Delivery and Payment Terms for Foundry Products
March 25, 2002
1. Contract Conclusion, Scope of Delivery
a) Our offer shall be nonbinding unless otherwise stated in our offer confirmation or expressly declared by us in writing. A contract shall be concluded only if we have confirmed the order in writing or upon execution of the order.
b) Images, figures, drawings, weights and dimensions stipulated in brochures and catalogs shall be industry standard approximations unless they are expressly marked as binding.
c)We reserve all intellectual property rights and copyrights inherent in images, figures, brochures, calculations, and other documents; they must not be made accessible to third parties. This shall apply in particular to written documents marked as "confidential". Prior to forwarding them to third parties, the Purchaser shall require our explicit and written consent.
2. Pricing and Payment Terms
a) Our prices are quoted ex works and shall be subject to additional packaging, freight, postage, insurance costs as well as the applicable value-added tax.
b) Should there be a significant change in order-related costs after contract conclusion, the contracting parties will agree on an adjustment.
c) Our invoices shall be payable immediately and in full, unless agreed otherwise.
d) The Purchaser shall only be entitled to withhold payments on the grounds of counterclaims or to set them off against counterclaims insofar as claims for payment are uncontested or have been legally established.
e) If any of the goods delivered by us should prove defective, the Purchaser shall nevertheless be obligated to pay for any goods that are indisputably free from defects unless the resultant incomplete consignment should be of no interest to him.
f) We accept discountable and correctly taxed bills of exchange as payment where this has been explicitly agreed beforehand. Credit notes against bills of exchange and cheques are issued subject to receipt and minus disbursements available at full face value on the due date.
g) In the event that we should be required to render any advance services and, upon execution of the contract, should become aware of any circumstances that place our entitlement to payment in jeopardy due to the Purchaser’s lack of ability to perform, we shall have the right to not only enforce our statutory entitlements established as a result of Art. 9, Title Retention but shall also have the right to prohibit the resale and processing of the delivered goods as well as its return or the transfer of the indirect ownership inherent in the delivered goods at the Purchaser’s expense and shall have the right to revoke the collection authorization subject to the conditions of Art. 9, lit. h). The Purchaser hereby authorizes us to access the Purchaser’s premises in such cases and collect the delivered goods. The return of the goods will entail withdrawal from the contract only when this is explicitly declared by us.
h) In the event of default of payment, we shall be entitled to suspend the fulfillment of our further obligations upon giving written notice until payment has been received. After expiry of a reasonable grace period, we shall also be entitled to rescind the contract.
3. Delivery Period
a) Delivery deadlines shall commence with our order confirmation, however, not before all the details of execution have been settled and all other conditions of the Purchaser to be fulfilled are known to us; the same shall apply to delivery dates. Shipments prior to expiry of the delivery period and partial deliveries shall be allowed unless this is deemed unreasonable for the Purchaser. The date of the notification of readiness for dispatch shall be considered as the delivery date, otherwise the date the goods are shipped. Unless otherwise agreed or stipulated in the contract, the delivery period stated by us shall be nonbinding.
b) Agreed delivery deadlines and periods are extended or postponed if the Purchaser is in default without prejudice to our rights at the point at which the Purchaser falls behind with its obligations. If the Purchaser fails to accept the goods or if it culpably infringes any other duty to collaborate, we shall be entitled to ask for the compensation of any resulting damage including any possible extra expenses. In such cases the risk for accidental loss or deterioration of the goods shall transfer to the Purchaser as of the point in time the Purchaser is in default of acceptance.
c) If we are in default, the Purchaser may define an appropriate period of grace with the express statement that, following this period, it will not accept delivery and will withdraw from the contract.
d) At our request, the Purchaser is obliged to declare within a reasonable period of time whether it wishes to withdraw from the contract due to delay in delivery and/or demands compensation in place of delivery or insists on the delivery being carried out.
4. Serial Deliveries, Long-term and Call-off Contracts
a) Contracts made for an indefinite period of time may be terminated by giving 6 months' notice to the end of the month.
b) If, under long-term contracts (contracts with a term of more than 12 months and contracts for an unlimited period), there is a significant change in salary, materials and energy costs after the first four months, either party to the contract is entitled to request prices to be adjusted taking these factors into account.
c) Our prices have been calculated on the basis of the agreed order volumes. If no binding order volumes have been agreed, our calculation will comply with the agreed target quantities. Should actual orders fall short of agreed order or target volumes, we are entitled to increase unit prices within reasonable limits. In the event that the Purchaser should exceed the quantity with our consent, the Purchaser shall have the right to demand a reasonable price reduction, provided the Purchaser indicates this intent at least 2 months prior to the agreed delivery date. The amount of reduction or increase shall be determined according to our calculation bases.
d) In the case of call-off purchase orders, when no other arrangements have been made, we are to be informed of binding quantities at least 2 months prior to delivery. Additional costs caused by the Purchaser due to late call-off or subsequent changes to the call-off in terms of time or quantity shall be borne by the Purchaser; in this respect our calculation shall be decisive.
e) In the case of series production, over or under delivery up to 10% compared to the volume ordered is permitted because of the special characteristics of the casting process.
f) Overall prices will change to reflect total quantities.
5. Force Majeure and other Impediments
a) Events of force majeure, labor disputes, lockouts and government measures shall entitle us to defer the delivery by the duration of the impediment, including a reasonable start-up period or to withdraw in full or in part from the contract due to the not yet fulfilled part of the contract.
b)Equivalent to force majeure are unforeseen circumstances e.g. business disruptions, rejects and rework which render it impossible for us to deliver on time despite all reasonable efforts; we must provide evidence of this
6. Testing Procedures, Acceptance
a) If acceptance has been agreed, scope and conditions shall be determined by the time the contract is concluded.
b) If this is not the case, acceptance will be carried out based on the scope and conditions commonly applied by us. The same shall apply to initial sample inspections.
7. Dimensions, Weights, Quantities
a) Deviations in dimensions, weights, and quantities shall be permitted within standard industry tolerances, relevant DIN regulations and technical casting requirements. Indication of dimensions and weights in our quotations and order confirmations shall not be deemed warranted properties.
b) Billing shall be based on the delivery weights and quantities determined by us.
8. Shipment and Transfer of Risk
a) Unless agreed otherwise in writing, the shipping clause "ex works" (Incoterms 2010) shall apply. This shall also apply if we agreed to pay the transportation costs.
b) We will only provide transport insurance for the delivery at the Purchaser's express wish; any costs incurred in this respect shall be borne by the Purchaser.
c) Goods declared ready for shipment have to be taken over immediately, otherwise we are entitled to ship the goods at our discretion or to store them at customary transport cost and at the Purchaser's expense and risk; we are entitled to the latter if shipping could not be performed for reasons which are not within our responsibility. Goods shall be deemed to have been delivered one week after they have been stored in a warehouse.
d) In the absence of specific instructions, transport media and transport routes will be chosen by us at our discretion.
e) Even if we have undertaken to handle the transport of the goods, associated risks will pass on to the Purchaser when the goods are handed over to a railway or haulage or forwarding company and/or one week after it has been first stored in a warehouse or, at the very latest, when it leaves our premises or the storage facility.
9. Reservation of Ownership
a) All delivered goods shall remain our property (reserved goods) until the satisfaction of all claims, in particular also the respective balance claims to which we are entitled within the framework of the business relationship. The above also applies to payments made to settle specifically designated claims.
In the event of Purchaser's payments being delayed, we are entitled to demand the return of any goods delivered at the purchaser's expense. Costs arising therefrom shall be borne by the Purchaser. The above shall not apply, however, in the event of insolvency proceedings having been filed or opened against the Purchaser, in which instance we would not be entitled to the immediate return of our goods.
b) The return of the goods and/or assertion of our right of ownership will entail withdrawal from the contract only when this is explicitly declared by us.
c) The Purchaser will process any goods supplied in our name only. In the event of conditional goods being integrated in a product together with other goods, we thereby acquire a share in the products thus generated in proportion to the invoice value of our goods relative to the invoice value of the other objects included in the product at the time of manufacture.
d) In the event of our right of ownership expiring because the goods delivered have been amalgamated or blended with others, the Purchaser hereby agrees already to transfer to us its right of ownership in the newly-generated article in proportion to the invoice value of our conditional goods, and to keep said articles safe for us without charge. The articles in which we thus may acquire rights of co-ownership shall be regarded as conditional goods within the meaning of lit. a).
e) The Purchaser may sell conditional goods only in the normal course of business at its normal business conditions, provided that the Purchaser is not in default with any payments, and provided that titles in any claims resulting from such resale is transferred to us in conformance with lit. f) and g). The Purchaser shall not be entitled to dispose of conditional goods in any other way.
f) The Purchaser already agrees to assign any claims from such resale of conditional goods to us. Such claims may be used as collateral to the same extent as conditional goods.
g) In the event of conditional goods being sold by the Purchaser together with other goods not supplied by us, any claims from such resale shall be assigned to us only in the amount of the invoice value of the conditional goods actually sold. Should goods be sold in which we retain a share according to lit. b), claims shall be assigned in proportion to the value of said share.
h) The Purchaser shall be entitled to collect any amounts outstanding from sales under lit. e) and f) unless and until we raise an objection. In the cases enumerated in Art. 2, we shall be entitled to object to such collection if any payments due from the Purchaser are delayed, insolvency proceedings have been instituted against the Purchaser, or the Purchaser has suspended payment. In these cases, the Purchaser shall without further delay inform us about any assigned claims and their debtors, including all details necessary for collection, hand over all relevant documents, and inform debtors about the assignment of the amounts due from them. The Purchaser shall not be entitled to assign such claims in any other way.
i) If the value of the collateral should exceed the total value of the relevant claims by more than 20%, we shall be obligated to release certain portions of the collateral at our discretion. The Purchaser shall report immediately any case of collateral being impounded or otherwise distrained by third persons.
10. Liability for Defects
a) We hereby warrant that any components supplied by us will be free from defects as defined in the agreed engineering specifications. It will be the Purchaser's responsibility to ensure that products are properly designed, that relevant safety regulations are observed, that relevant materials and test procedures are properly selected, and that engineering specifications and the engineering documents and drawings handed over to us are free from errors and omissions, particularly with regard to their intended use. Further, the Purchaser hereby warrants that no proprietary or other rights held by third parties will be infringed by Purchaser's information. Product conformability with contractual requirements shall be definitely established at the time of risk passage.
b) We will not be liable for inconsiderable nonconformances with agreed quality, inconsiderable impairment of a product's fitness for use, or any defects arising through unsuitable or inexpert treatment, faulty assembly and/or commissioning, or the effect of natural wear and tear. In the event of products being inexpertly manipulated or repaired either by the Purchaser or by third parties, we will not be liable for any of the defects named above nor for their resultant consequences.
c) The Purchaser shall give written notice of any obvious defects immediately after goods have been received at their destination, while hidden defects shall be reported immediately after their discovery.
d) Any agreement on acceptance or initial sample inspections as per Art. 6 automatically precludes subsequent complaints about defects that might have been detected in such inspections.
e) We must be given the opportunity to verify any reported defects. In urgent cases, i.e. whenever the operational safety of the product is in jeopardy, or the Purchaser is threatened by extensive harm, any defects claimed shall be verified by us without delay. Any defective goods shall be returned to us immediately on request. Should the Purchaser fail to comply with these obligations, or should any goods previously reported as defective be modified by the Purchaser in any way, the Purchaser's right to claim damages for defects shall be forfeited.
f) In case of justified and timely made complaints, we may, at our discretion, either repair the products in question or supply replacements that are free from defects (subsequent performance).
g) Should we fail to comply with our warranty obligations either entirely or within a reasonable time, or should our repair efforts remain unsuccessful for the time being, the Purchaser may set as a last resort a grace period for us to comply with our obligations. Setting a grace period may be omitted if it should prove unacceptable to the Purchaser. After the term has expired without avail, the Purchaser may, at its discretion, opt to demand a price reduction, to withdraw from the contract, to have the products repaired in-house, or to commission a third party to effect the necessary repairs at our own cost and risk. Once repairs have been effected successfully either by the Purchaser or a third party, the Purchaser shall not be entitled to any further claims once relevant expenditures have been reimbursed by us.
h) Any claims by the Purchaser regarding the reimbursement of expenditures arising in conjunction with the repair of defects because the products in question have to be transported to another location shall be inadmissible insofar as the expenditure total will be increased thereby, unless said transport is conformable with the contractual use of the product.
i) The Purchaser's statutory rights of recourse against us shall be admissible only insofar as no agreements going beyond the legal scope of statutory claims for defects have been made between the Purchaser and its customer.
j) As provided in Art. 13, no further liability will be accepted.
k) The Purchaser shall be responsible for demonstrating the presence of a defect.
11. Order-related Manufacturing Equipment; Cast-in Parts
a) Order-related manufacturing equipment, including without limitation patterns, templates, core boxes, molds, casting tools, fixtures, and gauges provided by the Purchaser shall be shipped to us free of charge. We will inspect any manufacturing equipment supplied by the Purchaser for compliance with contractual specifications, drawings or patterns provided to us and only if this has been expressly agreed. Manufacturing equipment provided by the Purchaser may be modified by us if this appears necessary for casting reasons, and if no product modification is entailed.
b) The Purchaser shall bear the expense of modifying, servicing, and replacing such manufacturing equipment.
c) Manufacturing equipment provided by the Purchaser will be treated and kept by us with the same care we apply to our own equipment. We will not be liable, however, for accidental destruction or deterioration of such equipment. Any manufacturing equipment provided by the Purchaser that is no longer required by us we may either return to the Purchaser at the Purchaser's expense and risk or, if the Purchaser fails to respond to our request to retrieve such equipment within a reasonable term, retain such equipment for a reasonable period of time at the Purchaser's expense and destroy it after due written notice.
d) Order-related manufacturing equipment made or procured by us at the Purchaser's request will remain our property even after the cost has been invoiced pro rata. Such equipment will be retained by us for a period of 3 years after the last casting has been made.
If it has been agreed that, in deviation from Par. 1, said equipment should become the property of the Purchaser, the latter will assume ownership of said equipment as soon as the agreed price and/or share in the first cost has been paid. In this case, our obligation to keep said equipment safe will stand in lieu of a formal transfer. In the absence of good and sufficient reasons to the contrary, the Purchaser may terminate this safekeeping agreement no earlier than two years after the transfer of ownership.
e) The Purchaser may make claims relating to copyright or proprietary rights only if we have been previously notified by the Purchaser of the existence of such rights, and if such rights have been expressly reserved by the Purchaser.
f) Parts to be cast in by us in a mold shall be dimensionally accurate and free from defects when supplied by the Purchaser. Parts that can no longer be used because of production rejects shall be replaced by the Purchaser free of charge.
a) Both parties agree to use any and all documents (including without limitation patterns, samples, and data) and know-how resulting from their business relationship only and exclusively in pursuit of the common purpose and to maintain their secrecy towards third parties with the same care as exercised with regard to their own equivalent property if these are designated as confidential by the other party or the other party has an obvious interest in maintaining their secrecy.
b) The above obligation shall enter into force on the date on which said documentation or know-how is first disclosed, terminating 36 months after the end of the business relationship.
13. Limitation of Liability
a) Without prejudice to any provisions to the contrary laid down in the following, we hereby disclaim liability for any claims the Purchaser may make against us for whatever legal reason, in particular claims relating to the non-performance of obligations and to unlawful acts.
b) The above limitation shall not apply whenever liability is mandatory, e.g. in cases falling under the Product Liability Act, in cases of willful or gross negligence on the part of statutory representatives or executives, or in cases of culpable non-performance of major contractual obligations. We shall be liable in cases of culpable breach of material contractual obligations, except - in cases of willful or gross negligence on the part of our statutory representatives and executives - only insofar as the resultant damage is typical of the contract in question and foreseeable within reason. This limitation of liability is not applicable to any life, body, or health injuries nor to quality defects whenever the relevant guarantee aims to protect the Purchaser from damage to some object other than the goods delivered.
c) Any liability exemptions and limitations shall equally apply to personal claims against our employees, associates, statutory representatives, and agents.
d) Any claims for compensation for damages and defects to which the Purchaser may be entitled will expire one year after the resultant products have been delivered to the buyer. This provision does not apply in cases where the law prescribes longer terms such as Sec. 438 Para. 1 No. 2 BGB (Bürgerliches Gesetzbuch - German Civil Code) (buildings and objects commonly used in buildings) and Sec. 479 Par. 1 BGB (recourse claims) as well as in cases involving injury to life, body, or health; in cases of willful or gross negligence on the part of the supplier and in cases of malicious silence with regard to a defect. Any legal regulations covering the suspension and recommencement of terms shall remain unaffected by the above. Claims for damages under the Product Liability Act shall be covered by the statute of limitations. The same holds true for cases of willful and gross negligence.
14. Place of Fulfillment and Court of Jurisdiction
a) If the contractual party is a merchant, place of jurisdiction shall be Kaiserslautern. We are, however, entitled to institute proceedings against the Purchaser at the court of its business location.
b) Unless shown differently in the order confirmation, the place of fulfillment for our part of the contract shall be the location of our production facilities. The place of fulfillment for any payments due shall be Enkenbach-Alsenborn.
15. Applicable law
All contractual relations between the parties to this contract shall be interpreted solely under the laws of the Federal Republic of Germany, any application of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG) being expressly excluded.
16. Severability Clause
If individual provisions of these Delivery and Payment Terms should be ineffective or invalid in whole or in part, the contracting parties shall undertake to agree to a provision that largely achieves the meaning and purpose of the ineffective or invalid provision.
All compensation payments, in particular the amount of compensation for damages, should be based on good faith and should reasonably take into account the economic situation of the contracting parties, the type, scope and duration of the business relationship as well as the value of the goods.