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General Terms & Conditions

 

Effective Date:  May 22th, 2022

Delivery and Installation Terms and Conditions of FURUNO DEUTSCHLAND GmbH

 

1. Scope
  1. The statutory provisions shall apply unless otherwise agreed below.
  2. The following delivery and installation terms and conditions shall apply exclusively. Any conflicting or deviating terms and conditions of the customer shall only be binding if we acknowledge them in writing. Our terms and conditions shall also apply if we carry out the delivery in the knowledge of conflicting or deviating terms and conditions of the customer.
  3. Consumers within the meaning of these terms and conditions are natural persons with whom we enter a business relationship without any commercial or self-employed professional activity being attributable to them (§ 13 BGB). Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom we enter a business relationship and who act in the exercise of a commercial or self-employed professional activity (§ 14 BGB). The status of merchant within the meaning of these terms and conditions is derived from the HGB (German Commercial Code). Customers within the meaning of the delivery and installation terms and conditions are both consumers and entrepreneurs.
  4. Our terms of delivery and installation also apply to all future transactions with the customer.

2. Conclusion of contract; reservation of self-supply

  1. Our offers are subject to change and non-binding, i.e., they merely represent an invitation to the customer to submit an offer.
  2. If the customer is a merchant, the contract is concluded subject to correct and timely delivery by our suppliers. This only applies if we are not responsible for the non-delivery, in particular if we have concluded a congruent covering transaction with our suppliers. The customer will be informed immediately of the non-availability of the service. The consideration will be refunded immediately.

3. Delivery - Delivery time

  1. The scope and content of the delivery owed are specified in our order confirmation.
  2. We reserve the right to make customary and reasonable deviations from samples, exhibition items, or illustrations in terms of quality and appearance, in particular customary and reasonable color changes and reasonable design changes due to technical progress.
  3. Unless expressly agreed otherwise, all offers are exclusive of installation.
  4. The delivery dates stated are to be understood as approximate, unless expressly stated otherwise. If a fixed delivery date has been agreed, this shall be deemed to have been met upon notification of readiness for dispatch, even if the goods cannot be dispatched on time due to circumstances for which we are not responsible. Sentence 2 shall only apply to entrepreneurs within the meaning of Section 1(2) of these terms and conditions, legal entities under public law, or special funds under public law.
  5. All events of force majeure for which we are not responsible, such as war, comparable government measures, pandemics, epidemics, riots, strikes, lockouts, fire, machine malfunctions, bottlenecks in the supply of materials or energy, transport disruptions, supply chain disruptions, and other reasons beyond our control, release us from the fulfillment of our contractual obligations for as long as these events persist. We are obliged to inform the customer immediately in writing if such an event occurs. At the same time, we are required to notify the customer of how long such an event is expected to last. If such an event lasts longer than 3 months, both parties are entitled to withdraw from the contract. In this case, we undertake to immediately reimburse the customer for any consideration already provided. Further details are regulated in §§ 346 ff. BGB (German Civil Code).
  6. The provision in the preceding paragraph shall apply mutatis mutandis in favor of the customer if a case of force majeure occurs on their part.
  7. Unless otherwise agreed in writing, delivery shall be made EXW (Incoterms in the currently valid version) Rellingen for deliveries within Germany and FCA (Incoterms in the currently valid version) Rellingen for cross-border deliveries. Upon handover of the goods to the forwarding agent, carrier, or postal service, the risk of accidental loss or accidental deterioration of the delivery shall pass to the customer, unless the latter is acting as our vicarious agent. Sentences 1 and 2 shall also apply if, at the customer's request, we carry out or arrange for the delivery to their place of business. If the customer takes out transport insurance, they are obliged to assign all claims for compensation to us in advance, insofar as these relate to the risk of damage and price risk assumed by the customer. We hereby accept the assignment. This paragraph only applies to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
  8. We are not obliged to provide information or documents regarding 
    • the customs tariff number or HS code 
    • the export list number or classification according to the Dual-Use Regulation 
    • the US ECCN number 
    • raw materials used originating in the US 
    • non-preferential origin of goods (e.g., certificate of origin);
    • preferential origin of goods, in particular proof of preference and (long-term) supplier declarations to the customer. 

4. Prices and terms of payment; minimum order value

  1. The minimum order value is EUR 50.00 plus the applicable sales tax. For orders below this value, we will charge a minimum quantity flat rate of EUR 25.00 (net) in addition to the order value.
  2. The calculation is based on the prices valid on the day of delivery, provided that our customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law. The contractually agreed price applies to consumers, unless a delivery period of more than four months is stipulated in the contract or delivery takes place more than four months after conclusion of the contract and this circumstance is attributable to the consumer. In this case, we are entitled to demand a reasonable increase in the purchase price from the customer in relation to the original price in the event of significant price increases. If the price increase is unreasonable for the customer, they are entitled to withdraw from the contract.
  3. The prices quoted in our offers refer to the price ex warehouse without installation for customers who collect the goods themselves. In the case of carriage paid delivery, the price quoted includes the costs of normal freight to the place of receipt agreed with the customer.
  4. The customer is obliged to make the respective payments in accordance with the specifications in the order confirmation. Unless otherwise agreed, the purchase price is due upon invoicing.
  5. Assembly and installation are charged according to time and effort. Our current billing rates apply, which we will be happy to send to the customer on request. When billing for installation or assembly, waiting and travel times are billed as working time. Further details are regulated by our price lists. Installation and assembly invoices are due without deductions upon invoicing.
  6. Offsetting or retention by the customer is excluded, unless their underlying counterclaims are undisputed or have been legally established or are in a reciprocal relationship (§ 320 BGB) to the claims asserted by us. Rights of retention are also always excluded if they are not based on the same contractual relationship.
  7. If the customer defaults on payment, we are entitled to charge interest at a rate of nine percentage points above the base rate per annum set in accordance with § 247 BGB as compensation for default, as well as a flat fee of EUR 40.00. The damages shall be set higher if we can prove higher damages caused by default. This provision (Section 4, Paragraph 7) shall only apply to entrepreneurs within the meaning of Section 14 BGB, legal entities under public law or special funds under public law. The relevant statutory provisions shall apply to consumers.

5. Liability for defects

  1. The customer is obliged to inspect the deliveries immediately in accordance with § 377 HGB (German Commercial Code) and to submit any complaints in writing. The customer is also obliged to report hidden defects immediately as soon as they become apparent. A complaint within seven calendar days (from discovery or discoverability) is considered immediate. The above three sentences apply only to merchants.
  2. Excess deliveries, short deliveries, and incorrect deliveries are also considered defects. In these cases, the customer is also obliged to complain immediately in accordance with Section 5, Paragraph 1, provided that they are a merchant.
  3. If there is a defect and it has been reported in good time, we will remedy the defect within a reasonable period of time by means of a new delivery or repair. In the case of contracts for work and services, we have the right to choose between these two alternatives for subsequent performance; if the customer is an entrepreneur within the meaning of Section 1 (2) of this agreement, this also applies to contracts of sale. In all other respects, the law applies.
  4. In the case of defective delivery items weighing less than 20 kg that the customer can remove, we may, in the event of subsequent performance, request that they be sent to the nearest service center or our headquarters. The costs incurred in this regard shall be borne by us within the scope of our legal obligation. Upon request, the customer shall be paid an advance on the return shipping costs.
  5. If the customer is a consumer, the statutory warranty periods apply.
  6. If the customer is an entrepreneur within the meaning of Section 1 (2) of this agreement, a legal entity under public law or a special fund under public law, the warranty periods for newly manufactured items are one year from delivery; for used items, the warranty is excluded. The limitation period in the event of a delivery recourse pursuant to Sections 445b, 478 BGB remains unaffected by the provisions of the two preceding sentences. The above provisions of this clause do not apply to claims for damages, including those arising from our delay in remedying a defect requested by the buyer and owed by us; in this respect, the statutory limitation periods shall remain in force.

6. Liability

  1. Claims for damages of any kind within and outside the scope of liability for defects – arising from delay or impossibility, incorrect advice, culpa in contrahendo, breach of other contractual obligations, tort or other legal grounds – in particular also for damage not occurring to the delivery item itself – against us are excluded, unless the following rules stipulate otherwise.
  2. Liability shall only apply in cases of intent or gross negligence and in cases of breach of essential contractual obligations, even in cases of simple negligence. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely.
  3. Unless there is intent, our liability is limited to the reasonably foreseeable damage typical for this type of contract.
  4. The above limitations of liability do not apply to cases of injury to life, limb, or health, to liability under the Product Liability Act, to fraudulently concealed defects, or to the assumption of a guarantee for the quality of the item.
  5. Claims for reimbursement of expenses by the customer pursuant to § 284 BGB (German Civil Code) are excluded insofar as a claim for compensation for damage instead of performance is excluded under the above provisions.
  6. The above limitations of liability also apply in favor of our employees, organs, and other vicarious agents.
  7. The statutory burden of proof is not changed by the provisions of this clause.

7. Retention of title

  1. We retain title to the delivered products until they have been paid for.
  2. The processing or treatment of the goods subject to retention of title by the customer is always carried out on our behalf without any obligations arising for us. We shall be entitled to ownership of the new items in their respective processed or treated state. If our goods subject to retention of title are processed, treated, mixed, blended or combined with other products not belonging to us, we shall be entitled to co-ownership of the new item in proportion to the invoice price of the goods subject to retention of title to the invoice price of the other products. The customer hereby transfers to us in advance his co-ownership rights arising in the cases referred to in the preceding sentence, up to the amount of the invoice price of the goods subject to retention of title.
  3. The customer may sell the goods subject to retention of title, which are our sole or co-property, in the normal course of business; he is not permitted to pledge, transfer by way of security or assign them as security. The customer hereby assigns to us in advance all claims to which they are entitled from the resale of the goods subject to retention of title or from the products created by processing, treatment, mixing, blending, or combining. This also applies if the products are sold together with other products not belonging to us at a total price. If a third party has acquired ownership or co-ownership rights to the product as a result of processing, treatment, blending, mixing or combining due to legal regulations, the customer hereby also assigns to us in advance any claims it may have against the third party. Assignments within the meaning of this paragraph shall always be made only up to the amount of the invoice price of the goods subject to retention of title. The customer is entitled to collect the assigned claims until revocation, which is permissible at any time. The customer undertakes to keep the goods subject to retention of title insured against usual risks. The customer hereby assigns to us in advance its claims for compensation against its insurer for loss of or damage to the goods subject to retention of title. We hereby accept the assignments by the customer provided for in this clause.
  4. We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the customer's request to the extent that their value exceeds the claims to be secured by more than 10%. If the cooperation of the customer is required for the retention of title to be effective, for example in the case of registrations required under the law of the buyer's country, the customer shall carry out such actions at our request.
  5. If the cooperation of the customer is required for the retention of title to be effective, for example in the case of registrations required under the law of the buyer's country, the customer shall carry out such actions at our request.
  6. If the customer is in default of payment, we may prohibit them from disposing of the goods subject to retention of title in whole or, at our discretion, in part, e.g., only the sale or further processing, etc. If the customer meets the objective requirements for filing for insolvency, the customer shall refrain from any disposal of the goods subject to retention of title, regardless of the type, without the need for a corresponding request. The customer is obliged to notify us immediately of the stock of goods subject to retention of title. In this case, we are also entitled to withdraw from the contract and demand the return of the goods subject to retention of title. If the goods subject to retention of title have been processed, treated, mixed, blended or combined with other products, we are entitled to demand their return to a trustee; the customer is obliged to inform us of all co-owners of the goods subject to retention of title, including their company names or names, addresses, and all shares. The same applies mutatis mutandis to claims assigned to us in accordance with the above paragraphs; in addition, the customer must provide us with copies of the names and addresses of all debtors and the documents evidencing the claims against them without being asked to do so.

8. Right of withdrawal in the event of insolvency

In the event that the customer is objectively obliged to file for insolvency, insolvency proceedings are opened against its assets, or such proceedings are discontinued due to lack of assets, we shall be entitled to withdraw from contracts that have not yet been performed by both parties.

 

9. Flat-rate fee for unjustified complaints

  1. In the event that the customer returns goods to us on the basis of a complaint and this requires us to inspect the goods, the customer is obliged to reimburse us for the costs incurred by the inspection and reshipment to the customer if it turns out that the goods are free of defects and the complaint was culpable and unjustified.
  2. If correctly delivered goods are returned, at least 10% of the value of the goods will be charged as a processing fee and depreciation. This does not apply if the customer proves to us that we have incurred less damage or if the customer, as a consumer, exercises an existing right of withdrawal.

10. Applicable law, place of performance, place of jurisdiction

  1. German law shall apply to all contracts. The provisions of the UN Convention on Contracts for the International Sale of Goods shall be excluded.
  2. If the customer is a merchant, a legal entity under public law or a special fund under public law, or does not have a general place of jurisdiction in Germany, the following shall apply: 

The place of performance for delivery and for the fulfillment of warranty claims is the respective delivery plant.

 

If the customer is based in the EU or the European Economic Area or in Switzerland, the exclusive place of jurisdiction is our registered office. The parties are also free to sue the other party at their general place of jurisdiction at their registered office or branch office.

 

If, on the other hand, the customer is based outside the EU and the European Economic Area, the Arbitration Court of the Hamburg Chamber of Commerce shall have exclusive jurisdiction for all disputes arising from and in connection with contracts concluded under these General Terms and Conditions and shall decide finally and to the exclusion of ordinary legal recourse. The defendant is entitled to file a counterclaim before the Arbitration Court. The place of arbitration is Hamburg, and the language of the proceedings is German. The proceedings and, in particular, the taking of evidence shall be conducted in accordance with the rules of the Arbitration Court of the Hamburg Chamber of Commerce and the rules of Book 10 of the Code of Civil Procedure. Common law procedural principles, such as those relating to the submission of documents (known as document production), shall not apply directly or correspondingly. Insofar as one party may have to reimburse the other party for legal fees in connection with the arbitration proceedings, these shall be limited to the costs chargeable under the Lawyers' Fees Act (RVG).