General conditions of sale, repair and service (T&Cs) of FB Services GmbH
As of January 2016
1. Validity of the General Conditions of Sale
1.1 The following T&Cs apply for all transactions between FB Services GmbH (“FBS”) and customers of FBS (“Customers”), provided that the Customer is a company under Section 14 BGB (Bundesgesetzbuch [Civil Code]).
1.2 The General Terms and Conditions of Customers or third parties only apply if FBS expressly agrees to them applying. Where the Customer also excludes the applicability of third parties’ T&Cs - exclusion of FBS T&Cs - both parties hereby agree that in any case FBS’s T&Cs apply and that the statutory rules are not applied.
1.3 Our deliveries and services are provided exclusively under the following T&Cs. They also apply for all future transactions between the contracting parties without repeated reference to them being required. They also when if we do not specifically make reference to them in future contracts.
2. Subject of the contract; conclusion of the contract; set-off
2.1 The goods are offered by the seller on his online shop. The offers on our online shop are not binding. The presentation of the item does not constitute a legally-binding offer, but rather an invitation for you to submit a binding offer to us. All goods presented are expressly subject to sufficient availability.
2.2 You can make your offer to us by telephone, letter, fax, email, or on the online ship by placing the desired item in the virtual shopping cart (click on the button “in the shopping cart” and “to the shopping cart”) and sending the items in the shopping cart (click on the button “commit to buy”). By ordering you make us a binding offer to conclude a contract of sale. You then initially receive an acknowledgement of your order by email to the email address you have provided. This acknowledgement of your order does not constitute acceptance of your offer. This email only confirms that we have receive the order. It does not bring a contract into being. The offer given is only deemed accepted in law when we send an order confirmation to you by email or deliver the ordered goods. A contract of sale therefore only comes into being with the sending of our order confirmation and the accompanying payment request to you by email, or by delivery of the ordered goods.
2.2.1 You can correct input errors before sending your order using the technical tools provided on the online shop and via the usual functions with your keyboard/mouse. You can also cancel the process at any time by closing your browser window. Once you have clicked on the “commit to buy” button you have made a binding order (offer). It is then no longer possible to correct any input errors.
2.3. If the Customer orders services or works (“Products”) or sends goods for repair and/or maintenance to FBS (each an “Offer”), the Customer is bound by this offer for three weeks. If FBS has not already accepted the offer (by carrying out the repair, exchanging the items, sending a new item, the contract comes into being after three weeks have expired pursuant to the Customer’s offer.
2.3.1 Information on this in the form of print or digital media do not constitute an offer from FBS.
2.4 In the event that the delivery item is used outside of Germany, the scope of delivery for health and safety and environmental protection equipment conforms to the agreement made, in case of doubt in accordance with the provisions applicable in the Federal Republic of Germany. The Customer is responsible for observing the statutory or other provisions at the place of use.
2.5 All prices agreed between FBS and the Customer are understood to be in euros in addition to the statutory VAT and in addition to the costs of post and packaging, customs duties, transport insurance, charges and other fees, if such are incurred.
2.6 The Customer only has the right of set-off if his counterclaims are established by law, undisputed, or accepted by FBS.
3. Storage of the contract text
We store the contract text from your order. You can print this out before sending your order to us by clicking on “print” at the last stage in the order. In addition, we send you an acknowledgement of your order and an order confirmation with all order data and these General Terms and Conditions to the email address you have provided. Your data are deleted after the contract has been completely processed.
4. Repair; preliminary work; right of refusal
4.1 If FBS determines that the item sent by the Customer is not repairable, the Customer is obligated to reimburse FBS for examining the item.
4.3 If the Customer sends an item to FBS and (i) FBS refuses the offer, (ii) there is no offer, or (iii) the item is not repairable, FBS shall notify the Customer of this. If the Customer does ask FBS to return the item within eight days, FBS is entitled to dispose of the item.
5. Delivery; delay in acceptance
5.1 The delivery for repair/maintenance of the items sent takes place at the agreed delivery date (“Delivery Date”). Partial deliveries are always permissible if not unreasonable for a contracting party.
5.2 If FBS delivers an item to the Customer in exchange for a defective item, the Customer is obligated to send the defective item to FBS within eight days of receiving the item at its own expense (Transfer). If (i) the Customer does not comply with this deadline, or (ii) the defective item is irreparable, the Customer is obligated to reimburse FBS for the original price of the item delivered by FBS.
5.3 Delivery of our items ordered via the online shop requires clarification of all technical queries. Agreed delivery periods only apply approximately.
5.4 The delivery period is complied with if the delivery item has left our warehouse before it expires, or notice has been given that it is ready for delivery.
5.5 Compliance with out delivery and service obligations requires the punctual and proper fulfilment of your obligations. If an advance payment is agreed or you are to provide documents, permits, or approvals for us to provide services, the delivery period only begins once all the conditions listed are fulfilled. We reserve the right to plead that the contract is not fulfilled.
5.6 We only default after you have a set a reasonable grace period which then expires. If the delivery delay is not due to an intentional breach of contract for which we are responsible, our liability for compensation is limited to the foreseeable losses that typically occur. The same applies if the delivery delay for which we are responsible is due to a culpable breach of an essential contractual obligation.
5.7 If you prove that you occur loss from it, we are liable in the event of a negligent delivery delay for each full week’s delay in accordance with a compounded amount of compensation for the delay of 1% of the delated delivery value, but at most not more than 5% of the delayed delivery value.
5.8 We are entitled to provide partial deliveries and services within the agreed delivery and service times.
5.9 If the Customer is in default of acceptance, or if he culpably breaches other duties to co-operate (inter alia payment of the customs duties incurred), we are entitled to demand the losses incurred (return shipment costs), including any additional expenses (inter alia examination of the goods for any defects resulting from the return shipment). If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item transfers to the Customer on the date they fall into default of acceptance or payment. In addition, we are entitled, after setting a 10 day grace period, to rescind the contract and/or claim compensation. Further claims shall remain reserved.
5.10 In case of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible, such as business disruptions due to fire, water and similar circumstances, business interruptions, labour shortages, strikes, lockouts, difficulties procuring means of transportation, traffic disruption or official interventions, we are - insofar as we are, without being at fault, hindered in fulfilling our obligations to perform on time - entitled to postpone the delivery or service for the duration of the obstruction plus a reasonable start-up period. If the delivery or service is delayed by this for more than a month, both you and we are entitled, with the exclusion of any compensation claims, to rescind the contract concerning the amount affected by the disturbance in delivery.
5.11 If standard clauses on the type of delivery are agreed, then version applicable on the day the contract is concluded apply to interpret the Incoterms (ICC) of the International Chamber of Commerce in Paris.
6. Transfer of risk
6.1 The delivery takes place, unless otherwise expressly agreed in writing, from our warehouse (ex works). In this case the risk of accident loss and of accidental deterioration of the contractual delivery items transfers to you after it is provided for collection with receipt of the notification of provision. Apart from that, the risk of accidental loss and accidental deterioration of the delivery items transfers to you with handover to the freight carrier. You also bear the risk of accidental loss and accidental deterioration of the delivery items if partial deliveries are made or we, by way of exception, have accepted still other services e.g. the shipping costs, export, or installation, except if the delivery is made by our own vehicles or means of transport. If the shipment is delayed due to circumstances for which you are responsible, the risk passes to you on the day it is ready for dispatch.
6.2 If you wish, we will cover the delivery via transport insurance. You bear any costs incurred in this respect.
6.3 Should we or a third party we have commissioned send our delivery items to a destination outside the Federal Republic of Germany, we make the choice of shipping method and route, unless we have made different written agreements on this.
6.4 Separately agreements apply for the return of packaging.
7. Parameter sets; settings; standard settings; data back-up
7.1 FBS resets goods sent to the Customers to their standard settings before examination. If the Customer receives the goods back, the settings/parameter sets the Customer has made to the goods are no longer available.
7.2 The Customer is obligated to check the goods - particular its settings/parameter sets and for re-installed Customer-specific data for accuracy - that these are adjusted for the use intended by the Customer. If the Customer does not comply with this obligation, the circumstances fall within Clause 12.1.
7.3 If the Customer requests a data back-up (Back-up) and its restoration in the form of the installation of the saved fata (Restore), the data packet is subject to a charge. FBS accepts no guarantee for the Customer’s saved data set and no liability for losses which arise after restoration of the data to the Customer’s property.
8.1 For purchases via our online shop, the prices agreed on conclusion of the respective contract applies.
8.2 Unless otherwise agreed in individual cases, the agreed prices are understood to be exclusive of post and packaging and other ancillary costs..
8.3 All prices concern net prices, without the respective applicable statutory VAT.
8.4 If there is a delivery exempt from VAT under Section 4 No 1(b) in conjunction with Section 6 UStG (Umsatzsteuergesetz [VAT Act]) or an intra-Community triangular transaction under Section 25b UStG, you are obligated to sign and return a confirmation of arrival within the meaning of Section 17a Sub-section 2 UStGDV (UStG implementing order). You, or a third party you have commissioned, are to return the confirmation of arrival to us immediately after handover of the purchase object. If you do not comply with this obligation, the VAT is subsequently charged. We retain ownership of the purchase object until receipt of the confirmation of arrival or until payment of the subsequently-charged VAT. The same also applies if you make the choice of freight carrier.
8.5 Provided that nothing to the contrary was agreed in the individual case, you are to bear all public charges (taxes, fees, customs duties, etc.) incurred from or in connection with the conclusion or execution of the contract.
8.6 You must notify us of any special features more favourable for you associated with payment of the public charges and the shipment of the purchased item, otherwise there can be no consideration for any applicable customs and tax provisions specified for you. It should be noted that we do not have any beneficial tax and/or customs law licensing.
9. Payment terms; due date; set-off
9.1 You determine the type of payment yourself with each online shop order and each time anew. The following options are available to you in this regard:
- IMMEDIATE transfer:
You pay directly via our online banking account (PIN/TAN) with the TÜV-certified (TÜV Saarland) payment system from SOFORT AG. After sending your order you are passed to IMMEDIATE transfer and make the payment there.
- Advance payment:
We request that you transfer the invoice amount to our bank account within 14 days from payment request. The delivery periods begins, notwithstanding Clause 5, on the day after your payment amount is successfully available in our bank account.
You pay directly via your PayPal account. After sending your order you are passed on to PayPal and release the order value there. On dispatch of the goods, your PayPal account is charged with the actual invoice amount, after deduction any rebates, gift vouchers, etc.
- Credit card:
Your credit card is charged on conclusion of the contract.
- Direct debit:
For payment via direct debit, your German current account is debited via the SEPA Direct Debit Scheme 7 days after dispatch of the ordered goods. You receive the advance notice at least 3 days before the amount is debited. If it is not possible to make the direct debit specified, the bank levies an additional fee of €4.50, for which we invoice you.
9.2 The statutory rules apply for default of payment.
9.3 If the Customer is obligated to pay FBS in advance, FBS does not fall in default of its service until the Customer has paid.
9.4 Payments are deemed paid from the day on which (i) FBS actually received the purchase price, or (ii) the purchase price enters the bank account FBS has specified in the contract of sale.
9.5. In the event that a delivery period of more than four months after conclusion of the contract of sale is agreed in the contract of sale for the delivery of the goods, FBS is entitled to amend the price of the goods not yet delivered to the Customer after four months by an amount corresponding to the additional or reduced costs actually incurred by FBS due to tariff changes and/or changes in material prices for the particular goods. Insofar as this results in a price increase of more than 10% of the price originally agreed for the goods, the Customer is entitled to rescind the contract. Despite this, FBS shall inform the Customer in advance of such a price increase.
10. Ability to pay; refusal of payment
10.1 Should it transpire after conclusion of the contract with the Customer, that (i) the Customer cannot offer an adequate guarantee for his ability to pay, or (ii) the Customer’s fulfilment of the Contract is at risk, FBS is entitled to refuse to delivery the goods until the Customer effects the payment or has rendered security for it.
10.2 If the payment or security is not provided within a reasonable time period set by FBS for that reason, FBS is entitled to rescind the contract.
11. Liquidated damages
If the Customer is in default of acceptance or genuinely and finally refuses to pay, he is obligated to pay FBS 35% of the price as compensation. The Customer is permitted to prove that no loss, or only lesser loss, was incurred. FBS has the right to prove higher and/or additional loss.
12. Diagnostic measures
12.1 The Customer is obligated to submit to FBS in writing an accurate and comprehensive description of all defects and malfunctions (“Error Message”) and to support FBS in fault analysis and resolving the defects. If the Error Message is not sent properly or the cause of the error is not sufficiently described, FBS is entitled to carry out fault diagnosis with the diagnostic tools usually available in service vehicles and also to put the machine into operation with reasonable care for diagnostic test runs, unless the Customer has objected to this approach expressly or in writing. The Customer bears the burden of proof for material defects appearing with the transfer of risk; in particular the risk of the contractual objects being fit for their intended purpose, and compatibility with other components or systems.
12.2 Measures for fault diagnosis for the contractual objects delivered by FBS take place with local, in-house diagnostic tools (“in FBS’s factory”). FBS supports the Customers with the services in the contract through telecommunications support (“technical hotline”) with a remote diagnosis, insofar as this is possible with the telecommunications tools. FBS is not liable for alterations and other measures improperly carried out by the Customer and third parties during the technical hotline’s remote diagnosis.
12.3 If the Customer requests that fault diagnosis be carried out connected to a service at its location (“on-site service”), he has - under a separate agreement and at the site of the repair - to instruct FBS accordingly. A service particularly includes repairs, modifications, refurbishments, start-up procedures, maintenance and repair work, upgrading work for machines and systems, exchange of devices and data back-up. The Customer is obligated to provide all co-operation necessary to provide the agreed service on time and without charge for FBS. After the service, and any planed testing of it on-site, is completed, the Customer is obligated to accept. If the Customer neglects the instruction under Clause 9.5 Sentence 1, any additional damage caused by the diagnosis and the costs of remedying it are borne by the Customer. The Customer bears the costs of the service on-site under the current generally-applicable rates of pay under the price list.
13. Guarantee; limitation periods
13.1 As part of the statutory guarantee, FBS is obligated to comply with the accepted rules of engineering concerning the provision of the contractually agreed service. FBS does not accept any further obligation for FBS to document all product and system errors and deviations, and accordingly take them into account in carrying out the order.
13.2 Guarantee claims only exist if you immediately provide us with all information necessary to determine the cause of the fault in our delivery objects and the extent of our responsibility,. or grant us the opportunity to carry out our own investigation on-site. If a fault is not determined or a fault cannot be found, you bear the costs of investigating the cause of the fault.
13.3 The contractual object is free from defects if it is in the agreed condition. If no agreement has been made about the condition of the contractual objects, the contractual objects are free from defects if they are suitable for the purpose intended by the Customer and are in a condition that is normal for contractual objects of the same type. The crucial date for the presence of a defect is exclusively the condition of the contractual objects on transfer of risk.
13.4 The Customer is obligated to examine the goods immediately on receipt of the delivery or service for obvious defects, and to report these to FBS in writing immediately, at the latest within five working days. The crucial dates for the calculation are the date of delivery and FBS’s receipt of the complaint. Should a defect later appear in the contractual objects delivered, the Customer is similarly obligated to notify the defect to FBS immediately. For latent defects, the Customer bears the burden of proof for showing that the defect could not have been determined earlier and that the goods have defects, which already existed on transfer of risk, but prima facie evidence is sufficient for this. Otherwise, the goods are deemed approved.
13.5 If the goods already show a defect on transfer of risk from FBS to the Customer, FBS is entitled to resolve the defect by repairing it. The Customer first becomes entitled to additional guarantee rights if FBS does not resolve the defect within a reasonable period or the repair fails, is unreasonable or impossible, or FBS refuses to repair it. If the defect cannot be determined during the attempt to repair it or at a later point in time, or it falls within the Customer’s area of responsibility, the Customer bears the costs for the examination and repair carried out by FBS under the current generally applicable rates of pay under the price list. The guarantee claims only apply for the component showing the defect.
13.6 The Customer has to give FBS or a third party obligated for the guarantee 22 working days to carry out the guarantee work. He is only entitled to carry out such work personally outside of the circumstances in Section 637 with FBS’s permission. FBS bears the necessary expenses for rectification to a certain extent; these must be in reasonable proportion to the value of the item in a fault-free condition, to the importance of the defect and/or the possibility of obtaining another type of rectification. The Customer bears additional costs.
13.7 FBS is not liable for malfunctions and damage to the contractual objects after the transfer of risk which arise due to inappropriate or improper use or operation, defective assembly or set-up by the Customer or a third party, from a lack of compatibility with other systems or modules, by normal wear and tear, defective or negligent treatment, and for the consequences of alterations or repair work carried out by the Customer or a third party improperly and without FBS’s consent.
13.8 Any claims due to the presence of a defect become time-barred for new goods after a year, for used goods after twelve months.
13.9 Clause 13.8 does not apply if the used goods involve such goods which contain one of the following article descriptions:
- “uncertain, used, untested”
- “used and tested”
- “used, functions repaired and tested”
- “used, functions repaired and tested”
The separate guarantee periods agreed in individual contracts apply for these goods as follows:
for goods under 1: no guarantee for goods under 2, 3, and 4: 1 month’s guarantee
13.10 In the event of a regulation different to Clause 13.8, you can find the relevant guarantee period in the article description and in your individual, legally-binding order and invoice document.
13.11 The limitation period for material defects begins with the delivery of the item or after notification that it is ready for collection by FBS, but at the latest within two days after collection or the goods or with acceptance of the work. The limitation period is suspended for the time needed for rectification. It does not begin afresh.
13.12 For goods produced by third parties (“Third party goods”), the Customer is entitled to guarantee rights against FBS in accordance with the following:
FBS shall either (i) assert guarantee rights concerning Third party goods in its own name and on the Customer’s behalf against the third party, or (ii) assign FBS’s guarantee rights against the third party to the Customer as conditional payment. If and insofar as it is not possible to enforce resolution of the defect against the third party, Clauses 12.1 and 12.10 apply accordingly.
Quality and durability guarantees for particular features (guaranteed characteristics) and other independent guarantee obligations are only accepted if they are agreed in writing as such. There are no other guarantee obligations and/or guarantee promises.
15. No assumption of the procurement risk; right of rescission
FBS has the right to rescind the contract if it is impossible for FBS to delivery the goods because its suppliers and/or contractors do not deliver the goods or parts thereof, it would only be possible for FBS to procure a replacement with disproportionate/unreasonable expenditure, and FBS is not responsible for this impossibility, if these circumstances first occur after conclusion of the contract, were not foreseeable at the time the contract was concluded, and FBS shows that it has undertaken the procurement of similar goods in a reasonable way. FBS shall notify the Customer of any such event.
16. Limitations of liability; force majeure
16.1 We constantly strive to ensure that our online service is available without interruption and that transmission if error-free. However, due to the nature of the internet, this cannot be guaranteed. In addition, tour access to our service can occasionally be interrupted or restricted by repairs, maintenance, or to enable launching of new features or services. We try to limit the frequency and duration of any of these temporary interruptions or restrictions.
16.2 The liability of FBS and its representatives and vicarious agents for injuries to life, limb, and health, for breaches of essential contractual obligations, under the ProdHaftG; or where FBS fraudulently conceals a defect, has expressly accepted a guarantee, or has intentionally caused damage; is unlimited.
16.3 Subject to FBS’s liability under Clause 15.2, its liability is limited (i) in all causes of negligence, (ii) for breaches of secondary obligations, (iii) lack of economic success, (iv) consequential losses, and (v) losses from third-party claims against the Customer, to an amount equal to the insured sum of the liability insurance policy concluded by FBS, failing which, to the foreseeable losses typical for the contract. FBS is not liable for the Customer’s lost profits.
16.4 Subject to the above, FBS is not liable for service disruptions which have been caused by unforeseeable events, particularly including business disruptions, strikes, lawful lockouts, shortages of labour, energy, difficulties procuring necessary official permits, official interventions, or the lack of, incorrect/unpunctual delivery from suppliers, unless attributable to FBS’s intent/gross negligence. If FBS’s delivery or service under the contract is significantly impeded or impossible due to such events not caused by FBS intentionally or by gross negligence, and this difficulty is for more than a temporary period, FBS is entitled to rescind the contract.
16.5 Any liability for compensation going beyond that provided in Section VII is - without regard to the legal nature of the claim asserted - excluded. This particularly applies for compensation claims arising from culpability upon concluding the contract, due to other breaches of obligations, or due to criminal compensatory claims for damage to property under Section 823 BGB.
16.6 The restriction under Sub-section 1 also applies insofar as you request, instead of compensation for loss, compensation for wasted expenditure.
16.7 Insofar as our liability for compensation is excluded or limited, this shall also apply to the personal compensatory liability of our employees, workers, representatives and vicarious agents.
16.8 The liability of FBS and its representatives and vicarious agents for injuries to life, limb, and health, for breaches of essential contractual obligations, under the ProdHaftG; or where FBS fraudulently conceals a defect, has expressly accepted a guarantee, or has intentionally caused damage; is unlimited.
16.9 Clause 15 also applies for the benefit of all of FBS’s employees, institutions, and vicarious agents.
17. Retention of title; work contractor’s right of lien
17.1 FBS retains title to the goods (“Reserved goods”) until the Customer has fulfilled all claims from the contract underlying these claims (“Retention of title”). The Retention of title also expands to the share of items created through processing, combining, mixing, or installing the Reserved goods, calculated using the value of the particular Reserved goods (“Expanded retention of title”), and also to claims which the Customer acquires against third parties from resale of the Reserved goods (“Extended retention of title”).
17.2 The Customer is obligated to handle the Reserved goods with care, to insure them sufficiently for their replacement value at his own expense against losses from fire, water, and theft, to carry out maintenance and repair work on the Reserved goods on time at his own expense, and neither to use them as security or pledge them without FBS’s consent.
17.3 The Customer is obligated to inform FBS immediately in writing of pledges and other procedures interfering with FBS’s title, and to indemnify FBS against the costs FBS incurs in securing/realising its rights.
17.4 The Customer is obligated to expressly notify third parties of the Retention of title.
17.5 The Customer is to notify FBS immediately in writing of changes of address or changes in the location of the Reserved goods or parts thereof.
17.6 The Customer grants FBS a contractual work contractor’s right of lien in accordance with Section 1204 et seq. BGB to the goods kept in FBS’s ownership.
18. Compliance with legal requirements
18.1 In the case of the engagement of employees, agents and contractors, the client warrants that all required regulatory approvals (such as work permits, residence permits) are present. The client indemnifies FBS against all legal consequences arising from non-compliance with this requirement.
18.2 The Customer guarantees compliance, both by himself and his contractors, with all legal requirements (health and safety, business license, etc.), and in particular MiLoG (Mindestlohngesetz [Minimum Wage Act]). The Customer indemnifies FBS against all claims relating to minimum wage requirements; this also applies to any accrued fines. He also undertakes to inform FBS promptly if there is a suspicion that he or one of his contractors has contravened statutory minimum wage requirements.
19. Final provisions
19.1 Subject to an agreement between the parties, the place of performance in Hanau in Germany.
19.2 The international place of jurisdiction is Germany. The local place of jurisdiction for all disputes from the contract is - if and insofar as this can be validly agreed - Hanau.
19.3 This contract is subject to Germany law, to the exclusion of UN Sales Law (CISG).
19.4 Should one of the above provisions be or become invalid, or excluded by a separate agreement, the validity of the remaining provisions is not affected.