General terms and conditions
General terms and conditions of Dressler Group
These general terms and conditions ("GTC") apply to all transactions entered into with one or more of the aforementioned companies ("contractors"), which provide services and/or sell goods to third parties. Deviating provisions of the client shall only become part of the contract if these have been expressly acknowledged in writing by the contractor.
This applies, in particular, to a waiver of the written form requirement.
2. Conclusion and subject matter of the agreement
2.1. Orders will only become binding upon written confirmation by the contractor, including the written recognition of the processing specifications. Individual orders require the written individual order confirmation by the contractor to become effective. This also applies to subsequent individual orders. If the parties agree on a collective order confirmation for recurring serial orders, waiving an individual written confirmation for each subsequent order, the conditions of the collective order confirmation shall apply to all subsequent orders of the client until revoked - in writing - by one of the parties.
2.2 The prices specified in the order confirmation refer to the product characteristics of the raw materials on which the quote is based. If the product and grinding characteristics of the product, which will be ground to the raw material on which the quote was based, change, the contractor reserves the right to review and/or adjust the price unilaterally. The contractor shall notify the client of any deviations in good time. If no new price agreement is reached thereafter, both parties will have the right to withdraw from the contract. The costs incurred by the contractor due to the cancellation of the order shall be borne by the client.
2.3 In principle, the contractor is only obliged to process the raw materials provided to him by the client for the purpose of processing using all the means and technical faciliteis at their disposal.
The client must agree special requirements with the contractor in writing in a specification corresponding to these requirements. This applies in particular if the raw material processed by the contractor is to be used for a purpose that requires a level of purity that exceeds the normal level (e.g. aerospace, automotive industry, visual applications for surface coatings).
If the contractor fails to notify the client of the special use until after the conclusion of the contract, the contractor will be entitled, at their discretion, to charge extra for the additional expenditure caused by the special nature of the raw material to be processed, to withdraw from the contract or to terminate the contract without notice for good cause.
2.4. The contractor, who is not the manufacturer of a product within the meaning of the Regulation for Protection against Hazardous Substances (GefStoffV), the Product Liability Act (ProdHaftG) and Regulation (EC) No 1907/2006 (REACH Regulation) or other relevant provisions, shall process the goods provided by the client in accordance with the terms of the contract.
2.5 The client shall ensure that the raw materials handed over have the quality which they have contractually guaranteed (e.g. with regard to purity and form of packaging). The contractor is not obliged to check the raw materials provided by the client for compliance with the guaranteed product properties.
3. Client's duty to cooperate
3.1. The client undertakes to provide all safety data required for the processing of the goods, including the dust explosion class. In particular, the client shall notify the contractor of all hazard warnings, protective measures or other product characteristics related to safe handling without the need for a formal request. The client shall notify the contractor in writing of any changes to safety data so that the contractor can take them into account when processing the goods. In the case of any claims for damages and/or reimbursement of expenses arising from incorrect or incomplete information provided by the client, these shall be borne exclusively by the client. This also applies to any third-party claims.
3.2. Before placing the product on the market, the client shall check whether the product's safety data have changed after processing in accordance with the ProdHaftG, GefStoffV, REACH Regulation and other relevant provisions.
3.3. The client shall check whether the finished product is suitable for the intended use. The responsibility for releasing the product to be placed on the market lies with the client.
The parties shall treat any internal company information, expertise and technical knowledge (know-how) as confidential. Furthermore, the parties undertake to require all employees who have access to confidential information in connection with the business relationship between the parties to sign a written non-disclosure agreement.
5. Transfer of storage risk
5.1. Any liability of the contractor for loss of or damage to the products and supplies delivered by the client or third parties during the contractor's period of possession shall be governed exclusively by Section 11 of these general terms and conditions. This shall also apply if products or supplies provided by the client are stored at the client's premises.
5.2. The client undertakes to arrange for cover of common business risks such as fire, theft, storm, natural hazards, etc. by taking out adequate insurance policies or by including them in existing insurance policies for outdoor storage facilities taken out by the contractor.
6.1. Deliveries of raw materials and collection of processed goods shall be made by the client, who shall also bear the costs and the risk in this respect. Raw materials delivered to the contractor on or after the earliest delivery date specified in the order confirmation shall be stored free of charge. Raw materials delivered to the contractor before the earliest delivery date shall be stored at a charge. The price for this can be found in the respective valid price list. The earliest delivery date is usually one week before the start of processing.
6.2.Immediately after completion of the processing of the goods, the contractor shall notify the client in writing that the goods are ready for delivery. The finished goods shall be collected within five (5) working days after being notified that the goods are ready for delivery and shall be handed over to the carrier against presentation of a collection order.
6.3. Upon handover of the finished goods to the carrier, all risks shall pass to the client. The transfer of risk shall also occur if the client is in default of acceptance.
6.4. If the finished goods are not collected within five days, the client shall pay a fee for the further storage of the goods amounting to EUR 6.50 per pallet for each commenced week.
6.5. By way of derogation from the above provisions set out in Sections 6.1 - 6.4, the contractor shall arrange for the transport of finished goods ex works of the contractor by a transport company specialised in this field upon the express declaration of the client. This does not give rise to any rights or obligations on part of the contractor, who acts merely as an intermediary without becoming a party to the contract in respect of the transport of the goods. The German Freight Forwarders' Standard Terms and Conditions (ADSp) shall apply in their current version. If this is to be deviated from, in particular, with regard to the limitations of liability contained in the ADSp, the client shall expressly notify the contractor. In this case, the contractor shall arrange for a separate quote for the transport of goods.
6.6. In order to meet the contractor's documentation obligations with regard to securing the load and loading, it is also sufficient if the registration number, the rear of the lorry and the open tailgate with the load visible there or the open side of the lorry after loading can be seen with the help of photographs. Documentation of all loads and their respective securing is not required. The contractor is free to provide other suitable evidence.
Invoicing shall take place on the date of dispatch or notification that goods are ready for dispatch. In the case of partial deliveries, the corresponding partial quantity shall be invoiced.
8. Delivery dates
The delivery dates communicated by the client are non-binding unless the parties have agreed a binding delivery date in writing (fixed-date transaction). Where a binding delivery date has been agreed, delivery dates shall only apply on condition that the raw materials and supplies are delivered on time. In the event of a customer-side delay, the contractor will be entitled to specify a new delivery date by notifying the client in writing. This applies mutatis mutandis in the event of unforeseeable circumstances or force majeure. Once the carrier has been arranged, the client shall be notified in writing that the goods are ready for delivery.
Payment Invoices are payable within 10 days of the date of the invoice, unless other payment terms have been agreed in writing.
10.1. At the factory, the contractor shall carry out production monitoring in accordance with the applicable requirements of EN ISO 9001. If the parties consider more extensive monitoring to be necessary for individual products, this shall be agreed separately. The tests carried out by the contractor do not release the client from the obligation to carry out comprehensive incoming goods inspections for product approval before use, further processing and/or transfer to third parties. In particular, the client shall check whether the finished goods are suitable for the intended use.
10.2. The client is obliged to inspect the goods delivered to them immediately after receipt and before processing for their suitability for the contractually agreed use (quality and purpose). If necessary, the client shall carry out trial processing.
Where the goods are delivered to a third party after processing on behalf of the client, this shall not release them from their contractual obligation to check the goods.
Following the inspection, any obvious defects found shall be promptly notified to the contractor in writing, but within seven days at the latest. If the client fails to notify the contractor, the goods shall be deemed to have been accepted.
Defects that are not immediately recognisable during the inspection shall be notified to the contractor in writing immediately upon discovery. The notice of defects shall include an as detailed description of the defects as possible. If the client fails to notify the contractor promptly, the goods will be deemed accepted despite this defect.
As soon as the client has detected a defect, they shall not start processing the goods or immediately stop processing the goods. If the delivered goods are, nevertheless, further processed by the client, the goods shall be deemed to have been accepted.
Notifications of defects after the end of the above deadlines are legally irrelevant, and any warranty claims are therefore excluded.
10.3. The contractor shall guarantee the processing of the raw materials in such a way that he shall rework products which demonstrably do not comply with the agreed specifications at their own expense or alternatively process a replacement product delivered in the same quantity at their own expense. If rectification is not possible, the contractor shall pay damages for recognised claims to the extent of the product quantity that does not correspond to the contractually guaranteed properties in writing. The amount of compensation shall be limited to the value in EUR/kg corresponding to the subcontracting price in EUR/kg for the defective quantity. Process-related minimal particle residues, such as material abrasion, do not constitute a defect.
10.4. Due to the process, the client must expect a raw material loss of up to 50 kg or 1% of the product quantity. The higher value in each case shall be decisive. The parties agree that the client cannot derive any claims from these deviations in quantity.
11.1. The liability of the contractor is determined exclusively in accordance with the following paragraphs.
11.2. The contractor shall be liable without limitation in the event of damage to property or financial loss caused intentionally or by gross negligence, in the event of intentional, grossly negligent or negligent injury to life, limb or health and in cases of the express and written assumption of a guarantee or a procurement risk. This applies mutatis mutandis to breaches of duty by representatives, employees, other staff and/or vicarious agents of the contractor.
11.3. If and to the extent that the provision under Section 11.2 above does not apply, the contractor shall only be liable for a negligent breach of obligations, which are essential for the proper performance of the contract, and the breach of which would endanger the achievement of the contractual purpose or the fulfilment of which the client may routinely rely upon (material contractual obligations). The contractor's breach of duty shall be deemed equivalent to that of its legal representatives, employees and/or vicarious agents. The contractor's liability is limited to twice the sum of the respective order amount.
11.4. All further claims and rights of the client - irrespective of the legal grounds - are excluded. This also applies to compensation for indirect damage. Similarly, any liability of the contractor towards third parties is excluded. The contractor shall be indemnified by the client against any claims of third parties.
11.5. Insofar as liability is effectively excluded or limited, this shall also apply to the personal liability of the organs, legal representatives, employees, other staff and vicarious agents of the contractor.
11.6. The exclusion of liability does not apply to claims under the Product Liability Act due to a defect following the assumption of a guarantee for the quality of the goods or in the case of maliciously concealed defects and due to damage to health, life and limb
12. Limitation period
All claims of the client due to a material defect will become time-barred within one year after delivery of the goods at the agreed place of delivery.
This does not apply to claims and rights to compensation for damages due to intentional or grossly negligent breach of duty by the contractor, its representatives, employees and/or vicarious agents, as well as any claims due to injury to life, limb and health for which the contractor is responsible.
13. Place of performance and jurisdiction
The place of performance for deliveries, services and payments is the contractor's place of business. The sole place of jurisdiction for any disputes arising from the business relationship between the parties and claims in connection therewith shall be Bonn.
14. Applicable law
Any claims arising from the contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on the Sale of Goods (CISG).
15. Written form
To be effective, any changes or additions to these GTC must be made in writing. This also applies to a waiver of the written form requirement. The written form within the meaning of these GTC requires - even if required elsewhere - the handwritten signature and the transmission of the signed document in the original or by fax.
16. Severability clause and side agreements
If any provision of these terms and conditions is held to be invalid, whether in whole or in part, the validity of the remaining provisions of this agreement will not be affected or impaired thereby. To be effective, any side agreements or deviations from these terms and conditions must be agreed in writing.
The German contract text is the authoritative one. The English translation is for reference and courtesy only.