General Terms and Conditions of Delivery and Payment for Casting Products

(as of 1 November 2010)

Our terms of delivery and payment, with which our customer agrees when placing the order, shall apply exclusively, and this shall also apply to future transactions, even if no express reference is made to them, but they have been received by the customer in connection with an order confirmed by us. If the order is placed in deviation from our terms of delivery and payment, only our terms of delivery and payment shall apply, even if we do not object to them. Deviations shall only apply if they have been expressly acknowledged by us in writing. Our terms and conditions do not apply to consumers within the meaning of § 13 BGB (German Civil Code). All agreements made between us and the customer for the purpose of executing this contract must be recorded in writing in this contract. Amendments and supplements to the contract must be made in writing.

  1. Conclusion of contract, scope of supply
    1. Our offer is subject to confirmation unless otherwise stated in the order confirmation or unless we have expressly stated otherwise in writing. A contract is only concluded if we have confirmed an order in writing or if we execute the order.
    2. The information contained in brochures and catalogues such as illustrations, drawings, weights and dimensions are approximate values customary in the industry unless they are expressly designated as binding.
    3. We reserve ownership rights and copyrights to illustrations, brochures, calculations and other documents; they may not be made accessible to third parties. This applies in particular to such written documents which are designated as “confidential”; the customer requires our express written consent before passing them on to third parties.
  2. Pricing and terms of payment
    1. Our prices apply ex works plus packaging, freight, postage, insurance and the respective statutory value added tax.
    2. If order-related costs change significantly after conclusion of the contract, the contracting parties shall agree on an adjustment.
    3. Unless otherwise agreed, our invoices shall be paid immediately without deduction.
    4. The customer shall only be entitled to withhold or offset payments due to any counterclaims to the extent that undisputed or legally established payment claims exist.
    5. If we have delivered partially defective goods, the customer shall nevertheless be obliged to make payment for the undisputedly faultless goods, unless the partial delivery is of no interest to him.
    6. We accept discountable and properly taxed bills of exchange on account of payment if this has been expressly agreed in advance. Credit notes for bills of exchange and cheques shall be issued subject to receipt less expenses with value date of the day on which we can dispose of the equivalent value.
    7. If we are obliged to perform in advance and if, after conclusion of the contract, circumstances become known to us under which our claim to payment is jeopardised by the customer’s lack of ability to pay, we may, in addition to the statutory claims based on the retention of title agreed in Clause 9, prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the customer’s expense and revoke the collection authorisation under the conditions of Clause 9 letter h). The customer hereby authorises us to enter his premises and collect the delivered goods in the aforementioned cases. Taking back the goods shall only constitute withdrawal from the contract if we expressly declare this.
    8. In the event of default in payment, we shall be entitled to suspend performance of our obligations until we have received payment following written notification. In this case, we shall also be entitled to rescind the contract after setting a reasonable deadline.
    9. We shall be entitled to assign the claims arising from our business relations.
    10. The contractual relationship is subject exclusively to German law, in particular the German Civil Code and the German Commercial Code.
    11. If the purchaser is in arrears with any payment obligations towards us, all existing claims shall become due immediately.
    12. All payments are to be made with debt discharging effect exclusively to the bank accounts of Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Main, to which we have assigned the present and future claims from our business relationship. We have also transferred our reservation of title to this institute.
  3. Delivery time
    1. Delivery periods begin with our order confirmation, but not before all details of the execution have been clarified and all other conditions to be fulfilled by the customer have been met; the same applies accordingly to delivery dates. Deliveries before expiry of the delivery period and partial deliveries shall be permissible provided that this is not unreasonable for the customer. The day of delivery shall be the day of notification of readiness for dispatch, otherwise the day of dispatch. Unless otherwise agreed or otherwise specified in the contractual relationship, the delivery time stated by us shall always be non-binding.
    2. Agreed delivery periods and dates shall be extended or postponed by the period by which the customer is in arrears with his obligations, notwithstanding our rights arising from the customer’s default. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which the customer defaults on acceptance.
    3. If we are in default, the customer may set a reasonable period of grace with the express declaration that he will refuse acceptance of the performance after expiry of this period and may withdraw from the contract after expiry of this period.
    4. At our request, the customer shall be obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery and/or demand damages instead of performance or insist on delivery.
  4. Series deliveries, long-term and call-off contracts
    1. Unlimited contracts can be terminated by giving 6 months’ notice to the end of the month.
    2. If, in the case of long-term contracts (contracts with a term of more than 12 months and if, after expiry of the first four weeks of the contract period, a significant change in the wage, material or energy costs occurs (e.g. in the case of contracts without a time limit), each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.
    3. Our prices are calculated on the basis of the agreed order quantities. If no binding order quantities have been agreed, our calculation shall be based on the agreed target quantities. If the order quantity or target quantity is not reached, we shall be entitled to increase the price per unit accordingly. If the customer exceeds the quantity with our consent, he may demand a reasonable price reduction, provided he notifies this in writing at least 2 months before the agreed delivery date. The amount of the reduction or increase shall be determined on the basis of our calculations.
    4. In the case of delivery contracts on call, unless otherwise agreed, binding quantities must be notified to us by call at least 3 months prior to the delivery date. Additional costs caused by a delayed call-off or subsequent changes to the call-off with regard to time or quantity by the customer shall be borne by the customer; our calculation shall be decisive in this respect.
    5. In the case of series production, an excess or short delivery of up to 10% over the order quantity is permissible due to the special features of the casting process.
    6. The total price shall change in accordance with the scope of the order.
  5. Force majeure and other hindrances
    1. Events of force majeure, industrial disputes, lockouts and official measures entitle us to postpone delivery for 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 part not yet fulfilled.
    2. Unforeseen circumstances, e.g. operational disruptions, rejects and subsequent treatment, which make it impossible for us to deliver on time despite reasonable efforts, shall be equivalent to force majeure; we shall furnish proof of this.
  6. Test procedure, acceptance
    1. If acceptance has been agreed, the scope and conditions shall be determined at the same time until the conclusion of the contract.
    2. If this does not take place, acceptance shall take place to the extent customary with us and in accordance with the conditions customary with us. The same shall apply to initial sample tests.
  7. Dimensions, weights, quantities
    1. Deviations in dimensions, weight and number of pieces within the framework of customary tolerances, relevant DIN regulations and technical casting requirements are permissible. Specifications of dimensions and weights in our quotations and order confirmations do not constitute quality guarantees.
    2. The delivery weights and quantities determined by us shall be decisive for the calculation.
  8. Dispatch and transfer of risk
    1. Unless otherwise agreed in writing, the delivery clause shall be “ex works” (Incoterms 2000). This shall also apply if we have undertaken to bear the transport costs.
    2. Only at the express request of the Purchaser shall we take out transport insurance to cover the delivery; the costs incurred in this respect shall be borne by the Purchaser.
    3. Goods notified as ready for dispatch shall be accepted immediately, otherwise we shall be entitled to dispatch them at our discretion or to store them at the customary forwarding costs and risk of the customer, to whom we shall also be entitled if the dispatch accepted by us cannot be carried out through no fault of our own. The goods shall be deemed to have been delivered one week after commencement of storage.
    4. In the absence of special instructions, the means of transport and the route of transport shall be chosen at our discretion.
    5. The risk shall pass to the customer upon handover to the railway, the forwarding agent or the carrier or one week after commencement of storage, but no later than upon leaving the factory or warehouse, even if we have accepted delivery.
  9. Retention of title
    1. All delivered goods shall remain the property of Coface Finanz GmbH (reserved goods) until all claims, in particular also the respective balance claims to which we are entitled from the business relationship, have been settled. This shall also apply if payments are made on specially designated claims. Pursuant to item 2 l) of these General Terms and Conditions of Delivery and Payment, the retention of title has been transferred to Coface Finanz GmbH. If the Ordering Party is in default of payment, we shall be entitled to demand the return of the delivered goods. The costs for this shall be borne by the ordering party. This does not apply in the case of insolvency proceedings applied for or opened by the customer, on the basis of which we are not entitled to demand the immediate surrender of the delivered goods.
    2. The taking back of the goods or the assertion of retention of title shall only constitute a withdrawal from the contract if we expressly declare this.
    3. The customer shall always process the delivered goods on our behalf. If the reserved goods are processed or inseparably combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the goods to the other processed or mixed objects at the time of processing.
    4. If our ownership lapses due to combination or mixing, the customer hereby assigns to us the ownership rights to which he is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us free of charge. The resulting co-ownership rights shall be regarded as reserved goods within the meaning of letter a).
    5. The customer may only sell the reserved goods in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with letters f) and g). He shall not be entitled to dispose of the reserved goods in any other way.
    6. The customer’s claims arising from the resale of the reserved goods are hereby assigned to us. They serve as security to the same extent as the reserved goods.
    7. If the reserved goods are sold by the customer together with other goods not supplied by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the reserved goods sold in each case. In the case of the sale of goods in which we have co-ownership shares pursuant to letter b), the assignment of the claim shall apply to the amount of these co-ownership shares.
    8. The customer is entitled to collect claims from the sale in accordance with letters e) and f) until revoked by us. We shall have the right of revocation in the cases specified in Item 2 if the customer is in default of payment, an application for the opening of insolvency proceedings has been filed or payments have been suspended. In these cases the customer is obliged to inform us immediately of the assigned claims and their debtors, to provide all information required for collection, to surrender the associated documents and to inform the debtors of the assignment. The customer is not entitled to assign the claims under any circumstances.
    9. If the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice to this extent. The customer must inform us immediately of any seizure or other impairments by third parties.
  10. Liability for material defects
    1. We shall be liable for the faultless manufacture of the parts supplied by us in accordance with the agreed technical delivery specifications. In particular with regard to the intended use, the customer shall be responsible for proper design, taking into account any safety regulations, selection of the material and the necessary test procedures, correctness and completeness of the technical delivery specifications and the technical documents and drawings provided to us, as well as for the execution of the production equipment provided, even if changes are proposed by us which find his approval. Furthermore, the customer is responsible for ensuring that his information does not infringe any industrial property rights or other rights of third parties. The time of transfer of risk is decisive for the contractual condition of the goods.
    2. We shall not be liable for insignificant deviations from the agreed quality, for insignificant impairment of usability and for defects caused by unsuitable or improper use, faulty assembly or commissioning and normal wear and tear. If improper modifications or repair work are carried out by the customer or by third parties, we shall also not be liable for these and the consequences arising therefrom.
    3. The customer must give notice of material defects in writing immediately after receipt of the goods at the place of destination, hidden defects immediately after discovery of the defect.
    4. In the case of agreed acceptance or initial sample inspection in accordance with Item 6, notification of defects which could have been detected in the process shall be excluded.
    5. We shall be given the opportunity to determine the defect complained of. In urgent cases where operational safety is endangered or to prevent disproportionately large damage to the customer, we must immediately ascertain the notified defect. Complained goods must be returned to us immediately upon request. If the customer does not comply with these obligations or makes changes to the goods already complained about without our consent, he loses any rights due to material defects.
    6. In the event of a justified, timely notice of defect, we shall, at our discretion, repair the goods complained of or supply a faultless replacement (subsequent performance).
    7. If we do not fulfil our warranty obligations or do not fulfil them within a reasonable period of time or if the repair is unsuccessful at first, the customer may set a final deadline in writing within which we must fulfil our obligations. A deadline need not be set if it would be unacceptable for the customer. After unsuccessful expiry of this period, the customer may, at his discretion, demand a reduction in price, withdraw from the contract or carry out the necessary repair himself or have it carried out by a third party at our expense and risk. If the rectification was successfully carried out by the customer or a third party, all claims of the customer shall be settled with reimbursement of the necessary costs incurred by him.
    8. Claims of the customer for expenses necessary for the purpose of subsequent performance resulting from the fact that the goods are moved to another location after delivery are excluded to the extent that they increase expenses, unless the move corresponds to the intended use.
    9. The Purchaser’s statutory rights of recourse against us shall only exist to the extent that the Purchaser does not agree with his customer on any claims for defects exceeding the statutory provisions agreements going beyond this.
    10. Further claims of the purchaser are excluded in accordance with item 13.
    11. The proof of a defect is incumbent on the purchaser.
  11. Order-related production equipment, parts to be cast in
    1. Order-related production equipment such as models, templates, core boxes, moulds, casting tools, devices and control gauges provided by the customer shall be sent to us free of charge. The conformity of the production equipment provided by the customer with the contractual specifications or drawings or samples provided to us shall only be checked by us on the basis of express agreements. We may change production equipment provided by the customer if this appears necessary to us for technical casting reasons and the workpiece is not changed as a result.
    2. The costs of modification, maintenance and replacement of its production equipment shall be borne by the customer.
    3. The production equipment shall be handled and stored by us with the care which we take to apply to our own affairs. We shall not be liable for accidental loss or deterioration of the production equipment. We are not obliged to take out insurance.
    4. Ownership of order-related production equipment manufactured or procured by us on behalf of the customer shall pass to the customer upon payment of the agreed price or share of the costs. The handover of the equipment shall be replaced by our obligation to retain it. The equipment shall be kept by us for a period of 3 years after the last casting. We can return the customer’s production equipment no longer required by us at his expense and risk or, if the customer does not comply with our request for collection within a reasonable period of time, store it at the usual costs to be borne by the customer and destroy it at the customer’s expense after setting a reasonable deadline and warning. The customer may terminate the storage relationship at the earliest two years after the transfer of ownership unless there is an important reason to do so. Item 11 letter c) shall apply accordingly.
    5. The customer may assert claims arising from copyright or industrial property rights only to the extent that he draws our attention to the existence of such rights and expressly reserves them.
    6. In the event of rejects arising from the use of a production equipment which can only be used once, the customer shall either provide a new production equipment or bear the costs of the replacement equipment.
    7. Parts to be cast in by us must be delivered by the customer dimensionally accurate and in flawless condition. For parts which become unusable due to rejects, the customer shall supply a replacement free of charge.
  12. Confidentiality
    1. Each contractual partner shall use all documents (including samples, models and data) and knowledge received from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as corresponding own documents and knowledge if the other contractual partner describes them as confidential or has an obvious interest in keeping them secret.
    2. This obligation begins with the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
  13. General limitation of liability
    1. Insofar as nothing to the contrary results from the following, other and further claims of the customer against us, irrespective of the legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded.
    2. This limitation of liability shall not apply in the case of mandatory liability, e.g. under the Product Liability Act, in the case of intent, gross negligence on the part of legal representatives or executive employees and in the case of culpable breach of material contractual obligations. In the event of culpable breach of essential contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives or executive employees – only for reasonably foreseeable damage typical of the contract. It shall also not apply to damages resulting from injury to life, body or health and in the absence of a guaranteed quality, if and to the extent that the purpose of the guarantee is to protect the customer against damages which have not occurred to the delivered goods themselves.
    3. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
    4. Claims for damages and material defects to which the purchaser is entitled against us shall expire one year after delivery of the goods to the purchaser. This shall not apply insofar as the law in §§ 438 paragraph 1 no. 2 (buildings and objects which are usually used in buildings) and 479 paragraph 1 (rights of recourse) BGB prescribes longer periods as well as in cases of injury to life, body or health, in the case of an intentional or grossly negligent breach of duty by the supplier and in the case of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected. In the case of claims for damages under the Product Liability Act, the statutory statute of limitations shall apply. The statutory limitation rules shall also apply in the case of intentional and grossly negligent breaches of duty.
  14. Place of performance and jurisdiction
    1. The place of jurisdiction shall be Wittlich or Mainz at our discretion. However, we shall also be entitled to sue the customer at the court of his place of business.
    2. Unless otherwise stated in the order confirmation, the place of performance for our services shall be the location of our delivery plant. The place of performance for payment obligations shall be Jünkerath.
  15. Applicable law
    1. The legal relations between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).
  16. Partial invalidity
    1. Should individual provisions of these terms and conditions of delivery and payment be invalid or void in whole or in part, the contracting parties undertake to agree to a provision by which the meaning and purpose pursued by the invalid or void provision is largely achieved.
  17. Partnership clause
    1. For all compensation payments, in particular for the amount of damages, the economic circumstances of the contracting parties, type, scope and duration of the business relationship as well as the value of the goods should also be taken into account in good faith.