1.1. Place of performance, jurisdiction and applicable law Place of performance and jurisdiction for all services, deliveries and payments is the location of the contractor’s subsidiary. The contract is subject to the laws 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.
1.2. Contract conditions The contractor’s offers are subject to change. All incoming orders, unless written agreements to the contrary are made, will be carried out based on the following conditions. Standard purchasing conditions and other terms and conditions of the customer will not be recognised, also in the event that they have not been expressly objected to. The contracting parties will promptly confirm any verbal agreements in writing on and individual basis.
1.3. Prices Prices are ex works in EURO and do not include VAT and any costs for packaging. If the contract-related costs change substantially after conclusion of the contract, each contract party is entitled to request suitable adjustment of the prices in consideration of these factors.
1.4. Payment Invoices are due immediately upon receipt with no deductions. If the payment deadline is not met the contractor is entitled to charge interest on arrears at the benchmark interest rate charged to the contractor by the bank for overdrafts, however at least 8% above the respective basic interest rate of the European Central Bank. The customer’s right of retention or set-off is excluded, unless counter-claims are undisputed or non-appealable.
1.5. Right of lien The contractor has a right of lien for all current and future claims on the workpieces of the customer as soon as they are delivered for heat treatment. The legal consequences from §§ 1204 FF of the German Civil Code and the insolvency regulation apply accordingly.
2. Export and delivery terms
2.1. Information provided by the customer All workpieces that are delivered for heat treatment must be accompanied by an order or a delivery note containing the following information: a) designation, quantity, net weight, value of the components and type of packaging; b) material quality (standard designation or steel brand and manufacturer); c) the desired heat treatment, in particular aa) for case-hardening steels according to DIN 6773 either the required carburization depth with carbon content limit (e.g. carburization depth 0.8+0.4 mm) or the specified case depth with reference hardness and surface hardness (e.g. case depth 550 HV1 = 0.2 – 0.4 mm, minimum surface hardness 700 HV 5); bb) for case-hardening steels, the required tensile strength. To determine the tensile strength, unless otherwise agreed, the Brinell indentation hardness test on the surface is decisive; cc) for tool steels and high-speed tool steels, the desired Rockwell or Vickers hardness; dd) for nitriding steels, the desired nitriding case depth; ee) for induction and flame-hardening, the desired depth of hardening with reference hardness and surface hardness and the position of the area to be hardened; ff) for salt bath carbonitriding and short-time gas nitriding, either the duration of the treatment or the desired thickness of the connecting zone; d) information about the desired testing method, the test point and the test load (see DIN test standards); e) Other information or regulations necessary for success of the treatment (see DIN 6773, DIN EN 10 052, DIN 17021, DIN 17023). In the event that partial hardening is required, drawings must be submitted showing which areas must be hard and which should remain soft. If equivalent workpieces are manufactured from different steel melts, this must be indicated. The delivery papers must likewise state any special requirements for dimensional stability or the surface condition. The contractor must be specially informed of welded or soldered workpieces and hollow-body workpieces. The contractor will check the content of the information provided by the customer to ensure that it is complete. In case of legitimate doubt about a successful heat treatment, the contractor will notify the customer.
2.2. Delivery period The delivery period begins as soon as the parties have clarified the order and the customer has fulfilled all requirements. For technical reasons the delivery period is only approximate and will be extended – even if delivery is already in arrears – by an appropriate length of time if any unforeseeable impediment occurs that the contractor was not able to avert even with all the circumspection called for in the circumstances of the case. Unforeseeable impediments are any unforeseen multiple treatments, serious disruptions in the company’s own operations not caused by negligence, for example due to strikes, lockouts, accidents, transport difficulties, shortage of materials, difficulties with the power supply and operational disruptions in the operations of the suppliers. The contractor bears the burden of proof for this. If the contractor can foresee that he cannot meet the delivery deadline, he will notify the customer of this immediately, informing him of the reason and stating a new possible delivery date.
2.3. Transfer of risk Unless otherwise agreed, the goods for heat treatment are to be delivered by the customer and picked up after completion at his expense and risk. Upon transfer to the railway, shipping agent or carrier and/or upon the start of storage, however no later than upon leaving the factory or warehouse, the risk is transferred to the customer, also if the contractor has used his own vehicle fleet for the pick-up and return delivery.
2.4. Inspection The goods for heat treatment will be inspected in random samples prior to leaving the hardening shop, in accordance with the specifications of the customer, if applicable. Additional inspections will be conducted only on the basis of special agreements. The outgoing goods inspection of the contractor does not exempt the customer from his duty to conduct an incoming goods inspection.
2.5. Defects After the order is placed based on the information pursuant to section 2.1 the desired heat treatment will be conducted as a service with the required care and suitable means. No guarantee is made for the success of the heat treatment, for example for the absence of distortion or cracks, for surface hardness, depth hardening, through-hardening, ability to electroplate, etc. in particular due to potential differences in the hardenability of the material used, hidden defects, unfavourable shapes or any modifications in the preceding work procedure. If the heat treatment is not successful, due to reasons for which the contractor is not responsible, for example because the information provided by the customer as required by section 2.1 was incomplete or incorrect, the contractor was unaware of hidden defects in the workpiece prior to implementing the heat treatment or because properties of the material used, the shape or the condition of the delivered workpieces have made a successful heat treatment impossible, but the contractor was unaware of that fact and could not be aware of it, then the treatment costs must be paid nonetheless. Necessary reworking will be invoiced separately under the aforementioned circumstances. The contractor must be informed in writing of defects immediately after the transfer of risk. Written notification of hidden defects must take place immediately after their discovery, however within 12 months of the transfer of risk, at the latest. This period also applies to the limitation period for claims based on material defects, unless longer periods are prescribed by law, in particular for defects in a building and for workpieces which have been used for a building in accordance with their normal use and which have caused its defectiveness. For each complaint the contractor must be given opportunity for inspection and reworking. If the contractor does not fulfil his obligation of reworking or fails to do so in accordance with the contract within a reasonable period, the customer can, after unsuccessful expiration of an appropriate period stated in writing, lower the price paid for the treatment, cancel the contract or conduct the necessary reworking himself or through a third party at the expense of the contractor. In the event of damages to the goods for heat treatment and other defects of quality caused by the contractor, he will be liable only for the reasonably foreseeable damages typical to the contract. The customer bears the burden of proof of defects.
The warranty periods and limitations also apply to any reworking. If workpieces claimed to be defective have been processed or finished without the written permission of the contractor, the warranty is voided. No claims for defects can be asserted for the reasonable shrinkage that typically occurs for process-related reasons during the hardening of mass-produced articles and mall parts. If the contractor carries out straightening at the request of the customer, he will make no guarantee for any breakage that occurs during the process. If insulating means are used to prevent carburization or nitriding, it is likewise not possible to make any guarantee for the success of the process.
2.6. Liability With respect to the heat treatment to be conducted the customer is responsible for ensuring production of the workpieces in accordance with the state of the art, for providing correct and complete information pursuant to section 2.1 and for a heat treatment regulation that is adapted to the later intended use. The contractor is not liable – unless mutual written agreements to the contrary have been concluded – for damages resulting from a treatment that was recommended by himself and approved by the customer. The execution of extra quality and outgoing inspections undertaken in accordance with the contract does not constitute liability for consequential damages. The contractor assumes that the customer for his part will conduct the inspections necessary for fulfilment of his duty to safeguard traffic. Claims of an indirect nature, especially those resulting from damages to objects that are not identical with the workpiece, will not be recognized by the contractor. The above limitation of liability does not apply in the event of intentional behaviour, gross negligence on the part of the contractor’s legal representatives or executives, or in the event of culpable infringement of substantial contractual obligations. In the event of infringement of substantial contractual obligations the contractor is liable – except in cases of intentional behaviour on the part of his legal representatives or executives – only for the reasonably foreseeable damages typical to the contract. The limitation of liability likewise does not apply in cases in which liability for personal injury or material damage exists in accordance with the Product Liability Act in the event of defects in the delivered products. It also does not apply in the event of injury to life, limb or health and the absence of warranted characteristics or the absence of a guaranteed quality, if and insofar as the purpose of the assurance or the guarantee was to protect the contract party against damages that did not occur to the goods for heat treatment themselves. Insofar as the liability of the contractor is excluded or limited, this applies also to the personal liability of his staff, employees, legal representatives and vicarious agents. The statutory regulations on the burden of proof remain unaffected by this.
2.7. Partnership clause For all compensation, in particular with respect to the amount of the damages, the business circumstances of the contract parties, the type, extent and duration of the business relations and the value of the heat treatment services are to be taken into account in good faith.