General Terms and Conditions

FPS Werkzeugmaschinen GmbH General Conditions for Sale, Repair, and Service ("GTC")

June 2012

I. Scope

To any business, in particular, but not finally, to any offer and acceptance of offers, purchase order, delivery, and service as regards FPS GmbH ("FPS") and clients ("Clients"), these GTC shall apply in their latest version as amended from time to time to the extent the Client is an entrepreneur as stipulated by Section 14 of BGB (German Civil Code). These GTC shall also apply to any Client's future business with FPS. Any Clients' General Terms and Conditions that are not expressly acknowledged by FPS in writing shall have no validity. This is to expressly object to any formal reference to Client's Terms and Conditions. The FPS GTC shall also apply when FPS are aware of any Client's Terms and Conditions conflicting with or deviating from these GTC and nevertheless execute the delivery to this Client without any reservation. These GTC shall only apply to enterprises as stipulated by Section 310, Par. I of BGB.

1. Offer

Our offers are without engagement and non-binding. Any requests from clients that are not part of a purchase order or order confirmation are deemed by FPS to be non-binding.

Technical modifications regarding form, colour, and/or weight are reserved to the extent reasonable.

Should the offers or order confirmations be based on documents such as images or drawings, these are to be deemed as non-binding.

Any dimensional or weight specifications are to be considered as approximate values that are usual in the industry unless these are expressly indicated by FPS as binding.

2. Conclusion of Contract and Scope of Supplies

When the Client orders goods, operating performance, or services or delivers goods to FPS for repair and/or maintenance, the Client is bound to this offer for 3 weeks. Any contract is concluded only after written order confirmation by FPS, in which both contents and scope of performance owed are exclusively specified. When an order confirmation is not issued upon a purchase order from a client, the contract is concluded when the purchase orders are executed by FPS. In such a case, contents and scope of the performance owed result from the Client's offer.

FPS have the right to make technical changes or modifications to the deliverables unless these changes or modifications do not constitute a deviation from the order confirmation.

The contract is concluded subject to FPS themselves being correctly and timely supplied. This only applies to the case that non-supply is not attributable to FPS. In the case FPS become unable to supply due to Force Majeure or subsequent official order, FPS shall be discharged from their obligation to supply. In all cases mentioned above, the Client will be immediately informed about the non-availability of performance. The equivalent will be immediately refunded.

3. Preliminary Work, Right of Refusal

As far as FPS establish for goods sent by the Client that these are not able to be repaired, the Client is obliged to compensate FPS for investigations made on the goods. The costs for the investigations made amount to a maximum of 10% of the hypothetical repair price of the goods sent.

As far as the Client sends goods to FPS and FPS decline the offer, do not provide an offer, or the goods are not able to be repaired, FPS shall notify the client accordingly. As far as the Client does not request FPS to return the goods in writing within additional 14 days, FPS have the right to dispose of the goods.

4. Delivery

Delivery dates and periods shall always be deemed to be approximate values and shall not bind FPS unless a delivery date was expressly agreed upon in writing.

Delivery dates and periods shall reasonably extend when the Client fails or delays to provide any cooperation required or agreed upon as well as in case of Force Majeure and any other adverse conditions that are not attributable to FPS and which have considerable impact on the supply or performance, in particular in case of strike and lockout at FPS, their suppliers, or sub-suppliers of these. Should the supply or performance become impossible or unreasonable because of the above circumstances, FPS shall be discharged from the obligation to supply.

Any default by FPS shall entitle the Client to withdraw from the order for which FPS are in default only in case the withdrawal was indicated including an extension of time of at least 3 weeks. Any further claims, in particular for damages, are excluded. In case of unforeseen obstructions, e.g. caused by Force Majeure or events such as fire, strike, boycott etc., the Client is not entitled to withdraw from the contract or to assert claims. In such a case, the delivery period shall be reasonably extended.

Any modifications made to purchase orders shall result in agreed dates and periods to be cancelled, unless agreed otherwise. In case the Client requests a purchase order to be modified or amended after the contract has been concluded which will result in failing to keep the delivery date, the delivery period shall extend, based on the modifications and amendments, by a reasonable period that is required to manufacture the modifications and amendments requested.

For any additional deliveries, FPS have the right of retention as long as any previous deliveries have not been paid.

FPS have the right of partial deliveries and invoice them individually.

5. Purchase Orders

Purchase order require the Client to accept and pay the goods. In case a client refuses accepting the goods ordered, this shall constitute a claim for damages for FPS amounting to 50%, up to 75% in special cases, of the value of the goods if FPS waive to accept the goods.

The Client is allowed to provide evidence that no or only minor damage has accrued from this. FPS have the right of providing evidence of higher or additional damage.

6. Packaging

Packaging materials shall be separately charged by applying conditions that are customary in the market and shall not be taken back unless there is the obligation to take them back as per the German Packaging Ordinance. Special crates shall be taken back by FPS when these are in flawless condition and returned to the factory freight paid.

In such cases, FPS shall credit 2/3 of the amount invoiced.

7. Shipping

Shipping is on Client's account and risk. Shipping charges are invoiced based on expenditure. If there is no particular agreement with the Client on the type of shipping, selecting the dispatch route and type of shipment is at the discretion of FPS.

If requested by the Client, the delivery item shall be insured for transport. In this case, the costs of the transport insurance shall be borne by the Client.

At the time of transferring the delivery item to the railway company, carrier, freight agent, or any other shipping agent, or at the time of notifying the readiness for shipment, or when the item leaves the factory or depot, the risk is transferred to the Client, even when FPS is carrying out the delivery. Shipping is always on behalf of the Client.

The Client is obliged to accept the delivery item even when it shows only negligible deviations from the agreed condition or its use is negligibly affected.

If shipment is delayed because of a Client's request, the Client may be charged for storage.

Any goods ordered by the Client which the Client does not require shall be taken back by FPS only when FPS have expressly declared their consent in writing. Any transport charges accruing from return shall be borne by the Client. FPS reserve the right of charging fees for checking and re-warehousing the goods returned. These are 10% of the item value with a maximum of €250.00. Replacement parts are to be returned free of charge for FPS. Only those items are qualified for return, which are in proper and marketable condition. New custom-made products or products that are made to special orders shall not be taken back. After returning the items, the Client shall obtain a credit amounting to the value of the goods less the charges for re-warehousing/checking. This credit shall not be paid in cash, but offset against future purchases or purchase orders.

When installation and commissioning to be carried out by FPS are part of the supply, the risk shall be transferred to the Client at the day of acceptance at the Client's premises, or, as far as a test run has been agreed upon, after the test run has been successfully completed.

8. Parameter Sets, Settings, Factory Settings

Before checking, FPS reset goods sent to the Client to their factory settings. When the goods are returned to the Client, the settings made to/parameter sets created in the goods by the Client will no longer exist.

The Client shall be obliged to check the goods, in particular the settings/parameter sets, that these are correctly set for the purpose intended by the Client. If the Client does not comply with this obligation, any liability for FPS shall be excluded.

As far as and to the extent that the Client requests FPS to make any settings/create any parameter sets before shipping the goods to the Client, FPS do not assume any liability for any damage resulting at the Client's property from incorrect settings and parameter sets.

9. Pricing

Unless agreed upon otherwise, the prices for supplies and performance shall be understood to be applicable ex factory in Euros, excluding insurance, and subject to applicable statutory taxes. Unless agreed upon otherwise, FPS are to be charged for any performance according to the respective expenditure, based on the hourly rates. Travel times shall be considered to be working time and are to be accordingly compensated for by the Client. Unless agreed upon otherwise, the Client shall be charged with any call-out costs, hotel costs, or other expenses, provided respective evidence is presented. Any costs for packaging, shipping, transport, and transport insurance shall be charged separately. Unless fixed prices are agreed upon, the FPS price list is relevant to invoicing individual deliveries. Changes in prices may take place at any time and at any number of times. When the price is changed after placing an order, the Client is entitled to be notified about this change and to withdraw from his/her purchase order.

10. Terms of Payment

Any FPS claims shall become due and payable in cash or by free of expense bank transfer to the FPS business account within 14 days after the Client has received the respective invoice.

Any cash discount is granted by FPS only after written consent. Any cheques and acceptance bills shall be accepted on account of payment only, with the latter ones based on special agreements only. Any payments are deemed made only at the day at which the invoiced amount is available to FPS without any deduction. Typically, machines and accessories shall be delivered after an advance payment of 50% of the gross order value is made. Payment of the balance shall be made after handover and acceptance. The claim shall become due immediately after receipt of invoice. Any cash discount is granted by FPS only after written consent. The payment shall be made in cash or by free of expense bank transfer to the business account. Any cheques and acceptance bills shall be accepted on account of payment only, latter ones based on special agreements only.

FPS have the right to offset any payments against previous claims firstly.

If the Client's payments get in default, FPS have the right to request an interest rate of 8% above the base rate for the damage incurred by the default. Any further damage incurred by the default shall not be excluded.

If a cheque issued by the Client is not cashed, irrespective of the reason, FPS have the right to charge a reasonable processing fee and the interest for default.

Any invoices or reminders addressed to the Client are deemed received at the Client on the 3rd business day after posting unless the Client provides evidence of later reception.

As far as the Client is obliged to perform to FPS in advance, FPS shall not get into default providing their performance as long as the Client does not perform.

When, after concluding the contract, there are indications of the Client's inability to pay or execution of the contract by the client is at risk, FPS have the right to refuse supply or performance and to set a reasonable period for the Client in which he/she has to pay for delivery and performance or to provide respective security. In case of non-compliance by the Client or unsuccessful expiry of the period of time, FPS have the right to withdraw from the contract and to claim for damages.

11. Offsetting/Right of Retention

The Client is allowed to offset against valid or accepted counterclaims only. Any Right of Retention may be exercised only, when the counterclaim is based on the same contractual relationship. The Client is not entitled to any Right of Retention because of partial performance according to Section 320 II of BGB.

12. Liquidated Damages

In case the Client is in default of acceptance or seriously and finally refuses to perform, he/she is to pay to FPS 35% of the price for damages. The Client is allowed to provide evidence that no or only minor damage has accrued from this. FPS have the right of providing evidence of higher or additional damage.

13. Delivery, Setup, and Installation

To ensure smooth delivery and installation, the Client shall be informed on any necessary prerequisites (required floor space and passage width, requirements on the setup location, required forklift truck for unloading etc) in a timely manner. The Client is to ensure that the requirements identified are completely met before delivery.

14. Obligations to Cooperate

The Client shall ensure that any cooperation required for effecting agreed performance is provided in a timely manner and at no cost for FPS. He/she cooperates in the test and acceptance and provides access for FPS during the normal working hours. The client appoints a contact who is responsible for all matters related to the respective contract.

15. Default in Delivery and Impossibility of Performance

In case of default in delivery, withdrawal instead of providing the service additionally requires that the Client previously set a period to effect contractual performance in the threatened refusal to accept performance. The period is at least 25% of the agreed or specified delivery time, but not less than 3 weeks. After this period, the Client, after being requested by FPS, shall be obliged to state as to whether he/she continues to insist on the delivery or withdraws from the contract. The Client is not entitled to refuse performance or to withdraw instead of accepting performance, unless he/she makes such statement within a reasonable period set by FPS.

In case FPS are unable to perform or in default in the obligation to effect performance, the Client shall be allowed to withdraw from the contract only if  the violation of obligation is attributable to FPS.

The Client shall not be allowed to withdraw before performance is due to be effected or in case of a negligible violation of obligations by FPS. Withdrawal shall be excluded when the Client is solely or mainly responsible for the circumstances that would entitle him/her to withdraw or when a condition occurs during default in acceptance by the Client that is not attributable to FPS.

FPS shall reserve the title to the goods until all claims resulting from an active business relationship has been fully settled. The retention of title extends to a proportion based on the value of the respective goods under retention of title as well as to those items created by processing, combining, merging, or installing the goods under retention of title ("extended retention of title") as well as to claims, the Client acquires against third parties because of re-sold goods under retention of title ("expanded retention of title").

The Client shall be obliged to handle the goods under retention of title with care, to sufficiently insure them against fire, water and theft at his/her costs, and to service and inspect the goods under retention of title at his/her cost in due time, and to neither assign nor to pledge for security without FPS consent. The Client is obliged to immediately indicate to FPS any access to the goods, e.g. in case of seizure, as well as any potential damage or destruction, and any change in ownership specifying the exact addresses.

FPS have the right to withdraw from the contract and to demand the goods to be surrendered in case the Client acts in a way that constitutes a breach of contract, in particular in case of delayed payment or violation of the above obligations. For the avoidance of doubt, demanding the goods to be surrendered shall not be deemed as withdrawal from the contract. In case of resale of the goods as part of proper course of business, the Client shall already now assign all claims amounting to the invoice amount accruing to him from the resale to Third Party. FPS accept the assignment. After assignment, the Client is entitled to collect the claim. FPS reserve the right to collect a claim themselves as soon as the entrepreneur does not properly meet his/her obligations to pay and gets in default of payment.

The Client shall be obliged to indemnify and hold harmless FPS from any costs resulting from safeguarding/exercising their rights.

The Client shall be obliged to expressly advise Third Party of the retention of title.

The Client shall grant FPS a contractor's lien according to Sections 1204 et seq. of BGB to the goods held in possession by FPS.

To secure FPS's claims, the Client assigns to FPS any indemnification resulting from any existing electronic or other insurance related to events of damage for security purposes. FPS accept the assignment. FPS shall not be obliged to make preferential use of the indemnification payment.

16. Limitation of Liability

Any liability of FPS as well as of their representatives and agents with regard to injuries to life, body, health resulting from a breach of a significant contractual obligation and from a violation of the Product Liability Act or to the extent, FPS have fraudulently concealed a defect, expressly assumed a warranty or deliberately caused damage, is not limited.

Subject to the above defined liability of FPS, their liability in any cases of negligence, breach of secondary obligations, insufficient economic success, consequential damage resulting from a defect and damage resulting from Third-Party claims against the Client, shall be limited to the amount equal to the amount covered by the Product Liability Insurance or Liability Insurance held by FPS or otherwise equal to the typical contractual and foreseeable damage. FPS shall not be liable for any loss of profit of the Client.

This limitation of liability shall also apply with regard to any employees, organs, and agents of FPS.

The period of limitation for any liability claims according to the above is 1 year from the date FPS have effected performance to the extent, FPS have not acted deliberately or grossly negligent. In such cases, the statutory period shall apply.

17. Warranty

FPS warrant that the deliveries and services comply with the contractual agreements. To the extent there is no agreement, warranty is provided that the use as intended by the contract shall be essentially possible and the goods delivered shall be in a condition that is common for items of the same type.

Basically, for the condition of the goods, only the product description provided by the manufacturer shall be deemed to apply. Any public statement, promotion, or advertisement of the manufacturer does not constitute additional contractual specification of the condition of the goods.

Suitability of the delivered items for the purpose intended by the Client as well as compatibility with other components or systems are at the Client's risk. The condition at the time of passing of the risk is the only criterion for determining the contract compliant condition.

In particular, FPS shall not be liable for errors and/or damage resulting from inappropriate or improper use or operation, incorrect installation or commissioning by the Client or Third Party, lack of compatibility with other systems or modules caused by common wear, as well as for incorrect or negligent handling resulting from improper modifications or service operations carried out by the Client or Third Party without FPS consent; the Client shall be responsible for data backup.

After proper commissioning, wear parts such as fuses, (rechargeable) batteries, lamps, and equipment shall be excluded from warranty. Obvious defects shall be immediately, however within 2 weeks after receipt of the delivered item at the latest, claimed in writing to the extent these are deviations or defects that may be perceived from external. Latent defects shall be claimed by the Client immediately, however seven days after these have been detectedat the latest, in writing. In case any deviations or defects are not claimed within the above periods, any defect claims against FPS shall be excluded.

Timely posting is deemed sufficient to keep the deadlines. Full burden of proof for any claim requisites is on the Client's side, in particular for the defect itself, for the time of detection of the defect, and for timely asserting the claim.

Warranty period is one year.

Warranty shall not apply when the Client has made modifications to the contracted performance without written FPS consent unless the Client provides evidence that the defect does not result from the modification.

When it turns out during an attempt to correct the defect or at a later time that there is no defect or it is to be attributed to the Client, the Client shall be obliged to bear any costs of investigation and correction made by FPS, to which the generally applicable compensation rates according to the price list shall apply.

In case a defect or deviation were claimed in due time, the Client is entitled to obtain supplementary performance by rectification or supplementary delivery, which is at the discretion of FPS. Any related expenditure such as salary, route of transport, and material costs shall be borne by FPS as far as these are necessary for rectifying the defect and not increased by the fact that the delivery item has been moved to a location other than the place of delivery, unless it complies with the intended use of the delivery item.

Upon respective consultation, the Client must allow for sufficient time and occasion to have rectification or supplementary delivery carried out.

The Client shall provide a written precise and comprehensive description of all defects or malfunctions and to assist FPS in analysing errors and correcting the defects.

In case rectification ultimately fails or FPS refuse to provide rectification or supplementary delivery, the Client shall be entitled to assert statutory claims that apply to such case. If the attempt to rectify or provide supplementary delivery covers several machines/items, this shall apply only to the machine or component that is affected by the failed rectification.

Should FPS obtain no proper error report or an error report, which does not describe the root causes of the error in a sufficient manner, FPS are allowed to carry out error diagnostics using diagnostic equipment that is normally available on service vehicles and to run the machine for diagnostic testing purposes using appropriate care, provided the Client does not refuse such procedure, either expressly or in writing.

The Client is expressly advised that additional components of the machine might be damaged, even if proper diagnostic operations are carried out using respective care at the Client's location during the test runs for locating an error. This may be avoided only when the machine is sent to FPS and examined there using stationary diagnostic equipment. When the Client wants to exclude any risk of consequential damage during diagnostic operations, this must be indicated to FPS before the repair is started. Otherwise, any additional damage that is potentially caused by the diagnostics and their remedial shall be borne by the Client. Any cost estimates shall be created by FPS only in case this is expressly agreed upon with the Client. Cost estimates created by FPS for the client are to be paid. The amount of the obligation to pay results from the labour time used by FPS and the hourly rates according to the applicable price list.

18. Delivery into Foreign Countries

In case the products are to be exported, the Client shall respect the German export regulations and inform his/her customers that German export regulations will apply when products are exported.

In case any delivery is exported without paying customs duties, based on a respective Client's request, the Client shall be liable to FPS for any retroactive claim imposed by the Customs Administration.

19. Place of Performance, Place of Jurisdiction / Applicable Law

For any legal relationships between FPS and the Client, only the legislation of the Federal Republic of Germany that is applicable to the legal relationships among local Parties shall apply, with the UN Convention on Contracts for the International Sale of Goods (CISG) excluded.

For any obligation directly or indirectly arising from the contractual relationship, the Place of Performance shall be the place of FPS headquarters in 83627 Warngau, Germany.

The Place of Jurisdiction is the Court of Jurisdiction for the FPS headquarters. However, FPS are entitled to take legal action at the Court of Jurisdiction at the Client's headquarters.

20. Final Provisions

Any rights arising from this contract are allowed to be assigned to Third Party by the Client only after express written consent.

Should any individual provisions of these GTC be or become fully or partly ineffective, effectiveness of the remaining provisions will not be affected. The fully or partly ineffective provisions shall be replaced by those the economic success of which is as close as possible to that of the ineffective provision.

Service Staff / Price Lists

1. Operating Conditions for Service Staff / Price Lists

  1. These conditions and these price lists shall be applicable to posting installation and service staff.
  2. Regular working time: Monday through Friday up to 4:15 PM

Overtime: Working time on Saturdays, Sundays, and public holidays as well as any working time after 4:15 PM are deemed overtime and paid accordingly.

2. Working Time

Regular working time is 8 hours from Monday through Friday up to 4:15 PM. This time is to be accounted for as well, when shorter working time is to be kept for reasons that are not attributable to us. Any work done on Saturdays, Sundays, and public holidays is deemed excess work that is subject to surcharge.

Service operations on Sundays and public holidays are carried out only in urgent exceptions and require consent by both FPS and the competent Employers Liability Insurance Association and by the Trade Supervisory Centre if applicable. These are to be obtained by the Client.

3. Travel Time

The time required for outward and return trips including arrival and departure times are to be accounted for. Any travel time on Saturdays, Sundays, and public holidays is subject to surcharge.

4. Waiting Time

While the service staff cannot start or continue doing the scheduled work or is prevented from leaving, FPS shall add the Waiting Time to the working hours.

5. Travels to Individual Clients

For travels to individual clients, the time of the return travel can be determined only after the end of the travel and is therefore not specified on the original time sheet.

6. Travels to Multiple Clients

For travels to multiple clients, the total costs accrued shall be split among all clients. Therefore, the travel times/mileage given on the time sheet do not always match the travel times/mileage actually invoiced.

7. Service Order per Machine

For repairing/checking multiple machines at a Client, a separate order shall be created per machine. Each order shall result in an invoice with the accrued travel costs split among the orders created.