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General terms and Conditions
 

 

 

 

Status: May 2009

I. Validity of the Conditions

These General Terms and Conditions shall apply to all current and future business relations, unless the other party is consumer. Our offers, order confirmations, deliveries, services etc. shall exclusively be made or executed on the basis of these General Terms and Conditions.

They shall therefore also apply to all future business relations, even if the terms and conditions are not expressly re-confirmed. These General Terms and Conditions are deemed to have been accepted at the latest, when the delivery, service etc. is received. Any counter-confirmations by the other party with reference to its own terms and conditions are herewith rejected.

Deviating, conflicting or supplementary terms and conditions shall not become an integral part of the contract, even if they are known to us, unless their validity has been expressly accepted in writing.

II. Offers, conclusion of contracts and remuneration

1. Our offers and order confirmations determine our contract-typical duties as well as the condition and quality of the deliveries, services etc. With regard to these contract-typical duties as well as the condition and quality of the deliveries, services etc., we shall explicitly exclude any public statements from our side or through our agents, especially in advertisements or by way of categorizing certain properties. We shall give advice to the best of our knowledge. All details and information about deliveries, services etc. shall not constitute a contractually agreed condition or quality and shall not release the other party from its duty to carry out its own checks and tests with regard to the intended processes and purposes. The other party does not obtain a warranty in the legal sense from us.

2. Unless otherwise stated, our offers shall be valid for 30 days from the date quoted. The amounts stated in our order confirmation plus the sales tax (VAT) at the currently valid statutory rate shall be applicable.

3. The remuneration has been calculated ex works, while additional deliveries, services etc. shall be charged separately. Should the costs of raw and auxiliary materials, the labour costs and especially the energy costs change that are included in the remuneration, or should new costs arise that may have an impact on executing the delivery, service etc., we shall reserve the right to recalculate the remuneration in the course of a long-term contractual relationship (of more than six months) by taking into account the changing costs. In such case, we shall act with reasonable discretion.

4. Drawings, illustrations, dimensions as well as weight and other data shall only have a binding effect, if agreed so expressly in writing.

5. Customary and reasonable minor devitations in shape, colour, dimensions and weight shall not constitute a defect.

The right to technical modifications as well as modifications as regards the shape, the colour, the dimensions and the weight shall be reserved to the extent as reasonably acceptable.

6. Article § 312, letter e, of the (German) Civil Code (BGB) in the currently valid version shall be expressly excluded for electronic business transactions. Our order confirmation shall be applicable.

7. The contract shall be concluded on condition that we receive the deliveries from our suppliers correctly and right in time. This shall only apply in cases, where non-deliveries are beyond our control, especially when a matching cover transaction has been contracted with our suppliers. The other party shall be informed about such occurrences without any delay, with any amounts received being repaid by return.

III. Intellectual property rights, inspection of the delivery, service etc.

Should the other party make documents available, it shall be liable to us that no third-party rights are infringed by using these documents.

IV. Delivery period and time of performance

1. The delivery period and time of performance shall be jointly fixed. However, we shall only be bound to keep such a delivery period or time of performance, if it has been finally agreed in writing and if all details have been clarified, especially as regards the documents required. The delivery period and time of performance is deemed to have been kept, if the delivery, service etc. has left our premises by this date or if the delivery, service etc. is ready for collection, should the prevention of the dispatch or acceptance have been beyond out control. Deliveries, services etc. on call shall be agreed in writing for each individual item.

2. Should we be prevented from performing our contractual duties by events beyond our control, such as war, civil unrest, natural catastrophes, riots, governmental or state intervention, strikes or lockouts, fire or water damage at our premises or at the premises of one of our suppliers, the delivery period and the time of performance shall be extended for the duration of such impediment plus a reasonable start-up period. If it seems to be impossible or unreasonable for us to execute the delivery, service etc., we shall be entitled to withdraw from the unperformed portion of the contract. The other party shall have the same right with regard to deliveries, services etc., which to perform seems to be unreasonable in view of the delay.

3. We shall be entitled at any time to make partial deliveries, render partial services etc.

4. Should we delay a delivery, service etc., the other party shall be entitled to set a reasonable grace period or issue a written warning. After the grace period has expired or another breach of duty has occurred, the injured party shall be entitled to withdraw from the contract. Any further rights, especially claims for damages, shall be restricted in accordance with Section X below.

V. Production and dispatch

1. The test methods usually applied by us shall be used for examinations and analyses. As a matter of principle, all these tests, examinations and analyses shall be based on the German industrial standards (DIN). The quality of the refractory materials shall be assured by way of statistical quality controls carried out continuously at our premises.

2. We shall only issue material test certificates of any kind, if agreed so in writing, and on the basis of the statistical quality control that is carried out at our premises. In cases of doubt, only a „Works Certificate“ (DIN 50 049-2.1) shall be issued.

3. Carrying out a mere quality inspection cannot substitute the duty to inspect and issue a notice of defects. The other party shall be responsible for observing statutory, official or any other regulations and provisions with regard to our deliveries, services etc.

4. The other party shall use our deliveries, services etc. in accordance with the intended purpose, store them properly, if applicable, and protect them against adverse conditions. The contract-typical wear and tear shall exclude any violation of duties on our part.

We can neither be held liable for the export capability of our deliveries, services etc. nor that our deliveries, services etc. get an import permit or that they can be freely imported, if the other party wishes to export our deliveries, services etc. into other countries or process them there.

VI. Acceptance and shipment, passing of risk:

1. Deliveries, services etc. accepted before the shipment are deemed to have been manufactured in accordance with the agreed conditions.

2. Should deliveries, services etc. ready for collection by and at the disposal of the other party remain at our premises for reasons beyond our control, immediate payment can be demanded by observing the agreed payment conditions. The deliveries, services etc. shall then be on account of the other party and the risk shall pass accordingly. This shall not affect our right to demand acceptance.

3. Shipments shall exclusively be made in the name and at the risk of the other party. The other party shall advance, or bear any possible claims for, charges and commission, storage fees, interest etc.; in as much, the other party shall also indemnify us in our capacity as the sender from any such claims.

VII. Invoice and payment

1. The weight established by us shall be applicable when determining the weight of the deliveries, services etc.

In the case of bulk shipments and packages, the weight shall be established as customary in the trade, i.e. gross for net, so that the weight of the deliveries, services etc. including the packaging shall be applicable.

2. Packaging costs shall be borne by the other party. One-way packaging material cannot be returned to us, but we shall inform the other party about a third party that will treat the packaging material in accordance with the statutory, official or other regulations and provisions.

3. Invoices, also for partial deliveries and services, will be issued at once and shall be due for payment immediately. We shall be under no obligation to accept bills and checks. The amount is deemed to have been remitted if, in the case of bills and checks, final payment has been received.

4. Unless the law stipulates an earlier deadline, the payment is deemed to be in default upon expiration of the time specified  for the payment of the invoice, for which no reminder or any other prerequisite is required. In the event of a payment delay, we shall be entitled to demand interest at the statutory rate from the defaulting party. Irrespective of that, we shall be free to prove a higher claim. The other party shall only be entitled to offset its claims against our claims, if the counterclaim is not disputed by us or has been finally established by the courts. The other party can only exercise its right of retention, if its counterclaim is based on the same legal circumstances.

VIII. Reservation of title

1. We shall reserve the title to our deliveries, services etc. under exclusion of Article § 449 BGB in the currently valid version, until all accounts resulting from this contract or earlier contracts or any other legal relations between the parties involved have been settled, especially possible liabilities on current account.

a) In the event of a payment default, of a major deterioration of the other party’s financial circumstances or of the institution of insolvency proceedings over the assets of the other party, either in or out of court, we shall be entitled, without withdrawing from the contract and at our own discretion, to demand the separate storage of our deliveries, services etc. or their return, or their re-possession or to have them re-possessed, in which case the costs incurred, especially for the return shipment, shall be borne by the other party. The same shall apply, if justified doubts about the other party’s solvency or willingness to pay arise, after the delivery, service etc. has been made or performed.

b) The other party shall be entitled to use the deliveries, services etc. in its ordinary course of business, as long as it does not default on the payment. Should new goods be generated as a result of processing the deliveries, services etc., we shall acquire the co-ownership in them in the proportion between the value of the deliveries, services etc. concerned and provided by us and that of the new goods created at the time of their creation. The same shall apply to a connection with goods not belonging to us. The other party shall safekeep the new goods on our behalf that have been generated as a result of the processing or such a connection.

c) The other party shall not be entitled to pledge the deliveries, services etc. or to use them as security. We shall be informed without any delay, if other creditors attempt to execute a garnishment.

d) As long as the other party does not default on the payment, it shall be entitled to utilize the deliveries, services etc. in its ordinary course of business. Any claims arising from such business activities have been assigned to us herewith, irrespective whether the deliveries, services etc. are transferred without being processed or after such processing and whether they are transferred to one or several recipients. The claims thus assigned to us shall secure the value of the deliveries, services etc. made or performed. Should the deliveries, services etc. be transferred by the other party together with other goods and items not belonging to us, without being processed or after such processing, the assignment shall only cover the claim amounting to the value of our deliveries, services etc.

The other party shall undertake to disclose the names of third-party debtors and the amounts owed, if requested to do so. Under the circumstances referred to under letter a) above, we shall be entitled to inform the third-party debtor about the assignment and to assert the claim assigned to us.

The other party shall only be entitled to collect assigned claims, as long as it performs its duties towards us. Any amounts collected in cash shall become our property at once and shall be kept separately. The other party shall remit the collected amounts at once, as soon as our claims become due. The other party shall not be entitled to assign such claims to third parties.

e) We shall be under the obligation at the other party’s request, to release parts of the securities, at the other party’s own choice, if the value of the securities held by us exceeds the other party’s claims by more than 20 %.

f) If a security given to us becomes invalid or otherwise unavailable and if the other party has not provided any other sufficient securities, we shall be entitled to demand other securities at any time.

g) The reservation of title and the securities to which we are entitled shall be maintained until we are completely released from the contingencies and commitments which we have entered into in the interest of the other party.

IX. Default in performance, breach of duty, defects in quality, legal imperfections

1. The other party shall report defects in writing immediately after they have been established. Faults as to the weight, the number of pieces or the external conditions of the deliveries, services etc. must be reported immediately, but not later than 14 days after receipt of the deliveries, services etc. by the other party. Likewise, any other justified complaints about contract-typical duties and conditions, such as the physical or chemical composition, can only be dealt with, if the complaint has been lodged in writing immediately after the defect has been established. Specific features and properties of the deliveries, services etc. that have been checked by the other party before the shipment and that have not been objected to cannot be complained about at a later point in time. Nor can any such defects be claimed after the resale, the processing or the installation that can only be established immediately after the deliveries, services etc. have been received.

As a matter of principle, we do not warrant the durability of the deliveries, services etc. for any specific period of time. Implied warranties shall be expressly excluded.

2. Claims possibly arising from defective deliveries, services etc. can only refer to defects affecting individual items, unless a statistical quality control has been specifically agreed.

If such a statistical quality control has been agreed, it shall be carried out at our premises, with each party involved bearing its own costs.

A statistical quality control with a positive result, in which to participate a representative of the other party had the opportunity, shall exclude any subsequent complaints about the specific features and properties of the deliveries, services etc. which have been the subject of that control.

The sampling shall be carried out in any case in accordance with DIN standard 51061 „The testing of ceramic raw and other materials, The sampling of ceramic raw materials and unformed refractories“.

If the acceptance of the deliveries, services etc. by the other party has been agreed, it shall take place by way of a statistical quality control at the manufacturer’s premises; if defects are established in individual samples only that remain below the agreed acceptable quality level (AQL), the other party shall not be entitled to file a notice of defect. If further defects are established beyond the AQL, we shall sort out and replace the defective items to such an extent as possible. Following that, the control shall be repeated. If further defects beyond the AQL are established or if the defective items cannot be replaced, the other party can refuse the acceptance of the entire lot. An inspection with a positive result, in which to participate a representative of the other party had the opportunity, shall exclude any subsequent complaints about the specific features and properties of the deliveries, services etc. which have been the subject of that inspection.

Should the agreed acceptance be carried out by the other party in any other way but as a statistical quality control, the other party can only file complaints about defects that have not been identified during the acceptance.

3. After a notice of defect has turned out to be justified, we shall guarantee, at our own option, subsequent performance or replacement delivery. Should the purchase order include the construction or assembly documents and the other party has received incorrect assembly or installation instructions, we shall only be under the obligation to supply correct assembly or installation instructions and only then, when the incorrect assembly or installation instructions prevent the proper assembly or installation. The warranty period shall be one year. This shall not be applicable, if the other party has not reported the defect right in time pursuant to sub-section 1 above. Any claims of the other party arising from a violation of contract-typical duties shall also become statute-barred after one year. This one-year period shall be disregarded, if longer periods apply in accordance with statutory provisions in their currently valid version, if we are found to be guilty of gross negligence or in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

4. If supplementary performance fails to remedy the defect, the other party can demand, at its own choice, a reduction in price or the withdrawal from contract. However, a minor breach of contract, especially in the case of minor defects, shall not entitle the other party to withdraw from the contract.

Should, in view of a defect in quality or a legal imperfection, the other party opt for a withdrawal from contract after supplementary performance has failed, it shall not be entitled to claim damages because of the defect.

Should the other party opt for damages after supplementary performance has failed, the delivery, service etc. shall remain with the other party, if this is reasonable. The damages shall be limited to the difference between the remuneration agreed and the value of the defective delivery, service etc. This shall not apply, if we are found to have caused the breach of contract with malicious intent.

5. In the case of disputes about the agreed chemical composition or the physical condition of the materials used, the expert opinion of the Institut für Gesteinshüttenkunde der TH Aachen or that of the Institut für Steine und Erden der TU Clausthal-Zellerfeld or that of the Essen-based Rheinisch-Westfälischer TÜV or that of the Bonn-based DIFK Deutsches Institut für Feuerfest und Keramik GmbH shall be applicable at our own choice. Samples shall only be taken jointly. The costs of the tests and analyses (to be) carried out shall be borne by the defeated party.

6. If we perform fault checks and arrange replacement deliveries or the subsequent performance at the other party’s request and it turns out that we have been under no obligation to do so, the other party shall pay for these services in accordance with the usual order conditions.

X. Limitations of liability

1. In the event of a minor and negligent breach of duty, our liability shall be limited to the predictable, contract-typical, direct average damage, depending on the type of delivery, service etc. This shall also be applicable in the event of a minor and negligible breach of duty caused by our legal representatives or vicarious agents.

We shall not assume any liability at all for a minor and negligible breach of an insignificant contractual duty.

2. The above limitations of liability shall not concern the other party’s claims arising from the product liability. Nor shall these limitations of liability apply in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

3. The other party’s claims for damages arising from defects shall become statute-barred after one year from the date of making the delivery, rendering the service etc. This shall not apply, if we are found to be guilty of gross negligence or in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

XI. Data protection

We shall be entitled to collect, store, modify, transmit or use the other party’s data which we have obtained in the course of our business relationship, provided these data are at the other party’s own disposal.
 
XII. General provisions

1. The place of performance for our deliveries, services etc. is our registered office.

2. These General Terms and Conditions as well as all legal relations between the parties involved shall be governed by the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in its currently valid version shall be excluded.

3. Legal proceedings in the case of disputes arising from the business relationship shall be brought before the court which is responsible for our registered office, if the other party is a general merchant, a legal entity of the public law or a public-law special fund. However, we shall be entitled to take the other party to any competent court. Should one of the contracting parties not have a place of jurisdiction in the Federal Republic of Germany, the court in charge of our registered office shall be competent in such matters.

4. Should any one or several provisions of these General Terms and Conditions or a provision in another agreement be or become ineffective, the validity of the remaining provisions hereof or the agreements as a whole shall not be affected.

Download: Terms and Condition (PDF)

General terms and Conditions
 

 

 

 

Status: May 2009

I. Validity of the Conditions

These General Terms and Conditions shall apply to all current and future business relations, unless the other party is consumer. Our offers, order confirmations, deliveries, services etc. shall exclusively be made or executed on the basis of these General Terms and Conditions.

They shall therefore also apply to all future business relations, even if the terms and conditions are not expressly re-confirmed. These General Terms and Conditions are deemed to have been accepted at the latest, when the delivery, service etc. is received. Any counter-confirmations by the other party with reference to its own terms and conditions are herewith rejected.

Deviating, conflicting or supplementary terms and conditions shall not become an integral part of the contract, even if they are known to us, unless their validity has been expressly accepted in writing.

II. Offers, conclusion of contracts and remuneration

1. Our offers and order confirmations determine our contract-typical duties as well as the condition and quality of the deliveries, services etc. With regard to these contract-typical duties as well as the condition and quality of the deliveries, services etc., we shall explicitly exclude any public statements from our side or through our agents, especially in advertisements or by way of categorizing certain properties. We shall give advice to the best of our knowledge. All details and information about deliveries, services etc. shall not constitute a contractually agreed condition or quality and shall not release the other party from its duty to carry out its own checks and tests with regard to the intended processes and purposes. The other party does not obtain a warranty in the legal sense from us.

2. Unless otherwise stated, our offers shall be valid for 30 days from the date quoted. The amounts stated in our order confirmation plus the sales tax (VAT) at the currently valid statutory rate shall be applicable.

3. The remuneration has been calculated ex works, while additional deliveries, services etc. shall be charged separately. Should the costs of raw and auxiliary materials, the labour costs and especially the energy costs change that are included in the remuneration, or should new costs arise that may have an impact on executing the delivery, service etc., we shall reserve the right to recalculate the remuneration in the course of a long-term contractual relationship (of more than six months) by taking into account the changing costs. In such case, we shall act with reasonable discretion.

4. Drawings, illustrations, dimensions as well as weight and other data shall only have a binding effect, if agreed so expressly in writing.

5. Customary and reasonable minor devitations in shape, colour, dimensions and weight shall not constitute a defect.

The right to technical modifications as well as modifications as regards the shape, the colour, the dimensions and the weight shall be reserved to the extent as reasonably acceptable.

6. Article § 312, letter e, of the (German) Civil Code (BGB) in the currently valid version shall be expressly excluded for electronic business transactions. Our order confirmation shall be applicable.

7. The contract shall be concluded on condition that we receive the deliveries from our suppliers correctly and right in time. This shall only apply in cases, where non-deliveries are beyond our control, especially when a matching cover transaction has been contracted with our suppliers. The other party shall be informed about such occurrences without any delay, with any amounts received being repaid by return.

III. Intellectual property rights, inspection of the delivery, service etc.

Should the other party make documents available, it shall be liable to us that no third-party rights are infringed by using these documents.

IV. Delivery period and time of performance

1. The delivery period and time of performance shall be jointly fixed. However, we shall only be bound to keep such a delivery period or time of performance, if it has been finally agreed in writing and if all details have been clarified, especially as regards the documents required. The delivery period and time of performance is deemed to have been kept, if the delivery, service etc. has left our premises by this date or if the delivery, service etc. is ready for collection, should the prevention of the dispatch or acceptance have been beyond out control. Deliveries, services etc. on call shall be agreed in writing for each individual item.

2. Should we be prevented from performing our contractual duties by events beyond our control, such as war, civil unrest, natural catastrophes, riots, governmental or state intervention, strikes or lockouts, fire or water damage at our premises or at the premises of one of our suppliers, the delivery period and the time of performance shall be extended for the duration of such impediment plus a reasonable start-up period. If it seems to be impossible or unreasonable for us to execute the delivery, service etc., we shall be entitled to withdraw from the unperformed portion of the contract. The other party shall have the same right with regard to deliveries, services etc., which to perform seems to be unreasonable in view of the delay.

3. We shall be entitled at any time to make partial deliveries, render partial services etc.

4. Should we delay a delivery, service etc., the other party shall be entitled to set a reasonable grace period or issue a written warning. After the grace period has expired or another breach of duty has occurred, the injured party shall be entitled to withdraw from the contract. Any further rights, especially claims for damages, shall be restricted in accordance with Section X below.

V. Production and dispatch

1. The test methods usually applied by us shall be used for examinations and analyses. As a matter of principle, all these tests, examinations and analyses shall be based on the German industrial standards (DIN). The quality of the refractory materials shall be assured by way of statistical quality controls carried out continuously at our premises.

2. We shall only issue material test certificates of any kind, if agreed so in writing, and on the basis of the statistical quality control that is carried out at our premises. In cases of doubt, only a „Works Certificate“ (DIN 50 049-2.1) shall be issued.

3. Carrying out a mere quality inspection cannot substitute the duty to inspect and issue a notice of defects. The other party shall be responsible for observing statutory, official or any other regulations and provisions with regard to our deliveries, services etc.

4. The other party shall use our deliveries, services etc. in accordance with the intended purpose, store them properly, if applicable, and protect them against adverse conditions. The contract-typical wear and tear shall exclude any violation of duties on our part.

We can neither be held liable for the export capability of our deliveries, services etc. nor that our deliveries, services etc. get an import permit or that they can be freely imported, if the other party wishes to export our deliveries, services etc. into other countries or process them there.

VI. Acceptance and shipment, passing of risk:

1. Deliveries, services etc. accepted before the shipment are deemed to have been manufactured in accordance with the agreed conditions.

2. Should deliveries, services etc. ready for collection by and at the disposal of the other party remain at our premises for reasons beyond our control, immediate payment can be demanded by observing the agreed payment conditions. The deliveries, services etc. shall then be on account of the other party and the risk shall pass accordingly. This shall not affect our right to demand acceptance.

3. Shipments shall exclusively be made in the name and at the risk of the other party. The other party shall advance, or bear any possible claims for, charges and commission, storage fees, interest etc.; in as much, the other party shall also indemnify us in our capacity as the sender from any such claims.

VII. Invoice and payment

1. The weight established by us shall be applicable when determining the weight of the deliveries, services etc.

In the case of bulk shipments and packages, the weight shall be established as customary in the trade, i.e. gross for net, so that the weight of the deliveries, services etc. including the packaging shall be applicable.

2. Packaging costs shall be borne by the other party. One-way packaging material cannot be returned to us, but we shall inform the other party about a third party that will treat the packaging material in accordance with the statutory, official or other regulations and provisions.

3. Invoices, also for partial deliveries and services, will be issued at once and shall be due for payment immediately. We shall be under no obligation to accept bills and checks. The amount is deemed to have been remitted if, in the case of bills and checks, final payment has been received.

4. Unless the law stipulates an earlier deadline, the payment is deemed to be in default upon expiration of the time specified  for the payment of the invoice, for which no reminder or any other prerequisite is required. In the event of a payment delay, we shall be entitled to demand interest at the statutory rate from the defaulting party. Irrespective of that, we shall be free to prove a higher claim. The other party shall only be entitled to offset its claims against our claims, if the counterclaim is not disputed by us or has been finally established by the courts. The other party can only exercise its right of retention, if its counterclaim is based on the same legal circumstances.

VIII. Reservation of title

1. We shall reserve the title to our deliveries, services etc. under exclusion of Article § 449 BGB in the currently valid version, until all accounts resulting from this contract or earlier contracts or any other legal relations between the parties involved have been settled, especially possible liabilities on current account.

a) In the event of a payment default, of a major deterioration of the other party’s financial circumstances or of the institution of insolvency proceedings over the assets of the other party, either in or out of court, we shall be entitled, without withdrawing from the contract and at our own discretion, to demand the separate storage of our deliveries, services etc. or their return, or their re-possession or to have them re-possessed, in which case the costs incurred, especially for the return shipment, shall be borne by the other party. The same shall apply, if justified doubts about the other party’s solvency or willingness to pay arise, after the delivery, service etc. has been made or performed.

b) The other party shall be entitled to use the deliveries, services etc. in its ordinary course of business, as long as it does not default on the payment. Should new goods be generated as a result of processing the deliveries, services etc., we shall acquire the co-ownership in them in the proportion between the value of the deliveries, services etc. concerned and provided by us and that of the new goods created at the time of their creation. The same shall apply to a connection with goods not belonging to us. The other party shall safekeep the new goods on our behalf that have been generated as a result of the processing or such a connection.

c) The other party shall not be entitled to pledge the deliveries, services etc. or to use them as security. We shall be informed without any delay, if other creditors attempt to execute a garnishment.

d) As long as the other party does not default on the payment, it shall be entitled to utilize the deliveries, services etc. in its ordinary course of business. Any claims arising from such business activities have been assigned to us herewith, irrespective whether the deliveries, services etc. are transferred without being processed or after such processing and whether they are transferred to one or several recipients. The claims thus assigned to us shall secure the value of the deliveries, services etc. made or performed. Should the deliveries, services etc. be transferred by the other party together with other goods and items not belonging to us, without being processed or after such processing, the assignment shall only cover the claim amounting to the value of our deliveries, services etc.

The other party shall undertake to disclose the names of third-party debtors and the amounts owed, if requested to do so. Under the circumstances referred to under letter a) above, we shall be entitled to inform the third-party debtor about the assignment and to assert the claim assigned to us.

The other party shall only be entitled to collect assigned claims, as long as it performs its duties towards us. Any amounts collected in cash shall become our property at once and shall be kept separately. The other party shall remit the collected amounts at once, as soon as our claims become due. The other party shall not be entitled to assign such claims to third parties.

e) We shall be under the obligation at the other party’s request, to release parts of the securities, at the other party’s own choice, if the value of the securities held by us exceeds the other party’s claims by more than 20 %.

f) If a security given to us becomes invalid or otherwise unavailable and if the other party has not provided any other sufficient securities, we shall be entitled to demand other securities at any time.

g) The reservation of title and the securities to which we are entitled shall be maintained until we are completely released from the contingencies and commitments which we have entered into in the interest of the other party.

IX. Default in performance, breach of duty, defects in quality, legal imperfections

1. The other party shall report defects in writing immediately after they have been established. Faults as to the weight, the number of pieces or the external conditions of the deliveries, services etc. must be reported immediately, but not later than 14 days after receipt of the deliveries, services etc. by the other party. Likewise, any other justified complaints about contract-typical duties and conditions, such as the physical or chemical composition, can only be dealt with, if the complaint has been lodged in writing immediately after the defect has been established. Specific features and properties of the deliveries, services etc. that have been checked by the other party before the shipment and that have not been objected to cannot be complained about at a later point in time. Nor can any such defects be claimed after the resale, the processing or the installation that can only be established immediately after the deliveries, services etc. have been received.

As a matter of principle, we do not warrant the durability of the deliveries, services etc. for any specific period of time. Implied warranties shall be expressly excluded.

2. Claims possibly arising from defective deliveries, services etc. can only refer to defects affecting individual items, unless a statistical quality control has been specifically agreed.

If such a statistical quality control has been agreed, it shall be carried out at our premises, with each party involved bearing its own costs.

A statistical quality control with a positive result, in which to participate a representative of the other party had the opportunity, shall exclude any subsequent complaints about the specific features and properties of the deliveries, services etc. which have been the subject of that control.

The sampling shall be carried out in any case in accordance with DIN standard 51061 „The testing of ceramic raw and other materials, The sampling of ceramic raw materials and unformed refractories“.

If the acceptance of the deliveries, services etc. by the other party has been agreed, it shall take place by way of a statistical quality control at the manufacturer’s premises; if defects are established in individual samples only that remain below the agreed acceptable quality level (AQL), the other party shall not be entitled to file a notice of defect. If further defects are established beyond the AQL, we shall sort out and replace the defective items to such an extent as possible. Following that, the control shall be repeated. If further defects beyond the AQL are established or if the defective items cannot be replaced, the other party can refuse the acceptance of the entire lot. An inspection with a positive result, in which to participate a representative of the other party had the opportunity, shall exclude any subsequent complaints about the specific features and properties of the deliveries, services etc. which have been the subject of that inspection.

Should the agreed acceptance be carried out by the other party in any other way but as a statistical quality control, the other party can only file complaints about defects that have not been identified during the acceptance.

3. After a notice of defect has turned out to be justified, we shall guarantee, at our own option, subsequent performance or replacement delivery. Should the purchase order include the construction or assembly documents and the other party has received incorrect assembly or installation instructions, we shall only be under the obligation to supply correct assembly or installation instructions and only then, when the incorrect assembly or installation instructions prevent the proper assembly or installation. The warranty period shall be one year. This shall not be applicable, if the other party has not reported the defect right in time pursuant to sub-section 1 above. Any claims of the other party arising from a violation of contract-typical duties shall also become statute-barred after one year. This one-year period shall be disregarded, if longer periods apply in accordance with statutory provisions in their currently valid version, if we are found to be guilty of gross negligence or in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

4. If supplementary performance fails to remedy the defect, the other party can demand, at its own choice, a reduction in price or the withdrawal from contract. However, a minor breach of contract, especially in the case of minor defects, shall not entitle the other party to withdraw from the contract.

Should, in view of a defect in quality or a legal imperfection, the other party opt for a withdrawal from contract after supplementary performance has failed, it shall not be entitled to claim damages because of the defect.

Should the other party opt for damages after supplementary performance has failed, the delivery, service etc. shall remain with the other party, if this is reasonable. The damages shall be limited to the difference between the remuneration agreed and the value of the defective delivery, service etc. This shall not apply, if we are found to have caused the breach of contract with malicious intent.

5. In the case of disputes about the agreed chemical composition or the physical condition of the materials used, the expert opinion of the Institut für Gesteinshüttenkunde der TH Aachen or that of the Institut für Steine und Erden der TU Clausthal-Zellerfeld or that of the Essen-based Rheinisch-Westfälischer TÜV or that of the Bonn-based DIFK Deutsches Institut für Feuerfest und Keramik GmbH shall be applicable at our own choice. Samples shall only be taken jointly. The costs of the tests and analyses (to be) carried out shall be borne by the defeated party.

6. If we perform fault checks and arrange replacement deliveries or the subsequent performance at the other party’s request and it turns out that we have been under no obligation to do so, the other party shall pay for these services in accordance with the usual order conditions.

X. Limitations of liability

1. In the event of a minor and negligent breach of duty, our liability shall be limited to the predictable, contract-typical, direct average damage, depending on the type of delivery, service etc. This shall also be applicable in the event of a minor and negligible breach of duty caused by our legal representatives or vicarious agents.

We shall not assume any liability at all for a minor and negligible breach of an insignificant contractual duty.

2. The above limitations of liability shall not concern the other party’s claims arising from the product liability. Nor shall these limitations of liability apply in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

3. The other party’s claims for damages arising from defects shall become statute-barred after one year from the date of making the delivery, rendering the service etc. This shall not apply, if we are found to be guilty of gross negligence or in the event of injury to body and health as well as the other party’s loss of life for which we are to blame.

XI. Data protection

We shall be entitled to collect, store, modify, transmit or use the other party’s data which we have obtained in the course of our business relationship, provided these data are at the other party’s own disposal.
 
XII. General provisions

1. The place of performance for our deliveries, services etc. is our registered office.

2. These General Terms and Conditions as well as all legal relations between the parties involved shall be governed by the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in its currently valid version shall be excluded.

3. Legal proceedings in the case of disputes arising from the business relationship shall be brought before the court which is responsible for our registered office, if the other party is a general merchant, a legal entity of the public law or a public-law special fund. However, we shall be entitled to take the other party to any competent court. Should one of the contracting parties not have a place of jurisdiction in the Federal Republic of Germany, the court in charge of our registered office shall be competent in such matters.

4. Should any one or several provisions of these General Terms and Conditions or a provision in another agreement be or become ineffective, the validity of the remaining provisions hereof or the agreements as a whole shall not be affected.

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