Business relations between Fortuna Fahrzeugbau GmbH & Co. KG and its customers shall be exclusively governed by the following general terms of sale, delivery and payment. Other provisions, particularly the customer's general terms and conditions of business, shall only apply if they have been expressly confirmed in writing by us.
By placing an order or accepting services, the customer shall acknowledge the applicability of our general terms and conditions of business not only to the business transaction in question, but also to all future business transactions.
Erroneous transmission of orders and instructions via telegraph, telex or telephone shall be at the risk of the purchaser.
Our quotations shall be subject to change. Technical specifications and descriptions of the delivery item in quotations, brochures and other information shall be non-binding. Orders, contracts, contractual amendments or addenda and all other agreements or declarations, including the warranty of properties, shall only become binding on us if they have been expressly confirmed in writing by us.
Amendments to the provisions contained in these general terms of sale, delivery and payment and/or the contract shall require the written form.
The invalidity of individual contractual provisions shall not affect the validity of the other provisions.
Unless otherwise stated in the following, deliveries shall be made at the prices specified in the order confirmation (plus VAT at the prevailing rate). If no order confirmation is issued, the prices specified in the invoice shall be applicable.
If, in the case of orders which are due to be delivered later than 4 months after conclusion of a sale, our purchase prices or the wage and salary rates relevant to us should increase in the time up to delivery, we shall be allowed to charge a commensurately increased price within the percentage ratio of the purchase price or wage costs to the agreed price.
All ancillary costs, such as loading, packaging, transportation, fitting, installation and provision of fitters, shall, unless otherwise agreed, be charged to the customer.
Consignments shall be insured by us at the express request of the customer and at his expense.
III. Terms of Payment
Payments shall, unless otherwise agreed in writing, be made without deduction immediately after delivery or issuance of an invoice. In the case of a contract for the delivery of machines, vehicles and equipment, 1/3 of the agreed purchase price shall be paid on conclusion of the contract, a further 1/3 within 7 days of notification of readiness for dispatch and the last 1/3 within 7 days of the invoice date. A cash discount shall not be granted.
All payments shall be made only to Fortuna Fahrzeugbau GmbH & Co. KG. Members of the company, travelling sales persons and representatives shall only be authorized to accept payments if they are in possession of a written power of attorney.
The purchaser may only set off against our claims if the purchaser's counterclaim is undisputed or a legally established title exists. Assertion of a right of retention shall be excluded for the purchaser unless it is based on the same concrete contractual relationship.
If we accept cheques or bills of exchange, this shall only ever be done pending full discharge of the debt, and not in lieu of performance. We shall not be liable, in such cases, for timely presentation or protestation. The costs of discounting, taxation and collection shall be charged to the customer; said customer shall reimburse these contributions promptly on request.
If payments are made later than agreed, we may, at the end of one month from the invoicing date, charge interest of 5% above the base interest rate. In the case of legal transactions in which a consumer is not involved, the interest rate for payment demands shall be 8% above the base interest rate.
Delivery shall be made from one of our warehouses or directly from our supplying plant.
The scope of our delivery obligations shall be derived exclusively from our written quotation and/or our written order confirmation.
We shall make every effort to adhere to the delivery periods and/or dates specified by us. Without an express guarantee in writing, the delivery periods and/or dates specified by us shall be non-binding only. Unless otherwise expressly agreed in writing, the delivery period shall commence when the order confirmation is sent. In any case, adherence to the delivery period shall be conditional upon timely receipt of all documents to be supplied by the customer and the customer's compliance with the agreed terms of payment and other obligations. The delivery period and/or date shall be deemed to have been adhered to if the goods leave our sales warehouse by the time the period expires. In cases in which the goods cannot, or should not, be dispatched, notification of our readiness to deliver shall suffice. In the event of exceptional circumstances beyond our control or the control of our preliminary suppliers, the delivery period shall be reasonably extended.
If, due to exceptional circumstances beyond our control, delivery becomes wholly or partly impossible or unreasonable, we shall be entitled to rescind the contract wholly or partly. Exceptional circumstances shall include any event outside our sphere of influence that permanently or partly prevents, impedes or significantly delays the manufacture, delivery or transportation of the goods, i.e. not only cases of force majeure, but also, and in particular, government interventions, industrial disruptions, such as strikes and lockouts or similar, a lack of proper and sufficient supplies from preliminary suppliers, a shortage, or abnormal increase in the price of, raw materials, means of transport or workers, transport failures, export, import or transit-traffic bans, no matter whether in the country of origin, transit or destination.
In the case of import and export transactions, we may rescind the contract if the necessary permits are not issued to us.
We shall also have a right to rescind the contract if contract performance encounters technical difficulties, which are insurmountable or which, to surmount, would require a disproportionately high cost in relation to the value of the services to be rendered by us.
We shall undertake, in the aforementioned cases, to inform the customer without delay of the complete or partial impossibility/ unavailability of the agreed services and promptly to provide whole or partial reimbursement of the corresponding amount of considerations that have already been made.
We shall further have a right to rescind the contract if the customer will clearly be unable to fulfil his obligations, i.e. if he has previously made a declaration in lieu of an oath, foreclosure actions have been initiated, a petition for the institution of insolvency proceedings has been filed, or he can provide inadequate guarantees of his solvency, insufficient evidence of securities or no evidence of secured financing, such that our claim to payment is jeopardized.
In the event of culpable delay in delivery, the customer shall be entitled to rescind the contract only if, after commencement of the delay, he specifies a reasonable grace period in writing, such grace period being a minimum of four weeks, and simultaneously notifies Fortuna GmbH that he will rescind the contract in the event that Fortuna GmbH fails to make delivery within the specified period. Contractual penalties due to late delivery shall be excluded.
If the customer defaults oncalling up, accepting or collecting the goods or if he is responsible for a delay in shipment or delivery, we shall, without prejudice to further claims, be entitled to
rescind the contract in the amount of the goods that have not been accepted
put the goods in storage on our premises or those of third parties, at the customer's expense and risk, and charge him storage costs of at least 0.25% of the invoice amount accounted for by the quantities that have not been accepted for each week of storage or part thereof, unless proof of lower costs can be furnished or
sell the quantities that have not been accepted elsewhere at the end of a reasonable grace period specified by us. We shall be entitled, at our option, to demand, by way of compensation, the loss proved to have been actually incurred or 20% of the agreed price.
In all deliveries, the transport risk shall pass to the customer as soon as the goods have left the supplying plant in question or have been transferred to a means of conveyance, a forwarding agent or freight carrier on the plant or warehouse premises, irrespective of who bears the freight costs.
V. Retention of Title
The goods supplied by us shall remain our property until such time as all our claims arising from the business relationship with the customer, even those that have been included in an open account, have been settled in full. Where bills of exchange and cheques have been issued, our claim, for which we have accepted the bill of exchange or cheque, shall not be deemed to have been settled until they have been honoured.
Pledging the goods under retention of title or assigning them as security shall not be permitted.
Should we, due to combination of the goods supplied by us with third-party objects, not acquire co-ownership but, rather, forfeit our ownership, the customer's ownership or co-ownership of the new object shall, immediately it arises, pass to us. The customer shall hereby assign to us any reversionary interests that might result in the customer's acquisition of ownership or co-ownership. The transfer that may be required for acquisition of ownership or co-ownership by us shall be replaced by the agreement that the customer shall, like a borrower, keep the object in safe custody for us, or, to the extent that the object is not in the customer's possession, by the hereby agreed assignment, to us, of the right to restitution against the possessor. The ownership or co-ownership that arises for us shall be treated, in legal terms, like the original goods.
All claims of the customer arising from an onward sale of the goods, which we own or co-own (goods under retention of title), shall already be transferred to us on conclusion of the sales transaction, irrespective of whether the goods are sold to one or more recipients. In the event that the sold goods do not completely belong to us or are sold together with goods that do not belong to us, the assignment shall only cover the counterclaim in the amount of the invoice value of our goods. The customer may collect the assigned claims, but not assign them, not even as part of a factoring transaction. We may revoke this authorization if the customer fails to comply punctually with an obligation incumbent upon him in our regard or if we become aware of circumstances that make our rights appear endangered.
If the customer defaults wholly or partly on fulfilment of a liability secured by the retention of title or if we become aware of circumstances that make our rights appear endangered, we may demand surrender of the goods under retention of title, without previously having declared our rescission of the sales contract pursuant to Section 455 of the German Civil Code or having set a period for fulfilment of the payment obligation pursuant to Section 326 of the German Civil Code. The continued existence of the sales contract and the obligation of the customer shall be unaffected by said demand and by the surrender of the goods.
At the customer's request, we shall undertake to release the securities (goods and claims) to which we are entitled in accordance with the aforementioned provisions, such securities being selected by us, in so far as their value exceeds the claims to be secured by more than 20%.
VI. Warranty and Other Liability
The customer shall, to the extent that the contract constitutes a trade transaction for both parties, be obliged to inspect the supplied goods without delay in respect of their contractual compliance and faultless condition and to notify us of any defects in writing within 8 days. If the customer fails to provide said notification, the goods shall, unless a defect that was not identifiable during the inspection is involved, be deemed to have been approved.
Defects in a part of our delivery shall not entitle the customer to object to the entire delivery.
Claims shall initially be limited, at our option, to remedy of defects or delivery of an object without defects. In the event of remedy of defects, the parts or devices that are the subject of complaint shall be repaired only in our plant or a plant specified by us. If the customer requires an inspection or repair at his location, the costs shall be charged to the customer.
Any interference by the customer himself, or a third party on his behalf, with items supplied by us shall cause any warranties and guarantees to lapse.
All warranties shall lapse after twelve months from the day of dispatch or the notification of readiness for dispatch.
If we default on fulfilment of our warranty obligations, the customer shall be obliged to specify a further reasonable grace period of at least four weeks, providing a warning that, in the event of non-compliance, he will refuse to accept delivery. After said period has expired or if the subsequent performance fails, the customer may, at his option, demand reduction of the consideration to be provided by him, or rescission of the contract.
In the event that the goods should reveal defects which are outside our control or were not caused by us, but are the responsibility of, or were caused by, third parties (component suppliers, in particular), we hereby assign our warranty and guarantee claims, derived therefrom, against said third parties (component suppliers, in particular) to our contractual partner/ customer. The contractual partner/ customer shall expressly accept this assignment on formation of the contract and shall undertake to file and assert the aforementioned warranty claims and claims for damages directly against the third parties (component suppliers, in particular). In this respect, our liability shall be subordinate.
We shall not be liable for errors that result from documents submitted or approved by the customer (drawings, descriptions etc.) or for damage that arises on the following grounds: inappropriate or improper use, natural wear and tear, incorrect or negligent handling.
Rights other than those specified here, particularly claims for damages and for consequential damage caused by defects shall, in principle, be excluded. The customer shall not be entitled to them even if our warranty obligation has been triggered by the absence of a warranted property. This shall not apply in the event of wilful intent or gross negligence; nor shall it apply in the event of wilful intent or gross negligence on the part of one of our statutory representatives or vicarious agents or in the event of injury to life, limb or health. The right of the customer to rescind the contract shall be unaffected.
VII. Place of Fulfilment – Place of Jurisdiction
The place of fulfilment for performance and payment shall be Ochtrup.
If the customer is a merchant, Steinfurt shall be deemed to be the exclusive place of jurisdiction for all current and future claims arising from the business relationship, including claims in respect of bills of exchange and cheques. The same place of jurisdiction shall apply if the customer does not have a general place of jurisdiction in Germany, moves his domicile or ordinary place of residence from Germany after conclusion of the contract, or his domicile or ordinary place of residence is unknown at the time the suit is filed. We shall, in any case, be entitled to file a suit at the customer's domicile or registered office.
The law of the Federal Republic of Germany shall be applicable, without giving effect to the Uniform Laws on the International Sale of Goods and on the Formation of Contracts for the International Sale of Goods. Interpretation shall be governed by the German wording.
VIII. Special Condition for Deliveries with Installation
Expenses that we incur for assembly and subsistence allowance rates in the case of any installation work shall be reimbursed, in particular also in respect of overtime, Sunday and bank holiday working. Travel time and waiting time shall be deemed to be working time.
Prior to commencement of the installation, all construction work must have been completed to such an extent that the installation can be commenced immediately after delivery and continued without interruption. The foundations must be completely dry and hardened, and the premises in which the installation is carried out must be sufficiently protected against weather influences, well lit and sufficiently heated.
For the purposes of storing the machine parts, materials, tools and such like, the customer must provide a dry, illuminable and lockable room, which is under surveillance and guarded.
The customer shall, at his expense, take responsibility for and provide in a timely manner:
a team of assistants and skilled workers, as deemed necessary by us
the devices and materials required for installation and commissioning
unloading of the vehicles and transportation of the delivery items from the vehicle to the installation location
The customer shall bear the risk of transportation of the parts supplied.
As at September 2009
Fortuna Fahrzeugbau GmbH & Co. KG Alte Maate 16 D-48607 Ochtrup