The quotations, deliveries and services of H+K Beschichtungstechnik GmbH, hereinafter TS H+K, are carried out solely on the basis of these General Terms and Conditions. They also apply to all future business relationships even if they have not been expressly agreed to again. TS H+K does not acknowledge diverging conditions of the customer and they are not binding for TS H+K. They are likewise not binding if counter-confirmations of the customer, especially but not limited to the acceptance of a quotation by TS H+K, are made with reference to the customer’s terms and conditions. The same applies if TS H+K carries out deliveries or services without reservation or accepts payments without reservation. Deviations from these Terms and Conditions are valid only if expressly confirmed in writing by TS H+K. The annulment of this or any other written form requirement in accordance with these Terms and Conditions must be in writing in order to be effective.
I. Quotations and technical documents
The quotation by TS H+K is subject to change and is non-binding, unless otherwise stated in the order confirmation. An order is accepted by TS H+K only by written confirmation (order confirmation). The order confirmation is decisive for the scope of performance of TS H+K. If the order placed contains deviations from the quotation, then they are deemed accepted only with express written confirmation. Subsidiary agreements and amendments must be confirmed in writing by TS H+K. If an order is not confirmed by TS H+K, the delivery note and/or the invoice prepared by TS H+K after fulfilment of the order are considered an order confirmation.
Information in brochures, catalogues and technical documents is non-binding unless it was expressly designated as binding in the order confirmation pursuant to section I (1). TS H+K reserves the ownership and copyrights to illustrations, drawings, calculations and other documents. Without written permission, no documents may be either completely or partially made available to third parties or used for other purposes than those for which they were provided to the customer.
II. Placing of orders
The order placed by the customer must contain all important information for TS H+K about the goods provided by the customer and to be coated by TS H+K (hereinafter also “provided goods”), such as the article name, quantity, dimensions, material and material number and/or material composition, any pre-treatments, and instructions concerning the coating surfaces, coating specifications, thermal treatment, international standards and the value of the provided goods. This also includes information on any other treatment instructions and requirements for storage of the provided goods..
Changes in the material composition and in any necessary pre-treatment of the provided goods (especially but not limited to heat treatment) must be communicated to TS H+K in due time.
TS H+K is entitled to obtain from the customer all additional information deemed necessary for the proper treatment and coating of the provided goods.
III. Services; changes in services; coating centre
The services of TS H+K are listed finally in the order confirmation. If there is no order confirmation or if the TS H+K delivery note and/or invoice apply as the order confirmation pursuant to section I (1), the non-opposed order placement by the customer is decisive.
TS H+K reserves the right to modify the content of the service appropriately at any time, if prior to or at the time of conclusion of the contract the customer has communicated no information or only incomplete or incorrect information that is necessary for submission of a final quotation by TS H+K pursuant to section III (1) above. The customer will bear any costs and delays resulting from the incorrect or incomplete Information.
To the extent that is reasonable for the customer, TS H+K reserves the right to carry out the coating of the provided goods without additional costs for the customer at a different TS H+K coating centre than the centre that receives the order. A change of the coating centre can be considered especially in the following cases:
if the other coating centre is more suitable in a particular case,
if performance of the service is unreasonable or impracticable for the coating centre that receives the order,
if performance of the service is impossible for the coating centre receiving the order due to unforeseeable circumstances beyond the control of TS H+K,
for other reasons that are reasonable for the customer.
IV. Impossibility of service
If it is impossible for TS H+K to render the agreed services, both parties can cancel the contract.
If the impossibility, deterioration or failure of the service is due to a circumstance within the responsibility of the customer, TS H+K is entitled to suitable remuneration of its services and expenses already rendered. This clause does not affect other claims of TS H+K vis-a-vis the customer.
V. Delivery of goods and incoming inspection
The customer shall state the quantity, designation and value of the provided goods on the accompanying documents (delivery note) upon delivery in accordance with the individual order or the order confirmation of TS H+K. Furthermore, the goods shall be accompanied by all information, especially treatment instructions, required for the coating. This also applies to any special requirements to be complied with for storage of highly sensitive substrates; TS H+K shall be remunerated suitably for compliance with such requirements on request, if this was not expressly agreed in writing. For all deliveries from foreign countries, the following additional information is required on a pro forma invoice: single price and total value, number of packages, gross and net weight, country of origin, transport type for delivery and desired transport type for return, if transport is agreed upon. If it was contractually agreed that TS H+K pick up the goods, the above information shall accompany the provided goods to be coated, which must be properly packaged and ready for transport.
TS H+K will not be liable for losses, delays and delivery, confusion etc. resulting from inaccurate labelling and marking of the goods by the customer, his carrier, etc.
The delivered goods must be marked by the customer in a suitable manner, match the specifications and drawings in the order and be in a state that is capable of being coated. A state of incapability of being coated exists in particular in the cases in which TS H+K’s liability is excluded pursuant to section XI (4).
The goods delivered by the customer for coating are subject to a goods receipt inspection by TS H+K, which is limited to a general examination (outer intactness, identity, quantity). The customer will be notified without delay of any defects that are detected.
Delivered goods that do not fulfil the above requirements can be returned by TS H+K at the expense and risk of the customer. TS H+K reserves the right to exercise the rights from section III (2) and section IV. The customer is obligated to compensate all damages, including lost profit, that are incurred as a result of provided goods that are not suitable for coating.
VI. Prices and terms of payment
Unless otherwise stated in the TS H+K order confirmation, the price list that is valid at the time the services are rendered applies for materials, personnel and subsidiary costs, plus the applicable value added tax. All services or deliveries not listed in the order confirmation will be invoiced separately. This applies to any additional expenses that were necessary for performance of the service due to a circumstance within the responsibility of the customer.
Unless otherwise agree, prices are “ex works”, i.e. from the “TS H+K coating centre executing the order”, without transport insurance, packaging and other charges (customs, fees).
TS H+K is entitled to demand a suitable advance payment upon conclusion of the contract. Invoices for advance payments and all other invoices are due immediately upon receipt by the customer with no deductions and payable within 10 days of the invoice date. Bills of exchange and checks will be accepted only as conditional payment subject to the approval of TS H+K. They are deemed payment only after unconditional credit of the payment. The customer shall bear the charges and costs.
The customer is not entitled to a right of setoff, unless the counter-claims are acknowledged by TS H+K, undisputed or recognized by declaratory judgement. A right of retention exists on the part of the customer only if his counter-claim is based on the same contractual relationship and is acknowledged, undisputed or recognized by declaratory judgement, or if TS H+K has grossly infringed its duties from the same contractual relationship despite written warning and has offered no appropriate security.
If invoices that are due for payment are not paid within 10 days of the invoice date, the customer is in default even without a dunning notice. In the event of default TS H+K is entitled, irrespective of other claims, to charge interest on arrears of 8 % above the respective basic interest rate.
No interest will be reimbursed for advance payments.
The stipulated payment dates will also remain in force in the case of delays in delivery without fault on the part of TS H+K.
In case of decreases or increases in costs after the conclusion of the contract, especially due to collective agreements, changes in the prices of materials, or changes in manufacturing costs, TS H+K reserves the right to adjust its prices accordingly.
TS H+K reserves the right to make changes in prices or to invoice additional services in the following cases:
changes in the coating material or in the processing of the goods because the information and documents provided by the customer did not correspond to the actual circumstances or were incomplete,
a change in the type and scope of the services contained in the order confirmation at the request of the customer. If the necessity for such additional services (e.g. special pre-treatment or special holders) arises prior to commencement of the coating, TS H+K will inform the customer of the extra charge prior to starting the coating process.
VII. Transport, packaging and insurance, storage
At the request of the customer, TS H+K shall take over the delivery or removal at the expense and risk of the customer. At the request of the customer, the transport shall be covered by transport insurance, the costs of which shall be borne by the customer. Special requirements of the customer concerning dispatch, transport and transport insurance are to be announced in good time.
Complaints in connection with the dispatch or transport are by the principal on receipt of the deliveries or the transport documents to the last carrier without delay.
Can the delivered packaging for the return transport no longer be used? are used, the packaging provided by TS H+K will be delivered to the the customer will be invoiced.
The objects provided shall be carefully stored during the stay at TS H+K´s Beschichtungszentrum and treated with the care which TS H+K uses in its own affairs. Unless otherwise agreed in writing, TS H+K shall not be liable in particular for damage which may result from the storage of the goods despite the application of reasonable care (rust stains etc.). TS H+K shall only pay damages for damage caused to the items provided, insofar as TS H+K is obligated in accordance with Clause XIII. Any further liability is excluded. TS H+K is not obliged to take out insurance. Anything to the contrary shall only apply if expressly agreed in writing and at the expense of the customer.
VIII. Periods and Deadlines
Periods and deadlines stated by TS H+K are binding only if they are expressly designated in writing as binding and were designated as such in knowledge of all significant circumstances for rendering of its services. Compliance with the delivery obligation of TS H+K assumes in particular the on-time and proper fulfilment of the obligations of the customer. Defences based on non-performance of the contract are reserved. Periods and deadlines that were designated in writing by TS H+K as binding can be changed unilaterally as appropriate, if it turns out that they are based on the lack of knowledge of significant circumstances, beyond the control of TS H+K.
If the customer is in default of acceptance or culpably infringes other duties to cooperate, TS H+K is entitled to demand compensation for damages incurred, including additional expenses. Further damages are reserved.
If the rendering of services is delayed due to measures within the scope of labour disputes, in particular strike or lock-out or other circumstances beyond the control of TS H+K, also affecting TS H+K sub-contractors, there will be a suitable extension of the periods and deadlines, if such obstacles can be proven to have a substantial effect on the completion of the services. This also applies if such circumstances occur after TS H+K is behind schedule. If the extension of the periods and deadlines exceeds a period of six weeks, then both parties are entitled to cancel the contract with respect to the respective scope of services, to the exclusion of all other Claims.
If the customer can be proven to incur damage as a result of delay on the part of TS H+K, the former is entitled to demand compensation for that damage up to the amount of 0.3 % for each full week of delay, but a total of not more than 5 % of TS H+K’s price for the service on those goods that cannot be used on time as a result of the delay. TS H+K is entitled in any case to prove that no damage or substantially lesser damage was incurred. Further claims of the customer are ruled out, unless the delay is based on intentional actions, gross negligence or infringement of an essential contractual obligation. If the customer sets a suitable grace period during TS H+K’s delay and the grace period is not complied with, then the customer is entitled to cancel the contract to the exclusion of further claims subject to the stipulation of section XIII.
IX. Acceptance and transfer of risk
The customer is obligated to accept delivery as soon as he is notified of completion of the TS H+K services. If the customer does accept delivery within 2 weeks of notification, then the acceptance is deemed to have been made, if the legal fiction was referred to in the notification. The acceptance is deemed to have been made if the customer refuses acceptance without being entitled to do so.
The risk of destruction, loss or damage of the goods is transferred to the customer upon dispatch or in case the goods are picked up by the customer upon being made available, or in the case of section VIII (2) at the time in which the customer is in delay of acceptance or debtor’s delay.
If the customer fails to meet a deadline or period set by TS H+K for picking up the customer’s property, then TS H+K can demand suitable warehousing charges for storage of the goods starting from that deadline or the expiration of that period. In this case TS H+K is also authorised to freely choose another suitable storage location, and to have the provided goods insured, always exclusively at the expense and risk of the customer.
X. Reservation of title and right of lien
TS H+K reserves ownership of all components and media used, until all existing claims from the business relationship with the customer have been satisfied. The customer is entitled to resell in normal business transactions the goods on which TS H+K has rendered services; in this case the claim arising from the sale is deemed to be assigned to TS H+K in the proportion of the value of the services secured by TS H+K through the extended reservation of title to the total value of the sold goods.
With respect to all claims from the contract TS H+K is entitled to a right of lien to the goods of the customer that are in the possession of TS H+K on the basis of the contract. The right of lien can also be asserted due to claims from earlier work that has been carried out, spare parts deliveries and other services, insofar as they are in connection with the object of performance. The right of lien applies to other claims from the business relationship if they are undisputed or recognized by declaratory judgement.
XI. Claims based on defects and inspection of goods
TS H+K makes a guarantee for all defects upon transfer of risk, unless a defect is due to a circumstance that is imputed to the customer; this applies in particular to components provided by the customer.
TS H+K gives no guarantee for compliance with the specified mass of the provided goods.
The customer’s claims based on defects are inapplicable if unauthorised modifications have been made to the object of performance on the part of the customer or third parties without the prior express approval of TS H+K, or if the object of performance is used or processed regardless of the defect.
Furthermore, the claims based on defects are inapplicable as follows:
for all differences and damages that result from missing, incorrect, incomplete or inaccurate information of the customer in the order placement or from treatment instructions designated by TS H+K as unsuitable prior to execution of the order;
for damages resulting from the unsuitable composition of the provided goods (material defects, dimensional variations, surface treatments, processing residue or other foreign objects, production errors, improper heat treatment, rust spots, residue that cannot be removed, solder connections, etc.). This applies only if the unsuitability of the provided goods for coating was not obvious to TS H+K.
for the occurrence prior to coating of non-visible spots and other errors due to increased contrast in the coating process;
for reduced resistance to corrosion of stainless steels caused by the coating;
and for the corrosion of the coating-workpiece combination in an electrolytic environment. This applies only if the customer failed to inform TS H+K in writing prior to conclusion of the contract of the electrolytic environment at the site of use of the provided goods to be coated.
Unless expressly stated to the contrary in the TS H+K order confirmation, TS H+K will in particular not be liable for the coated provided goods being suitable for other than normal use or that they fulfil other expectations of the customer.
The removal of defects will be effected by subsequent performance at TS H+K’s choice in the form of rectification or reconstruction. In the case of rectification TS H+K will bear all expenses necessary for the removal of defects (transport, travel, labour and material costs), insofar as they do not increase as a result of the provided goods being transported to another location than the place of performance. If the rectification is not possible for technical reasons or if it fails or if it is not completed due to the fault of TS H+K within a suitable period set by the customer, the customer is entitled to the right of a reduction in price. Cancellation of the contract is permissible only in the event of substantial defects within the responsibility of TS H+K. In the case of successive delivery contracts a partial cancellation with respect to a defective partial delivery can be considered only if adherence to the entire contract is not unreasonable. Subject to section XIII, other claims of any type are ruled out.
The customer’s claims based on damages assume that the former examines the object of performance in accordance with §§ 377 of the German Commercial Code and gives a proper notice of defect. Notification of obvious defects must be made within 3 work days of delivery, hidden defects immediately after their discovery. Notices of defects must be made with a specific description of the defect. The period of limitation for claims based on defects is one year from the transfer of risk.
If claims for defects with respect to coated wear parts are asserted, TS H+K’s liability in the case of normal wear is inapplicable. If there is any doubt, the customer must prove that it is not a case of normal wear.
Prior to dispatch TS H+K will inspect the coated goods, to the usual extent. If the customer requests additional inspections, they will be arranged separately and paid for by the customer. Goods that are delivered and display a defective coating within the functional surface will be sorted out and marked as defective by means of a red tape. The coating service will not be invoiced for these goods.
XII. Liability from warranty of title
The liability of TS H+K for any defects of title is based on section XI and the following provisions:
The liability of TS H+K for any infringement of property rights in connection with the use of the coated provided goods in industrial processes or their conditions of use or with the combination or use of the coated provided goods with other products, is ruled out.
If the combination of coating and provided goods infringes property rights, TS H+K is liable only if the infringement of property rights was recognisable or could have been recognised by TS H+K due to information provided by the customer upon conclusion of the contract.
In the case of defects of title TS H+K, in addition to its rights pursuant to section XI, is also entitled at its choice,
to obtain the required licenses with respect to the infringed property rights,
or to remedy the infringement with respect to the coated provided goods by providing coated goods that are modified to an extent that is reasonable for the customer (i.e. coating with another coating that is just as suitable).
Subject to section XIII, other claims of any type are ruled out.
The customer is obligated to inform TS H+K immediately in writing of any third-party claims asserted and to reserve all protective measures and negotiations for settlement for TS H+K.
The customer cannot assert any claims against TS H+K for damages beyond the claims acknowledged in these Terms and Conditions, especially no claims for compensation of damages, including those from non-contractual liability (excepting the claim pursuant to §§ 1 and 4 of the Product Liability Law), or other rights due to any disadvantages in connection with the contract performance, regardless of the legal basis of such claims. This exclusion of liability does not apply to liability in the case of injury to life, limb and health. Furthermore, it does not apply if the damage is based on intentional behaviour or gross negligence on the part of TS H+K or the negligent infringement of a cardinal duty or essential contractual duty. The liability to pay damages in the case of infringement of cardinal duties or essential contractual duties is limited to the respective foreseeable damage. The customer shall inform TS H+K in writing prior to conclusion of the contract of special risks, atypical damage potentials and unusual extents of damage.
Insofar as the liability of TS H+K is ruled out or limited due to the above, the customer is also obligated to release TS H+K from third-party claims at the first request.
Place of performance and jurisdiction for all services, deliveries and payments is the location of the TS H+K 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 ruled out.