§ 1 General information – scope of application
1. Our terms and conditions of sale apply exclusively to all deliveries and services. We do not recognise any terms and conditions of the customer that are contrary to or deviate from our terms and conditions of sale unless we have agreed to their assertion in writing. Our terms and conditions of sale also apply if we carry out the delivery to the customer in the knowledge of the customer’s terms and conditions that conflict with or deviate from our terms and conditions of sale.
2. All agreements made between us and the customer for the purpose of executing a contract are set out in writing in these terms and conditions and seperately agreed upon quality assurance agreement(s) if applicable. Insofar, as these terms and conditions and the quality assurance agreement(s) contradict each other, the latter shall take precedence as the more specific regulations.
3. Our terms and conditions of sale only apply to companies, legal entities under public law or special funds under public law within the meaning of § 310 par. 1 BGB (German Civil Code).
4. Our general terms and conditions also apply to all future business with the customer.
§ 2 Offer, acceptance and order documents
1. Our offers are always non-binding. Incoming orders can be accepted by us within two weeks. Acceptance on our part shall be exclusively in writing, by e-mail or explicit confirmation by telephone or by execution of the work.
2. We reserve the right of ownership and copyright to illustrations, drawings, calculations and any other documents. This shall also apply to such written documents designated as confidential. The customer requires our express written consent before passing such documents on to third parties.
3. The subject of the order is only those services that have been expressly ordered by the customer. Additional services, which are rendered upon consultation with the customer, will be invoiced separately. This applies in particular to all costs arising from subsequent change requests by the customer.
§ 3 Prices and terms of payment
1. The prices are ex works excluding packaging, transport and postage. The statutory value-added tax at the respective applicable rate shall be added to the prices.
2. The deduction of a (early payment) discount requires special written agreement.
3. Unless otherwise stated on the order confirmation or invoice, payment of the purchase price (without deduction) is due within 30 days of the invoice date. If payment is not made within 30 days of delivery, the customer shall be in default without any further declaration on our part. The statutory regulations regarding the consequences of late payment shall apply.
4. The customer shall only be entitled to offsetting, if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only entitled to exercise a right of retention insofar, as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time and acceptance
1. Information about the delivery time and delivery dates are non-binding, unless they have exceptionally been promised bindingly in writing.
2. In the event of a written promise, the beginning of the delivery time stated by us requires the clarification of all technical questions.
3. Compliance with binding delivery times and delivery dates is subject to the timely provision of all items to be supplied by the customer, in particular the materials to be coated, any necessary test equipment, test gauges, documents, permits and releases, as well as the complete and correct fulfilment of any other obligations to cooperate by the customer. In case of failure to comply, the periods and deadlines shall be extended accordingly. This shall not apply, if we are responsible for the delay.
4. The agreed upon delivery dates and delivery times shall also be extended appropriately in case of overdue payments of the customer or if the customer does not carry out any action necessary for the fulfilment of the order. The same applies in case of change requests by the customer. We reserve the right to the objection of non-performance of the contract.
5. If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us, including any additional expenses. Further claims or rights are reserved. If the aforementioned conditions are met, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the point in time at which the customer was in default of acceptance or debtor’s delay. This shall also apply if the deterioration or destruction of the delivery item has occurred only through slight negligence on our part, on the part of our employees or our vicarious agents. If impossibility of performance occurs during default of acceptance or debtor’s delay or if the delivery item deteriorates or is lost without this being due to intent or gross negligence on our part or on the part of our employees or vicarious agents, the customer shall remain obliged to provide compensation.
6. The delivery time or delivery date shall be deemed to have been complied with, if the delivery item has left our factory by the end of the delivery period or by the delivery date or if notification of readiness for dispatch has been given.
§ 5 Transfer of risk and dispatch
1. The risk of loss passes to the customer at the latest, when the delivery items are dispatched, even if partial deliveries are made or we have assumed other services, e.g. bearing the shipping costs or delivery.
2. At the request of the customer, we will insure the shipment at his expense according to his specifications.
§ 6 Rights in case of defects, disclaimer of warranty
1. The customer’s claims for defects require that the customer has properly fulfilled its obligation to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code). In particular, the customer has to, with regard to nature and extent, appropriately examine the incoming products, accounting for any deviations in colour, number of items and fitting accuracy. Any notification has to be given in writing or text form. Notification of visible defects has to be given immediately, in case of delivery ex works no later than seven calender days upon collection, in any other case upon delivery. Notice of hidden defects has to be given immediately after discovery.
2. Unless expressly agreed otherwise, we provide a warranty for non-conformity for a period of twelve months from the date of transfer of risk, or in the case of refusal by the customer to accept or take delivery, from the date of receipt of the delivery notification by the customer. This does not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB (German Civil Code), in the case of claims for injury to life, limb or health, fraudulent, intentional or grossly negligent conduct on our part, or if in the cases of § 478 BGB (German Civil Code; recourse in the supply chain with a consumer as end user) or if otherwise a longer limitation period is stipulated by mandatory law. § 305 b BGB (German Civil Code; priority of the individual agreement) remains unaffected. This provision does not reverse the burden of proof.
3. Our warranty for the processing carried out by us (claims arising from breach of contract in the form of improper performance by supplying non-conforming goods) and the resulting liability is excluded, unless defects and associated damage are verifiably due to faulty material, faulty design, defective execution or faulty manufacturing materials. Unless otherwise agreed, the material and construction of the parts processed by us shall be provided by the customer. We do not assume any liability for the quality of the materials, designs and manufacturing materials provided by the customer.
4. The aforementioned provision (§ 6 No. 3) does not apply in the event of malicious, grossly negligent or intentional action on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with § 276 BGB (German Civil Code) or liability in accordance with mandatory legal provisions.
5. There are no remedies for non-conforming goods in case of insignificant deviation from the agreed upon or usual quality or usability. We are not liable, if the customer or a third party reworks or further processes the products delivered or processed by us; this does not apply, if we are responsible for the non-conformity.
6. The acknowledgement of breaches of contract in the form of non-conforming goods must always be in writing. § 305 b BGB (prioity of the individual agreement) remains unaffected.
7. In case of lack of conformity of the goods, we shall – by our choice – be entitled to substitute performance in the form of repair or substitute delivery of a defect-free good. In the case of repair, we are generally entitled to two repair attempts. In the event of substitute delivery, the customer is obliged to fully comply with his obligations to cooperate, in particular to provide us with the raw parts for the coating.
8. If the substitute performance fails, the customer is entitled to avoidance of the contract or a price reduction.
9. In the event of unsuitable or improper use by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences, there are no remedies for non-conformity unless we are responsible for the non-conformity. Not withstanding claims for damages, there is no warranty if the customer or third parties carry out improper modifications. The exclusion of liability shall also apply if the defect is due to a substance or material supplied by the customer. The same applies if the service rendered by us was performed according to the customer’s instructions.
§ 7 Liability and compensation
1. Subject to the following exception, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses – irrespective of the legal basis – in the event of breach of contract.
2. The exclusion of liability according to § 7 No. 1 does not apply:
a) for own intentional or grossly negligent breaches of contract and intentional or grossly negligent breaches of contract by legal representatives or vicarious agents;
b) for the breach of essential contractual obligations; “essential contractual obligations” are those whose fulfilment characterises the contract and on which the customer may rely, sometimes referred to as “cardinal obligations”;
c) in case of injury to limb, life and health also by legal representatives or vicarious agents;
d) in case of delay, if a fixed delivery and/or fixed performance period was agreed;
e) insofar, as we have assumed the guarantee for the quality of our work performance or goods or the existence of a performance success or a procurement risk within the meaning of § 276 BGB (German Civil Code);
f) in the event of mandatory liability by law, in particular the Produkthaftungsgesetz (Product Liability Act) and the Medizinproduktegesetz (Medical Products Act).
3. In the event of slight negligence by us or our vicarious agents and outside the scope of paragraphs 2c, 2d, 2e, 2f, our liability for breaches of essential contractual obligations (see 2 b) is limited to the contract-typical and foreseeable damages.
4. Our liability is limited to a maximum liability amount of € 3,000,000.00 (in words: three million euros) for each individual case of damage. This does not apply if the damages were caused with malice, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or a guarantee or the assumption of a procurement risk in accordance with § 276 BGB (German Civil Code) or in cases of mandatory, deviating higher liability sums by law. Any further liability is excluded.
5. The exclusions or limitations of liability according to the aforementioned paragraphs (1.) to (4.) apply to the same extent in favour of our organs, owners, our executive and non-executive employees and other vicarious agents and any subcontractors.
6. These provisions do not reverse the burden of proof.
§ 8 Retention of title, right of retention
1. We reserve the title of co-ownership on any goods processed (reserved goods) by us until all current and future claims arising from the business relationship with the customer (secured claims) have been settled. The ratio of co-ownership depends on the value of the raw parts received to the value of our services rendered.
2. We authorize the client, on its own or through a third party, to further process the goods within the scope of ordinary business. By derogation from § 950 BGB (German Civil Code), the client of the third party only receives the title of co-ownership to the extent that represents the ratio of the value of the further processing to the value of the goods.
3. In exchange, the client or the third party assigns to us his (future) claims against his custumors to the extent, that represents our co-ownership share.
4. The retention of title on reserved good, that are implants within the meaning of Regulation (EU) 2017/745, ends with the implantation at the latest.
§ 9 Fiction of receipt
All declarations on our part to the customer shall be deemed to have been received two calendar days after dispatch, unless they concern unilateral constitutive declarations, including but not limited to dismissals, terminations and avoidances.
§ 10 Place of jurisdiction and applicable law, written form, severability clause
1. If the customer is a merchant, our registered office in Schwäbisch Gmünd is the place of jurisdiction. However, we are entitled to seek legal remedies against the customer at any other given place of jurisdiction.
2. All legal relations between the customer and us arising out of or in connection with this contract shall be governed exclusively by the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
3. The contractual languages are German and English. In case of doubt regarding the interpretation, only the German version shall be authoritative.
4. Changes and additions to the contracts concluded with the customer must be made in writing. This also applies to the exclusion of the written form agreement itself. The priority of the individual agreement (§ 305 b BGB) in written, textual or oral form remains unaffected.
5. Should any provision of these terms and conditions be or become ineffective, invalid or impossible to implement in whole or in part, this shall not affect the validity of the rest of these terms and conditions. In this respect, the legal regulations shall apply.
Last update: January 2024