General Terms and Conditions
(Version dated: June 2017)
1. Scope of application, General
1.1 These general terms and conditions of supply and payment (referred to in this document as "terms of supply and payment") apply to all business transactions entered into by ARNOLD UMFORMTECHNIK GmbH & Co. KG (referred to in this document as "ARNOLD UMFORMTECHNIK") with its customers (referred to in this document as "Customer"). The terms of supply and payment apply only where the customer is a business (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law. The current applicable version of the terms of supply and payment can be downloaded from www.arnold-fastening.com.
1.2 These terms of supply and payment apply exclusively. ARNOLD UMFORMTECHNIK does not recognize any terms and conditions used by the customer that contradict or diverge from these terms of supply and payment unless their application has expressly agreed to by ARNOLD UMFORMTECHNIK. These terms of supply and payment also apply even if ARNOLD UMFORMTECHNIK supplies goods to the customer without reservation while being aware of the contradictory or diverging terms and conditions of supply and payment.
1.3 In specific cases, any agreements entered into individually with the customer take precedence over these terms of supply and payment. Subject to evidence to the contrary, a contract in writing or written confirmation from ARNOLD UMFORMTECHNIK is the decisive authority for the content of such agreements.
1.4 Any legally effective representations and notices submitted by the customer to ARNOLD UMFORMTECHNIK after the date of entering into the contract (for example, changes to dates, notice of defects, revocation of or reduction to the contract), must be given in writing, in other words in writing or typed (e.g. by letter, email, or fax). Formal statutory requirements and further evidence, in particular in the case of doubt regarding the legitimation of the declaring party, are unaffected by this clause.
1.5 References to the applicability of statutory regulations are for the purposes of clarification only. Even where no such clarification is provided, the statutory regulations therefore apply provided that they have not been directly altered or expressly excluded within these terms of supply and payment.
2. Entry into contract
2.1 Quotations issued by ARNOLD UMFORMTECHNIK are provisional and non-binding. This also applies where ARNOLD UMFORMTECHNIK provides the customer with catalogues, technical documentation, and other product descriptions or documents, subject to retention of title and copyrights.
2.2 Placement of an order for goods by the customer constitutes a binding offer to enter into a contract. Unless otherwise stated in the order, ARNOLD UMFORMTECHNIK is entitled to accept this offer to enter into a contract within 4 weeks of receipt by ARNOLD UMFORMTECHNIK.
2.3 A contract to supply shall come into effect only by means of written confirmation of order, latest on dispatch of the goods. Transmission by telecommunications is deemed to be written acceptance.
2.4 In the event that ARNOLD UMFORMTECHNIK uses a telecommunications or other electronic media service to enter into a contract, the customer hereby waives his right to appropriate, effective and accessible technical means for the detection and correction of typographical errors, disclosure of the information specified in Art. 246, Sec. 3 EGBGB (German Introductory Act to the Civil Code) and to a confirmation of receipt of the order. Any electronically transmitted orders shall not be deemed received until downloaded and opened by ARNOLD UMFORMTECHNIK.
3. Prices – Terms of Payment
3.1 All prices from ARNOLD UMFORMTECHNIK are quoted ex warehouse and subject to VAT at the rate in effect at the time the invoice is issued.
3.2 In the event of a sales shipment (Section VI, paragraph 1), the customer shall bear all shipping costs ex warehouse and the fees for any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges are borne by the customer. To the extent permitted by the German Packaging Ordinance ARNOLD UMFORMTECHNIK does not take back any transport or other packaging, which becomes property of the customer. This does not include pallets. In the case of shipments of goods having a value below EUR 350 (gross) ARNOLD UMFORMTECHNIK is entitled to make a minimum quantity surcharge of EUR 25.- per shipment.
3.3 Unless otherwise agreed, the agreed purchase price is due and payable within 30 calendar days of the invoice date. However, in the case of contracts where the goods are valued at more than EUR 5,000, ARNOLD UMFORMTECHNIK may demand a down payment of 30 % of the purchase price. The down payment is due and payable within 20 calendar days of the invoice date.
3.4 With all payment methods used, payment shall be deemed to be received on the date that ARNOLD UMFORMTECHNIK has the amount due at its disposal.
3.5 The customer is considered to be in default once the payment period specified in paragraph 3 expires. During the period of default, the customer will be charged late payment interest at the current applicable rate. ARNOLD UMFORMTECHNIK reserves the right to claim for additional losses caused by late payment. Any claim to commercial maturity interest within the meaning of Section 353 of the German Commercial Code (HGB) remains unaffected by the above provision.
3.6 The customer may claim a set-off or exercise its right of retention only to the extent that the claim is established in law or is undisputed. Any opposing rights the customer may have in the event of defective goods supplied remain unaffected hereby.
3.7 Should it become apparent after entry into the contract that ARNOLD UMFORMTECHNIK's claim to the purchase price is jeopardized by the customer's inability to perform (e.g. the customer files for bankruptcy), ARNOLD UMFORMTECHNIK may refuse performance and – after setting a reasonable period of grace – revoke the contract in accordance with statutory requirements (Section 321 BGB). Subject to the statutory provisions on the dispensability of setting a time limit, ARNOLD UMFORMTECHNIK may immediately revoke a contract governing the production of unmarketable items (products made to specification).
3.8 Where outstanding claims for payment exist from the ongoing business relationship with the customer, ARNOLD UMFORMTECHNIK may refuse to make further deliveries until the customer has settled all claims in full. The above provision also applies in the event that the customer exceeds the credit limit granted by ARNOLD UMFORMTECHNIK.
3.9 If the customer fails to pay the outstanding purchase price even though payment is overdue, a report will be made to the credit agencies working with ARNOLD UMFORMTECHNIK in accordance with Section 28a of the German Federal Data Protection Act (BDSG).
4. Retention of Title
4.1 ARNOLD UMFORMTECHNIK retains legal ownership of the goods sold until payment is received in full for all current and future claims arising from the relevant sales contracts and the current business transaction (referred to in this document as "secured claims").
4.2 Goods subject to retention of title may not be pledged or offered as security to third parties by the customer until all secured claims have been paid in full. The customer shall notify ARNOLD UMFORMTECHNIK immediately where an application to open insolvency proceedings is opened, or where a third party attempts to seize such goods to act as a pledge or security.
4.3 A breach of contract by the customer, in particular in the event of non-payment of the payable purchase price, shall entitle ARNOLD UMFORMTECHNIK to revoke the contract in accordance with statutory provisions and/or demand the return of the goods sold on the basis of the retention of title. The demand to hand over the goods shall not simultaneously be a declaration of revocation; such action indicates that ARNOLD UMFORMTECHNIK is entitled merely to demand the return of the goods and that it reserves the right to revoke the contract. If the customer fails to pay the purchase price due, ARNOLD UMFORMTECHNIK may only exercise such rights after granting a reasonable period of grace, or where it is possible to dispense with the period of grace in accordance with statutory regulations.
4.4 Subject to revocation as described in paragraph (c) below the customer may resell and/or process the goods in the ordinary course of business. In this case, the following supplementary provisions apply.
4.4.a ARNOLD UMFORMTECHNIK's title to the full value of the goods supplied to their full value extends to where they have been processed, blended or combined into a new product, whereby ARNOLD UMFORMTECHNIK shall be considered as manufacturer. Where proprietary rights of third parties exist after such processing, blending or combination, ARNOLD UMFORMTECHNIK acquires joint title to the new product in proportion to the invoice values of the processed, blended or combined goods. In all other respects, the same applies to the new product as to the retention of title to the goods supplied.
4.4.b Any claims against third parties arising out of the resale of ARNOLD UMFORMTECHNIK's goods or the newly created product shall be considered assigned to ARNOLD UMFORMTECHNIK by the customer by way of security either in full or in proportion to the value of the joint title as specified in the provisions above. ARNOLD UMFORMTECHNIK accepts such assignment. The contractual obligations of the customer contained in paragraph 2 shall also apply with respect to the assigned claims.
4.4.c The customer remains entitled, along with ARNOLD UMFORMTECHNIK, to collect claims from resale. ARNOLD UMFORMTECHNIK undertakes not to collect claims provided that the customer continues to meet its financial obligations to ARNOLD UMFORMTECHNIK, continues to perform effectively and ARNOLD UMFORMTECHNIK does not exercise its retention of title right as provided in section 3. However should the above situation occur, ARNOLD UMFORMTECHNIK may require the customer to disclose to ARNOLD UMFORMTECHNIK the assigned claims and the relevant debtors along with all information necessary to collect such claims, hand over the necessary documents and notify the debtors (third parties) concerned of the assignment. Moreover, in such circumstances, ARNOLD UMFORMTECHNIK is authorized to revoke the purchaser's authority to resell and process the goods to which title is retained.
4.4.d Should the value of the securities exceed the value of ARNOLD UMFORMTECHNIK's claims by more than 10% ARNOLD UMFORMTECHNIK shall at the request of the customer release the securities. ARNOLD UMFORMTECHNIK may choose the securities to be released at its own discretion.
5. Delivery Period, Delivery Date, Acts of God, and Delays in Delivery
5.1 Delivery and/or performance periods and delivery and/or performance dates are agreed individually and/or specified by ARNOLD UMFORMTECHNIK upon acceptance of the order.
5.2 The beginning of the individually agreed or specified delivery or performance periods is subject to the successful clarification of all technical questions.
5.3 ARNOLD UMFORMTECHNIK's adherence to its obligation to delivery or performance is further subject to the customer's proper and timely compliance with all contractual obligations. We reserve the right to object to non-fulfillment of contract.
5.4 ARNOLD UMFORMTECHNIK shall give the customer prompt written notice in the event of failure to make or delay in performance of deliveries or services by subsuppliers or subcontractors, despite appropriate congruent hedging transactions, due to acts of God, i.e. obstacles to performance occurring out of the control of ARNOLD UMFORMTECHNIK and lasting more than 14 calendar days. In this case ARNOLD UMFORMTECHNIK may delay the delivery or performance of service by a period of time equal to the duration of the obstacle to performance or revoke the contract in whole or in part on the basis of the unfulfilled part of the contract as long as the above information requirement has been met and ARNOLD UMFORMTECHNIK has not assumed the procurement and/or production risk and the obstacle to performance is not of a temporary nature. Acts of God include strike, lockout, government intervention, energy and raw material shortages, delivery bottlenecks, business interruptions (e.g. through fire, water and machine failure) and any other interruptions that, viewed objectively, may occur without the fault of ARNOLD UMFORMTECHNIK.
5.5 In the event that a binding delivery and/or performance period and/or date has been agreed and is exceeded by more than four weeks due to the circumstances described in point 4 or where the continuation of the contract would pose an unreasonable hardship on the customer in the event of a non-binding performance date, the customer may revoke the contract on the basis of the unfulfilled part of the contract.
5.6 Commencement of default in delivery on the part of ARNOLD UMFORMTECHNIK is subject to statutory provisions. In any event however, a reminder by the customer is required for the commencement of default. In the event that ARNOLD UMFORMTECHNIK should default on a delivery, the customer may claim lump-sum compensation for damages caused by default. For every complete calendar week of the delay, the lump-sum compensation shall amount to 0.5% of the net purchase price, but to a maximum of 5% of the net purchase price of the goods that are delivered late. Any further claim by the customer for compensation for damages caused by default is excluded. ARNOLD UMFORMTECHNIK reserves the right to provide evidence that the customer did not incur damages, or significantly less in damages than the aforementioned lump-sum.
5.7 The rights of the customer as specified in Section IX of these terms of supply and payment, and the statutory rights of ARNOLD UMFORMTECHNIK are unaffected by the above provision, especially where the obligation to perform is excluded (for example due to the impossibility or non-feasibility of performance and/or remedy).
6. Delivery, Transfer of Risk, Delays in Acceptance
6.1 Delivery is made ex warehouse which is also the place of performance for the delivery and of any remedy. Upon request and at the expense of the customer, the goods can be shipped to a different destination (sales shipment). Unless otherwise expressly agreed, ARNOLD UMFORMTECHNIK may choose the method of shipping (including carrier, dispatch route and packaging).
6.2 Part shipments are permitted, provided that such does not disadvantage the customer.
6.3 ARNOLD UMFORMTECHNIK reserves the right to deliver consumables in commercially standardized quantities, i.e. short or excess deliveries, provided these deliveries remain within reasonable bounds and do not conflict with the customer's interests.
6.4 The risk of breakages and any deterioration that may occur is transferred to the customer at the latest upon transfer of the goods to the customer. However, in the case of sales shipments, the risk of any accidental breakage and accidental deterioration of the goods, and the risk of delay are transferred at the time that the goods are handed to the shipper, freight agent, or other person nominated to carry out the shipment. The risk passes to the customer even where the customer is in default of accepting the goods.
6.5 If the customer is in default of acceptance, fails to cooperate or is otherwise responsible for delaying the delivery, ARNOLD UMFORMTECHNIK may claim compensation for the damage incurred including any additional expenses (such as storage costs).
7. Property rights, Provision of documents
7.1 The customer undertakes to inform ARNOLD UMFORMTECHNIK without delay of any property right claims by third parties pertaining to the products delivered by ARNOLD UMFORMTECHNIK. ARNOLD UMFORMTECHNIK may, but is not obliged to, defend these rights at its own cost and at its own responsibility.
7.2 The customer warrants that any accompanying goods, services and documentation provided by the customer are free of third-party rights. The customer shall indemnify ARNOLD UMFORMTECHNIK against any claims of third parties arising out of the infringement of third-party rights, unless the customer cannot be held responsible for this legal defect.
7.3 In providing documents, the customer grants to ARNOLD UMFORMTECHNIK the non-exclusive right to use them for all contractually agreed purposes with no limit as to time or space. On receipt of an inquiry about articles supplied on the basis of documents provided by the customer such as drawings and specifications (parts made to order), ARNOLD UMFORMTECHNIK may provide these documents to upstream manufacturing companies in order to complete the inquiry process and perform the contract through subsuppliers. Should the customer specify changes to the specifications or additional specifications when inquiring about parts made to order without making these changed or additional specifications or drawings available to ARNOLD UMFORMTECHNIK, ARNOLD UMFORMTECHNIK is entitled to change or amend the existing drawings or specifications accordingly.
8. Claims for Defects by the Customer
8.1 Unless otherwise provided below, the rights of the customer in the event of material and/or legal defects are subject to statutory requirements.
8.2 The basis of liability for defects by ARNOLD UMFORMTECHNIK is principally the agreement made concerning the quality of the goods. Product descriptions and specifications agreed between ARNOLD UMFORMTECHNIK and the customer on the basis of the corresponding standards (e.g. DIN, ISO standards), or made available by the customer to ARNOLD UMFORMTECHNIK and which have been expressly approved by ARNOLD UMFORMTECHNIK are deemed to be agreements concerning the quality of the goods.
8.3 Any claim made by the customer based on any defect requires that the customer has fulfilled its legal obligations to examine the goods upon delivery and notify of any defects (sections 377, 381 HGB). If a defect manifests itself during the delivery, during the examination ARNOLD UMFORMTECHNIK must be notified of the matter without delay in writing. Without delay means notification within two weeks; the dispatch of the notification within that period is sufficient to comply with the time limit. Without prejudice to the above examination and notification obligations, the customer shall inform ARNOLD UMFORMTECHNIK in writing of any obvious defects (including incorrect and short shipments) within two weeks of the delivery; here too the dispatch of the notification within that period is sufficient to comply with the time limit. Should the customer fail to make a due and proper examination of the goods and/or notify the defect, ARNOLD UMFORMTECHNIK accepts no liability for the defect that has not been correctly notified in accordance with statutory regulations.
8.4 Should the goods delivered be defective, ARNOLD UMFORMTECHNIK may choose to remedy by repairing the defect (rectification) or by providing goods free of defects (replacement delivery). This does not affect ARNOLD UMFORMTECHNIK's right to refuse to remedy in accordance with applicable laws.
8.5 ARNOLD UMFORMTECHNIK is entitled to make its remedial action subject to payment by the customer of the purchase price due. The customer may, however, withhold a reasonable proportion of the purchase price.
8.6 The customer shall give ARNOLD UMFORMTECHNIK a reasonable period of time and the opportunity to provide the required remedy including, without limitation, returning the defective goods to ARNOLD UMFORMTECHNIK for examination purposes. In the event of replacement, the customer shall return the defective goods to ARNOLD UMFORMTECHNIK in accordance with statutory requirements. Any remedy provided includes neither the removal nor the reinstallation of the defective goods unless ARNOLD UMFORMTECHNIK was originally under an obligation to install them.
8.7 ARNOLD UMFORMTECHNIK will bear the cost of any expenditure necessary for the purpose of examination and remedy, in particular the costs of transportation, road tolls, labor and materials (not: removal and installation costs) provided that a defect actually exists. However, should a demand by the customer to remedy a defect turn out to be unjustified, ARNOLD UMFORMTECHNIK may demand from the customer the costs arising from the above, unless it was not possible for the customer to detect the defectiveness.
8.8 In the event that ARNOLD UMFORMTECHNIK fails to remedy a defect or a reasonable period of grace set by the customer expires without result, or can be dispensed with in accordance with statutory provisions, the customer may revoke the contract or reduce the purchase price. However, the customer has no right to revoke the contract if the defect is immaterial.
8.9 Except as expressly provided in Section IX, any claims by the customer for damages and/or for reimbursement of futile expenses are hereby excluded.
9. Other liability
9.1 Unless otherwise specified in these terms of supply and payment, including the following provisions, ARNOLD UMFORMTECHNIK shall be liable for any breach of contractual or non-contractual obligations in accordance with statutory requirements.
9.2 ARNOLD UMFORMTECHNIK is liable for compensation for damages – for whatever reason in law – for claims based on willfulness or gross negligence. In the case of simple negligence, ARNOLD UMFORMTECHNIK is liable subject to a less severe standard of liability in accordance with statutory provisions (e.g. diligence in performing its own affairs) only
9.2.1 for damages resulting from the loss of life, physical injury or damage to health,
9.2.2 for damages resulting from significant breach of an essential contractual obligation (obligation whereby the correct and proper execution of the contract overall depends on its fulfilment, and where the contractual partner regularly trusts and may trust that it will be executed); however in such a case the liability of ARNOLD UMFORMTECHNIK is limited to compensation for foreseeable, typically arising damages.
9.3 The restrictions of liability arising from point 2 also apply to breaches of duty by or in favor of persons for whom ARNOLD UMFORMTECHNIK is responsible under statutory regulations with regard to any fault they may commit. They do not apply where ARNOLD UMFORMTECHNIK has taken on a defect that has been maliciously concealed or a guarantee of quality of the goods and for claims made by the customer under the Product Liability act.
9.4 In the event of a breach of contractual obligations not caused by a defect, the customer may only revoke or terminate the contract if ARNOLD UMFORMTECHNIK is responsible for this breach. The right of the customer to terminate the contract at any time (in particular in accordance with sections 651 and 649 BGB) is excluded. In all other respects, the statutory provisions and legal consequences apply.
10. Period of limitation
10.1 The statutory periods of limitation of purchase rights also apply to contractual and non-contractual claims for damages made by the customer and which are based on defective goods, unless, in the particular case, the application of the regular statutory period of limitation (sections 195, 199 BGB) would result in a shorter period of limitation. The limitation periods for claims under the German Product Liability Act remain unaffected by the above. Otherwise section IX, excluding the statutory periods of limitation, applies exclusively to claims for compensation by the customer.
11. Hydrogen embrittlement
11.1 ARNOLD UMFORMTECHNIK and the customer are aware of the many causes and problems of hydrogen-induced embrittlement, in particular in the case of galvanically coated, high-strength and case-hardened articles from a tensile strength of 100 N/mm2 upwards and core and surface hardening upwards of 320 HV in accordance with DIN EN ISO 4042, ARNOLD UMFORMTECHNIK cannot guarantee that the risk of hydrogen-induced embrittlement has been fully eliminated.
11.2 If, due to the field of application there is a requirement to remove the probability of hydrogen-induced embrittlement from the goods supplied by ARNOLD UMFORMTECHNIK, for example for structural reasons or for reasons of safety, the customer is under an obligation to reach, jointly with ARNOLD UMFORMTECHNIK, an agreement on the execution of the process and procurement of materials in order to counter the above-mentioned risks.
11.3 The DIN EN ISO 4042 standard is an integral part of all agreements concluded between ARNOLD UMFORMTECHNIK and the customer.
12. Applicable law and place of jurisdiction
12.1 The law of the Federal Republic of Germany applies to these general terms of supply and payment and the contractual relationship between ARNOLD UMFORMTECHNIK and the customer, and excludes international legal systems, in particular the UN Convention of Contracts for the International Sale of Goods.
12.2 The courts with jurisdiction in 74670 Forchtenberg-Ernsbach, in Germany will preside over any dispute arising from or in connection with a contractual relationship between the parties, including disputes concerning their effective conclusion of the contract, provided that the supplier is a business within the meaning of section 1 and following of the German Commercial Code (HGB), a legal entity under public law, or a publicly owned special fund. This correspondingly applies if the purchaser is a company within the meaning of section 14 of the BGB. However, ARNOLD UMFORMTECHNIK is also entitled to file a suit at the place of performance of the obligation to supply. Any overriding statutory regulations, in particular regarding exclusivity of responsibility, are unaffected by the above provision.