1. Scope of Application

1.1. The deliveries and services (hereinafter collectively "Deliveries") of Fischer Panda GmbH (hereinafter also "we", "our", etc.) are made exclusively on the basis of these General Terms and Conditions (hereinafter "Terms") and in accordance with the contract concluded between us and our customer (hereinafter “Customer”). These Terms apply exclusively; we do not recognize any general terms and conditions of the Customer that conflict with or deviate from these Terms, unless we have expressly agreed to their validity in writing. These Terms shall also apply if we carry out the Deliveries without reservation or accept payments in the knowledge that the Customer's terms and conditions conflict with or deviate from these Terms. The Customer's terms and conditions of business or purchase are hereby rejected.

1.2. These Terms apply to business transactions with Entrepreneurs and Consumers. A “Consumer” is a person who enters into a legal transaction with us for purposes that are predominantly neither commercial nor self-employed, Section 13 German Civil Code (BGB). An “Entrepreneur” is any natural or legal person or partnership with legal capacity who, when concluding the contract, is acting in the exercise of their commercial or independent professional activity, Section 14 BGB. Provisions that apply exclusively to Entrepreneurs are marked accordingly; provisions that apply exclusively to Consumers are also marked accordingly. All provisions not marked separately shall apply to both types of Customers.

1.3. In ongoing business relationships, these Terms also apply to all future contracts with Customers who are Entrepreneurs, without the need to refer to these Terms in each individual case.

2. Offer, Conclusion of Contract

2.1. Our pre-contractual communications (in particular contract offers, descriptions, and cost estimates) are always subject to change and non-binding, unless we expressly designate them as binding. Unless otherwise agreed, they refer to standard commercial quality. Agreements only become binding upon our order confirmation.

2.2. The Customer's order constitutes a binding offer, which we can accept within two weeks by sending an order confirmation or by delivering the goods.  Until the expiry of this period, the Customer's orders are irrevocable. Our declarations aimed at concluding contracts (in particular order confirmations) must be in text form. The requirement for written form does not affect any agreements concluded informally after the conclusion of the contract. We also remain entitled to bring about the conclusion of a contract by carrying out Deliveries without reservation or by invoicing Deliveries in whole or in part. Our silence does not constitute a basis for confidence in the conclusion of a contract.

2.3. If a letter of confirmation from the Customer deviates from our offer or our order confirmation, or extends or restricts it, the Customer shall highlight the changes as such; such deviations shall only become part of the contract if we accept them in writing.

2.4. Our sales representatives are not authorized to make verbal side agreements that go beyond the content of the written contract.

 

3. Suitability for Use, Documents, Intellectual Property

3.1. The documents belonging to the offer, such as illustrations, drawings, weight and dimension specifications, are only approximate unless they are expressly designated as binding in writing and the usability for the contractually agreed purpose does not require exact conformity. Technical information provided by us, in particular safety data sheets and information on the storage, handling, and disposal of our products, must be strictly observed by the Customer.

3.2. Unless expressly agreed otherwise, we reserve ownership and all our rights to all documents (in particular product descriptions, brochures, catalogs, price lists, illustrations, calculations, technical documents) that we have made available to the Customer. Unless otherwise agreed in writing, we retain the copyright to all documents.

3.3. The documents referred to in clause 3.2. may not be reproduced or made available to third parties without our written consent. If the Customer violates this provision, we may demand lump sum damages amounting to 5% of the net order value of the contract in question, unless the Customer is not responsible for the violation. In the event of particularly high damages, such as the disclosure of trade secrets to third parties, the possibility of claiming higher damages remains unaffected. The Customer is permitted to prove that we have incurred no damage or less damage than the lump sum.

3.4. A Customer must ensure that our product information (in particular product and application information) that we have made available to the Customer is passed on to the respective further recipients of our Deliveries. We will provide the Customer with the necessary documents for this purpose upon request, unless they have already been supplied.

3.5. If our Deliveries have been manufactured using know-how, inventions, patents, copyrights, or other property rights of which we are the owner or authorized user, the Customer shall only be granted rights of use to the extent necessary to achieve the purpose of the contract. All other rights of use and exploitation (in particular patent and copyrights) remain with us.

3.6. Samples, models, drawings, or data carriers provided by the Customer will only be returned at the Customer's request and expense. If an order is not placed and a request is not received in time, we are entitled to destroy the samples, models, or drawings provided one month after submitting our offer, without any claims for compensation arising from the destruction.

4. Prices

4.1. Unless expressly agreed otherwise, prices are quoted in euros. 

4.2. The purchase price offered is binding. For Consumers the value added tax is included at the applicable statutory rate.

4.3. If the Customer is an Entrepreneur the prices apply – unless otherwise agreed – on the basis of FCA (Incoterms 2020) delivery from our factory in Paderborn, including packaging costs but excluding value added tax at the applicable statutory rate.

4.4. The agreed purchase price is based on the costs of materials, energy, transport, and wages applicable at the time the contract is concluded. If there is a significant overall cost increase of more than 5% by the agreed delivery date – for example, due to unforeseeable developments on the procurement markets – we reserve the right to adjust the agreed prices at our reasonable discretion. However, this only applies if there are more than four months between the conclusion of the contract and the delivery date. The Customer will be informed of any price change in writing without delay. If the adjustment exceeds 10% of the originally agreed purchase price, the Customer has the right to withdraw from the contract within 14 days of receiving our notification. In this case, we will refund any payments already made without delay; further claims are excluded.

4.5. If design documents are produced on behalf of or at the request of the Customer, these will be invoiced separately. This also applies if no Deliveries are made. 

5. Payment Terms

5.1 Our purchase price claims are due within 30 calendar days after receipt of the invoice and delivery of the goods.

5.2 Notwithstanding this, we are entitled at any time, even within the framework of ongoing business relationships, to make Deliveries in whole or in part only against advance payment. We will make a corresponding reservation at the latest with the order confirmation.

5.3 The timeliness of payment shall be determined by the crediting of the invoice amount to our account specified in the offer and order confirmation.

5.4. For all individual Deliveries that have to be built according to Customer specifications, advance payments shall be regulated on a case-by-case basis.

5.5. If no advance payment has been agreed and, after conclusion of the contract, there are justified doubts about the Customer's solvency or creditworthiness – in particular due to a significant deterioration in their economic circumstances or objective information from third parties – we shall be entitled to make outstanding Deliveries or provide outstanding services only against advance payment or against the provision of appropriate securities. If the Customer does not comply with our corresponding request within a reasonable period, we are entitled to withdraw from the contract. Further statutory rights of withdrawal and refusal to perform shall remain unaffected by this.

5.6. If the Customer defaults on payment, we are entitled to charge default interest at the statutory rate. For Consumers, the default interest rate is five percentage points above the respective base interest rate (Section 288 para. 1 BGB). For Entrepreneurs, the default interest rate is nine percentage points above the base interest rate (Section 288 para. 2 BGB). In addition, we reserve the right to charge Entrepreneurs a lump-sum default fee of EUR 40 in accordance with Section 288 para. 5 BGB. The assertion of further damages caused by default remains unaffected in each case.

5.7. The Customer shall only be entitled to set-off rights if their counterclaims have been legally established or are undisputed or if the counterclaim arises from the same contractual relationship. 

6. Delivery, Delivery Dates

6.1. Delivery shall be made FCA (Incoterms 2020) from our factory in Paderborn, which is also the place of performance for the Deliveries. At the Customer's request and expense, the goods shall be shipped to another destination (mail order sales). Unless otherwise agreed, we shall be entitled in this case to determine the type of shipment (in particular the transport company, shipping route, packaging) ourselves.

6.2 As a matter of principle, we provide Deliveries in standard commercial packaging. Packaging that exceeds the transport purpose known to us or any other special protection, e.g. for long-term storage or warehousing of the goods, requires an express agreement.

6.3. We are entitled to make partial shipments, insofar as this is reasonable for the Customer. We shall bear the additional costs incurred as a result of the partial shipments. The Customer's right to withdraw from the entire contract in the event of remaining shipments not being made on time in breach of duty and through fault, if he has no interest in the partial performance already rendered, remains unaffected.

6.4. Our delivery dates or delivery periods are exclusively non-binding information, unless we have expressly agreed with the Customer that they are binding. As a rule, the delivery period is specified by us upon acceptance of the order and generally begins upon conclusion of the contract. The delivery period shall not commence before the Customer has provided the necessary documents, approvals, releases, and clarification of all technical questions and specifications, and before receipt of any down payment that may be due.

6.5. The delivery period shall be deemed to have been met when we have notified the Customer that the Deliveries are ready for collection. Insofar as acceptance is required, the acceptance date shall be decisive, except in the case of justified refusal of acceptance, or alternatively the notification of readiness for acceptance.

6.6. Our delivery obligation to Entrepreneurs is subject to the proviso that we ourselves receive proper and timely delivery from our own suppliers.

We are entitled to withdraw from the contract with Consumers if we have ordered the Deliveries from our suppliers in a proper and timely manner (congruent covering transaction) but, through no fault of our own, have not been supplied or have not been supplied on time and the Deliveries are therefore unavailable. In this case, we undertake to inform the Customer immediately of the unavailability and to reimburse any consideration already paid without delay.

6.7. For Deliveries that fall under the dangerous goods regulations (ADR, RID, IMDG, IATA), the Customer undertakes to observe all applicable regulations for the transport, handling, and storage of these Deliveries on their own responsibility. The Customer must ensure that third parties commissioned by it and any other recipients are also informed accordingly and that they comply with the relevant legal and safety-related provisions. Any official approvals, labels, or training certificates required for handling such Deliveries must be obtained or provided by the Customer at their own expense and responsibility. We accept no liability for violations of dangerous goods regulations by the Customer or third parties.

6.8. If the Customer is in default of acceptance, fails to cooperate, or our Deliveries are delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs), or to withdraw from the contract. After withdrawing from the contract, we shall be entitled to dispose of the Deliveries elsewhere.

7. Transfer of Risk, Acceptance

7.1. The risk of accidental loss and accidental deterioration of the Deliveries shall pass to the Customer at the latest upon handover.

The following applies to mail order sales: 

a) If the Customer is an Entrepreneur, the risk of accidental loss and accidental deterioration of the Deliveries shall pass to the Customer as soon as the Deliveries have been handed over to the person or institution designated to carry out the shipment. This shall also apply if we bear the shipping costs or carry out the shipment ourselves.

b) If the Customer is a Consumer, the risk shall only pass to the Consumer or a recipient designated by the Consumer upon handover of the Deliveries.

7.2. In the event of default of acceptance by the Customer, the risk of accidental loss and accidental deterioration of our Deliveries shall pass to the Customer at the time of default of acceptance.

8. Delay in Delivery

8.1. In the event of a delay in delivery on our part, our liability shall be limited as follows: The Customer's claim for damages due to delay shall be limited to 0.5% of the net price of the delayed Deliveries for each full week of delay, up to a maximum of 5% of the net price of the delayed Deliveries. This limitation shall not apply in the event of liability due to intent or gross negligence or in the event of injury to life, limb, or health.

8.2. In accordance with the statutory provisions, the Customer may only withdraw from the contract due to delays in delivery if we are responsible for the delay or if it is no longer reasonable for the Customer to adhere to the contract due to the delay. Statutory rights of termination and withdrawal remain unaffected by this.

8.3. At our request, the Customer must declare within a reasonable period of time whether they wish to withdraw from the contract due to the delay in Deliveries or continue to insist on the Deliveries.

9. Reserved Goods

9.1. If the Customer is a Consumer, we reserve title to the Deliveries until the purchase price has been paid in full.

9.2. Section 9.2. and its sub-sections apply only to Customers who are Entrepreneurs.

9.2.1. We reserve title to the Deliveries (hereinafter "Reserved Goods") until all our current and future claims arising from the purchase contract and the ongoing business relationship (secured claims) have been paid in full.

9.2.2. The Customer is obliged to cooperate in measures necessary to protect our retention of title; in particular, by concluding the contract, the Customer authorizes us to make any necessary entries or notes of our retention of title in public registers at the Customer's expense and to fulfill all other formalities necessary under the applicable property law. If the legal system applicable at the place of performance does not recognize our retention of title, the Customer undertakes to cooperate in establishing a comparable security interest in the Reserved Goods.

9.2.3. The processing or transformation of the Reserved Goods by the Customer shall always be carried out free of charge for us as the manufacturer within the meaning of Section 950 BGB. The Customer shall store the new item for us with the care of a prudent businessman. It shall be deemed to be Reserved Goods. If the Customer processes, combines, or mixes the Reserved Goods with other items, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the Reserved Goods to the invoice value of the other goods used. If our retention of title expires due to combination or mixing, the Customer hereby transfers to us the ownership rights to which he is entitled in the new stock or the new item to the extent of the invoice value of the Reserved Goods and shall store them for us free of charge. Our (co-) ownership rights arising hereunder shall be deemed Reserved Goods.

9.2.4. The Customer is obliged to store the Reserved Goods separately from other goods belonging to the Customer or third parties, to mark them as our property, to treat them with care, to maintain them at his own expense for the duration of the retention of title, and to insure them at their replacement value in our favor against theft, breakage, fire, water, and other risks. The Customer shall carry out any necessary maintenance and inspection work on the Reserved Goods at their own expense and risk. The Customer hereby assigns to us all claims for compensation arising from these insurance policies as a precautionary measure.

9.2.5. The Customer may only resell the Reserved Goods in the ordinary course of business. He is not entitled to dispose the Reserved Goods in any other way, in particular by pledging them or transferring them as security. As a precaution, the Customer hereby assigns to us all claims arising from the resale of the Reserved Goods. The Customer is hereby authorized to collect the claim. If the Reserved Goods are sold by the Customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the respective Reserved Goods sold. If the claim arising from the resale by the Customer is included in a current account relationship with his Customer, the recognized balance, which is assigned in the amount of the resale value of the Reserved Goods sold in each case, shall replace the current account claim after it has been settled. In the event of the sale of goods in which we have co-ownership shares in accordance with Section 9.2.3., the assignment of the claim shall apply in the amount of the corresponding resale value of these co-ownership shares.

9.2.6. We shall be entitled to revoke the authorization to sell the Reserved Goods and the collection authorization if the Customer defaults on payment or disposes of the Reserved Goods outside the ordinary course of business, or if, after conclusion of the contract, a significant deterioration in the Customer's financial circumstances becomes apparent which jeopardizes a claim on our part. In the event of a suspension of payments by the Customer or an application to open insolvency proceedings against the Customer's assets, the authorizations to sell Reserved Goods and the collection authorization shall automatically lapse. In this case, we shall also be entitled, without prejudice to other claims, to prohibit the processing, combination, or mixing of the goods subject to retention of title. In addition, as in the case of a revocation of the collection authorization, we shall be entitled to demand that the Customer immediately notify us of the assigned claims and name the debtors, provide all information necessary to assert the claims, hand over the relevant documents, and inform the debtors of the assignment.

9.2.7. After revocation or lapse of the authorization to collect claims, incoming assigned outstanding amounts must be immediately accumulated by the Customer in a special account, whereby the payments must be clearly assignable to us.

9.2.8. If the Reserved Goods are used by the Customer to fulfill a contract for work or services, the Customer's claim from the contract for work or services shall be assigned to us to the same extent as specified in Sections 9.2.3. and 9.2.5.

9.3. In the event of seizures, confiscations, or other dispositions or interventions by third parties, the Customer must indicate our ownership and notify us immediately.

9.4. Withdrawal from the contract is not necessary to assert the retention of title. If we assert our rights of retention of title, this shall only be deemed a withdrawal from the contract if we expressly declare this. Any return of goods shall always be for security reasons only; this alone does not constitute a withdrawal from the contract. The Customer's right to possess the Reserved Goods shall expire if we demand the Reserved Goods due to default in payment. The Customer hereby authorizes us to enter its premises for this purpose, to take back the Reserved Goods and to sell them on the open market to offset the outstanding claim, less any costs incurred.

9.5. If the value of the security interests to which we are entitled exceeds the amount of the secured claims by more than 10%, we shall, at the Customer's request, release a corresponding part of the security interests at our discretion.

 

 

10. Liability for Defects

10.1. The following applies to Entrepreneurs: If the Customer is a merchant, they shall notify us in writing of any obvious defects in the delivered goods without undue delay, at the latest within eight days of delivery, otherwise the goods shall be deemed to have been approved. Hidden defects must be reported in writing without undue delay, at the latest within eight days of their discovery, otherwise the goods shall be deemed to have been approved.

10.2. If the Customer is a Consumer, the statutory liability rights for defects apply to all goods, with the exception of claims for damages and reimbursement of expenses. When the Consumer is entitled to claims for damages and reimbursement of expenses is governed by Section 11. The statute of limitations is regulated in detail in Section 10 No. 6.

10.3. The following applies to Entrepreneurs: If the goods are defective at the time of transfer of risk, subsequent performance shall be provided by remedying the defect (repair) or by delivering goods free of defects (replacement delivery). We shall choose the method of subsequent performance (repair or replacement). If the subsequent performance fails, the Customer shall have the right, at their discretion, to withdraw from the contract or to reduce the price. Section 11 applies to claims for damages and reimbursement of expenses. The statute of limitations is regulated in detail in Section 10 para. 6.

10.4. The place of performance for subsequent performance is our registered office.

10.5. If, after inspection of the goods, the Customer's request for subsequent performance proves to be unjustified, we may, without prejudice to other rights, charge any costs for shipping the goods to us and returning them to the Customer, as well as costs for inspecting the goods, if the Customer recognized or negligently failed to recognize that their request for subsequent performance was unfounded.

10.6. Claims by the Customer for defects shall become time-barred within one year of delivery. This shall not apply 

a) in the case of Section 438 para. 1 No. 1 BGB (rights in rem of third parties entitling them to surrender the item);

b) for claims for damages based on intent or gross negligence, for injury to life, limb, or health, or for liability under the Product Liability Act (ProdHaftG);

c) insofar as the Customer is a Consumer: for claims for subsequent performance, withdrawal, or reduction;

d) if the Customer is an Entrepreneur: in the case of Sections 478, 479 BGB (seller’s recourse).

In the aforementioned cases, the Customer's claims for defects shall become time-barred within the statutory limitation period. 

11. Compensation for Damages and Expenses

11.1. Claims by the Customer for reimbursement of expenses and damages, regardless of the legal basis, are excluded.

11.2. The above limitation of liability under Section 11.1 of these Terms shall not apply:

a) to claims for reimbursement of expenses by an Entrepreneur pursuant to Section 327u para. 1 BGB or Section 445a para. 1 BGB;

b) to claims for reimbursement of expenses pursuant to Section 439 para. 2 and 3 BGB;

c) in the case of liability under the Product Liability Act (ProdHaftG);

d) in the event of the assumption of a guarantee or a procurement risk;

e) in cases of intent or gross negligence;

f) in the event of culpable injury to life, limb, or health;

g) in the event of liability based on data protection claims;

h) in the event of culpable breach of essential contractual obligations, i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance you can regularly rely. However, our liability for breach of essential contractual obligations is limited to compensation for foreseeable damage typical for this type of contract, unless there is intent or gross negligence or we are liable for injury to life, limb, or health or under the Product Liability Act.

11.3. Insofar as our liability is limited in accordance with Section 11.1 of these Terms, this also applies to the personal liability of our employees, auxiliary persons, and legal representatives.

11.4. The above provisions do not imply a change in the burden of proof to the detriment of the Customer.

11.5. Liability for delay is governed by Section 8.

12. Force Majeure

12.1. If the performance of a contract is impeded by force majeure (hereinafter "Force Majeure"), i.e., circumstances for which a party to the contract is not responsible and which could not have been foreseen at the time of conclusion of the contract despite exercising reasonable care, in particular due to partial or general mobilization, war, civil war, acts or conditions of war or war-like acts, imminent threat of war, state interventions or controls within the framework of a war economy, currency and trade policy measures or other sovereign measures, arbitrary acts by authorities or politicians, riots, terrorism, natural disasters, accidents, labor disputes, epidemics, pandemics, significant operational disruptions (e.g., fire, machine breakdown, shortage of raw materials or energy), significant traffic disruptions or other unusual delays in transport, each of which is not of short duration, the contractual obligations of the parties shall be suspended and the deadlines and dates scheduled for the execution of Deliveries shall be extended accordingly, regardless of whether these circumstances occur at our premises, at a supplier's premises or at a subcontractor's premises.

12.2. Force Majeure must be reported to the other party without undue delay. In such a case, the parties shall negotiate an appropriate adjustment to the contract (also taking into account the commercial content). If such an adjustment to the contract cannot be achieved, both parties shall have the right to withdraw from or terminate the contract, but no earlier than three (3) months after the onset of the Force Majeure event. Statutory rights of withdrawal and termination or those regulated in these Terms shall remain unaffected.

13. Liquidated Damages

If the Customer withdraws from a contract without justification, we are entitled, without prejudice to the assertion of any actual higher damages, to claim 10% of the gross order value for the costs incurred in processing the contract and the loss of profit as liquidated damages. The Customer reserves the right to prove that we have incurred less damage or no damage at all.

14. Indemnification

If the Customer does not forward our product information in accordance with Section 3.4 to the respective further recipients of our products and our products cause damage to these recipients that could have been avoided if our product information had been known and observed, the Customer shall indemnify us against all third-party claims in connection with such damage or reimburse us for any compensation payments already made by us, unless the Customer is not responsible for this. Any further liability on the part of the Customer remains unaffected by this.

15. Confidentiality

15.1. The Customer is obliged to treat all information, in particular know-how and trade secrets, which it obtains from us and which is marked as confidential or which is clearly confidential under the circumstances (hereinafter"Confidential Information"), regardless of whether it has been communicated in written, electronic, embodied or oral form. In particular, the Customer is not authorized to disclose or make the Confidential Information available to third parties without our prior consent. The Confidential Information may only be used for the purposes of the contract. The Customer shall impose a corresponding confidentiality obligation on its employees and other persons who have access to the Confidential Information in connection with the performance of the contract.

15.2. Information is exempt from the obligation in Section 15.1 if

a) was already known to the Customer at the time of conclusion of the contract or subsequently becomes known from third parties without violating any confidentiality agreement, legal regulations or official orders,

b) is already generally known at the time of conclusion of the contract or becomes generally known at a later date, provided that this is not due to a breach of this contract,

c) was independently developed by the Customer without access to our confidential information, or

d) they must be disclosed due to legal obligations or by order of a court or authority. 

15.3. The obligations under this Section 15 shall remain in force for a period of five years after the termination of the contract or business relationship, regardless of how the contract or business relationship is terminated.

16. Export Control

16.1. Our performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international foreign trade regulations, embargoes, and/or other sanctions.

16.2. When selling and passing on the Deliveries made by us to third parties in Germany and abroad, the Customer must comply with the applicable provisions of national and international (re-) export control law. Sale/transfer (direct or indirect) to or for use in countries/regions subject to an embargo under the applicable provisions of (re-)export control law (in particular Germany, the EU, and/or the U.S.) is not permitted unless we have given our prior written consent.

16.3. If required for export control checks, the Customer shall, upon request, immediately provide us with all information about the end recipient, end use, and intended use of the Deliveries made by us, as well as any relevant export control restrictions.

16.4. If the export of the goods is subject to a statutory or official approval requirement at the time of delivery/performance and such an export license is not granted upon application, we shall be entitled to terminate the contract or the accepted order without any liability on our part.

16.5. We shall also be entitled to cancel accepted orders if a trade ban exists at the time of delivery or if there is a product registration requirement and the registration has not been applied for or granted at the time of delivery/performance.

16.6. The Customer shall indemnify us in full against all claims asserted against us by authorities or other third parties due to the Customer's failure to comply with the above export control obligations and undertakes to compensate us for all damages and expenses incurred by us in this connection, unless the Customer is not responsible for the breach of duty. This does not imply a reversal of the burden of proof.

16.7 If the Customer violates the obligations set forth in this Section 16, we shall have the right to either withdraw from the contract or terminate it. Statutory termination rights remain unaffected by this.

17. Right of Withdrawal

17.1. The following applies to Consumers: When concluding a distance selling transaction, you generally have a statutory right of withdrawal, unless the goods are not prefabricated and their manufacture is based on an individual selection or determination by the Consumer or are clearly tailored to the Consumer's personal needs.

17.2. The following cancellation policy applies to Consumers: 

Right of Withdrawal You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period is 14 days from the day on which you or a third party named by you, who is not the carrier, took possession of the goods. In the case of a contract for several goods that you have ordered as part of a single order and that are delivered separately, the withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, took possession of the last goods. In the case of a contract for the delivery of goods in multiple partial shipments or pieces, the withdrawal period is 14 days from the day on which you or a third party designated by you, who is not the carrier, took possession of the last partial shipment or the last piece. To exercise your right of withdrawal, you must inform us, Fischer Panda GmbH, Otto-Hahn-Str. 40, 33104 Paderborn, Germany, phone number: +49 5254 9202-0, email address: info@fischerpanda.de, of your decision to withdraw from this contract by means of a clear statement (e.g., a letter sent by post, fax, or email). You can use the attached sample withdrawal form for this purpose, but this is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising your right of withdrawal before the withdrawal period expires.  Consequences of Withdrawal If you withdraw from this contract, we shall reimburse you for all payments we have received from you, including delivery costs (with the exception of additional costs resulting from your choice of a type of delivery other than the cheapest standard delivery offered by us), without undue delay and at the latest within 14 days of the day on which we receive notification of your withdrawal from this contract. We will use the same means of payment for this refund as you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged for this refund. We may refuse to refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier. You must return or hand over the goods to us immediately and in any case no later than 14 days from the day on which you notify us of the cancellation of this contract. The deadline is met if you send the goods before the expiry of the 14 period. You bear the direct costs of returning the goods. You will not incur any further costs. You shall only be liable for any loss in value of the goods if this loss in value is attributable to handling of the goods that is not necessary for testing their condition, properties, and functionality.

 

17.3. The following model withdrawal form applies to Consumers: 

Sample Withdrawal Form If you wish to withdraw from the contract, please fill out this form and send it to Fischer Panda GmbH, Otto-Hahn-Str. 40, 33104 Paderborn, Germany (info@fischerpanda.de). I/we (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*): Ordered on (*)/received on (*)--------------------------------------------------------------------------------------------- Name of consumer(s) -------------------------------------------------------------------------------------------- Adress of consumer(s)------------------------------------------------------------------------------------------ Signature of Consumer(s) (only for paper notifications) ---------------------------------------------------- Date ---------------------------------------------------------------------------------------------------------------------- (*) Delete as appropiate.

 

18. General Provisions

18.1. The parties process personal data exclusively for the fulfillment of contractual obligations in compliance with the applicable data protection regulations. Our privacy policy can be found here: https://www.fischerpanda.de/en/fischer-panda-gmbh/data-protection-policy.

18.2. Legally relevant declarations and notifications made to us by the Customer after conclusion of the contract (e.g., setting of deadlines, reminders, declarations of withdrawal) must be made in writing. Insofar as these Terms refer to a written form requirement, the text form within the meaning of Section 126b BGB (permanent data carriers such as fax, email, letter) shall suffice. 

18.3. The assignment of claims by the Customer arising from the contractual relationship is excluded without our prior written consent. This does not apply to monetary claims if the Customer is a Consumer or if there is an overriding interest in the assignment. In commercial business transactions, Section 354a HGB (German Commercial Code) remains unaffected.

18.4. In the event of the invalidity of individual provisions of the contract, including these Terms, the remaining provisions shall remain valid.

18.5. Amendments and supplements to this contract must be made in writing to be effective. This also applies to the waiver of this written form requirement.

19. Applicable Law, Arbitration/Place of Jurisdiction

19.1. These Terms and the contractual relationship between us and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

19.2 The following applies to Entrepreneurs: If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, all disputes arising out of or in connection with the contractual relationship between us and its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Paderborn, Germany. The language of the arbitration shall be English.

19.3 For a Consumer, the exclusive place of jurisdiction is Paderborn, Germany, if the Consumer moves their place of residence or habitual abode outside Germany or if their place of residence or habitual abode is unknown at the time the action is brought.

 

*****

Fischer Panda GmbH 

Otto-Hahn-Str. 40 

33104 Paderborn

Germany

 

Tel: +49 (0) 5254-9202-0

  Fax: +49 (0) 5254-9202-550

 

Email: info(at)fischerpanda.de

Web: www.fischerpanda.de

1. Scope of Application

1.1. These General Terms and Conditions of Purchase (hereinafter "Terms") apply to all deliveries and services, including ancillary services (hereinafter collectively "Deliveries") to Fischer Panda GmbH (hereinafter referred to as "we", "our" etc.). They apply exclusively to business transactions with entrepreneurs within the meaning of Section 14 German Civil Code (BGB), legal entities under public law or special funds under public law (hereinafter "Supplier").

1.2. Our orders are placed exclusively in accordance with these Terms and in accordance with the contract concluded between us and the Supplier.

These Terms apply exclusively; we do not acknowledge any general terms and conditions of the Supplier that conflict with or deviate from these Terms, unless we have expressly agreed to their validity in writing. These Terms also apply if we accept Deliveries without reservation or make payments without reservation in the knowledge that the Suppliers terms and conditions conflict with or deviate from these Terms.

1.3. In ongoing business relationships, these Terms shall also apply to all future contracts with the Supplier without the need to refer to these Terms in each individual case.

2. Conclusion of Contract

2.1. Orders and related agreements are only legally binding if they are made in writing. Verbal or telephone statements made by us before or at the time of conclusion of the contract are not binding and require written confirmation to be effective. This formal requirement does not affect any informal agreements made after conclusion of the contract. However, we remain entitled to bring about the conclusion of a contract by accepting Deliveries without reservation or making payments.

2.2. We shall be bound by our orders for a period of two weeks after their receipt by the Supplier. The date of receipt of the declaration of acceptance (order confirmation) by us shall be decisive for the timely acceptance of the order.

2.3. If the content of your order confirmation deviates from our order, you must specifically highlight this in the order confirmation; such deviations shall only become part of the contract if we accept them in writing.

2.4. Offers made by the Supplier must be free of charge for us. We can accept an offer made by the Supplier within two weeks of its submission. The Supplier is bound by its offer until the expiry of this period. Our silence does not constitute a basis for confidence in the conclusion of a contract. If our acceptance of an offer is received late by the Supplier, the Supplier shall inform us of this immediately.

2.5. We reserve all property rights, copyrights, and other intellectual property rights (patents, utility models, trademarks, license rights, etc.) to illustrations, drawings, calculations, samples, models, and other documents; they may not be disclosed or made accessible to third parties without our prior written consent. They are to be used exclusively for the purpose specified in the order and returned to us upon request after the order has been processed.

2.6. The content of the services to be provided by the Supplier is specified in the respective individual order. Documents, reports, ideas, drafts, models, samples, and all other results arising from the provision of services are part of the order performance. They become part of the contract unless the contractor expressly specifies otherwise in the order confirmation corresponding to the order; Section 2.2 applies accordingly.

3. Prices and Terms of Payment

3.1. Unless otherwise expressly agreed, the price stated in our order for the Deliveries is a fixed price (which is independent of the delivery date) and applies DDP (INCOTERMS 2020) to the destination specified in the order. The fixed price includes packaging, shipping, and insurance costs. We will only bear additional costs for special shipping methods (e.g., express delivery) if we have expressly requested this shipping method in advance.

3.2. Unless otherwise expressly agreed, all our payment obligations are deemed to be agreed in EUR. Any bank charges incurred for payments to be made abroad shall be borne by the Supplier.

3.3. Invoices must comply with legal requirements. The Supplier's invoices must be issued in duplicate and must include our name and the date of the order in addition to the complete order number. We may return invoices that do not meet these requirements. The Supplier shall bear the costs incurred as a result of the missing information, unless the Supplier is not responsible for the missing information.

3.4. Payment of the invoice amounts shall be made within the periods specified in our order. If no periods are specified, payment shall be made within 14 days less a 3% discount or within 30 days net. Payment periods shall commence on the date of receipt of a verifiable invoice, but not before we have received the Deliveries.

3.5. We are entitled to rights of set-off and retention to the full extent permitted by law.

4. Delivery, Transfer of Risk, Shipping, Packaging

4.1. The Supplier's Deliveries shall be made DDP (INCOTERMS 2020) to the destination specified in our order, unless expressly agreed otherwise.

4.2. Each order must be delivered in a separately packaged shipment. This shall not apply if we expressly agree to jointly packaged shipments. We may determine the packaging and shipping methods. Otherwise, the Supplier is obliged to choose the standard packaging and shipping method. The packaging must be appropriate for the means of transport used and the goods to be transported and must prevent any kind of damage that could affect the goods during transport and handling.

4.3. Unless expressly agreed otherwise, the costs of shipping shall be borne by the Supplier, as shall the costs of transport insurance. If packaging material is charged for and is to be returned at the Supplier's request, a full credit note must be issued; in this case, the return shipment shall be made carriage forward at the Supplier's expense.

4.4. Each Delivery must be accompanied by delivery documents stating the order date and order number, the name of the purchaser, and the type, nature, and quantity of the goods. The delivery documents must be given to the carrier or parcel service or attached to the Deliveries in a clearly visible and easily accessible manner. The Supplier shall bear the costs incurred as a result of the missing information, unless he is not responsible for the missing information. In addition, our payment period shall be extended by the period of the delay. Deliveries must be made during our normal business hours.

4.5. Partial Deliveries are only permitted with our express prior written consent. If partial Deliveries or partial services have been agreed, the delivery note and invoice must be marked "partial delivery” or “partial service". In the case of unauthorized partial Deliveries, our payment obligation shall initially lapse in accordance with the partial quantity delivered (defense of non-performance of the contract).

4.6. Agreed delivery dates are binding. They are only deemed to have been met if the Deliveries have arrived at the shipping address specified in our order on the agreed delivery date. If our order does not specify a delivery date, the delivery period shall be two (2) weeks from the date of our order, unless otherwise agreed. After conclusion of the contract, delivery periods may only be extended and delivery dates postponed by the Supplier if we expressly agree to such an extension or postponement.

4.7. The Supplier must notify us immediately in writing, stating the reasons and the expected duration, if circumstances become apparent which indicate that it will not be able to meet the agreed delivery date. The obligation to comply with the agreed delivery dates remains unaffected by this.

4.8. If the agreed delivery date is not met, we are entitled to our statutory rights without restriction. If the Supplier is in default of delivery, we are entitled – without prejudice to other rights due to default – to claim a contractual penalty of 0.5% of the price agreed with the Supplier (excl. VAT) for each week of default commenced, but not exceeding 5% of this price (excluding VAT), unless the Supplier is not responsible for the circumstances leading to the delay in delivery. We expressly reserve the right to assert any further claims for damages due to the delay in delivery. However, contractual penalties already paid shall be offset against claims for damages due to the delay in delivery. We may also claim the contractual penalty if no reservation is made upon acceptance of the Deliveries; however, beyond the final payment, this shall only apply if we have reserved the right to do so at the time of the final payment.

4.9. The Supplier must package, label, and ship hazardous products in accordance with the relevant national and international regulations. The Supplier shall fulfill all obligations incumbent on Suppliers (within the meaning of Art. 3 No. 32 of Regulation (EC) No. 1907/2006; hereinafter “REACH Regulation”), the obligations arising under the REACH Regulation with regard to the delivery of the goods. In particular, in all cases prescribed under Art. 31 (1) to (3) of the REACH Regulation, the Supplier shall provide us with a safety data sheet pursuant to Art. 31 of the REACH Regulation in the language of the recipient country.

4.10. If standardized, exchangeable reusable (pool) pallets (e.g., Euro flat pallets, Euro box pallets) are used for Deliveries, the rules of the Bonn Pallet Exchange shall apply as agreed, unless otherwise specified in individual cases.

4.11. The Supplier shall only be entitled to set-off and retention rights if claims against us are undisputed or have been legally established or if the counterclaim is in a synallagmatic relationship to our claim.

5. Customs and Export Control

The Supplier must comply with all requirements of the applicable customs and foreign trade law and independently inform us of any licensing requirements and relevant export-related information (such as export list number, ECCN/EAR99, country of origin, HS code). If there is suspicion of violations of export control regulations, the Supplier is obliged to notify us immediately in writing; in such cases, we are entitled to suspend performance of the contract or to withdraw from the contract. In addition, depending on its place of business, the Supplier must provide appropriate proofs of origin (e.g., long-term Supplier's declaration, certificate of origin) and ensure the security of the supply chain. Finally, the Supplier must indemnify us against all damages resulting from a breach of these obligations, insofar as it is responsible for such breach.

6. Subcontractors/Assignment of Claims

6.1. The Supplier is not entitled to have Deliveries carried out by subcontractors without our prior written consent. External transport personnel shall not be considered as subcontractors. The Supplier is liable for the fault of its subcontractors as for its own fault.

6.2. Any assignment of the Supplier's claims arising from this contract is only permitted with our prior express written consent. This does not apply to monetary claims.

7. Retention of Title

The transfer of ownership of the Deliveries to us must take place unconditionally and regardless of payment of the price. However, if, in individual cases, we accept an offer of transfer of ownership from the Supplier conditional upon payment of the purchase price, the Supplier's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorized to resell the goods even before payment of the purchase price, with advance assignment of the resulting claim (alternatively, simple retention of title extended to resale applies). This excludes all other forms of retention of title, in particular extended retention of title, transferred retention of title, and retention of title extended to further processing.

8. Provided Materials

8.1. Goods, tools, devices, measuring equipment, test specifications, documents, samples, drawings, models, data and records on data carriers and similar items (hereinafter "Provided Materials") provided by us remain our property.

8.2. Our Provided Materials shall be kept separate from other materials by the Supplier, marked as our property and stored for us free of charge with the care of a prudent businessman until we request their return. Our Provided Materials may not be reproduced or made accessible to third parties. The Supplier is prohibited from using the Provided Materials for purposes other than those specified in the contract, including for its own purposes.

8.3. The Supplier shall bear the risks of accidental loss, misplacement, deterioration, or damage to our Provided Materials. If our Provided Materials are sent directly from a third party to the Supplier on our behalf, the Supplier is obliged to carry out a quantitative incoming inspection and a quality control check. The Supplier must immediately notify both the third party and us of any complaints. Our Provided Materials may only be used for their intended purpose; they must be stored, labeled, and kept separately free of charge.

8.4. The Supplier is obliged to insure our Provided Materials against fire, water, theft, breakage, and other damage at its own expense and to provide us with proof of this upon request. We are already authorized by the Supplier to assert claims against the insurer under these insurance policies in relation to our Provided Materials. 

8.5. If our Provided Materials are seized, stolen, or damaged, or if our property is otherwise interfered with, the Supplier shall notify us immediately in writing.

8.6. Provided Materials are manufactured in whole or in part at our expense or if our Provided materials are processed by the Supplier, the manufacture or processing shall be carried out on our behalf as manufacturer within the meaning of Section 950 BGB, with the result that we shall acquire (co-)ownership of the newly manufactured item without this imposing any obligations on us. The extent of our co-ownership shall be determined by the ratio of the value of our Provided Materials to the value of the remaining goods. The transfer shall be replaced by the Supplier being entitled to possess and store the item for us free of charge for the duration of the business relationship. If our ownership of the Provided Materials expires due to combination or mixing, the Supplier hereby transfers to us the ownership rights to which he is entitled in the new item to the extent of the value of our Provided Materials and shall store these for us free of charge.

8.7. The above obligations shall continue to apply even after the contract has been fulfilled. The seller shall be liable for damages resulting from the breach of the above obligations.

9. Property Rights

9.1. The Supplier guarantees that, when used in accordance with the contract in the Federal Republic of Germany and in the countries to which we ship the Deliveries as intended, no industrial property rights, copyrights, or property right applications of third parties (hereinafter "Property Rights") will be infringed.

9.2. If Deliveries infringe the Property Rights of third parties, the Supplier shall, at our discretion and at its own expense, either immediately obtain a right of use in our favor, which enables us to use the respective Deliveries to the extent provided for in the contract without infringing Property Rights, modify the Deliveries so that the property right is not infringed, or replace the Deliveries with new, equivalent Deliveries. Deliveries shall only be considered equivalent if they do not restrict the agreed usability of our Deliveries or only restrict it to an insignificant extent.

9.3. Upon written request, the Supplier shall indemnify us against all claims by third parties arising from the infringement of such Property Rights and all expenses necessarily incurred in connection with the claims by third parties. Likewise, the Supplier shall compensate us for expenses incurred by us in defending against claims by third parties in relation to the Deliveries, to the extent necessary. If we are obliged to carry out a product recall due to defective Deliveries by the Supplier, the Supplier shall reimburse us for the costs of the product recall, unless he is not responsible for the defective Deliveries. We shall inform the Supplier of the content and scope of the recall measures, as far as possible and reasonable. Our further legal rights remain unaffected.

9.4. Sections 9.1. to 9.3. shall not apply if the Supplier has manufactured the Deliveries in accordance with drawings, models or other descriptions or specifications provided by us and the Supplier could not have recognized that the products manufactured by it would infringe any Property Rights.

9.5. We are the sole owner of all Property Rights to any work results resulting from the use of the Deliveries (hereinafter "Work Results"). In this respect, the Supplier undertakes to transfer any Property Rights to Work Results to which he may be entitled to us without separate remuneration immediately after becoming aware of them. If the transfer of Property Rights to Work Results is not possible due to mandatory legal provisions, the Supplier undertakes to grant us all rights of use and exploitation in an exclusive, content-wise, spatially and temporally unrestricted, irrevocable, unconditional, wholly or partially transferable and sublicensable manner.

9.6. The contracting parties mutually undertake to inform each other immediately upon becoming aware of risks of infringement and alleged infringement of Property Rights in order to counteract corresponding liability claims.

10. Warranty and Obligation to give Notice of Defects

10.1. The Supplier warrants that the Deliveries comply in every respect with the subjective, objective, and assembly requirements, in particular with the contractually agreed quality and the generally recognized rules of technology and the relevant safety regulations (e.g., Equipment Safety Act, Product Liability Act, Accident Prevention Regulations, Chemicals Act, Hazardous Substances Ordinance), in particular foreign or EU Regulations, insofar as these could be of significance to the Supplier according to the content of the contract. The Supplier shall perform its services with the utmost care, in particular in compliance with DIN and ISO certification regulations, insofar as these relate to the Deliveries, and taking into account its own knowledge and experience or that gained during the performance of the services. All descriptions of characteristics, in particular the type, quantity, quality, functionality, compatibility, and intercompatibility, shall be deemed to be the agreed quality.

10.2. The statutory obligations to inspect and give notice of defects (Section 377 German Commercial Code/HGB) apply with the proviso that we are only required to inspect the Deliveries under the purchase contract on a random sample basis after delivery with regard to quantity, type, externally visible defects (e.g., transport damage), and other obvious defects. We may report obvious defects without undue delay, but at least up to five (5) days after delivery, and hidden defects without undue delay, but at least up to ten (10) days after their discovery. If acceptance has been agreed, we shall have no obligations to inspect and give notice of defects prior to acceptance. We shall have no further obligations to inspect and give notice of defects beyond those set out above.

10.3. In the event of defects in the Deliveries, we shall be entitled to statutory rights in respect of defects without restriction. As subsequent performance, we may – without prejudice to our further rights in respect of defects – demand, at our discretion, the removal of defects or a replacement delivery or manufacture.

10.4. If the Supplier fails to fulfill its obligation to provide subsequent performance within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Supplier for the necessary expenses or a corresponding advance payment. If the subsequent performance by the Supplier has failed or is unreasonable for us (e.g., due to particular urgency, endangerment of operational safety, or the threat of disproportionate damage), no deadline need be set. We shall inform the Supplier immediately, if possible before we remedy the defect, of any circumstances that justify the unreasonableness.

10.5. The limitation period for claims in connection with material defects and defects of title is 36 months from the start of the statutory limitation period, unless otherwise agreed with the Supplier or a longer limitation period applies by law.

10.6. In the event of a new delivery or manufacture within the scope of the warranty, the limitation period for the newly delivered goods or newly manufactured works shall commence anew and shall apply for a period of 24 months. If the remaining limitation period under Section 10.5 exceeds 24 months, the remaining longer limitation period shall apply. If only parts of the goods are newly delivered or only parts of the works are newly manufactured, the aforementioned provisions of this Section 10.6 shall apply only to these parts.

10.7. The limitation period for our claims for defects shall be suspended for the duration of the measures taken to remedy the defects.

10.8. The place of subsequent performance for all claims for rectification of defects and replacement delivery under this contract is our place of business, unless expressly agreed otherwise in writing. The Supplier shall bear all costs and risks associated with the transport of defective goods and goods that have been subsequently performed or replaced to and from our place of business.

11. Liability

11.1. The Supplier shall be liable to us for damages and reimbursement of expenses in accordance with the statutory provisions, unless otherwise agreed.

11.2. We shall not be liable to the Supplier for damages and reimbursement of expenses, regardless of the legal basis (contract, tort, breach of obligations arising from the contractual relationship, indemnification, etc.).

11.3. The above exclusion of liability shall not apply in the case of liability 

a) under the Product Liability Act,

a) in cases of intent or gross negligence,

b) in the event of culpable injury to life, limb, or health, 

c) or in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the Supplier regularly relies on and may rely on.

11.4. However, our liability for the breach of essential contractual obligations is limited to compensation for foreseeable damage typical for this type of contract, unless we are liable due to intent or gross negligence, injury to life, limb, or health, or under the Product Liability Act.

11.5. Insofar as our liability is excluded or limited in accordance with the above clauses, this shall also apply to the corresponding personal liability of our vicarious agents, representatives, or employees.

12. Indemnification, Product and Producer Liability

12.1. The Supplier shall indemnify us against any claims for damages and reimbursement of expenses asserted against us by third parties on the basis of defective Deliveries or an infringement of Property Rights or compliance/sustainability requirements in accordance with Sections 9 and 17 in relation to Deliveries made by the Supplier, unless the Supplier is not responsible for the infringement. Any further legal rights we may have shall remain unaffected.

12.2. The Supplier shall also indemnify us within the scope of product and producer liability for all claims asserted against us by third parties for personal injury or property damage attributable to a product defect in the Deliveries or a breach of the Supplier's product monitoring obligation. If we are obliged to carry out a recall or other field action against third parties for such a reason, the Supplier shall bear all costs associated with this.

12.3. The Supplier is obliged to maintain product liability insurance with adequate coverage at its own expense. The Supplier shall send us a copy of the liability insurance policy at any time upon request.

13. Force Majeure

13.1. Force Majeure shall only release the affected party from its contractual obligations to the extent and for as long as it is prevented from fulfilling its contractual obligations. Each party shall bear all expenses for which it is responsible and which arise from the Force Majeure event. The party affected by Force Majeure shall immediately notify the other party of the situation in writing and provide all necessary evidence. The party invoking Force Majeure shall make every reasonable effort to minimize the negative effects resulting from this situation.

13.2. If the Force Majeure event continues for more than fifteen (15) consecutive days, the party against whom Force Majeure has been invoked may withdraw from the contract.

14. Supplier Recourse

14.1. We are entitled to our statutory claims for reimbursement of expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b and Sections 445c, 327 paras. 5 and 327u of the BGB) without restriction in addition to our claims for defects. In particular, we are entitled to demand from the Supplier exactly the type of subsequent performance (repair or replacement) that we owe our customer in the individual case; in the case of Deliveries with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right of choice (Section 439 para. 1 BGB) is not restricted by this.

14.2. Our claims for Supplier recourse shall also apply if the defective Deliveries have been connected with another product or further processed in any other way by us, our customer, or a third party, e.g., through installation, attachment, or assembly.

15. Spare Parts Supply, Quality Assurance

15.1. The Supplier is obliged to keep spare parts (including wear parts) for the Deliveries to us, insofar as these are machines, systems or components, for a period of at least ten (10) years from the date of delivery or to ensure a corresponding supply.

15.2. The Supplier shall offer us, within a reasonable period before the intended end of the period within which it must ensure the supply of spare parts in accordance with Section 15.1, to manufacture sufficient spare parts to enable us to build up a final stock.

15.3. The Supplier shall establish and maintain a quality assurance system that complies with the latest standards of the relevant supply industry. The Supplier shall carry out the quality assurance measures, including the necessary documentation, on its own responsibility. The Supplier shall provide us with this documentation upon request. The Supplier shall retain the documentation in accordance with the statutory requirements, but for at least ten (10) years.

15.4. We are entitled to check compliance with the quality assurance measures ourselves or through independent auditors at the Supplier's factory during normal business hours and after giving timely notice of at least ten (10) business days in advance. The inspection does not release the Supplier from its liability for defects. The Supplier is entitled to take reasonable measures to protect its business and trade secrets. We have a legitimate interest in inspecting the Supplier's inspection and test reports relating to Deliveries to us. The Supplier is obliged to allow inspection for a period of ten (10) years after delivery.

16. Inspection Obligation, Outgoing Goods Inspection, Quality and Material

16.1. The Supplier is obliged to independently check drawings, calculations, specifications, and other requirements provided by us within the scope of its general and specific expertise for any errors, contradictions, or concerns regarding suitability for use. It shall inform us immediately if it discovers such errors or contradictions or if such concerns arise.

16.2. The Supplier guarantees that the Deliveries comply with the agreed technical data, are made from the agreed materials or those specified in the documentation, are free from material and manufacturing defects, fully fulfill the agreed functions, and are not affected by defects that negate or reduce their value or suitability for normal use or use as specified in the contract. If no materials have been agreed, the Deliveries shall be manufactured from the most suitable materials.

16.3. All Deliveries by the Supplier must comply in every respect with the contractually agreed quality, the applicable legal and official regulations, product and environmental protection laws, the applicable regulations for substance restrictions, the relevant accident prevention and safety regulations, the ordinances and regulations of authorities and professional associations, and the latest state of the art, be of high quality in terms of type and quality, and be suitable for the intended and customary use. In particular, the agreements made regarding chemical, physical, and technical properties, dimensions, type of design, and quality, insofar as agreed within the respective tolerances, must also be complied with. Further subjective and objective requirements for Deliveries remain unaffected. 

16.4. The Supplier is obliged to provide meaningful information and documentation regarding compliance with the regulations mentioned in Section 16. Further legal information obligations remain unaffected. 

16.5. The Supplier shall ensure that all substances contained in the Deliveries are effectively pre-registered, registered (or exempt from the registration requirement) and, where relevant, approved in accordance with the relevant requirements of the REACH Regulation for the uses notified by us. If the Deliveries are an article within the meaning of Article 7 of the REACH Regulation, the preceding sentence shall apply with regard to substances released from these articles.

16.6. The Supplier shall inform us immediately if a component of an article contains a substance in a concentration of more than 0.1% by weight (w/w) that meets the criteria of Articles 57 and 59 of the REACH Regulation (so-called substances of very high concern). This also applies to packaging products.

16.7. The Supplier warrants that it complies with the requirements of the currently applicable national implementation legislation of Directive 2011/65/EU, including its amendment 2015/863/EU, in its current version (hereinafter "RoHS Directive"). Accordingly, none of the substances listed in Annex II to the RoHS Directive may exceed the maximum concentration in homogeneous material. If exceptions according to Annex III or Annex IV are used, the Supplier shall notify us of these exceptions. This also applies to all non-electronic or non-electrical delivery parts or to electronic or electrical delivery parts that do not fall within the scope of the Directive.

16.8. Prior to delivery, the Supplier shall check compliance with the above requirements by means of a suitable, state-of-the-art quality inspection in the form of an outgoing goods inspection and provide us with evidence of this. Deliveries that have not passed this inspection may not be delivered.

16.9. The Supplier shall conclude a corresponding quality assurance agreement with us if we deem this necessary.

17. Compliance, Sustainability

17.1. The Supplier shall act in accordance with the legal provisions applicable to it, in particular the regulations on data protection, competition law, anti-corruption and money laundering, as well as the applicable regulatory requirements in the areas of sustainability, environmental and climate protection, and the protection of human rights, in particular those from the legal acts mentioned in the Sections 17.2. to 17.9.

17.2. If and to the extent that we import goods listed in Annex I of Regulation (EU) 2023/956 establishing a CO2 border adjustment mechanism (hereinafter "CBAM Regulation"), the Supplier shall provide us with all relevant data and information in accordance with Annex IV of the CBAM Regulation (hereinafter "CBAM Data"). The Supplier shall provide us with verifiable CBAM Data no later than upon delivery of the goods in question. We intend to use the CBAM Data exclusively to fulfill our reporting obligations under the CBAM Regulation.

17.3. If the goods delivered to us by the Supplier are relevant products within the meaning of Annex I of Regulation (EU) 2023/1115 on deforestation-free supply chains (hereinafter "EUDR"), the Supplier shall comply with the requirements of the EUDR. In particular, the Supplier shall provide us with the geolocation data of the production areas relevant under the EUDR and the necessary evidence of the goods' compliance with the EUDR prior to delivery. 

17.4. The Supplier shall comply with all requirements under Regulation (EU) 2023/1542 on batteries and waste batteries (hereinafter "Battery Regulation"). In particular, the Supplier shall not supply us with any batteries containing substances listed in Annex I to the Battery Regulation.

17.5. The Supplier shall comply with all obligations under Regulation (EU) 2017/821 laying down obligations on Union importers of tin, tantalum, tungsten, their ores, and gold from conflict and high-risk areas (hereinafter "Conflict Minerals Regulation"), the German Act on Corporate Due Diligence to Prevent Human Rights Violations in Supply Chains (hereinafter "LkSG"), and Directive (EU) 2024/1760 on corporate sustainability due diligence (hereinafter "CSDDD Directive") and their respective national implementing acts, where applicable. Furthermore, the Supplier shall comply with all requirements under Regulation (EU) 2024/1781 establishing a framework for the setting of ecodesign requirements for sustainable products (hereinafter "Ecodesign Regulation") and the applicable delegated acts, and Directive (EU) 2022/2464 on corporate sustainability reporting (hereinafter "CSRD Directive"), where applicable.

17.6. When manufacturing, filling, selling, and importing single-use plastic products into the EU in accordance with Annex 1 of the Single-Use Plastics Fund Act (hereinafter "EWKFondsG"), the Supplier shall fulfill all obligations contained in the EWKFondsG and, upon request, present a valid registration in accordance with Section 7 EWKFondsG.

17.7. The Supplier shall require its subcontractors and Suppliers in the supply chain to comply with standards that meet the requirements of the aforementioned regulations, including our Supplier Code of Conduct. We are entitled to verify compliance with the aforementioned regulations by the Supplier ourselves or through third parties commissioned by us, after prior notification and in the event of substantiated knowledge of a violation of the LkSG.

17.9. If actual violations of the EUDR or the CBAM Regulation are identified or cannot be ruled out, we may, at our discretion, withdraw from the contract in its entirety or with regard to the partial Deliveries that give rise to the assumption of a violation.

18. Confidentiality Obligations

The Supplier shall treat our documents and all information obtained by us about our business or operations as confidential. The confidentiality obligation shall continue for a period of five (5) years after the termination or completion of the business relationship. It shall not apply if information (i) was already known to the Supplier at the time of conclusion of the contract or became known later without this being based on a breach of confidentiality, or (ii) was already publicly known at the time of conclusion of the contract or became publicly known later.

19. Choice of Law, Place of Jurisdiction, Miscellaneous

19.1. These Terms and the contractual relationship between us and the Supplier shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

19.2. All disputes arising out of or in connection with the contractual relationship between us and its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Paderborn, Germany. The language of the arbitration shall be English.

19.3. The invalidity of individual provisions of these Terms shall not affect the validity of the remaining provisions.

19.4. Amendments and supplements to the contract and/or these Terms, as well as subsidiary agreements, must be made in writing to be effective.

 

*****

Fischer Panda GmbH 

Otto-Hahn-Str. 40 

33104 Paderborn

Germany

 

Tel: +49 (0) 5254-9202-0

  Fax: +49 (0) 5254-9202-550

 

Email: info(at)fischerpanda.de

Web: www.fischerpanda.de

1. Warranty Conditions for mobile and stationary Fischer Panda Generators

In relation to the present generator, Fischer Panda GmbH grants the customer a manufacturer’s warranty in addition to the warranty claims he may have against the seller.

1.1 Requirements of the Warranty

Important requirements for the warranty to arise:
Technical documentation containing a form for an “application for registration and for the issue of a warranty certificate” is being provided together with the generator itself. This form must be carefully completed and must be received by Fischer Panda GmbH within two weeks following the installation of the generator. This applies to all generators alike. The installation must have been carried out in accordance with the instructions for installation set out in the instruction manual and the health and safety instructions of Fischer Panda GmbH. The prescribed commissioning inspection and the recording of the commissioning protocol must have been carried out, too. The remainder of the inspections must also have been carried out in accordance with the respective provisions and must be recorded in the form.
The user is obliged to check oil levels on a daily basis and to carry out a ‘prima facie inspection’ in accordance with the instruction manual or the checklist.

1.2 Warranty Period

Fischer Panda GmbH guarantees the faultlessness of the working material and the error-free operation of the generator for a period of time of 24 months commencing on the date of delivery ex works in Paderborn, Germany. The warranty period is limited to 12 months if the generator is being employed for commercial purposes (and not just privately). The limitation period commences on the date of delivery ex works on Fischer Panda GmbH’s premises and is limited to a total of 1.000 operating hours. The warranty period for components of the water-cooled electrical asynchronous Panda generator specified in Section 5 of these warranty conditions is hereby extended for a period of time of 5 years. However, this extension of the warranty period is subject to limitations which are detailed in Section 5 of this warranty conditions.
Apart from that, all provisions stipulated by the Fischer Panda GmbH and set out below are legally binding.

1.3 Warranties

Where specific performance [cure of defects] becomes necessary, the customer is, in the sole discretion of Fischer Panda GmbH, obliged to show the generator to a customer service centre individually designated and authorised by Fischer Panda GmbH or to send the generator to Fischer Panda GmbH directly, at his expense respectively.
In the event of an assertion of warranty claims, if the generator is mounted in a vehicle (farm vehicle, watercraft, etc.), Fischer GmbH must a first be consulted as to where and how the repairs shall be carried out.
In general, the customer is obliged to bring the vehicle or the generator to the business premises of Fischer Panda GmbH in Paderborn, Germany.

In any event, Fischer Panda GmbH has discretion as to whether the repairs shall be carried out at its place of business or at some other location, using the services of an authorised Fischer Panda GmbH partner.

If the customer requires that the mechanic travels to the location where the object in question is situated, the travel costs shall be borne by the customer. This comprises the manpower and other costs of the journey (such as accommodation and per diem allowances).

If in individual cases, warranty-related repairs need to be carried out on-board at the location where the vehicle is situated, the customer must ensure that both the vehicle and the generator can be accessed without difficulties and must cater for reasonable and appropriate working conditions.

This comprises accessibility of the vehicle for work from 7am until 8pm.

The customer may, having obtained the prior consent of Fischer Panda GmbH, dismount defective parts on-site. These must, upon request, be sent free-of-charge to Fischer Panda GmbH or to a different address designated by Fischer Panda GmbH. Following an examination, Fischer Panda GmbH shall, in its sole discretion, replace them on- site or repair them and return them to the customer at his peril and at his expense.

In the event that parts are being replaced, the defective parts become the property of the Fischer Panda GmbH.

Where repairs cannot be carried out by Fischer Panda GmbH on its business premises, the customer must at first advance all costs of the repair. The costs of the defective part including the costs for the least expensive shipping shall be borne by the Fischer Panda GmbH. The travel costs as well as any costs for assembly and disassembly shall be borne by the customer.

The performance of warranty repairs does not entail an extension of the warranty period or a recommencement of the respective limitation period.

1.4    Expiry of the Warranty

The warranty expires if
The customer does not give notice of defects without undue delay;
The customer does not give Fischer Panda GmbH the immediate opportunity to repair defects. (The customer is obliged to cooperate in the context of such specific performance. This comprises that he sends defective parts which he dismounted on his own responsibility to Fischer Panda GmbH at his own expense, or, alternatively, if the aggregate has been installed on-site, to bring the vehicle to Fischer Panda GmbH’s premises.);

• The defect can be attributed to an overload or to erroneous instruction manuals;
• The required service and maintenance works have not been performed;
• The monitoring and stop-functions of the generator could not be activated because these systems did not operate because the cable had been removed or damaged, or for any other reason which prevented the operation of said functions; or
• The instructions for the installation have not been heeded.
• The warranty claims equally expire if:
  • A non-authorised service provider has carried out repairs on the generator or the system assembly; or
  • Parts which have not been supplied by Fischer Panda GmbH have been used; or
  • Parts which have been modified and not examined by Fischer Panda GmbH have been used; or
  • The cooling system of on-site built-in generators does not comply with the requirements set out in the instruction manual; or
  • The application for registration and for the issue of a warranty certificate has not been submitted in due course or is incomplete; or
  • Temperature-related data contained in test logs deviate from the maximum values specified by Fischer Panda GmbH; or
  • In the case of aggregates with a nominal output of 25kVA, if the required acceptance procedure for the installation works has not been carried out by an authorised dealer; or
  • Essential instructions contained in the instruction manual have not been heeded. Further, the warranty claim expires in all cases of force majeure or in times of war.

1.5    Extended Warranty

Extended warranty for Fischer Panda generators – 5 years commencing with the purchase:
The electric part of the generator (stator with windings, generator casing together with sealing Re exposure of all auriferous parts) is subject to a warranty period of 5 years. This extended warranty comprises any damage and loss suffered by the above-mentioned parts due to the impact of cooling water.

Fischer Panda GmbH will decide in its sole discretion whether these [parts] will be repaired or replaced free-of- charge. All parts must be dismounted and must be sent carriage prepaid to Fischer Panda GmbH.
We hereby expressly exclude damage and loss caused by an overheating of the generator and by components which are defective due to regular wear and tear or due to a breakdown of peripheral aggregate units, water pumps, water supply, automatic stop functions, etc.

Expenses incurred due to labour costs, etc., e.g. for the mounting and dismounting of the aggregates, are only included in this warranty to the extent in which a lump sum has been agreed which reflects the working hours required by an experienced mechanic who has free access to the object at hand.

Further, we hereby expressly exclude damage and loss caused by third parties and an improper compensation or overcompensation with condensers.

Further warranties may be available and can be derived from the extended Fischer Panda warranty package offering.

1.6    Applicable Law and Place of Jurisdiction

If not provided for otherwise in the contract, the place of performance shall be the place of business of the Fischer Panda GmbH. The statutory provisions regarding jurisdiction shall remain unaffected, except where the special provisions below provide otherwise.
These T&Cs are governed by the laws of the Federal Republic of Germany under exclusion of the Vienna Convention on the International Sale of Goods [CiSG].
The exclusive place of jurisdiction for disputes arising from contracts with businessmen, bodies corporate or special funds under public law is the competent court of law which has jurisdiction at the place of business of the Fischer Panda GmbH. The Fischer Panda GmbH, however, has the right to bring legal action against the customer at the general place of jurisdiction applicable to the latter.

 

Fischer Panda GmbH

Otto-Hahn-Str. 40

33104 Paderborn

Tel: + 49 (0) 5254-9202-0

Mail: info@fischerpanda.de

Web: www.fischerpanda.de

Warrenty Conditions (Stand:2013-02-01)

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