( Version October 24th, 2013 )
Goods
and services will be supplied by us only in conformance with the terms and
conditions named in the following. Other terms and conditions specified by
Customer shall not apply even though we may have been notified of them, and
delivery may be made without reservation. Our Terms and Conditions shall not
apply to consumers within the meaning of Art. 13 BGB (German Civil Code). They shall similarly
apply to any future day-to-day business transacted with Customer. Any and all
agreements regarding the implementation of a contract made between us and
Customer shall be laid down in the contract in question. Contract modifications
and amendments shall be laid down in writing.
1 Contract Conclusion and Scope
a) Offers made by us will not be binding unless
specified differently in an order confirmation or in an express written
declaration made by us. A contract may be regarded as established only after we
have issued a written confirmation or begun executing it.
b) Unless expressly designated as binding, any
information quoted in prospectuses, catalogues and product descriptions
including photographs, drawings, weights, and measures, chemical analysis,
mechanical properties, microstructure and hardness will be approximations in
conformance with common practice in the industry.
c) We
reserve all proprietary rights in photographs, prospectuses, cost estimates,
and other documents. Documentation may not be disclosed to third persons. This
holds particularly true for written documents expressly marked as
"Confidential", which may not be disclosed to third persons without
our express written consent.
2 Prices; Terms of Payment
a) Unless otherwise stated our prices will be quoted
ex works, plus packaging, freight, postage, insurance, and VAT at the current
rate.
b) If, after conclusion of contact, the order-related
costs change significantly, the contract parties shall agree upon a price
adjustment.
c) In the absence of agreements to the contrary, our
invoices shall be paid promptly and in full.
d) Customer shall be entitled to withhold or offset
payments against any claims which Customer may have, only to the extent
justified by undisputed or legally enforceable claims.
e) If
any of the articles delivered by us should prove defective, Customer shall
nevertheless be obligated to pay for any articles that are indisputably free
from defects, unless the resultant incomplete consignment should be of no
interest.
f) If expressly agreed in writing beforehand, we will
accept discountable taxed bills in lieu of payment. Bills and cheques will be
credited to Customer, subject to collection, minus any expenditure, on the day
on which the remittance becomes available to us.
g) Should we be obligated to make advance deliveries,
and should we become aware after a contract has been concluded that payment of
our claims is endangered by lack of funds on the part of Customer, we will, in
addition to asserting our lawful claims based on our right to retain ownership
in the products delivered laid down in Art. 9, prohibit Customer from selling
or processing the goods delivered, demand that either the goods themselves or
indirect possession of them be returned to us at the expense of Customer, and
cancel any direct debit transfer provided that the conditions named in Art. 9
Par. h) apply. In such cases, Customer hereby providentially grants permission
for us to enter its premises and retrieve the goods delivered by us.
Repossession of goods will be equivalent to the cancellation of the relevant
contract only if so stated by us.
h) After due written notice, we will be entitled to
suspend the execution of a contract in the event of payment delays until
payment has been received. After setting a reasonable time limit for
compliance, we will be entitled to withdraw from the contract in such an
instance.
3 Delivery Terms
a) Starting from the date of our order confirmation,
the term of delivery will begin only after all issues relating to the execution
of the contract have been clarified and any other conditions to be met by
Customer have been complied with; mutatis
mutandis the same holds true for delivery deadlines. Deliveries in advance
of set deadlines and partial deliveries shall be admissible unless this is not
acceptable to Customer. The date of delivery shall be the day on which a
consignment is reported ready for shipment or, alternatively, the day on which
it is shipped. In the absence of agreements and contractual specifications to
the contrary, any delivery schedules quoted by us shall not be binding.
b) Without prejudice to our rights relating to any
delay in performance on the part of Customer, the dates and terms named in
agreed delivery schedules shall be deferred and/or extended for as long as
Customer fails to fulfil its obligations. In the event of Customer failing to
accept delivery or culpably failing to fulfil any obligation to co-operate, we
shall be entitled to claim compensation for any resultant loss including
unscheduled expenditures. In such instances, liability for any risk of
accidental destruction or damage of the consignment in question shall pass to
Customer from the point in time at which Customer fails to accept delivery.
c) In the event of any default on our part, Customer
may grant a reasonable respite, expressly stating at the same time that
acceptance of the goods or services to be delivered will be rejected after the
expiry of said term, after which Customer shall be entitled to withdraw from
the contract.
d) At our request, Customer shall be obligated to
state within a reasonable term whether it is intended to withdraw from the
contract because of the delay in delivery and/or to claim damages in lieu of
performance, or, alternatively, to insist on delivery.
4 Serial Deliveries, Long-term and
Call-off Contracts
a) Untermed contracts may be terminated at six months'
notice to take effect at the end of the month.
b) Our prices will be fixed based on agreed order
volumes. In the absence of binding agreements on order volumes, they will be
based on agreed target volumes. In the event of agreed volumes being exceeded or
reduced more than 20 percent at Customer's orders and with our consent, the
contract parties agree already now that prices will be adapted within reasonable
limits, provided that this intention is declared in writing not later than 2
months after agreeing the new volumes or receiving knowledge of these. The price
increase or decrease will be determined based on our costing data or other
appropriate evidence.
c) In case of call orders under a delivery contract
and the absence of other agreements Customer shall submit the quantities
involved no later than 3 months before the date of delivery. Any additional expenses
caused by delays in order placement or by subsequent changes by Customer in the
timing or quantity specified in the call-up shall be borne by Customer.
d) In serial-delivery contracts, increasing or
decreasing deliveries by as much as 10% above or below the volume originally
ordered shall be admissible in view of the special features of the casting
process.
e) Overall prices will change to reflect total
quantities.
5 Force Majeure; Other Obstacles
a) In
the event of force majeure, industrial disputes, lockouts, or official
interventions, we shall be entitled to defer delivery while such obstructions
persist as well as for a reasonable start-up time afterward; alternatively, we
may withdraw from the relevant contract in whole or in part because of such
partial default.
b) Similar to force majeure, unforeseen circumstances
such as, for instance, production disruptions, rejects, and rework may make it
impossible for us to deliver on time despite all reasonable efforts; any such
occurrence will be documented by us.
6 Inspection; Acceptance
a) In the
event of an acceptance test having been agreed upon, the scope and conditions
of such a test shall be defined by the time a contract is concluded.
b) In the absence of such an agreement, the acceptance
test will be conducted within the scope and under the conditions commonly
applied by us. The same applies to initial sample inspections.
7 Dimensions, Weights, Volumes
a) Dimension, weight, and volume nonconformance shall
be admissible within the limits set by customary tolerances, relevant DIN
regulations, and the technical parameters of the casting process. Any
specifications of weights and dimensions made in our quotations and order
confirmations do not constitute quality guarantees.
b) Invoices will be made out based on weights and
quantities established by us.
8 Shipment and Passage of Risk
a) The Incoterms 2010 are applicable.
b) In the absence of written agreements to the
contrary, all deliveries will be made 'FCA' (Incoterms 2010), even if we have
undertaken to bear the cost of transport.
c) Consignments reported ready for shipment shall be
accepted immediately; should this not be the case, we may at our discretion
either ship such consignments immediately or put them into storage at
Customer's expense and risk, at normal haulage industry rates. The last-named
option will be open to us even if it should prove impossible to ship a
consignment in conformance with our obligations through no fault of our own.
Consignments shall be deemed to have been delivered one week after they have
been stored in a warehouse.
d) In the absence of specific instructions, transport
media and transport routes will be chosen by us at our discretion.
9 Reservation of Ownership
a) All goods delivered will remain our property
(conditional goods) until all claims resulting from the business relationship
in question have been settled, including especially any claims outstanding from
previous transactions. The above also applies to payments made to settle
specifically designated claims.
In the
event of Customer's payments being delayed, we may demand the return of any
goods delivered at Customer's expense. The above shall not apply, however, in
the event of insolvency proceedings having been filed or opened against
Customer, in which instance we would not be entitled to the immediate return of
our goods.
b) Any
repossession of goods and/or assertion of our right of ownership do not imply
our withdrawal from the contract in question, unless such withdrawal is explicitly
declared by us.
c) Customer will process any goods supplied in our
name only. In the event of conditional goods being integrated in a product
together with other goods, we thereby acquire a share in the products thus
generated in proportion to the invoice value of our goods relative to the
invoice value of the other objects included in the product at the time of
manufacture.
d) In
the event of our right of ownership expiring because the goods delivered have
been amalgamated or blended with others, Customer hereby agrees providentially
to transfer to us his right of ownership in the newly-generated article in
proportion to the invoice value of our conditional goods, and to keep said
articles safe for us without charge. The articles in which we thus may acquire
rights of co-ownership shall be regarded as conditional goods within the
meaning of Par. a).
e) Customer may sell conditional goods only in the
normal course of business, provided that customer is not in default with any
payments, and provided that titles in any claims resulting from such resale is
transferred to us in conformance with Par. f) and g). Customer shall not be
entitled to dispose of conditional goods in any other way.
f) Customer providentially agrees to assign any claims
from such resale of conditional goods to us.
Such claims may be used as collateral to the same
extent as conditional goods.
g) In the event of conditional goods being sold by
Customer together with other goods not supplied by us, any claims from such
resale shall be assigned to us only in the amount of the invoice value of the
conditional goods actually sold. Should goods be sold in which we retain a
share in conformance with Par. b), claims shall be assigned in proportion to
the value of said share.
h) Customer shall be entitled to collect any amounts
outstanding from sales under Par. e) and f) unless and until we raise an
objection. In the cases enumerated in Art. 2, we shall be entitled to object to
such collection if any payments due from Customer are delayed, insolvency
proceedings have been instituted against Customer, or Customer has suspended
payment. In these cases, Customer shall without further delay inform us about
any assigned claims and their debtors, including all details necessary for
collection, hand over all relevant documents, and inform debtors about the
assignment of the amounts due from them.
Customer shall not be entitled to dispose of such
claims in any other way.
i) If the value of the collateral should exceed the
total value of the relevant claims by more than 20%, we shall be obligated to
release certain portions of the collateral at our discretion. Customer shall report immediately any case of
collateral being impounded or otherwise distrained by third persons.
10 Liability for Defects
a) We hereby warrant that any components supplied by
us will be free from defects as defined in any engineering specifications
included in the contract by reference. It will be Customer's responsibility to
ensure that products are properly designed, that relevant safety regulations
are observed, that relevant materials and test procedures are properly
selected, and that engineering specifications and the engineering documents and
drawings handed over to us and the execution of any manufacturing equipment
provided are free from errors and omissions, particularly with regard to their
intended use. Customer's responsibility for constrction
shall not be limited even in event of any modifications proposed by us, e.g.
for cost reduction, being accepted after technical inspection and implemented
with Customer's approval. Furthermore, Customer hereby warrants that no
proprietary or other rights held by third persons will be infringed by
Customer's information. Product conformability with contractual requirements
shall be definitely established at the time of risk passage.
b) We will not be liable for inconsiderable
nonconformance with agreed workmanship requirements, inconsiderable impairment
of a product's fitness for use, or any defects arising through unsuitable or
inexpert treatment, faulty assembly and/or commissioning, or the effect of
natural wear and tear. In the event of products being inexpertly manipulated or
repaired either by Customer or by third persons, we will not be liable for any
of the defects named above nor for their resultant consequences.
c) Customer shall give written notice of any obvious
defects immediately after goods have been received at their destination, while
hidden defects shall be reported immediately after their discovery.
d) Any agreement on acceptance or initial sample
inspections as per Art. 6 automatically preclude subsequent complaints about
defects that might have been detected in such inspections.
e) We must be given an opportunity to verify any
defects reported by Customer. In urgent cases of endangering operational safety
of the product or Customer is threatened by extensive harm, any defects claimed
shall be verified by us without delay. Any defective goods shall be returned to
us immediately on request. Should Customer fail to comply with these obligations,
or should any goods previously reported as defective be modified by Customer without
our agreement, Customer's right to claim damages for defects shall be forfeited.
f) Having verified a defect reported on time, we may,
at our discretion, either repair the products in question or supply replacements
that are free from defects.
g) Should we fail to comply with our warranty
obligations either entirely or within a reasonable time, or should our repair
efforts remain unsuccessful for the time being, Customer may as a last resort
set a term of grace for us to comply with our obligations. Setting a term of
grace may be omitted if it should prove unacceptable to Customer. After the
term has expired without avail, Customer may, at his discretion, opt to demand
a price reduction, to withdraw from the contract, to have the products repaired
in-house, or to commission a third party to effect the necessary repairs at our
own cost and risk. Once repairs have been effected successfully either by
Customer or a third party, Customer shall not be entitled to any further claims
once relevant expenditures have been reimbursed by us.
h) Any claims by Customer regarding the reimbursement
of expenditures arising in conjunction with the repair of defects because the
products in question have to be transported to another location shall be
inadmissible inasmuch as the expenditure total will be increased thereby,
unless said transport is conformable with the contractual use of the product.
i) Customer's claims for indemnification against us
shall be admissible only inasmuch as no agreement extending the legal scope of
indemnification has been made between Customer and the original equipment
manufacturer.
j) As provided in Art. 13, no further liability will
be accepted.
k) Customer shall be responsible for demonstrating the
presence of a defect.
11 Order-related Manufacturing
Equipment; Cast-in Parts
a) Order-related manufacturing equipment, including without
limitation patterns, templates, core boxes, moulds, casting tools, rigs, and
gauges provided by Customer shall be shipped to us free of charge. We will
inspect any manufacturing equipment supplied by Customer for compliance with
contractual specifications, drawings or patterns only if this has been
expressly agreed. Manufacturing equipment provided by Customer may be modified
by us if this appears necessary for technical reasons, and if no product modification
is entailed.
b) Customer shall bear the expense of modifying,
servicing, and replacing such manufacturing equipment.
c) Manufacturing equipment provided by Customer will
be treated and kept by us with the same care we apply to our own equipment. We
will not be liable, however, for accidental destruction or deterioration of
such equipment. We are not obligated to cover this equipment by an insurance
policy. Any manufacturing equipment provided by Customer that is no longer
required by us we may either return to Customer at Customer's expense and risk
or, if Customer fails to respond to our request to retrieve such equipment
within a reasonable term, retain such equipment for a reasonable period of time
at Customer's expense and destroy it after due written notice.
d) Order-related manufacturing equipment made or
procured by us at Customer's request will remain our property even after the
cost has been invoiced pro rata. Such
equipment will be retained by us for a period of 3 years after the last casting
has been made.
If it has been agreed that, departing from Par. 1,
said equipment should become the property of Customer, the latter will assume
ownership of said equipment as soon as the agreed price and/or share in the
first cost has been paid. In this case, our obligation to keep said equipment
safe will stand in lieu of a formal transfer. Customer may terminate this
safekeeping agreement no earlier than two years after the transfer of
ownership, in the absence of good and sufficient reasons to the contrary. Art.
11 Par. c) shall be valid correspondingly.
e) Customer may make claims relating to copyright or
proprietary rights only if we have been previously notified by Customer of the
existence of such rights, and if such rights have been expressly reserved by
Customer.
f) In the event of rejects appearing in the output of
a piece of manufacturing equipment that can only be used once, Customer shall
either provide a replacement or assume the cost of its procurement.
g) Parts to be cast in by us in a mould shall be
dimensionally accurate and free from defects when supplied by Customer. Parts
that can no longer be used because of production rejects shall be replaced by
Customer free of charge.
12 Confidentiality
a) Both parties agree to use any and all documents
(including without limitation patterns, samples, and data) and knowhow
resulting from their business relationship only and exclusively in pursuit of
the common purpose. Whenever a party designates any information as confidential
or shows an apparent interest in keeping such information secret, the other
party shall be obligated to exercise the same caution as it would exercise in
keeping its own documents and knowhow confidential.
b) The above obligation shall enter into force on the
date on which said documentation or knowhow is first disclosed, terminating 36
months after the end of the business relationship.
13 Limitation of Liability
a) Without prejudice to any provisions to the contrary
laid down in the following, we hereby disclaim liability for any claims
Customer may make against us for whatever legal reason, particularly claims
relating to the non-performance of obligations and to unlawful acts.
b) The above limitation shall not apply whenever
liability is mandatory, e.g. in cases falling under the Product Liability Act,
in cases of wilful or gross negligence on the part of our statutory
representatives or executives, or in cases of culpable non-performance of major
contractual obligations. Major contractual obligations are such obligations whose
fulfilment only enables the reasonable execution of the contract and on whose observance
the contractual parties regularly may trust. Except in cases of wilful or gross
negligence on the part of our statutory representatives and executives, we
shall be liable for culpable non-performance of major contractual obligations
only inasmuch as the resultant damage is typical of the contract in question
and foreseeable within reason. This limitation of liability is not applicable
to any life, body, or health injuries or to quality defects whenever the
relevant guarantee aims to protect Customer from damage to some object other
than the goods delivered.
c) Any liability exemptions and limitations shall
equally apply to personal claims against our employees, associates, statutory
representatives, and agents.
d) Any claims for compensation for damages and defects
to which Customer may be entitled will expire one year after the resultant
products have been delivered to the buyer. This provision does not apply in
cases where the law prescribes longer terms such as Art. 438 Sub-paragraph 1.2 BGB (German Civil Code) (buildings and objects
commonly used in buildings) and Arts. 478, 479 Par. 1 BGB (German Civil Code) (indemnification
claims); in cases involving injury to life, body, or health; in cases of wilful
or gross negligence on the part of the supplier; and in cases of malicious
silence with regard to a defect. Any legal regulations covering the suspension
and recommencement of terms shall remain unaffected by the above. Claims for
damages under the Product Liability Act shall be covered by the statute of
limitations. The same holds true for cases of wilful and gross negligence.
14 Place of Fulfilment and Jurisdiction
a) The place of jurisdiction for contracts concluded
with an independent business shall be Siegen/Germany. As an alternative, we may
institute proceedings against Customer at the court of its business location.
b) Unless shown differently in an order confirmation,
the place of fulfilment for our part of the contract shall be the location of
our production facilities. The place of fulfilment for any payments due shall
be Siegen/Germany.
15 Governing Law
All contractual relations between the parties to this
contract shall be interpreted solely under the laws of the Federal Republic of
Germany, any application of the UN Convention on Contracts for the
International Sale of Goods (UNCITRAL/CISG) being expressly excluded.
16 Enforceability
In the event of one or more of the provisions of these
Terms and Conditions of Payment and Delivery being or becoming unenforceable or
void in whole or in part, both parties hereby undertake to agree on a provision
which comes as close as possible to the meaning and purpose of the provision
that has become unenforceable or void.
17 Partnership
Any amount paid in compensation, particularly in
damages, should be determined bona fide
in consideration of the economic situation of both parties, the nature, scope,
and duration of the business relationship, and the value of the goods involved.