1.1 The following General Terms & Conditions apply to all supplies and sales by Fontaine® & Co. GmbH (the “Supplier”) to any person acting in exercise of their trade, business or profession (entrepreneur), any legal person under public law or any special fund under public law. They also apply to all future contracts for supplies and services between the Supplier and the respective Customer.
1.2 The following General Terms & Conditions apply, unless expressly agreed otherwise. Deviating agreements that have been made before or on conclusion of contract require written form to be effective. Any conflicting terms and conditions of the Customer are hereby rejected, unless the Supplier has agreed to those conditions in writing.
1.3 Unless agreed otherwise, a contract is concluded through a written order confirmation from the Supplier in accordance with their General Terms & Conditions.
2.1 Quotations made by the Supplier are non-binding. Orders and order confirmations are only binding for the Supplier if they are confirmed in writing.
2.2 The documents that are included in a quotation, such as images, drawings, weight data, performance data and dimension data, are only approximate, unless expressly identified as binding. In particular, they do not constitute any warranty of characteristics or quality. Warranties require written form and must be expressly identified as warranties. All offers and associated documents must be treated as confidential by the recipient and must not be made accessible to third parties without written consent.
2.3 The Supplier reserves title and copyrights in samples, quotations, drawings and similar information, both tangible and intangible – including in electronic form; such information must not be made accessible to third parties.
3. Prices & payment
3.1 Prices apply ex works, unless otherwise agreed. Prices are exclusive of the applicable statutory VAT.
3.2 Unless otherwise agreed, payment must be made to the Supplier’s account strictly net, as follows:
1/3 prepayment after the order confirmation has been sent,
1/3 after half the delivery period,
1/3 immediately after notification of readiness to dispatch.
3.3 The Customer only has the right to withhold payments to the extent that their counterclaims are undisputed or legally binding.
3.4 The Customer only has the right to offset against counterclaims arising from other legal relationships to the extent that such counterclaims are undisputed or legally binding.
4. Delivery period & delay in delivery
4.1 The delivery period must be defined in the agreements between the parties to the contract. Compliance by the Supplier with the delivery period is contingent on all commercial and technical questions having been clarified between the parties to the contract and the Customer having met all their obligations, such as providing necessary official certificates and approvals or making a prepayment. If this is not the case, the delivery period will be extended by a reasonable time.
4.2 Compliance with the delivery period is subject to correct and punctual delivery of supplies and raw materials to the Supplier by their suppliers. The Supplier has to notify the Customer of anticipated delays as soon as possible.
4.3 The delivery period is complied with if the delivery item has left the Supplier’s factory or notification of readiness to dispatch has been given prior to expiry of the delivery period.
4.4 If shipping or acceptance of the delivery item are delayed for reasons for which the Customer is responsible, the Customer will be charged the expenses that arise as a result of delay, commencing one month after notification of readiness to dispatch or of readiness to accept. However, the Supplier is entitled to dispose of the delivery item elsewhere after a reasonable period of time set by the Supplier has lapsed and to supply the Customer under a reasonably extended deadline and the Supplier is entitled to demand reimbursement of expenses that are incurred as a result of the delay.
4.5 If non-compliance with the delivery period is the result of force majeure, industrial action or other events that are outside the Supplier’s control, the delivery period will be extended by a reasonable time. The Supplier must notify the Customer of the start and end of any such circumstances at the earliest opportunity.
4.6 The Customer may withdraw from the contract without notice if performance in full becomes definitively impossible for the Supplier prior to the transfer of risk. The Customer may also withdraw from the contract if performance of a part of the delivery becomes impossible for an order and the Customer has a justified interest in rejecting partial delivery. If this is not the case, the Customer must pay the proportion of the contract price applicable to the partial delivery. The same applies in the event of inability of the Supplier. Section 8.2 applies otherwise.
If the impossibility or inability arise during default of acceptance or if the Customer is solely or predominantly responsible for such circumstances, the Customer will remain liable for counterperformance.
4.7 If the Supplier is in default and the Customer suffers loss as a result, the Customer is entitled to demand liquidated damages. Damages are 0.5% for each full week of delay up to a maximum in total of 5% of the value of that part of the full delivery that cannot be used in good time or in conformity with the contract, as a result of the delay.
If the Customer sets the Supplier a reasonable additional period for performance after the due date – taking into account the statutory exceptions – and the period is not complied with, the Customer is entitled to withdraw from the contract in accordance with the statutory provisions. The Customer agrees to declare whether they are exercising their right to withdraw within a reasonable period at the Supplier’s request.
Other claims arising from default in delivery must be determined exclusively in accordance with section 8.2 of these Terms & Conditions.
5. Transfer of risk & acceptance
5.1 The risk will transfer to the Customer when the delivery item has left the factory, including, as the case may be, if partial deliveries are made or the Supplier has undertaken to perform other additional services, such as shipping costs or delivery and installation.
5.2 If shipping is delayed or remains unperformed as a result of circumstances for which the Supplier is not responsible, the risk will transfer to the Customer on the date that notice is given of readiness to dispatch. The Supplier agrees to take out any insurance the Customer requests, at the Customer’s expense.
5.3 Partial deliveries are acceptable, unless expressly agreed otherwise.
6. Retention of title
6.1 The Supplier retains title in the delivery item until receipt of all payments – including for additionally owed ancillary services – under the delivery contract. In the event of default in payment, the Supplier is entitled to take back the delivery item after a warning and the Customer is obliged to surrender the item. This also applies in the event of any other behavior in breach of contract by the Customer, following prior unsuccessful warning by the Supplier.
6.2 The Supplier may only demand return of the delivery item on the basis of retention of title if the Supplier has withdrawn from the contract. The Customer must notify the Supplier immediately in the event of seizure or other interference by third parties.
An application to commence insolvency proceedings relating to the assets of the Customers entitles the Supplier to withdraw from the contract with immediate effect and to demand immediate return of the delivery item.
6.3 The Supplier is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the Customer’s expense, unless the Customer provides evidence of having taken out insurance on their own account.
6.4 The Customer is entitled to resell the delivery item in the normal course of their business. However, the Customer hereby assigns to the Supplier all claims that arise in favor of the Customer from resale vis-à-vis purchasers or third parties. The Customer is authorized to collect such claims, even after assignment. The power of the Supplier to collect such claims itself remains unaffected hereby.
The power to collect will expire if:
- the Customer defaults on their payment obligations vis-à-vis the Supplier or
- it is revoked or
- an application is made to commence insolvency proceedings.
The Supplier may then demand that the Customer:
- informs the Customer of assigned claims and the obligors of the claims,
- provides all information necessary for collection of the debt,
- hands over the applicable documents and
- informs the obligors of the assignment, unless the Supplier has already done so.
6.5 If the delivery item is resold with other goods that are not the property of the Supplier, the Customer will assign their claim against the relevant purchaser to the Supplier in the amount of the delivery price agreed between Supplier and Customer.
6.6 Processing, transformation or intermixture of goods subject to retention of title with other movable or immovable items is always performed by the Customer on behalf of the Supplier. If goods subject to retention of title are processed, transformed or intermixed with other items that are not the property of the Supplier, the Customer thereby transfers to the Supplier co-ownership in the new property in proportion of the value of the goods subject to retention of title to the other processed items at the time of processing, transformation or intermixing.
6.7 If goods from the Supplier are combined, transformed or intermixed inseparably with other movable items into a single item and the single item is considered as the main item, the Customer hereby transfers co-ownership proportionally to the Supplier, unless the main item is not the Customer’s property.
6.8 If the Customer combines or intermixes the delivery item with a main item of a third party for payment or if the Customer transforms the delivery item in connection with combination or intermixture, the Customer hereby assigns their claims to payment vis-à-vis the third party to the Supplier. The Customer assigns to the Supplier claims vis-à-vis third parties that arise as a result of combining, intermixing or transforming the delivery item with land.
6.9 The Supplier accepts the above assignments and transfers.
Transfer will be replaced by the Customer storing the property or joint property for the Supplier free of charge. In all other respects, the same provisions apply to the item that has been created by processing, transformation, combination or intermixing as apply to the goods subject to retention of title.
7. Claims for defects
7.1 The Supplier bears the liability for material defects and legal defects, excluding further claims – subject to section 8.2 – as follows:
7.2 The Supplier must replace all such parts or remedy the defect in such parts, at their choice, for all parts that are found to be defective as the result of circumstances that predate transfer of risk. The Customer is obligated to produce proof. The Supplier must be informed immediately in writing when such defects are identified. Replaced parts become the Supplier’s property.
7.3 For all the remedies and replacement deliveries deemed necessary by the Supplier to be performed, the Customer must specify the required time and opportunity, after consulting the Supplier; otherwise, the Supplier will be released from liability for the consequences arising from this. Only in urgent cases of risk to operational reliability or in order to prevent excessive damage (in which cases the Customer must produce proof and notify the Supplier immediately), does the Customer have the right to remedy the defect independently or have the defect remedied by third parties, subject to the Customer’s duty to mitigate loss, and to demand compensation for the necessary expenses from the Supplier.
7.4 To the extent that the complaint proves to be justified, the Supplier bears the direct costs of remedying the defects, excluding removal and/or installation costs or the costs of replacement delivery.
7.5 The Customer has a statutory right to withdraw from the contract if the Supplier – taking into account the statutory exceptions – allows a reasonable period that has been set for the Supplier to remedy the defect or make replacement delivery because of a material defect to lapse. If the defect is only minor, the Customer only has the right to reduce the contract price. The right to reduction of the contract price remains excluded in all other cases.
7.6 Other claims will be determined exclusively in accordance with section 8.2 of these Terms & Conditions.
7.7 No liability is accepted in particular in the following cases:
Unsuitable use or use not as intended, poor storage and maintenance, negligent unloading, movement and installation by the Customer, operation not as intended, faulty installation or commissioning by the Customer or third parties, natural wear and tear or corrosion, defective or negligent handling, improper maintenance, unsuitable resources, excessive use, accidents, modifications without written consent of the Supplier, repairs carried out by the Customer or third parties, faulty construction work, unsuitable foundations, chemical, electrochemical or electrical influences, use of non-original spare and wear parts of the Supplier, weathering and other natural influences, as long as they are not attributable to the Supplier.
7.8 If the Customer or a third party remedies the defect incorrectly, the Supplier will not bear any liability for the consequences that arise as a result. The same applies to changes made to the delivery item without the Supplier’s prior consent.
7.9 If use of the delivery item results in infringement of intellectual property rights or copyrights in Germany, the Supplier must acquire the right to continued use at their own cost on behalf of the Customer or must modify the delivery item in a way reasonable for the Supplier such that the right is no longer infringed.
If this is not possible on commercially reasonable terms or within a reasonable period, the Customer is entitled to withdraw from the contract, excluding further claims. Subject to the above requirements, the Supplier also has a right to withdraw from the contract.
7.10 The Supplier’s obligations in section 7.9 are conclusive with regard to infringement of property rights or copyrights, subject to section 8.2.
The obligations only arise if:
the Customer informs the Supplier immediately of intellectual property rights or copyrights that have been asserted, the Customer supports the Supplier to a reasonable extent in the defense of such claims or allow the Supplier to perform the modifications in accordance with 7.9, the Supplier retains the option of all defensive measures including out of court settlements, the legal defect has not arisen from an instruction by the Customer and the infringement was not caused by the fact that the Customer has modified the delivery item without authorization or used it in a manner contrary to the contract.
8. Supplier’s liability & exclusion of liability
8.1 The Supplier only bears liability – for any legal reason whatsoever – for damage other than damage to the delivery item itself in cases of:
b. gross negligence of the owner/executive bodies or officers,
c. culpable injury to life, body or health,
d. defects that the Supplier has fraudulently concealed,
e. defects in the delivery item, where there is liability under product liability law for personal injury or property damage with regard to products for private use.
In case of culpable breach of essential contractual obligations, the Supplier also bears liability in the event of gross negligence of non-executive employees, limited to typical, reasonably foreseeable damage, in turn limited to the Supplier’s sum insured via product liability insurance. This limitation of liability also applies in all cases of simple negligence.
Where the Supplier’s liability is excluded or limited, it is also excluded or limited with regard to the personal liability of the Supplier’s officers, employees, workers, personnel, representatives and agents.
Other claims are excluded.
All the Customer’s claims – for any legal reason whatsoever – will lapse 12 months from the date of transfer of risk. The statutory periods of limitation apply to claims under section 8.2 a-f. They also apply to defects in delivery items that have been used according to their normal use for a building and that have caused a defect in the building.
10. Use of software
10.1 If software is included in the scope of delivery, the Customer is granted a non-exclusive single license to use the supplied software and its documentation. It is transferred for use on the delivery item for which the software is intended. It is not permitted to use the software on more than one system.
10.2 The Customer may only copy, edit, compile or convert the object code into the source code to the extent permitted by law (Section 69a ff. of the Copyright Act (UrhG)). The Customer agrees not to remove the manufacturer’s data – in particular copyright notices – or to change such data without the prior express consent of the Supplier.
10.3 All other rights in the software and documentation, including in copies, are reserved by the Supplier or the software supplier. The granting of sublicenses is not permitted.
11. Place of performance, applicable law & place of jurisdiction
11.1 The Supplier’s registered address is agreed as the place of performance for the liabilities and claims arising from this contract or any withdrawal that is declared.
11.2 The law of the Federal Republic of Germany applies exclusively to all legal relationships between the Supplier and the Customer, excluding the UN Convention on International Sale of Goods (CISG).
11.3 Place of jurisdiction is at the court with jurisdiction at the Supplier’s registered address. However, the Supplier is entitled to bring an action at the Customer’s head office.
12. Closing provisions
12.1 Verbal collateral agreements and subsequent additions or changes are only valid if they are confirmed in writing by the Supplier. This also applies to any change to this requirement of written form.
12.2 If a provision of these General Terms & Conditions is invalid, the validity of the other provisions remains unaffected. The invalid provision will be replaced with a valid provision that corresponds as closely as possible in legal and economic terms to what was actually intended.