The following terms have the following meaning in these General Terms and Conditions of Business:
1.1 The Contractor is Formstoff-Weiser.
1.2 The Contracting Party is the customer (e.g. foundries, foundry suppliers) who commissions the Contractor.
2.1 The Contracting Party acknowledges the General Terms and Conditions of Business of the Contractor that are valid at the time the order is placed. The Contractor acts for the Contracting Party exclusively on the basis of these General Terms and Conditions of Business.
2.2 The Contractor does not recognise the general terms and conditions of business of the Contracting Party unless the Contractor has given their written consent to them.
2.3 These present General Terms and Conditions of Business also apply to all future services rendered by the Contractor, even if their inclusion is not expressly agreed upon again.
2.4 The Contracting Parties mutually agree on the time/s and place/s where the services will be rendered. If nothing has been agreed, the Contractor’s main working or opening hours apply; any hours worked in shifts are not taken into account. The Contractor is free to render the service(s) at a location of their choice if rendering the service as a whole or in partial sections at the Contracting Party’s workplace is not absolutely necessary. For the time during which the service is provided at the Contracting Party’s premises, the Contracting Party provides the Contractor with a workplace at their company that is appropriate to the tasks. The latter is to be designed in such a way that the Contractor can carry out their activities to the full extent without any impairment in performance.
3. Contract Conclusion
3.1 All offers made by the Contractor are entirely non-binding.
3.2 A contract is only deemed to have been concluded when the Contracting Party unconditionally accepts an offer made by the Contractor or receives written acceptance of the order from the Contractor or the Contractor starts performing the contract.
3.3 If the Contractor accepts the order in writing, this is decisive for the content and scope of the contract, unless otherwise agreed expressly in writing.
3.4 The object of the order is the agreed service, not the achievement of a certain economic success or the preparation of expert opinions or other works. The Contractor’s services are deemed rendered when the required services have been provided or arranged. Any resulting analyses and recommendations are prepared together with the Contracting Party and are non-binding. It is of no relevance if or when the conclusions or recommendations are implemented. If the Contractor is also meant to prepare a detailed report, this needs to be agreed separately. The report is not an expert opinion, but merely reflects the key contents of the process and the outcome of the service. The Contractor is permitted to use independent subcontractors for executing the order, whereby the Contractor always remains under direct obligation to the Contracting Party. The Contractor decides at their own discretion which employees or companies they use or replace in order to fulfil the contract.
4. Order execution, scope of services
4.1 Unless otherwise agreed, the contractual services to be provided by the Contractor are to be rendered in compliance with the regulations applicable at the time the contract is concluded.
4.2 The delivery and transportation to the Contractor of objects belonging to the Contracting Party, and, in particular, material samples, is to be carried out by the Contracting Party. The latter also covers the costs and bears the risk in this regard.
To the extent that transportation is to be carried out by the Contractor subject to agreement, the Contractor only needs to take out transport insurance against transport damage and other risks at the express request and expense of the Contracting Party.
4.3 When storing the Contracting Party’s objects, the Contractor’s liability is limited to its own customary prudence.
4.4 Subsequent changes and additions to the order or essential work outcomes have to be made in writing in order to be effective. This also applies to the waiver of the written form requirement. The Contractor is obliged to carry out subsequent requests for changes the Contracting Party makes, provided that this can be undertaken without incurring additional costs or postponing deadlines. Otherwise, the Contractor is to inform the Contracting Party within 14 days of the details of the additional expenses required. If the Contracting Party does not confirm the change in writing within a further 14 days, the change request will be deemed to have been cancelled.
4.5 The Contracting Party is obliged to accept the Contractor’s services. They are not entitled to refuse them because of insignificant defects. The Contractor may also demand partial acceptance in the case of self-contained partial services.
4.6 The Contracting Party is obliged to accept the Contractor’s services within 14 days of receipt or the request to receive them. If the Contracting Party fails to comply with this, the service will nevertheless be deemed accepted.
4.7. The Contractor will disclose to the Contracting Party all data which is absolutely necessary for exercising the right of use granted. The parties will mutually agree on the data format and the type of data carriers to be used. If no stipulation is made, the Contractor is free to choose a suitable data format and data carrier.
4.8. The risk and costs of transporting data carriers, files and data online and offline is to be borne by the Contracting Party.
4.9. The Contractor is not liable for data carrier, file and data errors that occur while importing data into the Contracting Party’s system.
5. Duties to cooperate of the Contracting Party
5.1 The Contracting Party is obliged to cooperate insofar as it is required for the Contractor to properly provide their services. The Contracting Party is to provide the Contractor with all the information and documents required for executing the order in full and in good time. This applies in particular to the customer specifications, drawings, factory standards and comparable regulations in the respectively applicable version pertinent to executing the order and the specific commissioning of the service made use of on the basis of an underlying test specification or standard.
5.2 If output statuses or test procedure types give rise to the availability of different options for analysis, the Contracting Party remains responsible for clearly specifying the execution variant they want. The Contractor will support the Contracting Party in an advisory capacity within the framework of their professional expertise.
5.3 If further cooperative action is required from the Contracting Party, they shall provide them in good time and at their own expense. They will only be reimbursed for the costs for this if it has been expressly agreed in writing.
5.4 If the Contracting Party fails to comply with their obligations to cooperate or does not comply with them in time, the Contractor is entitled to charge them for the additional expenses incurred as a result. Further legal claims by the Contractor remain unaffected by this.
5.5 If the Contracting Party orders services based on obsolete editions of standards, test specifications or out-of-date customer specifications and subsequently demands that the Contractor rectify them appropriately after the order has been completed, the Contractor is entitled to bill for both the additional expenses incurred and those incurred in accordance with their price list valid at the time the service is rendered or with a different express individual agreement.
5.6 If the Contracting Party fails to comply with an obligation to cooperate even after the Contractor has requested it expressly and also set a reasonable deadline, the Contractor can stop providing their services, terminate the contract and demand reasonable compensation.
Multiplicity of contracting parties
6.1 In the field of moulding sand analysis, the Contractor is entitled to take charge of similar moulding sand samples from different contracting parties, including those from similar and identical sectors.
The Contractor does not give priority to the interests of one contracting party over the interests of another.
6.2 The Contracting Party does not receive exclusivity for the service. The Contractor is entitled to work in parallel with contracting parties in similar and/or the same sectors.
7. Deadlines and delays
7.1 Information about the duration and completion of the testing services is only approximate unless the Contractor has expressly specified in writing that the testing duration is binding. The start, duration and end can be postponed due to unforeseeable events and circumstances beyond the control of the Contractor.
7.2 Insofar as a delivery and performance time has been agreed for the contractual performance by the Contractor, it does not commence until all the details of the order have been clarified and supplied in full and the Contracting Party has fulfilled their obligations to cooperate. This specifically includes the Contracting Party’s provision of any requisite certificates, documents and test materials.
If the Contracting Party is delayed in their obligation to cooperate, the delivery and performance time will be extended for the duration of the delay.
7.3 The Contractor only enters into default in the event of a fruitless reminder – whereby the reminder can only be issued after a reasonable period of time and must be in text form – after the Contracting Party has reached the due date.
7.4 Costs that the Contractor incurs due to delays for which the Contracting Party is responsible are to be borne by the Contracting Party.
8. Terms of remuneration and payment
8.1 Unless expressly agreed otherwise the prices in the Contractor’s price list valid at the time the service is rendered apply.
8.2 The written order confirmation is decisive for the scope and price of the Contractor’s services. If none is drawn up and issued, the Contractor’s offer and/or the framework agreement which may have been concluded between the contracting parties is authoritative.
8.3 The prices quoted by the Contractor are all net prices. Statutory VAT is not included in the price. It is stated at the statutory rate on the day of invoicing. Further costs incurred (e.g. travel expenses, shipping costs) are itemised separately on the invoice.
8.4 The Contractor’s invoices are to be paid within 14 calendar days of the invoice date without deduction by bank transfer to the Contractor’s business account, unless another method of payment has been agreed. Bills of exchange and credit cards are not accepted.
8.5 If the Contractor does not receive payment within 14 calendar days of the invoice date, the Contracting Party enters into default without any further declaration of intent on the part of the Contractor.
8.6 If the Contracting Party owes interest and costs in addition to an existing principal claim, a payment that is not sufficient to repay the total amount will first be offset against the costs, then against the interest and only finally against the main service.
8.7. If the Contracting Party is in default of payment, the Contractor is entitled to refuse the service owed until the Contracting Party pays the contractually agreed fees, if the Contractor has previously sent at least one unsuccessful reminder for the outstanding liabilities within the deadline. The right of the Contractor to claim damages and their right to extraordinary termination of the contract remain unaffected by this.
8.8 In addition, the Contractor is entitled to claim the default interest to which they are entitled under the statutory provisions. The Contractor reserves the right to claim further damages caused by the delay.
9. Warranty and withdrawal
9.1 The services to be rendered by the Contractor only include the services expressly commissioned by the Contracting Party.
9.2 The test result obtained by the Contractor only refers to the specific material they have tested. The Contractor cannot make any statements about the material tested being of the same type and quality as the rest of the batch of material. The Contractor assumes no liability in this regard.
Also, the test results contain no statements about those materials belonging to the Contracting Party which the Contractor has not themselves tested.
9.3 The Contractor’s warranty obligation is initially limited to supplementary performance within a reasonable period in the form of a repeat test. If this does not dispel the Contracting Party’s doubts or concerns about the test results produced by the Contractor, the Contractor will subsequently commission an independent accredited body to carry out a counter-test of the results after consulting the Contracting Party. In the event that the Contracting Party’s complaints or doubts prove to be incorrect, the Contracting Party will cover the costs incurred for the additional testing work.
9.4 The information provided by the Contractor in brochures, advertising, advertisements, documentation, offers and similar information media merely amount to descriptions and do not contain any guarantee of quality for the Contractor’s services. In order to be effective, any guarantee in individual cases requires the express written agreement of or express written confirmation by the Contractor.
9.5 The Contracting Party must notify the Contractor in text form of the absence of agreed services immediately after receipt of the service, and, in particular, the test report. After the notification deadline has expired, the assertion of corresponding defects is excluded. The Contracting Party must notify the Contractor of hidden defects in text form within 2 weeks of their discovery at the latest. Otherwise, the assertion of warranty claims in this respect is excluded.
9.6 If a notice of defects by the Contracting Party proves to be unjustified, the additional costs incurred as a result are to be covered by the Contracting Party, insofar as they are responsible for this.
9.7 If a defect is caused by circumstances for which the Contracting Party or a third party is responsible, liability for defects by the Contractor is excluded.
9.8 If it proves impossible for the Contractor to complete the service owing to circumstances for which they bear no responsibility, they can demand the part of the agreed fee from the Contracting Party that corresponds to the work performed.
If completion is hindered or delayed by circumstances for which the Contractor bears no responsibility, the Contractor is entitled to withdraw from the contract in whole or part or to postpone the completion date for the duration of the delay/hindrance and a reasonable restart period. The Contracting Party is not entitled to any claims for damages as a result of said type of withdrawal from the contract.
10.1 Irrespective of the legal grounds, the Contractor is only liable for damage if they caused such damage intentionally or by gross negligence or if they negligently breached a material contractual obligation (i.e. cardinal obligation).
10.2 Unless otherwise stated below, liability for further damage not arising from the defective performance itself is excluded.
This specifically applies to claims for damages arising from culpa in contrahendo due to other breaches of obligation or for compensation for property damage arising from tort pursuant to Section 823 GCC (BGB). This also applies insofar as the Contracting Party, instead of making a claim for compensation for damage in lieu of performance, demands compensation for frivolous expenditure, costs for an interruption in operations, costs for loss of production, recall costs or compensation for lost profits.
10.3 The liability exemption above does not apply to claims made by the Contracting Party based on the assumption of a guarantee for the quality, to the liability for damages due to loss of life, limb or health, or loss of life, limb or health based on an intentional or negligent breach of duty by us or our legal representative or vicarious agent, as well as to liability under the Product Liability Act; otherwise, if the cause of the damage is based on intent or gross negligence by us or our legal representative or vicarious agent or a defect was fraudulently concealed by us.
10.4 The liability exemption above does not apply as well if we culpably breach a material contractual obligation, the fulfilment of which is a condition for the proper performance of the contract and on the observance of which the contractual partner may regularly rely.
In this case, however, the liability is limited to the foreseeable, typically occurring damage.
10.5 Insofar as the Contractor’s liability for damage is excluded or limited in accordance with the above provisions, this also applies with regard to the Contractor’s employees’, representatives’ and vicarious agents’ personal liability for damages. The limitations according to Sec. 9.1, 9.2 and 9.3 also apply insofar as the Contracting Party demands compensation for frivolous expenses instead of compensation for damages.
10.5 The Contractor will only be liable for the correctness of the test reports they prepare with regard to the material they specifically tested in each case.
The Contractor does not assume any liability in the event that damage arises from other material they have not tested.
10.6 The Contractor is not liable for damage suffered by third parties.
If the Contractor is liable to third parties in individual cases, the liability exclusions and limitations above apply accordingly.
10.7 The Contracting Party is to notify the Contractor immediately in text form of any damage for which the Contractor is liable.
11.1 The limitation period for claims for defects is 12 months, calculated from the date the Contracting Party receives the relevant service.
The limitation period restriction above does not apply insofar as the law provides for longer limitation periods in accordance with Sec. 438 (1) (2), 634a (1) (2) GCC (BGB) and according to Sec. 478, 479 GCC (BGB); it also does not apply to claims arising from a guarantee or owing to loss of life, limb or
health caused by us or loss of life, limb or health owing to intentional or negligent breach of obligation by a legal representative or vicarious agent of ours.
11.2 The limitation also does not apply in the event of liability for other damage caused by an intentional or grossly negligent breach of duty by us or liability for other damage caused by an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of ours. Furthermore, the limitation does not apply in the event of fraudulent concealment of a defect. Likewise, the limitation of the limitation period does not apply in the case of claims under the Product Liability Act and insofar as we culpably breach a material contractual obligation, the fulfilment of which is a condition for the proper performance of the contract and on the observance of which the contractual partner may regularly rely. The provision concerning the suspension of expiry, suspension and recommencement of the limitation periods in accordance with the statutory provisions remain unaffected by this.
11.3 The statutory limitation periods remain unaffected in the following cases:
– Damages arising from loss of life, limb or health - Damages arising from the negligent breach of an essential contractual obligation - Other damages based on an intentional or grossly negligent breach of obligation by the Contractor, their legal representative or vicarious agent - Claims due to fraudulent concealment of a defect or from a quality guarantee.
12.1 The Contractor agrees not to disclose or pass on any facts and documents that become known to them while rendering the contractual services and relate to the Contracting Party and the object of the order without authorisation. The following form exceptions to this :
– Publication obligations according to the accreditor’s regulations, as well as legal, court-ordered or official obligations to disclose;
– Information that was already known to the Contractor when the contract was concluded or became known afterwards from third parties without this infringing a confidentiality agreement, legal regulation or official order;
– Information that was public knowledge when the contract was concluded or became public knowledge thereafter.
12.2 The Contractor always processes the data provided by the Contracting Party in compliance with the valid and applicable legal data protection provisions.
12.3 The contractual partners are only entitled to pass on confidential information to third parties with the prior written consent of the other contractual partner. This does not affect the right of the Contractor to use the name of the Contracting Party for advertising or
as information to investors and analysts, insofar as the Contracting Party agrees to this in advance.
13.1 The Contractor expressly reserves their copyright to the test results, calculations and similar documents they prepare.
13.2 Laboratory and test reports the Contractor prepares may only be forwarded in complete form. The forwarding of excerpts requires the prior written consent of the Contractor.
13.3 The Contracting Party is not entitled to change the aforementioned reports and results or to use them outside their business operations. Publication or reproduction for advertising purposes requires the prior written consent of the Contractor in each case.
14. Jurisdiction and choice of law
14.1 If the Contracting Party is a registered trader, legal entity under public law or special fund under public law, the exclusive place of jurisdiction is 74821 Mosbach, Germany; however, we are also entitled to bring an action against the Contracting Party at their registered office. If the Contracting Party is a registered trader, legal entity under public law or special fund under public law, place of performance is our registered office in Hardheim, Germany.
14.2 All contractual relations with the Contracting Party are governed solely by the laws of the Federal Republic of Germany to the exclusion of the provisions of international private law (Introductory Act to the German Civil Code (EGBGB)). Application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is excluded and does not apply to the contractual relationship.
15. No offsetting, right of retention clause
15.1 The Contracting Party is only entitled to offsetting and retention rights if their counterclaims have been legally established, are undisputed or have been acknowledged in writing by the Contractor. This does not apply to claims by the Contracting Party owing to defects that are based on the same contractual relationship as the Contractor’s claim for payment.
15.2 The drawings, test results, calculations and other documents produced by the Contractor as a part of the order remain the property of the Contractor until the Contractor’s payment claims against the Client arising from the existing business relationship have been completely fulfilled. In the event of breaches of duty by the customer, in particular default in payment, the Contractor is entitled to take back the documents or to demand their return.
16.1 Subsidiary agreements, commitments and other declarations require the text form to be effective, unless an express individual agreement is made. This also applies to the amendment of this clause, and, in particular, to a waiver of the formal requirement.
16.2 All agreements made between the Contracting Party and the Contractor for the purpose of executing the contract are set out in writing in the (if any) framework agreement, offer and Contractor’s order confirmation and in these General Terms and Conditions of Business. Verbal ancillary agreements do not exist.
16.3 If one of the provisions of these General Terms and Conditions of Business or a part of the agreements between the contracting parties is ineffective or contain a gap, it does not affect the validity of the remaining provisions and agreements. The contracting parties endeavour to replace the ineffective provisions or agreements or close the gaps or the loophole with a provision that comes as close as possible to the purpose intended by the ineffective provision or agreement, taking into account the interests of both parties.
Last updated: 11/2021