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General Terms and Conditions (complete version) as at 20/05/2024
of the company Fibertek GmbH, Diezmannstraße 22, D-04207 Leipzig
Managing Director: Sebastian Zehrfeld
HRB: 27335, Register court: Leipzig
§1 General
The following terms and conditions apply to all our deliveries, services and offers. They shall also apply to all future business relationships even if they have not been expressly agreed again. By placing an order, our business partner recognises these terms and conditions. Any deviating terms and conditions of the business partner shall only become part of the contract if we expressly confirm this in writing. Silence or fulfilment of the contractual performance on our part shall not be deemed as consent to deviating terms and conditions of the business partner.
§2 Offers, subject matter of the contract, right of cancellation
1. our offers, verbal or written, are always subject to change and non-binding. Orders shall only become legally binding for us if we have confirmed them within a reasonable period of time or have executed them as agreed with the consent of our business partner, whereby the tacit consent of the other party shall suffice.
2. our written order confirmation is decisive for the type and scope of the deliveries or services.
3 We reserve the right to make customary deviations with regard to the services specified in brochures, illustrations, drawings, websites and other descriptions, in particular with regard to dimensions, colours, designs and shapes as well as other deviations which do not restrict the use for the contractual purpose, without the business partner being able to derive any claims from this.
4 Illustrations, drawings, dimensions and weights as well as other technical data or information merely characterise the subject matter of the contract and do not constitute a guarantee of characteristics.
5 Right of cancellation for consumers in the case of distance selling contracts:
If our delivery/service takes place as a distance selling transaction and the business partner is a consumer, he is entitled to a right of cancellation as follows.
a) Definitions: A distance selling transaction exists if the contract for our delivery/service was concluded using exclusively means of distance communication (e.g. fax, e-mail, telephone).
A consumer is any natural person who concludes a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity.
b) Cancellation policy: The business partner can cancel his contractual declaration within 14 days without giving reasons in text form (e.g. letter, fax, e-mail) or - if the goods are handed over to him before the deadline expires - also by returning the goods. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the recipient (in the case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also not before fulfilment of our information obligations pursuant to Art. 246 § 2 in conjunction with § 1 para. 1 and 2 EGBGB and our obligations pursuant to § 312g para. 1 sentence 1 BGB in conjunction with Art. 246 § 3 EGBGB. Timely dispatch of the cancellation or the goods is sufficient to comply with the cancellation period. The standard shipping costs for the delivery of the goods to the customer will be reimbursed in the event of cancellation of the contract; the buyer must bear the return shipping costs. As a rule, the return costs are the same amount and scope as the standard shipping costs.
The cancellation is to be addressed to:
Fibertek GmbH
Diezmannstraße 22
D-04207 Leipzig
E-mail: info@4x4fibertek.de
Consequences of cancellation: In the event of an effective cancellation, the services received by both parties must be returned and any loss of value incurred must be surrendered in accordance with Section 357 (7) BGB new version. If the business partner is unable to return the goods or services received or can only return them in part or in a deteriorated condition, he must compensate us for the loss in value. He must only pay compensation for the deterioration of the item and for any use made of it if the use or deterioration is due to handling of the item that goes beyond checking its properties and functionality. Testing the properties and functionality’ means testing and trying out the respective goods, as is possible and customary in a retail shop, for example. The business partner must bear the regular costs of returning the goods. Obligations to refund payments must be fulfilled within 14 days. The period begins for the business partner with the dispatch of his declaration of cancellation or the goods, for us with their receipt or proof of dispatch.
End of the cancellation policy.
§3 Prices
1. the prices are for delivery ex works or warehouse excluding freight, packaging, insurance and assembly at the place of delivery.
Including statutory value added tax.
2 If the labour and material costs or the prices of our suppliers increase after conclusion of the contract, we shall be entitled to increase the agreed price accordingly. This shall only apply to non-merchants from the 5th month after conclusion of the contract.
§4 Delivery, transfer of risk
1. delivery shall be made at our discretion ex works or ex warehouse for the account of the business partner. The dispatch route and means of transport shall be determined by us, unless otherwise agreed. We shall charge an additional insurance fee for insuring the delivery.
2. the transfer of risk to the business partner takes place when we hand over the goods or when they are loaded onto a vehicle belonging to the business partner. If goods are damaged before the transfer of risk, the regulation and the claim for damages shall pass to us and the business partner shall receive a replacement delivery from us within a reasonable period of time.
Damage or consequential damage resulting from assembly errors or improper use shall be excluded from the warranty.
3 We are entitled to make partial deliveries and partial services and, with appropriate prior notice, to make early deliveries. If the business partner fails to fulfil his obligation to co-operate (e.g. due to late call-off, inadequate specification, incomplete specification of the shipping address) or fails to accept even a partial delivery, we shall be entitled to deliver the goods in full or in part. If the business partner is in default with the acceptance of even a partial delivery, we shall be entitled, after the expiry of a grace period of 2 weeks set by us, to take the necessary measures ourselves - as far as possible - and to store or dispatch the goods at the expense and risk of the business partner or to withdraw from the entire contract or parts thereof or to claim damages for non-performance with regard to the entire contract or parts thereof; a threat of refusal is not required. If the business partner is a merchant, our rights to deposit and self-help sale remain unaffected.
§5 Delivery time
1. if the agreed delivery date is exceeded by more than 4 weeks, the business partner shall be entitled to set us a reasonable period of grace. If delivery is not made by the expiry of the grace period, the business partner shall be entitled to withdraw from the contract by written declaration to the exclusion of other rights. If only part of the delivery is affected, his right of cancellation shall be limited to this, unless the delivery made would no longer be of interest to the business partner.
2. if there is a delay in delivery or performance due to force majeure or due to events that make delivery significantly more difficult or impossible for us, such as subsequent difficulties in procuring materials, operational disruptions, strikes, lockouts, personnel shortages, lack of means of transport, official orders, etc., even if they occur at our suppliers or subcontractors, we shall be entitled to withdraw from the contract. Even if they occur at our suppliers or subcontractors, we are entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled
3. if the hindrance lasts more than 3 months, the business partner shall be entitled, after setting a reasonable deadline, to withdraw from the contract with regard to the part not yet fulfilled and to demand repayment of any advance payment made, to the exclusion of any further rights. In the case of partial delivery, the business partner may only withdraw from the entire contract if the partial fulfilment of the contract would be of no interest to him
§6 Terms of payment
1. unless otherwise agreed, payments shall be made concurrently with delivery, strictly net. Cheques shall not be regarded as payment in lieu of payment. We accept cheques and securities subject to the reservation of all rights and without guarantee of timely presentation. Discount and ancillary charges shall be borne by the business partner.
2 We shall be entitled, notwithstanding any provision to the contrary by the business partner, to offset payments first against the business partner's older debts, namely first against costs, interest and finally against the principal claim.
3.the business partner may only offset our claims or assert a right of retention if the counterclaim of the business partner has been recognised by us in writing or a legally binding title exists.
4 If payment deadlines are exceeded, interest on arrears of 2% above the respective discount rate of Deutsche Bank Frankfurt shall be charged, without prejudice to further rights. Invoiced interest is due immediately.
5 Payments in foreign currencies shall be converted into euros at the current exchange rate on the day of booking.
§7 Retention of title
1. we reserve title to all goods delivered by us until fulfilment of all claims to which we are entitled from the business relationship with the business partner.
2. the goods to which we are entitled to ownership are hereinafter referred to as reserved goods. The business partner shall store the reserved goods free of charge. He undertakes to install or store the reserved goods separately and to inform us of the installation location on request.
3 The business partner may sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The business partner hereby assigns to us by way of security any claims arising from the resale or any other legal grounds. We revocably authorise the business partner to collect the claims assigned to him for his invoices in his own name. At our request, the business partner shall disclose the assignment and provide us with the necessary information and documents.
4 In the event of third party access to the reserved goods, the business partner shall draw attention to our ownership and inform us immediately. Costs and damages shall be borne by the business partner.
5.in the event of behaviour by the business partner in breach of contract, in particular default of payment, we shall be entitled to take back the reserved goods at the expense of the business partner or, if necessary, to demand assignment of the business partner's claim for surrender against third parties. If we take back or seize the goods subject to retention of title, this shall not constitute a cancellation of the contract, unless the German Instalment Purchase Act applies.
§8 Warranty
1 Warranty claims by contractual partners who are not consumers shall only be recognised if they are asserted to us in writing immediately after discovery of a defect - in the case of obvious defects at the latest on the 8th day after delivery. For merchants, § 377 HGB applies independently of this.
2. there shall be no warranty obligation if the warranty has been impeded by rectification work carried out by the business partner or a third party. If the commissioning or assembly has not been carried out by us or by personnel trained by us, this also includes consequential damage due to improper assembly, or defects which are attributable to incorrect or negligent handling or to natural wear and tear, or if repairs and rectification of defects are carried out by the business partner or by third parties appointed by him, or if the business partner is in arrears with amounts which are not economically justifiable in relation to a defect. The following applies to contractual partners who are not consumers: Used goods are excluded from any warranty.
3. towards contractual partners who are not consumers, the elimination or rectification of a proven defect for which we are responsible shall be at our discretion. If we are unable to remedy the defect, the business partner shall be entitled to withdraw from the contract or reduce the purchase price. The reduction shall be based on the current value. In the event of cancellation, in addition to the delivered items, the benefits derived shall also be returned against reimbursement of the purchase price.
4 We provide a guarantee of 24 months after delivery to the business partner for new parts and accessories. GRP parts are covered by a lifetime guarantee. Excluded are all wearing parts (rubber linings and other sealing parts, closures as well as lighting as a gesture of goodwill); these are covered by a twelve-month warranty. Oil pressure dampers are covered by a twenty-four month warranty on function and operation; visual defects are not included. Defects in the paintwork will either be rectified by a company commissioned by us after inspection by us, or we will give the business partner written authorisation to rectify the defect, whereby the maximum credit amount for partial and complete paintwork is set at EUR 240.00 net for top-up covers and EUR 375.00 net for hardtops.
These warranties do not apply to damage and defects resulting from careless and improper storage, transport or operation of the goods or the relevant part of the goods. Warranty services do not extend the warranty period, nor do they start a new warranty period. The warranty period for installed spare parts ends when the warranty period for the complete product expires. Repairs at the place of delivery cannot be demanded. The warranty covers the component, not the transport route to or from the nearest service centre.
§9 Provision of security
1. if, after conclusion of the contract, we become aware of circumstances which significantly reduce the creditworthiness of the business partner, if there are justified doubts about the solvency of the business partner or if the business partner does not comply with the terms of payment, all claims to which we are entitled against the business partner shall become due immediately, including any bills of exchange with later due dates; in these cases we may also demand the provision of security or withdraw from the contract. We undertake, at our discretion, to release securities given to us insofar as they exceed the value of our respective total claims by 25%.
2.as long as we are entitled to a contractual right of ownership, we can also claim the provision of the products, including collection from the buyer, in the event of a justified request for the return of the delivered goods. The business partner undertakes to provide us with all security measures upon request (return of the complete goods). The business partner shall provide us with a complete list of the whereabouts of the goods and agrees that we may assign all rights transferred to us, in particular the right of collection, to third parties.
(3) In the event of a justified demand for the return of the delivered goods or the realisation of securities granted, the business partner agrees that we shall take possession of the items or securities at his expense without a judgement or order of a court or recourse to a court or recourse to a bailiff, without this constituting a withdrawal from the contract.
4 Notwithstanding the business partner's obligation to pay, we shall be entitled to realise the goods subject to retention of title and other securities taken into our possession by private sale at the expense and risk of the business partner. The proceeds after deduction of the costs shall be credited to the business partner's remaining debt. Any excess proceeds shall be paid to him.
§10 Compensation for damages
Our liability is limited to intent and gross negligence. In the case of merchants, liability for gross negligence is limited to the damage that is usually and typically foreseeable in such cases. A claim for damages does not exist for indirect and consequential damages, as well as in cases in which the business partner can withdraw from or reduce the contract. The limitation of liability in sentence 1 shall not apply to consumers in the event of injury to life, limb or health.
§11 Assignment of claims and rights of the business partner arising
from this contract to third parties is only permitted with our express written consent.
§12 Place of fulfilment, applicable law, place of jurisdiction
1. the place of payment and fulfilment of Fibertek GmbH is the district court in Leipzig; German commercial law shall apply.
2. the respective German or international national law shall apply to export deliveries of Fibertek GmbH.
3. if our business partner is a registered trader within the meaning of the German Commercial Code, the regional court in Leipzig is agreed as the exclusive place of jurisdiction, irrespective of the amount in dispute. This shall also apply to claims arising from cheques and bills of exchange payable at other locations, as well as in the event that the claiming party moves its domicile or usual place of residence outside the area of application of German law after conclusion of the contract or its domicile or usual place of residence is not known at the time the action is brought. We are also entitled to sue the business partner at any other legal place of jurisdiction.
§13 Maintenance of contract
Should one or more clauses in these terms and conditions or the additional terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. Instead, to the extent permitted by law, a provision that comes as close as possible to the economic purpose of the invalid provision shall be deemed to have been agreed.
§14 Information on online dispute resolution: In the first quarter of 2016, the EU Commission will launch an internet platform for the online
resolution of disputes (‘ODR platform’) in the first quarter of 2016. The ODR platform is intended to serve as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts.
The ODR platform can be accessed via the following link: http://ec.europa.eu/consumers/odr
§15 Invalidity of previous conditions
These terms and conditions invalidate all our previous terms and conditions.