General Terms and Conditions
Clause 1 General – Scope of Application
(1) Our Terms and Conditions apply exclusively; we do not accept conditions by the buyer which conflict with or deviate from our Terms and Conditions, unless we have agreed to such conditions expressly and in writing. Our Terms and Conditions also apply if we complete the delivery to the buyer unconditionally whilst being aware of the buyer’s conditions which are conflicting with or deviating from our terms of sale.
(2) Our Terms and Conditions apply only to contractors within the meaning of Section 310 (1) BGB (German Civil Code).
(3) Our General Terms and Conditions apply also to future business with the buyer, even if they are not expressly agreed again.
Section 2 Offer, Offer Documentation, Scope of Services
(1) If the order must qualify as an offer in accordance with Section 145 BGB, we can accept it within 2 weeks.
(2) We reserve the property rights and copyrights regarding illustrations, drawings, calculations and other documents. This also applies to such written documentation referred to as “confidential”. Prior to disclose to third parties, the buyer requires our express written consent.
(3) We are not liable for errors arising from documents, drawings, samples etc. as well as from details provided by the buyer, insofar as we cannot reasonably be expected to recognize these.
(4) Our offer including drawings, illustrations, dimensions, weights or other technical data is without obligation and non-binding, if the order confirmation does not state otherwise or if the obligation is expressly agreed in writing. The information contained in brochures and catalogs, such as illustrations, drawings, weights and dimensions are approximate values in line with the industry standard.
(5) Deviations from dimensions, weight and quantity within customary tolerances, relevant DIN specifications and requirements for the casting process are permitted. Dimensions and weights specified in our offers and order confirmations are not quality guarantees. For the calculation, the delivery weights and quantities identified by us are decisive.
(6) Manufacturing facilities related to the orders, such as models, templates, core boxes, molds, casting tools, devices and control gauges, which have been provided by the buyer, must be sent to us free of charge. The conformance of the manufacturing facilities provided by the buyer with the contractual specifications or drawings or samples handed over to us, will be verified by us only on the basis of express agreement. We are permitted to modify manufacturing facilities provided by the buyer, if this appears to be necessary for the casting process and if the work-piece is not changed as a result of this. The costs for the modification, maintenance and replacement of the client’s manufacturing facilities shall be borne by the buyer.
(7) The manufacturing facilities shall be treated and kept safe in the same way as our own property. We do not accept any liability for accidental destruction or deterioration of the manufacturing facility. Manufacturing facilities of the buyer no longer required by us can be sent back by us at the buyer’s costs and risk or, if the buyer fails to collect them within a reasonable time after requested to do so, we can store them at the usual costs and destroy them after setting a reasonable period and prior warning.
(8) Order-related manufacturing facilities made or procured by us on the client’s instructions shall remain our property also if the buyer is invoiced a share of the costs. They will be stored for three years after the last casting. If otherwise agreed, that the buyer shall become the owner of the facility, ownership passes to the buyer with payment of the agreed price or share of the costs. The transfer of the facility is replaced by our retention obligation. The storage arrangement can be terminated by the buyer at the earliest two years after transfer of ownership, if there is no important reason. Claims under copyright law or intellectual property law can be brought by the buyer only insofar as he points out the existence of such rights to us and expressly reserves these rights. If the utilization of a usable manufacturing facility leads to rejects, the buyer has a duty to either provide another manufacturing facility or bear the costs of the replacement facility. Components to be cast by us must be delivered by the buyer in the proper dimensions and in perfect condition. Components becoming unusable must be replaced by the buyer free of charge.
(9) The agreed condition as determined in the service description (also within a drawing) conclusively determine the characteristics of the performance.
Section 3 Prices, Transfer of Risks, Packaging Costs
(1) Insofar as not stated otherwise, the prices contained in our offers are binding for 30 days from their date. Otherwise, the prices named by us at the confirmation of the order plus the respective statutory sales tax apply. Additional deliveries and services are invoiced separately.
(2) Orders for which fixed prices or fixed remuneration have not been expressly agreed shall be invoiced on the basis of the list prices valid on the date of delivery or at the valid rates for the calculation of our work wages (day rate) for this date, plus postage, freight charges and packaging.
(3) If not stipulated otherwise in the order confirmation, our prices apply “ex-factory”, excluding packaging; this shall be invoiced separately unless expressly agreed otherwise (see also Clause 5, no. (4)).
(4) The deduction of a discount requires a special written agreement.
(5) If requested by the buyer, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the buyer.
(6) Damages in transit or losses due to a fault on our part, the fault of our legal representatives, agent or other vicarious agent, shall be our liability only in case of intent and gross negligence. In case of slight negligence, we are obliged to assign potential claims for compensation against the transport company etc. to the buyer, if liability on our part cannot be justified as a consequence. Therefore, damages in transit must be reported to us immediately, with the submission of a confirmation of the damage by the transport company (see Section 377 HGB [German Commercial Code]). The damaged goods must be kept at our disposal.
Clause 4 Terms of Payment
(1) If not stipulated otherwise in the order confirmation, the payment of the purchase price including all other agreed remunerations – in particular the services for ancillary services – is due net completely at the time of the delivery or acceptance and handover or submission of the invoice. The client is in default of payment without further statements on our part, 30 days after the date the payment is due, if he has not made the payment.
(2) If there are defects, the buyer does not have a right of retention unless it is apparent that the delivery is defective or it is apparent that the buyer has a right to reject the acceptance of the goods; in this case the buyer only has a right of retention insofar as the amount retained is reasonably proportionate to the defects and the likely costs of rectification (in particular corrective action). The buyer does not have the right to assert claims and rights due to defects if he has not made the payments due and the amount due is reasonably proportionate to the value of the defective delivery or goods.
(3) Otherwise, the buyer has rights of set-off only if his counterclaims are legally determined, undisputed and accepted by us. Furthermore, the buyer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(4) Interest on arrears are calculated at 8 % p.a. above the base interest rate (Section 247 BGB). They shall be assessed higher or lower, if we provide evidence of a charge with a higher interest rate or the buyer provides evidence of a lower charge.
(5) If the buyer does not fulfill his payment obligations, in particular if he fails to cash a check or if we become aware of other circumstances which call into question the creditworthiness of the buyer, we are entitled to declare that the entire remaining debt is due for payment, even if we have accepted bills of exchange. In this case we also have the right to demand advance payments or security deposits.
Clause 5 Delivery Time
(1) Delivery times or deadlines which can be agreed to be binding or non-binding, must be recorded in writing.
(2) The commencement of a delivery period agreed with us in writing pre-supposes that all technical issues have been clarified. Unless otherwise agreed, agreed delivery dates are therefore deemed as agreed on an approximate basis.
(3) The compliance of our delivery obligation further pre-supposes the timely and proper fulfillment of the buyer’s obligation. The right to object if the contract is not fulfilled is reserved.
(4) Goods that have been declared ready for dispatch must be accepted immediately, otherwise we have the right to send it according to our own option or to store them at standard costs and at the buyer’s risk, we are also entitled to the latter if we are unable to dispatch the goods for reasons for which we are not responsible. The goods are deemed to be delivered one week after the commencement of storage.
(5) If the buyer delays acceptance or culpably breaches other duties to cooperate, we have the right to demand compensation for the losses arising out of this, including potential additional expenses. We reserve the right to further claims.
(6) If the conditions of para. (5) have been met, the risk of accidental loss or accidental deterioration of the purchased goods passes to the buyer at the point in time, at which the buyer is in default of acceptance or debtor’s default.
(7) We are liable in accordance with the statutory provisions, insofar as the underlying contract of sale is a transaction at a fixed date within the meaning of Section 286 (2) no. 4 BGB or of Section 376 HGB. We are also liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the buyer is entitled to claim that his interests in further performance of the contract no longer exist.
(8) We further are liable in accordance with the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; a fault on the part of our representatives or vicarious agents shall be attributed to us. If the supply contract is not based on an intentional breach of contract for which we are responsible, our liability for compensation is limited to the foreseeable typical loss that may occur.
(9) We are also liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on a culpable breach of an essential contractual obligation; in this case, however, the liability for compensation is limited to the foreseeable typical loss that may occur.
(10) Apart from that, in the case of a delay in delivery, we are liable for each completed delayed week, within a flat-rate compensation for delay in the amount of 0.5 % for each completed week of delay, however not more than 5 % of the invoice value of the deliveries and services affected by the delay.
(11) If the buyer changes or increases the scope of work and if this is the reason for a delay in completion or delivery, we shall not be liable for the delay. We will, however, immediately specify a new completion or delivery date, together with explaining the reasons for the delay. If the cause of the failure to meet the deadline is due to force majeure or malfunctions for which we are not responsible, also in relation to suppliers or subcontractors, there is no duty to provide compensation on our part for such delays. We shall notify the buyer immediately.
(12) If the interference takes longer than three months, following an appropriate deadline the buyer has the right to withdraw from the contract in relation to the part that has not yet been fulfilled. If the delivery time extends or if we become free of our obligations, the buyer shall not be able to deduce any claims for compensation from this. We are, however, only be able to rely on the specified circumstances, if we notify the buyer immediately.
(13) Further legal claims and rights of the buyer are reserved.
(14) We have the right to provide partial services and partial deliveries at any time, unless the partial delivery or partial service is not in the interest of the buyer.
Clause 6 Liability for Defects
(1) We shall be responsible for the flawless manufacture of the parts delivered by us, according to the agreed technical delivery specifications. The buyer is responsible for the appropriate construction in particular with regard to the intended use, while complying with any potential safety regulations, choice of raw material and the required test procedures, accuracy and completeness of the technical delivery specifications and the technical documentation and drawing provided to us
as well as for the construction of the manufacturing facility provided, even also when modifications are suggested by us, which are meeting with his approval. Further, the buyer ensures that property rights or other rights of third parties are not infringed due to the details provided by him. Decisive for the contractual condition of the goods is the time of the transfer of risk.
(2) There will be no claims for defects in the case of only slight variation of the agreed quality or in the case of only irrelevant impairment of the usability.
(3) If a defect occurs after assembly / installation which has not been carried out by us, we are only liable within the scope of liability for material defects, if the assembly or installation of the object previous processed or sold by us was carried out competently and professionally. The client must verify the competence and correctness of the assembly or installation. We shall not be liable for defects caused by inappropriate or incorrect use, faulty assembly or commissioning and fair wear and tear.
(4) Defects must therefore be immediately notified to us in writing, however no later than within one week after the receipt of the delivery object. Defects that cannot be discovered within this period even after careful inspection, must be notified to us in writing immediately after discovery. Claims for defects presuppose that the buyer has duly fulfilled his obligations to inspect the goods and notifies us of any defects in accordance with Section 377 HGB.
(5) Insofar a defect of the purchased object exists, we are entitled to supplementary performance of our choice to remedy the defect or to deliver a new fault-free item. In cases of remedial action, we have a duty to bear all the costs that need to be incurred to remove the defect, in particular costs for transportation, road, work and materials, insofar as these are not increased due to the purchased item having been taken to a place other than the place of performance. We have the right to refuse supplementary performance as long as the buyer does not meet his payment obligations towards us to the extent which corresponds to the part of the service provided which is free of defects.
(6) If the supplementary performance is not successful, the buyer has the right to demand rescission of the contract or a reduction.
(7) We are liable in accordance with the statutory provisions, if the buyer asserts claims for compensation based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for compensation is limited to the foreseeable, typical loss that may occur.
(8) We are liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, the liability for compensation is limited to the foreseeable typical loss that may occur.
(9) This does not affect liability due to culpable injury to life, body or health; this also applies to the mandatory liability in accordance with the product liability law.
(10) Insofar not agreed otherwise above, liability is excluded; this applies in particular to losses outside of the purchased item as well as the claim for compensation of lost profits.
(11) The limitation period for claims arising out of rights and defects of the deliveries and services – for whatever legal reason – is 1 year. This does not, however, apply in case set forth in Section 438 (1) no. 1 BGB (legal defects in immovables), Section 438 (1) no. 2 BGB (buildings, objects used in buildings), Section 479 (1) BGB (contractor’s right of recourse) or Section 634 (1) no. 2 BGB (buildings or work, the result of which consists in the provision of planning or supervisory services therefor). The periods referred to in the previous sentence 2 are subject to a limitation period of 3 years.
(12) The limitation periods in accordance with para. (9) also apply to all compensation claims against us, which are connected to the defect – irrespective of the legal basis of the claim. Insofar as there are compensation claims of any kind against us, which are not connected to the defect, the limitation period of para. (9) Sentence 1 applies to these.
(13) The limitation periods in accordance with para. (9) and 10) apply subject to the following proviso:
The limitation periods do not apply in case of intent. They also do not apply if we have maliciously concealed a defect or guaranteed the quality of goods or services. If we have maliciously concealed a defect, the legal limitation periods which would apply in the absence of malice apply instead of the periods mentioned. In addition, the limitation periods apply to compensation claims do not apply in cases of injury to life, body or health or freedom, to claims under the product liability law, in the case of a grossly negligent breach of duty or in the case of a breach of essential contractual obligations.
(14) For all claims, the limitation period begins with the delivery, in the case of works services with the acceptance.
(15) Insofar as not expressly stipulated otherwise, the legal provisions regarding the start of the limitation period, expiry suspension, interruption and restart of the limitation periods remain unaffected.
Clause 7 Total Liability
(1) Further liability for compensation than intended by Clause 6 – regardless of the legal nature of the asserted claim – is excluded. This applies in particular to compensation claims from culpa in contrahendo, due to other breaches of duty of due to tortious claims for compensation for material damage in accordance with Section 823 BGB.
(2) Insofar as the liability for compensation against us is excluded or limited, this also applies with regard to the personal liability for compensation of our staff, employees, colleagues, representatives and vicarious agents.
Clause 8 Guarantee of Retention of Title
(1) We reserve the right of ownership of the purchase object until the receipt of all payment under the supply contract. The retention of title extends also to the accepted discount, insofar as we post receivables against the buyer in current invoices (current account reservation). In case of behavior contrary to contract on the part of the buyer, in particular in case of default of payment, we have the right to take back the purchase object. If we take back the purchase object, this does not constitute rescission of the contract, unless we have declared this expressly in writing. Seizure of the purchase object by us always constitutes a rescission of the contract. After taking back the purchase object, we have the right to convert it, the realization proceeds shall be credited toward the liabilities of the buyer, less reasonable disposal costs.
(2) The buyer has an obligation to treat the purchase object with care; in particular, the buyer has an obligation to appropriately insure the same against fire and water damage and theft at the buyer’s own costs, the insured sum being adequate to cover the replacement value. If maintenance and inspection works are required, these must be carried out in a timely manner by the buyer at his own costs.
(3) In case of seizures or other interventions by third parties, the buyer must notify us immediately in writing, so that we can institute an action in accordance with
Section 771 ZPO (Code of Civil Procedure). Insofar as the third party is not able to reimburse us for the court and out of court costs of an action in accordance with
Section 771 ZPO, the buyer is liable for the loss incurred by us.
(4) The buyer has the right to resell the purchase object in the ordinary course of business; he does, however, already assign all receivables in the amount of the final invoice (including VAT) of our claim which arise against his buyers or third parties, regardless whether the purchased item was resold without or after processing. The buyer is entitled to the collection of these receivables also after the transfer. Our authority to collect the receivables ourselves remains unaffected by this. We do, however, undertake not to collect the receivable as long as the buyer fulfills his payment obligations from the income received, does not fall into payment arrears and, in particular, there has not been an application for the initiation of bankruptcy, composition or insolvency proceedings or payments have been suspended. Should this, however, be the case, we can demand that the buyer discloses the assigned receivables and their debtors to us, provides all details required for the collection, submits the corresponding documents and notifies the debtors (third parties) of the transfer.
(5) The processing or transformation of the purchased item by the buyer is always carried out for us. If the purchased item is processed with other objects which are not owned by us, we acquire the joint ownership of the new object in the proportion of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of the processing. For the object being created by the processing, the same applies as for the purchased items supplied with reservation.
(6) If the purchased item is inseparably amalgamated with other objects which are not owned by us, we acquire the joint ownership of the new object in the proportion of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of the amalgamation. If the amalgamation is carried out in such a way that the item of the buyer is viewed as the main object, it is deemed as agreed that the buyer transfers joint ownership to us on a pro-rata basis. The buyer shall safeguard the sole or joint title thus created for us.
(7) We undertake to release the securities we are entitled to, to the buyer upon his request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released shall be made by us.
Clause 9 Lien, Assignment for Security, Use, Storage Charges
(1) In case of processing of items, due to our receivable arising from the order, we are entitled to a lien to the buyer’s objects which have come into our possession on the basis of the order. The lien extents to all receivables to which we are entitled, as they correspond to the security of the reservation of title in accordance with above Clause 8, no. 1. The lien can also be asserted due to receivables from earlier works, deliveries of replacement parts
and other services provided earlier, insofar as they are connected with the object. For other claims arising from the business relationship, the lien only applies insofar as these are undisputed or legally binding.
(2) If the buyer is in default of payment for a period of more than 2 months, following our prior written announcement and the expiry of a further waiting period of 4 weeks, we shall consequently be entitled to utilize the object of the contract and the auction, with reference to market prices, in the best possible way by private sale. The buyer is entitled to any potential proceeds obtained; we are, however, entitled to deduct the costs incurred by the utilization in addition to our principal claim and the interest accrued.
(3) Should we not be able to hold the pledged asset for operational reasons, we can demand reimbursement of the costs incurred to us for alternative storage. The costs of storing the object on our own premises shall be invoiced to the buyer at market-based prices.
(4) Insofar as we process items for the buyer which do not belong to the buyer but to third parties, the buyer assigns his remuneration claim arising against the third party to us at this point, in the amount of the invoice value corresponding to our service. We shall accept the assignment. Notwithstanding the assignment, the buyer is entitled to the collection as long as he fulfills his obligations towards us and does not fall into financial collapse. The buyer must, upon request, provide us with the details required for the collection of the assigned claims and notify the debtor of the assignment.
Clause 10 Place of Jurisdiction – Place of Performance
(1) Where the buyer is a businessman, our place of jurisdiction is Rheine or Münster; we do, however, have the right to sue the buyer also at his local court.
(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) If not stipulated otherwise by the order confirmation, our place of business (Rheine or Hörstel) is the place of performance.