General terms and conditions
(Conditions of sale, delivery and payment for metal castings)
Friedrich Döbrich Die Casting Foundry GmbH & Co. KG
§1 General/Conclusion of contract
a) We conclude supply contracts only under the following conditions.
b) Our offers are subject to change. The mutual written declarations of both parties are decisive for the scope of delivery of the service. Subsequent changes and additions must be made in writing.
c) We do not recognise any terms and conditions of the customer that are contrary to or deviate from our terms and conditions, even if we are aware of the customer’s terms and conditions and carry out the delivery without reservation, unless we have recognised them in writing.
d) Our terms and conditions shall only apply to companies (within the meaning of § 14 para. 1 BGB); they shall also apply to all future business transactions with the customer from the current business relationship.
a) Our prices are ex works excluding packaging and value added tax.
b) The prices valid on the day of delivery on the basis of raw material prices and wages shall be charged.
c) Value added tax at the respective statutory rate is added to the prices.
d) If order-related costs change significantly after conclusion of the contract, the contracting parties are obliged to agree on an adjustment of the prices.
§3 Delivery and acceptance obligations
a) Delivery periods begin as soon as all details of execution have been clarified and the customer has fulfilled all requirements. Unless otherwise agreed, the day of delivery is the day of dispatch. However, if dispatch is delayed through no fault of our own, the day of provision shall be deemed the day of delivery. Partial deliveries are permissible, unless this is contrary to a recognizable interest of the customer.
b) If we are prevented from delivering on time by force majeure or due to unforeseeable circumstances for which we are not responsible, such as official measures, unrest or failure to deliver by our suppliers, the delivery period shall be extended by the duration of the hindrance. If the hindrance lasts longer than three months, we and the customer may withdraw from the contract with regard to the part of the contract not yet fulfilled, excluding claims for damages.
c) If we are in default, the customer is entitled to set a reasonable grace period and to withdraw from the contract after its unsuccessful expiry. Claims for damages in lieu of performance shall be limited in the event of our slight or ordinary negligence to the foreseeable damage typical for the contract.
d) In the case of call-off orders without agreement on the term, production batch sizes and acceptance dates, we may, unless otherwise agreed in writing, demand a binding specification of these three months after order confirmation at the latest. If the customer does not comply with this request within three weeks, we are entitled to set a 2-week grace period and, after its expiry, to withdraw from the contract and claim damages.
e) If the customer wishes us to carry out necessary tests, the type and scope of the tests are to be agreed. If this is not done at the latest when the contract is concluded, the costs shall be borne by the customer.
f) If a delivery is to be made on the basis of a sample produced by us, the customer must inspect and release this sample in our factory immediately after notification of completion of the sample. If the release does not take place despite the setting of a reasonable grace period for reasons for which the customer is responsible, we shall be entitled to dispatch the sample or to store it at the customer’s expense and risk; the sample shall then be deemed to have been released.
§4 Dispatch and transfer of risk
a) The risk shall pass to the customer when the goods leave our factory (ex-works).
b) If dispatch is delayed for reasons for which the customer is responsible, the risk shall pass to the customer on the day of provision.
§5 Dimensions, weights and delivery quantities
a) The DIN and EN standards shall apply for the compliance with the dimensions. In all other respects we state dimensions and weights in our offers and order confirmations to the best of our knowledge. However, they do not constitute a guarantee of quality. Minor deviations, especially excess or short weights due to foundry technology, do not entitle the customer to complaints and claims for defects, unless otherwise agreed.
b) Compared to the order quantity, an excess or short delivery of up to 10% is permissible for series production due to the special features of the metal casting process.
§6 Claims due to defects
a) The assertion of claims for defects by the commercial customer presupposes that the latter has properly fulfilled his obligations to examine the goods and make a complaint in accordance with § 377 HGB (German Commercial Code). Other entrepreneurs must notify us of obvious defects within 14 days of receipt of the goods, otherwise the purchaser’s claims for defects shall lapse. Any complaints must be made in writing, specifying the defect.
b) We must be given the opportunity to inspect the notified defect on site. The inspection by us must be carried out without delay, provided that the customer demonstrates an interest in immediate settlement.
c) Claims for defects shall not exist if there are only insignificant deviations from the quality or only insignificant impairment of usability.
d) All our specifications are only performance descriptions and not guarantees, unless otherwise agreed.
e) If there is a defect in the goods for which we are responsible, we shall be entitled to choose whether to remedy the defect or make a subsequent delivery.
f) If the customer wrongly complains about the existence of a defect for which we are not responsible for reasons for which we are not responsible, we shall be entitled to charge the customer for the reasonable expenses incurred by us for the removal and/or detection of the defect.
g) We may charge the customer with the additional costs of the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as the expenses are increased by taking the delivered goods to a place other than the delivery address, unless the goods are taken to a place other than the delivery address in accordance with the intended use stipulated in the contract.
h) Claims under a right of recourse of the customer in the case of the purchase of consumer goods (§ 478 BGB) are excluded in this respect with regard to agreements between the customer and his customers which go beyond the statutory claims for defects of the customers. The purchaser must inform us in good time about the claims for defects of his customers so that we are in a position, at our discretion, to satisfy the claims of the customer instead of the purchaser.
i) Warranty claims shall become statute-barred 12 months after delivery, unless we have caused the defects by gross negligence, intent or fraudulent concealment. This statute of limitations shall also apply to claims arising from any guarantees given by us or binding on us, unless otherwise stated. The statutory periods for the right of recourse according to § 478 BGB remain unaffected, the same applies to longer statutory periods of limitation, such as for the construction of buildings or the delivery of goods which have been used for a building in accordance with their normal use and which cause its defectiveness. These periods of limitation shall also apply to consequential damages caused by defects, unless these are claimed in tort. If subsequent performance is required due to defective delivery, the limitation period shall only be suspended until subsequent performance and shall not be restarted.
j) Before the customer can assert further claims or rights (withdrawal, reduction, compensation for damages or reimbursement of expenses), we must first be given the opportunity for subsequent performance within a reasonable period, unless we have given a guarantee to the contrary. If subsequent performance fails despite at least two attempts, if we refuse subsequent performance, or if subsequent performance is not possible or is unreasonable for the customer, the customer may withdraw from the contract or reduce the remuneration (abatement). 7 of these terms and conditions shall apply to the assertion of claims for damages and reimbursement of expenses.
k) For claims due to defects of title the following shall apply additionally:
(1) Unless otherwise agreed, we shall only be obliged to effect deliveries in the country of the delivery address free of third-party rights.
(2) In the event of an infringement of third party property rights for which we are responsible, we may, at our discretion, either obtain at our own expense and transfer to the customer a right of use sufficient for the agreed or presumed use, or modify the delivered goods so that the property right is not infringed, or exchange the delivered goods, provided that the agreed and presumed use of the delivered goods is not impaired thereby. If this is not possible for us, or if we refuse subsequent performance or if such subsequent performance fails, the customer shall be entitled to the statutory claims and rights. 7 shall apply to claims for damages and reimbursement of expenses.
If selection samples are sent to the customer for inspection, we shall only be liable for ensuring that the delivery is carried out according to the selection sample, taking into account any corrections.
§ 7 Compensation for damages
a) The assertion of claims for damages or reimbursement of expenses (hereinafter “COMPENSATION”) due to defects of the delivered goods (claims for defects) is excluded if we are unable to provide subsequent performance for reasons for which we are not responsible. The assertion of a claim for compensation for damages for defects and for consequential damages based on the delivery of defective goods shall generally require that we have caused the defect intentionally, by gross negligence or by a negligent material breach of duty, unless otherwise agreed. The same applies to the assertion of COMPENSATION for a breach of a durability guarantee given by us or on our behalf (§ 443 para. 2 BGB).
b) Otherwise, claims for damages by the customer, regardless of the legal grounds, in particular for breach of duties arising from and in connection with the contractual obligation, for culpa in contrahendo before or at the time of conclusion of the contract and for tort are excluded. This shall not apply to claims pursuant to §§ 1, 4 of the Product Liability Act, in cases of intent or gross negligence, in the event of injury to life, body or health, due to the assumption of a guarantee for the existence of a condition (condition guarantee) or in the event of our negligent substantial breach of duty. In no case shall we be liable beyond the statutory claims. In the event of our simple negligence, our liability is limited to the foreseeable and typical damage. Changes in the burden of proof are not associated with these provisions in paragraphs a) and b).
c) Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
d) The statute of limitations for claims between the Supplier and the Purchaser shall be governed by § 6i), unless claims arising from manufacturer’s liability pursuant to §§ 823 et seq. BGB or the product liability law are affected. This statute of limitations shall also apply in particular to consequential damage caused by defects.
e) If we assume the contractual obligation to inspect our products for the presence of certain properties and qualities, we shall be liable for damages which are due to the fact that we have not observed the purchaser’s test specifications.
§ 8 Terms of payment
a) Unless otherwise agreed in writing, the following terms of payment apply: 14 days 2%, 30 days net.
b) Tool costs are to be paid as follows, unless otherwise agreed in writing:
1/3 down payment upon receipt of order,
1/3 on completion of the tool,
1/3 upon release for serial production by the customer, but no later than 60 days after presentation of the samples, unless the customer has justified objections.
§ 9 Retention of title
a) We reserve title to the delivered items until receipt of all payments arising from the business relationship with the customer, or, if a current account exists with the customer, until settlement of the acknowledged balance. In the event of the customer acting in breach of contract, in particular in the event of default in payment after a deadline has been set, we shall be entitled to take back the delivered goods. This does not apply if the customer has already filed for insolvency proceedings or insolvency proceedings have been opened, as a result of which immediate repossession of the delivered items by us is not permitted. After taking back the delivered goods, we shall be entitled to sell them, and the proceeds of such sale shall be set off against the customer’s liabilities – less reasonable costs of sale. The regulations of the Insolvency Code remain unaffected.
b) Unless otherwise agreed in writing, the customer is obliged to treat the delivered item with care, in particular he is obliged to insure it sufficiently at his own expense against fire, water and theft damage at replacement value.
c) In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing. The customer shall be liable to us for the judicial and extrajudicial costs of any necessary legal action in accordance with § 771 ZPO (third-party action against execution).
d) The customer is entitled to resell the delivery item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims which accrue to him from the resale against his customers or third parties, irrespective of whether the delivered item has been resold without or after processing. The assigned claim also refers to a recognised balance or, in the event of the insolvency of the customer’s buyer, to the “causal” balance. The purchaser remains authorised to collect this claim even after the assignment. However, we shall be entitled to collect the claim ourselves if the customer no longer meets his payment obligations from the proceeds received, defaults in payment or has filed or has filed an application for the opening of insolvency proceedings or has suspended payments. In these cases, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, surrenders the associated documents and informs the debtors (third parties) of the assignment. However, collection of the claim by us is not possible if this is contrary to the Insolvency Code.
§10 Workpiece-related models and production equipment
a) If the customer provides us with models or production equipment (e.g. foundry moulds), these must be sent to us free of charge. We may demand that the customer retrieve such equipment at any time; if he does not comply with such a demand within 3 months, we shall be entitled to return them to him at his expense. The costs for maintenance and requested modifications shall be borne by the customer. The customer shall be liable for technically correct design and the execution of the equipment to ensure the production purpose; we shall, however, be entitled to make changes due to foundry technology. Without special agreement, we are not obliged to check the compliance of the equipment provided with the attached drawings or samples.
b) Insofar as workpiece-related models or production equipment are produced or procured by us at the request of the customer, the customer shall reimburse us for the costs incurred. If the full costs have not been invoiced, the customer shall also bear the residual costs if he does not accept the quantities he promised to purchase when the contract was concluded. The models and production equipment manufactured or procured by us remain our property; they will be used exclusively for deliveries to the customer during the term of the contract. If 3 years have elapsed since the last delivery, we are not obliged to keep them any longer.
c) All models and production equipment shall be treated by us with the same care that we apply in our own affairs. At the customer’s request, we are obliged to insure his models and equipment at his expense. Claims for compensation for consequential damage are excluded under the conditions of numbers § 6c) and § 7.
d) If deliveries are made according to drawings or other information provided by the customer and if industrial property rights of third parties are infringed by this, the customer shall indemnify us against all claims. Our drawings and documents handed over to the customer as well as our suggestions for the advantageous design and manufacture of the castings may not be passed on to third parties and can be reclaimed by us at any time. License claims of the customer on the basis of industrial property rights to models and production equipment sent in or produced or procured on his behalf are excluded, insofar as these are used by us in accordance with the contract.
§ 11 Parts to be cast in
a) Parts intended for casting shall be delivered free of charge; they must be dimensionally accurate and ready for casting. Any necessary processing costs shall be borne by the customer.
b) The number of sprue parts must exceed that of the ordered castings by a reasonable margin.
§ 12 Place of performance and jurisdiction, applicable law
The place of jurisdiction is our registered office if the customer is a merchant; this also applies to liabilities from bills of exchange and cheques. However, we are also entitled to sue the customer at his place of business.