General Terms and Conditions for Foundry Cast Parts (valid: 1 September 2020)
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. 310 BGB (Book of German Law). 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. As far as an order complies with the sense of Art. 145 BGB, we may accept it within a period of two calendar weeks. 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 and catalogues, including photographs, drawings, weights, and measures 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) The prices are valid for those goods and services listed in the Order Confirmation. Extra, or special, services will be charged separately. Our prices will be quoted ex works, plus packaging, freight, postage, insurance, and VAT at the current rate. For export, Customs` duties and/or official charges shall be added.
b) In as much that the agreed prices are based on our Price List, but the delivery is made more than 3 months after Order Confirmation, then the valid Price List at time of delivery shall be applied.
c) In the absence of agreements to the contrary, our invoices shall be paid promptly within 30 days and in full. Date of payment shall be the date that payment is received into our accounts. Checks count as payment only after they have been cleared by our banks. In the event that a customer’s payment is delayed, then we are authorised to charge interest on the outstanding amount accordingly. Furthermore, e may take legal action to recover our costs.
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, or when expressly agreed in writing by us. 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.
e) If the customer has not made the agreed payment if full within a reasonable grace period, at the latest within one month of due date, we may declare that we feel no longer contractually bound and may introduce legal proceedings.
f) 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, 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. In such cases, Customer hereby providentially grants permission for us to enter its premises and retrieve the goods delivered by us.
g) If we calculate a surcharge for energy costs (in German: ETZ) or/and a material price surcharge (in German: MTZ) due to our increased dependence on energy and material costs, which takes into account both the current energy and material price as well as the actual raw weight, the prices are quoted as basic prices.
3. Delivery Terms
a) The delivery date shall be that stated in the Order Confirmation which is agreed by both parties. Unless otherwise agreed, the delivery condition EXW Incoterms 2020 applies.
b) The delivery dates which we quote shall be target dates unless agreed in writing that they shall be exact. 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.
c) 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.
d) We shall not be responsible for failing to deliver, or failing to deliver in time, if our failure was caused by Force Majeure which could not be foreseen at the time of accepting the Order (for example industrial disputes, difficulties with supply chains, materials or energy, transport delays, strikes, lockouts, pandemics, shortages of manpower, energy or materials, official interventions or difficulties with authorities, or other matters beyond our control or influence). In the event of force majeure, 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.
e) We shall be entitled to make partial deliveries, when
- partial deliveries are acceptable to the Customer within the framework of an agreed policy
- the remainder of the delivery of the ordered goods is ensured and
- the Customer is not unduly inconvenienced, or must bear additional costs, unless we declare ready to accept
such extra costs.
f) If it comes to our attention that the Customer’s creditability has been withdrawn or reduced, then we shall be entitled to insist on cash in advance, or to demand some form of security, before we make further deliveries.
g) 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 cooperate, 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.
h) 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. 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. In any case, our liability shall be limited to the terms stated below (see “Liability”).
4. Serial Deliveries, Long-term and Call-off Contracts
a) Untermed contracts may be terminated by either Party at six months' notice to take effect at the end of the month.
b) In the event of the cost of labour, material, or energy changing to any material extent after the first four weeks of a long-term contract (meaning contracts with a term of 12 months or more and untermed contracts), both partners may demand that prices be reformulated within reasonable limits to allow for these changes.
c) 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. Should actual orders fall short of agreed order or target volumes, we will be entitled to increase unit prices within reasonable limits. In the event of agreed volumes being exceeded at Customer's orders and with our consent, Customer may demand that prices be reduced within reasonable limits, provided that this intention is declared in writing no less than 2 months before the agreed delivery date. Actual price increases or decreases will be determined based on our costing data.
d) In the absence of agreements to the contrary, Customer shall be obligated to submit call orders under a delivery contract no later than 3 months before the date of delivery, precisely specifying the quantities involved. 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 in the amount invoiced by us.
e) 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. Overall prices will change to reflect total quantities.
5. Dimensions, Weights, Volumes
a) Dimension, weight, and volume non-conformances 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.
6. Shipment; Passage of Risk
a) The methods of packaging and delivery shall be determined by us.
b) Transfer of risk takes place, at the very latest, when the goods are handed over (this means when the handing over begins) to the carrier or other third party delegated by the Customer. This is also the case when partial deliveries are made, or other services are provided by us.
c) Should the delivery or hand over be delayed through fault of the Customer, then the transfer of risk takes place on that day that the goods were ready for delivery and the carrier informed accordingly.
d) We will take out transport insurance for deliveries only at Customer's express request; any related expenses will be borne by Customer.
e) When a hand over is ready to take place, at the same time and not later, the scope and conditions must be clearly agreed by both parties. If this has not been done, then the hand over shall take place at our discretion and in accordance with our usual conditions. The same applies for submission of pattern samples and or prototypes. Successful hand over shall be deemed to have taken place when:
- delivery has been completed,
- we have correctly advised the Customer that we are ready to deliver and we have required him to accept delivery according to these Conditions,
- twelve working days have passed since the delivery was made, or six working days in the event that the Customer has started to make use of the goods,
- the Customer refuses to accept the goods for a reason other than, that he claims we are supplying the goods of lesser quality that agreed.
f) Consignments reported ready for shipment shall be accepted immediately; even if there are minimal quality complaints, and notwithstanding the Customer’s rights to guarantee. We may at our discretion either ship such consignments immediately or put them into storage at Customer's expense and risk. Such costs shall not be less than 0.25% of the value of the order per week, however not more than 5% of the order value. We may give the Customer written notice to accept the goods within a reasonable period. Our right to pursue a full payment from the Customer is not reduced in this case. On expiry of the notice period, we may withdraw partly, or fully, from the Contract and take legal steps to claim damages.
7. Reservation of Ownership
a) The following conditions are agreed so as to protect our possible claims against the Customer presently and in the future with regard to our business relations.
b) 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.
c) In the event of Customer's payments being delayed, we may demand the return of any goods delivered at Customer's expense.
d) The Customer is obliged to take reasonable care of the goods, on our behalf and up until full payment. It is expected that the Customer shall insure the goods in this case, and at his own cost, against theft, fire, water damage and other risks.
e) Until full payment has been made, the Customer is required to inform us in the event that any Third Party makes any form of claim to the goods, and is further required to support us in every manner to effectively protect our property.
f) 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. 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 clause a above.
g) 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. Customer shall not be entitled to dispose of conditional goods in any other way. 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. 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. Customer shall be entitled to collect any amounts outstanding from sales unless and until we raise an objection. 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.
h) If the value of the collateral should exceed the total value of the relevant claims by more than 10%, 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 distained by third persons. 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.
i) We reserve the right to withdraw from our contractual obligations, and to reclaim any and all goods delivered, and to take legal steps to secure outstanding payments including possible damages and other costs, in the event that the Customer fails to fulfil his obligations, in particular fails to make full and timely payments.
8. Liability for Defects
a) The delivered goods are to be carefully examined immediately upon receipt, by the Customer or his agent. We assume that no obvious shortcomings or other defects which would have thus been detected were found and that the Customer is satisfied in this regard, when we do not receive a written complaint within 7 working days. Regarding other possible defects, the goods shall be regarded as correct when we do not receive a written complaint within 7 working days of that time when such defect must have been noticed. We may, at our discretion, request that defective goods be returned to us at our cost. We supply according to drawings, specifications and/or samples. The Customer assumes the risk of suitability for the intended purpose of use by the Customer.
b) Having verified a defect reported on time, we have the right and the obligation to either repair the products in question or supply replacements that are free from defects. The Customer is entitled, within reasonable limits, to undertake corrective action at our costs subject to our approval. Only in most urgent or critical circumstances (danger of disproportionately great damages, danger to personnel or plant) may the Customer or his agent take steps without our approval. In such case we must be fully informed without delay.
c) In exceptional circumstances, e.g. the impossibility of corrective steps, unreasonable delays in correction or replacement action, the Customer may withdraw his order and claim reimbursement of his costs, and possibly compensation.
d) We will not be liable for inconsiderable non-conformances 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.
e) Specifications which we claim for the delivered goods (weights and measures, practical values, loading capacities, tolerances and technical details), and representations thereof (e.g. drawings and figures), re o be regarded as approximations for planning purposes, unless otherwise precisely agreed and stated in writing. They are not guaranteed values, rather they serve to mark and identify the various parts of the goods. Standard commercial tolerances, and deviations which occur due to legal requirements, or due to technical improvements, are permissible as far as they do not influence of the planned purpose.
9. 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, nor will we be obliged to insure such equipment.
d) The Parties to this Contract hereby acknowledge and agree that ownership in order related manufacturing equipment made or procured by us at Customer's request will transfer to Customer upon payment of the agreed price and/or cost share. In lieu of handing such equipment over to Customer physically, we will be obliged to keep it safe. Such equipment will be kept by us for a period of 3 years after the last casting has been made. 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, we may keep such equipment at Customer's expense for a reasonable period of time at customary rates, to be destroyed at Customer's expense upon due written notice. In the absence of good and sufficient reasons to the contrary, Customer may terminate this safekeeping relationship no earlier than two years after the transfer of ownership. Paragraph 11.c) shall apply mutatis mutandis.
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. Prototypes, models or such parts made by us, or for us, are the result of our special experience and R&D know-how. In as far as these parts are protected by copyrights; we claim our rights to keep these parts securely in our possession. In the event that the Customer insists on taking possession of such parts, then we shall first modify the parts back to standard, non-protected form. The costs of such modification are to be borne by the 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.
a) For all images, drawings, calculations, patterns, samples, tooling and various documents and data (“documentation”) we reserve for ourselves all rights to patents, property rights, invention rights, copyrights and other protections and these may not be passed to Third Parties. In particular, documentation which is marked as “restricted”, “confidential” or “secret”. Any and all such documentation remains our property and must be returned to us immediately upon demand. b) All commercial documents such as catalogues, sample books, price lists etc, which may have been provided to the Customer, remain also our property and must be returned to us upon demand.
c) The parties agree that all commercial and technical details of their mutual cooperation are to be held in confidence, so far as details are not public knowledge. 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 know-how confidential.
b) The above obligation shall enter into force on the date on which said documentation or know-how is first disclosed, terminating 36 months after the end of the business relationship.
11. 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. 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 nor 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 (buildings and objects commonly used in buildings) and Art. 479 Par. 1 BGB (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.
12. Statutory Limitation
a) In accordance with German law, there is a general limitation of 12 months (from hand over) to submit claims against shortcomings with delivered goods.
b) In the case of buildings, or in some cases building materials, the limitation period is 5 years.
c) In the case of contractual agreements, the limitation of the length of time in which a claim may be made regarding damage or defects in delivered goods, may be mutually agreed, but it may not be shorter than the statutory period. The limitation period of the product liability law remain always unchanged.
a) In the event of one or more of the provisions of these General Terms and Conditions 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.
14. Place of Fulfilment and Jurisdiction
a) The place of jurisdiction for contracts concluded with an independent business shall be Bielefeld, 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 Bielefeld, 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.