Terms and Conditions
WILHELM SCHULTE-WIESE GESENKSCHMIEDE
GmbH & Co. KG
General Terms and Conditions of Sale and Delivery for forgings
The following Terms and Conditions of Sale and Delivery apply to deliveries and services rendered to entrepreneurs according to §§ 310 subs. 1, 14 BGB (German Civil Code)
I. General terms and conditions
1. Place of performance (“Erfüllungsort”) and place of jurisdiction, applicable law
Place of performance (“Erfüllungsort“) and place of jurisdiction for deliveries and payment is the place of our establishment.
We reserve the right, alternatively, to assert claims against the customer at the place of general jurisdiction (“allgemeiner Gerichtsstand”) applicable to him.
German law that governs the legal relationships between German parties applies exclusively. The application of UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods – CISG of 11/04/1980 in its respective current version) is excluded.
2. Contract conclusion
Acceptance of an order requires written confirmation by us to be legally valid. This also applies to all side agreements made either directly with us or through representatives.
The written confirmation along with our offer/ quotation and the terms and conditions contained therein constitutes the contractual relationship. Deviating terms and conditions of the customer will only be accepted if confirmed by us in writing.
The application of any general terms and conditions of business of the customer that conflict with or are contrary to these General Terms and Conditions is excluded.
The prices correspond to the quantities ordered and are in euros, ex works, exclusive of VAT for packaging, if any. Any subsequent reduction of the ordered quantity or subsequent reduction of the number of pieces to be delivered in the case of agreed-upon partial delivery as well as the reduction of the number of agreed-upon call-offs entail an increase in the price per piece, including but not limited to additional set-up costs and start-up costs.
Our invoices are due and payable within 30 days net. Special payment arrangements, if any, between the customer and the supplier will be indicated in our order confirmation. In the case of non-compliance with the due date, default interest in the amount of 8% above the respective discount rate of the Bundesbank (German Central Bank) will be charged.
If the customer is in default of payment of a claim, we may accelerate maturity, and claim immediate payment of all other outstanding claims against the customer.
We explicitly reserve the right to accept or reject bills of exchange or cheques; these are, as a rule, only accepted on account of payment (“zahlungshalber“) and are only deemed to constitute debt-discharging payment after they have been cashed. Discount charges are at the customer’s expense.
The supplier is entitled to assign his claims against the customer to third parties.
5. Reservation of title
The delivered goods remain our property until all claims have been satisfied in full. The inclusion of certain individual claims in a current account or the striking of a balance and the acknowledgement of such balance are without prejudice to the reservation of title. The receipt of the counter value is deemed to constitute payment.
The customer is entitled to resell the goods delivered subject to reservation of title in the ordinary course of business; he is however not entitled to pledge them or transfer title to them by way of security. The customer is obliged to secure our rights in the case that the goods subject to reservation of title are resold on credit. Moreover, the customer already now assigns to us his claims from the resale, if any, of the goods subject to reservation of title. We hereby accept this assignment. The customer is obliged to disclose to us upon our request any information relating to the assigned claims that is necessary for their collection and advise the debtors of the assignment.
The customer is deemed to undertake any processing of the goods subject to reservation of title for us and on our behalf, without any obligations arising therefrom on our part. In the case of processing, combination or mixing of the goods subject to reservation of title with other goods not belonging to us, we are entitled to a co-ownership share in the new item created thereby in the proportion of the value of our goods delivered subject to reservation of title to that of the other goods processed as of the time of such processing, combination or mixing. If the customer acquires sole ownership of the new item, he will grant us co-ownership in the new item in the proportion of the value of our goods delivered subject to reservation of title and he will retain such new item for us without charge.
If the goods delivered subject to reservation of title are resold in whatever condition together with other goods, the assignment in advance stipulated in subs. 2 is only deemed validly made in the amount of the value of those goods subject to reservation of title that are sold together with other goods in the context of the transaction in question.
If the security/ collateral to which we are entitled according to the preceding provisions exceeds the claims to be secured by 25%, we will – from time to time upon the customer’s request – release at our choice deliveries that have been paid in full.
II. Order execution
The dimensional design of the forgings is bindingly specified by the drawings of the raw parts and finished parts resp. the gypsum samples prepared by us and approved by the customer, subject to the tolerances indicated in the “Technische Richtlinien DIN EN 10243-1” (Technical standards DIN EN 10243-1) for raw forgings. Any deviations from that have to be specifically agreed upon.
The tools and equipment produced for the manufacture of the forgings remain our property, regardless of any corresponding cost share calculation. We undertake to retain the tools for the customer over a period of 3 years from the last order. After expiry of the 3 years, we will give the customer the opportunity to comment within six weeks on whether the tools are to be retained any further. The retention period ends if no statement is made and no new order is placed within the said 6-week period. If within such 6-week period a new order is promised to be placed in the future, the retention period is extended by 1 year. If the customer requests a retention period exceeding 4 years, we will be entitled to charge the costs of such retention. After expiry of the retention period, we will be entitled to freely dispose of the tools.
The costs incurred by replacement and maintenance of the tools as well as the risk of tool breakage are borne by us.
3. Heat treatment
Heat treatment is subject to explicit mutual agreement. Unless instructions to the contrary are given, heat treatment is conducted in accordance with DIN EN 10283.
4. Inspection and formal approval (“Abnahme”)
The costs of usual inspection of the outward condition, i.e. inspection as to the dimensions based on drawings and DIN EN 10254, surface defects and cracks or fissures of the surface as well as, in the case of parts that have undergone heat treatment, the costs of taking of random samples to check the firmness and solidness are included in the piece price, if offered.
Any inspections beyond that will be charged separately. In the case of prescribed formal approval (“Abnahme“), such approval procedure has to take place on our premises immediately after notice of readiness of the goods for dispatch has been given. The personal and material-related costs of such formal approval are at the customer’s expense.
5. Delivery times
The delivery time resp. delivery date is indicated in all conscience and to the best of our knowledge but without engagement. Any agreed-upon delivery times commence on the day of our order confirmation but by no means before all details of the order execution have been clarified. The delivery times are deemed complied with if the goods leave the works from which delivery is made at the agreed time or, in case the customer is in default of acceptance, are provided for dispatch or collection in the works from which delivery is made.
We are not deemed to be in default if the non-delivery is due to any circumstance that is not imputable to us. Non-imputable events are deemed to comprise force majeure events, strikes and lock-out, accidents and all other causes that entail partial or complete interruption of work or operations; the same applies in the event of shortage of material or operating supplies, difficulties in transport or energy supply, operational disturbances in the supplier’s own works or that of his sub-suppliers. If any one or several of these events should occur, we will be entitled to defer delivery by the duration of the impediment. The customer will be informed of the commencement and end of any such impediment without undue delay (“unverzüglich”). In the case of a delay in delivery, the customer is obliged to grant the supplier an adequate grace period, pronouncing at the same time a warning of non-acceptance of the goods in the case of non-compliance with such grace period. After the grace period has expired without result, the customer will be entitled to withdraw from the contract or claim damages only with regard to that part of the contract that has not been fulfilled by us. The customer is not allowed to rely on the lapse of his interest in the delivery – neither in the case of default with some part of the delivery nor in the case of default with the entire delivery.
In any case, the customer is only entitled to damages for default in delivery if such default was caused by us or any of our legal representatives or vicarious agents or other persons engaged by us in the fulfilment of our obligations (“Erfüllungsgehilfen”) by intentional or grossly negligent conduct.
6. Passing of risk
The risk of shipment is borne by the customer, it passes to him as soon as the delivery has left our works.
If shipment is carried out by a carrier or forwarder, the risk passes to the customer upon hand-over of the goods to such carrier or forwarder.
7. Short or excess delivery
Given the specific manufacturing conditions, deviations from the quantities ordered are permissible in accordance with DIN EN 10254.
8. Complaint for defect / defect of quality
Complaints for defects need to be made by the customer in writing within the periods set out hereinafter.
Defects that can be perceived from the outward appearance will be acknowledged within 8 days from receipt of delivery provided that the forgings still are in the condition as delivered, i.e. have not undergone heat treatment or have been shaped by the recipient by means of non-cutting forming.
Inward defects which only become perceivable upon cutting shaping or after practical use of the forgings has started become time-barred after expiry of one year from receipt of delivery. This does not apply in the case of intentional or negligent injury of the life or limb or health or in the case of a breach of duty committed by us by intentional or grossly negligent conduct or if we have given a guarantee or accepted to assume the risk of procurement or in the case of fraudulent concealment of a defect as well as in the case that the conditions of § 479 subs. 1 BGB (German Civil Code) are fulfilled. In any of these cases, the statutory limitation periods apply whereby it must be definitely clear and ascertained that the delivery in question is ours.
Defective parts will either be replaced by new goods or a credit memo will be issued. Replacement can only be requested by the customer if, due to the number of defective parts, the quantity delivered falls below the applicable shortage delivery limit (according to sec. 7).
Any loss due to defective parts of up to 0.5% of the ordered quantity and at least up to 2 pieces is at the customer’s risk and expense.
As a rule, the costs of processing defective parts are not reimbursed, any costs of subsequent treatment and additional work will only be reimbursed based on prior mutual agreement to that effect.
Any further claims are excluded. Claims for replacement expire no later than one month after the complaint for defect has been rejected by us in writing.
9. Exclusion of liability
Our liability for damages, regardless of the legal cause, is limited to any cases of intentional and grossly negligent conduct if and to the extent that no breach of fundamental contractual duties (“Kardinalpflichten”) is given. Fundamental contractual duties are those duties the fulfilment of which is an indispensable condition for the proper performance of the contract and on the fulfilment of which the buyer usually relies or is reasonably allowed to rely. This also applies to our vicarious agents and other persons engaged by us in the fulfilment of our obligations (“Erfüllungsgehilfen”) as well as to our legal representatives.
The liability is limited to the predictable damage typically occurring.
The preceding limitations of liability do not apply if and to the extent that liability is mandatory under the provisions of the Produkthaftungsgesetz (German Product Liability Act), in the case of an injury of the life or limb or health or if claims for damages are asserted against the seller on grounds of lack of a guaranteed quality or if a defect was fraudulently concealed. In the case of lack of a guaranteed quality, the seller only accepts liability for such damage as was specifically meant to be prevented by the guarantee.
III. Industrial property rights
The customer is obliged to investigate on his own initiative any potential infringement of industrial property rights that may be caused by the order and, where appropriate, inform us to the effect that the order pertains to parts that are validly protected by industrial property rights.
The customer assumes any and all responsibility and liability for claims asserted against us on such grounds by any legitimate owner or beneficiary of such industrial property rights in connection with the execution of the customer’s order.
The customer is obliged to bear all charges, fees, costs and expenses incurred in connection with any successful legal action initiated against him outside Germany.
IV. Validity of the terms and conditions
The preceding terms and conditions will remain valid even if one or several of them are or become invalid.
Form: Office-002 – Rev. 4 of 10/16/2017