Art. 1 Scope of validity, written form
1. Our general terms and conditions of business shall apply exclusively. They apply vis-à-vis companies within the meaning of Section 14 of the Civil Code, legal entities under public law and separate estates under public law. Any general terms and conditions of business of the customer that are at variance to these shall not be recognised by us, unless we have agreed to their validity in writing. Our general terms and conditions of business shall also apply if we carry out deliveries unconditionally while being aware of the customer's differing general terms and conditions of business.
2. All agreements made between us and the customer in relation to this agreement must be set down in writing. This is especially true for the transfer of guarantee declarations and for the revocation of the requirement for the written form. Verbal agreements are invalid.
3. These general terms and conditions of business also apply for all future agreements with the customer, even if they are not expressly mentioned again in those agreements.
Art. 2 Offers, conclusions of contracts, contract contents, polishing costs
1. Our offers are non-binding. We can accept contract offers within a period of four (4) weeks.
2. Samples and documents, such as brochures, catalogues, illustrations, drawings, technical data, weights and dimensions are only authoritative within the limits of customary deviations unless they have been specifically designated as binding in writing.
3. Where second-hand or stainless steel parts are being processed, additional polishing costs incurred will be charged separately.
Art. 3 Prices, terms of payment, prepayment, right of withdrawal, delay, returns, right of retention, offset, counterclaim, lump-sum compensation
1. Unless otherwise agreed, all prices are quoted ex warehouse or factory, especially exclusively packaging, shipping, insurance, customs duties, foreign taxes, etc. that are charged separately, plus the VAT at the applicable rate. In the case of export deliveries, VAT is not payable provided the delivery is VAT-exempt. The hire costs of pallets will be charged. In the event of an agreed delivery, delivery will be effected free to kerbside at the agreed unloading point. In this instance, the customer is obliged to pay for any personnel and equipment required for unloading.
2. For orders, the price list applicable on the day the order is made shall apply. If, however, increases in our selling prices occur between the order being created and delivered, we reserve the right to adjust the price by the sum by which the price has increased.
3. Unless otherwise agreed, payment must be made net within 14 days without deductions.
4. We are not obliged to accept payment by check or bill of exchange. If we do accept such payments, these are regarded solely as conditional payments. The costs of collection and discounts will be borne by the customer.
5. If the customer falls behind by at least two instalments when making payments by instalment, we shall be entitled to demand the full sum payable. This also applies in the case of the prior receipt of bills of exchange or cheques, which in such circumstances will be returned in exchange for payment in cash.
6. If, following the conclusion of a contract, a significant deterioration or change occurs in the customer's pecuniary circumstances which endangers our claim to payment, or if the circumstances already existed at the time the contract was concluded but only became known about later, we shall be entitled to refuse to provide our services until payment is received. This is especially true for cases in which unsuccessful enforcement measures, bills of exchange or cheque protests, customer bankruptcy or customer's request for relief from creditors, liquidation or similar affairs are involved. In such instances, we are able to set the customer a deadline for the provision of the payment or collateral. If the payment or collateral is not received, then we shall be entitled to withdraw from the agreement.
7. If goods we have delivered are taken back, the cost of these shall be credited to the ordering party with a deduction of 25%, but no less than € 15.00, from the net invoice amount and credited to our outstanding receivables, without prejudice to the assertion of further receivables. The customer shall be entitled to provide documentary evidence of a lower reduction in value in individual cases.
8. Only acknowledged or legally enforceable claims can be used to offset our claims. Any counterclaims shall be excluded. The customer is furthermore only entitled to assert the right of retention insofar as his claim is based on the same contract relationship.
9. If we are able to demand compensation instead of payment or agree to the cancellation of the order, a flat-rate damages fee of 25% of the net order total is agreed. The customer shall, however, be entitled to provide documentary evidence that we sustained lesser damage. The assertion of a claim for higher damages is not ruled out by this provision.
Art. 4 Release from obligation, lead time, partial delivery, right of withdrawal, delay compensation
1. Prompt and correct self-delivery is reserved provided we have not accepted any guarantee regarding the success of the service, and further, provided we have not accepted any procurement risk.
2. The delivery deadlines specified by us are approximate deadlines.
3. The start of the delivery time we have specified requires the arrival of any documents, permits, approvals or information to be provided by the customer, the clarification of all details of the order, especially all technical questions, and the arrival of any agreed advance payment. In the case of contracts relating to the coating of customer goods, the goods to be coated must also have been received. Partial deliveries are permitted provided these are reasonable. The delivery time shall be regarded as having been met if the object of the delivery has been dispatched at the time of delivery or, if shipment is impossible through not fault of our own, with the notification of
readiness for shipment to the customer.
4. We shall not be held responsible for delivery delays caused by force majeure or other circumstances outside our control, especially traffic-related and operational problems that are not our fault, strikes, lock-outs, raw material shortages or war, provided we have not offered any guarantee in relation to the success of the delivery and moreover have not accepted any procurement risk.
5. If, due to circumstances set out in Art. 4 Point 4, we are unable to deliver within the agreed delivery time, the delivery time shall be extended commensurately. If there is an obstacle to delivery that is outside our control as defined in Art. 4 Point 4 that causes the extended delivery time to be missed, we shall be entitled to withdraw from the contract.
6. If we are unable to keep to the agreed delivery time, the customer shall be obliged, at our request, to clarify within an appropriate time period whether he still wishes to receive the delivery. If he declares that he does not, then we shall be entitled, following the expiry of an appropriate period, to withdraw from the contract or to cancel it.
7. If we default on delivery, the following shall apply:
a. If a fixed-date transaction has been agreed or if the customer is able to assert that his interest in the fulfilment of the contract no longer exists or if the delay is due to a wilful infringement of the contract committed by us, our representatives or our subcontractors, then we shall be liable for delay compensation in accordance with legal regulations.
b. If we, our representatives or our subcontractors have culpably infringed an important contractual obligation or have infringed a contractual obligation as a result of gross negligence, and there is no case for liability as defined in the legal provisions pursuant to letter a., then our liability for delay compensation is limited to the foreseeable damages that would typically arise.
c. In other cases, our liability for delay is limited to a maximum of 5% of the value of the delivery.
d. The customer's other legal claims are not excluded by this.
e. A reversal of the burden of proof is not associated with the aforementioned provisions.
Art. 5 Transfer of risk, shipping costs, delivery
Unless otherwise defined in the order confirmation, deliveries are agreed "ex works". Shipping is always carried out, including in the case of deliveries from a place other than the place of fulfilment, on account and, even in the case of freight-paid delivery and/or delivery by our own agents or vehicles, at the customer's risk.
Art. 6 Defect rights
1. Supplied goods and processed customer items must be examined by the customer immediately after delivery insofar as this is practicable in the normal course of business. If any defect becomes apparent, we must be notified immediately. If the customer fails to give notification, the goods shall be considered to have been approved, unless there is a defect that could not be detected during the inspection. If such a defect appears later, the notification must be made immediately upon its discovery; otherwise the goods shall be considered to have been approved irrespective of any defect. Section 377 of the German Commercial Code remains unaffected. The customer is not absolved of his duty to examine the goods even in the case of the company's recourse to Section 478 of the German Civil Code. If, in such cases, the defect asserted by its accepting party is not notified immediately, the goods shall be considered to have been approved irrespective of this defect.
2. If there is a defect, we shall be entitled, taking into consideration the nature of the defect and the legitimate interests of the customer, to determine the type of rectification. Any rectification shall be deemed in these contracts to have failed after the third unsuccessful attempt. (This point does not apply in the event of recourse to Section 478 of the German Civil Code).
3. In the case of rectification of defects, we are obliged only to bear the outlay required for this, in particular transport, road, labour and material costs, if these are not increased by the fact that the object was taken to a location other than the site or commercial branch of the customer to which it was delivered. (This point does not apply in the event of recourse to Section 478 of the German Civil Code).
4. The customer's defect rights expire after two (2) years.
5. We expressly point out that parts that are to be used in swimming pools or saunas must be requested specially due to the particular air and water conditions. Conventional qualities are not suitable for this type of use.
6. Colour differences arising as a result of the various surface properties of the parts we process are unavoidable for technical reasons and do not constitute a defect.
7. The customer shall not be entitled to assert defects claims for defects only arising from incorrect handling for which we are not at fault, in particular incorrect installation and commissioning, failed or negligent cleaning, the use of unsuitable cleaning agents, other effects of chemical substances or inadequate maintenance following handover to the customer. Abrasive scouring agents, scrubbers and cleaning agents containing hydrochloric acid, formic acid, acetic acid, phosphorus or sodium hypochlorite-based substances are deemed unsuitable.
Art. 7 Liability for compensation of damages and reimbursement of expenses
1. If we are liable for compensation, the following shall apply:
a. Provided the claims are based on wilful infringement of obligations by us, our representatives or our subcontractors, we shall be liable for compensation of damages in accordance with the legal provisions. If the claims are based on the grossly negligent infringement of a contractual obligation by us, our representatives or our subcontractors, then the liability shall be limited to the foreseeable damages that would typically arise.
b. If we, our representatives or our subcontractors have culpably infringed an important contractual obligation or have infringed a major obligation, but there is no case for liability as defined in the legal provisions pursuant to letter a., then our liability shall be limited to the foreseeable damages that would typically arise.
c. Unless otherwise defined under a. and b., our liability for compensation of damages shall be excluded.
2. The liability disclaimers and limitations under Point 1 apply not only for contractual, but also other, and in particular tortious claims. They also apply to claims for compensation for apparent outlay in place of payment.
3. The liability disclaimers and limitations under Point 1 do not apply for any claims asserted in accordance with Sections 1 and 4 of the Product Liability Act, or as a result of culpable injury to life, limb or health. They also do not apply provided we have not accepted any guarantee for the quality of our goods or delivery success, or accepted any procurement risk, and the guarantee case has occurred or the procurement risk has manifested itself.
4. Provided our liability is excluded or limited, this shall also apply for the personal liability of our employees, workers, colleagues, representatives and subcontractors.
5. A separate provision is provided for delay compensation in Art. 4 Point 7.
6. A reversal of the burden of proof is not associated with the aforementioned provisions.
Art. 8 Supplementary and variant provisions for international contracts
1. If the customer's branch is based outside the Federal Republic of Germany, the following provisions shall also apply:
a. We shall not be liable for the permissibility of the contractual use of the supplied goods according to regulations in the recipient country. We are also not liable for any duties due there.
b. We are not liable for obstacles to delivery caused by state interventions, in particular restrictions on imports or exports.
2. If the customer's branch is based outside the Federal Republic of Germany and if the United Nations Convention on the Contract for the International Sale of Goods (CISG, Vienna UN Sales Law) applies as amended, then in place of Art. 6 Points 1 - 4 and Art. 7, the following provisions shall also apply:
a. We shall be liable to the customer for damages compensation in accordance with legal provisions only provided that any infringement of the contract was caused by a wilful or grossly negligent contractual infringement committed by us, our representatives or our subcontractors. We are also liable in accordance with legal provisions if we infringe an important contractual obligation. The liability limitation set out above does not apply to any claims asserted in accordance with Sections 1 and 4 of the German Product Liability Act or for claims arising from injury to life or a person's body caused by the goods.
b. If the supplied purchased goods are contrary to the contract, the customer shall only be entitled to cancel the contract or demand a replacement delivery if claims for damages against us are excluded or it is unreasonable for the customer to use the goods that are contrary to the contract and assert a claim for the remaining damages. In such cases, we shall be entitled initially to rectify the defect(s). If the defect rectification fails and/or leads to an unreasonable delay, then the customer shall be entitled, at his discretion, to declare the contract cancelled or to demand a replacement delivery. The customer shall also be entitled to the same if the defect rectification causes unreasonable inconvenience or uncertainty regarding the reimbursement of the buyer's outlay.
c. The customer's defect rights claims expire after two (2) years.
Art. 9 Security of the retention of title in purchase contracts
1. Ownership of the supplied goods remains reserved until the arrival of all payments due from the contract. In the case of an ongoing business relationship, it is retained until the arrival of all payments from this relationship. This also applies if our receivables have been included in an ongoing invoice and the balance has been determined and acknowledged, and for future receivables.
2. The customer is obliged to handle the supplied goods with care, and in particular to store then correctly. He is also obliged to insure them at his own expense against fire, water and theft, with the insured sum being adequate to cover the replacement value.
3. In the case of seizures and other interventions by third parties, the customer must notify us without delay in writing so that we are able to raise a complaint in accordance with Section 771 of the Code of Civil Procedure. Insofar as the third party is unable to reimburse us for the legal or extrajudicial costs arising from this, the customer shall be liable for the loss we have incurred.
4. The customer shall be entitled to sell on and use the supplied goods in the normal course of business; he forfeits to us hereby all receivables that are due to him from the resale to customer or third parties amounting to the value of the retained goods, and irrespective of whether the supplied goods have been sold on without or after processing. The value of the retained goods shall be deemed as the final invoice sum agreed with us (including VAT). If the resold retained goods remain in our co-ownership, then the forfeiture of receivables extends to the sum that equates to our share of the co-ownership. The customer shall not be entitled to dispose of the goods in any other way, in particular as pledging and assignment as security.
5. The customer shall be entitled to collect the receivable amount from the onward sale even after forfeiture. Our authorisation to collect the receivable ourselves remains unaffected by this. We are obliged, however, not to collect the receivable provided the customer is fulfilling his payment obligations from his collected revenues, is not in payment arrears and in particular if no application has been made to begin insolvency proceedings or there is no stoppage of payments. If however this is the case, we may demand that the customer notifies us of the forfeited receivables and their debtors, provides us with all of the information relating to collection, gives us the associated documentation and notifies the debtors in writing of the forfeiture.
6. Any processing or restructuring of the supplied goods by the customer will always be carried out for us. The customer's expectancy rights to the supplied goods shall continue to apply to the transformed object. If the supplied goods are processed with other objects that do not belong to us, we acquire co-ownership of the new object proportionate to the objective value of the supplied goods compared to the other objects being processed at the time of processing. The same otherwise applies to the object brought about by processing as for the goods supplied under reserve.
7. For surety of our claims against him, the customer shall also forfeit to us any claims in the sum of the value of the retained goods with all supplementary rights and ranking before the rest which arise through the combination of the reserved goods as an integral part with a property, ship, ship structure or aircraft of another party against a third party. Art. 9, No. 4. P. 2 and 3 apply accordingly.
8. For surety of our claims against him, the customer shall also forfeit to us any claims in the sum of the value of the retained goods with all supplementary rights and ranking before the rest which he acquires through the sale of his own property, ship, ship structure or aircraft with which he has combined the retained goods as an integral part, from a third party. Art. 9, No. 4. P. 2 and 3 apply accordingly.
9. If the goods under retention of title are combined, mixed or commingled with goods belong to the customer or third parties, then we shall become co-owners as regulated by law. In the event that the customer acquires sole property as a result of combination, mixing or commingling, he shall hereby forfeit to us co-ownership according to the ratio of the value of the retained goods to the other goods at the time of the combination, mixing or commingling. In such cases, the customer must undertake to keep the objects in our ownership or co-ownership for us free of charge.
10. We are obliged to release the sureties due to us at the request of the customer insofar as the realisable value of our sureties exceeds the receivables under surety by more than 10% or the nominal value by more than 50%; the choice of sureties to be released shall be ours.
Art. 10 Liens in the case of service contracts for the coating of customer goods
With the handover of the goods that we are to coat, the customer grants us a lien for these goods based on our receivable amount due from the service contract.
Art. 11 Property rights
Insofar as production follows the customer's plans, models or other descriptions or orders tantamount to such, the customer shall assure us that no patents, utility models, design patents, trademarks or other property rights of third parties are infringed by our delivery. If third parties assert claims against us in this regard arising from property rights, the customer shall indemnify us from and against all claims.
Art. 12 Applicable law, place of fulfilment, court of jurisdiction
1. The law of the Federal Republic of Germany applies to this contract.
2. The place of fulfilment for all obligations arising from this contract is 73262 Reichenbach.
3. In the case of contracts with traders, legal entities under public law, separate estates under public law and with foreigners that do not have a court of jurisdiction within this country, the court of jurisdiction shall be 73262 Reichenbach. We reserve the right, however, to bring legal action at the customer's headquarters.
Art. 13 Miscellaneous
If an individual provision of this contract is or becomes ineffective, the validity of the remaining provisions of this contract shall be unaffected. In such instances, the parties shall be obliged to replace the ineffective provision with a provision that corresponds to the economic purpose which the contracting parties would have agreed if they had known about the ineffective provision.
30 October 2006