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Livraisons et retours

1- Validity

  • All deliveries, services and offers of Formech Europe GmbH (hereinafter referred to as "Seller") shall be made exclusively on the basis of these General Terms and Conditions of Delivery. They shall form an integral part of all contracts concluded by the Sellerwith its contractual partners (hereinafter also referred to as the "Customer") for the deliveries or services offered by the Seller.They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
  • Terms and conditions of the client or third parties shall not apply, even if the seller does not separately object to their validityin individual cases. Even if the Seller refers to a letter that contains or refers to the Client's or a third party's terms and conditions,this shall not constitute an agreement to the validity of those terms and conditions.

2- Offer and conclusion of contract

  • All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within (14) days of receipt.
  • For standard machines, the client has the possibility to cancel the order within (14) days without giving reasons. In the case of machines specially manufactured for the client, a period of (14) days shall also apply for cancellation without giving reasons. However, in such a case the client is still obliged to pay 25% of the invoice amount.
  • The legal relationship between the seller and the client shall be governed solely by the written purchase contract, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral promises made by the seller prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties are replaced by the written contract, unless expressly agreed otherwise between the contracting parties in each case.
  • Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of managing directors or authorised signatories, the Seller's employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e- mail, shall be sufficient to comply with the written form requirement.
  • Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
  • The seller retains ownership or copyright of all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. The Principal may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or throughthird parties or reproduce them without the express consent of the Seller. At the Seller's request, he shall return these items in fullto the Seller and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.

3- Prices and Payment

  • The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall becharged separately. The prices are quoted in EUR ex works plus packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges.
  • Insofar as the agreed prices are based on the Seller's list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
  • Invoice amounts are due upon receipt of the order without any deduction, unless otherwise agreed in writing (e.g. terms of payment on the invoices). The date of receipt by the seller is decisive for the date of payment. Payment shall be made by bank transfer or online by credit or debit card. Payment by cheque is excluded unless it is agreed separately in individual cases. If thecustomer fails to make payment within 7 days of the due date, the order shall be deemed to be cancelled and the seller shall have the option of offering it to another buyer in the case of standard machines. If the order is already packed and ready for dispatch, the outstanding amounts shall be subject to interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
  • Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as thecounterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
  • The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantiallyreduce the creditworthiness of the Client and as a result of which the payment of the Seller's outstanding claims by the Client underthe respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardised.

4- Delivery and delivery time

  • Deliveries shall be made ex works.
  • The Seller's quotations shall indicate an approximate lead time for the machine and/or options. Within three working days of receipt of the Customer's order, the Seller shall confirm the estimated date on which the order will be ready for dispatch.
  • Deadlines and dates for deliveries and services promised by the seller are always only approximate, unless a fixed deadline ordate has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.
  • The Seller may - without prejudice to its rights arising from default on the part of the Client - demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Seller.
  • The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeureor other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties inobtaining the necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect delivery or latedelivery by suppliers despite a congruent hedging transaction concluded by the Seller) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to deliver or perform and the hindrance is notonly of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the periodof the hindrance plus a reasonable start-up period. Insofar as the Client cannot reasonably be expected to accept the delivery orservice as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the Seller.
  • The Seller shall only be entitled to make partial deliveries if
    • the partial delivery is usable for the Client within the scope of the contractual intended purpose,
    • the delivery of the remaining ordered goods is ensured and
    • the Client does not incur any significant additional expense or costs as a result (unless the Seller agrees to bear these costs).
  • If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller's liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.

5- Place of performance, dispatch, packaging, transfer of risk, acceptance

  • The place of performance for all obligations arising from the contractual relationship shall be the Seller's place of business, unless otherwise stipulated. If the Seller is also responsible for the installation, the place of performance shall be the place where the installation is to take place.
  • The method of dispatch and the packaging are subject to the dutiful discretion of the seller.
  • If shipment of the goods has been agreed and the seller has not assumed transport or installation, the risk shall pass to the clientat the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. If the dispatch or the handover is delayed due to acircumstance the cause of which lies with the Client, the risk shall pass to the Client from the day on which the delivery item is ready for dispatch and the Seller has notified the Client of this.
  • Storage costs after the transfer of risk shall be borne by the Client. In the event of storage by the Seller, the storage costs shall amount to (0.25) % of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
  • The consignment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurablerisks at the express request of the Client and at the Client's expense.
  • Insofar as acceptance has to take place, the object of sale shall be deemed to have been accepted if
    • the delivery and, if the seller also owes the installation, the installation has been completed,
    • the Seller has notified the Principal thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the Principal to accept the goods,
    • twelve working days have elapsed since delivery or installation or the customer has started using the object of purchase (e.g. has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation and
    • the Client has failed to take delivery within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impairs it.

6- Warranty, material defects

  • The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not applyto claims for damages by the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
  • The delivered items shall be carefully inspected immediately after delivery to the Purchaser or to the third party designated by the Purchaser. With regard to obvious defects or other defects that would have been recognisable in the course of an immediate,careful inspection, they shall be deemed to have been approved by the buyer if the seller does not receive a written notice of defects within (seven) working days after delivery. With regard to other defects, the delivery items shall be deemed to have beenapproved by the Buyer if the notice of defect is not received by the Seller within (seven) working days after the time at which thedefect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. At the Seller's request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
  • In the event of material defects in the delivered items, the seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility,unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
  • If a defect is due to the fault of the seller, the client may claim damages under the conditions set out in § 8.
  • In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legaldispute, the statute of limitations of the relevant warranty claims of the Client against the Seller shall be suspended.
  • The warranty shall not apply if the Client modifies the delivery item or has it modified by a third party without the Seller's consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the Client shallbear the additional costs of remedying the defect resulting from the modification.
  • Any delivery of used items agreed with the Client in individual cases shall be made to the exclusion of any warranty for material defects.

Property rights

  • The Seller warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights ofthird parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for the infringement of such rights.
  • In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at itsdiscretion and at its expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Client by concluding a licence agreement with the third party. If the Seller does not succeed in doing so within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by theClient shall be subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
  • In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Client or assign them to theClient. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the judicial enforcement of theaforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.

Liability for damages due to fault

  • The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
  • The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that it is free from defects of title and material defects that impair its functionality or usability to a more than insignificant extent, as well as obligations to provide advice, protection andcare that are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client's personnel or to protect the client's property from significant damage.
  • Insofar as the Seller is liable on the merits for damages in accordance with § 8 (2), this liability shall be limited to damageswhich the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used asintended. The above provisions of this Paragraph 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of the Seller's executive bodies or senior employees.
  • In the event of liability for simple negligence, the Seller's obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of 5,000,000.00 EUR per case of damage, even if it is a breach of essential contractual obligations.
  • The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.
  • Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
  • The limitations of this § 8 do not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

Retention of title

  • The retention of title agreed below serves to secure all respectively existing current and future claims of the Seller against the Buyer arising from the delivery relationship existing between the contracting parties via Click here to enter text (including balance claims arising from a current account relationship limited to this delivery relationship).
  • The goods delivered by the seller to the buyer remain the property of the seller until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions are hereinafter referred to as "goods subject to retention of title".
  • The buyer shall store the reserved goods free of charge for the seller.
  • The buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (para. 9). Pledges and transfers by way of security are not permitted.
  • If the reserved goods are processed by the buyer, it is agreed that the processing shall be carried out in the name and for the account of the seller as manufacturer and that the seller shall acquire direct ownership or - if the processing is carried out frommaterials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Buyer hereby assigns its future ownership or - in the above ratio - co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item,so that the seller or the buyer acquires sole ownership, the party to whom the main item belongs shall transfer to the other party prorata co-ownership of the uniform item in the ratio specified in p. 1.
  • In the event of resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller by way of security the resulting claim against the purchaser - in the event of co-ownership of the Seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The seller revocably authorises the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this collection authorisation in the event of realisation.
  • If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Buyer shall immediately notify them of the Seller's ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in thisconnection, the Buyer shall be liable to the Seller for these.
  • The seller shall release the goods subject to retention of title and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released thereafter shall lie with the seller.
  • If the Seller withdraws from the contract in the event of a breach of contract by the Buyer - in particular default of payment -(realisation event), the Seller shall be entitled to demand the return of the reserved goods.

Final provisions

  • If the Client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationshipbetween the Seller and the Client shall be the registered office of the Client. Mandatory statutory provisions on exclusive places ofjurisdiction shall remain unaffected by this provision.
  • The relations between the Seller and the Client shall be governed exclusively by the laws of the Federal Republic of Germany.The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
  • Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
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