Terms and Conditions of POLMONT GmbH
(Terms and Conditions of Sale, Delivery, and Payment for Metal and Metal Casting Products)
1. General / Contract Conclusion
a) We conclude delivery contracts only under the following conditions.
b) Our offers are non-binding. The scope of delivery and performance is determined by the mutual written declarations. Subsequent changes and additions require written form.
c) We do not acknowledge conflicting or deviating terms of the customer, even if we are aware of them and carry out delivery unconditionally, unless we have explicitly accepted them in writing.
d) Our terms apply only to businesses (as defined in § 14 (1) BGB) and also to all future transactions with the customer arising from the ongoing business relationship.
2. Prices
a) Our prices are ex works excluding packaging and VAT.
b) If order-related costs change significantly after contract conclusion, both parties are obligated to agree on a price adjustment.
3. Delivery and Acceptance Obligations
a) Delivery periods start once all execution details are clarified and the customer has fulfilled all requirements. Unless otherwise agreed, the delivery day is the shipping date. If shipping is delayed through no fault of our own, the day of readiness is considered the delivery date. Partial deliveries are allowed unless clearly against the customer’s interests.
b) If timely delivery is hindered by force majeure or unforeseen events beyond our control (e.g., government actions, unrest, supplier failures), the delivery time is extended by the duration of the hindrance. If it lasts over three months, either party may withdraw from the unfulfilled part of the contract without claims for damages.
c) If we are in delay, the customer may set a reasonable grace period and withdraw from the contract after it expires unsuccessfully. Damage claims are limited to foreseeable, contract-typical damages in cases of ordinary negligence.
d) For call-off orders without fixed term, lot size, or deadlines, we may request binding terms three months after order confirmation. If the customer fails to respond within three weeks, we may set a two-week grace period and then withdraw from the contract and claim damages.
e) If the customer requests inspections, type and scope must be agreed. If not agreed upon contract conclusion, the customer bears the cost.
f) If delivery is based on a sample made by us, the customer must inspect and approve it promptly. If approval is not granted within a set grace period for reasons attributable to the customer, we may ship or store it at the customer's expense and risk. Approval is deemed granted.
4. Shipping and Transfer of Risk
a) Risk transfers to the customer once the goods leave our factory (ex-works).
b) If shipping is delayed due to the customer's fault, risk transfers on the day the goods are ready.
5. Dimensions, Weights and Delivery Quantities
a) Compliance with dimensions is based on DIN and EN standards. Otherwise, dimensions and weights in our offers and order confirmations are given to the best of our knowledge. However, they do not constitute guarantees of quality. Minor deviations, especially excess or shortage in weight due to foundry-specific reasons, do not entitle the customer to complaints or defect claims unless otherwise agreed.
b) For series production, an over- or underdelivery of up to 10% compared to the order quantity is permissible due to the nature of the metal casting process.
6. Claims Based on Defects
a) Assertion of defect claims by commercial customers requires that they have properly fulfilled their duties of inspection and complaint under § 377 of the German Commercial Code (HGB). Other business customers must notify us in writing of obvious defects within 14 days of receiving the goods, otherwise their defect claims expire. Complaints must specify the defect.
b) We must be given the opportunity to inspect the alleged defect on-site. Inspection must be carried out immediately if the customer shows interest in a prompt resolution.
c) Claims for defects do not exist for minor deviations from the agreed quality or minor impairments of usability.
d) All our specifications are service descriptions and not guarantees unless otherwise agreed.
e) If a defect is attributable to us, we may choose to rectify it or provide a replacement delivery.
f) If the customer unjustly complains about a defect for which we are not responsible, we may charge them reasonable costs incurred for the inspection or attempted rectification.
g) Additional costs for rectification due to the relocation of the goods are borne by the customer unless such relocation is in accordance with the intended contractual use.
h) Customer’s recourse claims in the context of consumer goods purchases (§ 478 BGB) are excluded where they go beyond statutory defect claims. The customer must inform us promptly of their buyers’ defect claims so that we can, at our discretion, satisfy them directly.
i) Defect claims expire 12 months after delivery unless caused by gross negligence, intent, or fraud. This also applies to claims under guarantees unless they state otherwise. Longer legal limitation periods remain unaffected.
j) Before asserting further rights (withdrawal, reduction, damages), the customer must allow us a reasonable period for rectification. If rectification fails at least twice, is refused, impossible, or unreasonable, the customer may withdraw from the contract or reduce the payment. Damage and expense claims are subject to clause 7.
k) For legal defect claims:
(1) Unless otherwise agreed, we must only ensure that deliveries in the destination country are free of third-party rights.
(2) If a third-party right is infringed, we may obtain a sufficient right of use, modify or replace the product if this does not impair its use. If not possible or refused, legal claims apply. Clause 7 governs damage and expense claims.
l) If samples are provided for inspection, we only guarantee delivery in accordance with the approved sample and any corrections.
7. Damages
a) Damage claims due to defects are excluded if rectification is not possible for reasons beyond our control. Such claims require gross negligence, intent, or breach of essential duties unless otherwise agreed. This applies also to durability guarantees (§ 443 para. 2 BGB).
b) All other damage and expense claims, regardless of legal basis, are excluded unless they involve product liability law, intent, gross negligence, injury to life, body, health, or guarantees. In cases of simple negligence, claims are limited to foreseeable, typical damages. No shift in the burden of proof results from these terms.
c) These exclusions also apply to personal liability of employees, staff, representatives, and vicarious agents.
d) Limitation periods are governed by clause 6 (i) unless product liability law provides otherwise. This includes consequential damages.
e) If we contractually agree to inspect the products for specific properties, we are liable for damages due to neglecting the customer's inspection requirements.
8. Payment Terms
a) Invoices must be paid within 14 days of the invoice date free of charges. Cheques and bills of exchange are accepted only for fulfilment. Associated costs are borne by the customer.
b) Costs for part-specific models and production tools (see clause 10 b) must be paid in advance unless agreed otherwise.
c) Customers may only offset against our claims if theirs are undisputed or legally binding. Rights of retention apply only under the same conditions or for defects proven by third-party confirmation and based on the same contractual relationship.
d) In case of payment delay, we are entitled to charge default interest of 8% above the base interest rate per annum.
9. Retention of Title
a) We retain ownership of delivered items until all payments arising from the business relationship with the customer have been received. If a current account relationship exists, this retention applies until the acknowledged balance has been settled. In case of contractual breach, especially default after a deadline, we may reclaim the goods unless insolvency law prevents this. Reclaimed goods may be sold and proceeds offset against the customer’s liabilities after deducting reasonable sale costs.
b) The customer must handle goods with care and insure them sufficiently against fire, water, and theft at replacement value. Maintenance and inspections must be conducted timely and at the customer's cost.
c) In case of third-party access, especially seizure, the customer must notify us immediately. They are liable for court and legal costs needed to defend our rights.
d) The customer may resell the goods in regular business. However, they hereby assign all resulting claims against buyers or third parties in the amount of our invoice (including VAT), whether or not the goods were processed. The customer may collect the assigned claims unless they default, cease payment, or insolvency proceedings are initiated. Upon request, they must disclose the claims and debtors, provide documentation, notify debtors, and assist with collection unless restricted by insolvency law.
e) Processing or transforming the goods is always done on our behalf. If combined with other materials, we acquire co-ownership in proportion to the value of our goods at processing time.
f) If mixed inseparably with other items, we acquire proportional co-ownership. If the customer's item is considered primary, they must transfer co-ownership accordingly. The customer stores these goods for us.
g) Claims against third parties from incorporating the goods into property are assigned to us for security.
h) We will release securities upon request if their value exceeds the claims secured by more than 25%, selecting which securities to release.
10. Part-Specific Models and Production Equipment
a) If the customer provides models or tools (e.g., molds), they must be sent free of charge. We may request their return; if not collected within 3 months, we may return them at the customer's expense. Maintenance and changes are the customer's responsibility. We may make foundry-related changes and are not obliged to check conformity with drawings or samples unless agreed.
b) If we create or procure tools upon request, the customer must reimburse costs. Partial billing requires full payment if projected quantities are not met. These tools remain our property and are used exclusively for the customer during the contract. If unused for 3 years, we may stop storing them. If the customer becomes the owner, ownership transfers upon full payment, and we retain custody. This arrangement may be canceled after 2 years unless otherwise agreed.
c) We handle all tools with standard care and insure them at the customer’s expense upon request. Consequential damage claims are excluded per clauses 6 (c) and 7.
d) If deliveries are based on customer drawings or instructions that infringe third-party rights, the customer indemnifies us. Our documents, designs, and proposals must not be shared and may be recalled anytime. License claims by the customer are excluded if tools were contractually used.
e) Use of single-use models (e.g., made of polystyrene foam) requires special agreements.
11. Inserted Parts
a) Parts to be inserted must be delivered free of charge, dimensionally accurate, and ready for casting. Any machining costs are borne by the customer.
b) The number of insert parts must exceed the quantity of cast parts ordered accordingly.
12. Ethical and Social Principles
POLMONT affirms its responsibility to uphold social, environmental, and ethical standards based on sustainability. Suppliers are also expected to balance economic growth, environmental preservation, and responsible resource use.
The contractor agrees to comply with the Minimum Wage Act of 11 August 2014 (MiLoG) in its current form and pay employees at least the statutory minimum wage.
13. Place of Performance and Jurisdiction, Applicable Law
Jurisdiction lies with the company's registered office if the customer is a merchant. This also applies to cheque and bill obligations. We may also sue the customer at their place of business.
Status: August 2017
