General Terms and Conditions of delivery and payment
1. ScopeThese General Terms and Conditions apply exclusively between entrepreneurs, towards legal persons under public law or special funds under
public law regarding all our offers, contracts, deliveries and other services
(hereinafter “delivery”), including all future business relations, even if not explicitly and separately stipulated. The Terms and Conditions shall be considered as accepted at order placement or receipt of goods at the latest. Conditions to the contrary set by our customer shall not be accepted. These may only be applicable with our express written consent. If any one clause of these Terms and Conditions becomes invalid the validity of the remaining stipulations shall not be affected. For framework contracts concluded before January 1st, 2002, these Terms and Conditions shall apply only as of January 1st, 2003; until then our previous Terms and Conditions are valid.
2. Completion of contract, documents, industrial property rights2.1 Our offers are not binding. A contract shall only be completed upon our
written order confirmation. Only our written order confirmation is relevant
for the date and quantity of delivery. If the order is not confirmed by
us in writing the contract shall be completed upon order execution at the
latest. Statements made by our representatives orally or by phone shall
be legally binding only if confirmed in writing.
2.2 We reserve all proprietary rights and copyrights of estimates, designs,
drawings and other documents; these shall be modified or made available
to third parties only with our express approval. Drawings and other documents provided as part of an offer must be returned to us on request at any time; this is mandatory when the order is not placed with us. In case of our delivery of items according to drawings, models, samples or other documents provided by the customer, the latter shall ensure that industrial property rights of third parties are not infringed upon. If a third party, referring to proprietary rights, prohibits in particular the manufacturing and delivery of such items, we shall be entitled to suspend all relevant activities and to claim damages without being obliged to analyse legal responsibilities (see also section 8.3). In addition, the customer shall undertake to indemnify us immediately from third-party claims related to documents made available to us.
2.3 We reserve the right to charge the costs for samples and testing parts
as well as for tools required for their manufacturing. In case of doubt
any agreed payment shall be due and payable after acceptance of the
first respective model, test component or tool. We shall charge the provision
and manufacturing costs for tools required for serial production,
unless agreed upon otherwise. All tools made or provided by us shall in
any case remain in our ownership even if their provision- or manufacturing
costs have been wholly or partly covered by the customer.
2.4 For call orders we shall be entitled to procure materials for the entire
order and to manufacture the total order quantity immediately. Any customer
requests for changes after order placement can, therefore, not be
taken into consideration, unless explicitly agreed upon otherwise.
3. Performance description3.1 The quality of the delivery item shall be finally described by explicitly
agreed features (e.g. specifications, labels, approvals, and other information).
Any deviating features or other qualities of deliveries and services
are subject to a further explicit agreement. Therefore, any further
warranty for a special purpose or particular suitability after passing of
risk shall be given only in case of explicit written agreement; otherwise
the risk of suitability and use shall be assumed by the customer. We
shall reserve any customary or technically unavoidable deviations from
physical and chemical quantities, including colours, formula, recipes,
processes and the use of raw materials as well as order sizes and reasonable quantity variances, as far as this may not be accepted as unreasonable by the customer.
3.2 Details of the delivery item (e.g. provided in catalogues, good information,
electronic media or on labels) are based on our general experience
and knowledge and are, thus, reference values or markings only. These
good details as well as expressly stipulated features/purposes shall not
relieve the customer of the need to test the good for the intended purpose.
3.3 Details on quality and possible uses of our goods do not include any
warranties, in particular as stipulated in Sec. 444, 639 German Civil
Code (BGB), unless these are explicitly specified as such in writing.
4. Delivery and delivery time4.1 Delivery time information – even if a delivery date has been
agreed upon with the customer – is provisional and not binding,
unless the delivery date has been fixed explicitly as binding, this
means the customer has declared this in writing or it is obvious to
us, that the customer has no further interest after the delivery
time. Confirmed delivery dates shall be subject to the correct,
complete and timely obtaining of supplies to ourselves from our
suppliers. Delivery deadlines shall be considered as met if prior to
deadline expiry the delivery item has left our factory or if we have
informed the customer that the order is ready for shipment. Delivery
deadlines shall remain ineffective as long as the customer has
not properly fulfilled his obligations, such as furnishing technical
data and documents, approvals as well as making a down payment
or providing a payment guarantee.
4.2 We shall be entitled to deliver by instalments.
4.3 Acts of God or other events beyond our control that render the
timely execution of accepted orders impossible shall relieve us of
our delivery commitment as long as these events prevail. Therefore,
we assume no exercise risk. Furthermore, we reserve the
right of recession in case - despite of the conclusion of a supply
agreement with our supplier – we do not receive the respective
good from our supplier; whereas our responsibility for intentionally
or grossly negligent caused damages according to point 8 remains
unaffected. However, we will timely inform the customer about the
availability of goods and in case of a recission by us we will compensate
any corresponding consideration which has already been
paid by the customer for such goods.
4.4 It is generally not possible to return sold and non-defective goods.
4.5 In case customer becomes insolvent or subject to bankruptcy proceedings,
reorganisation proceedings, or comparable proceedings,
customer’s statements in lieu of an oath according to
Sec. 807 German Code of Civil Procedure (ZPO), shortages of
liquid funds or a significant deterioration of financial circumstances
we shall be entitled to suspend deliveries immediately and to refuse
the fulfilment of current contracts unless the customer executes
counter-performance or, on our request, provides appropriate
4.6 In case of any default of acceptance or culpable breach of accessory
or any secondary obligations by our customer, the latter shall
indemnify us for any respectively caused damages and related
costs, whereas further claims and rights according to the applicable
laws remain unaffected. In case of delay or default of acceptance
the risk of accidental loss or damage of the goods passes
onto the customer.
4.7 In case the goods are sent or shipped to the customer or a third
party, the risk of accidental loss or accidental damage of the
goods passes onto the customer once the goods have left our facility
or warehouse, irrespective of the agreed place of performance
or who pays for the shipment.
5. Securities5.1 We shall reserve the ownership of all and any goods delivered
until all existing claims, including conditional and subsidiary
claims, maintained by us towards the customer from our business
relation have been satisfied; all deliveries shall be considered as
one inclusive delivery transaction. The reserved ownership shall
be security for our current account claims. All aforementioned
stipulations shall also apply to future claims. We are entitled to
immediately, without prior notice claim back any and all of our
goods in case of non-performances by the customer, whereas the
legitimate interests of the customer have to be reasonably considered.
5.2 The customer shall be entitled to resell or process the purchased
item or mix or combine it with other goods in the scope of his ordinary
business only; however, he will, thus, now assign to us all
claims resulting from resale, processing, mixing, combining or
other causes in law related to the purchased item (in particular
from insurance contracts or unlawful acts) in the amount of the
mutually agreed final invoice total (incl. VAT). The same applies if
an item is not sold but subject to a contract for work and materials
or a contract for work and services.
5.3 Reservation of ownership shall also apply to such new goods
resulting from the processing, mixing or combining of the purchased
items with other goods in their full amount. These processes
shall be performed on our part so that we shall be deemed
to be the manufacturer. If third-party ownership rights extinguish
after processing, mixing or combining with goods from those parties,
we shall acquire joint ownership at a ratio of the objective
value of those goods. If our ownership ceases as a result of combining
or mixing, the customer shall transfer to us now his ownership
and/or expectant rights of the new stock or item to the extent
of the invoice value of goods delivered by us, and shall hold them
in custody on our behalf at no charge.
5.4 The customer shall be authorised to collect debt claims from the resale
despite the assignment as long as we have not revoked this authority.
We will not collect debt claims ourselves, as long as the customer
meets his payments with us in due course. Upon our first written request
the customer shall be obliged to inform us about the debtors of
assigned claims as well as to notify debtors of the assignment.
5.5 We shall have the right to revoke the customer’s authority for resale according to point 5.2 and collection of assigned claims with immediate effect
if the customer is in arrears with payments to us, experiences a
shortage of liquid funds due to a significant deterioration of financial circumstances or does not carry out mutually agreed contractual obligations
properly. In case customer becomes insolvent or subject to bankruptcy
proceedings, reorganisation proceedings, or comparable proceedings,
discontinues payments, gives statements in lieu of an oath
according to Sec. 807 German Code of Civil Procedure (ZPO), or if due
to a shortage of liquid funds a change of ownership occurs in the customer’s
business, the authority for resale and collection of assigned
claims will cease automatically.
5.6 The customer shall hold our (jointly) owned materials in custody on our
behalf at no charge with due care and diligence as a prudent businessman
and shall insure them against fire, burglary and other usual risks.
Any required maintenance and inspection services have to be timely
executed at customer´s expense.
5.7 Any pledge or assignment as security by the customer of goods delivered
under reservation of ownership or goods processed and/or manufactured
on our behalf are forbidden. Prior to any pledge or any other infringement
of our ownership rights by third parties the customer shall
notify us immediately and confirm the right of ownership in writing both
to us and the third parties. Any residual costs arising from resulting legal
action despite us winning a case shall be covered by the customer.
5.8 If the customer violates the contract, in particular by delays in payment,
we shall be entitled to recover the goods; the customer hereby gives
his advance consent to this recovery in such a case. The recovery shall
be considered as a termination of contract only if explicitly stated by us.
All costs incurred by the recovery (in particular transport costs) shall be
charged to the customer. The customer may demand the delivery of
goods recovered without an express notice of withdrawal only once the
purchase price and all costs have been fully paid.
5.9 Securities which we are entitled to shall not be accounted for insofar as
the value of our securities exceeds the nominal amount of claims to be
secured by 20%.
6. Prices and payment6.1 Subject to an independent written agreement, our prices are in Euro ex
works excluding VAT and packing costs.
6.2 Unforeseen changes in costs – including without limitation – raw materials, wages, energy and other costs beyond our control shall entitle us
to adjust prices accordingly. For deliveries by instalments each delivery
may be invoiced separately. If no prices have been independently contractually
agreed, our delivery-day prices shall be applicable.
6.3 Our invoices are due immediately and payable without discount. Any
discount has to be independently agreed.
6.4 We shall not be obliged to accept bills, cheques and other promises to
pay, their acceptance shall at all times be on account of performance.
6.5 The day on which the amount is in our possession or has been credited
to our bank account shall be the date of receipt of payment. In case of
delay of payment by the customer we shall be entitled to charge an annual
rate of interest of 8% above the base interest rate for the duration
of the delay. This shall not restrict the right to claim additional damages
6.6 In case of delay of the customer’s payment, we may additionally choose
to call outstanding purchase price instalments or other existing claims
against the customer due as well as make future deliveries under this or
other contracts dependent on an advance security or a contemporaneous
payment against delivery.
6.7 Advance or part payments are non-interest bearing.
6.8 The customer may set off or withhold payments only if his counterclaim
is undisputed or res judicata.
7. Claims for defects7.1 We shall be liable for defects of goods delivered by us only according to
the following stipulations:
7.2 The customer shall properly fulfil his duties regarding inspection and
lodging complaints according to Sec. 377 German Commercial Code
7.3 If defective goods are delivered, we shall be given the opportunity, prior
to manufacturing (processing or installing), to sort out such goods and
rectify the defect or to make an additional delivery, unless this cannot
reasonably be expected from the customer. In case we are unable to
accomplish this or fail to comply with it in due course, the customer may
rescind the contract to this extent and return the goods at our risk. In
urgent cases he may correct the defects himself or have this done by a
third party. Expenses incurred by this shall be reimbursed by us according
to point 8.
7.4 If the defect comes to light only after the start of manufacturing or
initial operation, despite the fulfilment of duties according to point
7.1, the customer may demand subsequent performance (rework
or substitute delivery by our choice). The delivery of defective
goods results only in a right of retention insofar as it is in due proportion
to the respective defect and the expected costs of the subsequent
performance; however, in each case provided that such
retention is based on a customer’s mutual counterclaim.
7.5 Any damage-payment for defective goods shall be subject to two
useless attempts of supplementary performance. In case of substitute
delivery the customer is obliged to return the defective material
7.6 Claims for rescission of contract or reduction of purchase price
shall be granted only if the defect cannot be remedied within an
appropriate period, if subsequent performance will incur unreasonable
expenses, is unacceptable or must be considered as
failed for other reasons. The customer shall, however, have no
right to rescind the contract in case of minor defects.
7.7 The customer shall allow us to promptly inspect any rejected
goods, in particular these shall be made available to us on request
and at our cost. If complaints are unfounded, we shall reserve the
right to charge transport costs and inspection expenses to the
7.8 No claims for defects may be lodged in case of merely insubstantial
deviations of the agreed quality or utility or if the defect can be
put down to a violation of operating, maintenance and installation
instructions, improper use or storage, faulty or negligent handling
or assembly, natural wear and tear or tampering with the delivery
item by the customer or a third party. Any claims and costs regarding
the subsequent performance, the recession of the contract
and/or damages because of defective goods, in particular
costs for shipment, transportation, labour and material are excluded,
insofar as these claims and costs result from a shipment
to another place as the agreed place of performance after passing
of risk. However, this does not apply in case such shipment does
correspond with the normal use known to us.
7.9 Damages, compensation and reimbursement of expenses may
only be claimed according to point 8.
7.10 For goods other than new goods, delivered as mutually agreed
upon, the customer may not make the aforementioned claims.
8. Liability8.1 We shall be liable for any damages, in particular resulting from
culpa in contrahendo, breach of duty and unlawful acts (Sec. 823
ff. German Civil Code), only insofar as we, our employees or assistants
are charged with intent or gross negligence.
8.2 For damages resulting from injury to life, body or health, guarantees
or violation of material contractual duties, we shall also be liable
for ordinary negligence. In case of a violation of material contractual
duties (“Kardinalpflichten”) our liability shall be limited to
the direct average damage, predictable and typical according to
the type of goods. Aforementioned stipulation shall also apply to
breach of duty by our employees, vicarious agents (“Verrichtungsgehilfen”)
and assistants (“Erfüllungsgehilfen”).
8.3 We shall be liable for the infringement of third parties’ industrial
property rights in connection with the sale of our goods only if
such third parties’ industrial property rights are valid in the Federal
Republic of Germany and have been published at the time of delivery
and only to the extent that such third parties’ proprietary
rights are infringed upon when using the goods as agreed. This
shall not apply if we have manufactured the delivery items according
to drawings, models, descriptions or other documents or data
provided by the customer and if we, thus, do not or need not have
knowledge of any infringement of industrial property rights in connection
with goods developed by us. In this case our customer
undertakes to warrant that there has been and will be no infringement
of third parties’ industrial property rights, to inform us without
delay of any potential and alleged cases of infringement of third
parties’ industrial property rights which may become known to
him, to indemnify us from third parties’ claims and, to bear all
costs and expenses incurred.
8.4 Claims for defects of delivered goods, including – without limitation
– any damages relating to defective goods, notwithstanding
the respective cause in law, shall lapse 1 year after delivery of the
goods. This shall not apply to items that consistent with their
common application are used in buildings and have caused the
latter’s defectiveness; in that case claims shall lapse 5 years after
delivery. All other claims governed by points 8.1 to 8.3 shall lapse
as provided by the law.
8.5 Claims for price reduction and rights to rescind the contract shall
be rejected insofar as the primary claim for performance or the
secondary claim for subsequent performance has lapsed, whether
we invoke the lapse of the primary or secondary claim or not.
8.6 Our liability pursuant to the provisions of the Product Liability Act
and Sec. 478, 479 German Civil Code (last seller recourse) shall
remain unaffected by the aforementioned stipulations.
8.7 We do not assume any liability beyond the legal obligations which the
customer may have agreed with his own customer. Except agreed otherwise
in writing, point 7 and this point 8 shall apply to any Customer’s
claims for recourse against us.
8.8 Otherwise we shall be exempt from liability.
9. Place of performance and jurisdiction, other provisions9.1 The customer may assign his claims from the contractual relationship
only with our prior written consent.
9.2 Customer shall keep strictly confidential towards third parties any information of a technical or economical nature he has received from us in
connection with the supply of goods (“Confidential Information”) at any
time, even after the supply; however, save such information which is, or
becomes public knowledge other than through a fault of the customer,
is, at the time of disclosure, already in the possession of the customer,
or is subsequently verifiably independently developed by the customer
or received by the customer from a third party which is not under a confidentiality obligation related thereto. We are and remain the sole owner
of any documents, in particular engineering drawings, which therefore
have to be handled back to us upon our respective request but at latest
automatically once the supply of goods has been finished. Any license
regarding Confidential Information is subject to a written agreement.
Customer has no right of retention regarding Confidential Information or
respective documents or materials.
9.3 Customer guarantees neither directly nor indirectly to deal with or otherwise cooperate with any terrorist or any criminal individuals, entities or
organizations. Customer will in particular establish reasonable organizational
measures to implement the EC-regulations No. 2580/2001 and
881/2002 as well as other respective requirements under US or international
laws and regulations. Such measures shall include – without limitation
– adequate software solutions. As soon as a product has left our
facilities, customer alone shall be responsible for the aforesaid compliance
and will indemnify Freudenberg for any and all claims or related
costs, including reasonable attorney or consultant fees or administrative
penalties and/or damages resulting from the violation of the respective
laws and regulations by the customer, its affiliates, employees, officers
and/or any of its agents.
9.4 We will comply with such obligations resulting from the EC-regulation
No. 1907/2006 (“REACH”) which are directly applicable towards us; we
will implement reasonable and adequate measures and will be responsible
therefore according to section 8. However, customer shall be
solely responsible for any negative consequences resulting from the
provision of false or incomplete information by the customer, including -
without limitation – any information relating to the use of goods within
the supply chain.
9.5 For all claims from business relations, in particular our deliveries, the
place from which performance/delivery is made shall be the place of
9.6 For all claims from business relations, in particular our deliveries, the
exclusive place of jurisdiction shall be Weinheim/Bergstraße, Federal
Republic of Germany. This shall also apply to disputes as to the creation
and validity of a contractual relationship. We shall, however, have
the option to proceed against the customer in appropriate courts at the
customer’s place of business. If a customer’s place of business is located
out of Germany, we shall be entitled to have all disputes, claims
or differences arising out of or in connection with business relations finally
settled under the rules of Arbitration of the Zurich Chamber of
Commerce by one to three arbitrators appointed in accordance with the
said rules. The place of arbitration shall be Zurich, Switzerland. The arbitration
proceedings shall be conducted in the English language. The
award rendered by the arbitrators shall be final and binding upon the
9.7 The business relations with our customers shall be exclusively governed
by the laws of the Federal Republic of Germany to the exclusion
of its private international law as far as it refers to the applicability of
another legal system. The UN-Convention on the International Sale of
Goods (C.I.S.G.) and other international conventions on uniform law on
the sale of goods shall not be applicable.
Version June 2009