General terms and conditions
Diener & Rapp GmbH & Co. KG Eloxal Company (AGB)
The following terms and conditions of business apply only in entrepreneurial business transactions and are the basis of all our offers, orders, deliveries and services.
Other terms and conditions shall only be recognised to the extent that they are consistent with our GTC or are expressly made the basis of the respective contract or service by us in the individual case.
Our offers are always subject to change. In case of doubt, the contract shall only be concluded with and in any case only in accordance with the terms and content of our written order confirmation, if such a confirmation is issued. Individual contractual agreements remain unaffected by this.
Indicative prices communicated are not offers and only become the basis of the contract if agreed. We shall be bound by our offer prices for a maximum period of four months until the order is placed.
Offers together with attachments may not be made accessible to third parties without our consent.
Prices and terms of payment
Our prices are net prices without cash discount or any other discount in Euro ex works excluding packaging, freight and insurance plus the applicable statutory value added tax. The granting of discounts requires the express agreement of the contracting parties. The prices apply exclusively to parts designed and manufactured in accordance with the processing. For additionally required work, such as the removal of paint, oil, grease, tar, old metal coatings and the subsequent attachment of openings to hollow bodies as well as the preparation of test reports, we shall charge the surcharges agreed in advance with the customer.
If the cost factors relevant for pricing (production material, energy, operating materials, wages and salaries, etc.) change significantly in the period from the conclusion of the contract to the contractually stipulated time of delivery, we shall be entitled to demand that the customer agree on new prices in amendment of the offer prices. If no agreement is reached, we are entitled to withdraw from the contract.
Unless otherwise expressly agreed, payments shall be made after delivery within 8 days after receipt of the invoice without deduction of discounts. In the event of default in payment, we shall charge interest on arrears at a rate of 8 % above the base rate, without prejudice to further rights.
The client shall only have the right to offset against our claims if his claim is undisputed or has been legally established.
Unless otherwise agreed, the delivery period shall commence upon receipt of the order confirmation; however, in the event of later delivery of the material to be processed by the Client, the delivery period shall not commence until this point in time.
If delivery is postponed as a result of unforeseeable circumstances affecting us, our suppliers or subcontractors, such as force majeure, strike, shortage of raw materials, operational disruptions or power failure, the customer shall be entitled to withdraw from the contract after granting a reasonable period of grace. § Section 323 (2) BGB remains unaffected. If delivery becomes impossible for us due to these circumstances, we shall be released from our obligation to deliver. If delivery becomes unreasonable for us due to these circumstances, we shall be entitled to refuse delivery. The customer shall not be entitled to claim damages if we are not responsible for these circumstances.
If the client is in default with regard to his obligation to provide or cooperate after a written reminder, we shall be entitled to withdraw from the contract and demand damages instead of performance after setting a 14-day grace period in writing.
Partial deliveries are permissible insofar as these are reasonable for the client.
Deliveries are ex works excluding packaging.
The risk for items of the client to be processed shall pass to the client upon leaving our works, however, at the latest upon handover to the forwarding agent or carrier. With regard to transport damage, the contractor shall only be liable for intent and for gross negligence.
Liability for simple and slight negligence is excluded, unless it is a breach of a material contractual obligation within the meaning of the case law of the Federal Court of Justice.
If the goods to be processed are collected by us at the request of the client, the transport risk shall be borne by the client. The client is free to insure these risks. With regard to the contractor's liability for transport damage, reference is made to clause 4.06, sentences 2 and 3.
The aforementioned provisions shall also apply if we have assured freight-free deliveries.
If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch.
The dispatch route, type and means of dispatch shall be left to us without guarantee for the fastest and cheapest transport. The interests of the customer shall be taken into account appropriately. If we act as forwarding agent, the General German Forwarding Agent Terms and Conditions shall apply in addition.
Goods reported ready for dispatch must be called off by the client without delay, at the latest, however, after expiry of a reasonable period after notification. If no call is made, this entitles us to store the goods at the expense and risk of the principal at our own discretion and to invoice them as delivered ex works.
If the dispatch or delivery of the goods is delayed at the request or instigation of the customer, storage charges amounting to % of the invoice amount may be charged for each month or part thereof, starting one month after notification of readiness for dispatch. The storage fee shall be limited to 5 % of the invoice amount, unless we can prove higher storage costs. The client may provide evidence that storage costs were not incurred at all or are significantly lower than the flat rate.
No liability shall be accepted for any waiting times that arise, insofar as these are still reasonable in total, unless collection and delivery dates have been bindingly agreed.
Insurance against transport damage shall only be taken out at the order and expense of the client.
If processed goods are returned for reasons for which we are not responsible, the client shall bear the risk until the goods are received by us.
Surface-treated parts will only be packaged to the extent that the material to be processed was sent packaged, repackaging was requested and the packaging material is reusable. If additional packaging is requested after surface treatment, this will be charged separately and will not be taken back.
We only assume warranty for our performance in accordance with the following provisions and only vis-à-vis the client as the first purchaser. The assignment of warranty claims to third parties is excluded.
We guarantee professional surface treatment in material and workmanship in accordance with the recognised rules of technology, the applicable DIN regulations or those generally recognised in the draft. In the case of galvanic and chemical processes as well as due to quality differences of the raw material, deviations from a sample on which the order is based are sometimes unavoidable.
Defective surface-treated parts will be professionally repaired by us free of charge.
The warranty period is one year. The delivered goods must be inspected immediately to ensure that they are free of defects. Defects must be reported in writing without delay, at the latest, however, within 12 days of receipt of the goods. The obligation to inspect shall also apply if reference samples have been sent. In the case of defects that are not immediately apparent, the same shall apply within the aforementioned period after discovery of the defect.
If a complaint is not made in due form or time, the goods shall be deemed approved by merchants within the meaning of the German Commercial Code (HGB).
The items handed over to us for processing are to be delivered with a delivery note or with precise written details of the number of pieces and total weight. The details of the gross weight are non-binding for us, even if they are of significance for the customer. Replacement for missing parts will only be provided if their delivery is documented by a delivery note signed by us and the risk for the missing parts has passed to us. In the case of small and mass-produced parts, we shall not be liable for rejects and shortfalls of up to 3 % of the total quantity delivered, unless otherwise agreed.
The client is reserved the right to reduce the purchase price or, at his discretion, to withdraw from the contract and demand compensation if subsequent performance fails or if the seller refuses both subsequent improvement and subsequent delivery or if subsequent performance is unreasonable. A subsequent improvement shall be deemed to have failed after the unsuccessful second attempt, unless something else arises in particular from the nature of the item or the defect or the other circumstances.
The Contractor shall be liable for intent and gross negligence except in the case of damage resulting from injury to life, body or health. Liability for simple or slight negligence is excluded unless it is a breach of a material contractual obligation within the meaning of the case law of the Federal Court of Justice. Insofar as the aforementioned exclusion of liability due to the breach of an essential contractual obligation does not apply, the contractor shall only be liable for the foreseeable damage typical for the contract. Further claims of the client are excluded. The Contractor's liability under the Product Liability Act remains unaffected. Contractual penalties shall not be recognised.
A defect in the partial delivery shall not entitle the Client to withdraw from the contract unless the defect in a partial delivery is so significant that the acceptance of further partial deliveries is no longer of interest to the Client.
The warranty only applies to stresses under normal, operational and climatic conditions. If the goods are intended for special conditions and we have not been informed of this beforehand, so that this has not become an object of the contract, a warranty for these special conditions is excluded. The warranty shall lapse in respect of such defects for which a remedy has previously been attempted by a third party, provided that the user has not previously had a reasonable opportunity to remedy the defect.
The material to be machined must be free of casting skin, moulding sand, scale, oil carbon, burnt-in grease, welding slag, graphite, paint coatings; it must not have any pores, blowholes, cracks, doubles, etc.; threads must be sufficiently undercut. If this is not the case, we are entitled to refuse processing or to withdraw from the contract. If the customer nevertheless insists on processing or if the material supplied to us for surface treatment is technologically unsuitable for such surface treatment for reasons which are not recognisable to us, we shall not assume any warranty for a certain dimensional accuracy, adhesive strength, colour retention and corrosion-preventing properties of the applied layer, insofar as a defect is attributable to the unsuitability of the material and is not based on gross negligence or intent on our part. Furthermore, no warranty is given for adhesion if the material has been deformed after surface treatment, even if trial electroplated parts could be deformed without chipping of the electroplated layer and the customer has requested processing despite being informed of the risk of chipping.
If the goods intended for surface treatment or a material sample suitable for this purpose is not made available to us for testing purposes for a sufficiently long period of time, but at least for six weeks, prior to the start of processing, we shall not assume any liability for corrosion damage that is not due to intent or gross negligence. If, in an individual case, in view of the delivery time specified to us by a customer, it is not possible for us to carry out short-term tests or other chemical and/or mechanical examinations or to prepare measurement reports or test certificates for scheduling reasons and the customer nevertheless requests the surface treatment, we reject any liability for damage attributable to the lack of testing except in cases of intent and gross negligence.
Hollow parts are only galvanically treated on the outer surfaces, unless a cavity treatment has been agreed in special cases. Immediate corrosion on the untreated surfaces does not justify any rights of complaint. Surface-treated material is at risk from condensation water and fretting corrosion. It must be properly packed, stored and transported.
The client must determine the minimum layer thicknesses at a measuring point to be agreed and prevent chemical and mechanical damage to the surface by taking suitable measures. We shall only be liable for weather damage and for any damage caused by residues from the treatment process later seeping out of duplications and other inaccessible cavities in the event of gross negligence and intent. If the client deems hydrogen degassing to be necessary, we will only undertake this by appropriate agreement and to the exclusion of any liability, except in cases of intent and gross negligence.
We are entitled to a statutory entrepreneur's lien on the objects processed by us. Irrespective of this, the client shall grant us a contractual lien on the objects handed over for the purpose of surface treatment, which serves to secure our claim arising from the order. Unless the contracting parties have agreed otherwise, the contractual lien shall also apply to claims from orders and services previously carried out, insofar as they are in an internally connected, uniform life relationship with the object of the order. If the surface-treated parts are delivered to the client before full payment, it is already agreed with the client that the ownership of these parts is then transferred to us in the value of our claim as security for our claims and that the transfer of possession is replaced by the client keeping the parts for us. The same shall apply with regard to the expectant right of the principal to objects handed over to us for the purpose of surface treatment which have been delivered to the principal by a third party under reservation of title. We are entitled to bring about the lapse of the reservation of title. Claims for return of title of the customer against a third party to whom he had previously transferred the objects handed over to us for the purpose of surface treatment as security are hereby assigned to us. We hereby accept the assignment.
The client may neither pledge nor assign items on which we have a lien or which are in our ownership by way of security. However, he may resell or process the goods in the ordinary course of business, unless he has already effectively assigned the claim against his contractual partner to a third party in advance. Any processing of the goods assigned to us by way of security by the client to form a new movable item shall be carried out on our behalf with effect for us, without any liabilities arising therefrom.
We hereby grant the client co-ownership of the new item in the ratio of the value of the new item less the value of our performance to the value of the new item. The client shall store the new item with commercial care and free of charge.
In the event that the client acquires sole or co-ownership of our security goods by combining, mixing or blending them with other movable items to form a uniform new item, the client hereby assigns to us this right of ownership in the ratio of the value of our security goods to the value of the other item as security for our claims, with the simultaneous promise to properly store the new item for us free of charge.
In the event of resale of the goods processed by us and assigned to us as security or of the new item produced from them, the client shall inform his customers of our ownership by way of security.
In order to secure the fulfilment of our claim, the client hereby assigns to us all claims, including those arising in the future, from the resale or further processing of the goods assigned to us, including ancillary rights, in the amount of the value of the goods. We hereby accept the assignment.
The client is authorised to collect the claims against third parties resulting from the resale or further processing in our favour. At our request, the client shall provide evidence of the claims individually and disclose the assignment to third party purchasers with the request to pay us up to the amount of our claims. We are also entitled to inform the subsequent acquirer of the assignment ourselves at any time and to collect the claim.
"However, we shall not request the principal to collect the claims or to disclose the assignment, shall not collect the claim ourselves and shall not disclose the assignment itself as long as the principal duly fulfils his payment obligations towards us."
The client is obliged to inform us immediately of enforcement measures by third parties in respect of the security interests.
6.08 The client is obliged to adequately insure the goods which are our property by way of security against the risk of fire and theft and to assign the claims against the insurer and the damaging party to us upon request.
At the request of the customer, the securities to which we are entitled under the above provisions shall be released to the extent that their value exceeds the claims to be secured by more than 20 %.
In the event that third parties assert rights to the collateral, the client undertakes already now to immediately hand over to us all necessary documents and to reimburse us for any intervention costs incurred.
All our claims, including those arising from other contracts, shall become due immediately, even in the event of deferment, as soon as the client culpably defaults on the fulfilment of other, not insignificant obligations towards us, ceases payments, is over-indebted, insolvency proceedings are opened against his assets or the opening of such proceedings is rejected for lack of assets.
In such a case, we shall be entitled to refuse outstanding deliveries and services and to set the customer a reasonable deadline within which he must effect payment or provide security concurrently with our performance or delivery at his discretion. After unsuccessful expiry of the deadline, we are entitled to withdraw from the contract.
Place of performance and jurisdiction
The place of performance and jurisdiction for all claims arising from the contract for both contracting parties, provided they are merchants, is the registered office of our company.
The laws of the Federal Republic of Germany shall apply to the exclusion of foreign law and the unified international sales law. The German version of a contract text shall be authoritative.
Should any of the aforementioned provisions of these GTC be void, ineffective or unenforceable for any reason, the validity of the remaining provisions and the underlying contract shall not be affected.