General Terms and Conditions of Purchase of Rostfrei-Stahl Geisweid GmbH
Status: December 2022
I. Scope of application
1. The following terms and conditions shall apply to all contracts between us and the seller for the delivery of goods, irrespective of whether the seller manufactures the goods himself or buys them from subcontractors (§§ 433, 650 BGB). They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating, contrary or supplementary terms and conditions of the seller which we do not expressly recognise shall not be binding on us, even if we do not expressly object to them. Our terms and conditions shall also apply if we accept the seller's delivery in the knowledge of contradictory, supplementary or deviating from his conditions without reservation.
2. All agreements made between us and the seller in connection with the purchase contracts, are set out in writing in the purchase contracts, these terms and conditions and our offers (orders).
Any ancillary agreements deviating from these agreements, namely reservations, amendments, supplements or cancellation of this contract, shall only become binding after our written confirmation.
3. Otherwise, these terms and conditions shall only apply if the seller is a company, a legal entity under public law or a special fund under public law (§§ 14, 310 Abs. 1 BGB).
II. Offer and Conclusion of Contract
1. We are bound by the offer for the conclusion of a purchase contract (order) for a fortnight. The seller can accept the offer within these two weeks by written declaration to us. Silence on our part with regard to order confirmations is always to be regarded as a rejection, unless the order confirmation relates to orders placed in writing and fixed in all details.
2. The seller may not continue the production or delivery of ordered parts to other companies without our written consent.
III. Prices, invoicing and terms of payment
1. The price stated by us in the order is binding and applies free domicile, unless otherwise agreed in writing. The packaging and transport costs are included in the
price. The price shall be understood to include the statutory value added tax. All invoices of the seller have to show the order number stated by us.
2. Surcharges or increases in price can only be taken into account if they are notified to us in the order confirmation. In any case, prices exceeding those stated in our order shall only be deemed to be agreed upon with our confirmation in writing.
3. Invoices shall be issued immediately after delivery in duplicate, stating the order No. and date of order. Invoices for monthly deliveries are to be issued no later than by the 5th of the following month.
4. The agreed price shall be paid within 30 calendar days from the date of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If our payment is executed within 14 calendar days, the seller shall grant us a discount of 3% discount on the net amount of the invoice.
IV. Delivery period
1. The delivery period or delivery date stated by us in the order are binding on the seller.
2. If the seller does not perform or does not perform within the agreed delivery period or if he is in default, our rights - in particular to rescission and compensation for damages - shall be determined in accordance with the statutory provisions. The provisions in par. 3 shall remain unaffected.
3. If the seller is in default, we may - in addition to further statutory claims - demand lump-sum of 1% of the net price per full calendar week, but in total not more than 5% of the net price of the delayed goods. We reserve the right to prove that a higher damage has been incurred. The seller reserves the right to prove that no damage or only a much lower damage has occurred.
4. If it becomes impossible for the supplier to meet the deadline or the first date, he must inform of this without delay. In the case of early delivery, which is to be agreed with us, the term of payment shall be taken into account from the original delivery date.
V. Dispatch, Transfer of risk
1. Shipment shall be carried out in strict compliance with our shipping instructions and must be indicated in duplicate on the day of dispatch, stating the order number and order date. The net weight must be confirmed by the weighing card of a calibrated scale. In the case of wagonloads whose weight is not utilised, the loss of freight shall be borne by the seller.
2. We shall only bear the costs of breakage insurance if expressly requested by us.
3. The delivered goods must be packed in a manner customary in the trade. The packaging costs shall be borne by the seller.
4. Packaging materials shall only be returned at express request and in the condition in which they are after removal of the goods. The costs of the return shipment shall be borne by the seller. At our request, the seller is shall be obliged to take back the packaging materials used by him at his own expense.
5. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk.
VI Warranty and Liability
1) For our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly/installation or inadequate instructions) and in the event of other breaches of duty by the seller, the statutory provisions shall apply and, exclusively in our favour, the following supplements and clarifications.
2. The obligation to inspect the goods and to give notice of defects shall commence in all cases when the delivery is received at the destination specified in the order and a proper notice of dispatch (in accordance with section V.) of these Terms and Conditions of Purchase or a delivery note is available. In the case of deliveries with installation, these obligations shall not commence until the time of acceptance.
3. We are obliged to inspect the goods for quality defects and quantity deviations within a reasonable period of time after delivery by the seller. The notification of obvious defects shall be deemed to have been made in good time if it is send three working days from the delivery of the goods by us and subsequently received by the seller; the notification of hidden defects shall be deemed to have been made in good time if we have sent it within three working days of its discovery and it is subsequently received by the seller.
4. We shall be entitled to remedy the defects, in particular in case of imminent danger or great urgency, ourselves at the expense of the seller.
5. The seller's liability for defects shall also extend to the parts manufactured by subsuppliers.
6. The seller shall be liable for all damage caused by him or his vicarious agents to the extent provided for by law. A limitation or restriction of liability is not recognised. In the event of rectification or replacement delivery, the seller shall be obliged to bear all expenses necessary for the purpose of rectification or replacement.
VII. Unforeseen events
If the event of force majeure or other circumstances, e.g. mobilisation, war, riots, operational disruptions at our or our customers, strikes, lock-outs, import or export bans, non-issuance of official permits, lack of processing possibilities, justified refusal of acceptance by our customers for which we are not responsible, makes it unreasonable for us to accept the delivery in accordance with the contract, we shall be entitled to demand that the contract be reasonably adapted to the circumstances that have arisen, or, if an adjustment of the contract is not possible or unreasonable for the seller, withdraw from the contract
VIII. Liability of the seller for product damage and rights of third parties
1. If we are held liable for damages by third parties due to product defects for which the seller is responsible, the seller must exempt us from all claims of third parties at first request, including the necessary costs for the defence against these claims, if the seller has set the cause in his area of control and organisation and is liable himself in the external relationship.
2. If we have to make a recall due to a case of damage within the meaning of the aforementioned par.1, the seller shall be obliged to reimburse us for all expenses arising from or in connection with the recall action carried out by us. We shall, insofar as it is possible and reasonable for us in terms of time, inform the seller about the content and scope of the recall action and give him the opportunity to comment. Our further legal claims remain unaffected.
3. The seller is obliged to take out product liability insurance for personal injury/property damage and to maintain it. The sum insured must correspond to the seller's business operations and take into account the risks of his line of business. Our further legal claims remain unaffected by this.
4. If claims are asserted against us by third parties because the delivery of the seller infringes a statutory property right of the third party, the seller undertakes to indemnify us from these claims upon our first request, including all necessary expenses incurred by us in connection with the claims by the third party and their defence. We are not entitled to acknowledge the claims of the third party and/or conclude agreements with the third party regarding these claims without the seller’s written consent The limitation period for these claims shall be three years, calculated from the date of our knowledge of the claim by the third party, but no longer than 10 years from delivery of the item.
IX. Retention of title - provision - tools
1. Insofar as we provide parts (e.g. substances, materials or tools) to the seller; hereinafter referred to as "reserved goods") to the seller, we shall retain title thereto. Processing or transformation by the supplier shall be carried out for us. If our reserved goods are processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of our item to the other processed objects at the time of processing. If the item provided by us is inseparably combined with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis. The supplier shall keep the sole ownership or the co-ownership on our behalf.
2. The supplier is liable for any damage of the parts provided by us, including damage caused by processing and losses, as long as the parts provided are in his care.
X. Assignment of claims, right of set-off and right of retention
1. We shall be entitled to the statutory rights of set-off and right of retention to the full extent. The seller shall have a right of set-off or right of retention only on account of stated legally binding or undisputed counterclaims.
2. We shall be entitled to assign all claims arising from the contract of sale without the consent of the seller. The seller is not entitled to assign claims arising from the contractual relationship to third parties without our prior written consent.
XI. Confidentiality/Retention of Title to Order Documents
We retain the right of ownership and copyright of illustrations, drawings, calculations and other documents. All drawings, technical data and information made available by us to the seller shall be kept secret and be unrequestedly returned in the event of refusal of the order within the time limit for acceptance and at the latest after completion of the order. They may only be used by the seller for the execution of the order, but not for its own purposes. They may not be made accessible to third parties without our express written consent and must be kept secret to third parties even after the execution of this contract. The seller shall be liable for all damages incurred by us as a result of one of these obligations.
We reserve the right to inspect the delivery items during production or prior to dispatch at the seller's premises. However, such an inspection shall not affect the warranty obligation of the seller. All acceptance documents, material certificates etc. are an integral part of the delivery and must reach us with the delivery at the latest.
XIII Place of Jurisdiction, Place of Performance, Applicable Law
1. Place of performance and place of jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) and for all disputes arising between the seller and the buyer from the contracts concluded between them shall be our place of business. We are however, entitled to sue the seller at his place of business.
2. The relations between the contracting parties shall be governed exclusively according to the law applicable in the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
XIV Partial Invalidity
Should any provision in these Terms and Conditions of Purchase or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all the other provisions or agreements.
General Terms and Conditions of Sale and Delivery of Rostfrei-Stahl Geisweid GmbH
Status: December 2022
I. Scope of application
1. The following terms and conditions of sale shall apply to all contracts between the buyer/customer and us for the delivery of goods, irrespective of whether we manufacture the goods ourselves or whether we purchase them from suppliers (§§ 433, 650 BGB). They shall also apply to all future business relations, even if they are not expressly agreed once again. Deviating, contrary or supplementary terms and conditions of the buyer/customer, which we do not expressly acknowledge in writing, are non-binding for us, even if we do not expressly contradict them. The following terms and conditions of sale shall also apply if we execute the order of the buyer/customer in the knowledge of conflicting, supplementary or deviating terms and conditions of the buyer/customer without reservation. By silence or lack of objection we do not partially nor completely submit to any other terms and conditions of the buyer/customer.
2. The contracts shall include all agreements concluded between the buyer/customer and us for the execution of the purchase contracts in writing.
3. All agreements between us and the buyer/customer are set out in a written contract. Deviating subsidiary agreements, reservations by name, supplements or the cancellation of this contract as well as oral agreements and assurances by our sales personnel who is not authorised to conclude the contract shall not be valid unless they have been confirmed by us in writing. This also applies to information in public statements made by us or by the manufacturer and his assistants (§ 434 III 1 BGB).
4. Our terms and conditions of sale shall only apply to companies, legal entities under public law and special funds under public law (§§ 14, 310 Abs.1 BGB).
II Rights of exploitation and use
We reserve the right to all documents, in particular design drawings and plans, which have become part of the respective contractual relationship and copyrights to all documents, which have become part of the rights of exploitation and use without restriction. These documents may only be made accessible to third parties with our prior consent and shall be returned to us immediately upon request if the order has not been placed by us.
III Offer, Conclusion of contract
1. Our offers are always subject to change and non-binding, unless we have expressly designated them as binding.
2. The price quotations are based on the situation on the day of the offer. Sales prices shall only be deemed to be fixed prices if we agree to them in writing or designate them as such.
3. Delivery call-offs as well as their amendments and supplements require the written form. Call-offs are also permissible by data transmission.
4. A binding conclusion of a contract shall only come into existence with written confirmation of the order by us.
5. Quality and dimensions shall be determined in accordance with the DIN/EN standards or material sheets applicable at the time the contract is concluded; in the absence of such the commercial practice. Details in offers, brochures and order confirmations are approximate and serve only as a guideline, unless expressly acknowledged by us as binding. Samples and specimens shall be regarded as approximate illustrative pieces for quality, dimensions and design.
6. The written order confirmation from us shall be authoritative for the nature and scope of the performance. We are entitled to partial performance under the conditions of No. IX. No. 2. The buyer/customer may not reject partial deliveries or partial performance.
IV. Terms of payment
1. All prices are euro prices. The prices apply, according to agreement, free domicile, including packaging, shipping costs and excluding value added tax or ex works, including packaging, excluding shipping costs and value added tax. The prices do not include customs duties or other export duties; these expenses are also to be borne separately by the buyer/customer.
2. If a buyer/customer who is located outside the Federal Republic of Germany (external buyers) or his agent collects goods or transports or dispatches them to the foreign territory, the buyer/customer must provide us with the export certificate required for tax purposes. If this proof is not provided, the buyer/customer must pay the value added tax applicable to deliveries within the Federal Republic of Germany on the invoice amount.
3. A cash discount deduction is only permitted in the event of a special written agreement between us and the buyer/customer. The purchase price is payable net (without deduction) immediately upon receipt of the invoice by the buyer/customer, insofar as no other payment date results from the order confirmation. Payment shall only be deemed to have been made when we can dispose of the amount. In the case of payment by cheque, payment shall only be deemed to have been made when the cheque has been cashed and the cheque deadline has then expired.
4. If the buyer/customer defaults on a payment, the statutory provisions shall apply. In the event of payment arrears of the buyer/customer, however, we shall in particular be entitled to a right to suspend the processing of the orders until the payment arrears have been settled in full. Payments shall be set off against existing claims at our discretion even if the buyer/customer has stipulated otherwise.
5. The right of set-off with counterclaims is only permissible to the extent that the respective counterclaim is
a) either undisputed, acknowledged or legally binding by a court of law
b) or is in a reciprocal relationship with our claim. The buyer/customer is only entitled to exercise a right of retention if his counterclaim is based on an equal contractual relationship.
6. An assignment of claims against us is only permissible if we have given our prior written consent to this.
7. We are entitled to check the creditworthiness of buyers/customers by the accepted means.
8. If doubts arise as to the creditworthiness of the buyer/ customer or if there is any other significant deterioration of the financial circumstances of the customer/buyer we shall be entitled to the rights under § 321 BGB. In this case, we shall also be entitled, after conclusion of the contract, to execute deliveries and in particular also partial deliveries only against advance payment or cash against goods.
9. On the basis of the authorisation granted to us by the subsidiaries belonging to our group of companies, we shall be entitled to set off against all claims which the buyer/customer may have against us or against one of these subsidiaries, regardless of the legal reason. This shall also apply if cash payment by one party and payment in bills of exchange or other services on account of performance by the other party has been agreed. Where applicable, these agreements only relate to the balance.
V. Retention of title
1. We retain title to the delivered item or goods until full payment of all claims, in particular respective balance claims to which we are entitled within the business relationship (reservation of balance). The reservation of balance shall finally expire with the settlement of all outstanding claims and those covered by this reservation of balance at the time of payment. The reservation of title shall also apply to claims arising in the future and conditional claims and also if payments are made on specially designated claims.
2. The buyer/customer is obliged, as long as the ownership has not yet been transferred to him, to treat the object of purchase or the object of the contract with care. He is obliged in particular, to insure them at his own expense against theft and impairment of value sufficiently at the original value. If maintenance and inspection work has to be carried out, the buyer/customer has to carry out such work in good time at his own expense. As long as ownership has not yet passed, the buyer/customer must inform us immediately in writing if the subject matter of the contract is seized or is exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the buyer/customer shall be liable for the loss incurred by us.
3. The buyer/customer is entitled to resell the reserved goods or the subject matter of the contract in the normal course of business. The claims of the buyer from the resale of the reserved goods, the buyer/customer hereby assigns to us amounting to the final invoice amount agreed with us. (including value added tax). We hereby accept the assignment. This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The buyer/customer shall remain entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected by this. We shall not collect the claim as long as the buyer/customer meets his payment obligations from the collected proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of insolvency proceedings or cessation of payments exists.
4. The processing or transformation of the object of sale or the object of the contract by the buyer/customer shall always be carried out in our name and on our behalf, without obligating us. In this case, the expectant right of the buyer/customer to the object of sale shall continue in the transformed object. Insofar as the object of sale or the object of the contract is processed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion to the objective value of our object of sale or the object of the contract to the other processed objects at the time of processing. The same shall apply in the case of mixing. If the mixing takes place in such a way that the item of the buyer/customer is to be regarded as the main item, it shall be agreed that the buyer/customer assigns to us pro rata co-ownership and keeps the resulting sole ownership or co-ownership for us. In order to secure our claim against the buyer/customer, the buyer/customer also assigns to us such claims which accrue to him through the combination of the reserved goods with real estate against a third party; we hereby accept this assignment.
5. If the invoice value of the existing securities exceeds the value of the secured claims including ancillary claims (interest, costs, etc.) by more than 50 %, we shall on request of the buyer/customer be obliged to release securities of our choice.
VI. Deadlines for deliveries and services; Default
1. Compliance with deadlines for deliveries and services requires the timely receipt of all necessary documents, necessary approvals and releases, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the customer/buyer. If these prerequisites are not fulfilled in time by the customer/buyer the respective deadline shall be extended by a reasonable period.
2. Delivery periods and dates are non-binding and are only approximate subject to the fulfilment of all duties of cooperation of the buyer/ customer and the timely and qualitatively flawless supply of pre-materials, unless we have expressly acknowledged them in writing as binding. Any period of grace to be granted to us must be reasonable.
3. The delivery period shall commence with the dispatch of the final order confirmation, but not before clarification of all details as well as the technical details.
4. The deadline shall be deemed to have been met if, upon delivery, the ready for operation consignment has been shipped or collected within the agreed delivery or performance period. If the delivery is delayed for reasons for which the buyer/customer is responsible, the delivery or performance shall apply upon notification of readiness for dispatch within the agreed period in due time.
5. If the buyer/customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to claim for the damages incurred by us in this respect, including compensation for any additional expenses. Further claims shall remain reserved. Insofar as the buyer/customer is in default of acceptance or if he violates any other obligations to cooperate, the risk of accidental loss or accidental deterioration of the goods delivered shall pass to the buyer/customer at the time the buyer/customer is in default of acceptance or debtor's delay or caused the breach of the other obligations to cooperate.
6. If the non-observance of the respective deadline is due to force majeure or other reasons for which we are not responsible, e.g. mobilisation, war, riot or similar events, e.g. strike or lockout, the deadline shall be extended by a reasonable period of time. Circumstances for which we are not responsible also include difficulties in procuring the supplies required for the delivery (including raw materials) as well as the justified outsourced services.
7. If the buyer/customer has caused a delay in the dispatch or transport or services by more than 1 month after the notification of readiness for shipment or transport or service, we shall be entitled to charge the buyer/ customer a storage fee of 0.5% of the value of the delivery or the value of the service, but no more than a total of 5 % for each month that has started. The contracting parties shall be free to prove higher or lower storage costs.
VII Force majeure
Circumstances or events for which we are not responsible, which are due to force majeure, release us from our contractual performance obligations for the duration of their existence and the extent of their effect. Force majeure are circumstances for which we are not responsible and which make our contract performance impossible or unreasonably difficult, such as a regular strike or lockout, war, civil war, riots, import and export bans, shortage of energy and raw materials, official measures.
VIII. Shipment and transfer of risk
1. Place of performance for delivery and payment is Netphen-Deuz, which is our registered office.
2. We shall determine the route and means of dispatch as well as forwarder and carrier.
3. Goods which have been reported ready for dispatch in accordance with the contract shall be retrieved immediately by the buyer/customer, otherwise we shall be entitled, after issuing a reminder, to ship the goods at cost and risk of the buyer/customer at our discretion, or to store them at our discretion and to invoice them immediately.
4. We are entitled to deliver by a different route or to a different place if, through no fault of our own, the transport on the intended route or to the intended place within the intended time is impossible or considerably more difficult.
5. With the handing over of the goods to a forwarder or carrier, but at the latest when the goods leave the warehouse or the supplier's premises, the risk, including the risk of seizure of the goods, shall pass to the customer in all transactions, especially our free domicile deliveries, shall pass to the buyer/customer. We shall only provide insurance on the instructions of the buyer/customer.
1. Goods and products delivered shall be accepted by the buyer/customer, even if they show insignificant deviations.
2. We are entitled to make partial deliveries if
a) the partial deliveries are suitable for the buyer/customer within the scope of purpose of the contract, and
b) the delivery of the remaining ordered goods is ensured and the buyer/customer does not incur any significant additional expenses or costs (unless we agree to bear these costs).
3. Customary over- or under-deliveries of the contracted quantity are permissible.
X. Warranty/Liability/Material defects
1. The goods are according to contract if, they do not or just insignificantly deviate from the agreed quality or specification at the time of the transfer of risk. The contractual conformity and flawlessness of our goods shall be measured exclusively in accordance with the explicit agreement on quality and quantity of the goods ordered. Liability for a specific purpose or a specific suitability is only assumed to the extent that this has been expressly agreed in writing; in all other respects the risk of suitability and use lies exclusively with the buyer/customer. We shall not be liable for deterioration or loss or improper handling of the goods after the transfer of risk. Contents of the agreed specification and any expressly agreed purpose of use do not constitute a guarantee; the assumption of a guarantee requires a written agreement.
2. The customer/buyer shall be obliged to inspect the goods immediately. If he fails to do so, this shall result in a release from liability on our part. The obligation to inspect and reprimand according to §377 HGB (German Commercial Code) shall be duly fulfilled by the buyer/customer; otherwise we shall be released from any liability. The delivery is deemed to have been approved if a notice of defect due to obvious defects is not received by us within 7 (seven) days after arrival at the place of destination.
3. Hidden defects must be reported immediately in writing after their discovery.
4. We must first be given the opportunity to rectify the defect within a reasonable period of time. At our discretion all (partial) goods/services which are defective shall be repaired, replaced or provided again free of charge within the period of limitation - irrespective of the period of operation – and that show a quality defect in accordance with § 434 BGB (German Civil Code) or § 633 BGB. This does not apply if the cause of the defect or the defect itself did not already exist at the time of the transfer of risk. If the defect is not significant, the buyer/customer shall only be entitled to a right to reduce the purchase price.
5. In the event of an unjustified notice of defect, we shall be entitled to claim compensation from the buyer/customer with regard to any expenses incurred.
6. In the event of a defect of title, we shall have the right to remedy the defect of title within a reasonable period of time.
7. We can refuse to rectify the defect if it is only possible at disproportionate costs. As a rule, disproportionate costs are deemed to exist when the costs of the subsequent performance including the necessary expenses amount to 150 % of the final price (excluding value added tax) of the goods concerned. Excluded are costs in connection with the installation and removal of the defective item, as well as costs incurred by the buyer for the self-repair of a defect, without the legal requirements for this being met. We do not bear any expenses incurred by the fact that the goods sold have been brought to a place other than the agreed place, unless this is in accordance with the contractual use.
8. After carrying out an agreed acceptance of the goods by the buyer/customer, the notification of defects, which can be detected during the agreed type of acceptance, shall be excluded.
9 In the event of complaints, the buyer/customer shall immediately give us the opportunity to inspect the goods; on request the goods complained of or a sample thereof shall be made available to us at our expense. In the case of unjustified complaints, we reserve the right to charge the buyer with freight costs and the costs of inspection.
10. Recourse claims of the buyer/customer according to § 445a BGB against us shall be limited to the statutory scope of the asserted claims against the buyer/customer by third parties and presuppose that the buyer/customer has fulfilled his obligation to notify us of defects in accordance with § 377 HGB.
XI Other liability
1. The buyer/customer shall not be entitled to any claims for damages and reimbursement of expenses against us. This does not apply insofar as liability is prescribed by law, such as:
- under the Product Liability Act,
- in case of intent or gross negligence,
- in the event of injury to life, limb or health,
- in the event of the assumption of a guarantee for the condition,
- fraudulent concealment of a defect, or
- in the event of a breach of essential contractual obligations (obligation, the fulfilment of which is a prerequisite for the proper performance of the contract in the first place and on the observance of which the buyer/customer regularly trusts and may trust).
The claim for damages for the simple negligent breach of essential contractual obligations shall, however, be limited to contractually typical and foreseeable damage. A burden of proof to the detriment of the customer/buyer is not associated with the above provision.
2. The limitations of liability resulting from para. 1 shall also apply to third parties and to breaches of duty by persons (also in their favour) whose fault we are responsible for.
3. Due to a breach of duty which does not consist of a defect, the buyer may only withdraw from the contract or terminate it, if we are responsible for the breach of duty. The buyer's free right of termination (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects the statutory requirements and legal consequences shall apply.
1. In deviation from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as an acceptance has been agreed, the limitation period shall commence with the acceptance.
2. If the goods are a building or an object which, in accordance with its customary manner is used for a building and has caused the defectiveness (building material), the statutory period of limitation is 5 years from delivery (§ 438 para. 1 no. 2 BGB). The following shall remain unaffected by other special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB).
3. The above limitation periods under the law of sales shall also apply to contractual and non-contractual claims of the buyer, which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer/customer due to intent or gross negligence, injury to life, limb or health and according to the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
XIII Contract work
In the case of contract work, the following additional conditions apply:
1. The buyer/customer can change the execution regulations of an order accepted by us only with our express consent. In the case of contract work, binding promises about the result cannot be made due to the technical conditions.
2. On our request the buyer/customer shall indemnify us and hold us harmless for all claims arising from the execution of his order in those cases in which the execution of
the order and the execution of certain qualities and properties have led to the use of documents made available to us, that infringe foreign industrial property rights of third parties, in particular copyrights, patents, trademark or design protection rights. Unless otherwise agreed, the subcontracted objects are to be delivered to us free of charge.
3. The risk and costs of loss or deterioration of the prematerial or the processed material during the transport to us and during the return transport shall be borne by the buyer/customer.
4. Regulations made by the buyer/customer with regard to a minimum output quantity shall only be deemed to have been agreed if we have issued an express written declaration in which the quantity of input material taken over, the minimum output quantity and the price surcharge to be agreed in such cases is contained. In principle and process-related, losses are to be expected in technical processes, so that claims for damages and price reduction claims for such losses are excluded. Changes to the details submitted by the buyer/customer and accepted by us shall only be taken into account if they have been agreed in writing. All costs arising from a change shall be borne by the buyer/customer. Also additional costs and damages incurred by us due to the fact that the material provided by the buyer/customer does not meet the contractually agreed requirements (e.g. in the case of porosity, material characteristics, sand inclusions, brittleness, poor surface quality) shall be borne by the buyer/customer.
5. The subcontracting items handed over to us by the buyer/customer shall be accompanied by an order which must contain the complete details for processing, which is then handed over by the buyer/customer and confirmed by us. If the information in the order is incomplete or cannot be carried out with our equipment or machines, we shall be entitled to refuse the execution of the order or to carry out reworking at our discretion, at the risk of the buyer/customer and for the result of which we shall not be liable. Any warranty claims are excluded in this case.
6. We guarantee for subcontract work in such a way, that we will rework or issue a credit note for those subcontracted work items for which defects we are evidently responsible, which exclude the usability, at our discretion. The amount shall be limited to the amount of the price agreed for the individual order. If reworking is not possible, we shall carry out the contractually agreed work on a substitute material provided by the buyer/customer free of charge. We do not assume any costs for material or any follow-up costs. In the case of free of charge reworking in our works a reasonable period of time to carry out the rework is to be granted to us.
7. We shall not be liable for any damage caused by faulty material, to errors in the technical documents or other information provided by the buyer/customer or inappropriate use of workpieces that do not comply with their quality terms by the buyer/customer. An incoming inspection of the material shall not be carried out by us.
8. The buyer/customer shall grant us a right of lien upon handover of the prematerial and the workpiece to be processed. The liens in our possession shall serve as security for all our claims arising from the business relationship with the buyer/customer. After the due date and reminder, we are entitled to sell the pledged items at any time after prior notification to the buyer/customer.
XIV Ancillary agreements, Supplements and Amendments
1. Amendments, supplements and ancillary agreements to these General Terms and Conditions of Sale and Delivery must be in writing in order to be effective. The exclusion of the written form requirement must also be in writing.
2. No other written agreements or supplements to this contract exist.
3. Should there be any gaps in the respective contract or these General Terms and Conditions of Sale and Delivery regarding the practical work or technical implementation, gaps should be found and filled by the contracting parties factually and in an appropriate manner.
XV. Place of jurisdiction and applicable law
1. The sole place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is our place of business, Netphen-Deuz. However, we shall also be entitled to file a suit at the general place of jurisdiction of the buyer/customer.
2. All legal relationships in connection with these agreements shall be governed by German law. The United Nations Convention on Contracts for the international sale of goods (CISG) is excluded.
3. The place of performance for delivery and payment is our place of business office, i.e. Netphen-Deuz.
XVI. Severability Clause
Should any provision of these General Terms and Conditions of Sale be invalid, the validity of the remaining provisions shall remain unaffected in their effectiveness and shall be binding. The wholly or partially invalid provision shall in this case be replaced by agreements which correspond to the economic content of the invalid provision or the invalid part as closely as possible.