Download the Fischer Panda General Terms and Conditions of Delivery and Payment as pdf file
1. General Terms and Conditions of Delivery and Payment
1.1 Offer, Order
1.1.1 Any deliveries made and performances rendered by the Fischer Panda GmbH [private company limited by shares pursuant to German law] are subject to these terms and conditions and terms of payment and the agreement entered into by the Fischer Panda GmbH and the seller. The Fischer Panda GmbH T&Cs apply exclusively; T&Cs of the customer which are inconsistent with these T&Cs or which deviate from them are hereby expressly excluded by Fischer Panda GmbH, except where Fischer Panda GmbH has expressly approved of them in writing. These Fischer Panda GmbH T&Cs also apply if the Fischer Panda GmbH unconditionally renders performance despite having had knowledge of the conflicting or deviating T&Cs of the customer.
1.1.2 Orders placed by the customer represent binding offers, which the Fischer Panda GmbH may accept within one week by way of serving an order confirmation or by way of performing the order. All offers of the Fischer Panda GmbH are non-binding, except where they have been expressly specified as binding.
1.1.3 Offer-related documentation such as images, drawings, indications of weight and dimensions are meant to be approximates, except where these have been expressly specified as binding.
1.1.4 Fischer Panda GmbH reserves all proprietary and intellectual property rights in any cost estimates, drawings and other documentation; these must not be disclosed to third parties. The Fischer Panda GmbH undertakes not to disclose to third parties any schemes and plans which have been designated as confidential by the customer without his prior consent.
Where construction-related documentation has been prepared on behalf of or at the request of the customer, it will be invoiced separately. The same applies if no agreement is being entered into subsequently.
1.1.5 Samples, models, drawings or data carriers provided by the customer will only be returned upon the request and at the expense of the customer. Where no agreement is being entered into subsequently and no such request [for return] is being made in due course, the Fischer Panda GmbH is entitled to destroy such samples, models and drawings within one month following the submission of the offer, without being liable for any claims for damages.
1.1.6 Our T&Cs apply in relation to consumers as well in relation to businessmen [“Unternehmer” technical term defined in the German Commercial Code “Handelsgesetzbuch”], except where a differentiation is made in the respective clause.
1.2 Pricing and Payment
1.2.1 The purchase price set out in the offer is binding. In relation to consumers, the statutory VAT is included.
1.2.2 If the customer is a businessman, the prices – if not agreed otherwise – are meant to be ex works including the loading at the works, excluding, however, the shipping costs, costs of packaging and VAT in the statutorily prescribed amount.
1.2.3 Where no specific agreement has been made, invoices shall be paid in advance and without any deductions. The receipt of the payment on one of the bank accounts designated on the invoices shall be decisive as regards the timeliness of any payments made. Cheques will only be accepted on account of performance. Bills of exchange will not be accepted.
1.2.4 In the case of individual deliveries which have been constructed pursuant to customer specifications, advance payments shall be agreed individually.
1.2.5 If the customer is in arrears with a payment, Fischer Panda GmbH is entitled to declare that all amounts owed to it are due for payment at once, without giving consideration to the actual maturity of the payments owed and to refuse any further performances and deliveries as long as these payments have not been made in full. Moreover, Fischer Panda GmbH may claim the statutory interest for late payments. If Fischer Panda GmbH evidences damage and loss beyond this scope, then Fischer Panda GmbH may claim the respective damages, except if the customer evidences that Fischer Panda GmbH did not suffer or did suffer a lesser damage and loss as a consequence of the late payment.
1.2.6 A right to a set-off may only be invoked by the customer if the respective counter-claims have been fully and finally adjudicated, are undisputed or admitted by Fischer Panda GmbH. If the customer is a businessman, he
01.02.2013 Kapitel/Chapter 1: General Terms and Conditions of Delivery and Payment -Seite/Page 1
may only assert any rights of retention he may have if the respective counter-claims stems from the same contractual relationship and provided these have been fully and finally adjudicated or where these are undisputed.
1.3 Delivery Times
1.3.1 The term of delivery commences with the posting of the order confirmation, however, not before the production of the documentation, approvals and releases as well as the clarification of technical issues which are to be procured by the customer and not prior to the receipt of any advance payments due.
1.3.2 The delivery deadline is deemed to have been complied with if the delivery item has left the works until the expiry of the deadline or if readiness for shipping has been indicated. Where an acceptance procedure must be carried out, the date of delivery shall – except if a refusal of the acceptance is justified – be decisive; alternatively, the indication of the readiness for shipment shall be decisive. The compliance with the delivery deadline is conditional upon correct and timely supply of Fischer Panda GmbH itself. The Fischer Panda GmbH has the right to rescind the contract if Fischer Panda GmbH does not receive the respective delivery item on time, despite having entered into a respective purchase agreement in good time. Fischer Panda GmbH will notify the customer of any impending delays or non-deliveries and will reimburse any consideration received in the case of a rescission.
1.3.3 The delivery deadline shall be reasonably extended in the case of measures relating to industrial action, in particular strikes and lockouts, as well as in the case of an occurrence of unexpected hindrances which fall outside of the sphere of influence of Fischer Panda GmbH, provided that such hindrances affect the manufacture and delivery of delivery items. The same applies where such circumstances occur in relation to the suppliers of Fischer Panda GmbH. The circumstances described above do also not fall within the sphere of influence of Fischer Panda GmbH if they occur due to a default. Fischer Panda GmbH will notify the customer of the commencement and the ending of such hindrances as quickly as possible.
1.3.4 If Fischer Panda GmbH is in default [of performance], the customer must grant Fischer Panda GmbH a reasonable grace period for specific performance. If delivery is not made until the expiry of the grace period, the customer may rescind the contract and may claim damages in accordance with Section 8 below.
1.3.5 Where the shipping is being delayed at the request of the customer, he shall be invoiced, commencing one month following the indication of readiness for shipping, for the costs incurred due to the storage in the works of Fischer Panda GmbH, however, for no less than 1% of the invoice value of each given month. However, following the grant and the fruitless expiry of a reasonable grace period, Fischer Panda GmbH is entitled to dispose of the delivery item.
1.3.6 Compliance with the delivery deadline further requires the timely and orderly performance of all duties of the customer. The defence of unperformed contract [Einrede des nicht erfüllten Vertrages - Section 320 Bürgerliches Gesetzbuch – German Civil Code] shall remain unaffected.
1.4 Passing of Risk and Acceptance
1.4.1 Where the customer is a businessman, the risk passes to the customer at the moment in time in which the delivery item leaves the works of Fischer Panda GmbH; the same applies where part-deliveries are being made or where Fischer Panda GmbH has undertaken further performances such as the delivery and the on-site installation of the delivery item. At the request of the customer, Fischer Panda GmbH will insure his delivery at his expense against theft, damage, transport damage, fire damage and water damage as well as against any other insurable events. The request must be phrased expressly and must be made in writing.
1.4.2 If the customer is a businessman and if delivery is delayed or omitted due to circumstances which cannot be attributed to Fischer Panda GmbH, the risk passes to the customer on the date on which readiness for shipping has been indicated. Fischer Panda GmbH is entitled to insure the delivery item against theft, damage, transport damage, fire damage and water damage as well as against any other insurable events at the expense of the customer, provided that the customer did not demonstrably object to taking out such insurance policies.
1.4.3 Any items delivered must be taken on by the customer, even where these show defects, however, without prejudice to the rights of the customer specified in Section 1.6.
1.5 Retention of Title
1.5.1 If the customer is a consumer, Fischer Panda GmbH retains title to the delivery items until all debts owed to Fischer Panda GmbH have been paid in full by the customer.
1.5.2 If the customer is a businessman, Fischer Panda GmbH retains title to the delivery items until all debts owed to Fischer Panda GmbH by the customer which stem from their business relationship, including all future liabilities arising from contracts entered into concomitantly or at some later stage, are settled, even if the actual delivery items in question have already been paid. The same applies where individual or all debts owed to Fischer Panda GmbH have been included into a current account whose balance has been struck and accepted. The customer is entitled to sell the delivery item in the course of his regular business operation. He hereby assigns any claims against his customers arising from such selling-on of goods which are subject to retention of title to the Fischer Panda GmbH by way of security. In the case of a processing, transformation or combination with other goods which are subject to retention of title, the Fischer Panda GmbH directly and unconditionally acquires legal title to the goods so created. The goods in question are then subject to retention of title. The customer may collect these claims even after these have been assigned. This shall not affect the right of Fischer Panda GmbH to collect its claims; however, Fischer Panda GmbH undertakes not to collect its claims as long as the customer honours his payment obligations in due course, is not in arrears and in particular as long as no application for the initiation of insolvency proceedings has been filed or no cessation of payments is given. Fischer Panda GmbH may require that the client discloses the assigned claims and the identity of the respective debtors, discloses all details necessary for the collection, hands over all related documentation and to notifies the creditor of such assignment. If the delivery item is being sold on together with other goods which are not the property of Fischer Panda GmbH, the claims of the customer against his end consumers are deemed to have been assigned in the amount of the initial contract price. The retention of title and other collateral to be provided for the benefit of Fischer Panda GmbH persist as long as Fischer Panda GmbH has been fully released from any liabilities which it incurred in the interest of the customer. If the value of the collateral exceeds the value of Fischer Panda GmbH’s claims more than 20%, Fischer Panda GmbH is, upon the request of the customer and at the discretion of Fischer Panda GmbH, obliged to release collateral belonging to Fischer Panda GmbH in the value of the respective amount.
1.5.3 The customer must not pledge the delivery item nor assign it by way of security. The customer must notify Fischer Panda GmbH of any third party compulsory execution measures relating to goods which are subject to retention of title without delay, and in doing so must provide the documentation required for any related legal intervention; the same applies in the case of other types of detriments. Irrespective of this, the customer must specify existing rights in the goods to such third parties. The customer must bear the costs of such intervention by Fischer Panda GmbH to the extent in which the third party is unable to reimburse these.
1.6 Liability for Defects of the Delivery/Warranty
1.6.1 If the customer is a consumer, Fischer Panda GmbH’s liability for defects follows the respective statutory provisions.
1.6.2 If the customer is a businessman, the warranty claims of the customer require that the latter has complied with his obligation to inspect the goods and to give notice of defects (Section 377 Handelsgesetzbuch – German Commercial Code) without delay. Any identified defects must be documented in an as intelligible as possible manner and must be described using all documentation required for this purpose. In the case of an orderly notice of defect, Fischer Panda GmbH will perform specific performance as follows:
18.104.22.168 In the context of such specific performance, Fischer Panda GmbH is, in its sole discretion, entitled to cure the defect or to provide a replacement. Parts which have been replaced become the property of Fischer Panda GmbH. Fischer Panda GmbH shall be granted at least two opportunities to perform specific performance.
22.214.171.124 The customer shall grant the time and opportunity required for the implementation of all repairs and replacement deliveries which in the opinion of Fischer Panda GmbH are necessary, following a respective consultation with Fischer Panda GmbH; otherwise Fischer Panda GmbH shall be released from its liability. In the case of an urgency arising from an imminent danger to industrial safety as well as for purposes of preventing unreasonably high damage and loss, or should Fischer Panda GmbH be in default of specific performance, the customer may be granted the right to cure the defect himself or to let third parties perform such cure and to invoice Fischer Panda GmbH with the costs so incurred, provided, however, that Fischer Panda GmbH has given its prior written consent to such.
126.96.36.199 The customer must immediately return the delivery item to Fischer Panda GmbH’s premises, should the
01.02.2013 Kapitel/Chapter 1: General Terms and Conditions of Delivery and Payment -Seite/Page 3
former decide to assert a warranty claim. Fischer Panda GmbH will bear the costs of such return as well as the costs for the least expensive shipping of the cured delivery item or its replacement. Should the reclamation prove to be justified, Fischer Panda GmbH will bear the costs of the replacement ex works. Where delivery items (electric generators and other aggregates and components) shall become an integral part and should the modification and return to Fischer Panda GmbH entail an unreasonable effort, it may be agreed that a Fischer Panda GmbH technician or an authorised sub-contractor shall cure the defect on-site. Apart from the costs for the replacement including the costs for the least expensive shipping, the customer shall bear all other related costs, including any travel costs or costs of assembly.
The costs of installation and/or any modifications will not be borne by Fischer Panda GmbH.
1.6.3 Should Fischer Panda GmbH fail to render specific performance within the reasonable grace period granted by the customer or should specific performance definitively fail after several attempts, or should Fischer Panda GmbH refuse such specific performance, the customer shall be entitled to reduce the agreed remuneration and may claim the reimbursement of any related expenses incurred or may rescind the contract. If the defect in question is insignificant, the customer may merely ask for a reduction of the purchase price.
1.6.4 Fischer Panda GmbH is not liable for defects which are caused by inappropriate or inexpedient use or by a faulty installation or commissioning by the customer or by third parties which have not been instructed or authorised by Fischer Panda GmbH, or which represent regular wear and tear, or which stem from faulty or negligent treatment, lack of proper maintenance, inappropriate working materials, defective construction works, inappropriate foundation soil, or a chemical, electrochemical or electrical interference which does not fall within Fischer Panda GmbH’s sphere of influence. Where the specific performance rendered by the customer or by a third party proves to be inappropriate, Fischer Panda GmbH does not assume any liability from the consequences so caused. The same applies where the delivery item has been modified without the prior consent of Fischer Panda GmbH.
1.6.5 If the customer is a consumer, the warranty period for the delivery of a new item is two years, and one year in the case of a second hand item. The limitation period commences upon the passing of the risk. This shall not apply to claims for damages arising from defects. Section 1.8 applies to such claims for damages.
1.6.6 If the customer is a businessman, the warranty period is one year. The limitation period for any recourse claims pursuant to Sections 478, 479 BGB shall remain unaffected. This shall not apply in the case of claims for damages arising from defects. Section 1.8 applies to such claims for damages.
1.7.1 Any expenses for mechanics and allowance rates incurred on account of the commissioning, in particular for overtime work, work on Sundays and public holidays shall be borne by the customer in accordance with the laws of the Federal Republic of Germany. Journey times and travel times also count as working hours.
1.7.2 The costs for the return journey as well as for the transportation of tools and other working materials and the luggage shall be borne by the customer.
1.8 Liability for Defects
1.8.1 Fischer Panda GmbH’s liability for breaches of contractual duties as well as for tortuous acts is limited to intentional acts and to gross negligence. This shall not apply to any impairments of life or health or to bodily harm caused to the customer, or to claims arising from an infringement of material contractual terms, i.e. terms which reflect the nature of the contract at hand and whose infringement put the objective of the contract at peril, as well as to product liability claims and to claims for damages for default (Section 286 BGB). In relation to the above, Fischer Panda GmbH shall assume liability for any type of culpable behaviour. In addition, the above exclusion of liability shall equally apply to bodily harm caused by a merely careless negligence on the part of individuals which Fischer Panda GmbH employs to perform its contractual obligations [Erfüllungsgehilfen pursuant to Section 278 BGB]. Where liability for damages caused by a merely careless negligence is excluded for loss of life, bodily harm or health impairments of the client, the respective claims expire within one year after the respective claim arises or, in the case of damages for defects, within one year following the delivery of the item. Where Fischer Panda GmbH’s liability for damages is excluded or limited, the same applies in relation to the personal liability of employees, staffers, representatives and individuals which Fischer Panda GmbH employs to perform its contractual obligations [Erfüllungsgehilfen pursuant to Section 278 BGB].
1.9 Cancellation of the Contract
1.9.1 Should the customer unjustly rescind the contract, Fischer Panda GmbH is entitled, without prejudice to an assertion of higher damage and loss, to claim 10% of the gross contract value for the processing of the order and for any loss of profit incurred. The customer is entitled to furnish evidence for the fact that a lesser or no damage and loss has been incurred by Fischer Panda GmbH.
1.10 Applicable Law and Place of Jurisdiction
1.10.1 If not provided for otherwise in the contract, the place of performance shall be the place of business of the Fischer Panda GmbH. The statutory provisions regarding jurisdiction shall remain unaffected, except where the special provisions contained in Section 1.10.3 below provide otherwise.
1.10.2 These T&Cs are governed by the laws of the Federal Republic of Germany under exclusion of the Vienna Convention on the International Sale of Goods [CiSG].
1.10.3 The exclusive place of jurisdiction for disputes arising from contracts with businessmen, bodies corporate or special funds under public law is the competent court of law which has jurisdiction at the place of business of the Fischer Panda GmbH. The Fischer Panda GmbH, however, has the right to bring legal action against the customer at the general place of jurisdiction applicable to the latter.
Fischer Panda GmbH
Tel: + 49 (0) 5254-9202-0
Fax: + 49 (0) 5254-9202-550
01.02.2013 Kapitel/Chapter 1: General Terms and Conditions of Delivery and Payment -Seite/Page 5
Fischer Panda GmbH
Tel: +49 (0) 5254-9202-0
Fax: +49 (0) 5254-9202-550