General terms and conditions of business and delivery
(as of 01.12.2009)
1.01 The following terms and conditions of business shall apply only in entrepreneurial business transactions and shall form the basis of all our offers, orders, deliveries and services.
1.02 Other terms and conditions shall only be recognized to the extent that they are consistent with our GTC or are expressly made the basis of the respective contract or service by us in the individual case.
2.01 Our offers are always subject to change. In case of doubt, the contract shall only be concluded with and in any case only in accordance with the terms and content of our written order confirmation, if such a confirmation is issued. Individual contractual agreements remain unaffected by this.
2.02 Any indicative prices communicated shall not be deemed to be offers and shall only become the basis of the contract if agreed. We shall be bound by our offer prices for a maximum period of four months until the order is placed.
2.03 Offers together with attachments may not be made accessible to third parties without our consent.
3. prices and terms of payment
3.01 Our prices are net prices without cash discount or any other discount in Euro ex works excluding packaging, freight and insurance plus the applicable statutory value added tax. Any granting of discounts shall require the express agreement of the contracting parties. The prices shall apply exclusively to parts designed and manufactured in accordance with the processing requirements. For additionally required work, such as the removal of paint, oil, grease, tar, old metal coatings and the subsequent attachment of openings to hollow bodies as well as the preparation of test reports, we shall charge the surcharges previously agreed upon with the customer, in the absence of which we shall charge the prices in accordance with § 315 BGB (German Civil Code).
3.02 If the cost factors relevant for pricing (production material, energy, operating materials, wages and salaries, etc.) change significantly in the period from the conclusion of the contract to the contractually agreed date of delivery, we shall be entitled to demand that the customer agree on new prices to compensate for such cost increases by amending the offer prices. If no agreement is reached, we and the customer shall be entitled to withdraw from the contract. In the event of a reduction in the cost factors referred to in sentence 1, the customer shall be entitled to agree on a corresponding price reduction by applying the above provision mutatis mutandis and, in the absence of agreement, shall be entitled to withdraw from the contract.
3.03 Unless otherwise expressly agreed, payments shall be made after delivery within 8 days after receipt of invoice without deduction of discounts. In the event of default in payment, we shall charge interest on arrears at a rate of 8 percentage points above the prime rate, without prejudice to further rights.
3.04 The customer shall only have the right to offset against our claims if his claim is undisputed or has been legally established.
4.01 Unless otherwise agreed, the delivery period shall commence upon receipt of the order confirmation; however, in the event of later delivery of the material to be processed by the Customer, the delivery period shall not commence until this point in time.
4.02 If delivery is postponed as a result of unforeseeable circumstances affecting us, our suppliers or subcontractors, e.g. force majeure, strike, shortage of raw materials, operational disruption or power failure, the customer shall be entitled to withdraw from the contract after granting a reasonable period of grace. § Section 323 (2) of the German Civil Code (BGB) shall remain unaffected. If the aforementioned circumstances make it impossible for us to deliver, we shall be released from our obligation to deliver. If delivery becomes unreasonable for us due to these circumstances, we shall be entitled to refuse delivery. The customer shall not be entitled to claim damages insofar as we are not responsible for these circumstances.
4.03 If the customer is in default with regard to his obligation to provide or cooperate after a written reminder, we shall be entitled to withdraw from the contract and demand damages in lieu of performance after setting a 14-day grace period in writing.
4.04 Partial deliveries are permissible insofar as they are reasonable for the customer.
4.05 Deliveries are made ex works excluding packaging.
4.06 The risk for objects of the customer to be processed shall pass to the customer upon leaving our works, however, at the latest upon handover to the forwarding agent or carrier. With regard to transport damage, the contractor shall only be liable for intent and gross negligence. This shall not apply in the event of a breach of pre-contractual duties to provide information and clarification. The liability for simple and slight negligence is excluded, unless it is a breach of a material contractual obligation within the meaning of the case law of the Federal Court of Justice. This shall not apply in the event of a breach of pre-contractual duties to provide information and clarification.
4.07 If the goods to be processed are collected by us at the request of the customer, the customer shall bear the transport risk. The customer is free to insure these risks. With regard to the contractor's liability for transport damage, reference is made to clause
4.06, sentences 2 and 3.
4.08 The aforementioned provisions shall also apply if we have assured freight-free deliveries.
4.09 If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch.
4.10 Dispatch route, type and means of dispatch shall be left to us without guarantee for the fastest and cheapest transport. The interests of the customer shall be adequately taken into account. If we act as forwarding agent, the General German Forwarding Agent Terms and Conditions shall apply in addition.
4.11 Goods notified as ready for dispatch must be called off by the customer without delay, at the latest, however, after expiry of a reasonable period after notification. If no call is made, this shall entitle us to store the goods at the expense and risk of the Customer at our own discretion and to invoice them as delivered ex works.
4.12 If the dispatch or delivery of the goods is delayed at the request or instigation of the customer, storage charges amounting to 1% of the invoice amount may be charged for each month or part thereof, starting one month after notification of readiness for dispatch. The storage charge shall be limited to 5 % of the invoice amount, unless we can prove higher storage costs. The customer can provide evidence that storage costs were not incurred at all or are significantly lower than the flat rate.
4.13 No liability shall be assumed for any waiting times incurred, provided that these are still reasonable in total and in any case do not exceed one week, unless collection and delivery dates have been bindingly agreed.
4.14 Insurance against transport damage shall only be taken out at the order and expense of the customer.
4.15 If processed goods are returned to us for reasons for which we are not responsible, the customer shall bear the risk until the goods are received by us.
4.16 Surface-treated parts shall only be packaged to the extent that the material to be processed was sent packaged, repackaging was requested and the packaging material is reusable. If additional packaging is requested after surface treatment, this shall be charged separately and shall not be taken back.
5. claims for defects
5.01 We shall only assume warranty for our performance in accordance with the following provisions and only vis-à-vis the customer as the first purchaser. The assignment of claims for defects to third parties is excluded.
5.02 We guarantee professional surface treatment in material and workmanship according to the recognized rules of technology, the applicable DIN regulations. In galvanic and chemical processes as well as due to quality differences of the raw material, deviations from a sample on which the order is based are sometimes unavoidable.
5.03 Defective surface-treated parts will be professionally repaired by us free of charge.
5.04 Claims for defects of the contractual partner shall become statute-barred one year after delivery of the item or acceptance of the work. This period shall not apply if the law does not permit a shortening of the periods specified in §§ 438, 634 a BGB. The delivered goods must be inspected immediately to ensure that they are free of defects. Defects shall be notified in writing without delay, but no later than 12 days after receipt of the goods. The obligation to inspect shall also apply if reference samples have been sent. In the case of defects that are not immediately apparent, the same shall apply within the aforementioned period after discovery of the defect.
5.05 If a complaint is not made in due form or time, the goods shall be deemed approved by merchants within the meaning of the German Commercial Code (HGB).
5.06 The items handed over to us for processing shall be delivered with a delivery bill or with precise written details of the number of pieces and total weight. The details of the gross weight, even if they are of significance for the customer, are not binding for us. Missing parts will only be replaced if their delivery is evidenced by a delivery bill signed by us and the risk for the missing parts has passed to us. In the case of small and mass-produced parts, we shall not be liable for rejects and shortfalls of up to 3% of the total quantity delivered, unless otherwise agreed.
5.07 In the event of failure of the subsequent performance or if the Seller refuses both the subsequent improvement and the subsequent delivery or if the subsequent performance is unreasonable, the Customer shall be entitled to reduce the purchase price or the remuneration or, at its option, to withdraw from the contract and to claim damages in accordance with Clause 5.08. A subsequent improvement shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or defect or other circumstances indicate otherwise.
5.08 The Contractor shall be liable within the scope of the contractual claims for defects - except for damages resulting from injury to life, body or health - for damages only for intent and gross negligence including intent and gross negligence of its representatives and vicarious agents, unless otherwise provided below. Liability for simple or slight negligence is excluded, unless it is a breach of a material contractual obligation within the meaning of the case law of the Federal Court of Justice. Insofar as the aforementioned exclusion of liability due to the breach of an essential contractual obligation does not apply, the Contractor shall only be liable for the foreseeable damage typical for the contract. Any further claims of the Customer shall be excluded. The above limitations or exclusions of liability shall not apply in the event of a breach of pre-contractual obligations to provide information and clarification. The Contractor's liability under the Product Liability Act shall remain unaffected. Contractual penalties shall not be recognized.
5.09 A defect in the partial delivery shall not entitle the Customer to rescind the contract unless the defect in a partial delivery is so substantial that the acceptance of further partial deliveries is no longer of interest to the Customer.
5.10 The warranty shall only apply to stresses under normal operating and climatic conditions. If the goods are intended for special conditions and we have not been informed of this beforehand, so that this has not become an object of the contract, a warranty for these special conditions is excluded. The claims for defects shall expire with respect to such defects for which a remedy has already been attempted beforehand by a third party, unless the user has had a reasonable opportunity to remedy the defect beforehand.
5.11 The material to be machined must be free of casting skin, molding sand, scale, oil carbon, burnt-in grease, welding slag, graphite, paint coatings; it must not have any pores, blowholes, cracks, doubles, etc.; threads must be sufficiently undercut. If this is not the case, we are entitled to refuse processing or to withdraw from the contract. If the customer nevertheless insists on processing or if the material supplied to us for surface treatment is technologically unsuitable for such surface treatment for reasons not recognizable to us, we shall not assume any warranty for a certain dimensional accuracy, adhesive strength, color retention and corrosion-preventing properties of the applied layer, insofar as a defect is attributable to the unsuitability of the material and is not due to gross negligence or intent on our part. Furthermore, no warranty shall be given for adhesion if the material has been deformed after surface treatment, even if trial electroplated parts could be deformed without chipping of the electroplated layer and the customer has requested processing despite being informed of the risk of chipping.
5.12 If the goods intended for surface treatment or a material sample suitable for this purpose are not made available to us for testing purposes for a sufficiently long period determined by us, but at least for six weeks, prior to the start of processing, we shall not assume any liability for corrosion damage that is not due to intent or gross negligence. If, in an individual case, in view of the delivery time specified to us by a customer, it is not possible for us to carry out short-term tests or other chemical and/or mechanical examinations or to prepare measurement reports or test certificates for scheduling reasons, and if the customer requests surface treatment without carrying out short-term tests or other chemical and/or mechanical examinations or preparing measurement reports or test certificates, despite our prior indication to this effect, we reject any liability for damage attributable to the lack of testing, except in cases of intent and gross negligence.
5.13 Hollow parts shall only be galvanically treated on the outer surfaces, unless cavity treatment has been agreed in special cases. Immediate corrosion on the untreated surfaces does not justify any rights of complaint. Surface-treated material is at risk from condensation and fretting corrosion. It must be packed, stored and transported properly.
5.14 The customer shall specify the minimum coating thicknesses at a measuring point to be agreed upon and shall take suitable measures to prevent chemical and mechanical damage to the surface. We shall only be liable for weather damage and for any damage caused by residues from the treatment process later seeping out of duplications and other inaccessible cavities in the event of gross negligence and intent. If the customer deems hydrogen degassing to be necessary, we will only undertake this by appropriate agreement and to the exclusion of any liability, except in cases of intent and gross negligence. The above limitations of liability or exclusions of liability shall not apply in the event of a breach of pre-contractual duties to provide information and clarification.
6. limitations of liability outside the liability for defects
The Contractor shall also only be liable for damages outside the scope of Section 5.08 - except for damages resulting from injury to life, body or health - in accordance with Section 5.08. These limitations of liability shall also not apply in the event of a breach of pre-contractual information and clarification obligations. Contractual penalties shall not be recognized.
7. security interest
7.01 We shall be entitled to a statutory entrepreneur's lien on the objects processed by us. Irrespective of this, the customer shall grant us a contractual lien on the objects handed over for the purpose of surface treatment, which shall serve to secure our claim arising from the order. Unless otherwise agreed by the contracting parties, the contractual lien shall also apply to claims arising from orders and services previously performed, insofar as they are in an internally connected, uniform life relationship with the object of the order. If the surface-treated parts are delivered to the customer before full payment has been made, it is already agreed with the customer that ownership of these parts is then transferred to us in the value of our claim as security for our claims and that the transfer of possession is replaced by the customer keeping the parts in safe custody for us. The same shall apply with regard to the customer's expectant right to objects handed over to us for the purpose of surface treatment which have been delivered to the customer by a third party under reservation of title. We shall be entitled to cause the reservation of title to lapse. Claims for return of title of the customer against a third party to whom he had previously transferred the objects handed over to us for the purpose of surface treatment as security are hereby assigned to us. We hereby accept the assignment.
7.02 The customer may neither pledge nor assign items on which we have a lien or which are our property by way of security. However, he may resell or process the goods in the ordinary course of business, unless he has already effectively assigned the claim against his contractual partner to a third party in advance. Any processing by the customer of the goods assigned to us by way of security to form a new movable item shall be carried out on our behalf with effect for us, without any liabilities arising therefrom. We hereby grant the customer co-ownership of the new item in the ratio of the value of the new item less the value of our performance to the value of the new item. The customer shall store the new item with due commercial care and free of charge.
7.03 In the event that the customer acquires sole or co-ownership of a new item by combining, mixing or blending our security goods with other movable items to form a uniform new item, the customer hereby assigns to us as security for our claims this right of ownership in the ratio of the value of our security goods to the value of the other item with the simultaneous promise to duly store the new item for us free of charge.
7.04 In the event of resale of the goods processed by us and assigned to us by way of security or of the new item produced from them, the customer shall inform his purchasers of our ownership by way of security.
7.05 In order to secure the fulfillment of our claim, the customer hereby assigns to us all claims, including those arising in the future, from the resale or further processing of the goods assigned to us, including ancillary rights, in the amount of the value of the goods. We hereby accept the assignment.
7.06 The customer shall be authorized to collect the claims against third parties resulting from the resale or further processing in our favor. At our request, the customer shall provide evidence of the claims individually and disclose the assignment to third party purchasers with the request to pay us up to the amount of our claims. We shall also be entitled to notify the subsequent purchaser of the assignment ourselves at any time and to collect the claim. However, we shall not request the customer to collect the claims or to disclose the assignment, shall not collect the claim ourselves and shall not disclose the assignment itself as long as the customer duly meets its payment obligations towards us.
7.07 The customer shall be obliged to inform us immediately of any enforcement measures by third parties in respect of the security interests.
7.08 The customer is obligated to sufficiently insure the goods that are our property by way of security against the risk of fire and theft and to assign the claims against the insurer and the damaging party to us upon request.
7.09 At the request of the customer, the securities to which we are entitled under the above provisions shall be released to the extent that their value exceeds the claims to be secured by more than 20%.
7.10 In the event that third parties assert rights to the collateral, the customer undertakes already now to immediately hand over to us all necessary documents and to reimburse us for any intervention costs incurred, insofar as the intervention is successful and the execution against the third party as debtor for costs has been attempted in vain.
7.11 All our claims, including those arising from other contracts, shall become due immediately, even in the event of deferral, as soon as the customer culpably defaults on the fulfillment of other, not insignificant obligations towards us, ceases payments, is overindebted, insolvency proceedings are opened against its assets or the opening of such proceedings is rejected for lack of assets. In such a case, we shall be entitled to refuse outstanding deliveries and services and to set the customer a reasonable period of time within which he must effect payment or provide security, at his discretion, concurrently with our performance or delivery. After unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract.
8. place of performance and jurisdiction
8.01 Insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties to the contract shall be the Contractor's registered office. The place of performance shall be our registered office, unless warranty claims or claims in connection with the rescission of a contract are concerned.
8.02 The laws of the Federal Republic of Germany shall apply to the exclusion of foreign law and the unified international sales law. The German version of a contract text shall be authoritative.
9. severability clause
Should any of the aforementioned provisions of these GTC be void, invalid or unenforceable for any reason, the validity of the remaining provisions and the underlying contract shall not be affected.