1.1 Any delivery of goods and services by FIXTURE TECH as the seller to the customer (“Customer”) shall be subject to the Terms and Conditions of Sale set forth herein exclusively, except where other agreements have been explicitly made.
1.2 Insofar as provisions of the Terms and Conditions of Sale are addressed to entrepreneurs, these provisions shall only apply to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). For consumers within the meaning of § 13 of the German Civil Code (BGB), the law shall apply in this respect, unless otherwise expressly regulated in these Terms and Conditions of Sale.
1.3 The Customer’s general terms and conditions that are inconsistent with or supplement the Terms and Conditions of Sale set forth herein shall only apply to the extent FIXTURE TECH has explicitly consented in writing. Without such consent, delivery of goods and services of FIXTURE TECH shall in any case be based on the Terms and Conditions of Sale even if the Customer has referred to its own general terms and conditions.
1.4 Any claims held against FIXTURE TECH may not be assigned to third parties. § 354a of the German Commercial Code (HGB) shall remain unaffected.
1.5 The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German, EU, US export control regulations as well as by the export control regulations of further countries. Any resale of goods to embargoed countries or to denied persons or persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. Customer declares with its order the conformity with such statutes and regulations and that the goods and services will not directly or indirectly be delivered into countries that prohibit or restrict the import of such goods or services. Customer declares to have obtained all licenses required for export and import.
2. Conclusion of contracts
2.1 The offers of FIXTURE TECH are subject to change and non-binding. This also applies if FIXTURE TECH has provided the Customer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which FIXTURE TECH reserves property rights and copyrights.
2.2 The order of the goods by the Customer is considered a binding offer to conclude a contract. Unless otherwise stated in the order, FIXTURE TECH is entitled to accept this contract offer within 30 days after its receipt by FIXTURE TECH.
2.3 Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.4 In the event that FIXTURE TECH in derogation of Section 2.1 has made a binding offer, the Customer shall have the right to accept the offer only within a period of 30 days. The offer can only be accepted by the Customer on the terms identical to the offer. An acceptance on even slightly modified terms shall be deemed to be a new offer, the acceptance of which shall be at the discretion of FIXTURE TECH.
2.5 In case of subsequent changes or additions, originally agreed delivery dates and deadlines shall continue to apply only if expressly confirmed in writing by FIXTURE TECH. Such subsequent change of the contract is deemed to have occurred in particular in case of deviations from the 3D construction plan released by the customer (“Design Freeze”), in the event that the individual production of a workpiece is ordered (“project business”).
3. Information, consultancy
Information and consultancy in relation to FIXTURE TECH’ goods and services are based on FIXTURE TECH’ existing experience. Any values quoted as part thereof, including but not limited to performance data, are average values determined through experiments under standard laboratory conditions. FIXTURE TECH does not assume any obligation to precisely meet the quoted values and possible areas of application. Section 11 of these Terms and Conditions of Sale governs any issues of liability.
4. Prices, cost allocation
4.1 Only the prices quoted in the order confirmation of FIXTURE TECH shall apply.
4.2 Additional services and additional expenses after order changes and additions, in particular in the case of deviations in the event of a Design Freeze (see Section 2.5), will be charged separately.
4.3 In the case of Project Business (see clause 2.5), all prices for materials included in the offer are calculated on the basis of the purchase prices at the time of preparation of this offer. If, during the period of performance of the order, the purchase prices demanded on the market for the respective material change in comparison with the purchase prices demanded at the time of preparation of the offer, either party may demand an adjustment of the remuneration to be paid for the respective materials accordingly and in the same percentage ratio downwards or upwards.
4.4 For orders with a net value of less than EUR 100.00, FIXTURE TECH shall charge a minimum quantity surcharge of EUR 50.00.
4.5 All prices are quoted as net prices and do not include value added tax, which is to be paid additionally by the Customer in the amount specified by applicable law.
4.6 Unless otherwise expressly agreed in writing upon conclusion of the contract, the prices are quoted ex works of the company of the FIXTURE TECH Group using these Terms and Conditions of Sale. In particular, Customer shall bear all additional costs for freight, transport, shipping and insurance, public charges (including withholding tax), official permits and customs duties as well as packaging costs exceeding the customary packaging. Section 15.4 applies to alleged later agreements.
5.1 Unless otherwise expressly agreed, FIXTURE TECH shall deliver ex works Tholey. INCOTERMS FCA (2020) Fixture Tech Solutions GmbH, Tholey/Germany shall apply; only in case of Project Business (see Section 2.5) within Europe the INCOTERMS CPT Place of Destination shall apply. Clause 4.6 remains unaffected
5.2 Delivery periods shall only be deemed to have been agreed if they have been expressly confirmed in writing. Delivery periods shall begin on the date of the order confirmation by FIXTURE TECH, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the delivery of goods and services cannot be shipped in time through no fault of FIXTURE TECH.
5.3 With respect to periods and dates which are not expressly defined as fixed in the order confirmation the Customer may set a reasonable delivery period for delivery and performance two weeks after the expiry of such period or date. FIXTURE TECH shall only be in default after expiry of such delivery period and by reminder of the Customer. In all other respects the occurrence of delay in delivery shall be governed by the statutory provisions.
5.4 Without prejudicing FIXTURE TECH’ further legal rights including but not limited to rights due to default of Costumer, periods and dates shall be extended by the period of time during which the Customer fails to comply with its obligations or with its duties to cooperate towards FIXTURE TECH.
5.5 FIXTURE TECH is entitled to partial deliveries and partial services if these are reasonable for the Customer.
5.6 Due to a breach of duty for which FIXTURE TECH is not responsible and which does not consist of a defect (in particular delay in delivery or performance), the Customer is only entitled to rescind the contract after two reasonable grace periods unsuccessfully expired unless the hindrance is merely temporary in nature and a postponement of the delivery is reasonable for the Customer.
5.7 In the case, that FIXTURE TECH is unable to meet binding delivery deadlines for reasons for which FIXTURE TECH is not responsible (Non-availability of the Performance), FIXTURE TECH will inform the Customer thereof without delay and at the same time notify the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, FIXTURE TECH is entitled to withdraw from the contract in whole or in part; FIXTURE TECH will immediately refund any consideration already paid by the Customer. Non-availability of the Performance shall be deemed to exist, for example, in the event of late delivery by a supplier, if FIXTURE TECH has concluded a congruent covering transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if FIXTURE TECH in the individual case is not obliged to provide procurement.
5.8 Notwithstanding the right of the entrepreneur to rescind the contract due to a breach of duty for which FIXTURE TECH is responsible or due to a defect, the entrepreneur’s free right of termination is excluded. In all other respects the legal requirements and legal consequences shall apply.
5.9 Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by FIXTURE TECH, shall be forfeited.
5.10 The rights of the Customer according to section 10 and the legal rights of FIXTURE TECH remain unaffected.
6. Shipment, passing of risk
6.1. FIXTURE TECH shall only owe shipment of goods and services if this has been expressly agreed. Subject to section 5.1 or any other express agreement, shipment and transport shall be at the risk and expense of the Customer.
6.2 If FIXTURE TECH, at the request of the entrepreneur, ships goods and services sold to another place than the place of performance, the risk of accidental deterioration and accidental loss shall pass to the entrepreneur as soon as FIXTURE TECH has handed the goods and services over to the person specified to carry out the shipment (§ 447 of the German Civil Code – BGB). With respect to a consumer
§§ 447, 475 of the German Civil Code (BGB) apply in this case.
6.3. Unless otherwise agreed, FIXTURE TECH reserves the right to deliver through its own delivery organisation.
6.4 If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer upon notification of FIXTURE TECH’ readiness to ship. Storage costs after passing of risk shall be borne by the Customer. Further claims remain unaffected.
6.5 If the Customer defaults in accepting, FIXTURE TECH shall be entitled to claim compensation for the expenses incurred by FIXTURE TECH and with default of acceptance the risk of accidental deterioration, loss and destruction shall pass to the Customer.
7.1 Payment shall be made in full within 30 days from the date of the . Delivery Payment shall be considered to have been made on the day the payable sum is received by FIXTURE TECH. Bills of exchange and cheques shall not be deemed payment until after they have been honoured and will be accepted without any obligation to make timely presentation and timely protest.
7.2 In the case of commissioned Project Business, FIXTURE TECH shall be entitled to demand an appropriate down payment on the agreed remuneration after the Design Freeze (see Section 2.5) has taken place.
7.3 Immediately upon default of payment – or from the due date if Customer is a merchant within the meaning of the German Commercial Code (HGB) – FIXTURE TECH shall be entitled to demand default interest at a rate of 9 (5 in case the Customer is a consumer) percentage points above the base lending rate p.a.. FIXTURE TECH reserves the right to claim a higher actual damage.
7.4 Customers may only offset against a counterclaim which is uncontested or has been finally and non-appealably established or is reciprocally linked to the main claim.
7.5 An entrepreneur may only withhold its counter- performance because of such counterclaims which are uncontested or have been finally and non-appealably established.
7.6 Any of FIXTURE TECH’ receivables shall be immediately payable in the event of a default in payment, a notice given in protest against a bill of exchange or suspension of the Customer’s payments, independent of the term of the bills of exchange which may have already been accepted. In all cases mentioned in sentence 1, FIXTURE TECH shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to rescind the contract without another grace period. This shall not affect any further claims.
8. Retention of title
8.1 With respect to consumers FIXTURE TECH reserves the right of ownership of delivered goods and services (“goods subject to retention of title”) until the purchase price of the goods subject to retention of title has been paid in full. FIXTURE TECH shall be notified by Customer immediately of any seizure or other access to the goods subject to retention of title by third parties; the same shall apply if an application for the opening of insolvency proceedings has been filed.
8.2 With respect to entrepreneurs FIXTURE TECH reserves the right of ownership of delivered goods and services (“goods subject to retention of title “) until full payment of all present and future claims irrespective of their legal basis arising from the legal and business relationship upon which the delivery is based.
8.3 If the goods subject to retention of title are processed or transformed, the processing and transforming is carried out in the name of and for FIXTURE TECH as manufacturer. In the event of processing, transforming, combining or intermixture of goods subject to retention of title with other goods by the Customer, FIXTURE TECH shall be entitled to co-ownership of any new object inasmuch as the invoiced value of goods with retention of title relates to the value of the other involved goods. Where FIXTURE TECH loses ownership due to processing, transforming, combining or intermixture with other goods, the Customer herewith transfers ownership of the new object to FIXTURE TECH to the extent of the value of the goods subject to retention of title. Customer shall be responsible for holding the new object in safe custody on the behalf of FIXTURE TECH and at Customer’s own expense. Any rights of ownership or co-ownership resulting from processing, transforming, combining or intermixture shall be deemed to be goods subject to retention of title within the meaning of Section 8.
8.4 The entrepreneur is only entitled to resell goods subject to retention of title or to process or combine or mix them with other property within the scope of proper business operations and as long as the Customer is not in default. The Customer shall be prohibited from taking any other disposition regarding goods subject to retention of title. Section 8.1 sentence 2 applies also to entrepreneurs. All intervention costs will be charged to the entrepreneurs if and to the extent that they cannot be collected from such third party. If the entrepreneur grants its buyer additional time for payment of the sales price, entrepreneur shall reserve title to the goods subject to retention of title for itself on the same conditions upon which FIXTURE TECH has reserved its title when delivering goods subject to retention of title. Otherwise the entrepreneur is not authorized to resell the goods subject to retention of title.
8.5 The entrepreneur herewith assigns to FIXTURE TECH any claims against third parties resulting from a resale of goods subject to retention of title. They serve as collateral to the same extent as the goods subject to retention of title. The entrepreneur shall only be entitled and authorized to resell goods subject to retention of title if it is ensured that entrepreneur’s claims against third parties resulting from the resell are transferred to FIXTURE TECH.
8.6 If the entrepreneur resells goods subject to retention of title together with goods from other suppliers at a certain total price, Customer assigns to FIXTURE TECH its claim against third parties arising from such resale to the extent of the invoice value of the goods subject to retention of title initially sold by FIXTURE TECH.
8.7 If an assigned claim is included into a current account, the entrepreneur herewith assigns to FIXTURE TECH that part of the balance which is equivalent to the amount of this claim, including the final balance from the current account operations.
8.8 Until FIXTURE TECH gives notice of revocation, the entrepreneur shall be authorized to collect claims assigned to FIXTURE TECH. FIXTURE TECH shall be entitled to such revocation, if the entrepreneur fails to meet its payment obligations under the business relationship with FIXTURE TECH in due course. If the preconditions for exercising the revocation right are fulfilled, the entrepreneur shall, upon FIXTURE TECH’ request, immediately notify FIXTURE TECH of any assigned claims with the respective debtors, furnish all data required for collection of such claims, hand over all related documentation and notify the debtors of the assignment. FIXTURE TECH reserves the right to notify the debtors of the assignment itself.
8.9 If the value of the collateral deposited for the benefit of FIXTURE TECH exceeds the secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that FIXTURE TECH insofar release collaterals of the choice of FIXTURE TECH.
8.10 If FIXTURE TECH asserts the retention of title against an entrepreneur, this action shall only be deemed as rescission of the contract if FIXTURE TECH expressly declares this in writing.
8.11 The entrepreneur’s right to possess goods subject to retention of title shall be null and void, if the entrepreneur fails to meet its contractual obligations.
9. Software rights
9.1 For all delivered programs the respective underlying license terms (EULA) apply.
9.2 The Customer is granted a non-exclusive, non-assignable right to use related documentation and updates for no other purpose than the internal operation of the delivered goods and services for which such software is intended. For documentation created and delivered at the Customer’s request, FIXTURE TECH shall grant that Customer single end user licences in the desired quantity to the extent of a non- exclusive and non-transferable right of use.
9.3 Source programs shall only be provided based on a separate written agreement.
10.1 If there is a defect in quality or title (“defect”) in delivered goods and services, the statutory provisions shall apply, unless otherwise specified hereafter.
10.2 Cure shall be carried out at FIXTURE TECH’ discretion either by remedying the defect or by providing a defect-free delivery of goods and services.
10.3 The delivery of goods and services claimed to be defective shall be returned to FIXTURE TECH for examination in their original or equivalent packaging.
10.4 An entrepreneur who is also a merchant within the meaning of the German Commercial Code (HGB) shall fulfil its statutory obligation to inspect and give notice of defects immediately in writing or text form (§§ 377, 381 of the German Commercial Code – HGB).
10.5 FIXTURE TECH shall be entitled to refuse cure in accordance with the statutory provisions. FIXTURE TECH may refuse cure if the
Customer has not sent the delivery of goods and services claimed to be defective to FIXTURE TECH for examination at FIXTURE TECH’ request.
10.6 The Customer shall be entitled to rescind the contract or reduce the price in accordance with the statutory provisions, however not before the Customer has set a reasonable grace period to cure the defect which FIXTURE TECH has failed to observe, unless setting such grace period is dispensable under the statutory provisions. In the event of rescission, the Customer shall be liable for any intentional or negligent actions that results in destruction, loss of the goods or undrawn benefits.
10.7 All information about FIXTURE TECH’ products, including but not limited to pictures, drawings, data about weight, about measure and about performance, contained in offers and brochures are approximate average values. Such information shall in no way constitute a guarantee of quality or durability, but they are rather approximate descriptions or labelling of the offered goods and services.
10.8 Unless limits for deviations have been expressly agreed in the order confirmation, deviations shall be admissible if they are customary within the trade.
10.9 Normal wear and tear of the delivered goods and services are not subject to warranty.
10.10 The description of a delivery of goods and services as declassified or used is an agreement on quality. Flaws or restrictions which are identifiable, or which typically result from being declassified or used shall not be deemed to be defects.
10.11 Substances and individual parts provided by the Customer which are as per agreement intended to be used or reused for the manufacture of an individual workpiece by FIXTURE TECH shall be tested by FIXTURE TECH for their suitability for use. FIXTURE TECH shall not assume any warranty for defects in the manufactured workpiece resulting from hidden defects in such materials or individual parts or for a shortened life cycle of the workpiece resulting from such hidden defects.
10.12 Any warranty shall be void, if FIXTURE TECH’ operating or maintenance instructions are not observed, if changes are made to delivered goods or services, if parts are replaced or materials used that are not in accordance with the original product specifications by FIXTURE TECH, unless the Customer proves that the defect in question resulted from another cause. For a consumer the provision of § 477 of the German Civil Code (BGB) remains unaffected.
10.13 Remedy of defects and providing a defect-free delivery by FIXTURE TECH based on a notification of a defect by the Customer shall only result in a new start of the limitation period if FIXTURE TECH expressly declared an acknowledgement.
10.14 Section 11 shall apply to any claims for damages and reimbursement of expenses by the Customer due to defects. However, in all cases of section 11.3 as well as in all cases of liability for damages caused intentionally or by gross negligence, the Customer’s claims and rights shall be governed exclusively by the statutory provisions.
10.15 The limitation period for claims arising from defects shall be one year for entrepreneurs and two years for consumers. However, in all cases of section 11.3 as well as in all cases of liability for damages caused intentionally or by gross negligence, the limitation period shall be governed exclusively by the statutory provisions.
11. Exclusion and limitation of liability
11.1 Without prejudice to the statutory liability requirements, FIXTURE TECH shall only be liable for damages and reimbursement of expenses regardless of the legal grounds in the event of intent or gross negligence without limitation and in the event of a slightly negligent breach of an essential contractual obligation (a contractual obligation whose breach endangers the proper execution of the contract and the achievement of the purpose of the contract) limited to the typical contractual damage foreseeable at the time of conclusion of the contract.
11.2 In the event of a slightly negligent breach of a material contractual obligation, FIXTURE TECH shall be liable for damages caused by delay only up to 5% of the agreed purchase price, without prejudice to the statutory liability requirements.
11.3 For damages caused by delay FIXTURE TECH is liable, without prejudice to the statutory liability requirements, in case of slightly negligent violation of an essential contractual obligation only up to 5 % of the agreed purchase price.
11.4 The exclusions and limitations of liability in Sections 11.1 and 11.2 shall also apply in the event of breaches of duty by persons whose fault FIXTURE TECH is responsible for.
11.5 The exclusions and limitations of liability in Sections 11.1 to 11.3 shall not apply in cases FIXTURE TECH fraudulently concealed a defect, or gave a guarantee of quality in the sense of § 444 of the German Civil Code (BGB) (declaration by FIXTURE TECH that the object of purchase has a certain characteristic at the time of passing of risk and that FIXTURE TECH will be liable for all consequences of its absence irrespective of fault), or for damages based on injury to life, body or health, or in the case of mandatory liability under the laws on product liability.
11.6 The limitation period for claims for damages against FIXTURE TECH regardless of the legal basis shall be one year (or two years if the Customer is a consumer) from the date of delivery to the Customer or, in case of tortious claims, from the date of knowledge or grossly negligent ignorance of the circumstances justifying the claim and of the person liable to pay compensation. However, in all cases of Section 11.3 as well as in all case of liability for damages caused by intent or gross negligence, the limitation period shall be governed exclusively by the statutory provisions.
11.7 If the Customer is an intermediary seller of the goods delivered by FIXTURE TECH and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against FIXTURE TECH by the Customer shall be the period specified by statute.
11.8 The liability of FIXTURE TECH for software delivered by FIXTURE TECH shall be limited to liability for losses or alteration of data caused by the program; however, FIXTURE TECH shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
11.9 In all other respects, the liability of FIXTURE TECH is excluded. The statutory burden of proof remains unaffected.
12. Industrial property rights, copyrights
12.1 In the event of claims against the Customer because of breach of an industrial property right or a copyright in using delivered goods or services in accordance with the
12.2 contractually defined manner, FIXTURE TECH shall be responsible to obtain the right for the Customer to continue using such goods or services, provided that the Customer gives immediate written notice of such third-party claims and FIXTURE TECH’ rights to take all appropriate defensive and out-of- court actions are reserved. If, despite such actions, it proves impossible under reasonable economic conditions to continue using the deliveries or services supplied by FIXTURE TECH, it shall be deemed as agreed that FIXTURE TECH may, at the discretion of FIXTURE TECH, modify or replace the particular good or service to remedy the defect of title, or take back such delivery or service with refunding of the sales price previously paid to FIXTURE TECH less a certain deduction to account for the age of the delivery or service in question.
12.3 Subject to Section 11, the Customer shall have no further claims for infringements of industrial property rights. FIXTURE TECH shall have no obligations in accordance with Section 12.1 in case infringement of rights are caused by not using the delivered goods or services in the contractually defined manner or by using them together with other deliveries or services than those of FIXTURE TECH.
13.1 Customer is obliged to closely observe the documents accompanying the goods and to ensure the correct disposal of the goods in accordance with the applicable law.
13.2 In case Customer is an entrepreneur, Customer shall be obliged to dispose the goods at its own costs. Customer shall be obliged to transfer this obligation on the purchaser of the goods or parts thereof in case of a resale of the goods. In case the Customer is a consumer the statutory provisions regarding disposal of waste shall apply.
14. Confidentiality and Data Protection
14.1 Unless otherwise expressly stipulated in writing, no information provided to FIXTURE TECH in connection with orders shall be regarded as confidential, unless their confidential nature is obvious or expressly marked as confidential by the Customer.
14.2 FIXTURE TECH shall be entitled to process personal data of the Customer and to transfer personal data to affiliated companies of the FIXTURE TECH Group to the extent this is necessary for the execution of the contract or provided that the Customer has acknowledged the processing and transfer of personal data. Any data subject is entitled to request information regarding the content and use of the personal data processed by FIXTURE TECH. Any request by a data subject shall be addressed to the FIXTURE TECH Group company using these Terms and Conditions of Sale and will be handled in accordance with the applicable data protection laws and regulations.
15.1 The place of jurisdiction, provided that Customer is a merchant, a legal person under public law or a special fund under public law, shall be the place of business of the FIXTURE TECH Group company using these Terms and Conditions of Sale. However, FIXTURE TECH may also take legal action against Customer at Customer’s place of business.
15.2 Notice according to § 36 of the German Consumer Dispute Resolution Act: (Verbraucherstreitbeilegungsgesetz or VSGB): FIXTURE TECH will not take part in a dispute resolution process in front of an alternative dispute resolution entity according to VSBG and is not obliged to do so.
15.3 Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), provided that Customer is a merchant, a legal person under public law or a special fund under public law.
15.4 A written contract or written confirmation is decisive for the existence and content of subsequent agreements, amendments and supplements. The possibility of proof to the contrary remains unaffected.