GTCs
- Scope of application
These General Terms and Conditions (“GTC”) shall apply to all transactions with one or more of the above-mentioned companies (“contractor”) and which involve the provision of services for a third party and/or the sale of goods.
Any deviating provisions of the customer shall only become part of the contract if they have been expressly accepted in writing by the contractor.
This applies in particular to any agreement that cancels the requirement for the written form. - Conclusion of the contract and content of the contract
2.1. Each order shall only become binding upon written confirmation of the order by the contractor, including written acknowledgement of the processing specifications. Individual orders shall only become effective upon written confirmation of the individual order by the contractor. This shall also apply to follow-up individual orders. If the parties to the contract agree on a collective order confirmation for recurring series orders, waiving a written individual confirmation for each follow-up order, the conditions of the collective order confirmation shall apply to all subsequent orders of the customer until – in writing – revoked by one of the parties to the contract.
2.2 The prices stated in the order confirmation refer to the product properties of the raw material on which the offer is based. In the event of a deviation in the product and crushing properties of the product to be ground from the raw material on which the offer was based, the contractor reserves the right to unilaterally review and/or adjust the price. The customer will be notified of any deviations at an early stage. If no new price agreement is reached, both parties to the contract shall have the right to withdraw from the contract. The costs incurred by the contractor as a result of the cancellation of the order shall be borne by the customer.
2.3 The contractor is only obliged to process the raw materials provided by the customer for the purpose of processing to the best of its ability and using the technical means at its disposal.
The customer must agree any special requirements with the contractor in writing in a specification that meets these requirements. This applies in particular if the raw materials processed by the contractor are to be used in a way that requires a level of purity that goes beyond the normal level (e.g. aerospace, automotive industry, visual applications for surface coatings).
If the contractor does not inform the customer of the special use until after the contract has been concluded, the contractor is entitled, at its discretion, to charge the additional costs incurred due to the special nature of the raw materials to be processed, to withdraw from the contract or to terminate the contract without notice for good cause.
2.4. The contractor shall process the goods provided by the customer in accordance with the contract and shall not be the manufacturer of a product within the meaning of the Ordinance on Hazardous Substances (GefStoffV), the Product Liability Act (ProdHaftG) and Regulation (EC) No. 1907/2006 (REACH Regulation) or other relevant regulations.
2.5. The customer must ensure that the raw materials provided are in the condition contractually guaranteed by the customer (e.g. in terms of purity and packaging). The contractor is not obliged to check the raw materials provided by the customer to ensure that they meet the guaranteed product characteristics. - Obligations of the customer to cooperate
3.1. The customer is obliged to provide all the safety data required for processing the goods, including the dust explosion class. In particular, the contractor must be provided with all hazard warnings, protective measures or other product properties relating to safe handling, without being asked and in full. The customer must inform the contractor in writing of any changes to safety data so that the contractor can take these into account when processing the goods. If the contractor incurs claims for damages and/or reimbursement of expenses as a result of incorrect or incomplete information provided by the customer, these shall be borne exclusively by the customer. This shall also apply to any claims by third parties.
3.2. Before the product is placed on the market, the customer is obliged, in accordance with the Product Liability Act (ProdHaftG), the Hazardous Substances Ordinance (GefStoffV), the REACH Regulation and any other relevant regulations, to check whether the safety data of its product has changed after processing.
3.3. The customer shall check whether the finished product is suitable for the intended use. The customer shall be responsible for placing the product on the market. - Confidentiality
All internal company information, experience and technical knowledge (know-how) shall be treated confidentially by the contracting parties. The contracting parties shall also undertake to ensure that all employees who have access to confidential information in connection with the business relationship between the contracting parties are bound to secrecy by means of a written and signed declaration. - Assumption of risk for storage
5.1. The liability of the contractor for loss of or damage to the products and provisions supplied by the customer or third parties during the period of possession of the contractor shall be governed exclusively by section 11 of these General Terms and Conditions. This shall also apply if products or provisions provided by the customer are stored at the customer’s premises.
5.2. The customer shall be obliged to ensure that the usual risks for external storage, such as fire, theft, storm, damage by natural forces etc., are covered by taking out appropriate insurance or by including such risks in existing insurance policies taken out by the contractor. - Shipping
6.1. The raw materials are delivered and the processed goods are collected by the customer, who shall also bear the costs and risks in this respect. Raw materials that arrive at the contractor’s premises on or after the earliest delivery date stated in the order confirmation shall be stored free of charge. Raw materials deliveries that arrive at the contractor’s premises before the earliest delivery date will be stored at a cost of €6.50 per pallet per week or part thereof. The earliest delivery date is usually one week before the start of the processing of the goods.
6.2. Immediately after the goods have been processed, the contractor shall notify the customer in writing that they are ready for dispatch. The finished goods must be collected within five (5) working days of notification of readiness for dispatch and will be handed over to the carrier upon presentation of a collection order.
6.3. All risks shall pass to the customer upon handover of the finished goods to the carrier. The transfer of risk shall also occur if the customer is in default of acceptance.
6.4. If the finished goods are not collected within five days, the customer shall pay a fee for the further storage of the goods in the amount of €6.50 per pallet per week or part thereof.
6.5. In deviation from the above provisions of sections 6.1 – 6.4, the contractor shall, at the express request of the customer, arrange for the transport of finished goods ex works of the contractor by a specialised transport company. The contractor shall neither be entitled nor obliged to do so and shall act solely as an agent in this respect, without becoming a party to the contract for the transport of goods at any time. The General German Forwarders’ Terms and Conditions (ADSp) shall apply in their current version. If there is to be a deviation from these, in particular with regard to the liability limitations contained in the ADSp, the customer must expressly communicate this. In this case, the contractor shall arrange a separate offer for the transport of goods.
6.6. The contractor’s documentation obligation with regard to load securing and loading is deemed to have been fulfilled if the official licence plate, the rear of the truck and the open tailgate with the load visible there or the open side of the truck after loading can be seen with the help of photographs. It is not necessary to document all the load and its respective securing.
- Invoicing
Invoices shall be issued on the day of dispatch or the day on which the goods are made ready for dispatch. In the case of partial deliveries, the corresponding partial quantity shall be invoiced. - Delivery period
The delivery dates notified by the customer are non-binding, unless the contracting parties have agreed a binding delivery period (fixed transaction) in writing. If a binding delivery period has been agreed, delivery dates shall only apply subject to the timely delivery of the raw materials and provisions. In the event of a delay on the part of the customer, the contractor shall be entitled to re-schedule the delivery date by notifying the customer in writing. The same applies in the event of unforeseen circumstances or force majeure. The customer shall receive a written notification of readiness for dispatch for the purposes of the forwarding agent. - Payment
Invoices are payable within 10 days of the invoice date, unless other payment terms have been agreed in writing. - Warranty
10.1. The contractor shall carry out production monitoring in accordance with EN ISO 9001. If the contracting parties consider further monitoring to be necessary for individual products, this shall be agreed separately. The inspections carried out by the contractor shall not release the customer from its own comprehensive incoming goods inspections for product release prior to use, further processing and/or transfer to third parties. In particular, the customer must check whether the finished goods are suitable for the intended purpose.
10.2. The customer is obliged to inspect the goods delivered to him for their suitability for the contractually agreed use (quality and purpose) immediately upon receipt and before processing. If necessary, the customer must carry out a test processing.
In the event that the goods are delivered to a third party after processing on the customer’s behalf, this shall not release the customer from its contractual obligation to inspect the goods.
Following the inspection, any obvious defects discovered must be reported to the contractor in writing without delay, but no later than within seven days. If the customer fails to report the defect, the goods shall be deemed to have been approved.
Defects that are not immediately recognisable in the course of the inspection that is owed must be reported to the contractor in writing immediately after discovery. The notice of defect must include a description of any defects that is as specific as possible. If the notice of defect is not given immediately, the goods shall be deemed to have been approved in view of this defect.
As soon as the customer has discovered a defect, the customer is obliged not to process the goods or to stop processing the goods immediately. If the customer nevertheless continues to process the delivered goods, the goods shall be deemed to have been approved.
Notifications of defects after the expiry of the above deadlines are legally irrelevant and therefore exclude any warranty claims.
10.3. 10.3 The contractor shall guarantee the processing of the raw materials in such a way that it shall rework products that have been proven not to meet the agreed specifications at its own expense or, alternatively, shall process replacement goods delivered in accordance with the rejected quantity at its own expense. If it is not possible to rectify the defect, the contractor shall pay compensation for recognised claims in the amount of the product quantity that does not meet the contractually agreed written characteristics. The amount of compensation is limited to the value in EUR/kg that corresponds to the price in EUR/kg for the defective quantity. Process-related minimal particle residues, such as material abrasion, do not constitute a defect.
10.4. The customer must expect a loss of raw material of up to 50 kg or 1% of the product quantity due to the process. The higher value shall apply. The contracting parties agree that the customer cannot derive any claims from these quantity deviations. - Liability
11.1. The liability of the contractor is determined exclusively by the following paragraphs.
11.2. The contractor shall be liable without limitation for any property damage or financial losses caused intentionally or by gross negligence, for any intentional, grossly negligent or negligent injury to life, limb or health, and in cases where a guarantee or procurement risk has been assumed expressly and in writing. The same shall apply to any breach of duty by representatives, employees, other staff and/or vicarious agents of the contractor.
11.3. If and to the extent that the provision under the above clause 11.2 does not apply, the contractor shall be liable in the event of a slightly negligent breach of duty only in the case of a breach of such contractual obligations whose fulfilment is essential to the proper execution of the contract, whose breach jeopardises the achievement of the purpose of the contract or on whose compliance the customer regularly relies (cardinal obligations). The breach of duty by the contractor shall be deemed to be equivalent to that of its legal representatives, employees and/or vicarious agents. The liability of the contractor shall be limited to twice the amount of the respective order amount.
11.4. All further claims and rights of the customer – regardless of the legal basis – are excluded. This also applies to compensation for indirect damages. Likewise, the contractor’s liability towards third parties is excluded. The contractor is indemnified by the customer against any claims by third parties.
11.5. Insofar as liability is effectively excluded or limited, this shall also apply to the personal liability of the contractor’s executive bodies, legal representatives, employees, other staff and vicarious agents.
11.6. The exclusion of liability shall not apply to claims under the Product Liability Act due to a defect after the assumption of a guarantee for the quality of the goods or in the case of fraudulently concealed defects and due to damage to health, body and life. - Limitation
All claims of the customer due to a material defect shall become statute-barred within one year of delivery of the goods at the agreed place of delivery.
Exceptions to this are claims and rights to compensation for damages due to intentional or grossly negligent breach of duty by the contractor, its representatives, employees and/or agents, as well as any claims for injury to life, body and health for which it is responsible. - Place of fulfilment and place of jurisdiction
The place of fulfilment for deliveries, services and payments is the contractor’s place of business. The exclusive place of jurisdiction for all disputes arising from the business relationship between the parties and any claims in connection with it is Bonn, Germany. - Applicable law
German law shall apply exclusively to all claims arising from the contractual relationship. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. - Written form clause
Amendments and additions to these GTCs must be made in writing. This also applies to the waiver of this written form requirement itself. The written form within the meaning of these GTCs requires – even if it is required elsewhere – the personal signature and the transmission of the signed document in the original or by fax. - Severability clause and ancillary agreements
Should individual provisions of these terms and conditions be invalid in whole or in part, this shall not affect the validity of the remaining provisions of the contract. Any ancillary agreements or deviations from these terms and conditions shall only be valid if expressly agreed in writing.
