General terms and conditions for contract heat treatment shops
1.1 Place of performance, place of jurisdiction and applicable law
The place of performance and jurisdiction for all services, deliveries and payments is the site of the contractor’s place of business. This agreement is subject to the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law) of 11/04/1980 is excluded.
1.2 Contractual conditions
The contractor’s quotations are non-binding. All incoming orders, unless otherwise agreed in writing, shall only be carried out under the following conditions. Formal terms and conditions of purchase and other terms and conditions of business of the client shall not be accepted, even if they are not expressly contradicted. The contracting parties shall immediately confirm verbal agreements in detail in writing.
Prices are in EURO ex works excluding VAT and costs for any packaging. If significant changes to the order-related costs occur after the conclusion of the contract, each contracting party is entitled to demand an appropriate adjustment of the prices taking these factors into account.
Invoices must be paid immediately upon receipt without any deduction. If the target is exceeded, the contractor shall be entitled to charge default interest at the rate that the bank charges the contractor for overdraft facilities, but at least 8% above the base interest rate of the European Central Bank. The client’s right to retention or offsetting is excluded, unless counterclaims are undisputed or legally recognised.
The contractor shall have a lien on all current and future receivables on the client’s workpieces as soon as they are handed over for heat treatment. The legal consequences of sections 1204 et seq. of the German Civil Code (BGB) and the German Insolvency Code (Insolvenzordnung) shall apply accordingly.
2.1 Information provided by the client
All workpieces supplied for heat treatment must be accompanied by an order or delivery note containing the following information:
a) name, quantity, 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) for case-hardened steels in accordance with DIN 6773, either the required carburization depth with carbon content limit (e.g. carburization depth 0, 35 = 0.8 + 0.4 mm) or the specified case hardening depth with reference hardness value and surface hardness (e.g. case hardening depth 550 HV1 = 0.2–0.4 mm, surface hardness = min. 700 HV5);
bb) in the case of hardened and tempered steels, the required tensile strength. Unless otherwise agreed, the Brinell hardness test on the surface shall be decisive for determining the latter;
cc) for tool and high-speed steels, the required degree of hardness according to Rockwell or Vickers;
dd) for nitriding steels, the desired nitriding hardness depth (NHD);
ee) for induction and flame hardening, the desired surface hardness depth (SHD) with reference hardness value and surface hardness and the location of the area to be hardened;
ff) in the case of salt-bath nitrocarburizing and short-term gas nitriding, either the treatment duration or the desired strength of the bonding zone;
d) information about the desired test method, the testing centre and the test load (see DIN test standards);
e) other information or regulations necessary for the treatment’s success (see DIN 6773, DIN EN 10 052, DIN 17021, DIN 17023).
In the case of required partial hardenings, drawings must be included showing which areas must become hard or remain soft. If similar workpieces are manufactured from different steel melts, this must be indicated. Similarly, special requirements regarding dimensional accuracy or surface condition must be noted on the delivery documents. The client must make special reference to welded or soldered workpieces and to workpieces containing hollow parts. The contractor shall check the content and completeness of the information provided by the client to the extent of the contractor’s knowledge. In the event of justified doubts about successful heat treatment, the contractor shall inform the client.
2.2 Delivery period
The delivery period shall commence as soon as the contracting parties have clarified the order and the client has fulfilled all the requirements. For procedural reasons, the delivery period shall only be deemed approximate and shall be extended appropriately – even within a delay in delivery – in the event of unforeseeable obstacles that the contractor was unable to avert despite taking reasonable care according to the circumstances of the case. Unforeseeable obstacles are defined as possible, initially undetectable, multiple treatments, serious disruptions in the contractor’s own operations that are no fault of its own, caused, for example, by strikes, lockouts, accidents, transport problems, shortages of operating materials, energy supply difficulties and operational disruptions in the supplier’s operations. The contractor must provide proof of this. If the contractor foresees that it will be unable to comply with the delivery period, it shall immediately inform the client thereof, inform the client of the reasons for this and indicate a new possible delivery date.
2.3 Transfer of risk
Unless otherwise agreed, the heat-treated goods must be delivered by the client at its own expense and risk and collected upon completion. Upon transfer to the railway, the freight forwarder or the carrier, or upon commencement of storage, but no later than upon leaving the plant or warehouse, the risk shall pass to the client, even if the contractor has taken over delivery and receiving with its own fleet of vehicles.
Before leaving the hardening plant, the heat-treated material shall be tested to the extent customary in the industry and, if necessary, in accordance with the client’s specifications. Further tests and analyses are only carried out on the basis of special agreements. The contractor’s outgoing inspection does not release the client from its obligation to inspect incoming goods.
2.5 Material defects
The requested heat treatment shall be carried out as a service after the order has been placed with the necessary care and appropriate means on the basis of the information specified in Clause II.1. No guarantee is given for the success of the heat treatment, e.g. for freedom from warping and cracking, surface hardness, hardness penetration, through-hardening, galvanisability, etc., in particular due to the possible different hardenability of the material used, hidden defects, unfavourable shaping or due to possible changes in the previous work sequence. If the heat treatment is unsuccessful, without the contractor being at fault, because, for example, the information the client provided as required under Clause II.1 was incorrect, the contractor was unaware of latent defects in the workpiece prior to carrying out the heat treatment, or because successful heat treatment was made impossible due to the characteristics of the material used, the shape or the condition of the delivered workpieces, but the contractor was unaware of this fact and could not have known, the treatment fee shall still be payable. Any necessary re-treatments shall be invoiced separately under the aforementioned conditions. Defects must be reported to the contractor in writing immediately after transfer of risk. Complaints about latent defects must be made in writing immediately after discovery, but no later than 12 months after the transfer of risk.
This period also applies to the limitation period for claims for material defects, unless longer periods are prescribed by law, in particular for defects in a structure and in workpieces which have been used for a structure in accordance with their usual way of use and have caused it to be defective. In the event of any complaint, the contractor must be given the opportunity for testing and re-treatment. If the contractor fails to comply with its obligation to provide re-treatment or fails to comply with the contract within a reasonable period of time, the client shall be entitled, after a reasonable period set in writing has expired, to reduce the treatment fee, to cancel the contract and to carry out the necessary re-treatment itself or to have it carried out by a third party at the contractor’s expense. For damage to the heat-treated goods and for other damage due to defects which the contractor caused, the contractor shall only be liable for damage which is typical of the contract and reasonably foreseeable. The client shall be responsible for providing evidence of a defect. The warranty periods and limitations also apply to any re-treatment. If the workpieces in question have been processed or further processed without the contractor’s written consent, the warranty obligation shall lapse. No claims for defects may be asserted for losses occurring in the hardening process of mass-produced articles and small parts that are customary in the industry and to a reasonable extent due to the process. If the contractor carries out alignment work at the client’s request, the contractor shall not assume any liability for any resulting breakage. If insulating agents are used to prevent carbonisation or nitration, no guarantee can be given for success.
With regard to the heat treatment to be carried out, the client shall be responsible for ensuring that the workpieces are manufactured in accordance with state-of-the-art technology, for the correctness and completeness of the information required in accordance with II.1 and for a heat treatment specification adapted to the intended use. Unless mutually agreed in writing, the contractor shall not be liable for damages resulting from treatment suggested by the contractor and approved by the client. The contractor assumes that the client, for its part, will carry out the checks required to comply with the legal duty to maintain safety. Claims of an indirect nature, especially those arising from damage to items that are not identical to the workpiece, shall not be accepted by the contractor. The above limitations of liability shall not apply in the event of intent, gross negligence on the part of the contractor’s legal representatives or executives, or in the event of a culpable breach of material contractual obligations. In the event of a culpable breach of material contractual obligations, the contractor shall only be liable for 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 limitation of liability does not apply in cases where, in accordance with the German Product Liability Act (Produkthaftungsgesetz), liability is assumed for personal injury or property damage to privately used items due to defects in the products supplied. The limitation also does not apply in the event of injury to life, limb or health or in the absence of warranted characteristics or in the absence of a guaranteed quality, if and insofar as the purpose of the warranty or guarantee was to protect the contractual partner against damage that did not occur in the heat-treated goods themselves. Insofar as the liability of the contractor is excluded or limited, this shall apply also for the personal liability of its employees, workers, colleagues, legal representatives and vicarious agents. This shall not affect the statutory provisions on the burden of proof.
2.7 Partnership clause
For all compensation payments, in particular with regard to the amount of compensation for damages, due consideration must be given in good faith to the economic circumstances of the contracting parties, the nature, scope and duration of the business relationship, and the value of the heat treatment services. The general terms and conditions for heat treatment shops were filed with the Federal Cartel Office in Berlin on 1 April 2003 in accordance with section 22 (3) (2) of the German Act prohibiting the restriction of competition (Gesetz gegen Wettbewerbsbeschränkung) and published on 16 April 2003 in the German Federal Gazette (Bundesanzeiger) No. 74.