General Sales Terms and Delivery Conditions (Version: August 2011)

§ 1
General information

1.1 We only sell on the basis of our General Sales Terms. Purchasers' conditions that are in conflict with or which deviate from our sales terms do not become part of the contract, even if we do not oppose explicitly.
1.2 Our sales terms are also valid if we perform the delivery to the purchaser without reservation in the knowledge that the purchaser has sales terms that are in conflict with or deviate from our sales terms. These General Sales Terms are also valid for all future contractual relations with the purchaser. If individual parts of these General Sales Terms should be ineffective then this will not impair the effectivity of the remaining stipulations.
1.3 Our sales terms are only valid with respect to companies as defined by Section 310 Sub-section 1 BGB (German Civil Code). Mistakes in writing, arithmetic and similar obvious errors may be corrected by us at any time after they have been discovered without our having to be held liable for damage arising from these mistakes. A lack of our response to declarations by our purchaser is not to be evaluated as agreement.

§ 2
Ordering and tender documents

2.1. Orders submitted only count as having been accepted by us if they are accepted in writing by us or by one of our representatives within 14 days of being submitted.
2.2 The amount, quality and description as well as any specification of the goods correspond to what is on our tender (if it is accepted by the purchaser) or the order (if this is accepted by us). All sales terms, sales documents, specifications and price-lists are to be treated in strict confidence and may not be made accessible to third parties. We retain ownership rights and copyright over illustrations, drawings, calculations and other documents; they may not be made accessible to third parties (see also Section 10 of this agreement on the obligation to non-disclosure).
2.3 With respect to the accuracy of the order the purchaser has the responsibility and the purchaser is responsible for seeing that any necessary information with regard to the ordered goods is sent to us within a reasonable time, so that the order can be carried out in accordance with the contract.
2.4 If the goods have to be manufactured by us or converted or processed in any other way and the purchaser has presented the specifications for this, the purchaser has to exempt us from any loss, damage, costs or other expenses which we have to pay or are willing to pay, that are caused by the fact, that the contractual conversion or processing of the goods has turned out to be the breach of a patent, of a copyright, of a brand or any other industrial property rights of a third party.
2.5 We reserve the right to alter the description of the goods with respect to the specification in order to take account of legal requirements and to the extent that no deterioration of the order with regard to quality and serviceability occurs through this alteration.

§ 3
Prices and payment terms

3.1 The purchase price is the price we have named or, where this has not happened in an individual case, the price that is listed in our current price lists.
3.2 Insofar as the order acknowledgement does not specify otherwise, from the net-value of the goods of 200 € onwards our prices are „FCA (Incoterms 2010) at German frontier “, inclusive of packaging. Insofar as we are willing to deliver the goods to other places, the purchaser has to bear the further costs for the transport, packaging and insurance as well as the respective duties for transit and/or import. The risk in respect of the goods sold hereunder shall, however, pass to the purchaser at the moment when the goods are crossing the German frontier. Value Added Tax is not included in our prices; it is shown separately in the invoice at the legally fixed level valid on the day the invoice is drawn up.
3.3 Payments are to be made „net cash“. The deduction of discount, bonuses and/or contributions to advertising costs needs a special previous written agreement.
3.4 Insofar as the order acknowledgement does not require something different, the purchase price is to be paid net (without deductions) within 8 days from the invoice date. If the purchaser is in default then we are legally entitled to demand interest on the arrears.
3.5 The purchaser is – without any contractual restriction according to his legal rights - entitled to set-off rights, which result from this contract in case of a fall-out in performance of the goods or defects of the goods and which aim to payment each. The purchaser may set-off other than the forenamed counterclaims only, if his counterclaims are unappealably established in law by the competent court, if his counterclaims are not disputed and/or if they are accepted by us.
3.6 The purchaser is also entitled to exercise his right of retention to the extent that his counterclaim is based on the same contractual relationship as our claim to payment.

§ 4
Delivery time

4.1 Our obligation to carry out the delivery depends on the purchaser's timely and proper fulfillment of his obligations and the timely delivery to us.
4.2 Our legal liability for default is limited to the foreseeable damage in the case of a slightly
negligent breach of duty on our part, unless it has been previously agreed between us and the purchaser that time is of the essence.
4.3 If the purchaser is in default of acceptance or he breaches other cooperative obligations, then we are entitled to demand the damages arising to us, including any additional expenditure. In this case the risk of an accidental spoiling or accidental deterioration of the goods is also transferred to the purchaser at the moment when he is in default of acceptance.

§ 5
Transfer of risk and transport risk

5.1 Insofar as the order acknowledgement does not state otherwise, from the net-value of the goods of 200 € the delivery has to be made under the conditions of „FCA (Incoterms 2010) at German frontier “. If the net-value of the goods is lower than 200 €, then the delivery has to be made under the conditions of “EXW (Incoterms 2010)” at our place of business.
5.2 Insofar as the purchaser demands it we will cover the delivery with transport insurance; the purchaser shall bear the costs arising from this.

§ 6
Provision for retention of title

6.1. Irrespective of the delivery and the transfer of risk or of other stipulations we reserve the right to keep the title to the goods until all payments due from the delivery contract have been received.
6.2 If the purchaser behaves in a way contrary to the contract, in particular with regard to payment arrears, we are entitled to take back the goods. By taking back the goods we would not be withdrawing from the contract unless we had explicitly declared this in writing before. If the goods are attached by us this will always mean a withdrawal from the contract. After redeeming the goods we are entitled to dispose of them and the money yielded is to be calculated against the obligations of the purchaser – with deduction of appropriate disposal costs.
6.3 In the case of attachments or other interventions by third parties, the purchaser has to inform us immediately so that we can take action in accordance with Section 771 of the ZPO (German Code of Civil Procedure). Insofar as the purchaser does not carry out this duty he is liable for the damage arising.
6.4 The purchaser is entitled to sell the goods on in a regular business transaction; he assigns to us however from this point on all claims at the level of the invoiced final amount agreed with us (including value-added tax) which accrue to him from the further processing against his customers or third parties, and independent of whether the goods have been sold on with or without processing. The purchaser remains empowered to collect the claim even after the assignment of the claim. Our authority to collect the claim ourselves remains unaffected by this. We agree, however, not to collect the claim so long as the purchaser keeps up with his payment obligations from the revenue collected, does not fall into arrears and in particular no application for the opening of bankruptcy or insolvency proceedings is made and there is no suspension of payments. If this is the case, however, we can demand that the purchaser informs us of the claims assigned and their debtors, gives us all the details required for collection, gives us the relevant documents and informs the debtor (third party) of the assignment of claims.
6.5 The processing of the goods by the purchaser is always carried out for us. The expectant right (German: “Anwartschaftsrecht”) of the purchaser to the goods continues with the processed goods. If the goods are processed with other food that does not belong to us or other goods then we acquire a share of the new goods in the proportion of the objective value of our goods to the other processed goods at the time of the processing. The same conditions are valid for the goods created by processing as for the goods supplied under reserve. The purchaser thus keeps the goods under sole or joint ownership so arising for us in his custody.
6.6 If the goods are inextricably mixed with other goods not belonging to us then we acquire a share in the new goods in proportion to the objective value of our goods at the time of mixing. If the mixing is carried out in such a way that the goods are to be seen as the main item then it is agreed that the purchaser transfers to us a proportion of the ownership rights accordingly. The purchaser thus keeps the sole or joint ownership so arising for us in his custody.
6.7 We undertake to release our forenamed securities at the request of the purchaser insofar as the realisable value of our securities is more than 10 % higher than the claims to be secured or is more than 50 % higher than the face value; the choice of which securities should be released lies with us.

§ 7
Warranty for defects

7.1 The warranty rights of the purchaser imply that he has carried out in a proper way his duties to examine the goods and has notified us of any defects in accordance with Section 377 of the HGB (German Commercial Code).
7.2 To the extent that there is a defect in the goods for which we are responsible we are entitled according to our choice to correct this by either removing the defect or by a replacement delivery. If we remove the defect we are obliged to bear the necessary expenses which arise for the purpose of removing the defect, particularly transport, handling, work and material costs, to the extent that they are not increased because the goods have been taken to a different place from the place of execution.
7.3 Insofar as the correction fails, the purchaser is entitled to choose whether to declare his withdrawal or to demand a corresponding lowering of the purchase price (reduction).
7.4 Insofar as the following (Section 8) does not state otherwise, further claims of the purchaser – for whatever legal reasons – are excluded.
7.5 The warranty period ends with the best-before date of the goods or at the latest (when there is no best- before date) after 12 months.

§ 8
Joint liability

8.1 We are liable without limitation for damages
- arising out of any injury of life, body and/or health, if the injury is caused by a wilful or negligent infringement of contractual obligations or if it is based on other wilful or negligent behaviour of us, our employees, statutory representatives and/or auxiliary persons according to section 278 of the BGB (German Civil Code);
- arising out of a lack or a fallout of any guarantee that we accepted;
- arising out of a wilful or gross negligent infringement of contractual obligations of us, any of our statutory representatives or an auxiliary person according to section 278 of the BGB (German Civil Code);
- arising out of the fact, that we fraudulently failed to disclose a defect of the goods.
8.2 As far as there is no other agreement made under Sections 8.1 and/or 8.4 – and at most up to the extent of the contractually typical foreseeable damage – we are to be held liable for such damages, that are caused by a slightly negligent material breach of contract (German: “leicht fahrlässige Verletzung einer Kardinalpflicht”) of us, any of our statutory representatives or auxiliary persons according to section 278 of the BGB (German Civil Code). This kind of a material breach of contract (German: “Verletzung einer Kardinalpflicht”) lies within the infringement of those contractual stipulations which are necessary for the fulfilment of the contract and which the purchaser may therefore rely on, such as - without limitation to - the duty to deliver the products without defects.
8.3 Insofar as there is no other agreement made under sections 8.1, 8.2 and/or 8.4 we are to be held liable for other cases of slightly negligent behaviour of us, any of our statutory representatives or auxiliary persons according to section 278 of the BGB (German Civil Code) only up to the extent of the contractually typical foreseeable damage with limitation to the maximum amount of € 100.000,-- per case of damage .
8.4 The forenamed exclusions and limitations of our liability are not applicable for our liability by the German Product Liability Act (German: “Produkthaftungsgesetz”).
8.5 The objection of joint guilt according to section 254 of the BGB (German Civil Code) remains unaffected.
8.6 Any of the stipulations mentioned above is valid without respect to the nature of the rights, that is if they are contractual and/or legal rights. The stipulations are valid accordingly if the reimbursement of futile expenses is concerned.
8.7 As far as our liability is excluded or limited, this is also agreed referring the liability of any of our employees, representatives or auxiliary persons according to section 278 of the BGB (German Civil Code).

§ 9
Place of execution, law applicable and place of jurisdiction

9.1 Insofar as the order acknowledgement does not state otherwise our place of business is the place of execution.
9.2 Insofar as the purchaser is a trader the place of exclusive jurisdiction is our place of business. We are, however, entitled to take legal proceedings against the purchaser at his general place of jurisdiction.
9.3 Any agreement and its terms based on these Terms and Conditions as well as these Terms and Conditions themselves or any dispute related to the forenamed stipulations shall be subject to and construed in accordance with German law. If the English legal meaning differs from the German legal meaning of such agreement and its terms and/or from these Terms and Conditions the German meaning shall prevail.
9.4 The application of the Agreement of the United Nations of 11 April 1980 on Contracts for the International Sale of Goods (BGBl. II 1989 -Federal Official Journal - p. 586) is excluded.

§ 10
Non-disclosure and data protection

10.1 The purchaser has to treat the conclusion of the contract confidentially. The purchaser may reveal his business connection to us in his advertising material only after former written agreement. The partners to the contract undertake to treat as a trade secret all business or technical details that are not in the public domain and which they learn of through the business relationship. The partners to the contract have to oblige their employees accordingly.
10.2 The confidentiality is also valid during three (3) years after the contract has ended.
10.3 We will treat any personal data of the purchaser according to the legal provisions on Data Protection that are valid in Germany.

§ 11

The purchaser will offer no benefits to our employees or to the management, especially no presents, special allowances, trips, cash, samples, tickets for entertainment events or similar.

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FUCHS GmbH & Co. KG • Industriestraße 25 • 49201 Dissen a.T.W. • Germany
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