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General Terms and Conditions
valid for Ketten Branscheid GmbH as well as Branscheid Umformtechnik GmbH & Co. KG
§ 1 Area of applicability
These terms and conditions apply relative to all companies, legal persons under public law and special funds under public law, as well as to customers, recipients or purchasers. These terms and conditions shall be applied to all contracts, including future contracts.
Our goods and services shall be provided exclusively on the basis of the terms and conditions cited below. Thus these terms and conditions shall also apply for future business relationships, even if they are not agreed separately. The customer’s terms and conditions that we have not expressly acknowledged in writing shall have no validity.
The terms and conditions cited below shall also remain in force if one or more of these terms and conditions should be ineffective (severability clause). The contracting parties shall be obligated to replace an ineffective provision with an effective provision that most nearly approaches the economic success intended with the ineffective provision.
The law of the Federal Republic of Germany shall apply exclusively for the contract relationship. Application of the provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
§ 2 General provisions
Our quotations are subject to change. For legal validity, order acceptance shall require our written confirmation. This shall also apply for all indirect or ancillary agreements made by our representatives. The delivered goods shall only be exported to a foreign country in delivery condition with our consent.
Dimensions, weights, illustrations and drawings, as well as the information and illustrations contained in brochures and catalogues shall only be binding if this has been expressly agreed in writing.
We reserve the property rights and copyrights for samples, cost estimates, drawings and equivalent information of a material or immaterial nature – also in electronic form. They must not be made accessible to third parties.
The condition of the goods shall be assessed exclusively in accordance with the agreed technical delivery guidelines. If we shall be obligated to deliver in accordance with the drawings, specifications, samples, etc. of our customer, the customer shall assume the risk of suitability for the intended purpose. The time of transfer of risk shall be authoritative for the contractual condition of the goods. In this respect, we shall be liable merely for the proper processing. Unless expressly agreed, no liability for determination of material quality or for corrosion damage shall be assumed.
§ 3 Prices
All prices are quoted in EURO ex works, plus the respective legal value added tax.
Packaging, postage, insurance and other shipping costs are not included and shall be added to the invoice.
Retroactive reduction of the quantity for deliveries, as well as reduction in agreed call-ups shall bring about an increase in the unit prices with special consideration of any additional tooling costs or start-up costs.
The quantity and weight specified on the delivery ticket shall be authoritative for the calculation.
If there is a change in the cost factors on the day of delivery, we reserve the right to charge current market prices allowable under price law in lieu of the confirmed prices.
Changes to the object of the contract undertaken on the customer's request, after a purchase order has been confirmed shall be billed to the customer.
Design drawings, tools, samples, and similar preliminary work arranged for by the customer shall also be billed, even if the order is not placed. In this respect these terms and conditions shall apply even before the order is placed.
§ 4 Payment
If nothing to the contrary is agreed our invoices shall be immediately due and payable without deductions.
If the payment deadline is exceeded, we shall be entitled to demand interest on arrears in the amount of 8% above the base lending rate of the Deutsche Bundesbank. We reserve the right to provide evidence of greater damage caused by default, and to assert such greater damage.
We expressly reserve the right to accept bills of exchange; these shall in principal only be accepted for the sake of payment and shall be valid only after redemption as payment with releasing effect. Discount charges shall be borne by the customer.
If the customer is in arrears with payment, we shall be free to refuse further fulfilment of the contract.
If there is a significant likelihood that payment will not be forthcoming, we shall be entitled to demand prepayment or the provision of adequate security.
If the customer refuses prepayment or the provision of security, we shall be entitled to withdraw from the contract, and to claim damages.
Irrespective of other directions given by the customer, any payments received shall be applied first to pay for costs, afterwards interest, and the main claim last, in the case of several claims, the oldest claim will be deemed to have been paid first.
The customer shall only be entitled to the right to offset or the right of retention if his counter-claims have been declared final and absolute in a court of law or if they have been recognised by us and are based on the same contractual relationship.
Payments must be made in the full amount to the payment point of the supplier.
§ 5 Retention of title
Title shall only pass to the customer after he has paid all of his liabilities arising from our deliveries. This shall also apply if the purchase price for certain deliveries of goods, identified by the customer, has been paid. In cases of current accounts the retained property shall be deemed to be collateral for our claim to the balance of the account.
If the goods we deliver shall be processed or mixed, or combined with other objects, then the customer shall already at this point assign his ownership or co-ownership rights to the mixed, combined or processed stock or new object to us, and shall keep it for us with the diligence of a prudent businessman. The customer shall be entitled to sell the delivered goods in usual business transactions.
Pledging or assignment as collateral are prohibited for the customer. Customer shall be obligated to notify us without delay of attachment, or any other impairment of our rights on the part of third parties.
If the customer sells the goods subject to retention of title in the unprocessed or on worked status, the customer shall already at this point in time assign to us the receivables against his customers along with all ancillary rights arising from the sale to which the customer is entitled.
If the goods of the supplier that are subject to retention of title are processed, combined or mixed with other objects from third-party suppliers, then the processing purchaser at this time assigns to us, in advance, the receivables arising from the resale in the amount of the market value of our supplier's goods. On our request, the customer shall be obligated to transfer to us a written declaration of assignment concerning each receivable that occurs, and to announce the assignment to third-party debtors, and also to provide to us the required information and documents for legally enforcing our rights against the third-party debtors.
The customer shall be obligated to adequately insure the goods subject to retention of title against fire and theft at the customer's expense. At this point in time the customer assigns to us his claims arising from the insurance contracts. If maintenance and inspection tasks are required, the customer shall execute these tasks at his own expense.
If the value of the securities given to us exceeds our delivery receivables in total by more than 20%, then we shall be ready on the customer's request to release securities at our discretion.
§ 6 Execution of deliveries for moulded parts
Formation of castings The drawings sent or approved by the customer in conjunction with the general tolerances recommended by the Authorized Standardization Committee – Foundry Industries (Fachnormenausschuss Gießereiwesen (GINA)) shall be binding for the dimensional execution of the castings. The requirements stipulated in DIN 1681, paragraph 4, shall apply relative to the determined weights. The weight of a dimensionally stable cast shall apply as unit weight. If in special cases, a calculated weight must be assumed, then the specific weight must be substantiated per cubic centimetre. As a rule, the weight of a unit may exceed the weight of a dimensionally stable cast by as much as 7%, however if special agreements have not been made, the casting may only be discarded at an excess weight of 15%.
Formation of forgings The drawings of unmachined or finished parts or plaster samples prepared by us and approved by the customer in conjunction with the tolerances for rough forgings specified in DIN EN 10243-1:1999 shall be binding for the dimensional execution of the castings. Deviations to the above shall require a separate agreement.
Models for castings For models that we produce on behalf of the customer, we shall bill 80% of the costs that we incur. Thus the models shall remain our property. If the customer requests that the models be handed over, the remaining share of the costs shall be reimbursed to us. The models sent to us by the customer and/or prepared by us for the customer will be carefully stored at our facility. They will only be delivered together with the second casts on special request. The models will be insured against fire, theft or other damage at the respective present utilization value. After last use, the models will be stored for 3 years at no charge. After this period expires, the customer can at his discretion request that the models be returned. Storage after the three-year period is only possible at the expense and the risk of the customer. The refurbishment of worn models, as well as changes made at the request of the customer shall be billed The provisions referring to the models shall apply analogously for templates, moulds, and comparable auxiliary materials.
Tools for forgings The tools and fixtures produced for the manufacturing of forgings, shall remain our property – regardless of the calculation of the apportioned costs. We shall be obligated to store the tools for the customer for 3 years after the last delivery. If prior to expiration of this period the customer informs us that within an additional year orders will be placed, then we shall be obligated to store the respective tools for this period. In all other cases, we shall be entitled to freely dispose of the tools. The costs for replacement and maintenance of the tools, as well as the risk of tool breakage, shall be our responsibility.
Materials Our suggestions for selection of a specific material are only recommendations. We can provide no warranty for the operational behaviour of these materials because implementation is beyond our control, or beyond our area of influence. We guarantee professional production of the ordered material in agreement with the material standard specifications sheets and our own material lists. The technological and physical characteristics of the material can be substantiated through attestation on request, however, the costs incurred for the attestation shall be the responsibility of the customer. If a test or acceptance for the delivered products is prescribed through third parties or is necessary, then the test or acceptance must take place in our plant at the customer's expense. Analysis attestations shall be free of charge. Heat treatment shall require express agreement. Heat treatment shall occur in accordance with DIN 17006 if no special guidelines are provided.
Test and acceptance The usual testing of our parts includes testing for dimensional stability and surface faults, to the extent that dimensional stability and surface faults can be determined through visual inspection. The cost for the usual inspection shall be included in the unit price. The type and scope of additional tests and test methods to be employed, such as 100% hardness test (e.g. Brinell or Rockwell test), crack test, and fault test through magnetic powder, etc. must be especially agreed and specified in the purchase order and in the order confirmation. If acceptance is prescribed, this must be executed in our facility immediately after notification of readiness for dispatch. The personnel costs and technical costs associated with the acceptance procedure shall be the responsibility of the customer. In this case, with shipment the goods are considered as contractually delivered if the client has accepted the goods or does not undertake the agreed acceptance or does not undertake the agreed acceptance in good time.
§ 7. Delivery period and delivery quantity
Delivery periods and delivery quantity shall only be binding, if they are designated by us as binding and are confirmed in writing by us.
The delivery time shall begin with the sending of the order confirmation, however, not before complete clarification of all details associated with the order and if necessary, provision of the documents, required approvals and releases that must be procured by the customer, and not before receipt of an agreed advance payment. If technical uncertainties or errors in the order or drawing documents of the customer, are identified retroactively, the delivery time shall start over again, after these technical uncertainties or errors have been rectified.
Delivery periods and delivery dates shall be based on the point in time of dispatch ex works or ex warehouse. Delivery periods and delivery dates shall be considered as complied with, with notification of readiness for dispatch, if the goods cannot be dispatched at the proper time for reasons for which we are not responsible. The delivery periods shall be extended without prejudice to our rights arising from default on the part of the customer – by the period by which the customer is in default with his obligations arising from this contract or other contracts concluded with us. The same shall also apply for delivery dates.
The paragraphs above shall also apply if delivery periods or delivery dates have been expressly agreed as fixed.
Compliance with the delivery period shall be subject to correct and punctual supply to ourselves.
If we are in default after a grace period set by us and appropriate for us, the customer shall be entitled to withdraw from the contract because the goods have not been reported as ready for dispatch by the time the period expires. Claims for damages arising from failure to comply with the delivery period or delivery date shall be excluded.
Force majeure events shall entitle us to postpone the delivery by the duration of the obstruction and an appropriate lead time, or to withdraw from the contract in whole, or from the portion of the contract that is not yet fulfilled. Force majeure includes strike, lockout, and other circumstances that significantly complicate the delivery or make the delivery impossible for us, and indeed regardless of whether they occur for us or for one of our upstream suppliers. The customer shall be entitled to demand a declaration from us as to whether we desire to withdraw from the contract or deliver within an appropriate period of time. If we make no declaration, the customer shall be entitled to withdraw from the contract.
Production-related surplus or short deliveries of up to 10% of the ordered quantity shall be permitted.
We shall be entitled to make partial deliveries.
§ 8. Shipment and transfer of risk
In the absence of a special agreement concerning transport, we shall be entitled to select the means of transport and the transport route.
Wire mesh collapsible boxes and Euro pallets that are used for transport shall be exchanged. If an exchange does not occur or should not be possible, wire mesh collapsible boxes and Euro pallets shall be subsequently invoiced.
With transfer to the freight forwarder or freight carrier, however at the latest, when the goods leave the plant or warehouse, the risk, including the risk of confiscation shall – in every case – for example, even in the case of carriage paid, FOB and CIF transactions – be transferred to the customer. In all other aspects, if other arrangements have not been stipulated in these terms and conditions, the Incoterms shall be authoritative for interpretation of the various sales clauses.
Risk shall also be transferred if the customer is in default with the acceptance.
§ 9. Material defects and warranty
In accordance with § 377 of the German Commercial Code (HGB), the customer shall be obligated to inspect the goods to determine that they are free of any defects immediately after delivery.
Apparent defects will be acknowledged by us if the goods are still in delivery status, i.e. have not been heat-treated or deformed through non-cutting processes by the recipient, and notification of defect has been communicated to us in writing immediately, however at least within one week after receipt of the goods. If we are not notified, not notified in good time, or not notified in proper form of apparent defects, then the warranty shall be invalidated in this regard.
Other defects must likewise be reported to us in writing within one week of coming to the customer's attention, otherwise the goods shall be considered as approved even in consideration of this defect.
Warranty claims shall expire 12 months after transfer of risk This shall not apply if the law immutably prescribes longer statutes of limitations.
If acceptance of the goods is agreed with the customer, then the goods shall apply as approved when acceptance occurs. More extensive warranty claims shall then be excluded unless they involve a defect that could not be detected, even with careful examination in the acceptance procedure.
We shall be entitled to the opportunity of determining the reported defect. Goods that are the subject of complaint shall be sent back without delay, on request. If the customer fails to honour these obligations or makes changes to goods that are already the object of complaint, the customer shall lose any warranty claims.
We shall not assume responsibility for any defects caused by inappropriate or improper use, incorrect installation or commissioning by the customer or a third-party, normal wear, faulty or negligent treatment, or for the consequences of any improper modifications or maintenance tasks performed by the customer or other third-party without our written consent. The same shall apply for defects that only slightly reduce the value or the suitability of the goods.
We shall be authorized to undertake subsequent fulfilment at our discretion. This means that we decide whether defect rectification or replacement shall be undertaken.
If we decide on defect rectification, then we shall be responsible for the expenses required for the purposes of defect rectification, however only to the extent that these expenses are not increased due to the fact that the goods after transfer of risk have been brought by the customer to a location different than the location of the customer, unless the bringing of the goods is considered as intended use of the delivery object.
If subsequent fulfilment should fail, we shall be entitled to attempt subsequent fulfilment again. Also in the case of a repeated subsequent fulfilment we shall be entitled to choose between replacement and defect rectification.
If subsequent fulfilment should fail at the second attempt or if we have completely refused subsequent fulfilment, the customer shall be entitled to at his discretion reduce the purchase price (reduce) or withdraw from the contract (convert). However, in the event of an insignificant contractual violation, particularly for insignificant defects, the customer shall not have the right to withdraw from the contract.
The customer shall only have claims against us under a right of recourse insofar as the customer has made no agreements with his purchaser that extend beyond the claims for deficiency which are compulsory by law. The stipulation in § 9 concerning the scope of the rights of recourse shall apply accordingly. More extensive claims or claims on the part of the customer other than those claims stipulated in this § 9, against us and our vicarious agents due to a material defect shall be excluded.
§ 10. Other claims, liability
If nothing to the contrary is agreed below, other claims and more extensive claims on the part of the customer against us shall be excluded. This shall apply particularly for claims for damages due to obligations resulting from the contractual relationship or from unlawful acts. Consequently, we shall not be liable damage for that does not occur on the delivered goods themselves. Thus damage compensation for consequential harm caused by a defect shall be excluded, unless it is based on intent. Above all, we shall not be liable for lost profit or other financial loss on the part of the customer.
A claim for damage compensation shall only exist if we or our vicarious agents are responsible for negligence or intent, or in the case of loss of life or limb or health, and in the case of violation of essential contractual obligations due to mandatory liability in accordance with the Product Liability Law or other mandatory liability. However, the claim for damage compensation for violation of essential contractual obligations shall be limited to damage that is foreseeable and typical for this type of contract.
A liability arising from violation of obligations stipulated in the German Equipment and Product Safety act shall be limited to products that have been placed on the market after 05/01/2004.
Claims for damage compensation on the part of the customer due to a defect shall expire 1 year after delivery of the goods. This shall not apply if we can be accused of malicious intent.
§ 11. Property rights
The customer shall be obligated to verify any possible violation of industrial property rights that occurs through placing the order and, where necessary, to draw our attention to the fact that the order involves parts that are effectively protected through industrial property rights.
The customer shall assume all liability for claims that are asserted against us by a beneficiary on this account while executing the order, and shall be obligated to indemnify us and hold us completely harmless for any associated disadvantages.
§ 12. Data protection clause
In accordance with the provisions of the German data protection law, we shall be entitled to save, process and communicate to affiliated companies personal data concerning the customer if this is required for fulfilment and processing of the purchase order.
§ 13. Place of fulfilment and place of jurisdiction
The place of fulfilment for delivery shall be the place of dispatch; place of fulfilment for payment shall be 58256 Enneptal, Germany.
The place of jurisdiction for all legal disputes, including legal proceedings relating to a bill of exchange or a cheque, shall be Hagen, Germany. We shall also be entitled to file suit at the domicile of the contracting party.