I. General provisions
- All services that feno GmbH (“feno”) provides to its contractual partners (“Customers”) within its contracts (Goods and Services) are governed exclusively by the following General Terms and Conditions (T&Cs). Such contracts include in particular contracts for the sale and/or supply of movables or rights (purchase contracts and contracts for work and materials pursuant to §§ 433, 651 German Civil Code (BGB), work contracts pursuant to section 631 BGB and service contracts pursuant to section 611 BGB.
- The General Terms and Conditions apply in their relevant version as a framework agreement for future business with the same customer, even if such business has not been separately agreed.
- By placing an order for goods or services the Customer accepts the latest version of the T&Cs of feno as binding.
- Any other General Terms and Conditions that differ from them, contradict them or supplement them are not part of the contract, even if they are known to feno, unless feno expressly agrees in writing that they are applicable.
- Customers of feno are exclusively entrepreneurs in accordance with section 14 of the German Civil Code. In placing an order the Customer indicates that the transaction is intended exclusively for his activity as an entrepreneur. The goods and services presented in the feno catalogues, on the feno website and in the feno online shop and other product presentations (“product presentations” ) are therefore intended exclusively for entrepreneurs.
- Before placing an initial order with feno, Customers shall register with feno and submit evidence (or upload scans) which prove their capacity as entrepreneurs (tradespersons: trading certificate; self-employed without a trade: membership certificate for professional association or chamber of commerce; other Customers acting as entrepreneurs; appropriate official documents). feno has the right to request these documents and may extraordinarily at any time during the business relationship and may extraordinarily terminate or withdraw from the contract if suitable evidence is not provided within the appropriate timeframe.
II. Changes to product range and product presentations
feno reserves the right to change the product presentations at any time without notice and to remove individual goods and services from the product range entirely or replace them with other goods and services.
III. Conclusion of contract
- The feno product presentations are non-binding invitations to submit an offer in the form of an order (invitatio ad offerendum). An order for goods or services by the Customer constitutes a binding offer to conclude an appropriate contract.
- feno can accept the offer at its sole discretion within ten (10) working days after receipt. Confirmation of receipt of an order does not justify concluding a contract. A contract does not come into force until feno expressly declares its acceptance of the order in writing, by email or by fax or until goods are delivered or services are supplied.
- If feno submits offers they are non-binding and can be accepted within five (5) working days, unless otherwise indicated in the relevant. This applies even if feno has submitted catalogues, technical documentation (such as drawings, plans, calculations, references to DIN standards), product or service descriptions or other documents – including in electronic form.
- Statements, plans and other data of the Customer may be used in their entirety as a basis for the order. The Customer is solely responsible for the accuracy of statements made by it.
IV. Prices and delivery costs, payment terms, billing, offsetting, right of retention
- Prices are net prices ex works (EXW Incoterms 2010). Unless indicated in the online shop, shipping and packaging costs will be calculated in advance by feno on request by the Customer and will be notified to the Customer. The shipping costs notified or indicated at the time the contract was concluded shall apply.
- The Customer can pay for ordered goods or services by credit card, an online payment method, prepayment or cash in person. feno is entitled to exclude any of the specified payment types. feno may allow existing customers to pay for ordered goods or services on receipt of an invoice.
2.1 If an online payment system is used (e.g. PayPal, instant transfer) the Customer expressly authorizes feno to collect the due amounts at the time of the order.
2.2 If the prepayment method is used the Customer shall transfer the full invoice amount to the account nominated by feno, specifying the reason for payment, within ten (10) calendar days of receipt of the order. If the payment has not received by feno within this timeframe feno may withdraw from the contract after setting a further reasonable period of grace.
2.3 If payment is by credit card, the Customer authorizes feno to collect the due amounts on dispatch of the goods or performance of the services.
2.4 If payment is to be by invoice, the Customer is obliged to pay the invoice amount within thirty (30) days of receipt of the goods or performance of the services, without any discount.
- If the Customer defaults on a payment then feno reserves the right to claim for appropriate damages. Interest on arrears shall be determined in accordance with statutory regulations.
- The Customer may only offset demands by feno if their counterclaims are undisputed or have been established as legally valid. A right of retention exists only for claims arising from the same contractual relationship.
- The Customer may assign claims to third parties only with feno’s written consent. If the Customer is a merchant in accordance with section 1ff of the German Commercial Code (HGB), this applies only insofar as it does not involve monetary claims.
V. Reservation of title and secondary obligations
- feno retains title in the goods until claims from a current business relationship have been settled in full. Once the value of all security rights attributable to feno amounts to more than 150% of all secured claims or if the realisable value of the securities exceeds feno’s claims by 10%, feno will release securities to the corresponding amount at the request of the customer.
- While the reservation of title is in effect the Customer is obliged to
2.1 refrain from giving a pledge for or effecting a transfer of security for the goods;
2.2 advise feno immediately of any access to the goods by third parties, such as in the event of seizure, confiscation or other disposition or encroachments by third parties, as well as any damage to or destruction of the goods;
2.3 advise feno immediately of a change of ownership of the goods, and of any change of its own domicile;
2.4 handle the goods with due care;
2.5 carry out any mandatory maintenance and inspection work at its own expense.
- If the goods are processed by the Customer and at the time of processing the price for the goods has not yet been fully paid, it is agreed that processing shall be performed in the name and on behalf of feno as the manufacturer and that feno shall immediately acquire ownership or – if processing involves materials from multiple owners or the value of the processed object is higher than the value of the goods – co-ownership (partial ownership) of the newly created object in the ratio of the value of the goods to the value of the newly created object. In the event that no such ownership should occur for feno, the Customer shall immediately transfer to feno his future ownership or co-ownership – in the above ratio – of the newly created object as security. If the goods are bound to other objects to form a single object or are inseparably mixed with other objects and if one of the other objects is considered to be the principal object, then insofar as the principal object belongs to it, feno shall transfer to the Customer co-ownership of the single object in the ratio stated in Sentence 1.
VI. Delivery and production, deadlines, delays and default
- Supplies and services are delivered ex works EXW Incoterms 2010) to addresses within the contract territory (territory of the Federal Republic of Germany and the territory of the Member States of the European Union). feno is entitled to exclude supplies to specific areas of the contract territory.
- feno is entitled to perform partial services or make partial supplies, provided this does not place an intolerable burden on the Customer.
- Compliance with agreed deadlines for deliveries or performance is subject to the receipt in good time of all documents and any necessary approvals and clearances – in particular of plans – to be supplied by the Customer, and also to the Customer fulfilling the agreed payment terms and other obligations. If these conditions are not fulfilled in time and the Customer is responsible, then the deadlines will be extended to cover the period of delay.
- In the case of contracts with merchants, any deadlines for delivery or performance are subject to deliveries being made to feno correctly and on time. In the event of feno not being supplied correctly and on time, this will be notified to the Customer immediately.
- If the customer is in default of acceptance, feno may charge the Customer lump-sum compensation of 0.5% per calendar week or part week of the net price of goods or services affected by the delay of acceptance, up to a maximum of 5%. This shall not affect the assertion of further claims. The Customer is free to provide evidence that feno has incurred no or lower damages.
VII. Right to cancel or amend the contract
- If the Customer breaches the secondary obligations shown in Section IV. Subsection 1, feno has the right to withdraw from the contract and reclaim the goods or services while the reservation of title remains in effect.
- If deliveries from subsuppliers are missing or delayed, feno has the right to withdraw from the contract.
- If an order is cancelled in accordance with §§ 648 and/or 650 of the German Civil Code (BGB), the legal regulations shall apply.
Deliveries which only show minor defects as defined in § 323 V 2 of the German Civil Code (BGB) must be accepted by the Customer. Statutory warranty rights remain unaffected.
In the case of contracts subject to warranty rights, feno shall be liable for defects as follows:
- Where subsequent performance is prescribed by law or by the contract, feno has the right to choose between the type of subsequent performance (remedying of the defect(s) or replacement).
- Warranty claims are subject to a limiting period of one year from the transfer of risk or acceptance, unless otherwise stipulated below.
- In all other respects, relevant regulations shall apply.
X. Inspection and complaint obligations
- The inspection and complaint obligations of Customers are based on § 377 of the German Commercial Code (HGB) if they act in their capacity as merchants.
- If the Customer is a merchant, they must give reasonable consideration to the ability of feno to obtain supplies itself in due time when determining the length of the period for subsequent performance.
- The warranty does not extend to normal wear and tear, or damage after the transfer of risk or acceptance, resulting from incorrect or negligent handling, excessive strain or unsuitable equipment, or as a result of particular external factors which were not a condition of the contract and for which feno is not responsible.
- The warranty also does not extend to non-reproducible software errors for which feno is not responsible. If the Customer or any third party carries out improper modifications or maintenance work, the warranty does not cover these or any consequences of these for which feno is not responsible.
- For feno’s liability for damages the following exclusions and limitations of liability shall apply without prejudice to other statutory claim conditions.
- feno is liable without restriction if the damage was due to willful misconduct or gross negligence.
- feno shall also be liable for the minor negligent breaches of essential contractual obligations, non-compliance with which jeopardises fulfilling the purpose of the contract, and for breaches of obligations the fulfilment of which enable proper performance of the contract possible in the first place and on the compliance of which the customer regularly relies (“cardinal obligations”). In this case, however, feno shall be liable only for foreseeable, contract-typical damage. Subject to the provisions of Paragraph 4, feno shall not be liable for minor negligent breaches of obligations other than those referred to in the preceding sentences.
- The foregoing limitations of liability do not apply in cases of fatal or physical injury or injury to health injury to life, body and health, defects after acceptance of a guarantee for the quality of the product, or fraudulently concealed defects. Liability in accordance with the German Product Liability Law [Produkthaftungsgesetz] shall remain unaffected.
- If feno’s liability is excluded or limited, this also applies to the personal liability of employees, representatives and subcontractors.
XII. Industrial property rights and copyrights
- The Customer has the simple (non-exclusive) right to the contractual use of standard feno software in unmodified form exclusively in connection with the contractual equipment. The Customer may make two backup copies exclusively for their own use. This right of use is granted for Germany and the countries of the European Union. The Customer has no other right to use, reproduce, modify, decompile, sublicense the software or use it in connection with products not supplied by feno.
- If any third party has a justifiable claim against the Customer because of the infringement of an industrial property right or copyright (hereinafter referred to as Protective Rights) by products supplied by feno and used in accordance with the contract, feno is liable to the Customer as follows:
a.) Subject to b), feno will, at its option and at its expense, either obtain a right to use the product, modify the product in such a way that the Protective Right is not infringed, or exchange the product. If feno is unable to do so on acceptable terms, feno must take the product back and refund the purchase price.
b.) If the Customer ceases to use the product to reduce any losses or on other significant grounds, the Customer is then obliged to inform the third party that ceasing to use the product does not imply recognition of an infringement of Protective Rights.
- Claims by the Customer are excluded if the Customer is responsible for the infringement of Protective Rights.
- feno reserves, without limitation, all of our exploitation rights under property and copyright laws in quotations, drawings and other documents. Third-party access to documents is permitted only if feno gives its approval in advance, and the documents must be returned to us immediately on request, and in particular if a contract is not made. Sentences 1 and 2 above apply as appropriate to documents of the Customer; feno is, however, permitted to grant access to these by third parties which feno is allowed to involve in fulfilling the contract.
XIII. Disruption to the contract basis, adaptation of the contract and cancellation
If any unforeseen events (e.g. natural disasters, mobilization, war, riot, strike, lockout or similar events) substantially alter the economic importance or content of the delivery, or substantially affect the business of feno, the contract will be adapted as appropriate in good faith. If this is not economically viable, feno has the right to withdraw from the contract. Adaptation and cancellation of the contract are excluded if feno is responsible for the obstruction.
XIV. Place of performance, place of jurisdiction, applicable law
- The place of performance for all deliveries and services is the headquarters of feno.
- The district court (Landgericht) of Munich has jurisdiction for all direct and indirect disputes between the Customer and feno arising from or in connection with this contract.
- Contractual relationships are governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).