AGB Germany - De Martin AG Wängi

General terms and conditions (Customers De Martin GmbH Germany)

General - scope of application
1. Our deliveries, services and offers are exclusively based on these General Terms and Conditions of Delivery and Service. Deviating, conflicting or supplementary General Terms and Conditions of Business of the contractual partner (hereinafter also referred to as "Customer") shall only become an integral part of the contract if and insofar as we have expressly agreed to their validity.
2. Our General Terms and Conditions of Delivery and Service apply only to companies (§ 14 BGB), legal entities under public law or special funds under public law.
3. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these General Terms and Conditions of Delivery and Service. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements..
4. References to the validity of legal regulations only have a clarifying meaning. Even without such clarification, the statutory provisions shall apply, unless they are directly amended or expressly excluded in these General Terms and Conditions of Delivery and Service.
Offer - Offer documents
1. Our offers are subject to change and non-binding and subject to prior sale, unless they are expressly marked as binding. The order of the goods by the customer is considered a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of receipt..
2. The documents supplied by the customer (information, drawings, samples, models or similar) are authoritative for us; the customer is responsible for their correctness in content, technical feasibility and completeness; we are not obliged to check them.
3. We reserve copyright and other industrial property rights to illustrations, drawings, calculations and other documents (hereinafter referred to as "protectable items") supplied by us. The customer may not make these protectable objects accessible to third parties, either directly or indirectly (as a copy or duplicate), disclose them, use them himself or have them used or reproduced by third parties without our express consent. At our request, the customer must return all protectable objects to us in full and destroy any copies that may have been made if they are no longer needed by him in the ordinary course of business or if negotiations have not led to the conclusion of a contract.
Prices - Terms of payment
1. Unless otherwise stated in the order confirmation, our prices are ex works ("EXW", according to Incoterms 2010 or the respective current version of the Incoterms), i.e. the plant designated in the order confirmation or, if this designation is missing, the plant executing the order, plus packaging and the statutory value added tax.
2. The customer is not entitled to withhold payments due to counterclaims arising from other contractual relationships or to offset such counterclaims unless they have been recognised by us, are undisputed or have been legally established.
Obligations of the customer for the delivery condition - Base materials suitable for coating
1. The customer undertakes to deliver the delivery or service items in a condition suitable for coating in the contractually agreed factory. Coating-compatible in this sense means, among other things, that the workpieces to be electroplated are demagnetized and do not exhibit any material, processing or surface defects that could possibly have an unfavorable effect on the technical functions, corrosion protection, the bond to the base material and/or the appearance of the coatings. In the case of workpieces manufactured from rolled products, there shall in particular be no cracks, pore nests, components made of different materials, foreign material inclusions and duplications in the case of castings, sink and claw welds, shrinkage and basket cracks as well as turbulence and blowholes. Furthermore, the surfaces must be free of anti-catalysts (such as zinc and sulphur), silicone, preservatives, lubricants and cutting agents.
2. The principal undertakes to inform us unsolicited about the following criteria:
  - Material composition (determining for lattice type, microstructure, strength, hardness, toughness, activatability);
  - Degree of purity (decisive for homogeneity of the microstructure, particularly important in the surface zone);
  - Heat treatment and surface treatment condition and residual stresses.
3. The customer must ensure that heavy and bulky parts are provided with appropriate transport protection, fastening and transport devices. Furthermore, the client must comply with the regulations on load and transport safety.
4. The customer must ensure that only components to be coated are delivered, without attachments made of materials other than those to be coated.
Delivery - Delivery time
1. Deliveries shall be ex works ("EXW", according to Incoterms 2010 or the respective current Incoterm version). The place of delivery shall be the plant designated in the order confirmation or, if this designation is missing, the plant executing the order..
2. Deadlines and dates for deliveries and services promised by us are always regarded as non-binding delivery forecasts, unless a fixed deadline or a fixed date has been expressly promised or agreed as a binding delivery date.
3. Without prejudice to our rights arising from default on the part of the customer, we can demand an extension of delivery and performance deadlines or a postponement of firmly agreed delivery and performance dates by the period in which the customer fails to meet his contractual obligations towards us, in particular the obligation to supply the parts to be coated in a coating-compatible condition in accordance with Section 4 of these General Terms and Conditions of Delivery and Performance in good time.
4. We shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and such hindrance continues for a period of three months, we shall be entitled to withdraw from the contract. In the event of hindrances of only temporary duration, the delivery and performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer can no longer be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
5. We are only entitled to make partial deliveries if
  - the partial delivery can be used by the customer within the scope of the contractual purpose,
  - the delivery of the remaining ordered goods is ensured and
  - the customer does not incur any considerable additional work or additional costs as a result of this (unless we declare ourselves willing to bear these costs)
6. If we are in default with a delivery or service or if a delivery or service becomes impossible for us for whatever reason, our liability for damages shall be limited in accordance with Section 10 of these General Terms of Delivery and Service.
Transfer of risk - Shipping - Packaging
1. The place of performance for all obligations arising from the contractual relationship (with the exception of the Customer's payment obligation) shall be the plant designated in the order confirmation or, if this designation is missing, the plant executing the order.
2. At the request and expense of the customer, the delivery items or services will be sent to another location. We will take back transport packaging at our place of business free of charge during business hours.
Acquisition of ownership by treatment or processing of objects placed at our disposal
1. If the customer hands over an object of delivery or service to us for treatment or processing and the customer remains the sole owner of the object of delivery or service even after our treatment or processing, it is hereby agreed that the customer shall grant us pro rata co-ownership in the ratio of the value of our treatment or processing (final invoice amount including VAT) to the value of the object provided at the time of treatment or processing.
2. If the object of delivery or service is mixed or combined with objects or materials belonging to us for treatment or processing in such a way that they become essential components of a uniform object, we shall acquire co-ownership of the new object in the ratio of the value of our objects or materials to the value of the object provided by the customer at the time of the combination or mixing.
3. If the combination or mixing is carried out in such a way that the customer's delivery or service item is to be regarded as the main item, it is already now agreed that the customer shall transfer to us proportionate co-ownership in the ratio of the value of our treatment or processing (final invoice amount, including VAT) to the value of the item provided at the time of combination or mixing.
Retention of title
1. Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we reserve the right of ownership or co-ownership of the delivered goods acquired in accordance with clause 7.
2. The customer must treat the reserved goods with care. He must adequately insure them at his own expense against fire, water and theft damage at replacement value.
3. The goods subject to retention of title may not be pledged to third parties or transferred by way of security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made for the opening of insolvency proceedings or if third parties have access (e.g. seizure) to the goods belonging to us.
4. Until revocation according to section 8.5.3, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
  1. The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If a third party's right of ownership remains in effect after processing, mixing or combining with goods of a third party, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under reservation of title..
  2. The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer mentioned in clause 8.3 shall also apply with regard to the assigned claims.
  3. In addition to us, the customer remains authorised to collect the claim. We undertake not to collect the claim as long as the customer fulfils his payment obligations to us, there is no defect in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with section 8.4. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer's authority to further sell and process the goods subject to retention of title..
  4. If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer's request.
5. Racks and tools manufactured on behalf of the customer shall become our property, even if they have been paid for in full or in part by the customer. The same applies to chemical containers, which must be returned to us free of charge in proper condition no later than four weeks after receipt.
Warranty - Liability for breaches of duty
1. For the rights of the customer in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions), the statutory provisions shall apply, unless otherwise specified below. In all cases, the statutory special regulations remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB).
2. We assume no liability for public statements of the manufacturer or other third parties (e.g. advertising statements) regarding the quality (§ 434 I 3 BGB).
3. The warranty shall not apply if the customer has provided incorrect or incomplete information as required in Section 4 of these General Terms and Conditions of Delivery and Service and the elimination of the defect is thereby rendered impossible or unreasonably difficult. The customer shall bear the costs of remedying the defect arising from the subsequent treatment.
4. Furthermore, the warranty shall not apply if the surface finishing does not lead to success for other reasons for which we are not responsible, e.g. because we did not know and could not know hidden defects in the delivery item or service before the surface finishing was carried out or because properties of the material used, the design, the surface quality or the condition of the delivered delivery items or services made a successful surface finishing impossible, but we did not know and could not know this and the removal of the defect is thereby made impossible or unreasonably difficult. The customer shall bear the costs of remedying the defect arising from the subsequent treatment.
5. If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification of defects) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
6. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
Disclaimers and limitations of liability
1. Unless otherwise provided for in these General Terms and Conditions of Delivery and Service including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations. In the case of simple negligence, we shall only be liable subject to a milder scale of liability in accordance with statutory provisions (e.g. for care in our own affairs)
  1. for damages resulting from injury to life, body or health,
  2. for damages resulting from the not inconsiderable breach of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
2. The limitations of liability resulting from clause 10.2 shall also apply to breaches of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods, nor shall they apply to claims of the customer under the Product Liability Act.
3. A free right of termination by the client (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
Limitation period
1. Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. If, however, the goods are a building or an object which has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the period of limitation shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other statutory special regulations on the statute of limitations (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 479 BGB) remain unaffected.
3. The aforementioned limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the Customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the Customer pursuant to Sections 10.1 and 10.2.1 as well as under the Product Liability Act shall be subject to the statutory limitation periods.
Choice of law - Place of jurisdiction
1. These General Terms and Conditions of Delivery and Service as well as the contractual relationship between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.
2. If the customer is a merchant within the meaning of the German Commercial Code, an entrepreneur within the meaning of § 14 of the German Civil Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Neustadt a.d. Aisch.