4I. General conditions
I.1 Place of Performance, Place of Jurisdiction and Applicable Law
The place of performance and jurisdiction for all services, deliveries and payments shall be the place of establishment of the Contractor. However, the Contractor is also entitled to bring an action before the courts with jurisdiction over the Client’s registered office. The contract is subject to the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 is excluded.
I.2 Conclusion of Contract and Execution of the Contract
The offers of the Contractor are subject to change. All incoming orders only become binding upon receipt of the order confirmation or its execution. Section II.2 shall remain unaffected. The Contractor shall also be entitled to reject those orders of the Client which are placed based on contracts and to refuse to fulfil the orders placed if it becomes apparent that its claim for payment would be jeopardised by the Client’s lack of ability to perform. This is particularly the case if the creditworthiness of the Client is assessed by Euler Hermes as „High Risk“ (assessment level 7) or worse, if and to the extent that the sum insured provided to the Contractor by its trade credit insurer to secure claims against the Client would be exceeded upon acceptance of the order, or if the deductible for any bad debt of the Client would be exceeded by the trade credit insurer is increased by more than 10 percentage points after acceptance of the order compared to the deductible at the time of acceptance. The Contractor shall be entitled to terminate orders without notice if there is an important reason for doing so. Good cause exists if, after acceptance of the order, it becomes apparent that the claim for payment would be jeopardised by the Client’s inability to pay – the provisions in the preceding paragraph apply mutatis mutandis – and the Client does not credibly assure its ability to pay within a reasonable period of time despite being requested. Section 321 of the German Civil Code (BGB) and other statutory rights of refusal of performance and retention remain unaffected. Orders will only be executed under these conditions. Formal terms and conditions of purchase and other terms and conditions of the Client shall not be recognised, even if they are not expressly contradicted. The contracting parties will immediately confirm verbal agreements in detail in writing.
I.3 Force majeure
Force majeure, labour disputes, riots, armed conflicts, terrorist attacks, official measures, epidemics and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of their effect. This also applies if these events occur at a time when the contractual partner concerned is in default, unless he or she caused the delay intentionally or through gross negligence. The contracting parties are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
I.4 Pricing
The prices are in EURO ex works, excluding VAT and costs for any packaging. If order-related costs change by more than 10% after the conclusion of the contract, each contracting party is entitled to demand an appropriate adjustment of the prices considering these factors.
I.5 Payment
The invoices are to be paid immediately upon receipt without any deduction. If the target is exceeded, the Contractor is entitled to demand the statutory default interest as well as the statutory lump sum for damages. The assertion of further damages is not excluded. The Client’s right to withhold or offset is excluded, unless counterclaims are undisputed or legally acknowledged.
I.6 Lien
The contractor shall have a lien on the Client’s workpieces for all present and future receivables as soon as they are handed over for heat treatment. Sections 1204 et seq. of the German Civil Code (BGB) apply mutatis mutandis.
II. Terms and Conditions of Execution and Delivery
II.1 Information provided by the customer
All workpieces submitted for heat treatment must be accompanied by an order or delivery note containing at least the following information:
a) the description, number of pieces, net weight, value of the parts and type of packaging;
b) Material quality (standard designation or steel brand and steel manufacturer);
c) the desired heat treatment, in particular
aa) in the case of carburizing, the required carburizing depth with a limit carbon content (e.g. CD 0.35 = 0.8+0.4 mm);
bb) in case hardening or carbonitriding, the prescribed case hardening depth (CHD) with indication of the limit hardness and the desired surface hardness (e.g. CHD550 HV1 = 0.8+0.4 mm, surface hardness = 57+6 HRC);
cc) in the case of quenching and tempering, the required hardness according to Brinell or Vickers. Unless otherwise agreed, the test is carried out on the surface of the components;
dd) for hardening, the desired hardness test method according to Vickers or Rockwell, with indication of the required hardness value (e.g. 57+6 HRC or 600+150 HV10). Unless otherwise agreed, the test is carried out on the surface of the components;
ee) for nitriding, the desired nitriding hardness depth (NHD) or the desired treatment duration (e.g. NHD = 0.2+0.2 mm or nitriding 20 hours)
ff) in the case of nitrocarburizing, the thickness of the compound layer (CLT) or the duration of the treatment (e.g. CLT = 10+10 μm or nitrocarburizing 2 hours)
gg) in the case of surface layer hardening, the prescribed surface layer hardening depth (SHD) with the desired surface hardness (e.g. SHD500 = 1.2 +1.0 mm, surface hardness = 57+6 HRC), as well as the location of the area to be hardened
d) information on the desired test method, the test centre and the test load in accordance with the currently valid technical standards;
e) information on the intended use and on any safety relevance of the component; and
f) any other information or regulations necessary for the success of the treatment in accordance with the currently valid technical standards.
If partial hardening is required, drawings must be attached showing exactly which areas must be hard or remain soft. If similar workpieces are made from different steel melts, this must be indicated. Likewise, special requirements for dimensional accuracy or surface condition must be noted on the delivery documents. Particular attention must be drawn to welded or brazed workpieces and to those containing hollow bodies. The Contractor shall check the Client’s information for content and completeness within the scope of its knowledge. If there are any concerns about successful heat treatment, the contractor shall inform the client.
II.2 Delivery time
The delivery time begins as soon as the contracting parties have clarified the order, and the customer has fulfilled all requirements. For procedural reasons, the delivery time shall be deemed to have been agreed only approximately and shall be extended appropriately – even within a delay in delivery – in the event of unforeseeable obstacles which the Contractor could not avert with reasonable care under the circumstances of the case. Unforeseeable obstacles include any necessary multiple treatments that are not initially recognisable, the delivery by the Contractor’s suppliers that are not free of defects and/or not on time (unless the Contractor is responsible for this) as well as serious disruptions in the Contractor’s own operations through no fault of their own, e.g. due to accidents or malfunctions in machinery and equipment. Section I.3 shall remain unaffected. If the Contractor can foresee that he will not be able to meet the delivery time, he will inform the Client immediately, inform him of the reasons for this and, if possible, specify a new delivery date.
II.3 Transfer of Risk
Unless otherwise agreed, the heat treatment goods shall be delivered by the Client at his own expense and risk and shall be collected after completion. With the handover to the freight forwarder or the carrier or with the start of storage, but at the latest when leaving the factory or warehouse, the risk passes to the customer, even if the contractor has taken over the delivery and delivery with its own fleet.
II.4 Examinations
Before leaving the hardening shop, the heat treatment material is tested to the extent customary in the industry and, if necessary, according to the customer’s specifications. Further tests and analyses are only carried out based on special agreements. The customer shall ensure that the heat treatment material meets the requirements before further use. For this purpose, the necessary tests or other activities are carried out. With regard to the heat treatment to be carried out, the Client shall be responsible for the production of the workpieces in accordance with the rules of technology, for the correctness and completeness of the required information in accordance with Section II.1 and for any heat treatment instructions adapted to the subsequent intended use.
II.5 Insufficient heat treatment
After the order has been placed, the desired heat treatment shall be carried out as a service with the necessary care and suitable means based on the information provided in Section II.1. In doing so, the Contractor complies with the official requirements and the applicable legal, relevant regulations of the European Union (EU) and the Federal Republic of Germany. This applies, for example, to the REACH Regulation (Regulation EC No. 1907/2006), the Electrical and Electronic Equipment Substance Ordinance (ElektroStoffV), the End-of-Life Vehicles Ordinance (AltfahrzeugV) and the Packaging Act (VerpackG) as German implementations of the corresponding EU directives. The success of the heat treatment, the achievement of a certain quality, the suitability for a certain use or the achievement of certain results, e.g. with regard to freedom from distortion and cracks, surface hardness, adherence, hardening, electroplatability, etc., are not owed, in particular because of the possibility of different hardening of the material used, hidden defects, unfavourable shaping or possible changes in the previous work process. The shrinkage that occurs in the hardening process of mass-produced articles and small parts to a reasonable extent in the industry and due to the process also does not justify claims for defects. If the contractor carries out straightening work at the request of the client, he assumes no liability for any breakage that may occur in the process or for the successful application of insulating agents against carburizing or nitriding. If the heat treatment is not successful, the agreed remuneration must still be paid. Complaints must be reported in writing immediately. Necessary follow-up treatments will be carried out after consultation with the client and, in the absence of a different agreement, will be invoiced separately. Claims of the Client for follow-up treatment or damages due to a possible culpable breach of contractual obligations by the Contractor shall remain unaffected. If, by way of exception, a service under a contract for work and services has been commissioned in an individual case, the limitation period for claims for defects is 12 months from the transfer of risk, unless the law prescribes longer periods.
II.6 Liability
Unless otherwise stated below, other and further claims of the Client are excluded. This applies to claims for damages due to breach of obligations arising from the contractual relationship and from tort. The Contractor shall not be liable for lost profits or other financial losses of the Client. He is also not liable for damage resulting from a treatment proposed by him and approved by the client. The above limitations of liability do not apply in the event of intent, gross negligence on the part of the Contractor’s legal representatives or executives or culpable breach of essential contractual obligations. In the event of culpable breach of essential contractual obligations, the Contractor shall only be liable for the reasonably foreseeable damage typical of the contract – except in cases of intent or gross negligence on the part of its legal representatives or executives. Furthermore, the limitations of liability do not apply in cases in which liability for personal injury or property damage to privately used objects is assumed in the event of defects in the delivered products in accordance with the Product Liability Act. They also do not apply in the event of injury to life, limb or health and in the absence of warranted properties or in the absence of a guaranteed quality, if and to the extent that the assurance or guarantee was specifically intended to protect the Client against damage that did not occur to the heat treatment goods themselves. Insofar as the liability of the Contractor is excluded or limited, this also applies to the personal liability of its employees, employees, employees, legal representatives and vicarious agents. The statutory provisions on the burden of proof remain unaffected by this.
II.7 Partnership clause
In the case of all compensation services provided by the Contractor, in particular with regard to the amount of damages, the economic circumstances of the contracting parties, the nature, scope and duration of the business relationships as well as the contract value of the heat treatment services shall be taken into account in good faith.
Version: May 2024