FPS Werkzeugmaschinen GmbH general terms and conditions of sale, repair and servicing
Valid as of June 2012
For all business transactions, including but not limited to all offers and acceptances of offers, orders, deliveries and services involving the company FPS GmbH (hereinafter “FPS”) and customers (hereinafter “Customers”), these general terms and conditions in their latest version apply exclusively, insofar as the customer is an “entrepreneur” in the meaning of Section 14 of the German Civil Code. These general terms and conditions also apply to all future business conducted between the Customer and FPS. General terms and conditions of customers that are not expressly recognised by FPS in writing are not valid. Any formal notice relating to a Customer’s own terms and conditions of business is hereby expressly excluded. The general terms and conditions of FPS also apply where FPS delivers goods to the Customer without reservation in the knowledge of conditions of the Customer that contradict or deviate from these general terms and conditions. The general terms and conditions shall only apply to companies within the meaning of section 310 (I) of the German Civil Code.
Our offers are non-binding and subject to change. Requests from Customers that are not the content of an order or order confirmation are not binding for FPS.
We reserve the right to make technical changes in form, colour and/or weight within reasonable limits.
If the services or order confirmations are based on documents such as illustrations or drawings, these shall be deemed non-binding.
Dimension or weight specifications are to be understood as approximate values that are customary in the industry, unless they are expressly designated as binding by FPS.
2. Conclusion of contract and scope of delivery
If the Customer orders goods or services or sends goods to FPS for repair and/or maintenance, the Customer is bound to this service for 3 weeks. A contract only comes into effect upon written order confirmation by FPS, from which the content and scope of the service owed is solely determined. If there is no order confirmation for a customer order, the contract comes into effect upon execution of the order by FPS. In this case, the content and scope of the service owed is derived from the customer’s offer.
FPS is entitled to make technical changes and modifications to the delivery item, insofar as they do not contradict the order confirmation.
The conclusion of the contract is subject to the reservation of correct and punctual delivery to FPS by its own suppliers. This only applies in the event that FPS is not responsible for non-delivery. If delivery becomes impossible for FPS due to force majeure or subsequent official orders, FPS is released from its delivery obligation. In all the above cases, the customer shall be informed immediately of the non-availability of the service. The consideration will be refunded immediately.
3. Preparatory work, right of refusal
Insofar as FPS ascertains in the case of goods sent by the Customer that these cannot be repaired, the Customer is obliged to compensate FPS for the inspection of the goods. The costs for the inspection are no greater than 10% of the hypothetical repair price for the sent goods.
If the Customer sends goods to FPS, and FPS rejects the offer, does not submit an offer or the goods cannot be repaired, FPS will inform the Customer as appropriate. Unless the customer requests FPS in writing to return the goods within a further 14 days, FPS is entitled to dispose of the goods.
The delivery dates and deadlines are always only approximate and are not binding for FPS, unless a delivery date has been expressly agreed in writing to be binding.
Delivery dates and delivery deadlines are extended appropriately if the Customer delays or fails to perform the required or agreed cooperative actions, as well as in the case of force majeure or other circumstances over which FPS has no control and which have a significant impact on delivery or performance, in particular in the case of industrial action and lock-outs at FPS, its suppliers or its sub-suppliers. If the delivery or service becomes impossible or unreasonable due to the aforementioned circumstances, FPS is released from the delivery obligation.
A default on the part of FPS only entitles the Customer to withdraw from the order with which FPS is in default if the Customer has given a grace period of at least 3 weeks. Further claims, in particular for damages, are excluded. In the event of unforeseeable obstacles to delivery, e.g. due to force majeure and events such as fire, industrial action, boycott, etc., the customer shall have no right to withdraw from the contract for this reason or to assert claims. In such cases, the delivery period shall be extended appropriately.
Changes to orders shall result in cancellation of agreed dates and deadlines, unless otherwise agreed. If, after conclusion of the contract, the customer demands changes or additions to the order which make it impossible to comply with the delivery date, the delivery date shall be extended in accordance with the changes and additions by a period of time appropriate for the fulfilment of these changes and additions.
FPS is entitled to a right of retention for further deliveries until all previous deliveries have been paid for.
FPS is entitled to make partial deliveries and to invoice these separately.
Orders oblige the Customer to accept and pay for the goods concerned. If the Customer refuses to accept the ordered goods, this justifies for FPS, if FPS waives acceptance, a claim for compensation amounting to 50%, and in special cases up to 75%, of the value of the goods.
The Customer is permitted to prove that no damage at all or only minor damage has occurred. FPS has the right to prove higher or further damage.
Packaging material will be invoiced separately at normal market conditions and will not be taken back unless there is an obligation to do so in accordance with the packaging regulations. FPS will take back special crate packaging if it is sent to the factory carriage paid and is in perfect condition.
In return, FPS shall reimburse two-thirds of the invoiced amount.
Shipment is at the expense and risk of the Customer. The shipment costs are calculated according to expenditure. If there is no specific agreement with the customer regarding the type of shipment, the choice of the shipment route and the type of shipment 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.
The risk is transferred to the Customer with the handover of the delivery item to the railway, the forwarding agent, the carrier and other shipping agents or with notification of readiness for dispatch, but at the latest when the item leaves the factory or distributing warehouse, even if FPS has taken over the delivery. Shipment is always carried out on behalf of the Customer.
The Customer is obliged to accept the delivery item even if it shows only insignificant deviations from the agreed quality or an insignificant impairment of use.
If shipment is delayed at the request of the Customer, the Customer may be charged the costs incurred by storage.
In case of goods ordered by the Customer that are no longer required, FPS will only take back such goods in cases of express and written consent. Transport costs of the return delivery shall be borne by the Customer. FPS reserves the right to charge inspection and restocking fees. These are 10% per item value, with a maximum of EUR 250.00. Return deliveries of replacement parts must be carried out free of charge for FPS. Only items in proper or saleable condition are returnable. No custom-made products or special orders will be taken back. After returning the items, the Customer will receive a credit note in the amount of the value of the goods minus the restocking and inspection fees. 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 a faultless trial run.
8. Parameter sets, settings, factory settings
FPS resets goods delivered to the Customer to their respective factory settings before inspecting them. If the Customer receives the goods back, the settings/parameter sets made by the Customer on the goods are no longer available.
The Customer must inspect the goods, in particular the relevant settings and parameter sets, to ensure that they are correctly configured for the use intended by the Customer. If the Customer fails to meet this obligation, any liability on the part of FPS is excluded.
If and insofar as FPS is to change settings/parameter sets at the request of the customer before the goods are shipped to the customer, FPS assumes no liability for damage that occurs to the Customer’s property due to invalid settings and parameter sets.
Unless otherwise agreed, the prices for deliveries and services are ex works, excluding insurance, in euros plus the applicable statutory taxes. Unless otherwise agreed, services are to be invoiced according to time spent on the basis of the applicable hourly fee rates established by FPS. Travel times are considered working hours and are to be remunerated accordingly by the Customer. Travel costs, hotel costs or other expenses will be charged to the Customer against receipt, unless otherwise specified. Costs for packaging, dispatch, transport and transport insurance are charged separately. The invoicing of individual deliveries shall be based on the FPS price list, unless fixed prices have been agreed. Prices can be changed at any time and as often as desired. If the price changes after the order is placed, the customer has the right to be informed and to withdraw from the order.
10. Payment conditions
Claims of FPS are due within 14 days of receipt of the corresponding invoice by the Customer without deduction for payment in cash or by transfer free of charges to the business account of FPS.
Discounts are only granted by FPS following written confirmation. Cheques and acceptances are only accepted on account of payment, the latter only by special agreement. Payments only apply on the day on which FPS can dispose of the invoice amount without loss. Machines and accessories are usually delivered after an order-related deposit of 50% of the gross order amount. The final payment is made after delivery and acceptance. The claim is due immediately after receipt of invoice without deduction. Discounts are only granted by FPS following written confirmation. Payment must be made in cash or by bank transfer free of charges to the business account. Cheques and acceptances are only accepted on account of payment, the latter only by special agreement.
FPS is entitled to initially offset payments against older claims.
If the Customer defaults on payments, then FPS is entitled to demand interest in the amount of 8 percentage points above the base interest rate as damage caused by default. Further damages caused by default are not excluded.
If a cheque issued by the Customer is not cashed, for whatever reason, FPS is entitled to charge an appropriate processing fee and the default interest.
Invoices and reminders addressed to the Customer shall be deemed to have been received by the Customer at the latest on the 3rd working day after posting, unless the Customer proves that they were received later.
Insofar as the Customer is obliged to pay in advance to FPS, FPS is not in default with its performance as long as the Customer does not perform.
If, after conclusion of the contract, it becomes apparent that the Customer cannot offer a sufficient guarantee of their solvency, or that the fulfilment of the contract by the Customer is at risk, FPS is entitled to refuse delivery and service provision and to set the Customer a reasonable deadline within which the delivery and service must be paid for in instalments or appropriate security must be furnished. If the Customer refuses or the deadline expires without success, FPS is entitled to withdraw from the contract and to demand compensation.
11. Offsetting and right of retention
The Customer may only offset with counterclaims that have been legally established or recognised. A right of retention can only be exercised if the counterclaim is based on the same contractual relationship. The Customer is not entitled to a right of retention based on partial performances in accordance with section 320 (II) of the German Civil Code.
12. Lump-sum damages
If the Customer is in default of acceptance or if the Customer seriously and finally refuses to render performance, the Customer is obliged to pay 35% of the price as compensation to FPS. The Customer is permitted to prove that no damage at all or only minor damage has occurred. FPS has the right to prove higher or further damage.
13. Delivery, installation and assembly
In order to ensure trouble-free delivery and installation, the Customer will be informed in good time before delivery about all necessary requirements (required floor space and passage width, requirements for the installation site, need for a forklift for unloading, etc.). The Customer must ensure that the specified requirements are fully met prior to delivery.
14. Obligations to cooperate
The Customer agrees to cooperate fully to the extent necessary to provide the agreed service in good time and free of charge for FPS. The Customer agrees to cooperate in testing and acceptance and grants FPS access during normal working hours. The Customer designates a responsible contact person for all matters concerning 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 in writing a deadline for the performance of the contractually owed service with the threat of refusal. The period shall be at least 25% of the agreed or stated delivery period, but no less than 3 weeks. After this period has expired, the Customer is obliged, following a request by FPS, to declare whether the Customer continues to insist on delivery or will be withdrawing from the contract. The Customer is not entitled to refuse delivery or to withdraw from the contract instead of performance if the Customer does not make such a declaration within a reasonable period of time set by FPS.
In the event of impossibility or delay in the performance obligation of FPS, the customer can only withdraw from the contract if FPS is responsible for a breach of duty.
The Customer may not withdraw from the contract before the due date of the service or in the case of only minor breach of duty by FPS. Withdrawal is excluded if the Customer is solely or largely responsible for the circumstances that would entitle him to withdraw, or if circumstances that are not the responsibility of FPS arise during the default of acceptance of the Customer.
FPS retains ownership of the goods until all claims from an ongoing business relationship have been settled in full. The retention of title extends to a share which is measured by the value of the respective goods subject to retention of title, including items which are created by processing, combining, mixing or installing the goods subject to retention of title (“extended retention of title”) as well as claims which the customer acquires 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 at the Customer’s own expense against fire, water and theft and to carry out maintenance and inspection work on the goods subject to retention of title at the Customer’s own expense and in good time, as well as to assign or pledge them as security 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, as well as any damage or destruction and a change of ownership, stating the exact addresses.
FPS is entitled to withdraw from the contract and to demand the return of the goods in the event of conduct on the part of the Customer that is in breach of the contract, in particular in the event of default in payment or in the event of breach of the aforementioned obligations. In case of doubt, the demand for return of the goods shall not be deemed a withdrawal from the contract. In the case 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 that accrue to them against a third party through the resale. 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 company does not properly fulfil its payment obligations and is in default of payment.
The Customer is obliged to indemnify FPS from all costs arising from safeguarding and exercising its rights.
The Customer is obliged to expressly inform third parties of the reservation of title.
The Customer grants FPS a contractual contractor lien in accordance with Sections 1204 onwards of the German Civil Code on the goods held by FPS.
To secure their claims, the Customer assigns to FPS, as a precautionary measure, any compensation for any electronics or other insurance that may exist in the event of damage. FPS accepts the assignment. FPS is under no obligation to give priority to claiming insurance benefits.
16. Limitation of liability
The liability of FPS, as well as its representatives and vicarious agents, for injury to life, body, and health of an essential contractual obligation and from the German Product Liability Act or as well as FPS has maliciously concealed a defect, expressly assumed a guarantee or deliberately caused damage, is unlimited.
Subject to the liability of FPS as defined above, its liability is limited in all cases of negligence, for breaches of ancillary obligations, lack of commercial success, consequential damage caused by defects and damage resulting from objections by third parties against the Customer, to the amount that corresponds to the sum covered by the product liability or liability insurance taken out by FPS, otherwise to the foreseeable damage typical of the contract. FPS is not liable for lost profits of the Customer.
This limitation of liability also applies in favour of all employees, bodies and vicarious agents of FPS.
The period of limitation for all liability claims in accordance with the above is 1 year from the provision of the service by FPS, insofar as FPS is not guilty of intent or gross negligence. In these cases the statutory period shall apply.
FPS guarantees that the deliveries and services comply with the contractual agreements. Insofar as no agreement has been made, a guarantee is given that the use presupposed according to the contract is essentially possible and that the delivered goods have a quality that is usual for items of the same type.
In principle, only the manufacturer’s product description is deemed agreed as the quality of the goods. Public statements, promotion or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.
The Customer shall bear the risk of the suitability of the delivery items for the intended use and the compatibility with other components or systems. The state of being in accordance with the contract is determined solely by the conditions on transfer of risk.
In particular, FPS is not liable for malfunctions and/or damage caused by unsuitable or improper use or operation, faulty assembly or commissioning by the Customer or third parties, by lack of compatibility with other systems or modules due to normal wear and tear, faulty or negligent handling, as well as 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.
Wearing parts such as fuses, batteries, lamps and operating materials are further excluded from the warranty after proper commissioning. Obvious defects must be reported in writing without delay, at the latest within 2 weeks of receipt of the delivery item, insofar as these are deviations or externally recognizable defects. Defects that are not obvious must be reported by the Customer in writing immediately, at the latest seven days after their discovery. If deviations or defects are not asserted within the specified periods, all claims for defects against FPS are excluded.
Punctual dispatch suffices to meet the deadline. The Customer bears the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of detection of the defect and the timeliness of the notification of defects.
The warranty period is one year.
The warranty does not apply if the customer has made changes to the contractual performance without the written consent of FPS, unless the customer proves that the defect is not due to the change.
If, during an attempt at rectification or at a later point in time, it becomes apparent that there is no defect or that the defect falls within the responsibility of the customer, then the customer is obliged to bear the costs of inspection and rectification by FPS in accordance with the currently valid rates of remuneration in accordance with the price list.
If a defect or deviation has been notified in good time, the Customer is entitled, at the discretion of FPS, to subsequent fulfilment through rectification or subsequent delivery. The expenditure required for this purpose, such as wages, transport and material costs, is borne by FPS insofar as these are necessary to rectify the defect and are not increased by the fact that the delivery item has been taken to a place other than the place of delivery, unless this corresponds to the intended use of the same.
Following consultation, the Customer must provide the necessary time and opportunity to carry out a rectification of defects or subsequent delivery.
The Customer is obliged to provide an exact and comprehensive description of all defects or malfunctions in writing and to support FPS in error analysis and defect rectification.
If the rectification finally fails or if FPS rejects a rectification or subsequent delivery, then the Customer is entitled to assert legal claims intended for this case. If the attempt at repair or subsequent delivery includes multiple machines or objects, this shall only apply to the machine or component that is affected by the faulty repair.
If FPS is not presented with an error message from the Customer that is correct or does not sufficiently describe the causes of the fault, then FPS may carry out fault diagnostics with diagnostic equipment usually available in service vehicles and may also commission the machine for diagnostic test runs with due caution unless the customer objects to this procedure explicitly or in writing.
It is expressly pointed out to the customer that even with proper and cautious diagnostic measures carried out at the Customer’s premises, diagnostic runs to locate faults could damage other components on the machine. This can only be avoided if the machine is delivered to FPS and inspected with stationary diagnostic equipment there. If the customer wishes to exclude the risk of consequential damage in diagnostic operation, he must instruct FPS accordingly before the start of the repair. Otherwise, any further damage possibly caused by the diagnostics and its rectification shall be borne by the customer. Cost estimates are only prepared by FPS if this has been agreed in writing with the Customer. Cost estimates prepared by FPS for the Customer are subject to remuneration. The amount of the obligation results from the working time spent by FPS and the hourly rates according to the currently valid price list.
18. Deliveries outside of Germany
In case of export of the products, the Customer shall observe the German export regulations and point out to his Customer that German export conditions apply in case of export.
19. Fulfilment of the place of jurisdiction and applicable law
All legal relationships between FPS and customers are expressly governed by the law of the Federal Republic of Germany, which applies to the legal relationships of domestic parties to each other, excluding the UN Convention on the International Sale of Goods (CISG).
The place of fulfilment for all obligations arising directly or indirectly from the contractual relationship is the location of the registered office of FPS in 83627 Warngau, Germany.
The legal venue is the court responsible for the place of business of FPS headquarters. However, FPS is entitled to take legal action at the headquarters of the Customer.
20. Final provisions
Rights arising from this contract may only be assigned by Customers to third parties 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 such provisions whose economic success comes as close as possible to that of the invalid provision.
II. Service personnel/price lists
1. Conditions on the use of service personnel/price lists
These conditions and this price list apply to the dispatch of assembly and service personnel.
Normal working hours Monday through Friday until 4:15 p.m.
Overtime working hours on Saturdays, Sundays and public holidays and working hours after 4:15 p.m. shall be considered overtime and shall be remunerated as such.
Normal working hours are 8 hours daily from Monday through Friday until 4:15 p.m. This time will also be charged if a shorter working time has to be observed for reasons over which we have no control. Work on Saturdays, Sundays and public holidays shall be deemed to be overtime subject to a surcharge.
Service work on Sundays and public holidays is only carried out in urgent exceptional cases. It requires the approval of FPS and relevant trade associations and, if applicable, trade supervisory authority responsible at the installation site. These must be obtained by the Customer.
3. Travel time
Time expenditure for the outward and return journey including the arrival and departure times will be charged. Travel time on Saturdays, Sundays and public holidays is subject to a surcharge.
4. Waiting time
If, for reasons for which FPS is not responsible, service personnel cannot begin or continue with the work to be foreseen or is prevented from leaving, FPS charges the waiting time at the working hour rates.
5. Individual travel
For individual trips, the return trip time can only be determined after the end of the trip and therefore cannot be listed on the original time statement.
6. Group travel
For group trips, the total costs incurred are distributed among all Customers. The trip hours/kilometres entered on the time statement are therefore not always identical to the trip hours/kilometres actually billed.
7. Order per machine
If several machines are repaired/checked at one Customer’s premises, a separate order is created for each machine. Each order leads to an invoice whereby the travel expenses incurred are distributed among the orders created.