Modellbau Fickel

Standard Terms and Conditions


of Modellbau Fickel GmbH & Co.KG,
Managing Directors Ulrich Fickel and Jörg Lenk,
Neuheider Str. 6 a in 08304 Schönheide



1. Scope of applicability

a)
These Terms and Conditions are the basis and component of all proposals and contracts for deliveries and services of Modellbau Fickel GmbH & Co.KG, Managing Directors Ulrich Fickel and Jörg Lenk, Neuheider Str. 6 a in 08304 Schönheide, hereinafter referred to as the Contractor, for companies in accordance with § 14 of the BGB (German Civil Code), hereinafter referred to as the Client. These terms do not apply to contracts with consumers.

b)
These Terms and Conditions also apply to services and construction services that are not the subject of a separate agreement.

c)
These terms are the basis of all future services and deliveries even if their inclusion is not expressly agreed upon anew.

d)
Terms and conditions from the Client do not apply unless they have been expressly recognized by the Contractor.



2. Proposal and conclusion of the contract

a)
The Contractor's proposals are non-binding and subject to change. Concluded contracts and other agreements are not binding until they have been confirmed in writing.

b)
Drawings, illustrations, dimensions, weights or other performance specifications in brochures, catalogs, pamphlets, advertisements, price lists or other documents included in the proposal are non-binding unless they have been expressly denoted as binding in the order confirmation.

Amendments, supplements, side agreements or addenda to a contract require written confirmation from us to be effective.



3. Prices and payment

a)
The prices specified by the Contractor are net prices to which the statutory sales tax will be added. The prices are valid from the location and do not include the costs for freight, unloading, transport and installation. The prices specified in the order confirmation plus the statutory sales tax are the relevant prices.

b)
Payment must be made via bank transfer to the Contractor’s account or in cash. Exchange payments are only permitted if there is a separate agreement. Exchange and checks will only be accepted on account of payment, but not in lieu of payment. Exchange charges and exchange taxes are at the expense of the Client.

c)
If the Client goes into default on payment, the Client is obligated to pay default interest in the amount of 5 percent points above the base interest rate. Default on payment also results in all receivables, regardless of the payment objective, becoming due for payment immediately. The same applies to significant deterioration of the asset situation and in the event of the over-indebtedness and insolvency of the Client.

d)
Unless otherwise agreed, the Contractor is entitled to demand reasonable installment payments from the Client based on the progress of the order.



4. Delivery and performance date

a)
Delivery dates and delivery periods are not binding until they have been expressly denoted as binding in the proposal or in the order confirmation.

b)
Delivery periods begin after the receipt of all documents required for the execution of the order, the advanced payment and on-time provision of materials and plans unless otherwise agreed upon.

c)
If services owed by the Contractor are delayed due to force majeure, legal strikes, or the Contractor or its suppliers are unable to perform without fault, the Contractor is entitled to postpone the delivery or service for the duration of the hindrance, however, not for longer than 6 weeks, unless a valid interest of the Client opposes this. The Contractor can only invoke this performance and delivery delay if he immediately notifies the Client of the circumstances of the delay in delivery. If the hindrance takes longer than 6 weeks, the Client is entitled to withdraw from the not yet fulfilled portion of the agreement after setting a reasonable grace period.

d)
The Contractor is entitled to make partial deliveries and performance if this is reasonable for the Client.





5. Retention of title

a)
The delivered products and objects remain the property of the Contractor until complete payment of all claims resulting from the business relationship with the Client.

b)
The Client is obligated to immediately report seizures of the objects subject to retention of title to the Contractor in writing and notify the pledgee of the retention of title.

c)
If the delivery is for a business operation run by the Client, the objects may be resold in the framework of conducting proper business. In this case, the Client’s claims against the customer resulting from the sale are herewith assigned to the Contractor in the amount of the invoice amount for the delivered object subject to retention. In the event the objects are resold on credit, the Client must retain title with respect to its customer. The Client herewith assigns the rights and claims from this retention of title with respect to the Client’s customer to the Contractor.

d)
If the Client processes, combines or mixes the objects subject to retention with other objects, the Contractor is entitled to co-ownership of the new item in proportion to the invoice value of the object subject to retention to the value of the other objects.

e)
If the value of the existing securities exceeds the claims to be secured by more than 20%, the Contractor is obligated to release them upon request of the Client.



6. Transfer of risk and acceptance

a)
The product shall be accepted by the Client after completion of the services if this has been contractually agreed upon. This also applies to complete partial services.

b)
The risk is transferred to the Client upon acceptance.

c)
In the event the Client goes into default on the acceptance, the risk shall transfer to the Client at the time of default. The same applies if a contractual assembly is interrupted for reasons for which the Client is responsible and if the Contractor has consensually transferred the services provided up to that point to the Client’s custody.

d)
If no acceptance is required or agreed upon, the risk is transferred to the Client, at the latest, when the products are shipped namely, even if partial performances are provided or the Contractor has assumed other services such as the shipping costs or transport or installation.



7. Warranty

a)
The descriptions of the agreed upon properties are the distinctive criteria for the quality and design. References to technical standards serve to describe the service and are not to be interpreted as a guarantee of properties.

b)
Warranty claims and claims for compensation of damages that did not occur on the delivery object or the work itself (consequential damages) expire in 12 months. This does not apply if longer periods are proscribed by law. The expiration period begins with the acceptance of the work.

c)
Obvious defects must be reported in writing 2 weeks after delivery of the goods or during the acceptance of the service. After this period has expired, warranty claims for obvious defects can no longer be asserted.

d)
If the order is a commercial transaction for both contract parties, the regulations of §§ 377 of the HGB (German Commercial Code) apply accordingly.

e)
In the event of justified complaints due to defects, the Contractor may choose to rework the delivered objects or deliver a replacement to the Client in return for the defective object being returned. As long as the Contractor fulfills its obligations to rectify defects, the Client does not have the right to demand a reduction of the remuneration or withdrawal from the agreement unless subsequent performance has failed.

f)
Insignificant and reasonable deviations with respect to the dimensions or designs, in particular, for subsequent orders, are reserved if these are due to the nature of the materials used and are standard.

g)
Deviations with respect to the dimensions and designs shall be reviewed prior to further processing or further use by the Client. The Contractor is not liable for consequential damages resulting from a violation of the Client’s obligation duty if the Contractor is not guilty of intent, gross negligence or is responsible for injury to life, limb or health.

h)
Unauthorized reworking and improper treatment results in the loss of all claims for defects. Wear and tear in the usual scope do not substantiate claims for defects. This does not apply if the Contractor is guilty of intent, gross negligence or is responsible for injury to life, limb or health.

i)
In the event of a violation of significant contractual obligations, the Contractor’s liability is limited to the contract-typical, foreseeable damages unless the Contractor has acted with intent.



8. Remuneration

If the contractual service has been provided by the Contractor and accepted, the remuneration shall be paid based on simple accounting without deduction of discounts unless otherwise agreed upon.



9. Offsetting

Offsetting with other claims ruled as undisputed or legally established is excluded.



10. Flat-rate compensation of damages

If the Client cancels prior to the execution of the order, the Contractor is entitled to demand 5% of the total order amount as compensation of damages. The Client reserves the express right to prove lesser damages.



11. Commercial property rights

The Contractor reserves its property right and copyright to cost estimates, drafts, drawings and invoices. They may not be used, reproduced or made accessible to third parties without the Contractor’s consent. In the event the contract is not awarded, they must be returned immediately.



12. Confidentiality

Unless otherwise agreed upon in writing or is the standard, the information provided to the Contractor in conjunction with the order is not considered confidential.



13. Written form

Side agreements have not been concluded. Amendments to this agreement must be made in writing. This also applies to the suspension of this written form clause.



14. Severability Clause

If one or more provisions in this agreement are invalid, it does not affect the remaining provisions of this agreement. In such a case, the parties are obligated to consent to a new provision which comes as close as possible to the economic purpose of the invalid provision and upon which they would have agreed if they had been aware of the invalidity of the provision.



15. Jurisdiction / applicable law

If both parties are businesspersons, the sole place of jurisdiction is the Contractor’s place of business. German law applies with the exclusion of the UN Sales Convention.