Sales, deliveries and other services provided by FRANK GmbH (hereinafter: FRANK) are subject exclusively to the following general terms and conditions (hereinafter: the conditions), which recognise the customer by issuing an order or receipt of services. These conditions apply to all future transactions with the customer. The validity of conflicting, deviating or additional conditions of the customer are excluded, even if FRANK does not formally contradict them.
2. Conclusion of Contract
(1) Offers from FRANK are subject to change. A contract is only established through a written order confirmation from FRANK or through the actual completed provision of services by FRANK. An acknowledgement or purchase from the internet does NOT act as an order confirmation from a member of FRANK staff. The contract content is determined solely by the order confirmation and these conditions of delivery. Oral agreements or promises require a written confirmation from FRANK in order to be considered valid. (2) A FRANK sales representative may not issue any legally binding declarations on behalf of FRANK. (3) FRANK reserves the right to all drawings, designs, price estimates and any other documentation. They may not be made available to third parties.
3. Deadlines, dates and part deliveries
(1) Deliveries, delivery dates and terms of delivery are binding only if they have been confirmed in writing by FRANK and only if the customer has provided all required information for the delivery in good time and has paid any balances already been agreed upon. Agreed time limits begin on the date of the order confirmation. The deadline for late or supplementary orders shall be extended accordingly.(2) The delivery time has been observed if the delivery item has left the factory by the deadline of said delivery time, or if the customer has been notified that the item is ready to be dispatched. Any unforeseen or unavoidable events and those out with the control of FRANK such as: force majeure, war, natural disasters, official government orders or labour disputes release FRANK from making timely deliveries and services for their duration. Agreed dates will be extended depending on the duration of the disruption, the customer will be appropriately notified about this at the outset of the disruption. If the end of the disruption is unforeseeable, or it lasts longer than 3 months, then every party involved is justified to exit the contract. (3) If the delivery from FRANK has been delayed then the customer may only withdraw from the contract if FRANK is responsible for the delay and if the reasonable deadline for delivery that was set by the buyer has passed without success. (4) On reasonable grounds FRANK can carry out partial-deliveries and partial services provided they have already been invoiced. (5) Any liability is passed on with the passing over of the delivery item to the shipping company or to the buyer themselves. If delivery is delayed, for any justifiable reasons, then the liability is passed on to the customer the day they have been alerted that the item is being dispatched.
4. Prices and Terms of Payment
(1) If the contracted parties haven’t yet agreed upon a particular price, then the price will correspond to FRANK’s validated price list as it stood at the time the contract was finalised. (2) All of FRANK’s prices are excluding VAT, any customs duties and packaging and shipping costs, all of which are calculated separately. (3) Any exchanges are by special agreement only and only if FRANK are spared from any additional costs and expenses through conditional payment. (4) To offset this, a customer’s counterclaim is only justified if it is uncontested or legally valid. (5) The customer is only entitled to assert the right of retention (of payment) if his counter claim is based on the same contractual relationship. (6) In the case of delivery abroad, FRANK is entitled to ask the customer for an open-ended, absolute guarantee from ‘Deutsche Bank’ or any other major European bank in the sum equal to that of the worth of the delivery item(s). This is to ensure fulfilment of their payment entitlements.
5. Acceptance, Warranty, Inspection Obligations
(1) The customer is obliged to accept the delivery items that were agreed upon in the contract. If the customer does not immediately accept the delivery items after he received the dispatch notice, FRANK can then give the customer a reasonable period of time to accept the item(s). If the customer does not pick up the delivered items within this time period then the acceptance shall be deemed considered to have occurred. (2) Frank guarantees that the delivery item(s) meet the agreed quality at the point of passing the liability on. They are assessed solely based on the specific written agreement between the parties concerning the properties, features and specifications of the delivery item(s). (3) Information given in FRANK’s catalogues and price lists or other information given to the customer should not be considered as a guarantee for a particular condition or quality of service. (4) Concerning all orders and services provided by FRANK, the customer accepts the obligation of inspection, notification and rejection in accordance with section 377 of the German Commercial Code (HGB). Upon completion of a contract section 377 of the HGB applies accordingly: after accepting the delivery or services provided by FRANK, the buyer must immediately examine its functionality, and any detected deficiencies should be immediately reported to FRANK in writing. The customer is required to provide FRANK with all the necessary information and reviewable records that are required to ascertain the defect. (5) FRANK has the right to inspect and test any claimed defective performance. If it proves that a claim of defect by the customer is unjustified, then FRANK is to receive compensation for all expenses incurred because of this e.g. travel, fitting or shipping costs. (6) In the event of a defect, FRANK is entitled, at its discretion, to take three attempts at repairing the good or ordering a replacement. (6)If the subsequent performance fails and if FRANK seriously and definitively refuses to fulfil the contract or some special circumstances exists, then after the agreed deadline the customer has rights under section 437 of the HGB, along with section 2 and 3 of the BGB (The Civil code of Germany). The setting of a deadline must be done in writing, and the timeframe must be at least 14 working days. If the customer is legally entitled to withdraw from the contract, he will only be compensated in accordance with section 346 BGB only if he has observed the diligence of a conscientious businessman. FRANK’S right to attempt to remedy any problems or defects (in its services or products) only ceases to apply upon payment of damages, even if the customer makes a previous demand to this effect. (7)FRANK assumes no liability for any damages that may occur through unsuitable or improper use, incorrect installation, faulty commissioning, incorrect handling, usual wear and tear or faulty electromechanical or electrical influences. The warranty also does not cover defects due to improper handling, storage, maintenance, cleaning or the like. FRANK is also not liable for any damages that occur due to unilateral or unauthorised changes to the installed software. (8) The statute of limitations last for one year and begins on the day the product/service is accepted or delivered.
6. Damages and limitation of liability
(1) FRANK accepts unlimited liability for damages culpably caused by us e.g. loss of life, damages to body or health, for wilful or grossly negligent damages caused by FRANK or its agents and if FRANK has provided a guarantee concerning the particular quality of the goods, the ability to procure them or any other guarantee, for damages arising from the non-fulfilment of said guarantee, and in accordance with the provisions of the German Product Liability Act (Produkthaftungsgesetz) or any other mandatory statutory provisions on liability. (2) FRANK shall be liable for the customer’s damages caused by negligence only to the extent of the typical foreseeable contractual damage for the breach of material obligations under the law of obligations and insofar as the customer claims damages instead of performance. In the event of an immaterial breach of duty, i.e. in case of violation of a protection or duty of care or any other non-performance related secondary obligation, means that performance is no longer expected by the customer or it is impossible. (3) Section 6 applies to all claims for damages, for whatever legal reason, in particular to the tort liability or other tort claims.
7. Retention of title
(1) Delivered items remain property of FRANK until full payment of all the claims arising from the business relationship between ourselves and the customer has been received. In the case of current accounts, this retention of title shall be deemed to serve as security for the outstanding owing claim of FRANK. (2) As the manufacturer, any processing or restructuring shall be done by FRANK, but without entailing any obligation for the customer. If FRANK’s co-ownership expires due to amalgamation, it is agreed that a share according to the invoice value of the customer’s co-ownership shall be transferred to FRANK. The customer shall keep FRANK’s co-ownership free of charge. Products that are under co-ownership by FRANK will hereto be referred to as retained products. (3) The customer is only permitted to sell the retained products in the course of proper business. The customer is not entitled to pledge the retained products, to transfer title as security or to dispose of them in any other way that might threaten FRANK’s ownership of them. The customer hereby assigns the claim of resale to FRANK and FRANK accepts the assignment. The customer is irrevocably authorised, on a trust basis, to collect receivables assigned to FRANK in his own name. FRANK is entitled to revoke this authorization as well as the right to sell if the customer is in default of considerable obligations, such as payment for example. (4) The customer will give any information or claims that have been assigned to FRANK concerning the retained goods whenever desired by FRANK. Any requests or claims by third parties to the retained goods shall immediately be reported to FRANK by the customer and shall be accompanied by all necessary documents. (5) If the realisable value of all securities due to FRANK exceeds the secured amount receivable by more than 10%, then the customer is entitled to demand that these be released.
8. Product Liability, Industrial Property Rights
(1) Should the customer sell the delivered items following processing or combination, mixing or blending with other goods, the customer shall exempt FRANK from any product liability claims of third parties provided that the customer is responsible for the defect causing the liability. (2) If the customer specifies through certain instructions, data, documentation, drafts or drawings, how FRANK should manufacture the items to be delivered, then the customer provides the guarantee that FRANK does not violate any rights of third parties such as patents, designs or other intellectual property rights. The customer shall exempt FRANK from all claims by third parties who wish to make a complaint against FRANK for such violations.
9. General Terms
(1) Any changes or additions to the contract and/or the terms of delivery must be done in writing. This also applies to an amendment of this written form requirement. (2) If any provision of the contract and or the terms of sale are whole or partially invalid, the validity of the remaining provisions shall remain unaffected. In this case, the parties commit themselves to replace the invalid provision with a valid one, which reflects the commercial purpose of the original invalid provision. (3) If the buyer is a businessman, legal person under public law or a special fund under public law, then the sole place of jurisdiction for all contractual disputes that may arise is FRANK’s place of business in 35764 Sinn. The place of performance is FRANK’s place of business. (4) The entire contractual relationship between the parties shall be governed by law of the Federal Republic of Germany under the inclusion of the UN Convention on the International Sale of Goods (CISG).