General Terms and Conditions of Sale and Delivery
General Terms and Conditions of Sale and Delivery of PHILIPP Forstwerkzeuge GmbH
1. General Information, Scope
(1) The General Terms and Conditions of Sale and Delivery (“T&C”) of PHILIPP Forst- werkzeuge GmbH (“PHILIPP Forstwerkzeuge”) for orders from customers apply exclu- sively; PHILIPP Forstwerkzeuge will not recognise any of its customers’ terms and condi- tions that conflict with or differ from the T&C unless PHILIPP Forstwerkzeuge has expressly agreed to their validity in writing. The T&C shall also apply if PHILIPP Forstwerkzeuge carries out the customer's order without reservation in full awareness of terms and condi- tions of its customers which conflict with or differ from theT&C.
(2) The T&C only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
(3) The T&C also apply to all future transactions with the customers of PHILIPP Forst- werkzeuge.
(4) All agreements made between PHILIPP Forstwerkzeuge and the customer for the purpose of executing this contract are set out in writing in this contract.
2. Offer, Offer Documents
(1) Offers made by PHILIPP Forstwerkzeuge are non-binding unless expressly marked as binding.
(2) If the customer's order qualifies as an offer under section 145 BGB, PHILIPP Forst- werkzeuge can accept the order within 2 weeks.
(3) Provided that this is reasonable for the customer, PHILIPP Forstwerkzeuge reserves the right to make changes after entering into the contract with regard to minor deviations in colour, design, weight, dimension or form of the item to be supplied or made by PHILIPP Forstwerkzeuge as well as normal trade variations of the same.
(4) The information and illustrations contained in the offers, brochures, catalogues, data sheets, documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents of PHILIPP Forstwerkzeuge, also in electronic form (dimensions and other technical data), information and illustrations are estimated ap- proximate values customary in the industry, unless they are expressly designated as bind- ing by PHILIPP Forstwerkzeuge.
(5) PHILIPP Forstwerkzeuge reserves all property rights and copyrights as well as the regis- tration of industrial property rights to the offers, illustrations, drawings, costings, information and other documents (also in electronic form) of PHILIPP Forstwerkzeuge. This applies in particular to documents (also in digital form) which are designated as "confidential" or are obviously to be treated as confidential. The customer requires the express written consent of PHILIPP Forstwerkzeuge before passing them on to third parties.
(6) Entering into the contract is carried out under the proviso that PHILIPP Forstwerkzeuge's upstream suppliers supply the correct materials in time. This shall only apply in the event that PHILIPP Forstwerkzeuge is not responsible for the non-delivery
3. Prices, Payment Terms
(1) Unless otherwise stated in the order confirmation, the prices for a delivery "ex warehouse Sinzheim" apply, excluding postage, packaging, insurance and transport; these excluded services will be invoiced separately.
(2) The statutory VAT is not included in the prices of PHILIPP Forstwerkzeuge. If it is not already mentioned in the offer or the order confirmation, VAT at the respective statutory rate will be added to all prices. It will be shown separately in the invoice on the date of invoicing.
(3) All contractually agreed prices are valid until the agreed delivery date. PHILIPP Forst- werkzeuge reserves the right to adjust its prices appropriately if, after PHILIPP Forst- werkzeuge has entered into the contract and after the agreed delivery date, cost increases occur for which PHILIPP is not responsible, in particular due to collective wage agreements or changes in material prices.
(4) Deducting a discount requires special agreement.
(5) Unless otherwise stated in the order confirmation, invoices (without deduction) are to be paid within 10 days of the invoice date. The statutory regulations concerning the conse- quences of default in payment apply.
(6) The customer is only entitled to set-off rights if its counterclaims have been legally estab- lished, are undisputed or have been recognised by PHILIPP Forstwerkzeuge. Furthermore, the customer is only entitled to exercise a right of retention where its counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the customer's opposing rights, in particular under Section 7 of these General Terms and Conditions, shall remain unaffected.
4. Provision by the Customer
(1) If, for the execution of the contract, the customer provides PHILIPP Forstwerkzeuge with plans, drawings, sample parts, materials or semi-finished products or makes the corre- sponding technical/organisational specifications available to PHILIPP Forstwerkzeuge, PHILIPP Forstwerkzeuge shall not be liable for the correctness of the dimensions, func- tional fitness and quality. The responsibility for this lies solely with the customer. PHILIPP Forstwerkzeuge reserves the right to refuse the installation of materials and semi -finished products provided if they do not meet the quality requirements of PHILIPP Forstwerkzeuge.
(2) In the event that PHILIPP Forstwerkzeuge develops or manufactures technical pro- grammes, tools, means of production, jigs and fixtures or other aids in order to perform the contract, these shall remain the property of PHILIPP Forstwerkzeuge and are not to be handed over to the customer.
(3) If materials / semi-finished products provided have been processed by PHILIPP Forst- werkzeuge, PHILIPP Forstwerkzeuge shall acquire ownership of them. They must only be surrendered to the customer for the purpose of contract fulfilment.
5. Delivery Period, delay in delivery
(1) The start of the delivery period stated by PHILIPP Forstwerkzeuge is based on the as- sumption that all technical issues have been clarified.
(2) Furthermore, PHILIPP Forstwerkzeuge's compliance with its delivery and performance ob- ligations is based on the assumption that the customer's obligations have been properly fulfilled in good time. This includes, in particular, meeting the cooperation obligations such as the provision of plans, the supplies of sample parts as well as the necessary releases and payments by the customer within the agreed deadlines. The defence of non-fulfilment of the contract remains reserved.
(3) If the delivery date is delayed due to force majeure (see section 8 clause 5), the delivery period shall be automatically extended by the duration of the corresponding delay.
(4) The delivery period shall be deemed to have been met if the deliverable has left PHILIPP Forstwerkzeuge's warehouse by the end of the delivery period.
(5) Whether or not we are in default of our delivery obligations is governed by the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall be 0.5% of the net price (order value) for each completed calendar week of delay up to a maximum of 5% of the order value of the delayed goods. We reserve the right to prove that the buyer has not incurred any damage at all or only considerably lower damage than the above lump sum.
(6) If the conditions of clause 4 are met, the risk of accidental loss or accidental deterioration of the item delivered or made by PHILIPP Forstwerkzeuge shall pass to the customer on the date on which the customer is in default of acceptance or payment.
6. Transfer of Risk, Acceptance
(1) The risk shall pass to the customer when the item to be supplied by PHILIPP Forst- werkzeuge has left the warehouse of PHILIPP Forstwerkzeuge, even where partial deliv- eries are made or PHILIPP Forstwerkzeuge has undertaken to bear the cost of other ser- vices, e.g. shipping costs or delivery and installation. Where acceptance is to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after PHILIPP Forstwerkzeuge's notification of readiness for acceptance. The customer may not refuse acceptance if a minor defect is found.
(2) If dispatch or acceptance is delayed or fails to take place due to circumstances outside the control of PHILIPP Forstwerkzeuge, the risk shall pass to the customer from the day of notification of readiness for dispatch or acceptance.
(3) Partial deliveries and partial performances are permissible where they are not unreasona- ble for the customer.
7. Liability for defects
(1) Warranty claims by the customer are based on the assumption that it has properly fulfilled its inspection and complaint obligations under sections 377, 381 HGB (German Commer- cial Code).
(2) If there is a defect in the new item supplied or made by PHILIPP Forstwerkzeuge, PHILIPP Forstwerkzeuge shall be entitled, at its discretion, to supplementary performance in the form of remedy of the defect or delivery or creation of a new item free of defects. In the event of rectification of defects or replacement delivery or creation of a new item, PHILIPP Forstwerkzeuge shall be required to bear all expenses necessary for the purpose of sup- plementary performance, in particular transport, travel, labour and material costs, where these are not increased by the fact that the new item supplied or made by PHILIPP Forst- werkzeuge has been brought to a location other than the place of performance, PHILIPP Forstwerkzeuge bearing the necessary expenses only up to the amount of the price charged to the customer for the new item originally supplied or made by PHILIPP Forst- werkzeuge.
(3) The place of supplementary performance shall be the registered office of PHILIPP Forst- werkzeuge.
(4) If the supplementary performance under section 7 clause 2 fails twice, the customer shall be entitled at its choice to withdraw from the contract or demand a reduction in price.
(5) Justified notices of defects do not affect the execution of the rest of the contract. The right to withhold payments is excluded if the value of the items complained about (calculated on the basis of the purchase price) does not exceed payments made to date.
(6) The limitation periods under section 438 (1) (3) BGB and 634a (1) (1) BGB are shortened to 1 year. The statutory provisions on the start of the limitation period, the suspension of the expiration of the limitation period, the suspension of the limitation period and the re- commencement of the limitation period remain unaffected.
8. Total liability
(1) PHILIPP Forstwerkzeuge shall be liable under the statutory provisions if the customer as- serts claims for damages based on intent or gross negligence. If PHILIPP Forstwerkzeuge is not justifiably accused of wilful or grossly negligent breach of contract, liability for dam- ages is limited to the foreseeable, typically occurring damage.
(2) PHILIPP Forstwerkzeuge shall also be liable in accordance with the statutory provisions if PHILIPP Forstwerkzeuge culpably violates a cardinal contractual obligation; however, in this case, too, in the case of simple negligence, liability for damages shall be limited to the foreseeable, typically occurring damage. A cardinal contractual obligation exists if the breach of duty relates to an obligation on the fulfilment of which the customer has relied and should reasonably have expected to be able to rely.
(3) If the customer is otherwise entitled to a compensation for damage instead of performance due to a negligent breach of duty, the liability of PHILIPP Forstwerkzeuge is limited to compensation for foreseeable, typically occurring damage.
(4) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act and in the event of fraudulent conceal- ment of a defect, assumption of a warranty or assurance of a characteristic, if a defect covered by such a warranty triggers the liability of PHILIPP Forstwerkzeuge.
(5) PHILIPP Forstwerkzeuge shall not be liable in cases of force majeure (e.g. natural disas- ters, war, civil unrest, terrorism, sabotage, strike or machine damage/disruptions of pro- duction if this event is not the fault of PHILIPP Forstwerkzeuge).
(6) Any further liability for damages than that provided for in clauses 1 to 5 are excluded - irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage under section 823 BGB (German Civil Code).
(7) The limitation of liability shall also apply if, instead of a claim for damages, the customer demands compensation for wasted expenditure instead of performance.
(8) Where PHILIPP Forstwerkzeuge's liability for damages is excluded or limited, this also ap- plies to the personal liability for damages of employees, staff, representatives and vicarious agents of PHILIPP Forstwerkzeuge.
9. Securing Retention of Title
(1) PHILIPP Forstwerkzeuge retains title to the item supplied or made by PHILIPP Forst- werkzeuge until all payments arising from the business relationship have been received. If a current account relationship exists, the retention of title refers to the recognised balance. In the event of breach of contract by the customer, in particular default in payment, PHILIPP Forstwerkzeuge shall be entitled to repossess the item supplied or made by PHILIPP For- stwerkzeuge. Repossession by PHILIPP Forstwerkzeuge of the item supplied or made by PHILIPP Forstwerkzeuge constitutes withdrawal from the contract. After repossession, PHILIPP Forstwerkzeuge shall be entitled to resell the item supplied or made by PHILIPP Forstwerkzeuge; the proceeds of such a sale shall be set off against the customer's liabil- ities - less reasonable reselling costs.
(2) The customer is obliged to treat the item supplied or made by PHILIPP Forstwerkzeuge with care; in particular, it is obliged to insure it adequately at replacement value at the customer’s own expense against fire, water and theft.
(3) In the event of seizures or other interventions by third parties, the customer must notify PHILIPP Forstwerkzeuge immediately in writing so that PHILIPP Forstwerkzeuge can bring an action under section 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse PHILIPP Forstwerkzeuge for the costs of an action in and out of court under section 771 ZPO, the customer shall be liable for the loss incurred by PHILIPP For- stwerkzeuge.
(4) The customer is entitled to resell the item supplied or made by PHILIPP Forstwerkzeuge in the ordinary course of business; however, the customer hereby assigns to PHILIPP For- stwerkzeuge all claims in the amount of the final invoice amount (including VAT) of the claim of PHILIPP Forstwerkzeuge accruing to the customer from the resale against its cus- tomers or third parties, irrespective of whether the item supplied or made by PHILIPP For- stwerkzeuge has been resold without or after processing. The customer remains author- ised to collect this claim even after the assignme nt. The right of PHILIPP Forstwerkzeuge to collect the claim itself remains unaffected. However, PHILIPP Forstwerkzeuge under- takes not to collect the claim as long as the customer fulfils its payment obligations from the collected proceeds, does not fall into arrears and, in particular, has not filed for insol- vency or suspended payments. If this is the case, however, PHILIPP Forstwerkzeuge may demand that the customer informs PHILIPP Forstwerkzeuge of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or restructuring of the item supplied or made by PHILIPP Forstwerkzeuge by the customer shall always be carried out for PHILIPP Forstwerkzeuge. If the item sup- plied or made by PHILIPP Forstwerkzeuge is processed with other objects not belonging to PHILIPP Forstwerkzeuge, PHILIPP Forstwerkzeuge shall acquire co-ownership of the new item in the ratio of the value of the item supplied or made by PHILIPP Forstwerkzeuge (final invoice amount including VAT) to the other processed objects at the time of pro- cessing. Apart from that, the same applies to the item resulting from the processing as to the item supplied or made under reservation by PHILIPP Forstwerkzeuge.
(6) If the item supplied or made by PHILIPP Forstwerkzeuge is inseparably mixed with other objects not belonging to PHILIPP Forstwerkzeuge, PHILIPP Forstwerkzeuge shall acquire co-ownership of the new item in the ratio of the value of the item supplied or made by PHILIPP Forstwerkzeuge (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, the parties agree that the customer shall transfer co- ownership to PHILIPP Forstwerkzeuge on a pro rata basis. The customer shall store the sole ownership or co-ownership thus created for PHILIPP Forstwerkzeuge.
(7) PHILIPP Forstwerkzeuge undertakes to release the securities to which PHILIPP Forst- werkzeuge is entitled at the customer's request if the realisable value of the securities of PHILIPP Forstwerkzeuge exceeds the claims to be secured by more than 10%; PHILIPP Forstwerkzeuge shall be responsible for selecting the securities to be released.
10. Inventions and Know-how
PHILIPP Forstwerkzeuge is exclusively entitled to secret, high-quality and advanced knowledge (know-how) existing at PHILIPP Forstwerkzeuge or acquired by PHILIPP Forst- werkzeuge on the occasion of the fulfilment of the contractual obligations as well as inven- tions made by PHILIPP Forstwerkzeuge and any industrial property rights already existing or to be applied for in this respect – subject to a separate agreement or the use or applica- tion to which the customer is entitled according to the spirit and purpose of the contractual relationship.
11. Place of Jurisdiction, Place of Performance
(1) If the customer is a merchant within the meaning of the HGB, the place of business of PHILIPP Forstwerkzeuge is the place of jurisdiction; however, PHILIPP Forstwerkzeuge is also entitled to sue the customer at its place of business. The above agreement on the place of jurisdiction also applies to customers domiciled abroad, irrespective of their ca- pacity as a merchant within the meaning of the HGB.
(2) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) Unless otherwise stated in the order confirmation, the place of performance is PHILIPP Forstwerkzeuge's place of business.
As at February 2020