Dated 11.10.2022
InterGuss Gießereiprodukte GmbH
Bad Windsheim
1. Scope
a) The following terms and conditions of business shall be applicable to all our contracts, deliveries, and other deliverables, including consulting and information services, which have been agreed upon with companies, legal entities under public law, and special public-law assets. Any deviations from, amendments, and/or addenda to these terms and conditions of business must be made in writing.
b) Our quotations, deliveries, and deliverables shall be subject exclusively to these terms and conditions of business. Terms and conditions of business provided by the customer, and which deviate herefrom, shall not be part of the contract. Our terms and conditions of business shall be deemed to have been accepted at the latest upon receipt of the delivery or deliverable.
2.Quotation and conclusion of the contract
a) Our quotations shall be valid for a maximum of thirty days after which they shall be subject to change and non-binding. Contracts shall be concluded only by order confirmation provided in writing by us.
b) Orders placed by phone or verbally and any subsidiary agreements must be made in writing in order to be effective.
3. Intellectual property rights and copyright
a) InterGuss Gießereiprodukte GmbH holds a number of registered intellectual property rights (in particular German patents no. 10 2005 039 431, 10 2020 20 402, 10 218 105 570, 10 2019 100 282, and 10 2019 133 354). If a purchaser acquires a patent-protected product, this purchaser shall be granted use of the product in accordance with its intended use.
b) If, in addition to the acquired product, images, drawings, sketches, CAD constructions, 3D data, milling programs, or other documents are made available to the purchaser, these may only be used on a license-free basis when exclusively used in connection with the acquired product. This applies in particular if the images, drawings, sketches, CAD constructions, 3D data, milling programs, or other documents are related to a product protected by a patent held by InterGuss Gießereiprodukte GmbH.
c) The InterGuss Gießereiprodukte GmbH property rights and copyrights are reserved for all images, drawings, sketches, CAD constructions, 3D data, milling programs, and other documents. All images, drawings, sketches, CAD constructions, 3D data, milling programs, and other documents may not be made available to others without written authorization from InterGuss Gießereiprodukte GmbH and must be returned immediately upon request.
d) The purchaser shall be responsible for ensuring that the working drawings made available to InterGuss Gießereiprodukte GmbH do not infringe intellectual property rights of third parties.
4. Prices
a) The prices are net prices excluding packaging and freight charges. Prices stipulated on the order confirmation shall be binding.
b) If a delivery time frame longer than three months is agreed upon in the form of a written order confirmation, InterGuss Gießereiprodukte GmbH shall not be bound by the stipulated prices.
c) If, between the conclusion of the contract and the delivery, the applicable prices from our suppliers or other costs related to our products increase, InterGuss Gießereiprodukte GmbH shall have the right to increase the agreed prices by an appropriate amount.
5. Payment conditions
a) Payments shall be made within 30 days without any deductions. If the purchaser has not made the payment within 30 days, we shall be authorized, without issuing a reminder, to charge late-payment interest at 9% above the respective base interest rate.
b) The customer’s right to off-set and right of retention against our trade receivables shall be excluded, unless the counterclaim is indisputable, legally binding, or relates to an alleged defect in a product delivered by us and for which we have requested payment.
c) Bills of exchange and checks shall only be accepted in accordance with special agreements.
6. Delivery and deliverables
a) The terms and conditions for delivery shall be defined in the contract and shall include delivery but exclude unloading. Partial deliveries shall be permitted. Amendments to the order shall suspend any agreed deadlines and time frames, unless agreed otherwise. If, during construction, it is found that the amount of work involved is greater than was foreseen at the time of acceptance of the order, the delivery deadline shall be extended accordingly.
b) If we are not responsible for the delay, for example due to a lack of energy for which we are not responsible, import difficulties, operational disruption, traffic disruption, strikes, force majeure or other delays on the part of our suppliers or their sub-contractors, the performance time shall be extended appropriately.
c) If we are responsible for the delay, the customer may, according to the statutory provisions, withdraw from the contract. If the customer suffers damage due to the delay, the customer shall have the right to request a lump-sum compensation. This shall amount to 0.5% for each full week of delay but may not exceed in total 5% of the value of the part of the deliverable which, due to the delay, is unable to be used within the agreed time frame or in accordance with the contract.
d) For us to deliver within the agreed deadlines, all business and technical questions between us and the customer must be resolved and the customer must fulfill all duties to collaborate, such as by providing product data. All delivery time frames and deadlines shall be subject to unforeseeable production disruption and to whether we receive the necessary primary material on time, and, if the delivery concerns trade goods, to our ability to deliver and to whether we receive supply on time.
e) The time of dispatch of ex works may impact the ability to adhere to delivery time frames and deadlines. If, through no fault of our own, the goods may not be collected, the delivery time frames and deadlines shall be deemed to have been adhered to after we have issued a notification stating that the product is ready to be dispatched.
7. Retention of title
a) We shall retain title over the product which has been delivered by us (goods subject to retention of title) until all payments from the business relationship with the customer have been received. We shall undertake to release our securities upon the customer’s request, provided that the value of our securities exceeds the claims to be secured by more than 10%. We shall have the right to select which securities are to be released.
b) If the goods subject to retention of title are processed, connected, or mixed with other goods which do not belong to us, we shall acquire joint ownership of the new item up to the value of the goods subject to retention of title in relation to the other processed, connected, or mixed property.
c) The customer shall have the right to resell the goods subject to retention of title to a third party in the ordinary course of business. However, the customer shall pay to us all financial claims arising from the resale.
d) We shall have the right to insure the goods subject to retention of title against theft, breakage, fire, water, and other damages, at the customer’s expense, if the customer does not provide us with evidence that the customer has already taken out an appropriate insurance policy. In doing so, the customer has assigned all claims against their insurer to us, provided the customer’s claims are based on one of the aforementioned performance impediments.
e) If the customer falls into arrears by more than ten days regarding the entirety or a significant part of a payment and the appropriate payment deadline set by us has lapsed without payment, we shall have the right to withdraw from the contract. The reclaiming of the goods subject to retention of title by us shall constitute a corresponding notice of withdrawal from the contract. The same shall apply if an insolvency application is filed regarding the customer’s assets and is not withdrawn within 20 days from when the application was made. If the customer does not comply with the request to surrender the goods or in the event that there is a risk of loss or destruction of the goods subject to retention of title, we shall be entitled to take possession of the goods subject to retention of title. For this purpose, we shall be authorized to enter the place in which the goods subject to retention of title are held. The recovery costs incurred due to this process shall be borne by the customer.
8. Transfer of risk
a) The risk shall be transferred to the client as soon as the product has left our plant or depot. This shall also apply if we provide further deliverables such as delivery charges or delivery services. If acceptance is to take place, the risk shall be transferred upon acceptance.
b) If delivery or acceptance is delayed or remains incomplete due to circumstances for which the customer is not responsible, the risk shall be transferred to the customer as soon as we have issued the customer with a notification stating that the product is ready to be dispatched or accepted. Transit insurance shall only be taken out upon the purchaser’s explicit request and at its expense.
9. Liability for defects/warranty
a) Our liability shall apply to the absence of defects in our products in accordance with the state of the art. We shall not be held liable:
- if our products are not correctly stored, fitted, implemented, or used by the customer or a third party;
- in the event of normal wear and tear;
- if the products are not maintained properly;
- if inappropriate equipment has been used;
- in the event of damages caused by repairs or other works carried out by third parties to which we did not explicitly consent.
b) The customer shall inspect the product immediately upon receipt. We shall be notified of any observable defects within one week from receipt of the product. If we do not receive any such notification, the product shall be deemed to have been accepted. Section 377 of the German Commercial Code shall apply in addition.
c) Our statutory liability for defects shall be limited to subsequent performance, that is, at our discretion, remedy of defects or replacement delivery. The customer must, in return, provide us with sufficient opportunity to carry out this subsequent performance. Failing this, we shall be exempt from any liability pertaining to the consequences thereof. The customer must hand over to us the replaced parts.
d) If subsequent performance fails, the customer shall have the right to reduce the amount of the payment or, in the event of significant defects, to withdraw from the contact.
e) For newly manufactured items or services including the related planning or monitoring services, the duration of our liability for defects shall be one year from delivery or acceptance. This shall not apply to buildings, including the related planning and monitoring services and building materials if these have been integrated. For these services, the statutory limitation period shall apply, unless the General Conditions of Contract relating to the Execution of Construction Work DIN 1961 – 2006 Version (VOB/B) have been included in their entirety and according to which a shorter limitation period shall apply.
f) We shall not be liable in the event of the sale of used products.
g) Further claims from the customer due to defects in accordance with the foregoing points c) –e) shall be excluded. Therefore, we shall not be liable for damages which do not arise from the product itself nor for other financial losses suffered by the customer.
10. Liability
a) Our liability, regardless of the legal basis upon which it has been incurred, shall be limited to intent and gross negligence.
b) All the other liability limitations specified in these terms and conditions of business shall not apply:
- in the event of intent or gross negligence on our part or on the part of our vicarious agents;
- in the event of personal injury;
- in the event of damages which have arisen due to the absence of a feature which we have guaranteed;
- in the event of claims under the German Product Liability Act.
11. Closing provisions
a) If any one of the clauses of this contract proves invalid, this shall not affect the validity of the remaining clauses. The parties shall undertake to agree upon a replacement clause which is as close as possible to the invalid clause.
b) The place of execution for all InterGuss Gießereiprodukte GmbH deliveries and deliverables as well as for any legal disputes which may arise from this contract shall be the registered office of the company in Bad Windsheim.
c) German law shall apply to all claims. The UN Convention on Contracts for the International Sale of Goods shall not apply.
