Standard Terms of Delivery and Payment for Foundry Products
Eisenwerk Arnstadt GmbH
Our goods and services are provided solely on the basis of the following terms and conditions. No other terms and conditions apply even in the event we have knowledge of them and make a delivery without reservation. Our terms and conditions do not apply in dealings with consumers within the meaning of § 13 German Civil Code (Bürgerliches Gesetzbuch - BGB). These terms and conditions apply in like manner to all future transactions with a customer on the basis of an ongoing business relationship. All agreements made between us and the customer concerning performance of this contract must be set out in writing in this contract. Amendments and additions to this contract must be made in writing.
- Conclusion of contract; Scope of delivery
a) No contract is concluded until we have confirmed an order in writing or have executed the order.
b) To the extent not expressly designated as binding, information contained in brochures and catalogues, such as illustrations, drawings and weight and dimensions, represent approximate values customary in the industry.
c) We retain rights of ownership and copyright in illustrations, brochures, calculations and other documents. They may not be disclosed to third parties. This applies in particular to written documents labelled as “confidential”. The customer must obtain our express written consent prior to disclosure to third parties.
- Pricing and payment Terms
a) Our prices apply ex works plus packaging, freight, postage, insurance and applicable statutory value-added tax.
b) Prices correspond to cost levels at the time of order confirmation. In the event the relevant cost factors, such as collectively agreed wages, materials and commodities prices or distribution costs, should change prior to the agreed delivery date, we reserve the right to increase the agreed price by additional costs that have already been incurred or that will be incurred. With the exception of ongoing obligations, the foregoing does not apply in the event the period between order confirmation and performance is only three months.
c) To the extent not otherwise agreed, our invoices are due for payment immediately without deduction.
d) The customer is only authorized to withhold or set-off payments for similar counter-claims in the event they represent payment claims that are not disputed or have been subject to final legal judgement.
e) If we have delivered goods that are defective in part, the customer is nevertheless obliged to pay for goods that are indisputably free of defects unless a partial delivery is of no interest to the customer.
f) We accept discountable and properly taxed bills of exchange on account of payment if expressly agreed in advance. Bills of exchange and cheques are credited subject to receipt and less expenses at the value on the day at which we are able to dispose of the equivalent value.
g) In the event we are obliged to perform in advance, and we become aware of circumstances following conclusion of the contract that place our claim to payment at risk as a result of an inability to pay on the part of the customer, in addition to legal rights on the basis of the retention of title agreed under Section 8, we may prohibit the re-sale and processing of goods that have been delivered, may demand their return or the transfer of indirect ownership of goods that have been delivered at the expense of the customer and we may revoke the direct debit authorization pursuant to the terms of Section 8 i). The customer authorises us now with prospective effect to enter its premises in the circumstances referred to above and to collect the goods. Retaking possession of the goods only comprises revocation of the contract if we have expressly so stated. We are authorized to demand cash payment for our goods and services in the event the customer’s circumstances change in relation to those prevailing at the time the contract was concluded such that they could impact us negatively. We are entitled to assign our claims against the purchaser to third parties.
h) In the event of a delay in payment, after providing written notice, we may suspend performance of our obligations until receipt of payment. We may also demand payment in cash. After providing a reasonable period for payment, we may also revoke the contract in such cases.
i) If the purchaser is in default with regard to any payment obligation to us, we shall be entitled to declare all existing claims due immediately.
- Delivery times
a) Delivery periods commence upon our order confirmation, however not before all details related to the order have been clarified and all other requirements to be satisfied by the customer have been fulfilled; the foregoing applies in like manner to delivery dates. Deliveries prior to the end of the delivery time, and partial deliveries, are permitted to the extent they are reasonably acceptable to the customer. The date on which notification of readiness for shipment is provided is deemed to be the delivery date; otherwise the date of shipment. To the extent not expressly agreed otherwise, delivery times are non-binding and any potential delays do not authorise the customer to request compensation for any resulting damages.
b) Without prejudice to our rights in the event of a delay on the part of the customer, agreed delivery times and dates are extended or postponed, respectively, by that amount of time during which the customer is in default of its obligations. If the customer is in default of acceptance or is otherwise at fault for a violation of its duties to cooperate, we are entitled to demand compensation for losses we have incurred as a result including any additional expenses. In such cases, the risk of accidental loss or deterioration of the goods passes to the customer at the time at which it is in default of acceptance.
c) In addition, provided we have given advance notice, we are authorised to hold the goods or conduct a self-help sale in the event of a default on the part of the customer and the expiry or a reasonable grace period without result.
d) Regardless of grounds, in the event the customer revokes the contract without fault on our part, we are authorized to demand fixed compensation or liquidated damages, respectively, equal to 10% of the contractually agreed total remuneration provided neither we nor the customer provide evidence of other damages in a specific case.
- Serial production deliveries; Long-term and call-off contracts
a) Contracts concluded for an indefinite term may be terminated on six months’ notice to month’s end.
b) In the case of long-term contracts (contracts with a term of more than twelve months and contracts concluded for an indefinite term), if material changes in labour, materials or energy costs occur after the first four weeks of the contract term, each party to the contract is authorized to request an appropriate adjustment to the price taking such factors into consideration.
c) In the case of call-off contracts, we must be provided binding notice of quantities at least three months in advance of the delivery date for the respective call-off. Additional costs resulting from a delayed call-off or subsequent changes in the call-off with regard to time or quantity caused by the customer shall be borne by the customer.
d) In the case of serial production deliveries, excess or short deliveries of up to 10% of the agreed order quantity are permitted due to the particular nature of the foundry process.
- Force majeure and other impediments
a) Force majeure events authorise us to delay delivery for the duration of the impediment plus a reasonable lead time or to revoke the contract in whole or in part with regard to that part of the contract that has yet to be performed.
b) For purposes of this contract, force majeure events comprise all unforeseeable events or such events that - even if they had been foreseeable - are outside of our control and the effects of which on performance of the contract cannot be avoided by reasonable efforts on our part. These include, inter alia, war (declared or undeclared), war-like states, terrorism, insurrection, revolution, rebellion, military or civil coup, uprising, turmoil, riot, blockade, embargo, government act, sabotage, strike, go-slow, lock-out, epidemic disease, fire, flood, storm flood, hurricane, heavy storm or other thunderstorm with disastrous effects, earthquakes, landslide, lightning, general shortage of fuel, heavy transport accidents, any destruction or new production of material parts of the plant due to reasons outside our control to the extent the latter results in an extension of the delivery times.
c) Consequently, we are not liable for delays or disruptions in performance that result entirely or in part from the events referred to above.
- Inspection process; Acceptance
a) In the event acceptance has been agreed, the scope and conditions must be agreed concurrently prior to conclusion of the contract.
b) If this is not the case, the scope and conditions of acceptance will be subject to our standard terms. The foregoing applies in like manner to initial sample testing.
- Dimensions, weights and quantities
a) Deviations in dimensions, weights and quantities within the scope of customary tolerances, applicable DIN standards and requirements related to the foundry process are permitted. Statements related to dimensions and weights in our offers and order confirmations do not represent guaranteed qualities.
b) Delivery weights and quantities as determined by us are decisive for invoicing purposes.
- Shipment and passage of Risk
a) Shipment terms are deemed to be “ex works” (INCOTERMS 2010) to the extent not otherwise agreed in writing. The foregoing also applies in cases where we have committed to assume transport costs.
b) We will only purchase transport insurance for a shipment on the express wish of the customer; in such cases the customer shall bear the associated costs.
c) Goods for which notice of readiness for shipment has been provided must be picked up immediately; otherwise we are authorized, at our option, to ship them or store them at the customer’s risk for a fee equivalent to customary forwarding agent’s fees. We are likewise authorised to store goods as described above in the event shipment to which we have agreed cannot be performed on grounds for which we are not at fault. The goods are deemed to have been delivered one week after commencement of storage.
d) Absent specific instruction, choice of means of transport and route is at our discretion.
e) Risk passes to the customer as soon as the goods have been transferred to a forwarding agent, carrier or rail operator. If we have agreed to deliver the goods, risk passes to the customer as soon as the goods have left our plant or warehouse as applicable. If we have stored goods for the customer on our premises, risk passes to the customer one week after the goods have been placed in storage at the latest.
- Retention of title
a) We retain title to all goods subject to delivery until the fulfilment of all claims, in particular the respective claims for balances on current account, to which we are entitled on the basis of the business relationship.
The foregoing applies in like manner if payments are made with regard to specifically designated claims. We are authorised to demand surrender of goods that have been delivered in the event the customer is in default of payment. The customer shall bear all associated costs. The foregoing does not apply in the event of insolvency proceedings that have been applied for or initiated in relation to the customer in which we are not entitled to demand immediate return of the goods.
b) Retaking possession of the goods, or asserting retained title, as applicable, only comprises revocation of the contract if we have expressly so stated.
c) In the event goods subject to retained title are processed together or inseparably combined with objects that do not belong to us, we acquire a co-ownership interest in the new object proportionate to the invoice value of the goods in relation to the other processed or mixed objects at the time of processing.
d) In the event our ownership interest terminates as a result of combination or mixture, the customer assigns us now with prospective effect its ownership rights
in the new inventory or object to the extent of the invoice value of the goods subject to retained title and safeguards such goods for us at no charge. Co-ownership interests arising in this fashion are deemed to be goods subject to retained title within the meaning of sub-section a).
e) The customer is obliged to handle goods that have been delivered with care until ownership has finally passed to it. Accordingly, the customer is exclusively responsible and bears all expenses and risks for unloading and appropriate storage of goods that have been delivered. In this regard, the customer undertakes at its own expense to purchase general third-party liability insurance to cover all risks, including damage to and/or theft of goods that have delivered in whole or in part, and to submit the respective insurance policy and proof of payment of the premiums to us upon request.
f) The customer may only sell goods subject to retained title in the normal course of business and subject to its standard business terms provided it is not in default and provided that claims arising upon such sales are assigned to us pursuant to sub-sections g) and h). The customer is not entitled to otherwise dispose of goods subject to retained title.
g) The customer’s receivables from the re-sale of goods subject to retained title are hereby assigned to us now with prospective effect. They serve as collateral to the same extent as the goods subject to retained title.
h) If the customer sells goods subject to retained title together with other goods not delivered by us, the receivable arising upon such sale is deemed to have been assigned only to the extent of the invoice amount of the respectively sold goods subject to retained title. The receivable arising upon the sale of goods in which we have a co-ownership interest pursuant to sub-section b) is deemed to have been assigned to the extent of the value of such co-ownership interest.
i) The customer is authorised to collect receivables from sales referred to in sub-sections f) and g) until we revoke such authority. We have a right of revocation in cases referred to in no. 2 in the event the customer is in default of payment, a petition for the opening of insolvency proceedings has been submitted or payments have been suspended. In such cases, the customer is obliged to inform us immediately of the claims subject to assignment and their debtor, to provide all information necessary for collection, to provide associated documentation and to inform the debtor of the assignment. The customer is in no event authorised to assign claims.
j) In the event the value of existing collateral exceeds secured claims by more than 20%, we are obliged to release collateral to such an extent; we may select the relevant collateral at our option. The customer is required to inform us immediately in the event of attachment or other interference by third parties.
k) The customer is obliged to handle goods that have been delivered with care until ownership has finally passed to it. Accordingly, the customer is exclusively responsible and bears all expenses or risks for unloading and appropriate storage of goods that have been delivered. In this regard, the customer undertakes at its own expense to purchase general third-party liability insurance to cover all risks, including damage to and/or theft of goods that have delivered in whole or in part, and to submit the respective insurance policy and proof of payment of the premiums to us upon request.
a) We warrant that parts delivered by us are manufactured free of defects in compliance with the agreed technical delivery specifications. With regard to the intended use, the customer is responsible in particular for proper engineering subject to compliance with any applicable safety regulations, the selection of materials and the required test procedure, the accuracy and completeness of the technical delivery specifications and technical documentation and drawings provided to us, as well as for the design of production equipment provided; the foregoing applies even in the event we have proposed changes that have been approved by the customer. Furthermore, the customer is responsible for ensuring that industrial property rights or other third-party rights are not infringed as a result of its specifications. The time at which risk passes is decisive for purposes of conformance of the goods to the terms of the contract.
b) We are not liable for negligible deviations from the agreed quality, for negligible impairments of usability or for defects resulting from inappropriate or improper use, improper assembly or commissioning or normal wear and tear. In the event the customer or a third party performs improper modifications or repairs, we are not liable for such work or any resulting damages.
c) The customer is obliged to report material defects in writing immediately following receipt of the goods at the destination; latent defects must be reported in writing immediately upon discovery of the respective defect.
d) In the case of agreed acceptance or first sampling, no objection is permitted with regard to defects that could have been discovered these processes.
e) We must be provided the opportunity to cure defects for which notice has been provided within a reasonable period. Rejected goods must be returned to us immediately upon request. The customer loses all any rights related to a material defect in the event the customer does not comply with these obligations or performs any modifications to the rejected goods without our consent.
f) In the event of timely notification of defects, we will, at our option, repair the rejected goods or supply replacement goods free of defects (subsequent performance).
g) In the event we do not comply with our warranty obligations either at all or not within a reasonable period, or in the event an initial attempt at repair is without success, the customer may set a final deadline prior to which we must satisfy our obligations. There is no need to set a deadline in the event this may not reasonably be expected of the customer. Following expiry of the deadline without success, the customer may, at its option, demand a reduction in price, revoke the contract or perform required repairs itself, or have them performed by a third party, at our costs and risk. In the event repairs have been conducted successfully by the customer or a third party, all claims on the part of the customer are satisfied upon the reimbursement of costs incurred by the customer for the necessary repairs.
h) Claims on the part of the customer for expenses necessary for repairs resulting from the circumstance that the goods were moved to another location following delivery are precluded to the extent they increase expenses unless relocation conforms to the intended use.
i) Statutory claims for recourse by the customer against us are only permissible to the extent the customer has not made agreements with its respective buyer exceeding statutory warranty liability for defects.
j) We comply with the provisions of the REACH Regulation (Regulation (E) No 1907/2006) with regard to all of our supplies. We will inform our customer immediately of any relevant changes to the goods, in particular changes caused by the REACH Regulation, changes to their ability to be delivered, potential uses or quality and, if necessary, coordinate any actions necessary.
k) Additional rights on the part of the customer are precluded in accordance with the terms of Section 12.
l) The customer is responsible for providing evidence of any defect.
- Order-related production equipment; Parts to be cast
a) Order-related production equipment such as models, templates, core boxes, moulds, casting tools, devices and control gauges provided by the customer must be sent to us at no charge. We will only examine whether production equipment provided by the customer conforms to the contractual specifications or to drawings or patterns provided to us on the basis of an express agreement to this effect. We may modify production equipment provided by the customer if this appears to be necessary for reasons related to the casting process and the workpiece is not changed as a result.
b) The customer is responsible for the costs for modifying, maintaining or replacing its production equipment.
c) We will handle and safeguard such production equipment with the same degree of care we commonly apply to our own affairs. We are not liable for accidental loss or deterioration of such production equipment. We are not obliged to purchase insurance.
d) Title to order-related production equipment we manufacture or purchase on behalf of the customer, passes to the customer upon payment of the agreed price or percentage of costs, as applicable; the parties are in agreement on this point. Delivery of the production equipment is replaced by our retention obligation. We will retain production equipment for a period of three years following the last casting. We may return production equipment from a customer that we no longer require to the customer at its own costs and risk or, if the customer does not comply with our request to pick up such equipment within a reasonable period, store it for standard fees to be borne by the customer and destroy such equipment at the customer’s expense after granting a reasonable grace period and providing a warning. Absent good cause, the customer may terminate the storage arrangement at the soonest two years following transfer of ownership. Section 10 c) applies accordingly.
e) The customer may only assert claims based on copyright or industrial property rights to the extent the customer expressly informs us of such rights and expressly reserves them.
f) In the event single use production equipment produces rejects, the customer shall either provide a replacement or assume the cost of its procurement.
g) Parts to be cast in by us in a mould shall be dimensionally accurate and free from defects when supplied by customer. Parts that can no longer be used because of production rejects shall be replaced by the customer free of charge.
a) Each of the parties agrees to use all documents (including patterns, samples and data) and know-how received within the scope of their business relationship solely in pursuit of the common purpose and, whenever a party designates any information as confidential or shows an apparent interest in keeping such information secret, the other party is obliged to exercise the same degree of care it would exercise in keeping its own documents and know-how confidential.
b) This obligation commences upon the initial receipt of documents or know-how and ends 36 months following the termination of the business relationship.
a) To the extent not otherwise provided below, additional or other claims for damages by the customer against us, regardless of legal grounds, in particular due to a breach of contractual duties or in tort, shall be excluded.
b) The limitation on liability set out above does not apply whenever liability is mandatory, e.g. in cases falling under the German Product Liability Act (Produkthaftungsgesetz), in cases of intent or gross negligence on the part of our statutory representatives or executives, or in cases of culpable non-performance of material contractual obligations. Except in cases of intent or gross negligence on the part of our statutory representatives and executives, we are only liable for damages that are typical to the contract and that may be reasonably foreseen in cases of a culpable non-performance of material contractual obligations. This limitation on liability is not applicable to any injuries to life, limb, or health, nor to quality defects whenever the relevant guarantee is intended to protect the customer from damages that do not relate to the delivered goods themselves.
c) To the extent our liability is excluded or limited, this applies in like manner to the personal liability of our employees, associates, statutory representatives and agents.
d) Claims to compensation for damages, and claims for material defects, the customer is entitled to assert against us lapse one year after delivery of the goods to the customer. The foregoing does not apply to the extent longer periods are provided by law in §§ 438 (1) no 2 German Civil Code (BGB) (buildings and objects commonly used in buildings) and 479 (1) BGB (claims to reimbursement of expenses). Similarly excluded are cases of injury to life, limb and health, intentional or grossly negligent breaches of an obligation and in the case of the fraudulent concealment of a defect. The foregoing is without prejudice to statutory rules applicable to the tolling, suspension or restart of the limitations period. The statutory limitation periods shall apply in cases of damage claims under the Product Liability Act. The statutory limitation periods apply likewise in cases of intentional or grossly negligent breaches of an obligation.
e) In all cases, the customer is required to comply with its duty to mitigate damages and is not entitled to suspend payment of outstanding invoices. We are not liable for processing costs that have been incurred, production down-time, lost revenue and/or direct or indirect losses or damages to the customer or third parties. The provisions set out above apply in all other respects.
- Place of performance and jurisdiction
a) The place of jurisdiction is Arnstadt provided the customer is a merchant. However, we are also authorized to lodge suit against the customer before a court at the location of its registered office.
b) To the extent not otherwise provided in the order confirmation, the place of performance for our work is the location of our production facilities. For purposes of payment obligations, the place of performance is Arnstadt.
- Applicable law
Dealings between the parties are exclusively governed by German law subject to the exclusion of United Nations conventions on international commercial law (UNCITRAL/CISG).
- Good faith clause
In the case of compensation payments, in particular when determining the amount of compensation for damages, the parties’ financial circumstances, the type, scope and length of the business relationship, as well as the value of the goods should be appropriately considered in good faith. The purchaser shall bear all fees, costs and expenses incurred in connection with any legal proceedings against them outside Germany.
Eisenwerk Arnstadt GmbH, 01/04/2019