General terms and conditions

4. Delivery

TDelivery dates and deadlines are always approximate and are not binding on FPS, unless a delivery date has been expressly agreed in writing as binding.
Delivery dates and delivery periods shall be extended appropriately if the customer delays or fails to provide the necessary or agreed cooperation, as well as in cases of force majeure and all other obstacles for which FPS is not responsible and which have a significant impact on delivery or performance, in particular strikes and lockouts at FPS, its suppliers or its sub-suppliers.
If the aforementioned circumstances make delivery or performance impossible or unreasonable, FPS shall be released from its delivery obligation.
A delay on the part of FPS shall only entitle the customer to withdraw from the order for which FPS is in default if it has been threatened with a grace period of at least 3 weeks. Further claims, in particular for damages, are excluded.

In the event of unforeseeable delivery obstacles, e.g. due to force majeure and events such as fire, strikes, boycotts, etc., the customer shall not be entitled to withdraw from the contract or assert claims for this reason. In such cases, the delivery period shall be extended appropriately. Unless otherwise agreed, changes to orders shall result in the cancellation of agreed dates and deadlines. If, after conclusion of the contract, the customer requests changes or additions to the order which make it impossible to meet the delivery date, the delivery date shall be extended in accordance with the changes and additions by a period of time reasonable for the production of these changes and additions.

FPS shall have a right of retention for further deliveries until all previous deliveries have been paid for.
FPS shall be entitled to make partial deliveries and to invoice these separately.

5. Orders

Orders oblige the customer to accept and pay for the goods. If a customer refuses to accept the ordered goods, this entitles FPS to claim compensation amounting to 50% of the value of the goods, or up to 75% in special cases, if FPS waives acceptance.
The customer is entitled to prove that no damage or only minor damage has been incurred. FPS has the right to prove higher or further damage.

Binding nature of the machine order
The machine you have ordered will be built to your order. The necessary materials will be procured on the basis of your order. The scope of the order becomes binding upon receipt of the order confirmation. There is no right to change the scope of the order. Changes to the scope of the order after receipt of the order confirmation are therefore always made on a goodwill basis, are subject to a charge and may delay the delivery date of the machine.

6. Packaging

Packaging material will be invoiced separately at standard market conditions and will not be taken back unless there is an obligation to do so under the Packaging Ordinance. FPS will take back special crate packaging if it is returned to the factory carriage paid and in perfect condition. In this case, FPS will refund 2/3 of the invoiced amount.

7. Shipment

Shipping is at the expense and risk of the customer. Shipping costs are calculated on a time and material basis. Unless otherwise agreed with the customer regarding the type of shipment, the choice of shipping route and method is at the discretion of FPS.

At the customer’s request, the delivery item will be insured for transport.
In this case, the costs of transport insurance shall be borne by the customer.
Upon handover of the delivery item to the railway, the forwarding agent, the carrier or other shipping agents, or upon notification of readiness for shipment, but no later than upon leaving the factory or distribution warehouse, the risk shall pass to the customer, even if FPS has taken over the delivery.
Shipping is always carried out on behalf of the customer. The customer is obliged to accept the delivery item even if it only exhibits insignificant deviations from the agreed quality or an insignificant impairment of use.

If shipment is delayed at the customer’s request, the customer may be charged for the costs incurred for storage.
FPS will only take back goods ordered by the customer and not required in cases of express written consent.
The customer shall bear the transport costs for the return delivery.
FPS reserves the right to charge inspection and restocking fees. These amount to 10% per item value, up to a maximum of £250. Return delivery of replacement parts shall be carried out free of charge for FPS.
Only items in proper or saleable condition can be returned. Custom-made products or special orders cannot be returned. After returning the items, the customer will receive a credit note for the value of the goods minus the restocking/inspection fee.
This will not be paid out in cash, but will only be offset against future purchases or orders.
In the case of delivery with installation and commissioning by FPS, the risk is transferred to the customer on the day of acceptance at the customer’s premises or, if a trial run has been agreed, after the trial run has been completed without fault.

8. Parameter sets, settings, factory settings

FPS resets goods delivered to the customer to their factory settings before inspection.
When the customer receives the goods back, any settings/parameter sets made by the customer to the goods will no longer be present.
The customer is obliged to check the goods, in particular their settings/parameter sets, to ensure that they are correctly set for the customer’s intended use.
If the customer fails to fulfil this obligation, FPS shall not be liable.
If and to the extent that FPS is requested by the customer to change settings/parameter sets before shipping the goods to the customer, FPS shall not be liable for any damage to the customer’s property resulting from incorrect settings and parameter sets.

9. Prices

Unless otherwise agreed, prices for deliveries and services are ex works, excluding insurance, in euros plus the applicable statutory taxes. Unless otherwise agreed, services shall be invoiced on a time and material basis at FPS’s applicable hourly rates. Travel time shall be considered working time and shall be remunerated accordingly by the customer. Travel expenses, hotel costs or other expenses shall be charged to the customer against receipt, unless otherwise specified.
Costs for packaging, shipping, transport and transport insurance shall be invoiced separately. Unless fixed prices have been agreed, the FPS price list shall be decisive for the invoicing of individual deliveries. Prices are subject to change at any time and as often as required.
If the price changes after the order has been placed, the customer has the right to be notified of this and to withdraw from the order.

10. Payment conditions

FPS invoices are due for payment within 14 days of receipt by the customer, without deduction, in cash or by transfer to the FPS business account free of charge.
Discounts are only granted by FPS after written confirmation. Payments are only deemed to have been made on the day on which FPS can dispose of the invoice amount without loss.
Machines and accessories are generally delivered after an order-related down payment of 30% of the gross order amount. The remaining payment is made after delivery and acceptance. The claim is due immediately upon receipt of the invoice without deduction. Discounts are only granted by FPS after written confirmation. Payment must be made in cash or by transfer to the business account free of charge.
FPS is entitled to offset payments against older claims first.
If the customer is in default of payment, FPS is entitled to charge interest at a rate of 6 percentage points above the base rate as compensation for the delay. Further damages for delay are not excluded.

Invoices and reminders addressed to the customer shall be deemed to have been received by the customer no later than the
third working day after posting or on the same day if sent by email, unless the customer can prove that they were received later.
If the customer is obliged to make advance payment to FPS, FPS shall not be in default with its performance as long as the customer fails to make payment.
If, after conclusion of the contract, it becomes apparent that the customer cannot provide sufficient guarantee of their solvency, or that the fulfilment of the contract by the customer is at risk, FPS shall be entitled to refuse delivery and performance and to set the customer a reasonable deadline within which they must pay for the delivery and performance or provide security.
If the customer refuses or the deadline expires without success, FPS shall be entitled to withdraw from the contract and claim damages.

11. Offsetting and right of retention

The customer may only offset legally established or recognised counterclaims. A right of retention may only be exercised if the counterclaim is based on the same contractual relationship. The customer is not entitled to a right of retention due to partial performance in accordance with Section 320 II of the German Civil Code (BGB).

12. Lump-sum damages

If the customer is in default of acceptance or seriously and definitively refuses to perform, they shall be obliged to pay 35% of the price to FPS as compensation. The customer shall be entitled to prove that no damage or only minor damage has been incurred. FPS shall be entitled to prove higher or further damage.

13. Delivery, installation and assembly

To ensure smooth delivery and installation, the customer will be informed in good time prior to delivery of all necessary requirements (required floor space and passage width, requirements for the installation site, need for a forklift truck for unloading, etc.).
The customer must ensure that the specified requirements are fully met prior to delivery.

14. Obligations to cooperate

The customer shall ensure that all cooperation necessary for the provision of the agreed service is provided by them in a timely manner and free of charge to FPS. They shall participate in testing and acceptance and grant FPS access during normal working hours. The customer shall appoint a responsible contact person for all matters relating to the respective contract.

15. Delay in delivery and impossibility

In the event of a delay in delivery, withdrawal instead of performance also requires that the customer has previously set a deadline in writing for the performance of the contractually owed service, with a threat of rejection.
The deadline shall be at least 25% of the agreed or specified delivery period, but at least 3 weeks.
After this period has expired, the customer is obliged, upon request by FPS, to declare whether they insist on delivery or withdraw from the contract. The customer is not entitled to reject the delivery or withdraw from the contract instead of performance if they do not make such a declaration within a reasonable period set by FPS.
In the event of impossibility or delay in the performance of FPS’s obligations, the customer may only withdraw from the contract if FPS is responsible for the breach of duty.
The customer may not withdraw before the performance is due or in the event of only a minor breach of duty by FPS.

Withdrawal is excluded if the customer is solely or predominantly responsible for the circumstances that would entitle them to withdraw, or if circumstances beyond FPS’s control arise during the customer’s default of acceptance.
FPS retains ownership of the goods until all claims arising from an ongoing business relationship have been settled in full.

The retention of title extends to a share calculated on the basis of the value of the respective goods subject to retention of title, including items created by processing, combining, mixing or installing the goods subject to retention of title (‘extended retention of title’) as well as claims acquired by the customer against third parties due to resold goods subject to retention of title
(‘extended retention of title’).
The customer is obliged to treat the goods subject to retention of title with care, to insure them adequately against fire, water and theft at their own expense, to carry out maintenance and inspection work on the goods subject to retention of title in good time at their own expense, and not to transfer ownership of them as security or to pledge them without the consent of FPS. The customer is obliged to notify FPS immediately of any access to the goods, for example in the event of seizure, damage or destruction, or a change of ownership, stating the exact addresses.
FPS is entitled to withdraw from the contract and demand the return of the goods in the event of breach of contract by the customer, in particular in the event of default in payment or breach of the above obligations. In case of doubt, the demand for the return of the goods shall not be deemed a withdrawal from the contract. In the event of resale of the goods in the ordinary course of business, the customer hereby assigns to FPS all claims in the amount of the invoice amount accruing to him from the resale to a third party. FPS accepts the assignment. After the assignment, the customer is authorised to collect the claim.
FPS reserves the right to collect the claim itself as soon as the entrepreneur fails to meet their payment obligations properly and defaults on payment.
The customer is obliged to indemnify FPS against all costs incurred in securing/enforcing its rights.
The customer is obliged to expressly inform third parties of the retention of title.
The customer grants FPS a contractual contractor’s lien on the goods held by FPS in accordance with Sections 1204 et seq. of the German Civil Code (BGB).
The customer assigns to FPS, as security for its claims, any compensation for damage from any existing electronics or other insurance as a precautionary measure. FPS accepts the assignment. FPS is not obliged to make priority use of the insurance benefits.

16. Limitation of liability

The liability of FPS and its representatives and vicarious agents for injury to life, limb or health, for breach of a material contractual obligation and under the Product Liability Act, or if FPS has fraudulently concealed a defect, expressly assumed a guarantee or intentionally caused damage, is unlimited.

Subject to the above-stated liability of FPS, its liability in all cases of negligence, breaches of secondary obligations, lack of economic success, consequential damage and damage resulting from third-party claims against the customer is limited to the amount corresponding to the sum insured under the product liability or liability insurance taken out by FPS, otherwise to the foreseeable damage typical for this type of contract.
FPS shall not be liable for any loss of profit incurred by the customer.
This limitation of liability shall also apply in favour of all employees, organs and vicarious agents of FPS.
The limitation period for all liability claims in accordance with the above shall be one year from the date of performance by FPS, unless FPS is guilty of intent or gross negligence. In such cases, the statutory limitation period shall apply.

17. Warranty

FPS warrants that the deliveries and services comply with the contractual agreements. Unless otherwise agreed, it is warranted that the use specified in the contract is essentially possible and that the delivered goods are of a quality that is customary for goods of the same type.
Only the manufacturer’s product description shall be deemed to have been agreed as the quality of the goods. Public statements, promotions or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.
The customer bears the risk of the suitability of the delivery items for their intended use and their compatibility with other components or systems. The condition at the time of transfer of risk is decisive for the condition in accordance with the contract.
In particular, FPS is not liable for malfunctions and/or damage caused by unsuitable or improper use or operation, incorrect assembly or commissioning by the customer or third parties, lack of compatibility with other systems or modules, normal wear and tear, incorrect or negligent handling, or for the consequences of improper modifications or repair work carried out by the customer or third parties without the consent of FPS. The customer is responsible for data backup.
After proper commissioning, wear parts such as fuses, batteries, rechargeable batteries, lamps and operating materials are also excluded from the warranty.

Obvious defects must be reported in writing immediately, at the latest within two weeks of receipt of the delivery item, provided that these are deviations or externally visible defects. Non-obvious defects must be reported by the customer in writing immediately, at the latest seven days after their discovery. If deviations or defects are not reported within the specified periods, any claims for defects against FPS are excluded.
Timely dispatch shall suffice to meet the deadline.

The customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notification of defects.
The warranty period for new parts is 12 months.
The warranty period for ‘exchange parts’ is 6 months.
Special agreement: 24-month warranty on machines.
The warranty for the machine begins after delivery.
Any damage to the machine that can be proven to have been caused by improper use without completed commissioning is not covered by the warranty. A prerequisite for the warranty claim is proof of maintenance carried out in accordance with the maintenance and service provisions of the operating instructions for the individual machines. In addition, all inspections must be carried out at the specified intervals by the manufacturer or by personnel authorised by the manufacturer.

The warranty shall lapse if the customer has made changes to the contractual performance without the written consent of FPS, unless the customer can prove that the defect is not due to the change.
If, during an attempt to remedy the defect or at a later date, it transpires that there is no defect or that the defect falls within the customer’s area of responsibility, the customer shall be obliged to bear the costs of the inspection and remedy by FPS in accordance with the current generally applicable remuneration rates as specified in the price list. If a defect or deviation has been reported in good time, the customer shall be entitled, at FPS’s discretion, to subsequent performance by repair or replacement. The necessary expenses for this, such as labour, transport and material costs, shall be borne by FPS, provided that these are necessary to remedy the defect and are not increased by the fact that the delivery item has been taken to a location other than the place of delivery, unless this corresponds to its intended use.

The customer shall, after consultation, provide the necessary time and opportunity to carry out repairs or replacement deliveries.
The customer is obliged to provide a precise and comprehensive description of all defects or malfunctions in writing and to support FPS in analysing the faults and remedying the defects.

If the repair ultimately fails or if FPS refuses to repair or replace the item, the customer is entitled to assert their statutory claims in this case.
If the repair or replacement attempt involves several machines/items, this only applies to the machine or component affected by the faulty repair.

If FPS is not provided with a proper error message from the customer or one that adequately describes the causes of the error, FPS may carry out error diagnoses using the diagnostic tools usually available in service vehicles and, with due care, put the machine into operation for diagnostic test runs, unless the customer expressly objects to this procedure in writing.
The customer is expressly advised that even if diagnostic measures are carried out properly and with due care at the customer’s premises, further components of the machine may be damaged by diagnostic runs to locate faults. This can only be avoided if the machine is delivered to FPS and checked there using stationary diagnostic equipment. If the customer wishes to exclude the risk of consequential damage during diagnostic operations, they must instruct FPS accordingly before the repair work begins. Otherwise, any further damage caused by the diagnosis and its repair shall be borne by the customer. Cost estimates shall only be prepared by FPS if this has been agreed in writing with the customer.
Cost estimates prepared by FPS for the customer are subject to a fee.
The amount of the fee is based on the working time spent by FPS and the hourly rates according to the currently valid price list.

18. Export, export control and sanctions regulations

1. The customer undertakes to comply with all applicable national, European and international export control, sanction and embargo regulations. This applies in particular to regulations of the European Union, the Federal Republic of Germany and, where applicable, comparable third countries, insofar as these are applicable.
2. The customer may not directly or indirectly export, deliver or resell the delivered products to countries, persons or organisations subject to export or sanctions restrictions. The same applies to use in the military sector or in security-relevant or critical infrastructures, insofar as such use is prohibited or restricted by applicable regulations.
3. Any delivery, transfer or use of the products in relation to the Russian Federation is excluded if and to the extent that this is prohibited by applicable EU sanctions regulations. In particular, the customer undertakes not to export or transfer any delivered products to the Russian Federation or to companies, institutions or persons based there, if this is prohibited under EU law.
4. The customer is obliged to impose corresponding obligations on its customers and to provide FPS with suitable evidence of compliance with these obligations upon request.
5. If deliveries are made duty unpaid at the customer’s request, the customer shall be liable to FPS for any additional claims by the customs authorities.
6. FPS is entitled to refuse to fulfil the contract or to withdraw from the contract if the delivery or service would violate export control or sanctions regulations or if there is a threat of such a violation.
7. The customer shall indemnify FPS against all damages, costs and expenses arising from the customer or its customers violating the obligations set out in this clause. This also includes any fines, sanctions or third-party claims asserted against FPS as a result of such a violation.

19. Fulfilment of the place of jurisdiction and applicable law

All legal relationships between FPS and its customers are expressly governed by the laws of the Federal Republic of Germany applicable to legal relationships between domestic parties, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of performance for all obligations arising directly or indirectly from the contractual relationship is the location of FPS’s registered office in 83627 Warngau.
The place of jurisdiction is the court responsible for FPS’s registered office. However, FPS is entitled to bring legal action at the customer’s headquarters.

20. Severability clause

Rights arising from this contract may only be assigned to third parties by customers with express written consent.
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provisions shall be replaced by provisions whose economic success comes as close as possible to that of the invalid provision.