General Terms and Conditions of Business of Fuji Electric Europe GmbH
1.1 The following set of general terms and conditions of business shall apply to all items of equipment supplied, all repair work performed, and all other types of services rendered by FUJI ELECTRIC EUROPE GmbH (FUJI) unless otherwise mutually agreed by the parties in writing.
Any terms and conditions of business of ordering parties shall not be binding upon FUJI to the extent that they depart from those stated hereunder, unless otherwise expressly agreed to in writing. Acceptance of delivery of items of equipment and of services rendered shall constitute acceptance of FUJI's terms and conditions of business, regardless of any prior objections thereto that may have been entered.
Any contrary statements by ordering parties referring to their own terms and conditions of business or purchase are herewith refuted and rejected.
1.2 In the event that a provision complying with "INCOTERMS 2010" shall be mutually agreed upon, then the same shall apply only insofar as no provisions of those terms of sale shall disagree with the general terms and conditions of business stated hereunder.
1.3 To the extent that the general terms and conditions of business stated hereunder shall fail to regulate any matter, then said matter shall be subject to applicable legal regulations (according to 11.1), rather than any general terms and conditions of business of ordering parties.
1.4 The following terms and conditions in their then currently valid forms shall apply to all future supply of equipment and rendering of repair work and other types of services by FUJI, even though said terms and conditions shall not be retransmitted to ordering parties in each such case and no further reference shall be made to the same and also if FUJI performs deliveries in the knowledge that deviating or contradictory conditions exist.
1.5 These general terms and conditions of business only apply in relation to companies, legal entities under public law or statutory fund assets as defined by section 310 para. 1 of the German Civil Code (BGB).
2. Quotations and Purchase Orders
2.1 In cases where no binding periods shall be expressly stated in quotations submitted by FUJI, FUJI shall not be bound by said quotations, and said quotations shall become binding upon FUJI only upon FUJI's written acknowledgement of orders placed based upon same. Any samples or articles submitted for testing are for information and guidance only, and shall not bind FUJI in any way, they represent solely an invitation to bid, the acceptance of which shall be at FUJI’s discretion.
2.2 Any orders placed without quotations by FUJI shall, in accordance with 2.1, become binding only upon written acknowledgement by FUJI. This same provision shall apply in cases where ordering parties have altered quotations submitted by FUJI.
2.3 FUJI shall be entitled to effect partial deliveries at its discretion. They shall be remunerated as independent deliveries.
3.1 All statements and specifications appearing in catalogues, brochures, and data sheets, as well as in items of documentation submitted with quotations, are advisory only, and thus shall not be construed as binding upon FUJI, except in those cases where they shall be specifically identified as such. This applies especially with respect to the availability of items of equipment.
3.2 FUJI shall be entitled to alter the designs and constructions of items of equipment and to substitute alternative materials in the event certain raw materials shall be in short supply, except in cases where overriding interest of ordering parties known to FUJI shall have precedence.
3.3 FUJI shall retain all rights of ownership and all copyrights respecting any and all items of documentation supplied by FUJI. Said items of documentation shall not be employed for any purposes other than those specified by FUJI, shall not be duplicated or otherwise made available to third parties, and their transmittal shall not be construed as constituting authorization to copy components or items of equipment.
3.4 All items of documentation provided by FUJI shall be returned immediately upon receipt of a request to do so, and shall be returned without need for any such request being submitted in the event that no order shall be placed with FUJI.
4. Pricing, Packing, Insurance, Shipment
4.1 Applicable pricing and terms shall be those in effect on the date equipment is shipped or services are rendered, and shall be understood as exclusive of any value-added taxes or other levies on commercial transactions applicable at the time. All pricing stated is exclusive of all charges for assembly, installation and conduct of initial runs. FUJI’s prices do not include freight costs, customs duties, postage, insurance premiums or other ancillary costs. The prices also exclude any disposal costs for returned packaging. Unless expressly otherwise agreed in writing, the return delivery of packaging materials is excluded.
4.2 Any shipment instructions of ordering parties shall be binding upon FUJI only to the extent that FUJI has been advised of same and has acknowledged same in writing.
4.3 FUJI reserves the right of over-delivery or under-delivery of up to 10% of the ordered goods for production-related reasons. The ordering parties shall be obliged to accept this over-delivery or under-delivery. The actually supplied quantity taking into account the under-delivery or over-delivery shall be taken as a basis for calculation of the price.
4.4 FUJI reserves the right to adjust pricing stated in order acknowledgements in order to allow for altered manufacturing costs due to varying material costs, wages, or other factors beyond FUJI's control.
4.5 At the written request of the ordering parties, the goods shall be insured against transport damage and breakage at the expense of the ordering parties. In the case of delivery to overseas ports, a general transport insurance, but not insurance against the risk of breakage or damage due to war or reprisals, shall be concluded in accordance with CIF (Incoterms 2010). The insurance shall be concluded in the invoice currency and for the invoiced amount.
5. Payment Terms
5.1 Payments shall be due within thirty (30) days of invoice date, net, insofar as no alternative payment terms appear in FUJI's quotations or order acknowledgements. Partial shipments shall represent separately billable transactions, and shall entitle FUJI to invoice items shipped. In the event that payments shall be submitted in currencies other than Euro the receivable involved shall be regarded as having been paid in full only if the foreign currencies received, converted into Euro, and credited to one of FUJI's bank accounts, shall be equal to the agreed Euro-amounts.
5.2 Unless confirmed in writing by FUJI discount is not granted.
5.3 Bills of exchange are not accepted and cheques shall be accepted subject to collection only. Ordering parties shall assume any and all charges involved in the collection of same
5.4 Payments shall be remitted exclusively to a banking address designated by FUJI in writing and shall be remitted on or before their due dates with no discounts deducted and all charges prepaid by remitters. All fees, charges, and other costs incurred by FUJI as a consequence of special agreements to accept cheques in payment shall be at the expense of ordering parties. Payment due dates shall be reckoned either from invoice dates or from the dates on which ordering parties are notified that goods are ready for shipment. For payments of all kinds, their dates of receipt shall be those dates on which the full amounts of funds involved become available to FUJI.
5.5 Payments due to FUJI may be withheld by invoices or offset against counterclaims only if said counterclaims shall be undisputed, or shall represent valid, legally established, amounts due invoices.
5.6 In any case of delayed payment, the ordering parties shall be charged interest on arrears of 8 percentage points over the applicable base rate p.a. FUJI reserves the right to assert a claim for more extensive damages due to the delay.
5.7 FUJI reserves the right to claim damages and pursue other forms of legal regress in the event that invoices shall be in arrears in their payments.
5.8 FUJI shall be entitled to declare all amounts owing immediately due and payable, and/or to demand submission of collateral deposits, including such for goods that have not yet been delivered, to withhold all or part of any outstanding shipments due under the orders involved, or under any other orders placed by the ordering parties involved, to have unpaid shipments returned at the expense of ordering parties, or to withdraw from valid sales contracts in the event that invoices shall be in arrears in their payments, or that there shall be reasonable doubts regarding their abilities or intentions to pay amounts due.
6. Delivery Dates and Schedules
6.1 Negotiated delivery schedules for goods and services to be supplied by FUJI shall commence on the date of the most recent valid order acknowledgements by FUJI, insofar as all open business and technical matters essential to filling orders have been settled with ordering parties, all items of documentation to be supplied by ordering parties have been received by FUJI, any approvals or releases that may be required have been granted and any advance payments agreed upon have been credited to one of FUJI's bank accounts. Delivery schedules shall be regarded as having been met if the goods to be supplied have been transferred to the initial freight forwarder to be involved, or if ordering parties have been notified that goods are ready for shipment on or by the final dates of delivery schedules, provided that ordering parties have met all of their binding contractual obligations. Partial shipments shall be permissible within reasonable bounds. Ordering parties shall accept delivery of items exhibiting minor flaws, defects or shipping damage, in which case delivery schedules shall be regarded as having been met.
6.2 Delivery schedules shall be binding upon FUJI only once they have been expressly acknowledged in writing by FUJI.
6.3 FUJI shall, at its discretion, be entitled to place goods to be supplied in storage at the risk and cost of ordering parties, following the date on which ordering parties were notified that goods were ready for shipment, and to invoice ordering parties charges for said storage at a rate equal to one-half of one percent(0,5%) of the delivery value of the delayed goods for each complete week of delay, but of no more than 5% of the delivery value of the delayed goods in total, commencing with the date on which said goods were ready for shipment, said goods remain in storage, in the event that shipment of same shall be delayed at the request of, or due to the fault of, ordering parties, or if ordering parties shall fail to promptly pick up goods to be transported by them or under their direction. FUJI shall retain the right to demand from ordering parties payment of any excess storage charges that may apply upon submission of documentary evidence of same. FUJI shall further retain the right to, at its discretion, make alternative use of said stored goods upon expiration of a reasonable period, and to supply ordering parties with other goods in accordance with commensurately extended delivery schedule.
6.4 Late deliveries shall not entitle ordering parties to withdraw from sale contracts or to enter claims for damages, except in cases where same shall be due to deliberate actions or gross negligence on the part of FUJI.
Even in these cases ordering parties may only withdraw from sale contracts once a commensurately granted period of grace has expired.
6.5 FUJI shall not be liable for any conventional contractual penalties in the event of late deliveries.
6.6. If FUJI is not in a position to deliver ordered goods for reasons over which it has no control, due to failure on the part of its supplier to comply with its contractual obligations, FUJI shall be entitled to rescind the contract.
6.7 Insofar as late deliveries shall be due to matters or events beyond FUJI's control (force majeure), delivery schedules shall be commensurately extended but in no case by more than six (6) months. Furthermore, FUJI shall be entitled to postpone its performance under sales contracts for the duration of said delays or hindrances, but in no case for more than six (6) months or to withdraw from sales contracts in the event that said delays or hindrances shall persist, without incurring any liability for damages. Force majeure shall be construed as including, but shall not be limited to, interruptions of manufacturing operations, or of traffic to/from, FUJI or its suppliers, issuance of cease and desist orders by, or other measures instituted by, government agencies, civil commotion, strikes, lockouts, sabotage, essential workpieces being rejected or failing due to no fault of FUJI's, failure to receive, or late granting of, government-agency approvals, as well as any and all other types of unpredictable events. In such a case, FUJI shall inform the ordering parties without delay. Claims on the part of the ordering parties to damages are excluded in such cases, within the limits of Section 9 of these general terms and conditions of business.
6.8 Shall FUJI be in default of delivery, the ordering parties – provided they have incurred damages as a result – shall be entitled to claim a flat rate of compensation for delay of 0.5% of the delivery value of the delayed goods for each complete week of delay, but no more than 5% of the delivery value of the delayed goods in total. Any further-reaching claims for damages and reimbursement or outlay on the part of the ordering parties due to the delayed delivery are excluded in such cases within the limits of Section 9 of these general terms and conditions of business.
7. Liability, Transferral of Liability
7.1 All risks shall be transferred to ordering parties in accordance with the provision of Incoterms 2010 agreed upon by the parties. Otherwise, all risks shall be transferred to ordering parties as soon as ordered goods leave FUJI's warehouse. This same provision shall apply to partial shipments, and in the event that FUJI has assumed further obligations, such as payment of shipping charges, local delivery charges, or transfer charges.
7.2 When goods are ready for shipment, or if their shipment shall be delayed due to causes beyond FUJI's control, then all risks shall be transferred to ordering parties as soon as FUJI has submitted written or oral notification that goods are ready for shipment.
7.3 Goods delivered to ordering parties shall be accepted by same, even if defective, regardless of their rights under warranties.
8. Retention of Ownership
8.1 Goods delivered to ordering parties shall remain the property of FUJI until such time as their purchase prices, as well as all existing or forthcoming receivables arising from business relations of the parties, regardless of their nature or the reasons thereof have been paid in full. In addition, FUJI reserves the right to retain ownership of products of its own manufacture ("reserved-right goods") pending payment in full of all amounts currently due, overdue, or to fall due to FUJI at some time in the future under its business relation with ordering parties. In the event that ordering parties shall fail to meet their contractual obligations or shall fail to comply with contractual provisions, in particular, if they shall fail to submit payments when due, or shall fail to pay the full amounts due, then FUJI shall be entitled to demand return of, or take possession of, the goods involved, and ordering parties shall be obligated to surrender same to FUJI.
8.2 Ordering parties shall handle and safeguard all "reserved-right goods" with the due care of professional business people on behalf of FUJI. The ordering parties shall in particular take out insurance cover customary in trade and for the relevant items in question at its own expense commensurate with the type of risk involved, and to provide verification of any such concluded insurance policies on request. In the event that requested proof in insurance shall not be presented within a reasonable time span, FUJI shall be entitled to insure said items at the expense of their ordering parties. If maintenance and inspection work has to be performed, this shall be carried out by the ordering parties in a timely manner and at its own expense. As long as title has not been transferred, the ordering parties are required to provide FUJI with immediate written notification of any seizure or other third party intervention. Should the third party not be in a position to reimburse the court and extra-judicial costs of an action as outlined by Section 771 of the German Code of Civil Procedure (“ZPO”), the ordering parties shall be liable for any losses incurred by FUJI. The ordering parties are not entitled to encumber the purchased item with third party rights.
8.3 Ordering parties may resell "reserved-right goods" exclusively in the course of their normal business transactions, and exclusively under terms that entitle them to retain ownership of same.
8.4 Ordering parties herewith assign to FUJI in advance all receivables arising from their resale of "reserved-right goods", or to any other kind of future legal transactions affecting same that may arise in conjunction with properly conducted business transactions, as collateral for all of FUJI's claims against them arising from FUJI's current and future business relations with them. Ordering parties shall be entitled to collect said receivables, although said entitlement may be withdrawn by FUJI at any time.
8.5 In the event the value of collateral assigned to FUJI shall exceed the total amounts of receivables due to FUJI by more than ten percent (10 %) and/or to the extent the collateral assigned to FUJI is no longer needed, ordering parties shall be entitled to demand partial relinquishments of said collateral.
8.6 In the event that "reserved-right goods" are sold by ordering parties together with other goods, then ordering parties shall assign those portions of the resulting receivables represented by values of said "reserved-right goods" to FUJI, and FUJI shall accept such assignment. Assignments of said receivables shall be treated as inactive collateral as long as ordering parties continue to meet their contractual obligations. Ordering parties shall provide FUJI with statements of information required for collecting said assigned receivables upon request, and shall inform their debtors of said assignments.
8.7 Ordering parties may rework or process "reserved-right goods" on behalf of FUJI without incurring any obligations on their part. Insofar as the goods supplied are reworked using, joint to, or blended or mixed with, items that are not the property of FUJI (cf. §§ 947, ff., of the German Civil Code [Bürgerliches Gesetzbuch" BGB]), FUJI shall be entitled to co-ownership of those portions of final products defined by the ratios of the values of goods supplied by FUJI to the total values of all other goods employed prior to reworking, joining, blending, or mixing. In the event that ordering parties shall acquire sole ownership of "reserved-right goods" under applicable law, they herewith grant FUJI proportionate co-ownership of such worked/processed goods, and shall handle and safeguard same on behalf of FUJI. The provisions stated hereunder shall apply analogously to said co-ownerships.
8.8 Ordering parties shall not be entitled to pledge or otherwise encumber "reserved-right goods" in manners that would prejudice or jeopardize FUJI's rights with respect to same without prior authorization by FUJI. Ordering parties shall immediately notify FUJI of any efforts by third parties to take possession of, or acquire title to, "reserved-right goods" or to any of those receivables assigned to FUJI as collateral, and shall concurrently supply FUJI with all items of documentation required for filing a third-party motion to vacate (“Drittwiderspruchsklage”). All costs of any such suits shall be borne by the respective ordering parties involved.
8.9 In the event that retention of ownership shall be disallowed or void under the laws of the nation or state in which goods reside, submitting the requisite amount of collateral shall be regarded as agreed. In the event that justifying submission of this collateral shall require the collaboration of ordering parties, they shall immediately, and at their expense, undertake any and all such measures in said conjunction as shall be demanded by FUJI.
8.10 The ordering parties hereby grant FUJI the irrevocable right to enter its company premises for the purpose of taking away reserved goods, of carrying out all actions necessary for their transportation and of effecting their transportation.
9.1 The ordering parties shall inspect the goods without delay following their receipt and shall provide notification of any defects within 8 days of delivery at the latest, or of any hidden defects within 8 days of their discovery at the latest. Apart from that, Section 377 of the German Commercial Code (HGB) shall not be affected in the event of a reciprocal commercial transaction between business concerns. Obvious defects (i.e. in packing) and discrepancy in quantity have to be notified immediately upon receipt of goods.
Later reporting of defects shall void all rights to submit warranty claims. Excluded hereof are any defects that shall remain undetectable upon close examination of the goods supplied, which defects shall be reported immediately upon their discovery. Included in such reporting shall be the nature of the defects detected, and statements as to whether same were noticed immediately upon receipt of the goods, or only once they had been worked or processed. FUJI shall be entitled to have any defects reported inspected by its personnel.
9.2 Warranty period shall be one year from transfer of the purchased item, or, where delivery has not taken place due to reasons attributable to the ordering parties, from the date the item is ready for delivery, and warranty service shall be confined to repair (upgrading) or replacement, at FUJI's discretion of any items deemed defective. Toleration of repeated attempts to repair items shall be regarded as mutually agreed. On a different warranty period may be agreed upon by separate, individual and written contract.
9.3 FUJI shall bear those costs immediately related to said repairs or replacements, costs for replacement parts, shipping costs for delivering the goods from FUJI repair centre to the customer. All other costs shall be borne by ordering parties.
9.4 Ordering parties shall, in concurrence with FUJI, issue the necessary approvals and make available the amounts of time required for completing all repairs and replacements that FUJI shall, at its discretion, deem necessary; otherwise FUJI shall be relieved of its warranty obligations.
9.5 Warranties shall be voided where defects or failures shall be due to abuse, especially operation beyond the specified margins, improper installation, improper operation or failure to comply with all applicable regulations. Rights to claim warranty shall also be voided if ordering parties have modified or repaired items supplied without prior authorization by FUJI. Exempted hereof are urgent cases where such may be necessary on safety grounds, or in order to prevent disproportionately serious damage to equipment, where FUJI shall be immediately notified in all such instances, or cases where FUJI shall be in arrears in eliminating defects or failures, in which cases ordering parties shall be entitled to eliminate defects or failures themselves, or to have same eliminated by third parties, and to demand that FUJI reimburse them for the costs or charges involved.
9.6 Ordering parties shall be entitled to avail themselves of their legal rights in the event that all efforts to eliminate defects or failures shall fail.
9.7 Notwithstanding below Section 9.9, rights to submit warranty claims in respect to any replacement parts supplied or repairs performed shall expire three months from the date of supply or completion, or upon expiration of the statute of limitations applying to the goods supplied, if said expiration shall occur later.
9.8 Ordering parties shall not be entitled to submit claims for damages, except in cases where FUJI acted at least negligently in infringing material contractual obligations or having acted at least negligently in infringing contractual obligations, thus causing injury to life, body or health or in cases of deliberate actions or gross negligence on the part of FUJI shall be involved. Claims shall be confined to real damages. Claims for lost profits or consequential damages are thus explicitly precluded insofar as no deliberate actions or gross negligence on the part of FUJI shall be involved, and not mandatory rights to enter such claims accrue to applicable law, in particular product-liability laws.
9.9 The performance of a repair or replacement delivery under the terms of the warranty shall not initiate a renewed start of the warranty period in case of accommodation (“Kulanz”). In case of a recommencement of the limitation period pursuant to section 212 para. 1 no. 1 Civil Code (“BGB”), it shall be limited to those defect(s) which is/are subject to the warranty-claim or caused by a deficient carrying out of the warranty, while apart from that the initial warranty period continues to apply.
9.10 In the event that ordering parties shall withhold payments due to defective goods, notwithstanding the provisions of Section 5.5, they shall be obligated to deposit the full amount of any withheld payments in escrow in accordance with applicable legal regulations.
10. Cancellation Penalties
In the event that sales contracts shall remain unfulfilled due to failure of ordering parties to meet their contractual obligations or to comply with the contractual provisions, ordering parties shall be obligated to pay FUJI penalties equalling those costs incurred by FUJI in conjunction with those sales contracts involved up to that point, but in no case less than ten percent (10 %) of the net total amounts of goods ordered under said sales contracts. In the event that FUJI shall have valid grounds for withdrawing from sales contracts concluded, the ordering parties involved shall be obligated to reimburse FUJI for costs incurred in conjunction with same up to that point.
11. Applicable Law, Legal Jurisdiction, Point of Fulfilment
11.1 All legal relations between the parties shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
11.2 Unified UN purchasing regulations (CISG) shall not apply to said relations. The Incoterms 2010 shall apply in addition. Neither international nor German laws governing disputes shall apply to any agreement involving foreign contractual partners.
11.3 Point of fulfilment for all supply of goods by FUJI, submission of all payments to FUJI, and fulfilment of all obligations of ordering parties shall be Offenbach am Main.
11.4 All disputes arising in conjunction with contractual relationships and performance under contractual agreements, inclusive of any law suits involving cheques submitted in payment, shall be filed with the court responsible for FUJI's headquarters operations, or with the courts responsible for those of FUJI's branch offices that supplied the goods involved insofar as ordering parties shall be regarded as "professional business people" ("Kaufleute"), public-law corporations or similar legal entities, or as public institutions under applicable German law. However, FUJI shall retain the right to file suit at ordering parties' seats of business.
12. Supplementary Terms and Conditions
12.1 The above terms and conditions of business, along with any further agreements reached, shall be regarded as constituting the complete and entire agreements between the parties, and shall replace any prior oral or written agreements that may have existed between same.
12.2 The above terms and conditions shall also apply to all of FUJI's employees.
12.3 In the event that any provision or provisions hereof shall prove invalid or contrary to law, all other provisions hereof shall remain unaffected thereby. In such case, the parties shall be obliged to replace any such invalid or impracticable provisions with valid, practicable, provisions that most closely approximate the business interests covered by said invalid or impracticable provisions.
12.4 Both parties shall be obligated to treat as strictly confidential any and all business and company secrets of the other party that may become known to them in the course of their performances under sales contracts concluded between the parties and shall not disclose any such to third parties. The parties shall transfer these obligations to any third parties they may engage in the course of their performances under sales contracts involving the parties.
12.5 Any alterations or additions to the above terms and conditions, or any further agreements concluded between the parties at the time contracts are concluded, shall be in writing. This same provision shall apply to any departures from demand that all agreements between the parties shall be in writing. The same shall apply to the present provision.
In compliance with the German Federal Data-Protection Act, all parties involved are herewith notified that FUJI has acquired, and/or will acquire, and retains, or will retain, on file or otherwise stored, data relating to ordering parties, and that all such data shall be treated in accordance with the German Federal Data-Protection Act.
Fuji Electric Europe GmbH
Offenbach, 1st September, 2013