General terms and conditions

General Terms and Conditions

I. General

Terms of delivery, service, and payment

The following terms of delivery, service, and payment apply to the entire business relationship with our customers especially without consideration to whether the subject of our services is a delivery of goods, a service, or something else. These Terms and Conditions, therefore, also apply to heat treatment as well as to the related construction and sales of frameworks for heating treatment. The customer accepts the Terms and Conditions as binding for the customer for the existing agreement and also for all future transactions. Any agreement to the contrary requires our written confirmation. The customer relinquishes the right to assert its own terms of purchase and/or terms of delivery. They do not become content of the agreement such as by our silence or by our unconditional delivery, service, or order.

 

II. Offers and delivery

  1. Our offers are made subject to confirmation.
  2. Delivery and/or service deadlines apply in principle only as agreed upon on an approximate basis.
  3. If we are prevented from performing the agreement in a timely manner because of procurement, fabrication, or delivery disruptions in our facilities or at the facilities of our suppliers such as because of a lack of energy, traffic disruptions, strikes, or lockouts without us being at fault, any delivery and/or service deadlines are appropriately extended, but at least until the hindrance is removed. The customer can only rescind the agreement if the customer sets another appropriate grace period for us in writing after the end of the deadline that was appropriately extended. The rescission shall be made in writing if we do not perform within that grace period.
  4. If performing the agreement becomes completely or partially impossible for us for the reasons stated in Paragraph 3, we shall be released from our duty to deliver and/or provide services.
  5. We shall immediately inform the customer about hindrances according to Paragraph 3 and about impossibility according to Paragraph 3.
  6. The customer’s claims for damages due to delay in delivery and/or service and in lieu of service are also excluded after the end of a deadline set for us according to para. X. and XI.
  7. If the customer is in default of payment with a previous delivery and/or service or in the case of an advance payment with the payment of a pending delivery and/or service, we are authorized to retain deliveries and services without being obligated to compensate for any resulting damages.
  8. We are authorized to partial deliveries, partial services, and partial invoices at any time.

 

III. Performing heat treatments

  1. Provided that nothing to the contrary is agreed upon, the workpiece that is to be treated shall be delivered by the customer at the customer’s costs and own responsibility shall be picked up after completion. 
  2. All workpieces that are transferred to us by customers for heat treatment must have an order or a bill of de‚livery attached to them that shall at least contain the following content:
    • Description, quantity, net weight, value of the parts, and type of packaging;
    • Material quality (aluminum brand and manufacturer standard designation);
    • The desired heat treatment, especially the desired degree of hardness;
    • Information regarding the final inspection procedure;
    • Other necessary information and specifications for the success of the treatment (DIN6773, 10052, 17021, 17023).
  3. If similar workpieces are manufactured by various aluminum manufacturers, this must be indicated. Likewise special requirements for dimensional tolerance or the surface condition shall be noted on the delivery papers. The customer shall especially give notice of welded or soldered or brazed workpieces and of workpieces that contain hollow parts. We merely inspect the ordering party’s information for plausibility and completeness according to our knowledge. In the event of justified doubts of successful heat treatment, we inform the customer and are authorized at any time to suspend the order for this reason.
  4. The customer’s information must be clear in specifications and drawings for soldering and brazing in regards to positioning, joining techniques, soldering and brazing, and soldering and brazing-free zones. The individual parts must be delivered cleaned and free of corrosion. It is the customer’s sole duty to provide suitable transportation containers in a clean condition.
  5. Any delivery/service deadlines do not begin provided that we do not have all required information.
  6. The material to be treated shall be inspected before leaving the hardening shop to the extent customary in the industry and according to the customer’s instructions if applicable. More detailed inspections and analyses are only made based upon special agreements. Our outgoing inspection does not release the customer from its duty of an incoming inspection.

 

IV. Prices

  1. Providing that no special agreement was made in this regards, invoicing is done ex works at the net prices valid on the day of the delivery and/or the service plus value-added tax at the applicable statutory amount as well as any packaging, insurance, or other ancillary costs. Agreements about rewards and other benefits become invalid in the event that the purchaser suspends payments, or in the event of debt enforcement against the purchaser that is without result.
  2. In the event of unforeseen increases of raw material costs, energy, as well as the legal environment during the production period, we reserve the right to renegotiate the end price of the goods and/or service before outgoing delivery.

 

V. Payment

  1. Our invoices for goods are payable within 14 days after the invoice is received. We can, however, also make delivery dependent on immediate payment. Our service invoices (such as heat treatment) are immediately payable after the invoice is received.
  2. We reserve the right on a case-by-case basis to decide about whether we will receive bills of exchange and checks. This is only done on account of performance. A credit is made subject to a condition of reversal in the event that bills of exchange or checks are not encashed. For bills of exchange, we invoice discount and redemption fees in line with customary banking practices. We assume no warranty for collecting or protesting an invoice in a timely manner.
  3. In the event that the customer finds itself in default of payment, a bill of exchange or check is not encashed in due time, or a substantial worsening of the customer’s financial circumstances takes place that puts our claim at risk, we can make the entire receivable due immediately even if bills of exchange or checks have been given for this purpose. Our other statutory and contractual rights due to us in the event of the customer’s default remain unaffected.
  4. Only persons with our written authority to collect payments are authorized to accept payments using our prepared receipt forms.

 

 

VI. Retention of title

  1. The goods shall remain our property up to payment of all receivables, even those arising in the future from our business relationship with the customer. This also includes contingent receivables. This also applies to the full extent to any designs and tools/devices created for producing the goods.
  2. In the event of combining, mixing, or processing the goods subject to retention of title as defined by §§ 947, 948, and 950 German Civil Code (BGB) with other items not belonging to us, we are due a co-owner’s interest in the new items. The co-owner’s interest is determined by the proportion of the invoice value including value-added tax of the items delivered by us to the value of the remaining items connected to or processed with the items. The customer shall store the items for us free of charge.
  3. The customer may sell the goods subject to retention of title in the proper course of business for immediate payment or subject to the retention of title. The customer is not authorized to other disposals and especially not to assigning as security or pledging.
  4. The customer already now transfers to us its receivables from the resale of the goods subject to retention of title (resale price including value-added tax) including the corresponding receivables from bills of exchange with all ancillary rights. The same applies to the customer’s receivables from the resale of goods to which we are due a co-owner’s interest pursuant to Paragraph 2. The transfer extends in this case to the part of the resale price of the goods in question including value-added tax that corresponds to our co-owner’s interest pursuant to Paragraph 2. In the event that the goods subject to retention of title/service from the customer are sold together with other goods not belonging to us for a total price, the transfer is only made for the amount that we invoiced the customer for the goods subject to retention of title that were sold in combination including value-added tax.
  5. In the event that the customer’s receivables from the resale are included in a checking account, the customer herewith now transfers it’s claim to the receivables from the checking account against its customer. The transfer is made in the amount of the resale price of the goods subject to retention of title/service including value-added tax.
  6. The customer is authorized until further notice to collect the receivables transferred to us. Transferring or pledging these receivables is only permissible with our written consent. If the customer finds itself in default of payment or does not comply with its obligations resulting from the agreement of retention of title, the customer shall at our demand notify the debtors in writing of the transfer, issue us all information, submit and send all documents, as well as transfer bills of exchange. For this purpose, the customer shall grant us access to its documents pertaining to this if necessary.
  7. If the circumstances stated in Paragraph 6 Sentence 2 exist, the customer shall grant us access to the goods subject to reservation of title still found in its possession, shall send us a precise listing of the goods, shall separate the goods, and shall relinquish them to us after rescission has taken place.
  8. If the value of this security exceeds the amount of our receivable by more than 10%, we shall release to that extent the security at our discretion at the customer’s demand.
  9. The customer shall give us immediate written notice about the access of third parties to the goods subject to retention of title or the receivables transferred to us and shall support us in every way in the case of intervention.
  10. The customer shall bear the costs for performing the above-stated duties of cooperation when pursuing all rights from retention of title as well as all expenses incurred for the purpose of maintaining and storing the goods.
  11. In the event of an application for opening bankruptcy proceedings on the assets of the customer, we have the right to rescind the agreement by a written declaration provided that our receivables have not yet been paid.
  12. Para. XI. applies to any liens.

 

VII. Worsening of the customer’s financial circumstances

  1. If facts become known to us after the conclusion of the agreement that put the solvency of the customer in question, we are authorized before conducting the order any further to demand complete payment of the agreed-upon remuneration, or we are authorized to demand that suitable collateral be provided.

 

VIII. Packaging, shipping, and insurance

  1. Packaging shall be made according to trade and commercial practice. Special packaging and substitute packaging such as for workpieces that are delivered without packaging shall be invoiced at cost. For certain transport-sensitive items, the special packaging shall be invoiced and completely and/or partially credited after immediate freight-free return.
  2. Provided that nothing to the contrary is agreed upon, all deliveries are made ex works/warehouse.
  3. Provided that the customer desires a shipment and/or insurance (such as transport insurance), we reserve the right to invoice the customer for the extra costs that we incur.
  4. The customer is authorized at any time to pick up the goods and workpieces at the customer’s own costs.

 

IX. Transfer of risk

The risk is transferred to the customer as soon as the goods and/or the workpieces are transferred to the transportation person and/or the customer, but no later than as soon as the goods and/or workpieces leave our plant or our warehouse. All shipments including any return shipments travel at the customer’s risk. Provided that the customer provides us with workpieces so that we can perform an agreed-upon service (such as heat treatment), the customer bears the risk until we receive the workpieces.

 

X. Material defects

We are liable as follows for material defects:

  1. All such goods and services shall be improved free of charge at our discretion, shall be redelivered, or shall be re-performed that show material defects within the limitation period provided that their cause already existed at the time of the transfer of risk.
  2. Claims of material defects become time-barred in 12 months. This does not apply provided that the law pursuant to §§ 438 Subs. 1 No. 2 (buildings and items for buildings), 479 Subs. 1 (recourse claims), and 634a Subs. 1 No. 2 (construction defects) BGB prescribes longer periods.
  3. The customer shall provide a complaint about material defects to us in writing immediately after they are discovered.
  4. In the event of complaints of defects, customer payments may be retained to an extent that is appropriate in proportion to the material defects that have occurred. The customer can only retain payments if a complaint of defects is asserted and no doubt can exist about the justification thereof. If the complaint of defects is not justified, we are authorized to demand that the customer reimburse us for the expenses incurred.
  5. Initially, we shall always be granted an opportunity for subsequent performance within an appropriate deadline.
  6. If the subsequent performance fails, the customer can rescind the agreement or reduce the remuneration notwithstanding any claims for damages pursuant to para. XI.
  7. Claims for defects do not exist in the event of only minimal deviations from the agreed-upon quality, in the event of only minimal effect on the deliverability and usability, in the event of natural wear and tear or damages that result from faulty or careless treatment after the transfer of risk, excess stress, unsuitable operating equipment, or that result from special external influences not provided for in the agreement, as well as non-reproducible software errors. In the event of improper changes or maintenance by the customer or by third parties, no claims for defects exist for them, nor for the consequences that occur therefrom.
  8. Agreed-upon heat treatments shall be conducted as a service with the necessary care and suitable means after an order is issued based on the customer’s information according to para. III. We assume no warranty or guarantee for the success of heat treatments (such as freedom from warping and cracks, surface hardness, hardness, and curing) especially due to possible hardness variances of the material used, hidden defects, unfavorable shaping, or due to possible changes made in the previous work process. If the heat treatment is unsuccessful without us being at fault (for example because the customer incorrectly provided the information required in para. III.), if we were not aware of and were not able to perceive hidden defects in the workpiece before conducting the heat treatment, or if because of the characteristics of the material used, the shaping, or the condition of the delivered workpieces successful heat treatment was rendered impossible without us knowing this or being able to know this, the customer shall, nevertheless, pay the agreed-upon remuneration. Required re-treatments are invoiced separately.
  9. The customer’s claims due to expenses required for the purpose of subsequent performance, especially transportation, road, work, and material costs are excluded provided that the expenses increase because of the goods being subsequently transported to a location other than the place of business of the customer unless the transportation is consistent with its intended use.
  10. The customer’s statutory recourse claims against us only exist to the extent that the customer has not made any agreements with its buyer exceeding the statutory claims for defects. Furthermore, Paragraph 7 applies accordingly to the extent of the customer’s recourse claims against us.
  11. Moreover, para. XI (liability) applies to claims for damages. The customer’s further claims or claims different than those regulated in this para. X. against us due to material defects are excluded.

 

XI. Liability

  1. The customer’s claims for damages for any legal reason whatsoever, especially due to violation of duties from the obligation and from tortuous acts are excluded.
  2. This does not apply provided that liability is mandatory such as according to the German Product Liability Act, in cases of intent, in cases of gross negligence, due to injury to life, body, or health, due to the violation of substantial contractual duties (what are called cardinal duties, i.e. duties that make conducting the agreement and performance possible in the first place and upon the fulfillment thereof the customer trusts and may also trust). Compensation for damages from violating substantial contractual duties is, however, limited to typical contractual, foreseeable damages provided that intent or gross negligence does not exist or that liability is assumed for injury to life, body, or health. The above provisions do not constitute a change in the burden of proof to the detriment of the customer.
  3. Provided that the client is due claims of damages according to this para. X., they become time-barred upon the end of the limitation period applicable to claims for material defects pursuant to para. X.2.
  4. In the event that heat treatment is agreed upon, the customer bears the responsibility according to the current rules of engineering for manufacturing the workpieces, for the correctness and completeness of the required information according to para. III., and for the heat treatment specifications adjusted to the subsequent purpose of use.
  5. The statutory statute of limitations applies to damage claims according to the German Product Liability Act.

 

XII. Liens

We have a lien on the customer’s workpieces for all present and future receivables as soon as the workpieces are transferred to us for the purpose of performing services (for example heat treatment). §§ 1204 et seq. BGB as well as the provisions of the German Insolvency Statute apply accordingly in this respect.

 

XIII. Labeling of goods, property rights

  1. Changing our goods, removing our serial numbers or nameplates, as well as every special marking that is regarded as the customer’s or a third party’s marks of origin or could create the impression that the goods are specially made products is not permissible.
  2. We assume the liability that the sold goods as such are free from third-party property rights in Germany. In the event that third parties should assert justified claims from property rights, we shall at our discretion and at our costs either obtain a license for the customer, or replace the sold goods with goods free from property rights, or take them back in return for repayment of the purchase price. We are liable for further claims according to para. XI. Our above-stated obligations only exist provided that the customer has immediately informed us in writing about the claims asserted by third parties, the customer does not acknowledge a violation, and all defensive measures and settlement negotiations remain reserved for us. We assume no liability that the application of the sold goods does not interfere with third-party protective rights.

 

XIV. Offsetting, retention

The customer can only offset our claims with uncontested claims, with claims recognized by us, or claims that have been established as final and absolute. The orderer is only due rights of retention insofar as the claim justifying these rights is uncontested, is recognized by us, or is established as final and absolute, and moreover is based on the same legal relationship as our claim. We may offset our claims at any time against the customer’s claims against other related group companies.

 

XV. Choice of law

German law exclusively applies to the contractual relationships excluding conflict of laws rules of private international law, including the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

XVI. Severability clause

Should individual terms for any reason whatsoever be or become completely or partially ineffective or unenforceable, it shall not affect the validity of the remaining terms. Provided that a provision is ineffective, it shall automatically be replaced by a regulation that comes as close as possible to the economic purpose of the ineffective provision. The above shall apply accordingly to unintended loopholes in the agreement.

 

XVI. Jurisdiction and venue

Jurisdiction and venue for all disputes arising in connection with the contractual relationship is 33104 Paderborn (Germany) if the customer is a business person.

 

These General Terms & Conditions of Business and Delivery are valid and legally binding only in the German-language original.