Terms and conditions

General terms and conditions of business

§ 1 Scope and Principles

  1. These General Terms and Conditions (hereinafter referred to as GTC) apply to all business relationships between FHS – Forsttechnik Handel & Service GmbH (hereinafter referred to as Seller) and its customers (hereinafter referred to as Buyer).
  2. All deliveries, services, and offers of the seller are exclusively based on these General Terms and Conditions. These also apply to all future business relationships, even if not expressly agreed upon again. These General Terms and Conditions are deemed accepted upon placement of an order, or at the latest upon receipt of the goods or services by the buyer. Any conflicting terms and conditions of the buyer are hereby rejected.
  3. If a framework agreement exists between buyer and seller, the terms and conditions apply to both the framework agreement and the individual contract.
  4. All contractual business relationships, as well as any amendments, additions, side agreements, or supplementary agreements made between the seller and the buyer for the purpose of executing a contract, must be in writing. They only become effective upon written confirmation by the seller.

§ 2 Offer and conclusion of contract

  1. Due to the seller's diverse business areas, the subject of the offer and contract can include both partial products (components, parts and assemblies for metalworking) and new or used finished products (self-propelled work machines) as well as their accessories and spare parts.
  2. The information contained in offers, catalogs, brochures, illustrations, price lists, and similar documents of the seller regarding weights, dimensions, performance, prices, and the like are only approximate. This information is only binding if expressly agreed upon in writing.
  3. The seller's offers are always non-binding and subject to change. Only offers in written form form the basis for contract negotiations, the results of which, if they deviate from the offer, must be recorded in writing.
  4. Acceptance declarations and all orders placed by the buyer are binding for the buyer. However, for a contract to be legally valid, they require written or electronic confirmation from the seller.
  5. The seller's sales staff are not authorized to make any oral side agreements or give any oral assurances that go beyond the content of the written contract.

§ 3 Prices

  1. Until a contract is concluded, the binding period stated in the respective offers applies to prices. Otherwise, the prices stated in the seller's order confirmation plus the applicable statutory value-added tax are binding. Additional deliveries and services will be invoiced separately.
  2. Unless otherwise agreed, prices are ex works. If Euro pallets and their frames are required for transport, these will be charged separately.

§ 4 Delivery and performance time

  1. Delivery dates or deadlines, which must be binding, require written confirmation. They are only considered approximate and non-binding unless the seller has explicitly declared a written commitment as binding. If the buyer fails to clarify all details in a timely manner or fails to provide all necessary preliminary services in a timely manner, the delivery dates will be extended accordingly. Delivery dates are considered met upon notification of readiness for shipment.
  2. The buyer must check and acknowledge the delivery note. Any objections must be reported to the seller in writing without delay. Otherwise, the acknowledged delivery is considered accepted.
  3. The seller shall not be liable for delays in delivery or performance due to force majeure or events that significantly impede or render delivery impossible, even temporarily – including, but not limited to, strikes, lockouts, and official orders, even if these occur at the seller's suppliers or their sub-suppliers – even if delivery dates and deadlines have been contractually agreed upon. Such events entitle the seller to postpone delivery or performance for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the unfulfilled portion.
  4. If the impediment lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the unfulfilled portion. If the delivery time is extended or the seller is released from their obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the aforementioned circumstances if they notify the buyer without undue delay. 
  5. The seller is entitled to make partial deliveries and provide partial services at any time, unless the partial delivery or partial service is of no interest to the buyer.
  6. The seller's compliance with delivery and performance obligations presupposes the buyer's timely and proper fulfillment of its obligations.

§ 5 Transfer of Risk, Shipping, Acceptance

  1. The seller is obligated to make the agreed-upon object of the contract available for shipment in the agreed-upon quantity and at the agreed-upon time. The buyer is obligated to accept the agreed-upon object of the contract in the agreed-upon quantity and at the agreed-upon time.
  2. If shipment is delayed through no fault of the seller, the buyer is in default of acceptance. Upon the occurrence of default of acceptance, the risk of accidental deterioration and accidental loss passes to the buyer. Storage costs of 0.5% of the total price per commenced week are due no later than two weeks after the agreed delivery date. If the buyer does not accept the goods within three months of the conclusion of the contract or three months after delivery, the seller is entitled to withdraw from the contract and claim damages for non-performance.
  3. At the buyer's request, the shipment will be insured against shipping damage at the buyer's expense. This does not affect the transfer of risk. Loss or damage must be certified by the carrier.
  4. The risk passes to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller's warehouse for shipment. If shipment is delayed at the buyer's request, the risk passes to the buyer upon notification of readiness for shipment.
  5. The subject matter of the contract is deemed accepted upon acceptance without objection.

§ 6 Warranty, Notice of Defects

  1. The goods will be delivered by the seller free from manufacturing defects. The buyer is obligated to properly inspect the delivered goods immediately upon receipt at their own expense and to notify the seller in writing without delay of any obvious defects, incorrect deliveries, or shortfalls. A preclusive period of seven days from receipt of delivery applies to such notification. Latent defects must be reported to the seller in writing immediately upon discovery, but no later than two weeks after receipt. Otherwise, Sections 377 and 378 of the German Commercial Code (HGB) remain unaffected in the case of a commercial transaction between merchants.
  2. Any quality defects in a partial delivery do not entitle the buyer to reject the remainder of the agreed quantity, unless the buyer can prove that, under the circumstances, accepting only part of the delivery would be unreasonable. Transport damage must be reported to the seller immediately, and the necessary formalities must be completed with the carrier.
  3. Warranty periods are generally agreed upon contractually, insofar as this is necessary for new or used finished products. Otherwise, the statutory provisions of the German Commercial Code (HGB) apply.
  4. As a warranty, the buyer is generally only entitled to subsequent improvements. The warranty is fulfilled by the buyer, at their discretion, either repairing the defective item within the defined period or delivering a replacement (if finished products reach more than one thousand operating hours before the end of the period, this point is considered the end of the warranty period). The warranty period for the replacement item or the repair is three months; however, the warranty period runs at least until the end of the original warranty period for the defective item. The seller is entitled to make at least two attempts at repair. Replaced parts become the property of the buyer and must be returned to them immediately. If the repair or replacement attempt fails more than twice, the buyer may demand a reduction in price or rescission of the contract.
  5. The seller shall bear the direct costs incurred by repair or replacement, provided the buyer's complaint proves to be justified, including the cost of the replacement part and its shipping. Furthermore, in this case, the seller shall bear the reasonable costs of installing and removing replacement parts, in particular the costs of providing any necessary labor. Otherwise, the buyer shall bear the costs.
  6. If the buyer informs the seller of the existence of a defect, the seller is entitled, at his discretion, to immediately inspect the defect of the object of performance at the buyer's premises or to have the object returned to the seller at the buyer's risk.
  7. The seller's warranty obligation is void if the buyer, without prior notification and consent, repairs the defect or has it repaired by a third party. This does not apply if immediate repair of the defect is urgently necessary to prevent further damage.
  8. The seller accepts no liability for damage caused by corrosion and natural wear and tear. The buyer also has no warranty claim for damage caused by improper or unsuitable installation and handling of the product.
  9. If the seller's operating and maintenance instructions are not followed, modifications are made to the object of the contract, parts are replaced, or consumables are used that do not conform to the original specifications, claims for defects in the object of the contract shall be void unless the buyer refutes a corresponding substantiated claim that one of these circumstances caused the defect.
  10. Claims against the seller for defects are only available to the direct buyer and are not assignable.

§ 7 Spare parts

The seller will supply spare parts for a finished product for a period of five years from delivery of the same product at the then applicable spare parts prices.

§ 8 Extended Retention of Title

  1. Until all claims (including all outstanding balances from current accounts) to which the seller is entitled against the buyer now or in the future for any legal reason are satisfied, the seller shall be granted the following securities, which he will release at his discretion upon request, insofar as their value sustainably exceeds the claims by more than 20%.
  2. The goods remain the property of the seller until all secured claims have been paid in full. Processing or transformation is always carried out for the seller as manufacturer, but without any obligation on the seller's part. If the buyer's (co-)ownership is extinguished by combination, it is hereby agreed that the buyer's (co-)ownership of the goods as a single item is transferred to the seller in proportion to its value (invoice value). The buyer shall hold the seller's (co-)ownership in trust free of charge. Goods in which the seller has (co-)ownership are hereinafter referred to as reserved goods.
  3. The buyer is entitled to process and resell the goods subject to retention of title in the ordinary course of business, provided he is not in default. Pledging or assigning the goods as security is prohibited. The buyer hereby assigns to the seller, as security, all claims arising from the resale or any other legal basis (insurance, tort) relating to the goods subject to retention of title (including all balance claims from current accounts).
  4. The seller revocably authorizes the buyer to collect, on the seller's behalf and in the buyer's own name, the receivables assigned to the seller. This authorization to collect may be revoked if the buyer fails to meet their payment obligations.
  5. In the event of third-party access to the goods subject to retention of title, in particular attachments, the buyer shall inform the third party of the seller's ownership and notify the seller immediately so that the seller can enforce its ownership rights. If the third party is unable to reimburse the seller for the resulting legal or extrajudicial costs, the buyer shall be liable for these costs.
  6. In the event of breach of contract by the buyer – in particular default of payment – ​​the seller is entitled to withdraw from the contract and demand the return of the goods subject to retention of title.

§ 9 Payment, Resale, Right of Withdrawal

  1. Unless otherwise agreed, the seller's invoices are payable within 10 days of invoicing less a 2% discount or within 30 days of invoicing without discount.
  2. The seller is entitled, notwithstanding any contrary instructions from the buyer, to apply payments first to the buyer's older debts and will inform the buyer of the allocation of the payment. If costs and interest have already accrued, the seller is entitled to apply the payment first to the costs, then to the interest, and finally to the principal.
  3. A payment is only considered complete when the seller has access to the funds. In the case of checks, payment is only considered complete when the check has cleared.
  4. If the buyer defaults on payment, the seller is entitled to claim liquidated damages at a rate of 8 percentage points above the base interest rate from the date of default. This rate will be reduced if the buyer proves a lower loss; the seller is entitled to prove a higher loss.
  5. If the seller becomes aware of circumstances that call into question the buyer's creditworthiness, in particular if the buyer's check is dishonored or payments are suspended, or if the seller becomes aware of other circumstances that call into question the buyer's creditworthiness, the seller is entitled to demand immediate payment of the entire outstanding balance, even if checks have been accepted. In this case, the seller is also entitled to demand advance payments or security.
  6. The buyer is only entitled to set-off, retention, or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, are undisputed, or have been acknowledged by the seller. However, the buyer is also entitled to retention due to counterclaims arising from the same contractual relationship.
  7. There is expressly no right to resell the object of the contract if the delivery concerns a finished product which the buyer does not intend to resell, but which, according to the contract, is intended for use in his own business.
  8. If the buyer defaults on payments, including installment payments, other services, advance payments, or acceptance, the seller may grant the buyer a grace period of 14 days to perform, stating that the seller will refuse acceptance of the performance after the expiry of this period. After the expiry of this period, the seller may refuse to fulfill the contract, withdraw from the contract, and claim damages.

§ 10 Design changes

The seller reserves the right to make design changes to its finished products at any time; however, it is not obliged to make such changes to finished products that have already been delivered.

§ 11 Patents

  1. The seller shall indemnify the buyer and its customers against claims arising from infringements of copyrights, trademarks, or patents, unless the design of a contractual item originates from the buyer. The seller's indemnification obligation is limited to the foreseeable damages. An additional condition for indemnification is that the seller is given control of any legal proceedings and that the alleged infringement is solely attributable to the design of the seller's contractual items without any connection to or use with other contractual items.
  2. The seller has the option to be released from the obligations assumed in paragraph 1 by either a) obtaining the necessary licenses relating to the allegedly infringed patents or b) providing the buyer with a modified contractual item or parts thereof which, if exchanged for the infringing contractual item or part thereof, will eliminate the allegation of infringement relating to the contractual item.

§ 12 Confidentiality

Unless expressly agreed otherwise in writing, information provided to the seller in connection with the business relationship and specific orders shall not be considered confidential.

§13 Liability

  1. Claims for damages are excluded regardless of the type of breach of duty, including tortious acts, unless the breach was intentional or grossly negligent.
  2. Claims for lost profits, saved expenses from third-party claims for damages, and other indirect and consequential damages cannot be asserted.
  3. The limitations and exclusions of liability in paragraph 1 do not apply to claims arising from fraudulent conduct by the seller, nor to liability for guaranteed characteristics, claims under the Product Liability Act, nor to damages resulting from injury to life, body or health.
  4. If the protective devices usually provided for new and used finished products are not obtained at the express request of the buyer, the seller is exempt from any liability for damages resulting therefrom.
  5. To the extent that the seller's liability is excluded or limited, this also applies to the seller's employees, workers, agents, and vicarious agents.

§ 14 Place of performance, applicable law, place of jurisdiction

  1. Unless otherwise agreed in the contract, the place of performance for payment and delivery is the seller's place of business.
  2. These terms and conditions and all legal relations between seller and buyer are governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.
  3. If the buyer is a merchant, a legal entity under public law, or a special fund under public law, Wittenberg shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same place of jurisdiction applies if the buyer has no general place of jurisdiction in Germany at the time of conclusion of the contract, if the buyer has moved their registered office, domicile, or habitual residence abroad after conclusion of the contract, or if their registered office or habitual residence is unknown at the time the action is brought. To the aforementioned extent, this also applies to claims arising from bills of exchange and checks, as well as claims arising from tort. However, the seller is entitled, but not obligated, to bring an action before any other competent court.

§ 15 Partial invalidity, legal validity, data protection

  1. Should any provision in these Terms and Conditions or any provision in other agreements be or become invalid, this shall not affect the validity of the remaining provisions of the contracts or any other terms or agreements between the seller and the buyer. The statutory provisions shall apply exclusively in its place; that is, the provision in question shall under no circumstances be replaced by the buyer's terms and conditions.
  2. All contracts between seller and buyer, as well as any amendments or additions to contracts, require written confirmation by the seller to be effective; this also applies to any deviation from the contractual requirement of written form itself.
  3. Legally relevant declarations of intent, such as notices of termination, declarations of withdrawal, requests for price reductions or claims for damages, are only effective if they are made in writing.
  4. The seller is entitled to process and store the data obtained in connection with the business relationship about the buyer – even if it originates from third parties – in accordance with the Federal Data Protection Act, or to have it processed and stored by third parties commissioned by the seller.
 

Schönewalde, March 1, 2010

How to reach us