FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen a. T. W.
Terms of International Trade
Valid for sale of goods to customers
not located in Germany
as amended on 01.09.2004
I. Validity of Terms of International Trade
1. The following terms of international trade apply to
every costumer of FMD Moebel GmbH; Heidlaender
Weg 68; D-49201 Dissen; Germany; -referred below as
FMD- who is not based in Germany. For those customers
established in Germany FMD’s General Terms and
conditions (“Allgemeinen Verkaufbedingungen”) are
applicable. A copy can be obtained upon request.
Decisive is in every case the subsidiary which concludes
the contract in its own name.
2. These terms of international trade are valid for all
current and future contracts, whose subject matter
predominantly is the delivery of goods to the customer.
Additional duties of FMD do not affect the validity of
the terms of international trade.
3. Opposing or dissenting terms or conditions of the
customer do not bind FMD, even if FMD does not
specifically contradict or if FMD without reservation
renders or accepts services from the customer. Similarly
FMD is not bound as far as the terms and conditions of
the customer –independently of the content of the
present terms of international trade- are different to the
legal requirements.
II. Conclusion of the contract of sale
1. The customer is required to give written notification to
FMD before the conclusion of the contract, if the
ordered goods are not solely destined for the
customary use. Same applies if the goods form a
special danger for health, security or environment or if
the goods are supposed to fit to conditions of heavy
duty.
2. Orders of the customers have to be set out in writing.
If the order of a customer differs from the proposal or
the offer of FMD, the customer has to highlight the
divergence.
3. All orders, especially those accepted by FMD
employees,
only
take
effect
by
written
acknowledgement by FMD.
Neither the de facto delivery of the ordered goods, nor
any other behavior of FMD nor silence may cause the
customers trusting in the conclusion of the contract of
sale. FMD can give the written acknowledgement up to
14 days after the order of the customer has been
received by FMD. The customer is bound to his order up
to this point of time.
4. The written acknowledgement of order is received in
time, if it reaches the customer’s premises 14 days after
its printing. The customer has to inform FMD
immediately, if the acknowledgement arrives delayed.
5. The written acknowledgement by FMD is decisive for
the whole importance of the contract of sale. The
acknowledgement concludes a contract even if, it is –
except of price and quantity- different to the costumers
declaration. This especially applies to differences
related to the exclusive validity of these Terms of
International Trade. Special requests of the customer,
notably warranties or guaranties concerning the goods
or the performance of the contract require in every
case an explicit written confirmation. The contract is
only not concluded -independent of the dimension
Ein Unternehmen der
Horstmann Group
Telefon: +49-(0)5421-9448-0
Fax::
+49(0)5421-9448-41
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen
info@fmd-moebel.de
www.fmd-moebel.de
and the kind of difference- if the customer objects to
the differences in writing not later than 7 days after
receiving the written confirmation of order.
6. Employees and sales representatives or any other
sales staff of FMD are neither entitled to dispense with
the written acknowledgement of order nor to give any
other promises or guaranties.
Changes in a concluded contract also need a written
confirmation by FMD.
III. Obligations of FMD
1. Under the reservation of the liability disclaimers as
stipulated in sec. VII 1. FMD is obligated to deliver the
goods as described in the written acknowledgement or
as stipulated in these Terms of International Trade.
Especially FMD is not obliged to deliver not named
accessories or to give advice to the customer.
2. Third parties, who have not been involved in the
conclusion of the contract, especially the costumer’s
costumers, are neither allowed to demand delivery for
themselves nor make demands of any kind to FMD. The
receiving competence of FMD’s costumer persists even
if the costumer himself conveys demands to a third
party.
3. FMD is obliged to deliver goods of average kind and
quality, whereas customary tolerances regarding kind,
quantum, quality and packing are considered.
Structure and color are subject to alterations as far as
this is caused by the nature of the used materials and
these alterations are not more than customary. FMD is
entitled to partial delivery and to separate bills.
4. As far as the goods require a more accurate
determination, FMD specifies them considering its own
interests and identifiable interests of the costumer. It is
neither necessary for FMD to request specification of
the goods by the costumer nor to ask him to take part
in the specification process. FMD is not obliged to
inform the costumer about the specifications or to give
him the opportunity of making differing specifications.
5. FMD has to deliver the goods within the stipulated
time of delivery to the delivery address as noted in the
acknowledgement of order. Alternatively goods are
ready to be picked up by the customer at the plant in
Dissen a.T. / Germany at the same time. A previous
segregation or designation of goods or a message to
the costumer about the availability is not necessary.
FMD is entitled to send the goods at customer’s risk and
costs in order to receive verification of the tax-free
export consignment.
6. Agreed periods of delivery or specific dates of
delivery necessitate the customer to bring the required
papers, permissions, licenses and releases on time.
Further on he - as agreed- has to open a letter of credit
and/ or make an advance payment. The costumer has
to fulfill every other obligation in due time. The agreed
periods of delivery start with the date of the written
acknowledgement of order. FMD is allowed to deliver
before the stipulated time.
7. FMD is entitled to fulfill the duties of the contract after
the designated time if the costumer is informed about
the delay and about a period of time for the
supplementary performance. This regulation does not
affect further legal rights.
The customer is entitled to contradict the
supplementary performance within a reasonable
period if the
supplementary performance is
Geschäftsführer:
Dipl- Kfm. Jürgen
Horstmann
Richard Netzel
HRB Osnabrück 110103
Ust-ID: DE 117578973
Deutsche Bank
AGBielefeld
07.01.2014
Kto-Nr. 0 241 661
BLZ: 480 700 20
Seite 1 von 4
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen a. T. W.
unacceptable. The contradiction only takes effective, if
FMD receives it previous to the begin of supplementary
performance.
FMD refunds the customer his proved additional
expenditures, which were caused by the delay, as far
as FMD is responsible according to section VII.
8. The danger of price and performance of the goods
become the obligation of the customer, at latest as
loading begins or the customers fails to follow up his
obligation to take over the goods or the goods have
become property of the customer, even if this is a result
of unclear marking. There is not need of prior report to
the customer by FMD. The loading of goods is an
obligation of the customer. INCOTERMS of the group F
or C or clauses like “Free delivery…” or similar clauses
are only an exception for handling the transportation
costs. All other regulations including the sharing out of
risks as stipulated in these terms of international trade
stay valid.
9. FMD is not responsible for obtaining any required
licences, authorisations, certificates, formalities or
further documents needed for export, transit or import
even if using INCOTERMS or similar clauses like “Free
delivery…”. On demand, FMD will help the customer to
receive the necessary documents, on his costs and risk.
10. In particular FMD is also not responsible to organize
delivery of goods, insurance of goods, to supply
inexplicitly agreed confirmation or documents or to
carry out the customs clearance outside Dissen a. T. /
Germany. FMD is neither obliged to respect currently
valid systems of weights and measures, packaging
regulations, labelling or marking regulations outside
Dissen a. T. / Germany, nor to inform the customer
about the delivery or to take back packaging material
from the customer. Regardless of lawful regulations, the
customer has to bear the costs of the renewed use, the
recycling and correct waste disposal. This regulation is
obligatory regardless whether the costs of the
packaging are billed separately.
11. Notwithstanding further legal rights, FMD has the
right to interrupt the obligatory performances as long as
from FMD`s point of view concern exists that the
customer will not fulfil his legal obligations either partly
or in whole. The right for suspending exists in particular
when the customer does not faithfully fulfil his
obligations of preparing payment either towards FMD
or towards a third party. Same applies if his credit range
granted by a credit insurance is already exceeded or
will be exceeded due to the outstanding delivery.
Instead of interrupting, FMD is entitled to make future
deliveries conditional upon a letter of credit drawn on a
German major bank or payment in advance. FMD is
not obliged to the continuation of the performances
when one of the customer’s securities, given to avert
the interruption, is insecure or could be contested
according to the applicable law.
12. Subject to the regulation in sec. III. –7. FMD is
obliged to inform the customer about the delay or
interruption of performances only if they are certain.
written acknowledgement of order. If the delivery is not
scheduled to take place within four months after the
conclusion of a contract, FMD can change the agreed
price according to the current list price. In case that a
price has not been agreed, the contract is just the
same effective; in this case FMD’s usual trade price for
the agreed date of the delivery is applicable. Neither
the employees nor sales representatives nor any other
distribution agents of FMD are authorized to accept
any payments.
2. At Last the purchase price is due at the date of
delivery as stated in the invoice. The payment is due
independent of any further conditions and especially
regardless whether or not the customer has taken over
the goods or documents and/ or has had the
opportunity to examine them. The allowed period of
payment are immediately cancelled and the
outstanding demands become immediately due, when
insolvency procedure concerning the costumers
property have been opened; when the customer does
not follow essential obligations to FMD and/ or a third
party without giving a justifying reason; or when the
customer made incorrect statements about his creditworthiness.
3. The customer has to assure that all conditions will be
fulfilled in order to enable a sales-tax-free delivery
according to the German law. If FMD does not receive
a certificate for tax-free export or FMD must pay sales
tax because of delivery modalities or of circumstances
from the sphere of the customer, the customer exempts
FMD of all claims without restriction notwithstanding
further claims of FMD. The customer promises the
exemption under the renunciation of the further
conditions or other objections, especially under
renunciation of the objection of lapse and includes the
compensation of FMD’s expenditure.
4. FMD can allow the incoming payments regardless to
currency and regardless to juridical competences on
existing own or ceded claims towards the customer
according to their free discretion.
5. Customers right to offset own claims against claims of
FMD are excluded, unless the counterclaim acclaims to
the same currency, is justified by the customers own
legal right and either legally determined or due and
indisputable or in written form acknowledged by FMD.
6. The customer’s rights for retention of payment or to
raise objections is excluded, unless FMD causes
infractions towards due obligations stemming from the
same contractual relationship despite a written
reminder and no adequate safeguard has been
offered.
7. The customer is obliged to take over the goods as
stipulated in the written acknowledgment of order. This
applies to the delivery date -without claiming
additional terms- and delivery address, alternatively at
the head office of FMD in Dissen a. T. / Germany. The
customer is only authorised to refuse the acceptance
when exercising his right to terminate the contract
according to the regulations in sec. VI. -1.
IV. Price, payment and receipt of the goods
1. Regardless of the further obligation to payment
safeguarding or payment preparation, the customer is
obliged to transfer the agreed purchase price to the
bank institute named by FMD, in the identified currency
and without deduction of charges as stipulated in the
V. Goods contrary to contract or defective of title
1. The following term does not disclaim the legal
disqualification or restrictions of the responsibility of the
seller. The goods are contrary to the contract, if the
customer proves that at the time of passing the risk, the
goods -concerning packing, quantity, quality or kind-
Ein Unternehmen der
Horstmann Group
Telefon: +49-(0)5421-9448-0
Fax::
+49(0)5421-9448-41
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen
info@fmd-moebel.de
www.fmd-moebel.de
Geschäftsführer:
Dipl- Kfm. Jürgen
Horstmann
Richard Netzel
HRB Osnabrück 110103
Ust-ID: DE 117578973
Deutsche Bank
AGBielefeld
07.01.2014
Kto-Nr. 0 241 661
BLZ: 480 700 20
Seite 2 von 4
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen a. T. W.
differed from agreed specifications as stipulated in the
written acknowledgement of order. The terms stated in
Sec. III have to be considered. Also the goods are
considered contrary to the contract in case of missing
specifications or if they are not fit for common usage in
Dissen a.T. / Germany. Alterations of structure, color
and grain caused by nature do not establish a
contradiction to the contract. Without regards to the
clauses effective for Dissen a.T. / Germany goods are
not contrary to contract, if the clauses effective at the
customer’s domicile do not oppose the customary
usage of goods.
2. As far as the written acknowledgement of order is not
giving an explicitly converse statement, FMD is not
responsible for the goods being appropriate for the
customers intended use; having qualities of a pattern or
sample or complying with legal requirements beyond
Dissen a.T./ Germany, for example in the customer’s
domicile. FMD is not liable for anything contrary to the
contract, if those occur after passing of risk. If the
customer tries to correct anything contrary to the
contract by itself or through third parties without FMD’s
approval, FMD is discharged from any obligation to
grant warranty.
3. When delivered the customer has to submit the
goods to a careful examination according to the legal
regulations. Every consignment has to be tested on
observable and/ or typical breach of contract.
4. The following term does not disclaim the legal
disqualification or restrictions of the responsibility of the
seller. If the customer can prove, that at time of passing
the risk the goods were not free from third parties’ rights
or claims, the goods are defective of title.
Without disclaiming further statutory requirements, the
goods are defective of title, if a third party’s right or
claim depends on industrial property or any other
intellectual property and if this property is registered
and published in Germany. Notwithstanding German
regulations, the delivery is not defective of title, if the
regulations at the costumers domicile do not oppose to
the use of goods.
5. According to the statutes, the customer has to inform
FMD immediately in writing if the goods are contrary to
contract or defective of title. The employees and any
other representatives are neither entitled to accept
notifications nor to give any statement concerning
warranty.
6. After notification according to Sec. V.5. the customer
can to exercise the remedies stipulated in these terms
of international trade. He is not entitled to any other
claims. If the notification has not been made correctly,
the costumer is only entitled to remedies, as far as FMD
maliciously concealed that the goods are contrary to
contract or defective of title. Remedies concerning
defects of title become invalid according to the same
regulations as remedies concerning deficient goods.
Statements of FMD concerning defects of title or
deficient goods only serve as means of clarification and
do not mean a renunciation of the requirement of
written notification.
7. The customer is, suitable to the regulations of the
CISG, entitled to ask FMD for replacement or
rectification of defects ore is allowed to reduce the
purchase price. The customer has no further claims for
compliance of the contract. FMD is notwithstanding the
Ein Unternehmen der
Horstmann Group
Telefon: +49-(0)5421-9448-0
Fax::
+49(0)5421-9448-41
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen
info@fmd-moebel.de
www.fmd-moebel.de
customers remedies according to Sec. III. 7. always
entitled to rectification of defects or replacement of
goods or to grant a suitable credit note in order to
avoid the customer’s remedies.
VI. Termination of contract
1. Disregarding the compliance with the legal
requirements, the customer is only entitled to terminate
the contract, after announcing the Termination to FMD
in writing and passing of a fruitless respite. If the
customer claims replacement delivery, rectification of
defects or any other kind of fulfillment, he his bound to
this remedy for a reasonable period of time without
being able to terminate the contract. The customer has
to directly inform FMD in writing about the termination
of the contract within a reasonable period of time.
2. Without disclaiming further claims or rights, FMD is
entitled to terminate the contract partially or
completely without damage, if the customer disagrees
to these Terms of International trade; if the confirmation
of order is received by the customer later than 14 days
after printing; if insolvency proceedings regarding the
customer’s estate has been opened; if the customer
fails to comply with vital requirements towards FMD or a
third party without explanation; if the customer has
given false data concerning his credit ranking; if FMD is
-without being responsible- not supplied correctly or not
at all; or if FMD is not able to fulfill is contractual duties
by reasonable means. Hereby the customers and FMD’s
noticeable interests when concluding the contract and
the agreed service in return have to be considered.
VII. Damages
1. FMD is only obliged to pay contractual and lawful
damages according to the following terms
a) In the first instance the customer is bound to
choose the other remedies, damages are only
paid for the remaining losses, in no case instead of
other remedies.
b) FMD is not liable for its suppliers or subcontractors
or for disadvantages caused (partly) by the
customer. FMD is not liable for interferences
caused by natural or political incidents, industrial
actions, sabotage, accidents, terrorism, biological,
physical or chemical actions nor any other
circumstances which FMD can not master by
reasonable means. In other respects FMD is only
liable as far as its organs or personnel deliberately
or grossly negligent breaches contractual duties
towards the customer.
c) In case of liability FMD refunds within the borders
according to section VII.1.d) the customer’s
proven loss or damage as far as the customer
could not have averted it and occurrence and
amount of loss were predictable for FMD upon
conclusion of the contract.
The customer has to point out to FMD special risks,
atypical damage possibilities and unusual damage
heights in written form before completion of the
contract. Besides, the customer is obliged to the
damage decrease, as soon as a breach of the
contract is recognized or becomes recognizable.
d) FMD is not liable for lost profits and ideal
interferences. Moreover, the level of the damages
as a result of late delivery is limited for every full
lateness-week to 0.5 per cent, in total max. five per
cent, and as a result of other breach of duty on
Geschäftsführer:
Dipl- Kfm. Jürgen
Horstmann
Richard Netzel
HRB Osnabrück 110103
Ust-ID: DE 117578973
Deutsche Bank
AGBielefeld
07.01.2014
Kto-Nr. 0 241 661
BLZ: 480 700 20
Seite 3 von 4
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen a. T. W.
200 percent of the respective value of delivery. This
paragraph is not applicable with intentional or
coarsely careless faults of the organs or the leading
employees of FMD.
e) The preceding regulations b) to d) are not
applicable, as far as, irrespective of the choice of
law according to sec. IX.-3, legal regulations are to
be applied providing demands and a further
liability.
f)
The period of limitation for contractual claims
applies in the same way to statutory claims of the
customer against FMD which compete with
contractual claims. As far as the claim has not
come under the statute of limitations before, an
exceptional period of six months is applicable to
the proceeding of complaints on damages, which
begins with the rejection of the damages.
g) The preceding regulations to the liability of FMD
are also applicable to the personal liability of
FMD’s employees, workers, representatives and
assistants.
2. Irrespective of further statutory or contractual claims
by FMD, the customer is obliged towards FMD to the
following damages:
a) In case of the unpunctual payment the customer
refunds the usual costs that arise as a result of the
legal pursuit in and out of court in home and
foreign country. He also has to pay interest rate at
a similar level applicable in Dissen a. T. / Germany
to unsecured short-term credits in the currency
agreed upon.
b) In case of substantially delayed or missing delivery
caused by the customer, FMD is entitled to claim a
flat rate of 15 percent of the respective value of
delivery without proof of damage.
VIII. Other regulations
1. Delivered products remain property of FMD until
covering of all existing demands against the customer.
The regulation about the danger of price and
performance in sec. III.-8 is not changed by the
retention of title.
2. Without renunciation from FMD on further claims, the
customer exempts FMD from any entitlements of third
parties, which are raised on the basis of product liability
or similar regulations against FMD, as far as these claims
are supported by the circumstances given, e.g. by the
presentation of the product by the customer or other
third parties without explicit and written approval of
FMD. The exemption includes in particular the
expenditures made by FMD and is guaranteed by the
customer under renunciation of further conditions or
other objections, in particular under renunciation of
supervision and recall duties as well as under
renunciation of the objection of statute of limitation.
3. FMD reserves all rights of property, origin and other
commercial protection originating from the company
know-how on all pictures and drawings, calculations
and other documents, as well as software put to the
customers disposal whether in physical or electronical
form.
4. All notifications, explanations, announcements et
cetera are to be written exclusively in German or
English language. Communications by means of Fax or
E-mail are enough for the written form.
Ein Unternehmen der
Horstmann Group
Telefon: +49-(0)5421-9448-0
Fax::
+49(0)5421-9448-41
FMD Möbel GmbH
Heidländer Weg 68
D – 49201 Dissen
info@fmd-moebel.de
www.fmd-moebel.de
IX. General terms for the contract
1. Location for Payment, delivery or any other
obligations from the legal relations of FMD with the
customer is Dissen a. T. / Germany. This regulation also
applies if FMD undertakes the costs of payments, fulfils
services for the customer at another place, or if
payment against handing over of products or
documents is to be performed, or if fulfilled services
have to be reverted. The arrangement of INCOTERMS
of the group F or the group C or arrangements to the
payment of the expenses contain no change of the
preceding regulation about the place where the
contract is to be fulfilled. FMD is entitled to demand
payment also at the head office of the customer.
2. For the legal arrangement with the customer, the
agreements of the United Nations as amended on 11th
April, 1980 about International Sale of goods (UNKaufrecht/ CISG) apply in the English-speaking version.
The same is the case with the relevant commercial
practices agreed upon in Dissen a. T. / Germany. The
CISG applies beyond the range of its application and in
spite of contract-stated reservations also to all
contracts which are subject to the international terms
of trade as stated in the regulations in sec. I. In case of
use of trade clauses, the INCOTERMS 2000 of the
international Chamber of Commerce are to be used
taking into account the regulations stipulated in these
international terms of trade.
3. The CISG in conjunction with these international terms
of trade apply exclusively to the signing of contracts,
including
arrangements
concerning
the
court
competence and the inclusion of these international
terms of trade, as well as the contractual rights and
duties of the participating parties including precontractual and other accessory obligations, as well as
to the interpretation of the above. Beyond the validity
of the CISG, the legal relations of the parties determine
themselves according to the not standardized Swiss
law, namely to the Swiss contract law.
4. All contractual and extra contractual disagreements
from or in connection with contracts, for which these
terms of international trade is supposed to be
applicable, are to be decided in the well-established
legal way under preclusion according to the arbitration
board order of the London Court of international
Arbitration (LCIA). The arbitration board consists of three
referees. One of them is nominated by the plaintiff and
the defendant respectively. If the claim values less than
EUR 5000, the board consists of one referee. The place
of the arbitrational procedure is Zurich Switzerland; the
language can be German or English. Nevertheless, FMD
is entitled in particular cases to raise complaint before
the state courts in the domicile of the customer or any
other responsible state court, indicated by home or
foreign law.
5. Should regulations of these terms of international
trade be or become entirely or partly ineffective, the
regulations for the rest remain effective. The parties are
required to substitute the ineffective regulation by a
lawful regulation similar to the economic sense.
Geschäftsführer:
Dipl- Kfm. Jürgen
Horstmann
Richard Netzel
HRB Osnabrück 110103
Ust-ID: DE 117578973
Deutsche Bank
AGBielefeld
07.01.2014
Kto-Nr. 0 241 661
BLZ: 480 700 20
Seite 4 von 4