw materials, insofar as such events have an influence on the completion or delivery of the performance object.
5. If dispatch is delayed at the customer’s request or through the customer’s fault, the customer shall be charged for the costs of storage, starting one month after notification of readiness for dispatch, but at least 0,5% of the invoice amount for each month in the case of storage in our warehouse or at our sub-suppliers. However, we have the right to dispose otherwise of the delivery item after granting a reasonable deadline and an unsatisfactory expiry thereof to supply the customer within a reasonably extended deadline.
Disposable packaging such as wooden crates, cardboard boxes etc. will not be charged for and will not be taken back. Reusable and mesh box pallets, containers and cassettes remain our property and are to be returned to the place of delivery without delay and at no cost to us.
IV. Prices, terms of payment, collection authority
1. Prices are ex works or ex warehouse plus freight, packaging, insurance and VAT.
2. Unless otherwise agreed, the prices and conditions of our price list valid at the time of conclusion of the contract shall apply.
3. If, later than four weeks after conclusion of the contract, external costs or charges which were included by us in the calculation of the agreed price change or if they arise for the first time, we shall be entitled to adjust the price accordingly.
4. Cheques and bills of exchange are only accepted on account of payment. However, bills of exchange are accepted only by prior arrangement. The expenses shall be borne by the customer.
5. Unless otherwise agreed or stated in our invoices, the purchase price is due immediately after delivery without discount and is to be paid in such a way that we can dispose of the amount on the due date. The costs of the payment transaction shall be borne by the customer.
6. Our customer shall only be entitled to a right of retention and a right of set-off to the extent that their counterclaims are undisputed or have been legally established.
7. If the payment deadline is exceeded or in the event of default, we shall charge interest at 9% points above the base rate of the European Central Bank, unless higher interest rates have been agreed. We reserve the right to claim further damage caused by default.
8. The customer shall be in default at the latest 14 days after the due date and receipt of the invoice / payment plan.
9. We are entitled to set off against all claims and/or a current account balance to which the customer is entitled against us, irrespective of the legal grounds, even if payment by bill of exchange or other services has been agreed on as a conditional payment. If the mutual claims are due at different times, our claims shall become due at the latest when our liability becomes due and shall be settled on the value date.
10. If it becomes apparent after the conclusion of the contract that our claim for payment is jeopardised by our customer’s inability to pay, we shall be entitled to the rights under § 321 BGB (German Civil Code) (plea of uncertainty). We shall then also be entitled to declare all claims from the current business relationship with the customer which are not statute-barred to be due immediately, despite any agreement to the contrary or statutorily determined due date. The plea of uncertainty extends to all further outstanding deliveries and services from the business relationship with our customer.
11. An agreed discount always relates only to the invoice value excluding freight and always presupposes the prior full settlement of all due liabilities of the customer at the time of the discount.
12. We reserve the right to set minimum orders for certain types of our programme. Special productions outside our respectively valid delivery assortment are to be accepted by the customer in an appropriate excess or minimum quantity.
13. The retention of payments from other delivery contracts or offsetting due to any counterclaims disputed by us is not permitted.
V. Risk assumption
1. The risk shall pass to the customer at the latest, also in the case of deliveries carriage paid, FOB or CIF, as soon as the delivery items leave the delivery works or our warehouse. This also applies to partial deliveries.
2. Unless otherwise agreed, we shall be entitled to determine the route and means of dispatch as well as the forwarding agent and carrier.
3. If, through no fault of our own, transport by the intended route or to the intended place at the intended time becomes impossible or substantially more difficult, we shall be entitled, taking into account the interests of our customer, to deliver by another route or to another place; the additional costs incurred shall be borne by the customer. The customer shall be given the opportunity to make a statement beforehand.
4. We are entitled to make partial deliveries to a reasonable extent. We are entitled to reasonably exceed and fall short of the agreed delivery quantities.
5. If dispatch is delayed as a result of circumstances for which we are not responsible, the risk shall pass to the customer from the time of notification that the goods are ready for dispatch or collection.
VI. Retention of title
1. We shall retain title to the delivered goods until our purchase price claims and all claims to which we are entitled from the existing business relationship with the customer have been satisfied in full.
2. The handling and processing of the delivered goods by the customer shall be carried out for us and shall not constitute an acquisition of ownership pursuant to § 950 BGB. If the customer processes goods subject to retention of title with third-party goods, we shall acquire co-ownership of the new items in the ratio of the invoice value of the processed goods subject to retention of title to the other goods at the time of processing. The new item shall be deemed to be “reserved goods” within the meaning of these terms and conditions.
3. The customer already now assigns to us the claims to which he is entitled from the resale or from any other legal ground concerning the reserved goods in the amount of the value of the reserved goods. If the customer sells the reserved goods together with other goods, they shall assign to us their own purchase price claim from the resale up to the value of the reserved goods. The value of the reserved goods within the meaning of this provision is our invoice value plus a security surcharge of 20%.
4. The customer shall remain entitled to collect the transferred claims as long as they duly fulfil their payment obligations from the delivery transaction and, in particular, do not fall into arrears or other payment difficulties.
The customer may resell the goods subject to retention of title and the items resulting from their treatment or processing and their combination only in the ordinary course of business and only against payment or subject to retention of title.
5. The customer may neither pledge the goods subject to retention of title nor assign them by way of security, nor make any other dispositions which are likely to jeopardise our rights. In the event of seizures, attachments or other dispositions by third parties, we must be notified immediately by the customer by registered letter with the documents required for intervention.
Any costs of interventions shall be borne by the customer.
6. If the value of the securities granted to us exceeds our claims secured in accordance with clause 1 by more than 20%, we shall be obliged to return or release them at our discretion at the customer’s request.
7. The enforcement of the retention of title as well as the seizure by us shall not be deemed a withdrawal from the contract.
VII. Liability for material defects
1. Material defects in the goods must be reported to us in writing without delay, at the latest seven days after delivery. Material defects which cannot be discovered within this period even after careful inspection must be reported in writing immediately after their discovery, at the latest before the expiry of the agreed or statutory limitation period, with immediate cessation of any processing.
In the event of a delayed notification of defects or an insignificant reduction in the value or suitability of the goods, our liability for material defects shall be excluded; if goods have already been resold, processed or redesigned, the customer shall only be entitled to the right to reduce the purchase price.
2. After performance of an agreed acceptance of the goods by the customer, the notification of material defects that were detectable during the agreed type of reminder is excluded.
3. In the event of a justified notice of defect within the time limit, we may, at our discretion, remedy the defect or deliver a defect-free item (subsequent performance). In the event of failure or refusal of subsequent performance, the buyer may reduce the purchase price or withdraw from the contract after granting a reasonable deadline and an unsatisfactory expiry thereof. If the defect is not significant, they are only entitled to a reduction in price.
4. If the customer does not immediately give us the opportunity to make ourselves sure of the material defect, if necessary, also by involving external experts, or, in particular, if they do not immediately provide the rejected goods or samples thereof upon request, all rights due to the material defect shall lapse.
5. We shall only bear expenses in connection with subsequent performance if they are reasonable in the individual case, in particular in relation to the purchase price of the goods, but in no case more than 150% of the value of the goods. We shall not bear the costs in connection with the installation and removal of the defective item, or the costs incurred by the customer for the self-repair of a defect without the statutory requirements for this being met. We shall not assume any expenses incurred by the fact that the goods sold have been taken to a place other than the buyer’s registered office or branch unless this would be in accordance with the contractual use of the defective item.
6. The customer’s rights of withdrawal according to § 428 BGB remain unaffected.
7. We do not give any warranty for a specific purpose or a specific suitability of the goods, unless otherwise expressly agreed in writing. In all other respects, the risk of use and application lies exclusively with the customer.
VIII. General limitation of liability
1. We shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo and tort, in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract. This restriction also applies to the actions of our executive employees and vicarious agents.
2. The limitations pursuant to section 13.1 shall not apply in the event of culpable breach of material contractual obligations, insofar as the achievement of the purpose of the contract is jeopardised and in cases of mandatory liability under the Product Liability Act and in the event of damage to life, body and health and also not if and insofar as we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof shall remain unaffected.
3. Unless otherwise agreed, contractual claims which arise for our customer against us on the occasion of or in connection with the order or the delivery of the goods shall become barred by statute one year after delivery of the goods, unless they involve compensation for physical injury or damage to health or typical, foreseeable damage or are based on intent or gross negligence. This shall not affect our liability for intentional and grossly negligent breaches of duty or the limitation of statutory withdrawal claims. In cases of subsequent performance, the limitation period shall not start to run again.
1. Our customer may only withdraw from the contract if we have allowed a reasonable period of time set for us for the rectification or improvement or replacement delivery due to a recognised and proven defect for which we are responsible within the meaning of the terms and conditions of delivery and after the unsatisfactory expire of this period on our part. Withdrawal can only be declared if our customer’s interest in the delivery is substantially impaired or destroyed by the defect.
Goods can only be returned by prior arrangement with a 15% restocking deduction.
2. In the event of unforeseen events, insofar as they significantly change the economic significance or the content of the performance or have a significant effect on our operations or those of our suppliers, we shall be entitled to withdraw from the contract insofar as it has not yet been executed. The claim for compensation is excluded if our customer is also entitled to the right of return.
VIII. The right of pre-emption
The customer grants us the right of pre-emption to the stocks of our products in the event of liquidation, insolvency, closure of their business and in the event that they can no longer process the goods purchased from us due to discontinuation of production or design changes.
IX. Special conditions for technical advice
1. These terms and conditions apply in addition to the advice given to the customer by FLT on the selection, dimensioning and application of the products distributed by FLT (“technical advice”).
2. FLT provides the technical advice in principle on the basis of technical and legal regulations applicable at the registered office of FLT. Unless otherwise stated or agreed, this shall also apply insofar as the technical advice concerns a project or object outside the scope of these provisions.
3. It is the customer’s responsibility to inform FLT of all project- or object-related marginal conditions required for the technical consultation. The customer shall, in particular personally, and, to the extent necessary, also through their employees, cooperate in the project as follows:
3.1 All questions from FLT advisors about the factual and legal circumstances within the customer company and/or customer group will be answered as completely, accurately and promptly as possible; same applies to questions to FLT advisors about the factual and legal circumstances. The FLT advisors will only ask questions the answers to which may be of importance for the project. The customer is also obliged to be informed, without being asked and as early as possible, about such circumstances that may be of importance for the project.
3.2 Any interim results and interim reports delivered by FLT will be checked by the customer without delay as to whether the information contained therein about the customer or their company is correct; any necessary corrections and also requests for changes will be communicated to FLT in writing without delay.
4. FLT is not obliged to check the project or object-related marginal conditions communicated, for example, for conformity with the actual conditions on site, legal requirements or plausibility. This also applies insofar as FLT has inspected a property, has attended or assisted in the determination of project or property-related marginal conditions or has inspected planning documents.
5. Object– or project-related marginal conditions shall be deemed to form the basis of the technical advice of FLT only insofar as this is expressly confirmed by FLT; this, for example, by reproduction of or reference to documents made available by FLT in the course of the technical advice (e.g. design proposals, design sketches, technical opinions, calculations or static analyses) or separate written confirmation.
6. As far as the technical advice of FLT is based on object– or project-related marginal conditions, it is the sole responsibility of the customer to ensure and verify that these correspond to the actual conditions and correspond to the application specifically intended by the customer. It is noted that even minor deviations of the actual conditions from the object-related or project-related marginal conditions on which FLT based the technical advice (e.g. dynamic loads instead of static loads) or minor deviations in the execution (e.g. deviations in material, construction or assembly) may require a technical re-evaluation and recalculation. In such cases, it is the sole responsibility of the customer to ensure, at their own expense and responsibility, a renewed complete inspection and approval by suitable experts.
7. As far as changed or supplemented object– or project-related marginal conditions require additional technical advice by FLT, FLT is entitled to refuse this additional technical advice or – in case of paid technical advice – to charge for it.
8. The technical advice refers exclusively to the products distributed by FLT and is not transferable to products of other manufacturers. All technical solutions communicated in the course of technical consulting (e.g. in the form of construction proposals, design sketches, calculations, technical opinions or static analyses) are always object- or project-related and not transferable.
9. Unless expressly stated or agreed otherwise, performance deadlines and dates for technical advice are in principle non-binding.
10. If and to the extent that any errors in advice and/or any defects are based on the fact that the customer has not fulfilled, not completely fulfilled or not fulfilled in time any obligations to cooperate, the liability of FLT is excluded. In the event of a dispute, the customer shall provide proof of the complete and timely fulfilment of all obligations to cooperate.
11. Insofar as FLT exceptionally provides the technical advice free of charge, technical solution approaches communicated by FLT (e.g. in the form of design proposals, draft sketches, technical opinions, calculations or static analyses) shall be deemed to be fundamentally non-binding and shall only serve as a first orientation aid with regard to technical feasibility and preliminary material cost estimation. It is incumbent on the customer to have such technical solution approaches communicated by FLT free of charge checked and approved by suitable specialists at their own expense and responsibility.
X. General clauses
1. All legal relationships between us and our customer shall be governed by German non-unified substantive law in addition to these terms and conditions. The provisions of the Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall not apply.
2. The place of jurisdiction for all disputes arising from the contractual relationship shall be Viersen. However, we shall also be entitled to bring an action at the customer’s principal place of business.
3. Contractual rights, insofar as they are not monetary claims, may only be transferred by the customer to third parties with our consent.
4. The remainder of the contract shall continue to be legally binding even if individual points of its
terms and conditions are legally ineffective.
5. If the property rights of third parties are infringed in the case of deliveries according to drawings or other information provided by the customer, the customer shall indemnify us against all claims in this respect.