Terms and Conditions
General Terms and Conditions of Sale and Delivery (Domestic/Foreign)
(based on those of the Association of German Machinery and Plant Engineering (VDMA) recommended conditions)
For use against:
- a person acting in the course of his commercial or self-employed professional activity at the time of conclusion of the contract (entrepreneur);
- legal persons under public law or a special fund under public law.
- The supplier's terms and conditions of sale apply exclusively; The Supplier does not acknowledge any contrary general terms and conditions of business or contrary to the Supplier's Terms and Conditions of Sale and Delivery, unless he has expressly agreed to their validity in writing. The General Terms and Conditions of Sale and Delivery of the Supplier shall also apply if he carries out the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the customer from its General Terms and Conditions of Sale and Delivery.
- All agreements made between the supplier and the customer for the purpose of executing this contract are set out in writing in this contract.
- The Supplier's General Terms and Conditions of Sale and Delivery also apply to all future transactions with the Customer.
- The documents included in the offer, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding. The supplier reserves the right of ownership and copyright to cost estimates, drawings and other documents. They may not be made available to third parties.
Scope of delivery
- The written order confirmation of the supplier is decisive for the content of the contract and the scope of the service.
- There are no verbal ancillary agreements.
- Ancillary agreements and changes to the contract require written confirmation from the supplier.
Prices and payment
- Unless otherwise stated in the order confirmation, the prices of the supplier in EURO shall apply and shall be ex works including loading in the factory, but only packaging, freight, transfer, insurance, customs duties and the applicable statutory value added tax. Partial invoices are allowed for partial deliveries.
- The supplier reserves the right to increase its prices accordingly after the expiry of 4 months from the conclusion of the contract if cost increases occur after conclusion of the contract, in particular due to collective agreements or material price increases. The supplier will prove this to the customer upon request.
- Unless otherwise stated in the order confirmation, the purchase price is due for payment immediately without any deduction. The deduction of cash discount requires a special written agreement.
- Unless deviating payment terms have been agreed, delay shall occur after a reminder from the customer or 14 days after invoicing. Interest on late payment is calculated at 8% points above the base interest rate. This does not exclude the assertion of further damage.
- A right of retention can only be based on claims of the customer based on the same legal relationship, which have been recognized by the supplier or legally established.
- Set-off is only permissible with claims recognised or legally established by the supplier.
- The delivery period begins with the dispatch of the order confirmation, but not before the delivery of the documents, approvals, releases and receipt of an agreed down payment.
- The delivery period is met if the delivery item has left the factory or the readiness for dispatch has been notified and the dispatch, if this is the responsibility of the supplier, takes place immediately.
- The delivery period shall be extended appropriately in the case of measures in the context of labour disputes, in particular strikes and lockouts, as well as in the event of significant unforeseen obstacles beyond the supplier's will, insofar as such obstacles are are demonstrably of significant influence on the completion or delivery of the delivery item. This also applies if these circumstances occur with sub-suppliers.
- The industrial disputes, in particular strikes and lockouts, as well as the occurrence of significant, unforeseen obstacles beyond the supplier's will, insofar as such obstacles are demonstrably related to the completion or delivery of the delivery item are not responsible for the supplier even if they arise during a delay already present. Section 287 sentence 2 of the German Civil Code (BGB) is descripted. In important cases, the supplier will inform the customer immediately of the beginning and end of such obstacles.
- If damage is caused to the customer due to an overrun of the delivery period, which is due to the fault of the supplier, he may, to the exclusion of further claims, demand compensation for delay. It shall be 0.5% for each full week of delay, but not more than 5% of the value of the part of the total delivery which cannot be used in time or in accordance with the contract as a result of the delay. This limitation of liability does not apply in the event of intent or gross negligence on the part of the organs or the executives of the supplier or if compliance with the delivery period exceptionally constitutes a so-called essential contractual obligation. This limitation of liability does not apply to damage caused by culpable injury to life, body and/or health.
- If, at the request of the customer, the dispatch is delayed, he shall be charged at least 0.5% of the invoice amount for each month, starting one month after notification of readiness for dispatch, the costs incurred by the storage, and in the case of storage at the supplier's factory, the customer proves that no damage has occurred at all or is significantly lower.
- However, the supplier is entitled to dispose of the delivery item in another way after setting and fruitless for a reasonable period of time and to supply the customer with a reasonably extended period.
- The delivery period is inhibited as long as the customer fulfils his contractual obligations – including, but not limited to, the timely provision of sample material (e.g. packaging material and stuffed goods) – not fully met.
Transfer of risk and receipt
- The risk shall pass to the customer at the latest upon the provision of the delivery parts on the supplier's ramp.
- Transfer of risk with provision of the delivery parts on the ramp of the supplier shall also be deemed to have been agreed if partial deliveries are made or the supplier has taken over other services, such as installation and commissioning.
- If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for dispatch; however, the supplier is obliged, at the request and expense of the customer, to effect the insurances that the customer requires.
- Delivered items that have only minor defects shall be accepted by the customer without prejudice to his rights under Section VIII or any legal claims.
- Partial deliveries are permitted.
- The supplier retains ownership of the delivery item until all payments from the business relationship with the customer have been received. In the event of a breach of contract on the part of the customer, in particular in the event of a delay in payment, the supplier is entitled to take back the delivery item. The withdrawal or Assertion of the retention of title does not require any withdrawal by the supplier. In these acts or the attachment of the delivery item by the supplier there is no withdrawal from the contract, unless the supplier would have expressly stated this in writing. The supplier is authorised to use the delivery item after taking it back. The proceeds of the realisation shall be set off against the customer's liabilities, minus reasonable recovery costs.
- If retention of title in a foreign State, if its law is applied, is not effective, the customer is obliged to cooperate in all measures, in particular to make all declarations required by the supplier in order to collateral equivalent to a retention of title.
- The customer is obligated to treat the delivery item with care and to insure it sufficiently against damage at the request of the supplier for the duration of the retention of title. Claims against the insurance company are already assigned by the customer to the supplier.
- In the event of attachments or other interventions by third parties, the customer must immediately notify the supplier in writing so that the supplier can bring an action in accordance with Section 771 of the German Civil Code (ZPO). Insofar as the third party is not in a position to reimburse the supplier for the legal and extrajudicial costs of an action pursuant to Section 771 of the German Civil Code (ZPO), the customer shall be liable for the loss incurred by the supplier.
- The customer is entitled to resell the delivery item in the ordinary course of business; however, he assigns to the supplier already now all claims in the amount of the final invoice amount (including VAT) arising from the resale against his customers or third parties, irrespective of whether the delivery item is without or after processing has been resold. The customer remains authorized to collect these claims even after the assignment; the supplier's power to collect the claim himself remains unaffected by this. However, the supplier undertakes not to collect the claim as long as the customer fulfils his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed. or payment is set. If the obligation to not collect is waived, the supplier may demand that the supplier disclose the assigned claims and their debtors to the supplier, provide all the information necessary for collection, hand over the relevant documents and provide the supplier with the debtors of the assignment.
- The processing or conversion of the delivery item by the customer is always carried out for the supplier. If the delivery item is processed with other items not belonging to the supplier, the supplier acquires co-ownership of the new item in proportion to the value of the delivery item to the other processed items at the time of processing. Moreover, the same applies to the goods resulting from the processing as to the goods delivered subject to reservation.
- If the delivery item is inseparably mixed or combined with other items not belonging to the supplier, the supplier acquires co-ownership of the new item in proportion to the value of the delivery item to the other mixed or connected goods. objects at the time of mixing or joining. If the mixing or combination takes place in such a way that the goods of the customer are to be regarded as the main thing, it is deemed agreed that the customer transfers to the supplier the proportionate co-ownership of the main thing. The customer shall keep the resulting sole or co-ownership for the supplier.
- The supplier undertakes to release the securities to which he is entitled at the request of the customer to the extent that the realisable value of his securities exceeds the claims to be secured by more than 10%; the supplier is responsible for selecting the collateral to be released.
- Insofar as the law in whose area the delivery item is located does not permit a retention of title, the supplier may exercise all rights that he can reserve for himself in the delivery item. The customer is obligated to cooperate in measures that serve the supplier to protect his right of ownership or in his place of another security right on the delivery item.
Liability for defects
- The customer is obligated to carefully inspect the delivery item for completeness and regularity immediately after arrival at his address. The period for reprimand within the meaning of Section 377 paragraph 1 and paragraph 2 of the Commercial Code is 8 days; the receipt of a written (also by fax) complaint to the supplier is decisive.
- If the customer intends to assert claims for defects in the delivery item, he must hand over or send the object of delivery or parts thereof to the supplier for inspection, unless this is not technically possible or unreasonable (e.g. for fixed large-scale installations). In the event of a justified and timely notification of defects, the supplier shall remedy the defects by means of subsequent performance at his discretion by remedying the defect or by delivering a defect-free item. In doing so, the supplier bears the costs of rectification of defects, including the necessary transport, travel, labour and material costs. This also applies to the costs of handing over or dispatch according to sentence 1 to the usual extent. If the rectification costs are increased by the fact that the delivery item has been moved from the customer to a place of performance other than the place of performance, the additional costs shall be borne by the customer.
- The supplier is entitled to refuse subsequent performance in accordance with the statutory provisions. In the event of refusal of subsequent performance, failure or unreasonableness for the customer, the customer is entitled to withdraw or reduce (reduction) the purchase price in accordance with the provision of the following clause 4.
- In so far as a withdrawal from the contract is not excluded by law or in order to reduce the purchase price, the customer is only entitled to subsequent performance after the unsuccessful expiry of a reasonable period set by him, unless the time limit is set after unnecessary to the statutory provisions. In the event of withdrawal, the customer shall be liable for deterioration, destruction and undrawn benefits not only for the usual care, but also for any negligent and intentional fault.
- The provisions in Section IX shall apply to any claims for damages and reimbursement of expenses by the Customer.
- The supplier's liability for defects shall be waived if the customer does not follow the operating or maintenance instructions, has made changes to the delivery item, replaced parts or used consumables that do not comply with the original specifications. unless the customer proves that the defect is not due to this. Liability for defects in the delivery item or for individual parts for this purpose, which are caused by normal wear and tear, is generally excluded.
- The limitation period for claims for defects is one year, calculated from the statutory commencement of the limitation period. On the other hand, in the case of a building and a thing which has been used for a building in accordance with its usual use and which has caused its defectiveness, the statutory limitation period, Section 438 paragraph 1 No. 2 and 634 a paragraph 1 No. 2 BGB. The statutory deadlines also apply in the event of intent or fraudulent and in the cases of Sections 478, 479 of the German Civil Code (BGB).
Liability of the Supplier, Exclusion of Claims for Damages Unless otherwise specified in these GENERAL Terms and Conditions, the Supplier shall be liable exclusively as follows:
- The supplier is liable in accordance with the statutory provisions if the customer asserts claims for damages or expenses (hereinafter: claims for damages) based on intent or gross negligence – including intent or gross negligence Negligence of his representatives or vicarious agents if the supplier has culpably violated an essential contractual obligation, as well as in cases of injury to life, body or health.
- Compensation for the breach of a material contractual obligation is limited to the foreseeable, typically occurring damage.
- In addition, liability for damages is excluded regardless of the legal nature of the claim asserted. In this respect, the supplier shall not be liable in particular for damages that have not arisen on the delivery item itself.
- The mandatory provisions of the Product Liability Act remain unaffected.
- Reimbursement of expenses claims of the customer are limited to the amount of interest that the customer has in the performance of the contract.
- Insofar as the supplier's liability is excluded or limited, this also applies to the personal liability of his employees, employees, employees, representatives and vicarious agents.
- The customer is aware and acknowledges that under German law any warranty or warranty Warranty claims are excluded if the customer changes any parts to the items delivered under this contract. This exclusion of claims applies in particular, but not exclusively, to the (operational) software of the delivered items. In addition, the Supplier informs the Customer that any changes to the delivered items may be likely to infringe the Supplier's intellectual property rights; the customer hereby confirms that he is aware of this.
The customer's right to withdraw from the contract
- The customer may withdraw from the contract if the entire service becomes permanently impossible for the supplier before the transfer of risk. The same applies in the case of inability of the supplier. If impossibility / inability relate sinto essential contractual obligations, clause IX applies. The customer may also withdraw from the contract if, in the case of an order for similar items, the execution of part of the delivery becomes impossible in number and he has a legitimate interest in rejecting a partial delivery; if this is not the case, the customer may reduce the consideration accordingly.
- If there is a delay in performance within the meaning of Section V of the Terms of Delivery and the Customer grants the supplier in default a reasonable grace period with the express declaration that he refuses to accept the service after the expiry of this period, and the period of grace, the customer is also entitled to withdraw from the contract.
- If the impossibility occurs during the delay in acceptance or through the fault of the customer, the customer remains obliged to pay compensation.
- The customer also has the right of withdrawal if the repair or replacement of a defect for which the supplier is responsible within the meaning of the delivery conditions fails due to his fault within a reasonable grace period provided to him. The buyer's right of withdrawal also exists in the event of impossibility or permanent inability to repair or replace the supplier.
Supplier's right to withdraw from the contract
- In the event of unforeseen events within the meaning of Section V of the Terms of Delivery, provided that they significantly alter the economic significance or content of the service or have a significant effect on the supplier's operation, and in the event that the supplier is subsequently the contract is appropriately adapted to the impossibility of execution.
- Insofar as an adjustment of the contract is not economically justifiable, the supplier has the right to withdraw from the contract in whole or in part. Claims for damages by the customer for such withdrawal do not exist.
- If the supplier wishes to exercise the right of withdrawal, he must inform the customer immediately after realizing the scope of the event, even if an extension of the delivery period was initially agreed with the customer.
place of performance, place of jurisdiction, applicable law, further terms and conditions, final provisions, acceptance
- Place of performance for delivery is the respective place of dispatch, for payment Bad Oeynhausen.
- Bad Oeynhausen is the exclusive place of jurisdiction, also for bills of exchange, cheque scheck and deed proceedings, without prejudice to the supplier's right to appeal to the court generally competent for the registered office of the customer.
- The legal relations between the supplier and the customer are governed exclusively by substantive German law to the exclusion of the UN Convention on the International Sale of Goods (CISG) and the rules of private international law.
- The delivery items are designed, manufactured and furnished in accordance with the legal regulations in force in the Federal Republic of Germany. If the customer wishes to set up the delivery items in accordance with provisions that deviate from the German regulations, he must inform this upon ordering or immediately afterwards. At the same time, he must send the provisions in German or English that deviate from the German provisions. We reserve the right to make appropriate adjustment of the price and delivery dates necessary by the customer's request.
- It is for the foreign customer to take measures in excess of the statutory provisions in force in the Federal Republic of Germany which protect the operating personnel and other persons from any chemical, biochemical, electrical, electromechanical, electroacoustic and similar influences of the machine, the packaging material, the packaging material and the filling material.
- If or if individual provisions of these General Terms and Conditions are or become ineffective, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to agree on a new provision that comes closest to the purpose pursued by the invalid provision.
- These conditions apply only to deliveries. Our "General Repair and Assembly Conditions (Domestic/Foreign)" apply to repairs and assembly services. The above terms and conditions are the General Terms and Conditions of Sale and Delivery (domestic/foreign) of:
Ceramic and Steel Technology Germany GbmH & Co.KG, Kiefernweg 2, D – 32549 Bad Oeynhausen, www.cast-germany.de