GENERAL TERMS AND CONDITIONS OF BUSINESS
Our deliveries – which are understood as including services, proposals, consultations and ancillary services – are performed only on the basis of the following conditions. These supersede any contrary terms and conditions from the customer, which are not recognized even if we do not raise an objection to them after we receive them.
1. CONCLUSION OF CONTRACT, SCOPE OF SUPPLY
- Our offers are non-binding Delivery contracts, other agreements and side agreements, especially if they deviate from these delivery and payment terms, are only valid if confirmed in writing.
- The scope of supply is subject to our written confirmation. Any reference to DIN standards is a description of performance and not a guarantee of characteristics.
- Our prices are ex – works plus packing and VAT
- If the costs related to the order change significantly after the conclusion of the contract, the contractual partners will agree an adjustment.
3. DELIVERY TIME
- Delivery times begin with our confirmation of order, but not until all the details of the execution of the order have been clarified and all other preconditions from the customer are available; the same applies to delivery dates. Deliveries before the due delivery date and partial deliveries are permitted. The day of delivery is the day that the readiness to despatch is advised, or alternatively the day of despatch.
- The agreed delivery periods and dates are extended or postponed, without prejudice to our rights, by a delay by the customer, such extension or postponement being as long as the period by which the customer is delayed in fulfilling his obligations.
If we become delayed, then the customer can set an appropriate extension period and then withdraw from the contract after this period has elapsed if he is not interested in the fulfilment of the contract.
4. DELIVERY CONTRACTS WITH CALL-OFF
In the case of delivery contracts with call-off, if the the goods are not called off or assigned in time, then after an unsuccessful extension period – there is the right to assign the goods and to deliver them or to withdraw from the delivery contract for the the part of the goods which have been delayed.
5. FORCE MAJEURE AND OTHER IMPEDIMENTS
- In the case of force majeure events, we have the right to postpone the delivery by the period of the force majeure and an appropriate restart period, or to withdraw from the contract fully or partially due to the non-fulfilled part. Strikes, lockouts or unforeseen circumstances, for example plant breakdowns, rejects and after-treatment are equivalent to force majeure events which make delivery impossible for us despite reasonable efforts; we are required to provide the proof of that.
This also applies if the above mentioned impediments occur during a delay or at a sub-contractor.
- The customer can request us to declare within 2 weeks if we are withdrawing or whether we want to deliver within a suitable extension period. If we make no declaration, then the customer can withdraw from the non-fulfilled part of the contract.
6. TEST PROCEDURE, ACCEPTANCE
- If the customer wishes us to carry out the necessary tests he has to inform us of that. The type and volume of the tests are to be agreed before the conclusion of the contract.
- If acceptance is required, then the volume and conditions have to be determined before the conclusion of the contract. The acceptance is to be done at the cost of the customer immediately after the announcement of readiness for acceptance at the delivery works. If the acceptance does not take place, or does not take place on time, or is incomplete, then we have the right to despatch the goods or to store the goods at the cost and risk of the customer; the goods are then considered to be accepted.
7. DIMENSIONS, WEIGHTS, QUANTITIES
- Deviations in dimensions, weight and quantities within the framework of normal commercial limits, the relevant DIN regulations and casting technology requirements are permitted.
- The delivery weights and quantities which we have specified are decisive.
8. PACKING AND LOADING MATERIALS
We pack the goods as customary in the trade and at at our discretion, at the cost of the customer. At our request, packing and loading materials are to be sent back immediately. A credit note is issued according to the re-use value.
9. SHIPMENT AND TRANSFER OF RISK
- Goods which have been advised as ready for shipment have to be taken over immediately, otherwise we have the right to ship them at our discretion or to store them at the cost and risk of the customer; and we also have the right to do the latter if, without any responsibility on our part, the shipment which we have undertaken cannot be carried out. The goods are considered as delivered one week after storage has begun.
- In the absence of any special instruction, the choice of means of transport and transport route is made at our discretion.
- The risk is transferred to the buyer at the point at which the goods are handed over to the railway, the freight forwarder or one week after storage begins, at the latest however, when the goods leave the plant or the warehouse, even if we have taken responsibility for the delivery.
10. TERMS OF PAYMENT
- Our invoices are payable latest 30 days from the invoice date without any deductions.
Commissioned work (for example preparation of models) which is not discountable is payable within 10 days without deductions.
- The customer has the right to withhold or offset payments due to counter claims, including guarantee claims, in the case of payment claims which are undisputed or have been legally determined.
- In case the payment terms have been exceeded, interest will be charged at the rate of the cost of credit calculated by the banks, but at a minimum rate of 3% above the relevant discount rate of the Deutsche Bundesbank.
- If the payment terms are not observed, or facts come to light which give rise to justified doubts about the credit worthiness of the customer, all our demands become due immediately. This also applies to costs which have been incurred for services and for goods which are still in process, or have been produced but not yet delivered. In these cases, we are required to make outstanding deliveries or render services only against pre-payment or provision of suitable security, and after an appropriate grace period, we can request withdrawal from the contract on the grounds of non fulfilment.
In addition, we can forbid the resale and the processing of the goods delivered under the terms of the the reservation of title agreed in Clause 11, or we can demand the return of the goods or the transfer of the indirect possession of the goods at the cost of the customer, and revoke the collection authorization according to Clause 11 Letter f). The customer already authorizes us to enter his plant in the cases mentioned and to collect the goods which have been delivered. Taking back the goods only entails withdrawal from the contract if we expressly state this.
11. TITLE RETENTION
- All goods remain our property (reservation of title) until all demands have been fulfilled, especially the relevant account balance requirements which are due to us, irrespective of on which legal basis This also applies when payments are made against specifically designated demands.
- The processing and treatment of the goods to which we have reserved title is carried out according to § 950 BGB, without any obligation on our part. The processed goods are considered to be goods to which we have retained title according to Letter a). If the goods to which we have retained title are processed, combined or mixed with other goods by the customer, we have co-ownership of the new goods in proportion to the invoice value of the goods to which we have retained title in proportion to the invoice value of the other goods used. If our ownership of the goods to which we have retained title expires due to such combination or mixing, then the customer transfers to us the ownership which he has acquired in the new product in proportion to the invoice value of the goods to which we have retained title and will preserve these rights for us at no cost to us. The co-ownership rights are considered to be goods to which we have title according to Letter a)
- The customer may sell the goods to which we have title, in normal commercial trade, under his normal terms and conditions of business, as long as he is not in arrears, and provided that the trade receivables are transferred to us under Letters d) and e). The customer has no other disposal rights over the goods.
- The receivables from the sale of the goods to which we have retained title have already been ceded to us. They serve as security in the same volume as the goods to which we have retained title.
- If the goods to which we have title are sold by the customer together with other goods which we have not delivered, then the receivables ceded to us from the sale will not exceed our invoice value for the goods to which we have title. If goods in which we have a share of ownership according to Letter b) are sold, then the receivables ceded to us are equivalent to the level of these shares in co-ownership.
- The customer has the right to collect receivables from sales according to Letter c) and d) until our cancellation. We have the right of cancellation in the cases mentioned in Clause 10 Letter d). The customer is in no way authorized to assign the receivables. On our demand, he is obliged to to inform his end user immediately that the receivables have been assigned to us and to provide us with the necessary information and documents to enable us to collect the receivables.
- If the value of the existing securities exceed the secured receivables by more than 10% in total, then we are obliged to release the securities to that extent at our discretion. The customer must inform us immediately In case of any seizure or other interference by third parties.
12. DEFECTS IN THE GOODS, WARRANTY
- We guarantee the the perfect manufacture of the parts which we deliver in accordance with the agreed technical delivery specifications. The moment of transfer of risk is the determining point for the condition of the goods according to contract.
- The customer has to advise of any defects on arrival of the goods at the destination address in writing and any hidden defects should be advised as soon as they are discovered. This should be done in writing, at the latest 6 months after the transfer of risk.
- In case acceptance according to Clause 6 b) has been agreed, no claims can be made for defects which should have been identified due to the type of acceptance agreed.
- We have to be given the opportunity to determine the defects which are being claimed. In urgent cases in which plant safety is being put at risk, or in order to prevent relatively serious damage to the customer, we have to determine immediately the defect which is being claimed. The goods which are the subject of the claim should be sent back to us immediately and if the customer fails to meet these obligations, or if he undertakes changes to the goods which are the subject of the claim without our permission, he loses any rights to any warranty claims.
- If defect claims are justified and made in good time we will rectify the goods which are the subject of the claim or replace them with perfect goods at our discretion.
- If we do not meet our guarantee obligations or do not meet them according to the contract, the customer has the right to conversion or reduction in relation to the defective goods which have been delivered, after a reasonable extension period.
- Any further claims by the customer are excluded according to Clause 15 c). This applies in particular to compensation for damages which have not occurred on the actual goods (consequential damages).
- Warranty claims expire 3 months after we have have rejected the defect claim in writing, but at the earliest when the claim period expires according to Letter b).
13. PRODUCTION EQUIPMENT RELATING TO THE ORDER, PARTS TO BE CAST
- Production equipment relating to the order, such as templates, core boxes, moulds, casting tools, devices and gauges which are provided by the customer are to be sent back by us free of charge. The conformity of the production equipment provided by the customer with the contractual specifications or the drawings or samples provided to us will be checked by us only on the basis of express written agreements. We may alter the production equipment provided by the customer if this appears necessary for casting technology reasons and the work piece is not changed thereby.
- The customer is responsible for the costs of changing, maintaining and replacing his production equipment.
- The production equipment will be handled and kept with the care with which we treat our own property. We are not obliged to take out any insurance. If the customer does not comply with our request to pick up any production equipment which we no longer require within a reasonable period, we have the right to send back the equipment at our own cost or risk or to destroy it.
- Any production equipment relating to an order which we have manufactured or procured on the order of the customer, remains our property even after the calculation of proportional costs. They will be kept by us for 3 years after the last cast.
If the customer has paid the production equipment in full according to an agreement, we are obliged to grant him ownership of this production equipment within 2 years.
- The customer can make claims based on copyright or industrial property rights only insofar as he makes us aware of the existence of such rights and expressly reserves them.
- If a reject occurs when using production equipment which can only be used one time, the customer is obliged to supply production equipment once more, or to bear the costs of the replacement equipment.
- The parts which we have to cast must be delivered to us by the customer in perfect condition and dimensionally correct. Any parts which become unusable due to rejects are to be replaced by the buyer free of charge.
14. SUPPLIER’S COPYRIGHT
Drawings and documents as well as design services and proposals for the design and manufacture of castings which we have made may only be used by the customer for the intended purpose and not made available to third parties without our consent or be made the subject of publication.
15. LIABILITY AND COMPENSATION
- The customer is responsible in particular in the light of the intended use for the proper design, taking into account any safety regulations, the choice of materials and the necessary test procedures, the accuracy and completeness of the technical delivery conditions and the technical documentation and drawings which have been handed over to us, including when changes approved by him have been carried out by us. Further, the customer warrants that no property or other rights of third parties are being infringed by his activities.
- If we receive a claim for compensation from a third party, the cause of which lies in the area of responsibility of the customer, then the customer has to release us from this claim.
- Unless otherwise stated in these terms and conditions, we are only liable for compensation in relation to contractual or non-contractual obligations in the case of malice aforethought or gross negligence.
In the case of malice aforethought or gross negligence by non-leading vicarious agents, we are only liable if they infringe an essential contractual obligation.
This rule does not infringe claims for personal damages or damage to items being used personally according to the law on product liability.
16. PLACE OF PERFORMANCE AND PLACE OF COURT OF JURISDICTION
- The place of performance for payments is Leonberg and for all other obligations the place of performance is the supplying or manufacturing plant.
- The place of the court of jurisdiction is Stuttgart
17. APPLICABLE LAW
All legal relations between us and the customer are exclusively subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention.
18. PARTIAL INVALIDITY
If individual conditions of these delivery and payment conditions are completely or partly invalid, then the contractual partners undertake to agree an arrangement to enable the meaning and purpose of the invalid or incorrect condition to be largely achieved.