Všeobecné obchodní podmínky skupiny Feldbinder
sestávající ze společností Feldbinder Spezialfahrzeugwerke GmbH, STA Silo- und Tank-Anhänger Service GmbH, pro prodej, dodávky a pronájem nových a ojetých vozidel, včetně železničních vozidel, pro údržbu a opravy, jakož i pro dodávky náhradních dílů a služeb.
Stav 06/03/2019
1.1 All contracts/work orders shall be accepted and performed only in accordance with the following Terms and Conditions. They apply to business transactions with business entities (as defined in German Civil Code Article 14, BGB), legal public entities and trusts governed by public law. Those general terms and conditions of the CUSTOMERS, which conflict with the following provisions, shall only apply to the extent they are ex-pressly confirmed in writing by FELDBINDER. The following Terms and Conditions also apply, without the need for an express agreement, to all future transactions between the parties as well as when FELDBINDER makes deliveries or performs services without any reservation in view of opposing or deviating terms and condi-tions by CUSTOMERS.
1.2 Any individual agreements concluded with the CUSTOMER in individual cases (including side letters, supplements and amendments) shall in each case take priority over these Terms and Conditions. For the content of such agreements, a written contract or our written confirmation shall be decisive subject to evidence to the contrary.
1.3 Material declarations and notifications which are to be given to us by the CUSTOMER following conclusion of the contract (e.g. deadlines, notice of defects, declaration of rescission or reduction), must be made in writing in order to be valid.
1.4 To the extent that these Terms and Conditions provide for the written form, this requirement shall also be satisfied by transmission using fax or electronic means.
1.5 Documents containing trade and business secrets of FELDBINDER (e.g. price estimates, construction plans) may not be made accessible to third parties, in particular competitors, and must be returned upon demand; where applicable, FELDBINDER reserves any and all intellectual property rights and copyrights which may exist. A right of retention on the part of the CUSTOMER to these documents is excluded.
1.6 To the extent that FELDBINDER processes or employs any materials, spare parts or other items ordered by the CUSTOMER, the CUSTOMER shall provide FELDBINDER with written instructions regarding the proper use and handling of any such materials. The inspection of said materials by FELDBINDER upon their receipt does not relieve the CUSTOMER from its duty to ensure that said materials are suitable for their intended use nor from its general responsibility for such materials, spare parts or other items. The submission of a service and / or repair work order automatically authorises FELDBINDER to carry out test drives.
1.7 All intellectual property rights, copyrights and any know-how embodied in the Subject Matter (see Clause 1.8) remain the sole property of FELDBINDER. CUSTOMER grants a non-exclusive, perpetual, worldwide, unlimited and royalty-free license to FELDBINDER to any ideas, contributions, know-how and/or intellectual property supplied by CUSTOMER for or during the development and/or construction of the Subject Matter, including but not limited to the right to use the CUSTOMER’s contributions to improve, develop further, manufacture and distribute the Subject Matter.
1.8 The road vehicles (tanks and trailers, semitrailers, container chassis), containers, railway vehicles (wagons), spare parts and any other deliveries and services of FELDBINDER, which are the subject matter of the contract with the CUSTOMER, shall be referred to as Subject Matter(s) in these Terms and Conditions.
2.1 FELDBINDER's offers are non-binding and subject to change without notice unless otherwise confirmed in writing.
2.2 All prices are understood to be the price charged for delivery ex FELDBINDER’s works, with no prompt payment discount or any other such discounts, plus value added tax. Additional services (for example, transit costs) and any other costs (for example for transportation or packaging, loading, shipping and customs duties, bank charges) shall, if no other agreement exists, be borne entirely by the CUSTOMER.
2.3 Price Adjustment in the Event of Change to Cost Basis:
(a) If delivery is to take place more than eight (8) months after conclusion of the contract, FELDBINDER shall be entitled, in the event of changes to the material prices specified below between order confirmation and the date of construction (generally three months prior to delivery), to adjust the prices accordingly, provided that this does not result in a higher profit margin of FELDBINDER. FELDBINDER shall, upon request, provide the CUSTOMER with evidence of the changes to the cost elements set out below. The prices quoted are based, among other things, on the valid price as at the date of the order confirmation:
(b) If the delivery is to take place more than eight (8) months after conclusion of the contract, FELDBINDER shall be entitled to adjust the prices accordingly in the event of changes to the collectively agreed wages in accordance with FELDBINDER's in-house wage agreement between confirmation of order and date of construction, provided that this does not lead to a higher profit margin of FELDBINDER. FELDBINDER shall, upon request, provide the CUSTOMER with evidence of the changes to the in-house wage agreement.
(c) If the price adjustment leads to a total price increase of at least 5 % due to the change in one or more of the aforementioned cost elements, the CUSTOMER may withdraw from the contract. The withdrawal must be declared in writing immediately after notification of the price increase, otherwise the withdrawal shall have no effect. Furthermore, withdrawal shall have no effect if FELDBINDER declares immediately after receipt of the withdrawal that FELDBINDER insists on the execution of the contract at the originally agreed prices.
2.4 Price calculations have to be paid for according to the effort necessary to prepare such proposals.
2.5 FELDBINDER shall be entitled to make partial deliveries if (a) the partial delivery is suitable for the CUSTOMER in the context of the purpose of the contract, (b) the delivery of the remaining ordered goods is assured and (c) the CUSTOMER does not as a result incur considerable additional expenses or costs (unless FELDBINDER declares that it is prepared to take on these costs).
2.6 The INCOTERMS shall be applicable in the version valid at the time of the conclusion of the contract.
2.7 For deliveries and services within the EU the CUSTOMER shall inform FELDBINDER prior to performance of its respective VAT identification number, under which it conducts its purchase taxation within the EU. For deliveries and services from the Federal Republic of Germany to destinations outside the EU which have not been carried out and caused by FELDBINDER, the CUSTOMER must provide FELDBINDER with the proof of exportation required for tax purposes. If the proof of exportation is not provided, the CUSTOMER must also bear the VAT arising for the deliveries or services in Germany.
3.1 The CUSTOMER is bound by the terms of its order for a period of four weeks.
3.2 A contract shall be deemed closed if FELDBINDER has either confirmed their acceptance of the order in writing, or they have completed supply within the designated period. Any requirement of FELDBINDER for a signed copy of the confirmation of order to be returned shall only be for purposes of evidence.
3.3 The written order confirmation from FELDBINDER shall determine the nature and scope of FELDBINDER's duties, provided the CUSTOMER does not oppose the content of the order confirmation immediately, at the latest within two weeks after receipt of the order confirmation. FELDBINDER shall separately point this out to the CUSTOMER when it sends the confirmation of order.
3.4 Particular specifications regarding vehicle performance, weight, capacity and payload, etc. shall govern as approximations within general industry tolerances. FELDBINDER reserves the right to make modifications and deviations respectively until delivery with respect to design, construction, material, colour and format as is customary in the trade.
3.5 FELDBINDER does not give any guaranties within the meaning of the law (Para. 443 German Civil Code) to the CUSTOMER, unless FELDBINDER expressly indicates that these amount to guarantees; the same is applicable to the assumption of a procurement risk.
3.6 All documents in connection with the deliveries and services of FELDBINDER (for example packing lists, instructions for use etc.) shall only be in the German language unless otherwise expressly agreed in writing.
3.7 In the event it is discovered during manufacture, repair, assembly or modification work that the scope of work necessary exceeds that of the original offer, or additional structural components must be exchanged, the CUSTOMER’s consent shall be obtained unless the additional costs are minor as compared with the amount of the original offer. In the event that the CUSTOMER does not consent to the additional measures recommended, the CUSTOMER shall be obliged to compensate FELDBINDER only for work carried out and for all costs required to restore the Subject Matter to its original condition or to a generally road worthy condition, calculated in accordance with their hourly service rates and material costs.
3.8 FELDBINDER retains the right to request advance payment or provision of security and to postpone the fulfilment of its obligations for a certain period in the event that, following contract closure, facts become known which question the CUSTOMER’s reliability, in particular with respect to the CUSTOMER’s ability to pay. FELDBINDER shall be entitled to withdraw from the contract if the CUSTOMER has provided false information regarding its credit worthiness, or when, based upon reliable information, the CUSTOMER’s credit worthiness is objectively found not to exist. Any and all claims for compensation by the CUSTOMER arising from FELDBINDER's withdrawal from the contract are excluded.
3.9 If, at the request of the CUSTOMER after the conclusion of contract, FELDBINDER agrees to the cancellation of a contract by way of exception, this shall only take place upon the payment of compensation in the amount of 20% of the net value of the contract. Such cancellation may only take place on a goodwill basis and at the discretion of FELDBINDER; the CUSTOMER has no claim to the amicable cancellation of a contract.
4.1 The CUSTOMER declares that its company and employees do not appear on any current sanctions lists. The CUSTOMER gives an undertaking to ensure that the Anti-Terror Regulations and other valid national and international embargo and trade control provisions will be followed within the operations of its company. The CUSTOMER further undertakes to immediately inform FELDBINDER in writing of any positive findings from checking procedures pursuant to the above lists or provisions.
4.2 The CUSTOMER completely indemnifies FELDBINDER from all direct and indirect claims of third parties, which result from the insufficient implementation of statutory measures to be carried by the CUSTOMER to combat terrorism.
4.3 If a necessary export licence or a submitted “zero-notice” is not granted or the prerequirements for an export licence or a submitted “Zero-notice”, which has already been granted subsequently fall away, without FELDBINDER being responsible for this, or if the CUSTOMER appears on a national or international sanctions list or appears after the conclusion of the contract, FELDBINDER is entitled to a right of rescission or cancellation. FELDBINDER is not obliged to take legal action against corresponding official legal acts. The CUSTOMER shall immediately inform FELDBINDER in writing of such relevant circumstances in this connection. The agreed deadlines and dates shall be reasonably postponed in proportion to the period of delay resulting from the non-granting of the export licence or the submitted “zero-notice” or from the falling away of the requirements for their grant or from the inclusion of the CUSTOMER on a sanctions list.
4.4 If FELDBINDER exercises its right of rescission or right of cancellation pursuant to Clause 4.3, the CUSTOMER is liable for all direct and indirect damage (including lost profits, financial penalties, legal cost etc.), which are incurred by FELDBINDER as a result of the early termination of the contract. In this case, the CUSTOMER is not obliged to provide any consideration and shall receive back from FELDBINDER any payments already made, as far as FELDBINDER does not set-off such amounts with possible counterclaims; the CUSTOMER is not entitled to any further claims against FELDBINDER, in particular no claims for damages.
4.5 The goods to be delivered by FELDBINDER are designed for disposition in the country for delivery agreed with the CUSTOMER. The CUSTOMER is obliged to consider whether the re-export of the goods is subject to the laws on foreign trade and payments and export control provisions of the Federal Republic of Germany, the country of delivery as well as, where applicable, other countries, and whether the CUSTOMER can be obliged to obtain a licence. The CUSTOMER is obliged to inform himself in each case of the decisive law on foreign trade and payments and where applicable to apply for and obtain the necessary licences.
4.6 The CUSTOMER is exclusively responsible for compliance with all import provisions and permits as well as for obtaining any technical permission, operation permits etc. in relation to the Subject Matter required in countries outside Germany. The non-grant of permissions, approvals etc., which may be required for the use outside of Germany, shall not in particular constitute a defect or grounds for rescission or avoidance of the contract by the CUSTOMER. Upon request however, FELDBINDER will assist the CUSTOMER with obtaining the permissions etc. by making available documentation concerning the Subject Matter; any costs thereby arising (e.g. for translations, certifications etc.) shall be borne by the CUSTOMER.
5.1 Scheduled dates by FELDBINDER are always non-binding estimates only, unless delivery delays or delivery dates are expressly marked as binding in the order confirmation. Absolute fixed dates must be marked with a respective suffix.
5.2 Delivery periods shall commence only after receipt of all documents pertaining to the order, payment of any deposits as agreed, presentation of a confirmation of financing and total clarification of all technical details or the delivery periods shall be postponed respectively if the above-mentioned acts of cooperation are not carried out as agreed. In this case the new delivery period can also be postponed for longer than the delay of the act of cooperation by the CUSTOMER. Subsequent changes to a contract will likewise automatically result in an appropriate postponement of the scheduled dates.
5.3 If the CUSTOMER does not carry out the acts of cooperation which are required for the manufacture of the Subject Matter (e.g. notification of vehicle specifications, clarification of technical details), FELDBINDER may after the expiry of a reasonable period to no avail, withdraw from the contract and/or claim damages including the lost profit.
5.4 In the event that a non-binding delivery date or delivery deadline remains unfulfilled for longer than four weeks, the CUSTOMER may request in writing delivery by FELDBINDER within a reasonable period of time. Upon expiration of this delivery deadline FELDBINDER shall be in delay, unless FELDBINDER is not responsible for the non-performance.
5.5 If upon the delivery of vehicles the CUSTOMER has a claim to the reimbursement of default damages, such claim will be limited, in case of slight negligence on the part of FELDBINDER, to a maximum of 5 % of the agreed purchase price for the vehicle in question.
5.6 FELDBINDER’s duty to perform is suspended in case of force majeure (in particular disruptions in the ordinary course of business or of traffic, disturbances in shipment, natural disasters, business interruptions due to technical requirements, war, strike, lock out, insufficient delivery of supply items, administrative legal measures or similar events), for which FELDBINDER is not responsible, as well as incorrect or late supplies being made to FELDBINDER to the extent FELDBINDER is not responsible. In this case, FELDBINDER must inform the CUSTOMER without delay of the unavailability of the service. In these cases FELDBINDER is entitled to postpone its performance, for as long as such events continue. In case of a permanent disturbance of the performance or if the disturbance lasts more than four months, FELDBINDER is entitled to withdraw from the contract either in whole or in part, without prejudice to any statutory rights of rescission of the parties. In the event of withdrawal from the contract, the CUSTOMER is not obliged to pay any consideration, and any advance payments shall be paid back to the CUSTOMER without delay. The right of the CUSTOMER to claim for compensatory damages is excluded.
5.7 Clause 5.6 (Force Majeure) shall apply mutatis mutandis if the impediment to performance is caused by personnel shortages at FELDBINDER due to illness, insofar as the prevention of such personnel shortage is not within FELDBINDER's power or its prevention cannot be averted with reasonable technical or economic effort.
6.1 The CUSTOMER has the obligation, within 14 days of receipt of the notice of completion, to inspect the Subject Matter personally or by a third person instructed to do so at the FELDBINDER works with respect to defects, and to accept delivery. The acceptance cannot be refused for immaterial defects.
6.2 If following inspection or after acceptance, an obvious defect is ascertained, this must be notified by the CUSTOMER to FELDBINDER in writing without delay following discovery, at the latest, however, within 8 working days after acceptance. Latent defects must be notified by the CUSTOMER to FELDBINDER in writing without delay, at the latest however, within 8 working days of the discovery of the defect. To the extent there is a breach of this duty to give notice of defects, the right to assert a warranty claim is excluded.
6.3 The Subject Matter shall be deemed to be accepted or approved respectively when the CUSTOMER fails to accept or inspect, respectively, the subject matter within the 14-day deadline set out in Clause 6.1.
6.4 In the event of the CUSTOMER not fulfilling its duty to accept delivery within the 14 day period following receipt of the notice of completion, and this non-acceptance amounts to a breach of a duty, FELDBINDER shall be entitled, upon expiry of an appropriate grace period to be established in writing, to withdraw from the contract and/or to assert a claim for damages. Granting of a grace period shall not be required, if the CUSTOMER, seriously and definitely, refuses to accept delivery. Further claims by FELDBINDER shall remain unaffected.
6.5 In the event that the CUSTOMER is in default of its duty to accept, FELDBINDER reserves the right to claim a storage fee in the amount of EUR 20.00 per day and vehicle, commencing two weeks after the expiration of the biweekly term of acceptance (Clause 6.1). During the period in which the CUSTOMER delays acceptance, FELDBINDER shall only be liable for intentional acts and acts of gross negligence. Any possible further claims for reimbursement or damage claims by FELDBINDER for culpable breaches of (ancillary) obligations by the CUSTOMER shall not be affected.
6.6 Clause 6.5 shall apply correspondingly to the wrongly-timed calling of deliveries, to the extent that delivery on call is agreed, as well as to failure of the CUSTOMER to carry out any required cooperation, e.g. if the CUSTOMER does not make available specifications or the truck which are necessary for the completion of the Subject Matter.
6.7 If at the request of the CUSTOMER after payment FELDBINDER stores the Subject Matter free of cost on its premises, the risk of accidental loss and accidental damage to the subject matter shall pass to the CUSTOMER on the originally agreed date of acceptance. During such storage period, FELDBINDER shall only be liable for intentional acts and acts of gross negligence.
7.1 All deliveries are made EX WORKS. Upon acceptance or transfer of possession, the risk of accidental loss, destruction or deterioration passes to the CUSTOMER. The same applies, if the CUSTOMER is in default with acceptance. The Subject Matter shall only be insured by FELDBINDER if a special agreement is made and at the expense of the CUSTOMER.
7.2 Shipping and transport shall always be at the risk of the CUSTOMER. Clause 7.1 shall also apply, if FELDBINDER bears delivery costs of the Subject Matter as agreed upon.
8.1 Within one week after receipt of the order confirmation from FELDBINDER the CUSTOMER shall pay 40 % of the invoiced amount. The entire remainder is due upon acceptance or within 10 days from the date of the invoice, according to which takes place first. Invoices for spare parts and repairs are due upon delivery of the parts or upon acceptance of the repaired item respectively according to which takes place first. FELDBINDER is then first obliged to perform if the CUSTOMER has completely fulfilled its payment obligations including any possible additional requirements.
8.2 The acceptance of payment orders, checks, or promissory notes shall always be deemed on account of performance. A duty to accept these means of payment shall not exist. Collection fees and discount charges shall be borne by the CUSTOMER.
8.3 During the delay the CUSTOMER has to pay interest on a money-debt to the amount of 9 percentage points over the current base interest rate. Any further rights to claim for damages on the part of FELDBINDER shall remain unaffected.
8.4 Payment by instalments shall not be accepted by FELDBINDER in principle unless the Parties have expressly made a written agreement for payment by instalments. In the event that instalment payments are agreed - regardless of the respective maturity of any promissory notes - any remaining balance owing shall become due immediately and payable in full if the CUSTOMER falls behind with payment of an instalment for more than 7 days, if the CUSTOMER suspends its payments, or if insolvency proceedings are filed against the assets of the CUSTOMER.
8.5 In the event that the CUSTOMER falls behind with payments – in the event of agreed instalment payments with two successive instalments or an amount which equals the total of two partial payments - FELDBINDER can, upon notifying the CUSTOMER, be entitled to fix a reasonable grace period for payment. Following the unsuccessful expiry of the grace period, FELDBINDER shall be entitled to withdraw entirely from the contract and/or to assert a claim for damages against the CUSTOMER. The fixing of a grace period shall not be required if the CUSTOMER, seriously and definitely, refuses payment or is obviously unable to pay the purchase price within the grace period.
9.1 FELDBINDER shall retain title to all Subject Matters until complete payment is received for all FELDBINDER claims arising from the business relationship with the CUSTOMER or their related enterprises, including interest due and all other eventual costs incurred (hereinafter also: Reserved Goods). This retention of title shall also apply to those claims of FELDBINDER against the CUSTOMER that arise at some later point in time, for example, from repairs or delivery of replacement parts.
9.2 The CUSTOMER is obliged to use and handle the Reserved Goods properly. During the period of the retention of title, the CUSTOMER shall be entitled to possession and conventional use of the Reserved Goods. In the event of a delay of payments or breach of contractual obligations by other means by the CUSTOMER, FELDBINDER shall be entitled, upon unsuccessful expiry of a grace period, to withdraw from the contract and to demand delivery of the Reserved Goods and/or compensation for damages.
9.3 In the event that FELDBINDER withdraws from the contract and demands the return of the Reserved Goods, the CUSTOMER is obliged, to surrender possession of the Reserved Goods without delay. At the CUSTOMER’s request, which can only be made without delay following surrender of the Reserved Goods, an expert of the body builders’ trade (Karosseriebauhandwerk) shall determine the current estimated value in consultation with an office approved by the Deutsche-Automobil-Treuhand GmbH (for rail vehicles an acknowledged expert). FELDBINDER shall be obliged to set-off the Reserved Goods at this estimated value.
9.4 All costs incurred with respect to FELDBINDER's repossession and utilisation of the Reserved Goods shall be borne entirely by the CUSTOMER. FELDBINDER can either claim the utilisation costs actually arising or at its option can claim a lump sum for the utilisation costs in the amount of 15 % of the utilisation proceeds including turnover tax from the CUSTOMER. The proceeds will be paid over to the CUSTOMER after deduction of costs and other claims related to the contract.
9.5 In the event that FELDBINDER supplies a vehicle bodywork or vehicle accessories (for example, load supports, cooling systems), their retention of title to the Subject Matter shall exist if the said item can be removed from the (railway) vehicle or its sub frame or undercarriage, respectively (hereinafter "Vehicle(s)") in such a way that the removal does not destroy the bodywork or the Vehicle or change their fundamental characteristics. The CUSTOMER hereby acknowledges that the Subject Matter is not nor will not be an integral part of the Vehicle. In the event that FELDBINDER delivers vehicle bodyworks which are attached to either the Vehicle or the Vehicle's sub frame in such a way that the separation of the said vehicle bodywork from the Vehicle cannot be achieved without such separation destroying the bodywork or the Vehicle or changing their fundamental characteristics (essential constituents), the following shall apply:
(a) If the Vehicle which is provided for the assembly of the Subject Matter is subject to a retention of title by a third-party or a third-party conditional ownership security interest: The CUSTOMER shall be obliged to ensure that each respective third-party grants FELDBINDER equal security in the form of a joint retention of title and a conditional co-ownership interest respectively which shall be in proportion to the value of the subject matter for the Vehicle which is provided for the assembly. The CUSTOMER shall provide a written declaration from the third party to this effect. If existing, the CUSTOMER shall assure that the respective third party delivers the motor vehicle registration certificate or trailer registration document directly to FELDBINDER. FELDBINDER shall be entitled to contact any third parties directly concerning the respective security agreements and the subsequent handling of security issues concerning reservation of title or respective conditional ownership interests. FELDBINDER’s reservation of title or conditional co-ownership interests shall continue if the rights of the third party end, and in this case, Clause 9.5(b) shall apply;
(b) If the Vehicle which is provided for the assembly of the Subject Matter is owned by the CUSTOMER alone: The CUSTOMER shall be obliged to transfer the conditional co-ownership of the entire Vehicle including any vehicle bodywork as security to FELDBINDER which shall be in proportion to the value of the Subject Matter for the Vehicle which is provided for the assembly and during the term of said conditional co-ownership to use the Vehicle solely as a loan. The security transfer of conditional ownership to FELDBINDER and the agreement of a lender/borrower relationship shall be deemed to be executed when the Vehicle is delivered to the CUSTOMER, if existing under FELDBINDER's retention of the respective vehicle registration certificate or trailer registration document.
9.6 The CUSTOMER shall be entitled to process, transfer or assign the Reserved Goods within the orderly course of the CUSTOMER’s business dealings subject to the following provisions:
(a) As long as the retention of title exists, any processing, sale, pledging, transfer of ownership by way of security, rental or other form of transfer of the Reserved Goods without FELDBINDER’s written consent shall not be permitted. The Reserved Goods may not be removed from the territory of the Federal Republic of Germany without FELDBINDER’s written permission;
(b) The processing of the Reserved Goods subject to FELDBINDER’s retention of title is undertaken for FELDBINDER. In the new item a conditional co-ownership share held by FELDBINDER shall arise corresponding to the relation of the value of the Reserved Goods to the value of the other processed items. The value of the Reserved Goods shall be determined by the price the CUSTOMER has been charged;
(c) As long as FELDBINDER’s claims have not entirely been paid, the CUSTOMER hereby assigns to FELDBINDER all claims arising from the further sale of any Reserved Goods amounting to the value of the Reserved Goods, and likewise, to the extent that the Reserved Goods were subject to further processing by CUSTOMER;
(d) Until revoked by FELDBINDER, the CUSTOMER is entitled to make any assigned claims arising out of further sales of the Reserved Goods;
(e) Regarding road vehicles: During the period of its retention of title, FELDBINDER has the right to possess the vehicle registration document. The CUSTOMER is obliged to file a written application with the Vehicle Registration Office requesting that the vehicle registration document be handed over to FELDBINDER.
9.7 In case of third party possession, especially in case of a seizure of the Reserved Goods and co-owned secured goods respectively, or a use of the contractor’s lien by a workshop, the CUSTOMER shall immediately inform FELDBINDER thereof in writing, and shall inform the third party without delay of FELDBINDER's retention of title. The CUSTOMER shall bear all necessary expenses incurred for terminating any such possession and for efforts to reacquire possession of the Reserved Goods and co-owned secured goods respectively, to the extent that said costs cannot be recovered from any third parties.
9.8 The CUSTOMER shall be obliged to maintain the Reserved Goods and conditional co-ownership respectively subject to FELDBINDER’s reservation in good working order. Repairs that become necessary are to be carried out immediately by FELDBINDER or by a workshop approved by FELDBINDER to care for the Subject Matter, unless there is a case of emergency.
9.9 The CUSTOMER shall, for the duration of the retention of title and co-owned security respectively, take out fully comprehensive vehicle insurance cover with an appropriate level of excess or, in case of railway vehicles, a comparable insurance, providing instructions that all rights under the insurance contract are due to FELDBINDER. In the event that the CUSTOMER fails to meet this obligation immediately, FELDBINDER may take out fully comprehensive insurance at the CUSTOMER’s expense, advance all insurance premium costs, and recover the said insurance premium costs from the CUSTOMER as part of the claim under the contract. Unless otherwise agreed, all benefits arising from the fully comprehensive vehicle insurance are to be used entirely for the repair of the Subject Matter. In the event that FELDBINDER renounces a repair in case of serious damage, insurance benefit shall be used for the repayment of FELDBINDER’s claim, the costs of all additional services and for repayment of costs advanced by FELDBINDER. The CUSTOMER hereby assigns its possible additional claims against the insurance to FELDBINDER.
9.10 The CUSTOMER is obliged to pay and/or reimburse all costs which could possibly be incurred by FELDBINDER in connection with the Subject Matters under retention of title, for example (without limitation) taxes, liability for damages in connection with the operation of the Subject Matters etc.
9.11 Notwithstanding any ongoing legal provisions, FELDBINDER shall be granted a right of retention and a lien also based upon prior work, prior spare part deliveries or other prior performance enforceable against all items of the CUSTOMER that came into FELDBINDER’s possession by the order insofar as it relates to the Subject Matter or a permanent business relationship exists with the CUSTOMER. In the event of an enforcement of said lien, notice in writing delivered to the CUSTOMER’s last known mailing address shall be deemed sufficient for the threat with sale of a lien.
9.12 FELDBINDER hereby commits itself, upon the CUSTOMER’s request, to release its existing security of FELDBINDER’s choice to the extent that the realisable value of the security exceeds the total value of FELDBINDER’s claims by more than 10 %.
10.1 Only FELDBINDER’s product description in the order confirmation shall apply as the agreed composition of the Subject Matter. Public statements, recommendations or advertising by FELDBINDER or third parties shall not represent any indication of the composition of the Subject Matter as per the contract.
10.2 Warranty claims by the CUSTOMER cannot be made in relation to the modifications customary in trade referred to in Clause 3.4.
10.3 In the event of the CUSTOMER’s breach of the duty to inspect and give notice of defects according to Clause 6.2, the assertion of any warranty claims by the CUSTOMER is excluded in this respect. FELDBINDER shall be entitled to inspect any items noticed as defective themselves, or to have said items inspected by experts.
10.4 Insofar as a defect exists which has been notified within the correct time limits prescribed in Clause 6.2, FELDBINDER is entitled to carry out at its option supplementary performance within a reasonable deadline by undertaking warranty repairs or by delivering a non-defective replacement for the Subject Matter. In the event that the remedy is ineffective, the CUSTOMER is entitled at its option to require either a reduction in the purchase price or the cancellation of the contract. The CUSTOMER has no cancellation rights in the case of immaterial defects. Furthermore, FELDBINDER shall be liable for possible claims for compensation from the CUSTOMER arising from or in connection with the defects in the subject matter, solely in accordance with the provisions of Clause 13.
10.5 The following shall apply to FELDBINDER’s supplementary performance:
(a) In principle, FELDBINDER is allowed two attempts at warranty repairs;
(b) The CUSTOMER may only submit claims for warranty repairs directly to FELDBINDER or to an agreed service centre approved by FELDBINDER for such service. The CUSTOMER must transport the Subject Matter to that location at its own cost; FELDBINDER is not obliged to pay an advance payment for the transport or inspection.
(c) Parts replaced in the course of the warranty repairs shall become the property of FELDBINDER;
(d) In the event that a Subject Matter should become inoperational as a result of a warranty defect, the CUSTOMER shall turn to the service centre approved by FELDBINDER to care for the service that is closest to the inoperational Subject Matter. Said service centre shall determine whether the required repairs are to be performed on the spot or at the service centre’s workshop;
(e) To the extent a defect under the warranty exists, FELDBINDER shall bear the costs of all those expenses that become necessary for remedial purposes; this does not include expenses caused by the dismounting or reinstallation of the defective Subject Matter. To the extent that the expenses increase disproportionately e.g. because the Subject Matter - contrary to its intended use - has been moved by the CUSTOMER to another location, FELDBINDER is not obliged to assume the expenses increased thereby or FELDBINDER can at its option refuse at its option to carry out the remedies; in the latter case the CUSTOMER shall be entitled to the same rights as those which apply where the remedy is ineffective (Clause 10.3);
(f) With respect to remedies of third-party vehicle bodyworks being Subject Matter of the contract, the CUSTOMER shall at FELDBINDER’s demand first turn to the third-party manufacturer of the vehicle bodywork. Likewise, with respect to warranty defects of tyres, wheels, cooling equipment, brake parts, vehicle load supports, axles, axle assemblies, or similar items, the CUSTOMER shall at FELDBINDER’s demand first turn to the respective third-party manufacturer or their approved service centre. In these cases FELDBINDER assigns any potential warranty claims against third-party manufacturers to the CUSTOMER. The CUSTOMER is not obliged to assert these claims in the courts. If the claim made against the third party manufacturer remains unsuccessful, said rights may be asserted against FELDBINDER insofar as the CUSTOMER then assigns said warranty claims back to FELDBINDER. This provision shall also apply correspondingly to used spare parts provided by FELDBINDER which FELDBINDER has obtained from a supplier.
10.6 The provisions of this Clause 10 also apply to repairs and service work carried out by FELDBINDER.
10.7 Without prejudice to applicable statutory provisions, FELDBINDER is granted a right of retention and lien on the item subject to repair which also includes prior work, prior spare part deliveries and other prior services to the extent that they, the services, relate to the item subject to repair or a permanent business relationship with the CUSTOMER exists. In relation to the threatened sale of a lien, Clause 9.11 shall apply.
10.8 The warranty claim of the CUSTOMER shall expire to the extent that a loss has arisen or increased because the Subject Matter, despite FELDBINDER’s request, has not been delivered to FELDBINDER’s own production facility within one week after FELDBINDER has received the CUSTOMER’s notice of defect.
10.9 Warranty claims by the CUSTOMER shall be excluded, to the extent that defects are causally related to any of the following occurrences, such that
10.10 The wear and tear according to regulation of so called wearing parts like tyres, wheels, disc brakes, brake pads, filter elements, shut off valves, seals, delivery hoses, aeration systems etc., is excluded from the liability for defects.
10.11 In the event that the CUSTOMER receives defective installation instructions, FELDBINDER shall only be obliged to supply installation instructions free of defects and this only in the event that the defect in the installation instructions is an obstacle to the proper installation.
10.12 All warranty claims by the CUSTOMER shall become statute-barred within one year calculated from the beginning of the limitation period prescribed by statute. This shall not apply when FELDBINDER have fraudulently concealed the defect nor when strict liability on the part of FELDBINDER to pay compensation exists pursuant to Clause 13. Agreements between the CUSTOMER and its recipients shall not be borne by FELDBINDER if they go beyond statutory claims based on defects.
10.13 If FELDBINDER carries out supplementary performance less than one month prior to the expiry of the limitation period within the meaning of Clause 10.12, the respective limitation period shall be extended by a further three (3) months, starting from the CUSTOMER's acceptance of the remedied or new supplied Subject Matter. In case of remedial action this only applies for the remedied part and any defects caused by the remedial action. Such supplementary performance by FELDBINDER shall not constitute a "delivery" within the meaning of § 438 para. 2 BGB (German Civil Code). This shall apply without prejudice to the statutory provisions on the suspension of the limitation period.
10.14 The sale of used vehicles or other used subject matter is made under the exclusion of any liability for defects without prejudice to FELDBINDER’s liability for damages under Clause 13. CUSTOMER claims based on fraudulent concealment of defects remain unaffected.
10.15 The preceding terms conclusively and fully incorporate FELDBINDER’s liability for defects.
11.1 In the event of rental the CUSTOMER is obliged, prior to transfer of possession, to inspect the Subject Matter or hired item, respectively, with respect to functioning.
11.2 The CUSTOMER is obliged to use the hired item only in compliance with all traffic regulations (especially the respective valid rules of the road or railway traffic, respectively). The hirer is obliged to use the hired item only within its usual field of application and in compliance with its technical features (e.g. permissible loading capacity).
11.3 The CUSTOMER is obliged to use and handle the hired item properly and at its own cost keep said item in a roadworthy condition as well as secure it amply against theft. If the term of hire is more than four weeks, the CUSTOMER is obliged to carry out the necessary servicing work at its own cost, unless otherwise agreed with FELDBINDER. FELDBINDER shall be notified without delay of any damage incurred to the hired item.
11.4 FELDBINDER shall be notified in writing without delay of any accident with the hired item. In the event that persons are injured or considerable damage is incurred to the hired item or to items of the CUSTOMER or a third party, the police shall be informed immediately and shall be instructed to draw up a report. The police reference number shall be provided to FELDBINDER without delay. This obligation shall also apply in the event of theft of the hired item. Even in the event of minor damages as well as theft the CUSTOMER shall provide FELDBINDER with a detailed report and a presentation of a sketch. The report on the accident or theft must in particular contain names and addresses of all involved persons and possible witnesses.
11.5 Only the CUSTOMER is allowed to use the hired item. The CUSTOMER is not allowed to permit the use to a third party.
11.6 Upon expiration of the rental period the CUSTOMER is obliged to return the hired item to FELDBINDER to the agreed place. Unless otherwise agreed the place of return shall be the registered office of the respective FELDBINDER company. An extension of the rental period requires the written consent of FELDBINDER prior to expiration of the said period.
11.7 In the event that the hired item is not returned on time the CUSTOMER has to pay a contractual penalty of EUR 500.00 for every day commenced after the agreed day of return, however, up to a maximum of EUR 20,000.00. Possible further claims for damages by FELDBINDER shall thereof remain unaffected; the contractual penalty shall be credited against such further claims for damages. FELDBINDER reserves the right to demand the contractual penalty up until the issue of the final invoice.
In the event of the sale of subject matter to a leasing company these General Terms and Conditions shall apply with the following provision:
12.1 The leasing company becomes FELDBINDER’s sole contractual partner. Any changes to the legal relationship between the leasing company and the lessee, for example, the cancellation of a promise of financing for the lessee, shall not affect the validity of the contract between FELDBINDER and the leasing company.
12.2 The leasing company is already entitled before the complete payment of FELDBINDER’s claims (in terms of Clause 9.1), to let the lessee have possession of the Subject Matter which is still subject to a right of retention; the leasing company may also demand that FELDBINDER performs its contractual obligations directly to the lessee.
12.3 FELDBINDER already grants its consent in advance to the assignment of the warranty rights of the leasing company contained in the contract with FELDBINDER to the lessee.
12.4 After the surrender of the Subject Matter to the lessee the leasing company is, inter alia, also liable for the duration of the reservation of title for the performance of the contractual obligations in terms of Clause 9 by the lessee. This also applies, in case of road vehicles, for example to the obligation to make the vehicle registration documents available to FELDBINDER throughout the duration of the reservation of title (Clause 9.6(d)).
12.5 If a leasing company joins in with a contract with FELDBINDER’s consent after the conclusion of the contract, the lessee remains obliged under the contract alongside the leasing company.
13.1 CUSTOMER claims for damages, regardless of their legal basis, - for example delays, defective delivery, breaches of binding obligations or obligations arising from contract negotiations, tortious act - shall be excluded, unless mandatory liability exists. For example, this is the case in the event of injury to life, body or health as well as in the event of intentional acts, gross negligence, or breach of essential contractual obligations, the fulfilment of which first facilitates the due implementation of the contract and upon their compliance the CUSTOMER may regularly rely, by FELDBINDER, their statutory representatives or employees, furthermore in the event of liability pursuant to a product liability statute or to the extent that FELDBINDER has given an express guarantee (Para. 443 German Civil Code) as to the quality of a product or an exercise risk. An alteration of the burden of proof to the disadvantage of the CUSTOMER does not result from this.
13.2 The liability of FELDBINDER for gross negligence as well as ordinary negligent breaches of essential contractual obligations shall be limited to the foreseeable damage which is typical for this type of contract; in cases of ordinary negligence the liability of FELDBINDER is otherwise excluded pursuant to Clause 13.1.
13.3 In case of repair orders, with respect to the additional contents of the respective vehicle or the vehicle’s accessories or equipment, FELDBINDER shall only be liable to the extent that said items were delivered especially to FELDBINDER for safekeeping.
13.4 In particular, FELDBINDER shall not be liable for damages to the extent this is caused by the improper handling of the Subject Matter by the CUSTOMER.
13.5 Vehicle scales are properly calibrated before the handover of the Subject Matter or vehicle, respectively. After the discovery of a defect, the use of such vehicle scale must be stopped immediately and the defect must be notified to FELDBINDER without delay (cf. Clause 6.2). The liability of FELDBINDER for damages caused by the incorrect calibration of the vehicle scales is excluded to the extent such damages result from a further use of the vehicle scale after discovery of the defect.
13.6 Insofar as the liability pursuant to the preceding provisions is limited, such limitation shall also apply to the personal liability of employees, workers, co-workers, representatives and assistants of FELDBINDER.
13.7 The CUSTOMER shall be obliged to give notice without delay of all damages and losses for which FELDBINDER is to be held answerable.
FELDBINDER is entitled to affix the following company signs or stickers to the subject matter in a clearly visible position:
(a) A company sign “FFB” to be welded onto the subject matter, dimensions approx. 23.35 x 22.55 cm;
(b) A diamond-shaped sticker bearing the company logo “FFB” with dimensions of approx. 30 and 21 cm;
(c) A diamond shaped company sign bearing the logo “FFB” to be welded on. Dimensions approx. 14.09 and 20.13 cm;
(d) A sticker with the text www.feldbinder.com; Dimensions approx. 90 x 8 cm;
(e) Company sign „FFB FELDBINDER“ (with a banner), sticker in a diamond /asymmetrical shape; dimensions approx. 74 and 21.9 / 11.6 cm;
(f) As well as any similar company signs or stickers.
15.1 The CUSTOMER gives an assurance that he is not a dealer but a carrier and/or commercial lessor of vehicles. The CUSTOMER undertakes to register FELDBINDER's vehicle in its name, to use it exclusively for its own purposes and not to resell it within six (6) months of registration, unless FELDBINDER has consented in writing to the resale. This shall not apply if the CUSTOMER could not reasonably be expected to retain the vehicle due to unforeseen or exceptional circumstances (e.g. significant damage caused by an accident). These obligations shall apply mutatis mutandis in the event of a sale to leasing companies (Clause 12).
15.2 In the event of a breach of the obligations pursuant to Clause 15.1, FELDBINDER shall be entitled to demand a contractual penalty amounting to 15% of the net sales price.
16.1 FELDBINDER shall be entitled to use data concerning the exchange of purchased items and payments with the CUSTOMER in compliance with the respective data protection provisions.
16.2 Place of performance shall be FELDBINDER’s registered office. Place of jurisdiction shall be Lueneburg, Germany. FELDBINDER is entitled to assert any or all of their claims against a contracting party before any other competent court exercising legal jurisdiction over the party.
16.3 The contractual relationship between the parties, as well as any other possible tortuous claims arising thereunder, shall be governed entirely by German law excluding the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
16.4 Any transfers of CUSTOMER rights and duties arising under the contract shall require the written consent of FELDBINDER.
16.5 The CUSTOMER shall be allowed to set-off claims or assert a right of retention withholding against claims asserted by FELDBINDER only if the alleged counterclaim is undisputed, acknowledged or determined by the courts.
16.6 Should one or more provisions of these General Terms and Conditions or other agreements between the parties be, or become legally invalid or unexecutable, the validity of the remaining provisions shall not be affected thereby.
16.7 In the event of discrepancies between the German and the English text, the German text takes priority.
