1.1 The following Terms shall exclusively apply to individuals and legal entities or incorporated partnerships who, at the conclusion of a transaction, are acting in the performance of their commercial or self-employed business activity (entrepreneurs as defined in Section 14 of the German Civil Code [BGB]).
1.2. We order goods or services from entrepreneurs solely on the basis of our following
Terms. These Terms shall also apply to all future orders from a supplier, without the need for us to refer to them again in each individual case; the latest version of the Terms is available on www.maxfrank.de. Any deviating terms or conditions of the supplier’s which we have not expressly accepted shall not become a part of any contract, even if we have not expressly contradicted them.
If we accept deliveries or services without reservation, this shall not on any account be regarded as acceptance or approval of any deviating terms or conditions.
2.1 Our offer to conclude a purchase/service contract (order) shall only be binding on us if submitted in writing (by mail, fax, or e-mail). Verbal agreements shall only be binding if confirmed by our purchasing department and shall be put down in writing without delay by the parties’ responsible employees. The same shall apply to any alterations and/or additions to orders.
2.2. Unless otherwise expressly agreed, we shall be bound by our order for a period of two weeks after submission of the order. Provided that no change to the order is necessary on the part of the supplier with respect to quantity, price or delivery date, we will generally not require a written order confirmation. On our express demand, however, the supplier shall confirm the order in writing within (2) weeks or perform delivery without delay and without reservation.
2.3. In the case of devices, a technical description and operating instructions as well as any other documents necessary to be able to use the devices shall be supplied free of charge. In the case of software products, this obligation will not be fulfilled until the complete relevant (system and user) documentation has been handed over as well. In the case of programs that are specially designed for us, delivery of the program shall also include the program in source format.
3.1 Each delivery shall be accompanied by a delivery note including our purchase order number as well as a description of the contents by nature and quantity.
3.2. Any partial deliveries of goods or services shall be contingent upon our prior written consent.
3.3. It is your responsibility to make sure that the goods are adequately packed and safely loaded for transport. Where our orders specify a certain mode of packing, it shall be your responsibility to meet those specifications.
3.4. It is your responsibility to provide appropriate insurance for the transport of goods, and you shall provide proof of transport insurance to us upon request.
3.5. Agreed dates of delivery of goods and services shall be binding. In the event of anticipated or actual delays, you shall immediately notify us thereof in writing.
3.6. If you are in delay, we shall be entitled to exercise our statutory rights. If we claim damages, you shall be entitled to provide proof to the effect that the breach of your obligations was due to circumstances beyond your control. If you still fail to perform delivery of goods or services within a deadline set by us after the due date, we shall further be entitled to withdraw from the contract. This right to withdraw shall not be affected by whether or not you were responsible for the breach of obligations. Any extra costs we may incur due to the delay, in particular through the necessity to obtain the goods or services in question from another source, shall be at your expense.
3.7. Until final payment is made, we reserve the right to claim a contractual penalty as agreed upon for improper performance (Section 341 BGB).
4.1 Unless otherwise agreed between the parties, the following shall apply: The prices indicated by us in the purchase order shall be binding and delivery shall be Free Domicile (DDP named place of destination according to INCOTERMS 2010) to the place specified in the order. The place of destination specified shall also be the place of performance (“seller‘s obligation to deliver“). Any and all additional costs, e.g. the cost of delivery, packing, transport insurance, etc., shall be included in the price. Prices shall be exclusive of VAT.
4.2. Invoices shall be submitted to us under separate cover and must show our purchase order number (cf. sub-clause 3.1.).
4.3. Unless otherwise agreed in writing, payment shall be effected within 21 days less 3 % cash discount, or net within 45 days. The period allowed for payment shall begin on the date on which the invoice is received at the invoice address specified by us; not, however, prior to receipt of the goods.
4.4. We reserve the right to choose the mode of payment.
4.5. Where payment is made by bank transfer or cheque, the obligation to pay shall be deemed duly fulfilled as soon as the transfer order has been transmitted to our bank or when the cheque has been posted to you.
4.6. All risks involved in sending the cheque shall be borne by you. In addition to the risk of theft and unauthorised cashing, you shall also assume the responsibility for any and all additional damage incurred by us as a result thereof, in particular banking fees for stopping cheques.
4.7. The making of any payment shall not be considered an acknowledgement of the delivery of goods or services as being in compliance with the contract. In the event of faulty or incomplete delivery of goods or services, we shall be entitled, irrespective of any other rights, to withhold a reasonable amount of payments owed to the party in default until such party’s obligations have been properly fulfilled.
4.8. Any assignment of accounts receivable from us to any third party shall be ruled out. Section 354a of the German Commercial Code [HGB] shall remain unaffected.
4.9. Set-off is only possible against undisputed or legally established claims. This shall not apply to claims being in a reciprocal relationship. FRANK shall be entitled to set off any and all of the supplier’s accounts receivable, due or not, which are owed by Frank or a company of the Frank Group, against accounts receivable by Frank or any of the companies named. The companies of the Frank Group are listed at http://www.maxfrank.com/intl-de/kontakt/frank-international.php.
5.1 In the case of goods and services delivered from an EU country outside Germany, the EU VAT ID number has to be indicated.
5.2. Imported goods shall be delivered duty paid. It shall be your responsibility, at your expense, to make declarations and give information, allow inspections by customs authorities and provide official certificates as required pursuant to Regulation (EC) no. 1207/2001.
5.3. You shall provide us with a detailed written notification, free of charge, in the event of any (re-)exports requiring permission under German, European and US export and customs regulations as well as export and customs regulations of the country of origin of the goods or services in question.
6.1 Goods and services delivered must be in compliance with the relevant legal regulations,
in particular safety and environmental protection regulations including the German Hazardous Substances Ordinance, the German Electrical and Electronic Equipment Act (ElektroG) as well as the safety recommendations of the competent German expert bodies and expert associations, such as VDE, VDI, DIN. Relevant authentications, test certificates and documents shall be supplied free of charge. In effecting your deliveries, you shall act in compliance with the relevant legal regulations of the European Union and the Federal Republic of Germany, such as the REACH Regulation (Regulation (EC) No. 1907/2006).
6.2. It shall be your responsibility to be up to date on and comply with relevant directives and laws regarding restrictions on substances. Furthermore you shall not use any banned substances. Substances to be avoided or hazardous substances according to the relevant laws and directives shall be indicated in the specifications. Where applicable, safety data sheets shall be supplied (at least in German or English) with the offers and with each first delivery together with the delivery note. Any indication of violations of substance restrictions or delivery of banned substances shall be notified to us immediately.
6.3. Compliance with accident prevention regulations when delivering goods or services
shall be your sole responsibility. Any subsequently necessary protective devices as well as any instructions of the manufacturer shall be supplied free of charge.
6.4. When performing deliveries of goods or services on our premises, you shall furthermore act in compliance with our instructions on safety, environmental and fire protection for external persons (as amended), which will be made available to you upon request.
7.1 Unless otherwise agreed, the risk shall be transferred to us when delivery is received at our specified delivery address (DDP named place of destination according to INCOTERMS 2010). In cases where the contract specifies setup or installation in addition to delivery, the risk shall be transferred to us upon final inspection and acceptance. Formal acceptance shall be deemed agreed; operation or use shall not replace our declaration of acceptance.
7.2. Simple reservation of ownership regarding unprocessed goods will be recognised by us as far as applicable. Ownership of goods delivered shall pass to us upon payment of the same. Any prolonged or extended reservation of ownership shall be ruled out.
8.1 Incoming goods will be inspected for patent defects. As far as acceptance has been agreed, there shall be no duty of inspection. Latent defects will be notified by us as soon as they are discovered in the normal course of business.
8.2. Notification of defects shall be deemed to have been given in time if received within a reasonable period of time; as a rule, such period of time shall be two weeks, beginning on delivery of the goods in the case of patent defects, and beginning on discovery in the case of latent defects.
9.1 Warranty shall be subject to the applicable legal regulations, unless otherwise agreed in the following:
9.2. During any time in which goods are not in our custody as a result of a claim for rectification of defects, you shall bear the risk of accidental loss or deterioration.
9.3. If you do not fulfil your duty of rectification within a reasonable period of time set by us, we shall be entitled to take any necessary measures ourselves, or have them taken by a third party, at your expense and risk. In urgent cases (in particular in the event of a risk to operational safety or to prevent extreme damage or to avoid our own deliveries being delayed) and in order to remedy minor defects, we shall be entitled, after prior notification of defects and having set a reasonable deadline for rectification, or after consultation with you, to remedy defects ourselves or have them remedied by a third party at your expense.
9.4. Notwithstanding Section 442, subsection 1, sentence 2 BGB, we shall be entitled to unrestricted warranty claims even in the event that a defect remained unnoticed due to gross negligence at conclusion of contract.
9.5 Any and all costs incurred by the supplier for the purpose of investigating and remedying defects (including, where applicable, any costs of removal and installation) shall be borne by the supplier even if it is found that no defect actually existed. FRANK’s liability for damages in the event of an unjustified demand for rectification of defects shall remain unaffected; however, FRANK shall only be held liable if FRANK realised, or did not realise due to gross negligence, that no defect existed.
9.6. If the supplier fulfils his obligation of rectification by way of replacement, the period of limitation for the goods delivered as replacement shall start again upon delivery of the same, unless the supplier has expressly and appropriately stated to be delivering the replacement only by way of goodwill, to avoid disputes, or in the interest of continuing the business relationship.
9.7. The period of limitation for our claims regarding defects of quality shall be 36 months as from the transfer of risk according to sub-clause 7.1; the period of limitation for our claims regarding defects in title shall be ten years as from the transfer of risk according to sub-clause 7.1.
10.1 Where your goods or services shall be in accordance with our plans, drawings or other special requirements, compliance of the goods or services with such requirements shall be deemed expressly warranted.
10.2. If warranted qualities are missing, we may choose to withdraw from the contract or reduce payment and in addition claim damages in either instance.
In the event of repeated defective or delayed delivery of basically the same or similar goods or services by the same supplier, we reserve the right to withdraw from the contract, after prior written warning, even in respect of goods or services that the supplier has yet to deliver to us in future on the grounds of this or any other contract. General Terms and Conditions of Purchase (“Terms”) of Max Frank GmbH & Co.KG and Max Frank Pressig GmbH (“FRANK”) Rev: 01.01.2016
Where it becomes obvious after conclusion of contract that the performance of our delivery is jeopardised on account of an unforeseeable impediment which cannot be overcome using reasonable endeavours, we shall be entitled to withdraw from the contract. This shall apply in particular in the event of impossibility of performance on your part or risk to performance due to force majeure, strike or natural disaster. In the event of an impediment for which we are responsible, we shall not be entitled to withdraw.
13.1 Any technical documents, tools, technical data sheets, manufacturing equipment, data, etc., provided by us, including all trademarks, copyright and other intellectual property rights shall remain our property. They shall be returned to us, together with any and all duplicates made, without delay and without special request on completion of our order, or at any time upon request; you shall have no right of retention in this respect. You must not use the aforesaid items for any purpose other than the execution of the respective order, and you must not give or make them available in any other way to any unauthorised third parties. Duplication of the items mentioned shall only be allowed to the extent that is necessary for executing the order.
13.2. You shall, on a free-of-charge basis, take care of and maintain the aforesaid items and repair normal wear and tear. If a sub-supplier is commissioned to manufacture tools and samples in connection with the execution of our order, any and all claims against such sub-supplier regarding the transfer of ownership of such tools and samples shall be assigned to us.
13.3. Any technical or other documents, drawings, diagrams, schemata, charts, photographs, layout templates or other documentations created by the supplier in connection with the execution of our order – whether on data storage media, in printed form or as materials for printing preparation or printing – as well as any and all samples, tools, materials or other means of production shall become the property of FRANK on being made available. Furthermore, FRANK shall receive – to the extent allowed by the law – any and all rights regarding the ownership, use and exploitation of the aforesaid copyrightable works. No extra remuneration shall be owed by FRANK for the transfer of the aforesaid rights; such transfer shall be fully included in the prices stated in the purchase orders.
14.1. You shall make sure that no trademarks, patents, licences or other intellectual property rights, or third-party applications for intellectual property protection pending at the time of acceptance of delivery, are violated by the delivery and the agreed use of the goods and/or services. This will not be verified on our part.
14.2. You shall immediately inform us of any cases of claimed infringement or risk of infringement which become known to you.
14.3. If the use of deliveries made by the supplier has been prohibited by a court order, or if in the opinion of either party legal proceedings on the grounds of infringement of intellectual property rights are imminent, the supplier shall provide a remedy unless he is not to be held responsible for such infringement.
Such remedy can consist in the supplier procuring the rights at issue to FRANK or modifying or re-performing his contractual obligations in such a way that intellectual property rights are no longer violated. If remedy is not provided or remains unsuccessful, FRANK shall be entitled to withdraw from the contract. In the event that we are held liable by any third party because you negligently violated a third party’s intellectual property rights by delivering your goods/services, you shall, upon our first demand, indemnify us against such claims and any and all expenses necessarily incurred in connection with being held liable by such third party and in defending their claims. We will not recognise any claims of any third party without your written consent, nor will we make any agreement with the third party in such respect. The period of limitation for such rights of indemnity shall be 36 months as from the transfer of risk.
14.4. The provisions of sub-clause
14.3. shall not apply where goods or services are based on drawings, models or any other equivalent descriptions or specifications provided by us and if it was impossible for you to realise that the products you developed would infringe on intellectual property rights.
15.1. In the event of claims made on FRANK on product liability grounds, the supplier shall indemnify us against such claims insofar as the damage has been caused due to a fault in the goods delivered by the supplier. In cases of liability based on fault, this shall however only apply if the supplier actually is at fault. Insofar as the cause of damage lies within the supplier’s sphere of responsibility, the supplier shall have to prove that the fault lies not with him.
15.2. As part of his obligation of indemnification, the supplier shall assume all the costs and expenses arising from or in connection with third-party liability claims, including any recalls made by FRANK. Prior to any recall, FRANK will inform the supplier, enable him to participate adequately and consult with him on how to best proceed; this shall not be requisite in cases where notification or participation of the supplier is not possible due to extreme urgency.
15.3. You shall take out product liability insurance with a minimum cover of €10 million per event and maintain the same during the duration of the contract; we shall be entitled to request confirmation of cover from your insurer. This provision shall not apply in cases where said insurance cover will be out of proportion with any foreseeable damage; in such cases, sentence 1 shall apply on the understanding that product liability insurance shall be taken out to provide sufficient cover.
15.4. You shall indemnify us against any and all claims which any third parties – no matter on what legal grounds – may raise against us in respect of any defect in quality or in title or due to any other fault in a product delivered by you, and you shall reimburse to us any and all costs necessarily incurred in asserting our legal rights in such event.
15.5. In the event that our customer raises claims against us in connection with a purchase of consumables and those claims are due to a fault in goods delivered by the supplier, the period of limitation for our rights to damages shall be three years starting from the date on which the supplier delivered the goods to us.
16.1 Without our prior written consent, the supplier shall not be entitled to have the service owed to us performed by any third party (e.g. subcontractors, freelance employees).
16.2. The supplier agrees and confirms that all of his employees are paid at least in accordance with the provisions of Sections 1, 2 and 20 of the German Minimum Wage Act [Mindestlohngesetz] as well as any other legal regulations and collective agreements for the observance of which we are responsible pursuant to Section 14 of the German Employee Assignment Act [Arbeitnehmerentsendegesetz] and/or other comparable regulations.
16.3. The supplier shall pay the employees assigned to perform the services ordered according to the underlying contract at least minimum wages pursuant to the Minimum Wage Act of 11 Aug. 2014. We shall be entitled, at any time during the duration of the services ordered, to demand from the supplier written proof of payment of minimum wages, in which case the supplier shall furnish such written proof without delay, at the latest however within three working days from receipt of the demand.
16.4. The supplier shall, upon our first demand, indemnify us against all claims made in the event of a violation of the provisions of the Minimum Wage Act by the supplier or any of his subcontractors. Irrespective of any other rights of termination or withdrawal, we shall be entitled to withdraw from the contract or terminate the contract with immediate effect if the supplier and/or any of his subcontractors culpably violated the aforementioned regulations and/or the Minimum Wage Act of 11 Aug. 2014. The supplier shall compensate us for any and all damage incurred by us as a result of such withdrawal or termination. Any claims on the part of the supplier for non-performance shall be ruled out. Otherwise the consequences of withdrawal or termination shall be subject to the applicable legal regulations.
17.1 All business, accounting or technical documents, information and data, in particular personal data, in connection with this business relationship, or any other facts that become known to you as part of this business relationship, shall be kept secret from any third parties and shall be treated with strict confidentiality. In your own company, they may only be made available to such persons who need necessarily be involved in their use and who have also signed a written declaration of secrecy. They shall remain our exclusive property. Without our prior express consent, such information must not – except for the purposes of this contract – be used, reproduced or commercially exploited. You shall treat all the knowledge, information and data acquired in connection with this contract confidentially even beyond this contract.
17.2. This obligation to secrecy shall not apply insofar as information, secrets or know-how are generally known, or become or have become generally known without your fault, or were already known to you prior to conclusion of this contract, or have to be disclosed to an authority or another authorised third party upon their demand.
17.3. Products you have specially made for us in accordance with documents designed or provided by us, such as drawings, models or other know-how materials, or according to our confidential specifications, or using equipment designed or provided by us, must not be used nor disclosed or offered to any third party without our prior written consent.
17.4. FRANK reserves all rights in information under sub-clause 17.1 (including copyrights
and the right to file applications for industrial property rights, such as patents, utility models, etc.). Insofar as information under sub-clause 17.1 has been made accessible to any third parties, this reservation of rights shall also apply in favour of such third parties.
18.1. You acknowledge and agree that we collect, store, process and use personal data connected to our business relationship with you, and that we transfer such data to affiliated companies of the Max Frank Group for the purpose of maintaining the proper course of business and settlement of accounts. We will make sure that your protectable interests will not be impaired.
18.2. Legal regulations and internal company rules regarding data protection shall be observed. The supplier shall accordingly oblige his employees, subcontractors and other persons in any way involved in performing the contract to do so and shall, on request, provide FRANK with the written record of such obligation. Insofar as any processing or use of personal data is carried out by way of a processor, the parties shall, without delay, conclude a data protection agreement in accordance with the provisions of the German Federal Data Protection Act [Bundesdatenschutzgesetz (BDSG)].
The Code of Conduct of the Federal Association for Materials Management, Purchasing and Logistics [Bundesverband Materialwirtschaft, Einkauf und Logistik e.V. (BME)] in the version applicable at the time of conclusion of contract, available at
https://www.bme.de/fileadmin/_horusdam/1472-BME-Code_of_Conduct_englisch.pdf, shall apply to all business relationships.
This contract shall be subject to German law. The provisions of the Vienna UN Convention
on the International Sale of Goods (CISG) shall not apply.
Unless otherwise specifically agreed, the place of performance for delivery in each case shall be the site which placed the order or concluded the contract. The place of performance for any payments to us shall be Leiblfing, our principal place of business.
The place of jurisdiction for all disputes arising from contracts with companies, legal entities under public law or special assets under public law in Germany and abroad shall be the court having jurisdiction in Leiblfing, our principal place of business. This shall also apply to any legal action based on a dishonoured cheque or bill of exchange.
This translation is provided for convenience only.
In the event of any discrepancy between the translated version and the German version, the German version shall prevail.
1.1 The following Terms shall exclusively apply to individuals and legal entities or incorporated partnerships who, at the conclusion of a transaction, are acting in the performance of their commercial or self-employed business activity (entrepreneurs as defined in Section 14 of the German Civil Code [BGB]).
1.2 We sell goods or provide services to companies solely on the basis of these Terms. These Terms shall also apply to all future transactions with the customer, without the need for us to refer to them again in each individual case; the latest version of the Terms is available on www.maxfrank.de. Any deviating terms or conditions of the customer which we have not expressly accepted shall not become a part of any contract, even if we have not expressly contradicted them. Our Terms shall apply even if we perform deliveries to the customer without reservation although we are aware of terms or conditions of the customer’s that contradict or deviate from our Terms.
2.1 Our offers are subject to change without notice.
2.2 By placing an order with us, the customer will be entering into a legally binding contract. We shall be entitled to accept the customer’s offer of contract within 2 weeks from receipt.
2.3 A contract for delivery shall only be established through our written order confirmation, at the latest with delivery. Transmission by means of data telecommunication will meet the requirement of written form.
2.4 We reserve all title and copyrights in drawings, estimates and other documents. This shall also apply to those written documents that are classified as “confidential”. The customer shall not disclose any such documents to any third party without our prior express written consent.
If, by submitting a telephone bill and a transmission report, we are able to prove that we have sent a declaration by fax or data telecommunication, it will be assumed that such declaration has been received by the customer.
4.1 Only those prices that have been confirmed by us in writing shall be valid. Prices quoted are ex works, exclusive of VAT, postage, packaging, freight, insurance, etc. For very small orders of less than €50.00, we will charge an extra amount of €10.00.
4.2 We reserve the right to change our prices in a reasonable fashion in the event of any decreases or increases in costs, in particular as a result of increases in wage costs or changes in material prices occurring after conclusion of contract.
4.3 Our invoices shall be payable within 10 days less 2 % cash discount, or 30 days net.
4.4 On expiry of the aforesaid deadlines, the customer shall be in default of payment,
with default interest to be paid on the purchase price at the current rate as legally stipulated. Furthermore we reserve the right to claim compensation for any damage that may result from the customer’s default. With respect to businesspeople, our entitlement to overdue interest according to Section 353 of the German Commercial Code [HGB] shall remain unaffected. Otherwise the legal regulations regarding the conditions and consequences of default in payment shall apply.
4.5 Any means of payment other than cash, bank transfer or cheque shall require a separate agreement. The date of receipt by us shall be the decisive criterion for payment to be in time.
4.6 Any set-off by the customer shall only be possible against counterclaims that are undisputed or have been recognized by us or have been legally established. The customer shall be entitled to exercise a right of retention only in the event that his counterclaim is founded on the same contractual relationship.
4.7 If, after conclusion of contract, we learn of circumstances which question the creditworthiness of the customer, or in the event of a substantial risk that payments owed to us will not be settled due to a deficiency of assets on the part of the customer, or if the customer falls behind with the payment of the purchase price, we shall be entitled to demand payment in advance or provision of security within a reasonable period of time and to refuse performance until our demand has been satisfied. In the event of the customer’s refusal or if the period set has lapsed without success, we shall be entitled to withdraw from the contract in full or in part and to claim damages in lieu of performance.
In any case, we reserve the right, until delivery, to make improvements to products in
terms of design, shape and technology in adjustment to the current state of the art.
5.1 When stating a date for delivery or performance, we will assume that all technical issues have been clarified and that the customer’s obligations will be performed in time and due form. If this is not the case, the delivery period will be extended appropriately. The right to the plea of non-performance of contract shall remain reserved.
5.2 In the event of force majeure, strike, or delays due to circumstances beyond our control, the delivery period will be extended by the duration of the impediment.
5.3 We shall be entitled to make partial deliveries, provided this will not cause disadvantages concerning the use of products. The contract shall be deemed to have been fulfilled upon delivery of a quantity within 10 % plus or minus of the agreed quantity.
5.4 If the customer defaults on acceptance or culpably violates any other obligations under the contract, we shall be entitled to give priority to orders from other customers and to extend the delivery period as appropriate. Notwithstanding any other rights, we shall be entitled to claim compensation for any damage incurred as a result of the customer’s breach of contract, including any and all additional expenses. In particular, we shall be entitled, without prejudice to any other rights we may have, to charge warehousing fees in the amount of 0.5 % per month, no more however than 5 %, of the price of the goods delayed. Furthermore, in the case of call-off orders, we shall be entitled, after twelve months have elapsed since confirmation of order, to set a deadline of one month for acceptance, whereafter we shall be entitled to invoice the goods or services not accepted, and to charge reasonable fees for warehousing and for holding such goods available, until such time as delivery is accepted.
5.5 Where circumstances as described in sub-clause (4) above exist, the risk of accidental loss or deterioration of the purchased goods shall pass to the customer at the time when the same fails to accept delivery or defaults on any other obligation under the contract.
5.6 We shall be liable in accordance with the relevant statutory provisions insofar as delay in delivery results from willful or grossly negligent breach of contract on our part; any fault of our representatives or agents shall be deemed our responsibility. In the event of grossly negligent breach of contract, our liability for damages shall be limited to foreseeable typical damage. This provision shall not involve any change in the burden of proof to the disadvantage of the customer.
5.7 Insofar as, under these provisions, we are responsible for any delay in delivery, our liability shall be limited to compensation in the amount of 0.5 % for every full week of delay, not exceeding, however, a total of 5% of the price of that part of the delivery which cannot be used as a result of our default.
5.8 At our request, the customer shall declare, within a reasonable period of time, whether he wishes to withdraw from the contract as a result of the delay in delivery, or whether he insists on delivery.
7.1 Unless otherwise stated in the order confirmation, delivery will be “ex works/warehouse”. Upon the customer’s request and expense, the goods will be shipped, at the customer’s risk, to a different place of destination. In such case the customer shall bear the cost of transport from the warehouse. Any customs duties, fees, taxes or other public charges shall be borne by the customer. The mode and route of transport will be chosen at our reasonable discretion.
7.2 Transport packaging as well as any other disposable packaging materials shall not be returned.
7.3 Small and punched parts will be delivered in bulk. Individual or special packaging will require a separate agreement.
7.4 If the customer so wishes, we will arrange transport insurance for the delivery; the cost of such insurance shall be borne by the customer.
7.5 In the case of deliveries to destinations outside Germany, the customer shall bear all costs of transport from the plant. This means that we will have performed the contract as soon as the goods have been handed over to the carrier – any and all further expenses and risks (customs, freight, loss, damage) will pass to the customer (EXW Clause in the International Commercial Terms – Incoterms 2010).
8.1 Our deliveries shall be deemed free of quality defects if having the agreed quality and properties at the transfer of risk. Agreed properties of the object of sale shall be those described in the product descriptions and specifications in our catalogues and price lists on the basis of the relevant standards (e.g. DIN, ISO). Any other or different properties or features than those expressly agreed for the goods to be delivered shall not be owed. Any warranty in respect of any special use or fitness for any particular purpose, duration of use or durability after the transfer of risk beyond the warranty regarding agreed properties will only be assumed to the extent that it has been expressly agreed in writing; otherwise the risk regarding the fitness and use of the products shall lie solely with the customer.
Customary variations in goods delivered from different production series shall not be regarded as defects. The same shall apply to generally acceptable variations in samples. Technical data, speciﬁcations and performance details in offers, contracts, attachments, commercial brochures and documentations, etc., merely characterise the properties of products and shall not constitute any guarantees unless they are so designated.
8.2 Defects must be notified immediately and in writing no later than within a period of 8 days. In the case of obvious defects, this period shall commence on delivery, and in the case of hidden defects as soon as the defect is discovered. If the customer fails to notify us, the delivery shall be deemed approved.
8.3 In the event of a defect in the goods sold, we shall be entitled to rectify the fault by, at our discretion, either eliminating the defect or making a delivery of new faultless goods. Where we choose to eliminate the defect, we shall bear all necessary expenses involved in eliminating the defect, in particular transport, travel, labour and material costs, to the extent that those costs will not be increased by that fact that the goods in question were transferred to a place different from the place of performance. We may decline to rectify the defect if this is to involve unreasonable or inappropriate costs. However, where a request by the customer
for rectification of a defect proves to be unjustified, we shall be entitled to claim eimbursement from the customer for the costs incurred by us as a consequence.
8.4 If rectification of the defect fails, the customer – notwithstanding any other rights he may have – shall be entitled, at his discretion, to either withdraw from the contract or claim a reduction in price.
8.5 No claims for warranty will be accepted in the event of only insignificant deviations from the agreed quality or from the agreed quantity to be delivered, only minor impairment of usability, natural wear and tear or damage caused after the passing of risk as a result of incorrect or neglectful treatment, excessive strain, unsuitable equipment, inappropriate and/or improper use, faulty assembly, disregard of maintenance and operating instructions, or damage resulting from special external influences not taken into consideration under this contract. Deviations of up to 10 % of the quantity delivered shall be deemed insignificant. Furthermore, no claims for warranty will be accepted in the event of improper changes to products made by the customer or any third party, nor for any consequences resulting therefrom.
8.6 In any case, we will make any rectification of defect or delivery of replacement goods dependent on whether a part of the agreed purchase price that is adequate in proportion to the significance of the defect has already been paid.
8.7 The customer shall support us in identifying and eliminating the defect, and he shall fully inform and consult us. The customer shall give us the opportunity to investigate the damage event.
8.8 We shall be liable in accordance with the relevant statutory provisions insofar as the customer will raise claims for damages based on intention or gross negligence, including intention or gross negligence on the part of our representatives or agents. Unless we are held liable for intentional violation of contract, our liability for damages shall be limited to foreseeable typical damage.
8.9 We shall be liable in accordance with the relevant statutory provisions insofar as we culpably violate an essential obligation under the contract; in this case, however, liability shall be limited to foreseeable typical damage unless we or our General Terms and Conditions of Sale (“Terms”) of Max Frank GmbH & Co.KG and Max Frank Pressig GmbH (“FRANK”) Rev: 01.01.2016 representatives or agents are guilty of intent or gross negligence.
8.10 Insofar as the customer is entitled to damages in lieu of performance, our liability for damages shall be limited to foreseeable typical damage.
8.11 Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
8.12 The foregoing provisions shall not involve any change in the burden of proof to the disadvantage of the customer.
8.13 Unless otherwise agreed, the period of limitation for warranty claims regarding goods which, according to their usual purpose, have been used in the construction of a building and have caused the defectiveness of the same, shall be 36 months as from the transfer of risk. The period of limitation in respect of other goods shall be 12 months. The period of limitation for recourse claims pursuant to Sections 478, 479 BGB shall remain unaffected. The statutory period of limitation in cases of injury to life, limb or health, intentional or grossly negligent violation of duty and fraudulent non-disclosure of a defect shall remain unaffected. Statutory provisions concerning the beginning, suspension, interruption and new commencement of periods of limitation shall not be affected by these provisions.
8.14 Recourse claims of the customer against us according to Section 478 BGB (recourse of the entrepreneur) shall only exist insofar as the customer has not made any arrangements with his buyer that exceed the statutory warranty claims. The foregoing provisions shall apply accordingly in respect of the extent of our liability for damages .
9.1 We shall be liable to the customer for violations of intellectual property rights in connection with the sale of our products insofar as, by using the goods in accordance with the contract, such intellectual property rights have been violated as are valid and have been published in the Federal Republic of Germany at the time we effected delivery, and we shall be liable as follows:
a) we will, at our discretion and expense, either obtain the right to use the product, or change the product in such a way that the intellectual property right in question will not be violated, or replace the product. If this is impossible for us on reasonable conditions, we shall take the product back and reimburse the purchase price.
b) The foregoing obligations shall only apply to us if the customer has informed us in writing and without delay of the claims raised against him by the third party affected, if he has not recognised any violation and leaves any and all measures of defence and negotiations for a settlement to us. In the event that the customer discontinues using the product in order to minimise damage, or for any other important reasons, he shall point out to the third party that by such discontinuation of use he does not recognise the existence of any violation of intellectual property rights.
9.2 Any claims by the customers shall be ruled out insofar as he is responsible for the violation of intellectual property rights. Furthermore, any claims by the customer shall be ruled out insofar as the violation of intellectual property rights has been caused by special instructions on the part of the customer, or by a mode of application that we could not foresee, or by the fact that the customer has changed the goods delivered or used them together with products not delivered by us.
10.1 Any liability for damages in excess of the limits set out in clauses 6, 8 and 9 above shall be ruled out – irrespective of the legal nature of any claims raised. This shall apply in particular in the event of damage claims due to culpa in contrahendo, or breach of other duties, or tortuous claims for compensation for damage to property pursuant to Section 823 BGB.
10.2 The limitation in sub-clause (1) shall also apply insofar as the customer, instead of a claim for damages, demands compensation for useless expenses instead of performance.
10.3 Insofar as our liability for damages is ruled out or limited, this shall also apply with respect to our employees’, representatives’ and agents’ personal liability for damages .
11.1 When supplying custom-made products, the cost of manufacturing appropriate tools will be charged on a pro-rata and one-time basis.
11.2 The tools will remain our property. We reserve, without limitation, all copyrights and intellectual property rights in respect of the tools.
11.3 If a custom-made product exhibits a defect in terms of clause 8 sub-clause 1 hereof, the customer shall be entitled to claim rectification. If the customer claims rectification, we may, at our discretion, eliminate the defect or manufacture a new tool. If rectification fails, the customer – notwithstanding any rights to damages – shall be entitled, at his discretion, to either withdraw from the contract or claim a reduction in price. Otherwise the provisions of clauses 8 to 10 hereof shall apply analogously in respect of defects and our liability.
12.1 We reserve the right of ownership of the goods until all amounts receivable arising from the current business relationship with the customer (including all current account balances due) have been settled in full. In the event that the value of goods, delivered under reservation of ownership, which serve as security for us, exceeds the total of our claims by more than 10 %, we shall, upon the customer’s request, release the security (on a pro rata basis).
12.2 In the event of any breach of contract by the customer, in particular in the case of default of payment, we shall be entitled, after setting a reasonable deadline, to retrieve our goods. Retrieval of goods by us shall represent our withdrawal from the contract. After retrieval, we shall be entitled to exploit the goods; the proceeds of such exploitation – less reasonable exploitation costs – shall be credited against the customer’s liabilities.
12.3 Prior to payment of the purchase price, the customer must not pledge the goods nor transfer ownership of them by way of security. In the event of any attachment or garnishment or any other encroachment by a third party, the customer shall immediately notify us thereof and make all information and documents available to us that will be needed to protect our interests. Our right of ownership shall be pointed out to executory officers and third parties. Insofar as the a third party is not in a position to reimburse the costs involved in legal proceedings under Section 771 of the German Code of Civil Procedure [ZPO], the customer shall be liable for any loss incurred by us.
12.4 The customer shall be entitled to resell the goods in the ordinary course of business;
however, he shall hereby assign to us all claims in the amount of the purchase price as agreed between us and the customer, inclusive of VAT, arising to him from such resale in respect of his buyers or any third parties, irrespective of whether the goods supplied are resold without or after having been processed.
Notwithstanding such assignment, the customer shall retain the right to collect such claims.
Our right to collect the claims ourselves shall not be affected hereby. However, we undertake not to collect any claims as long as the customer meets his payments and does not fall into arrears. In such case, however, we may demand that the customer shall disclose to us the claims assigned and the respective debtors, provide us with all the information and documents necessary for collection, and inform the debtor (third party) of such assignment.
12.5 Any processing or transformation of goods made by the customer shall be on our behalf. If goods supplied by us are processed together with other goods that do not belong to us, we shall acquire co-ownership of the new product in proportion of the value, at the time of processing, of the goods supplied by us to the other goods processed. Otherwise the same provisions shall apply in respect of the product resulting from processing as apply to goods supplied under reservation of title.
12.6 If goods supplied by us are inseparably mixed with other goods that do not belong to us, we shall acquire co-ownership of the new product in proportion of the value, at the time of mixing, of the goods supplied by us to the other goods mixed. If the goods are mixed in such a way that the part of the customer‘s goods is to be regarded as the main part, it shall be deemed agreed that the customer will transfer proportional co-ownership to us. The customer shall, on our behalf, preserve the rights to sole or co-ownership thus acquired.
12.7 The customer shall, as security for our claims against him, also assign to us any claims arising against a third party as a result of combining the goods supplied by us with a piece of real estate.
12.8 In the event that, at a place outside Germany where the goods are situated after collection or delivery, special provisions are required for the reservation of title or assignment to be effective, the customer shall immediately inform us of such requirements
and, at his own expense, take all measures necessary in that respect.
If, at a place where the goods are situated after delivery, reservation of title or any other of the aforementioned rights is no possible, the customer shall, at his own expense, take all measures necessary to obtain for us such security rights in respect of the goods delivered as are closest to the aforesaid rights or to provide at least equivalent security for our claims.
13.1 During the duration of the contract and for two years after its termination, the parties to the contract shall treat confidential all information and/or information materials marked as confidential or by their nature being deemed confidential that will become known to or obtained by them in connection with the contract, whether in verbal, written or any other form, directly or indirectly, and they shall use them for no other purpose than the performance of this contract, and they shall not without the other party’s consent disclose them to any third party nor make them available to any third party in any other way, and they shall take all reasonable precautions to prevent and avoid access to them by any third party.
13.2 This obligation of secrecy shall only exclude such information and information materials as are already generally known, i.e. readily available to any third party, at the time of being disclosed, or are rightfully made available, after becoming known, to one of the parties hereto by a third party that is not under any obligation to the other party to maintain secrecy with respect to such information, as well as information that has to be disclosed to an authority or other authorised third party upon their demand, or information required by the other party’s legal or tax advisors for performing their services.
13.3 We undertake not to offend against any data protection regulations in performing or in connection with the performance of this contract. We will oblige our employees to comply with the relevant data protection regulations, and we will oblige them to secrecy. In matters regarding sensitive data to be protected, we will consult with the customer’s data protection officer .
14.1 The place of jurisdiction shall in each case be our respective place of business; we shall, however, also be entitled to sue the customer in the court having jurisdiction at his place of residence.
14.2 The contract shall be subject to the laws of the Federal Republic of Germany. The provisions of the UN Convention on the International Sale of Goods shall not apply.
14.3 Unless otherwise specified in the order confirmation, our principal place of business shall be the place of performance.
14.4 Any changes or additions to this contract must be in writing.
This translation is provided for convenience only.
In the event of any discrepancy between the translated version and the German version, the German version shall prevail.