GT & C
1. Application and Scope
1.1. All deliveries, services and offers of Fujitsu General (Euro) GmbH (hereinafter referred to as "Fujitsu") to merchants are exclusively based on these General Terms and Conditions of Sales, which thus also apply to all future business relations, even if they are not expressly agreed again.These Terms and Conditions are deemed to have been accepted upon taking delivery of the products or services at the latest.Any counterconfirmations of the Purchaser, making reference to his general terms and conditions of purchase or sale, or to trade terms (Incoterms) are hereby opposed.
1.2. Agreements between the parties which deviate from these Terms and Conditions are not legally valid unless stipulated in writing.This also applies to all other oral arrangements, particularly telephone communications, as well as to this requirement of the written form.Silence on the side of Fujitsu to offers is to be understood as a rejection.
1.3. Fujitsu reserves the right to make technical and optical changes irrespective of the product descriptions given in catalogues and brochures, at any time and without prior notice, unless such descriptions were separately agreed under individual contracts, to such an extent as they serve the further product development, even if product specific specifications not explicitely mentioned in the data sheet of the respective product are thereby modified, deleted or removed.The same applies in case of model changes or changes in construction or material which are deemed necessary due to technical improvements.The Purchaser cannot base any rights on such changes; in other respects the Purchaser´s rights remain unaffected.This also applies to products already delivered.
1.4. Should Fujitsu or one of its employees deliver any products/component parts of products to the customer prior to and/or upon contract conclusion, this is done for mere advertising and/or illustrative purposes with regard to the functional options of the product/component part of the product.Such delivery is not made as sample/design.The foregoing regulation does not apply in those cases only where a purchase transaction according to sample/design was expressly concluded by individual contract.
2. Offer and Contract Conclusion
2.1. The offers of Fujitsu are made without obligation and have no binding force.The contract is effectively concluded upon declaration of acceptance, at the latest upon the rendering of accounts by Fujitsu.
2.2. Product and/or service specifications are only binding, if this is expressly agreed in writing.
2.3. The employees of Fujitsu are not authorized to enter into oral collateral agreements or to give verbal guarantees going beyond the contents of the written contract.
3.1. The standard prices are the prices which are valid on the day of delivery, based on the official price list of Fujitsu.Statutory V.A.T.applicable at the date of delivery will be added to all price calculations.Additional deliveries and services are separately invoiced.
3.2. Unless otherwise agreed, the prices for deliveries are charged ex central warehouse of Fujitsu, including normal packaging.
3.3. Unless expressly otherwise agreed in writing, all prices are charged in EURO (€) and form the basis for the entire business transaction.
4. Time of Delivery and Service
4.1. The time of delivery is only deemed to have been approximately agreed.Changes in delivery dates are reserved.Fujitsu will make best efforts to adhere to the announced delivery schedule.
4.2. Adherence to the delivery schedule is deemed as fulfilled, if the products have left the works/warehouse until the end of the period of delivery, or if notice of readiness for dispatch of the products has been given to the Purchaser.
4.3. Deliveries are performed subject to correct, complete and punctual selfsupply of Fujitsu with the products.Fujitsu is always entitled to make partial deliveries and render partial services.None of these circumstances entitle the Purchaser to assert any claims for damages.
4.4. If in exceptional cases a binding delivery date is agreed, the Purchaser, in case of delayed delivery, shall grant to Fujitsu a four weeks´ grace period for subsequent delivery.Following expiration of this period the Purchaser may cancel the contract to the extent the readiness of a product for dispatch has not yet been notified.
4.5. If the time of delivery is prolonged or Fujitsu is exempted from its supply commitment, the Purchaser shall have no claims for damages.
4.6. Fujitsu is particularly in case of agreed partial deliveries entitled to withhold its supply and service commitments until the Purchaser has properly fulfilled his contractual obligations.
4.7. If the Purchaser has failed to take delivery or if the delivery date is postponed upon the Purchaser´s request, Fujitsu is entitled to claim damages for the loss sustained.In such events the Purchaser shall pay as ordinary damages a flat cost reimbursement amounting to 1% of the delivery price per month to Fujitsu, subject to the enforcement of an exceptionally high damage in the individual case.Upon failure to accept delivery the risk of accidental deterioration and accidental perishing shall pass to the Purchaser.
4.8. The time of delivery shall be prolonged even within a delay in delivery upon the occurrence of unforeseeable obstacles which Fujitsu was unable to prevent despite reasonable diligence and care in the given circumstances (Force Majeure), until elimination of these obstacles plus such reasonable period as required for bringing our business back to normal conditions, unless it is impossible to perform delivery or service.This applies irrespective of whether the obstacles occurred at Fujitsu or at one or several of its suppliers.The above mentioned obstacles also include operational breakdowns, government interferences, power supply difficulties, delays in the supply of essential raw products and building materials.Fujitsu is optionally entitled to cancel the contract in whole or in part due to the part of contract not yet fulfilled.
5. Passing of Risk
5.1. The risk shall pass to the Purchaser as soon as the shipment has been delivered to the person performing transportation, or has left the warehouse of Fujitsu for consignment purposes.If shipping is impossible through no fault of Fujitsu, the risk shall pass to the Purchaser upon notification of the readiness for dispatch.If the products are ready for dispatch and if consignment or acceptance are delayed for reasons for which Fujitsu is not responsible, the risk shall pass to the Purchaser upon receipt of the notification of readiness for dispatch.
6.1. Fujitsu shall be liable under the warranty on the basis of the statutory regulations, unless otherwise hereinafter agreed.
For manufacturing defects and faulty materials the warranty period extends over twelve months, starting on the date of delivery.
6.2. The Purchaser shall immediately give written notice to Fujitsu of any defects, however not later than within one week following receipt of the delivered article.Defects which cannot be discovered within this period even after thorough examination, shall be reported in writing to Fujitsu immediately upon discovery, however not later than one year after the date of delivery.Damages to goods in transit and related defects of the delivered article can only be acknowledged if the Purchaser preserves and upon request of Fujitsu submits the packing material until final clarification of the cause of damage.
6.3. If notice of defective products is given by the Purchaser, Fujitsu may at its option either repair or replace the damaged product or parts thereof.Exchanged parts or products become the property of Fujitsu.
6.4. If subsequent performance is not successful after expiration of a reasonable period, the Purchaser, should he be entitled to do so by operation of law, may at his option request a reduction of the purchase price or cancel the contract.
6.5. Fujitsu may optionally request consignment of the defective product or subsequent performance in situ.Consignment shall be made together with the invoice copy, the delivery note or a photocopy thereof.The Purchaser shall otherwise preserve the damaged product for repair purposes.If the Purchaser wishes any work for breach of warranty to be done at a place determined by him, which is not identical with the delivery place of the product sold, Fujitsu may grant such request in writing, whereby parts covered by the warranty are not charged, whereas hours of work, travelling expenses and transport costs are to be paid at the standard rates of Fujitsu to the same extent as they exceed the costs charged as from the place of delivery.A merely verbal approval of Fujitsu is not binding here.
6.6. Fujitsu does not assume any warranty for damages suffered on the grounds that the Purchaser or third parties modify the products, exchange parts or use consumables which do not comply with the original specifications.The same analogously applies to damages caused by improper use and/or application.
6.7. A liability for normal wear and tear is excluded.
6.8. Warranty claims against Fujitsu may only be asserted by the direct Purchaser and cannot be assigned.
7. Reservation of Title
7.1. Until payment of all debts (including all debts arising in connection with current account balances), which are due to Fujitsu presently or in future against the Purchaser for any legal ground, the delivered products will remain the property of Fujitsu.
The Purchaser is entitled to process and sell the reserved products in the ordinary course of business, as long as he is not in default.Pledges or chattel mortgages are inadmissible.The ordinary course of business does not cover the sale, processing or workmanship of reserved products following the institution of insolvency proceedings against the assets of the Purchaser.Debts resulting from resale or any other legal ground (insurance, tort) with respect to the reserved products (including all debts arising in connection with current account balances) are now already fully assigned by the Purchaser to Fujitsu by way of security.If the value of the assigned debts exceeds 125% of the total claim, Fujitsu undertakes to release the securities up to the agreed limit at the Purchaser´s request.Fujitsu grants revocable authority to the Purchaser to recover in his own name the debts assigned to Fujitsu for its account.This authorization to recover debts can only be revoked in cases where the Purchaser does not properly comply with his payment obligations.
7.2. If reserved products are attached by third parties, particularly by way of a seizure, the Purchaser will make reference to the property of Fujitsu and will immediately notify Fujitsu accordingly, so as to enable Fujitsu to enforce its property rights.Should the third party not be in a position to reimburse Fujitsu for the judicial or extrajudicial costs incurred in this connection, the Purchaser shall be liable for payment of these costs.
7.3. If the Purchaser acts in breach of the contract and particularly makes default in payment, Fujitsu is entitled to take back the reserved products or, if appropriate, request assignment of the claims for return of the Purchaser against third parties.If reserved products are taken back or attached by Fujitsu, this does not imply a rescission of the contract.
7.4. In case of insolvency Fujitsu is entitled to demand that the products delivered under reservation of title be given back, should the administrator in insolvency proceedings not have exercised his option or have rejected performance of the contract.
8.1. Unless otherwise agreed, the Purchaser shall pay cash in advance.
8.2. Where a different term for payment is agreed, Fujitsu is entitled to request advance payment of the invoiced amount or to withdraw from the contract, if the Purchaser makes default in payment with regard to other contracts, or if the Purchaser is threatened with an insolvency petition, or if the financial situation of the Purchaser otherwise deteriorates.
8.3. In case of article 8.2 Fujitsu is entitled to first set off payments against any older debts of the Purchaser, even if otherwise determined by the Purchaser, and will inform the Purchaser about the type of setting off.If costs and interest have already accrued, Fujitsu is entitled to first set off the payment against the costs, thereafter against the interest and finally against the principal performance.
8.4. A payment is only deemed to have been effected, as soon as Fujitsu can dispose of the amount of money.In case of cheques payment is only deemed as effected upon cashing the cheque.In the absence of an express and written agreement no delivery of bills or notes is accepted.Any costs and fees arising in this connection shall be borne by the Purchaser.
8.5. If the Purchaser is in default with his payment obligations, Fujitsu is entitled to request interest for default in the amount of 12% per year, at least however the statutory interest rate according to Section 288 paragraph 2 of the Civil Code (BGB).Such interest for default is to be assessed at a lower rate in cases where the Purchaser can furnish evidence of a minor charge; evidence furnished by Fujitsu of a greater damage is admissible.
8.6. If circumstances become known to Fujitsu which render the credit standing of the Purchaser doubtful, for instance where a cheque or change is dishonoured or where the Purchaser suspends his payments, Fujitsu is entitled to accelerate the maturity of an existing balance of debt, even after acceptance of cheques.In such event Fujitsu is furthermore entitled to request advance payments or provision of security.
8.7. The Purchaser may only claim a setoff, right of retention or reduction of the purchase price, even where notices of defects or counterclaims are asserted, if the counterclaims have been recognized by declaratory judgment or are undisputed.His right of retention due to counterclaims under the same contractual relationship shall remain unaffected.
9. Third Parties´ Property Rights
9.1. Fujitsu is not liable for any violation of a third party´s property rights, if products are manufactured according to the Purchaser´s specifications.The Purchaser shall indemnify Fujitsu with respect to claims of third parties resulting from violations of copyrights, trademarks or patents, including the costs caused by the defence against such claims.
10. Limitation of Liability
10.1. Liability claims against Fujitsu for all damages neither caused by an intentional, nor by a grossly negligent breach of duty by Fujitsu, nor by an intentional or a grossly negligent breach of duty by a statutory representative or vicarious agent of Fujitsu, are excluded.Exempted from this regulation are liability claims of third parties which are based on injuries to life, to the body or health.
10.2. This also applies to claims for damages instead of performance (default), however only to the extent compensation for indirect damage or consequential harm caused by defects is requested, unless the liability is based on a warranty which shall safeguard the Purchaser against the risk of such damages.Each liability is limited to the damage foreseeable upon contract conclusion.A liability of Fujitsu according to the Product Liability Act and other claims resulting from the producer´s liability shall always remain unaffected.
11. Final Provisions
11.1. These General Terms and Conditions of Sales and all legal relations between Fujitsu and the Purchaser shall be governed by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.2. The place of jurisdiction for all legal disputes arising out of the contractual relationship and its creation and effectiveness is the registered seat of Fujitsu.
11.3. Fujitsu reserves the right to record personrelated data of the Purchaser, which are connected with the business relation, on data carriers in accordance with the Federal Data Protection Act.
11.4. The products delivered by Fujitsu may be subject to export control regulations of the European Communities, the Federal Republic of Germany, Japan or the U.S.A.The purchaser undertakes to observe such regulations and to himself procure the permits and approvals where applicable.
11.5. Should individual provisions of these General Terms and Conditions or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all remaining provisions or agreements.In such event the parties shall jointly stipulate a provision as closely as possible reflecting the economic purpose and intent of the invalid provision.