1. GENERAL PROVISIONS, SCOPE
1.1. These general business terms and conditions of FREY apply exclusively. Business terms and conditions of the business operator that deviate from or conflict with these general business terms and conditions are not recognized by FREY except when FREY expressly consents to their application in writing. This consent requirement applies even if FREY, having knowledge of the business operator’s business terms and conditions, delivers to the business operator without reservation. The FREY general installation terms and conditions
apply in addition for installation services.
1.2. There are no verbal subsidiary agreements. All agreements between FREY and the business operator must be in written form. This also applies in particular for legally relevant declarations and notices to be submitted to FREY by the business operator after the conclusion of a contract (for example, setting deadlines, notices of defects, declaration of withdrawal or abatement).
1.3. These general business terms and conditions apply exclusively in relationships with business operators, legal persons under public law, or special funds under public law pursuant to Section 310(1) of the German Civil Code (BGB).
1.4. These general business terms and conditions also apply for all future contracts with the business operator, even if FREY does not expressly refer to them.
2. OFFER, PERFORMANCE OF THE VENDOR, CHANGES
2.1. FREY offers are subject to change without notice.
2.2. Orders placed by the business operator are binding. An order placed by the business operator is only accepted when FREY has confirmed acceptance in writing or when the delivery items are delivered by FREY. In case of immediate delivery by FREY, a written order confirmation
can be replaced by the invoice issued by FREY. FREY may accept orders within two weeks from the date they are received.
2.3 The fulfillment of the order, in particular the quality of the items to be manufactured, delivered, or installed by FREY (delivery items), shall be based exclusively on the contractually agreed specifications. References to standards, similar technical rules, other technical information, descriptions, and illustrations in offers and brochures merely constitute service descriptions and not assurances of characteristics. FREY can make changes to the fulfillment of the order or the delivery items at any time, insofar as these
2.3.1 are required to comply with legal or official requirements, and
2.3.2 do not significantly impair the characteristics and function of the order, and are reasonable for the business operator.
2.4 Dimension and weight deviations within the scope of customary tolerances and applicable DIN regulations are permissible. FREY is permitted to make technical improvements to the construction, material, and form insofar as these do not impair usability according to the order and are otherwise reasonable for the business operator.
2.5 FREY has the right to employ subcontractors.
2.6 FREY reserves the right to withdraw from the contract if the collection risk for receivables from the business operator cannot be insured with credit insurers, or not at the usual rates, for reasons specific to the business operator. FREY has the right to withdraw by giving notice in writing or by fax, to be received by the business operator no later than 14 days after the date of the order confirmation.
3. PRICING, PAYMENT TERMS
3.1. The current prices of FREY at the time the respective contract is concluded shall apply unless anything to the contrary is agreed. FREY prices are in euros, ex works, plus the applicable VAT and any other indirect taxes and duties.
3.2. Packaging costs are separately charged by FREY. This applies correspondingly for any duties, fees, taxes, and other public charges.
3.3. When FREY ships the delivery items by request of the business operator (see no. 6.1), the business operator bears the transportation costs and the costs of any transportation insurance requested by the business operator.
3.4. Any increase in material procurement costs, wage costs and incidental wage costs, and energy costs can be taken into account in prices by FREY if the agreed delivery date is delayed or postponed by more than 3 months for reasons within the control of the business operator.
3.5. To review whether deliveries in the European Union can be made free of VAT, FREY requires the following from the business operator:
3.5.1. The VAT ID number
3.5.2. The name and address of the business operator
3.5.3. The destination
3.5.4. All documentation needed to verify tax-exempt intra-community delivery (supporting documents, confirmations of receipt, etc.).
In case FREY is held liable for the back payment of VAT due to incorrect or incomplete information provided by the business operator, FREY has the right to charge this amount to the business operator. If the business operator is at fault for the incorrect or incomplete information, the business operator is obligated to compensate FREY.
3.6. Invoices are due on receipt. The business operator is obligated to pay the purchase price within 10 days.
3.7. Rebates and discounts require a separate written agreement.
4. PARTIAL PERFORMANCE, DELIVERY TERM, TIME OF PERFORMANCE, AND DEFAULT
4.1. FREY has a right to partial performance to the extent reasonable for the business operator. In case of partial performance, FREY can demand payments according to the proportion of performance. FREY can request the acceptance of partial performance in terms of sentence 1 that is complete in itself from the business operator.
4.2. Delivery terms are only binding if they are expressly confirmed as binding by FREY in writing. However, FREY will strive to comply with delivery terms even when they are not binding. A delivery term only begins once the business operator and FREY have resolved all technical questions required for performance. Dispatch ex works is relevant for complying with delivery terms.
4.3. FREY has the right to withhold performance if the business operator fails to meet its contractual obligations properly and in a timely manner. This applies in particular if the business operator fails to make prepayments agreed with FREY in a timely manner as required for complete and timely performance by FREY.
4.4. Force majeure entitles FREY to delay performance for the duration of the obstacle, even in case of default. Force majeure includes all circumstances beyond the control of FREY that make performance temporarily impossible or unreasonably difficult, in particular legal strike or lockout, delayed supply to FREY for reasons beyond its control, official measures, import and export bans, energy and raw material shortages, and warfare. FREY shall inform the business operator of this promptly.
If the obstruction continues for more than two months, the business operator after granting a reasonable grace period has the right to withdraw from the contract upon providing proof that the pending partial performance of the contract is no longer of interest for the business operator due to the delay. A grace period for supplementary performance granted by the business operator must be no less than three weeks, with notification in writing.
4.6. If an agreed delivery term is exceeded when there is a delivery impediment according to no.
4.4 above, the business operator shall grant FREY a reasonable grace period of at least 2 weeks in writing. If FREY culpably fails to meet meet this deadline, the business operator has the right to withdraw from the contract, but is not entitled to assert
claims for damages based on non-performance or default, unless FREY is liable according to the provisions of no. 8.
5.1. FREY only warrants adherence to the agreed specifications according to no. 2.3. However, these specifications do not constitute a guarantee of certain characteristics unless the parties have agreed to a guarantee in writing. In particular, FREY does not warrant that the delivery items are suitable for a specific use or purpose, or marketable. In case of the delivery of goods abroad by a domestic business operator, FREY in particular does not warrant that the delivery items comply with the applicable legal requirements abroad or that they are not subject to any restrictions there. The business operator obligates
itself to obtain adequate product liability insurance coverage that also takes into account potential damages that may be incurred due to deliveries abroad.
5.2. The business operator is only entitled to warranty rights if the business operator has properly met the duty to inspect and report (Section 377 of the German Commercial Code (HGB)). Insofar the business operator or designated recipient has to inspect the delivery items promptly upon delivery. Apparent defects have to be reported to FREY promptly in writing, no later than within seven days after the delivery item is received. Concealed defects must be reported in writing without delay after they are discovered. If the business operator fails to report defects properly, the liability of FREY for that defect is excluded.
5.3. In case of defective deliveries, FREY at its discretion either rectifies the defect or delivers a defect-free item, provided the business operator has duly paid a reasonable share of the price, considering the defect, by the due date. The business operator shall assist FREY with the identification of defects and with supplementary performance. In addition, the business operator shall promptly grant access to documents containing details of the circumstances surrounding the defect. FREY may refuse supplementary performance when it is only possible at unreasonable cost.
5.4 If supplementary performance fails, the business operator has the right to withdraw from the contract or to demand an abatement. Supplementary performance is deemed to have failed only after two unsuccessful attempts at supplementary performance. Withdrawal is excluded if the agreed characteristics only deviate from the actual characteristics to a minor extent, or if use pursuant to the contract or normal use is only impaired to a minor extent.
5.5 For clarity, FREY states that changes to materials caused by age or environmental influences do not constitute a defect.
5.6 Claims of the business operator for damages and/or the reimbursement of wasted expenditures exist only according to the provisions of no. 8, even in case of defects, and are otherwise excluded.
6. PASSING OF RISK, DELIVERY
6.1. Delivery is ex works Lenggries-Fleck, which is also the place of fulfillment. Shipment where applicable is at the expense and risk of the business operator.
6.2. The risk of accidental loss, destruction, or deterioration passes to the business operator ex works Lenggries-Fleck (EXW Lenggries-Fleck, INCOTERMS 2010). Default of acceptance on the business operator’s part is deemed to constitute delivery.
6.3. In case of shipment delays for reasons beyond the control of FREY, risk passes to the business operator with notification of readiness for shipment.
6.4. Storage costs after the passing of risk are borne by the business operator. In case of storage by FREY, the storage costs are 0.25% of the invoice amount of the delivery items being stored per full calendar week. Asserting and providing proof of higher or lower storage costs is reserved.
6.5. If FREY aside from the delivery of a product has also committed to its installation, the delivery item is deemed to be delivered upon acceptance by the business operator according to FREY’s general installation terms and conditions. In this case, the place of fulfillment is the place of installation.
7. RETENTION OF TITLE
7.1. FREY retains title to the delivery items until all payments under the respective contract have been received and all other claims against the business operator from the business relationship have been settled.
7.2. The business operator is obligated to treat delivery items subject to retention of title with care. Furthermore, the business operator is obligated to insure such delivery items against loss, fire and water damage, theft, and natural hazards in the amount of their purchase price at its own expense.
7.3. The business operator has the right to resell delivery items subject to retention of title in the ordinary course of business as long as the business operator is not in default of payment. The business operator at this time assigns to FREY all receivables equaling the final invoice amount of FREY’s claim, which shall accrue for the business operator from the resale to its customers or third parties, regardless of whether the products were resold with or without further processing. FREY accepts this assignment. The business operator shall remain entitled to collect these receivables even after said assignment. The authorization of FREY to collect the receivables on its own shall remain unaffected. However, FREY obligates itself not to collect the receivables as long as the business operator meets its payment obligations from the collected proceeds, is not in default of payment, and, in particular, no application for the commencement of insolvency proceedings is made pertaining to the business operator’s assets and there is no suspension of payment. In these
cases, FREY is entitled to demand that the business operator shall inform FREY of the assigned receivables and the respective debtors, provide all information necessary for collection, hand over the necessary documents to FREY, and inform the debtors (third parties) of the assignment. FREY obligates itself to release its securities on delivery items and receivables by request of the business operator insofar as the realizable value of the securities exceeds the secured claims by more than 10%.
7.4 The restrictions of the preceding no. 7.3 apply correspondingly to the right of the business operator to process the delivery items. The business operator does not obtain ownership of the fully or partly produced items through processing; such processing is performed at no charge exclusively for FREY as the manufacturer in terms of Section 950 BGB. If the retention of title by FREY should nevertheless expire due to any circumstances whatsoever, the business operator and FREY agree at this time that title to the items is transferred to FREY with processing, FREY accepts the transfer of title, and the business operator remains the custodian of the items at no charge.
If the delivery items subject to retention of title are processed or inseparably mixed with goods still owned by third parties, FREY obtains joint ownership of the new items or mixed goods. The proportion of joint ownership is determined according to the ratio of the invoice value of the delivery items subject to retention of title to the invoice value of the other goods.
7.5 If a third party has delivery items subject to retention of title seized or otherwise impairs the ownership of FREY, the business operator shall promptly inform FREY so that FREY can assert legal remedies for the protection of its ownership, in particular legal action according to Section 771 of the German Code of Civil Procedure (ZPO). The business operator is also obligated to notify the third party and the bailiff that the respective product is owned by FREY. Insofar as the third party is not able to reimburse FREY for the court or out-of-court costs of
protective actions, the business operator is liable to FREY for costs not paid by the third party.
7.6 The business operator is obligated to promptly inform FREY of any damage to the products subject to retention of title and of any change to the business operator’s registered office.
7.7 In case of withdrawal from the contract, FREY has the right to demand the surrender of delivery items subject to retention of title.
8. LIMITATION OF LIABILITY, INDEMNITY
8.1. FREY has unlimited liability in case of intent and gross negligence.
8.2. In case of slight negligence, FREY is only liable for the breach of obligations that are essential for the proper performance of the order or contract, or the observance of which the business operator may regularly rely on. In such cases, the liability of FREY is limited to the foreseeable damage typical for such a contract.
8.3. Limitations and exclusions of liability pursuant to this no. 8 do not apply for claims under the German Product Liability Act (ProdHG) or damages for the loss of life, physical injury, or the impairment of health.
8.4. Insofar as the liability of FREY is excluded or limited, this applies correspondingly for the personal liability of FREY’s governing bodies, employees, representatives, and assistants.
8.5. The limitation period for warranty claims (no. 5) of the business operator is one year from the passing of risk (no. 6). Other claims for damages expire one year after the damaging event becomes known. This does not apply to claims based on intent or gross negligence, damages for the loss of life, physical injury, or the impairment of health, or claims under the German Product Liability Act (ProdHG).
8.6. The business operator shall indemnify FREY and its governing bodies, employees, representatives, and assistants on first request from all third-party claims asserted against FREY and/or the aforementioned persons due to a culpable breach of duty by the business operator. The business operator shall reimburse FREY and the aforementioned persons for all essential and reasonable legal defense expenditures.
9. ASSIGNMENT, RIGHT OF RETENTION, SET-OFF
9.1 The business operator does not have the right to assign its claims against FREY arising from this contract. This does not apply insofar as Section 354a of the German Commercial Code (HGB) is applicable.
9.2 The business operator only has a right to set-off insofar as its counter-claims are undisputed or legally established.
9.3 This applies correspondingly to any right of retention or right to refuse performance pursuant to
Sections 320, 273 of the German Civil Code (BGB). The business operator may only exercise such rights when they arise from the same contractual relationship. In an ongoing business relationship, each individual order constitutes a separate contract.
10. DISTINGUISHING MARKS, DRAWINGS, AND OTHER DOCUMENTATION
10.1 The business operator must obtain the prior written consent of FREY for the use of the name FREY as well as other trademarks, logos, or distinguishing marks of FREY in the course of business, in particular for promotional purposes.
10.2 Drawings, designs, and other documentation provided to the business operator by FREY in the course of contract initiation or performance are the property of FREY and may not be made accessible to third parties nor duplicated or used for any other than the agreed purpose without the express written consent of FREY. FREY has the right to demand the surrender, free of charge, of the aforementioned documentation – including any copies – when the business operator no longer needs this documentation and if FREY becomes aware of any misuse of this documentation. The business operator has no right of retention.
10.3 The business operator is responsible for ensuring that third-party rights are not violated by the use of drawings, samples, plans, etc. provided by the business operator, and assumes the corresponding liability.
If third parties prohibit the production and delivery, in particular, of such items with reference to proprietary rights, FREY – with no obligation to review the legal position – has the right to cease all further activity in this regard and to demand compensation. Furthermore, the business operator shall indemnify FREY from all resulting disadvantages, in particular third-party claims for damages.
11. SEVERABILITY CLAUSE, LANGUAGE OF CORRESPONDENCE, JURISDICTION, APPLICABLE LAW
11.1. Should individual provisions or parts of these general business terms and conditions be or become ineffective, the effectiveness of all other provisions shall remain unaffected. An ineffective provision shall be replaced by an agreement that comes as close as possible to the purpose of the contract and the intent of the parties.
11.2. The contract language is German.
11.3. In case of doubt regarding the wording of these general business terms and conditions, the German language text version shall apply.
11.4. The exclusive jurisdiction is Munich, Germany. However, FREY also has the right to bring suit against the supplier at its general place of jurisdiction.
11.5. The laws of the Federal Republic of Germany apply exclusively. The application of German international civil law and the United Nations Convention on Contracts for the International Sale of Goods (UN-CISG) is