General terms and conditions of sale and delivery

Valid for Ketten Branscheid GmbH and Branscheid Umformtechnik GmbH & Co. KG

§ 1 SCOPE OF VALIDITY

These terms and conditions of sale and delivery apply to all companies, legal entities under public law and special funds under public law as well as customers, purchasers or ordering parties. They are to be applied to all and future contracts.
Our deliveries and services are made exclusively on the basis of the following conditions. Thus, they also apply to future business relationships, even if they have not been agreed separately. Terms and conditions of the customer, which are not expressly acknowledged by us in writing, are not valid.
The following conditions remain in force even if one or more of them become invalid (severability clause). The parties are obliged to replace an invalid provision with a valid one that takes into account the economic success intended by the invalid provision as far as possible.
The contractual relationship shall be exclusively governed by the law of the Federal Republic of Germany. The provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods shall not apply.

§ 2 GENERAL TERMS

Our offers are subject to change without notice. Acceptance of the order requires written confirmation by us in order to be legally valid. This also applies to all subsidiary agreements made directly or by our representatives. The delivered goods may only be exported with our consent in the state of delivery abroad.
Dimensions, weights, illustrations and drawings as well as the information and illustrations contained in brochures and catalogues are only binding if this has been expressly agreed in writing.
We reserve ownership and copyright rights to samples, cost estimates, drawings and similar information of a physical and intangible nature - including in electronic form. They may not be made accessible to third parties.
The nature of the goods shall be determined exclusively in accordance with the agreed technical delivery regulations. If we have to deliver according to drawings, specifications, samples, etc. of our customer, he assumes the risk of suitability for the intended use. The point in time of the transfer of risk is decisive for the contractual condition of the goods. In this respect, we are only liable for the proper processing. Unless expressly agreed, no liability for the determination of material quality and for corrosion damage is assumed.

§ 3 PRICES

The prices are in EUROS ex works, plus the applicable statutory value added tax.
Packaging, postage, insurance and other shipping costs are not included and will be billed additionally.
Subsequent reduction of the number of units for deliveries and reduction of agreed call-offs necessitate an increase in unit prices, with special consideration being given to additional set-up and start-up costs.
The quantity and weight determined in the delivery note are decisive for the calculation.
If the cost factors change, we reserve the right to charge the prices permitted by the law on the day of delivery instead of the confirmed prices.
After a confirmed order has been placed, changes to the work item made at the customer’s request will be invoiced to the customer.
Design drawings, tools, samples and similar preliminary work initiated by the customer will be charged even if the order is not placed. In this respect, these terms and conditions shall apply even before the order is placed.

§ 4 PAYMENT

Unless otherwise agreed, our invoices are due immediately and without deductions.
In the event of a target being exceeded, we are entitled to demand default interest at a rate of 8% above the base interest rate of the Deutsche Bundesbank. We reserve the right to prove or claim higher damages caused by delay.
We expressly reserve the right to accept bills of exchange; they are generally only accepted on account of payment and are only valid after cashing as payment with discharging effect. Discount charges are borne by the customer.
If the customer is in default with the payment, we are free to refuse further performance of the contract.
If the payment claim is at considerable risk, we are entitled to demand advance payments or sufficient security.
If the customer refuses advance payment or security, we can withdraw from the contract and claim damages.
Incoming payments shall, without prejudice to any other provision of the customer, repay costs, then interest and, lastly, the main claim; in the case of several claims, first the older one.
The customer shall only be entitled to offset or retention rights if his counterclaims are legally established, undisputed or acknowledged by us and are based on the same contractual relationship.
Payments are to be made free of the supplier’s paying agent.

§ 5 RETENTION OF TITLE

Ownership shall not pass to the customer until he has settled all his liabilities from our goods deliveries. This also applies if the purchase price has been paid for certain goods deliveries specified by the customer. In the event of an ongoing invoice, the retention of title shall be deemed to secure our balance claim.
If the goods delivered by us are processed and/or mixed, processed or combined with other objects, the customer hereby assigns to us his ownership or co-ownership rights to the mixed, combined, processed or processed stock or the new object and stores this with commercial care for us. The customer is entitled to sell the delivered goods in the ordinary course of business.
It is prohibited to pledge or transfer security. The customer must notify us immediately of the seizure or any other impairment of our rights by third parties.
If the customer sells the reserved goods in an unprocessed or unprocessed condition, he hereby assigns to us all claims he is entitled to from the sale against his customers with all ancillary rights.
If the reserved goods of the supplier are processed, combined or mixed with other objects of third-party suppliers, the processing buyer already now assigns to us in advance the claims arising from the resale in the amount of the market value of our supplier goods. At our request, the customer is obliged to provide us with a written declaration of assignment for each claim that has arisen and to notify the third-party debtors of the assignment, to provide us with the information necessary to assert our rights against the third-party debtors and to hand over documents.
The customer undertakes to adequately insure the reserved goods against fire and theft at his own expense. He already assigns his claims from the insurance contracts to us. If maintenance and inspection work is required, the customer must carry out it at his own expense.
If the value of the securities given to us exceeds our delivery claims by a total of more than 20 percent, we shall be prepared to release securities in this respect at the request of the customer, according to our selection.

§ 6 PERFORMANCE OF DELIVERIES FOR MOULDED PARTS

Design of casting pieces
The drawings submitted or approved by the customer in connection with the free-dimensional tolerances proposed by the Foundry Standards Committee (GINA) are binding for the dimensional design of the castings.
With regard to the determined weights, the provisions in accordance with DIN 1681 paragraph 4 apply. Unit weight is the weight of a dimensionally accurate casting.
If, in special cases, it is necessary to assume a calculated weight, the type weight per cm3 must be used. As a rule, the weight of a piece may exceed the weight of a dimensionally stable casting by up to 7%, but unless special agreements are made, the casting may only be discarded if it is overweight by 15%.
Design of forged pieces
Binding for the dimensional design of the forgings are the raw or finished part drawings or plaster samples prepared by us and approved by the customer in conjunction with the tolerances for raw forgings specified in DIN EN 10243-1:1999. Deviations from this must be agreed in particular.
Models for casting pieces
For models that we manufacture on behalf of the customer, the costs incurred by us will be charged at 80 percent. This means that the models remain our property. If the customer asks for delivery of the models, the remaining part of the costs will be reimbursed.
The models sent to us by the customer and/or manufactured for him are stored with us carefully. They will only be delivered with the castings on special request.
The models are insured against fire, theft or other damage at the respective value of use.
The models are stored free of charge for 3 years after last use. Once this period has expired, it is up to the customer to reclaim the models.
Further storage is only possible at the expense and risk of the customer. The reconditioning of worn models as well as changes at the request of the customer will be charged.
What is said about the models applies accordingly to templates, moulds and similar aids.
Tools for forged pieces
The tools and devices created for the manufacture of forgings remain our property - irrespective of the calculation of cost shares. We undertake to keep the tools for the customer for 3 years after the last delivery. If, before the expiry of this period, the customer informs us that orders will be placed within another year, we shall be obliged to keep them for this period.
Otherwise, we can have the tools at our disposal.
The costs for the renewal and maintenance of the tools as well as the risk for tool breakage are borne by us.
Materials
Our proposals for the choice of a particular material are only recommendations. We cannot assume any liability for the operating behaviour of these materials because the use of these materials is beyond our control or influence.
We guarantee the professional production of the ordered material in accordance with the material standard sheets and our own material lists. The technological and physical properties of the material can be proven by certificates on request, for which the costs incurred are to be borne by the customer. If inspection or acceptance by third parties is prescribed or necessary for the delivered products, the inspection or acceptance must be carried out in our factory at the expense of the customer. Certificates of analysis are free of charge.
Heat treatment requires express agreement.
It is carried out in accordance with DIN 17006 if no special regulations are given.
Testing and approval
The usual inspection of our parts includes the inspection for dimensional accuracy and surface defects, insofar as these can be determined by visual inspection. The cost of the usual control is included in the unit price.
The type and scope of additional tests and test methods to be applied, such as 100% hardness tests (e.g. Brinell or Rockwell), crack tests and fault tests by magnetic powder, etc., must be specifically agreed and specified in the order and in the order confirmation.
In the event of prescribed acceptance, this must be carried out by us immediately after notification of readiness for shipment. The personal and material acceptance costs are borne by the customer. The goods shall be deemed to have been delivered in accordance with the contract upon dispatch if the client has accepted the goods or fails to perform the agreed acceptance or does not do so in due time.

§ 7. DELIVERY PERIODS AND DELIVERY QUANTITIES

Delivery periods and delivery dates are only binding if they are designated by us as binding and confirmed in writing.
The delivery period begins with the dispatch of the order confirmation, but not before complete clarification of all details of the order and the provision of any documents, necessary approvals and releases to be procured by the customer, as well as before receipt of an agreed down payment. If technical ambiguities or errors are subsequently revealed in the customer's order or drawing documents, the delivery period begins anew after they have been removed.
Delivery periods and delivery dates refer to the time of dispatch from the factory or warehouse. They shall be deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched in time without our fault. The delivery periods shall be extended - without prejudice to our rights arising from the customer’s delay - by the period by which the customer is in default with his obligations arising from these or other agreements with us. This applies accordingly for delivery dates.
The above paragraphs also apply if delivery periods or dates have been expressly agreed as fixed.
Compliance with the delivery period is subject to correct and timely self-delivery.
If we are in default, the customer can withdraw from the contract after expiry of a grace period set for us and appropriate for us insofar as the goods have not been reported as ready for dispatch by the expiry of the deadline. Claims for damages arising from non-compliance with the delivery period or delivery date are excluded.
Events of force majeure entitle us to postpone the delivery by the duration of the hindrance and a reasonable start-up period or to withdraw from the contract in whole or in part because of the not yet fulfilled part. Force majeure shall be deemed to be a strike, lockout and other circumstances that make delivery substantially more difficult or impossible for us, regardless of whether they occur with us or one of our subcontractors. The customer may request us to declare whether we wish to withdraw or deliver within a reasonable period of time. If we do not explain ourselves, the customer can withdraw.
Production-related excess or short deliveries of up to 10% of the ordered quantity are permitted.
We are entitled to make partial deliveries.

§ 8. SHIPMENT AND TRANSFER OF RISK

If there is no special agreement on transport, we will choose the means of transport and the route of transport.
Mesh boxes and Euro pallets used for transport are replaced. If an exchange is not made or is not possible, these will be recalculated according to their new value.
When the goods are handed over to the freight forwarder or carrier, but at the latest when they leave the factory or warehouse, the risk - including seizure - is transferred to the customer in any case - e.g. also in the case of carriage paid, fob and cif transactions. In addition, unless otherwise stipulated in these terms and conditions, the Incoterms shall be decisive for the interpretation of the various sales clauses.
If the customer is in default of acceptance, this shall be deemed equivalent to handover.

§ 9. DEFECTS AND WARRANTY

The customer must check the goods for lack of defects in accordance with § 377 HGB immediately after delivery.
Obvious defects will be recognized by us, if the goods are still in the delivery state, that is, the recipient has not heat treated or chip-free deformed and the notification of defects was immediately, but at least within one week after receipt of the goods, notified us in writing. If obvious defects are not reported, not in due time or not in accordance with the form, the warranty shall be void in this regard.
Other defects must also be reported to us in writing within one week of becoming aware of them, otherwise the goods shall also be deemed to have been approved in view of this defect.
Claims for material defects shall expire in 12 months from the transfer of risk. This does not apply if the law stipulates longer limitation periods without modification.
If acceptance of the goods has been agreed with the customer, the goods shall be deemed approved upon acceptance. Further claims for defects are then excluded, unless the defect is a defect that was not recognisable even after careful examination at the time of acceptance.
We are to be given the opportunity to determine the notified defect. Complained goods must be returned to us immediately upon request. If the customer does not meet these obligations or makes changes to the goods already complained of without our consent, he loses any claims for material defects.
We shall not be liable for material defects resulting from unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent treatment, nor for the consequences of improper modifications or repair work carried out by the customer or third parties without our written consent. The same applies to defects which only insignificantly reduce the value or the fitness for use of the goods.
We are entitled to make supplementary performance at our discretion. This means that we will decide whether to remedy the defect or to make a new delivery.
If we decide to remedy the defect, we shall bear the expenses necessary for the purpose of remedying the defect, but only insofar as these do not increase as a result, that the goods have been moved to a location other than the customer's branch after the transfer of risk, unless such removal is part of the intended use of the delivery item.
If the supplementary performance fails, we are entitled to repeat supplementary performance. Even in the case of repeated supplementary performance, we can choose between new delivery or elimination of defects.
If the supplementary performance has repeatedly failed or if we have refused the supplementary performance in its entirety, the customer may choose to reduce (lower) the purchase price or withdraw from the contract (change). However, in the event of only minor non-compliance with the contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
The customer’s recourse claims against us only exist insofar as the customer has not reached an agreement with his customer that goes beyond the statutory claims for defects. The provision in § 9 applies accordingly to the scope of the recourse claims. Any claims of the customer against us and our vicarious agents other than those regulated in this § 9 due to a material defect are excluded.

§ 10. OTHER CLAIMS, LIABILITY

Unless otherwise stated below, other and further claims of the customer against us are excluded. This applies in particular to claims for damages due to violation of obligations arising from the contractual relationship and from impermissible actions. Therefore, we are not liable for damage that has not occurred to the delivered goods themselves. Compensation for consequential damages is therefore excluded, insofar as they are not based on intent. In particular, we shall not be liable for loss of profit or other financial losses of the customer.
Claims for damages shall only exist if we or our vicarious agents are responsible for gross negligence or intent, as well as in the event of injury to life, body or health and in the event of violation of essential contractual obligations due to mandatory liability under the Product Liability Act or other mandatory liability. However, the compensation for the violation of essential contractual obligations is limited to the foreseeable damage typical of the contract to the extent permissible.
Any liability arising from the violation of obligations under the Equipment and Product Safety Act is limited to products that were placed on the market after 01.05.2004.
Claims for damages by the customer due to a defect shall become statute-barred after 1 year from the delivery of the goods. This does not apply if we are accused of malice.

§ 11. PROTECTION RIGHTS

The client is obliged to examine the possible violation of industrial property rights by the placing of the order and, if necessary, to draw our attention to the fact that the order is effectively protected by industrial property rights.
He assumes all liability for claims that are asserted against us by a person entitled to do so in the execution of his order and must indemnify and hold us harmless for all disadvantages that may arise from this.

§ 12. DATA PRIVACY CLAUSE

In accordance with the provisions of the Federal Data Protection Act, we are entitled to store, process and transfer personal data about the customer to affiliated companies, insofar as this is necessary for the fulfilment and processing of the order.

§ 13. PLACE OF FULFILMENT AND COURT OF JURISDICTION

The place of performance for the delivery is the place of dispatch; the place of performance for the payment is 58256 Ennepetal.
Hagen is the place of jurisdiction for all legal disputes, including in the context of a bill of exchange and check process. We are also entitled to sue at the registered office of the contractual partner.