1 Scope / General Provisions
1.1 These terms and conditions apply in addition to the individual contractual agreements for all services provided by ON Metall GmbH, particularly for the sale and delivery of goods to persons who are not consumers within the meaning of § 13 BGB. They form the basis of all our offers, orders, deliveries, and services.
1.2 By placing an order, or at the latest by accepting the goods, the customer agrees to these terms and conditions.
1.3 If these terms and conditions become part of contracts through legal incorporation, they shall also apply to all future contracts in the event of an ongoing business relationship, without requiring renewed incorporation, until new terms and conditions from ON Metall GmbH come into effect.
1.4 Deviating provisions of the customer that we do not expressly acknowledge in writing are non-binding for us, even if we do not expressly object to them.
2 Offers
2.1 Our offers are always non-binding. In case of doubt, the contract is concluded only upon and in accordance with the terms and content of our written order confirmation, provided such confirmation is issued.
2.2 Stated guide prices are not offers and only become the basis of the contract upon written confirmation of the order. We are bound by our offer prices for a maximum period of 6 months until the order is placed.
2.3 Oral agreements and collateral agreements, as well as contract amendments, only become effective upon our written confirmation.
2.4 All offers are subject to technical review under series production conditions with actual material. Any resulting need for changes after sampling will be communicated to the customer after sample processing. Price changes resulting from this will be communicated to the customer before the next production run.
2.5 Offers and their attachments may not be made accessible to third parties without our consent.
3 Prices and Payment Terms
3.1 The prices listed in our order confirmation are decisive. Unless otherwise confirmed, these are net prices in EURO (€) without discount or other deductions. The granting of discounts requires the express written agreement of the contracting parties.
3.2 We are entitled to invoice the customer for additional expenses that arose unexpectedly during the execution of the order, after consultation and approval. Such agreements generally have a significant impact on the delivery time.
3.3 Unless expressly agreed otherwise, payments are to be made within 30 calendar days of receipt of invoice,
free of deductions to our payment office.
3.4 If unforeseeable cost increases occur after the conclusion of the contract until the execution of the order, e.g., due to higher material or labor costs, we are entitled to adjust prices within the scope of the changed circumstances.
3.5 Prices apply exclusively to parts designed and manufactured for processing. For additionally required work, such as the removal of paint, oil, grease, tar, old metal coatings, or oxidations, as well as the creation of test reports, we charge the surcharges agreed upon after consultation with the client, or in the absence thereof, prices corresponding to equity according to § 315 BGB.
3.6 Full strips are always calculated based on the weight of the coated material. Due to process variations, the actually delivered quantities and weights may deviate by ±1% from the quantities and weights stated on delivery documents or material accompanying labels. These deviations are within tolerance and do not give rise to any claims against us.
3.7 If the cost factors relevant for pricing (production material, energy, operating supplies, wages and salaries, etc.) change significantly between the conclusion of the contract and the contractually agreed delivery date, we are entitled to demand the agreement of new, reasonable prices from the client, in deviation from the offer prices, to compensate for such cost increases. This only applies after 4 months from the conclusion of the contract. If no agreement is reached, both we and the customer are entitled to withdraw from the contract. If the cost factors mentioned in sentence 1 are reduced, the customer is entitled to demand a corresponding price reduction, applying the above regulation accordingly, and in the absence of an agreement, has the right to withdraw from the contract.
3.8 Failure to settle due invoices in a timely manner entitles us to assert a right of retention with regard to the processing of new orders owed by us.
3.9 We are entitled to declare all claims immediately due and payable, and to demand advance payments or security deposits if a customer’s financial situation demonstrably deteriorates. We are entitled to withdraw from the contract if this is not complied with despite set deadlines.
3.10 Payments may only be withheld for undisputed defects or defects established by a legally binding judgment; their scope may not exceed double the value of the (defective) parts.
3.11 The customer may only offset claims that are undisputed or have been established by a legally binding judgment.
4 Incoming Goods Inspection
4.1 The prerequisite for our incoming goods inspection, which refers solely to external damage to packaging, cartons, and coils, is the unconditional adherence to the following delivery regulations:
• the goods must be delivered in such a way that the item designation, quantity, gross and net weight are clearly identifiable and a clear assignment is possible.
• that the supplied goods are suitable for galvanization, in particular, there are no damaged coils, no saber curvature, and no torsion of the strip materials.
A check of the quantities or masses indicated on the accompanying documents is not carried out.
4.2 We will report any detected damage to the customer immediately after the incoming goods inspection.
4.3 If damage occurs during production to the material supplied by the customer, which is attributable to a violation of the delivery obligations, we shall not be liable for it. If we incur damages as a result, the customer must compensate us for them.
5 Precious Metal Prices, Surcharges, Precious Metal Account
5.1 Precious metal prices are invoiced based on the monthly published average rates of the respective previous month of the delivery note for the processed material. A reference to the rates can be found in the other contractual documents of ON Metall GmbH.
5.2 The precious metal input weights stated in offers and invoices always include a process-related, unavoidable precious metal loss / precious metal depletion. Consequently, these are the masses required for creating the customer specification and not the delivered masses.
5.3 The establishment of a precious metal account is not provided for. Unless otherwise agreed, precious metals are to be paid for monetarily.
6 Scrap
6.1 The services we provide generally result in so-called production scrap, which leads to a reduction in the quantity of material supplied by the customer.
6.2 In series production, these quantities for full strips < 1.00 mm strip thickness are a maximum of 5%, and for stamped strips or full strips > 1.00 mm thickness, 8%, unless otherwise stated in our sales documents.
6.3 In the case of sampling or small to very small quantities, the scrap rate can be significantly higher; in individual cases, up to 100%. The minimum quantities required to avoid total loss are extremely part- and process-dependent and must be inquired about by the customer before production begins, if in doubt.
6.4 Production scrap remains the property of the customer, as long as its value is not enhanced beyond the original scrap value by our processing or that of our vicarious agent.
7 Delivery and Transfer of Risk
7.1 Unless otherwise agreed, the delivery period begins upon receipt of the customer material to be processed.
7.2 If delivery times have not been contractually agreed upon, our statements regarding delivery times are not binding. The agreement of binding delivery times always requires that a definitive supply date is part of the agreement and that this has been adhered to by the customer.
7.3 If a calendar week is agreed upon, we have the right to provide our services up to and including Sunday of that calendar week.
7.4 If delivery is delayed due to unforeseeable circumstances on our part, or on the part of sub-suppliers or subcontractors, such as force majeure, strike, raw material shortages, operational disruptions, or power failures, the client is entitled to withdraw from the contract after granting a reasonable grace period. § 323 para. 2 BGB remains unaffected. If delivery becomes impossible for us due to the aforementioned circumstances, we are released from our delivery obligation. If delivery becomes unreasonable for us due to these circumstances, we are entitled to refuse delivery. The client has no claim for damages insofar as we are not responsible for these circumstances.
7.5 If the client defaults on their supply or cooperation obligations after a written reminder, we are entitled to withdraw from the contract after setting a written grace period of 14 calendar days and to demand damages instead of performance.
7.6 In the event of gross negligence in case of delivery delay, we are liable for the delay damage incurred by the customer. In case of slight negligence, our liability is excluded.
7.7 Partial deliveries are permissible insofar as they are reasonable for the client in the individual case. Reasonableness exists if the contractor’s interest in change outweighs or is at least equivalent to the customer’s interest in the immutability of the agreed service provision.
7.8 The shipping route, type, and means of dispatch are to be left to us, without guarantee for the fastest and cheapest transport. The customer’s interests will be reasonably taken into account. If we act as a freight forwarder, the General German Forwarders’ Terms and Conditions shall apply additionally.
8 Warranty
8.1 We provide a warranty for our services only in accordance with the following provisions and only to the client as the first purchaser. The assignment of warranty claims to third parties is excluded, unless the customer’s interest in assignability outweighs our interest in non-assignability.
8.2 All limitations of liability in these General Terms and Conditions do not apply to liability for damages resulting from injury to life, body, or health, which are based at least on a negligent breach of duty by us or an intentional or negligent breach of duty by our legal representative or vicarious agent.
8.3 We guarantee professional surface treatment in material and workmanship according to the recognized rules of technology, the applicable or generally recognized draft DIN regulations. In galvanic and chemical processes, as well as due to quality differences in the raw material, deviations from a sample underlying the order are sometimes unavoidable.
8.4 We provide a warranty for all defects present at the time of transfer of risk to the client, unless a defect is based on a circumstance attributable to the client. We also provide no warranty for an existing defect if proof of proper fulfillment can be provided by us.
8.5 Statements in service descriptions and performance specifications do not constitute an assurance or guarantee for the quality of the service or that the service will retain a certain quality for a specific duration, subject to their classification as quality specifications within the meaning of §§ 633 or 434 BGB. Assurances and guarantees are generally not given by us and must be separately agreed upon in writing in exceptional cases.
8.6 Insofar as a defect in the service exists, we must always be given the opportunity for subsequent performance in the form of rectification within a reasonable period. If rectification is not possible for technical reasons, or if it does not occur within the set period due to our fault, or if it fails, meaning that at least two attempts at rectification have failed, or if it is unreasonable for the client, the client may withdraw from the contract or reduce the price. In the case of partial deliveries, only a partial withdrawal related to the defective partial service is possible, insofar as adherence to the entire contract is not unreasonable.
8.7 Due to technical circumstances, the warranty for the usability of coatings, even with proper storage within the meaning of §14 para. 5, can only be provided for a maximum period of 6 months. During galvanic, chemical, or mechanical processing of surfaces, an adverse change in the surface quality of uncoated areas may occur. This is particularly the case with materials made of copper and copper alloys. Uncoated areas are therefore generally excluded from the warranty.
8.8 If special qualification requirements are made, e.g., in the area of heat or weather resistance, this must be submitted in writing as early as possible, at the latest when placing the order. In particular, any form of dimensional accuracy is only guaranteed if exact specifications have been fixed in writing in the order.
8.9 The delivered goods must be inspected immediately for defects. The detection of such defects must be reported to us immediately – in the case of recognizable defects, however, no later than 10 calendar days after receipt of the goods, and in the case of non-recognizable defects, immediately after their detection – in writing. The duty of inspection also applies if samples have been sent. If defects are found during further processing, this must be stopped until we are convinced of the condition of the goods and have made our decision.
8.10 In the event of a complaint not being made in due form or within the deadline, the goods from merchants within the meaning of the HGB shall be deemed approved.
8.11 The items handed over to us for processing must be delivered with a delivery note or with precise written details of the quantity and total weight. The raw weight specifications, even if important to the client, are non-binding for us. Replacement for missing parts will only be provided if their delivery is proven by a delivery note signed by us and the risk for the missing parts has passed to us. For small and mass-produced parts, we generally assume no liability for rejects and shortages of up to 3% of the total delivered quantity, unless otherwise agreed in writing.
8.12 If we are unwilling or unable to rectify/replace, especially if this is delayed beyond reasonable deadlines for reasons for which we are responsible, or if rectification/replacement otherwise fails, the buyer is entitled, at their discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price.
8.13 Unless otherwise stated below, further claims of the buyer – regardless of the legal grounds – are excluded. We are therefore not liable for damages that did not arise on the delivery item itself; in particular, we are not liable for lost profits or other financial damages of the buyer.
8.14 A defect in a partial delivery does not entitle the client to cancel the contract, unless the defect of a partial delivery is so significant that the acceptance of further partial deliveries is unreasonable.
8.15 The warranty applies only to stresses under ordinary, operational, and climatic conditions. If the goods are intended for special conditions and we have not been informed thereof beforehand, a warranty is excluded. If the goods surface-treated by us are mechanically or chemically damaged during transport or further processing, any warranty in this respect is void. The warranty also expires if the contractual object has been altered by third parties or if rectification has been attempted by third parties.
8.16 The material to be processed must be free of casting skin, molding sand, scale, oil carbon, burnt-in grease, welding slag, graphite, paint coatings; it must not show any pores, blowholes, cracks, duplications, etc. If this is not the case, we are entitled to refuse processing. If the client nevertheless insists on processing, or if the material supplied to us for surface treatment is technologically unsuitable for such surface treatment for reasons not recognizable to us, we generally assume no warranty for a specific dimensional accuracy, adhesion strength, color retention, and corrosion-preventing properties of the applied layer. No warranty for adhesion strength is assumed, in particular, if the material has been deformed after surface treatment, even if trial-galvanized parts could be deformed without the galvanic layer flaking off.
8.17 If we carry out short-term tests or other chemical and/or mechanical analyses on behalf of the client, or if we prepare measurement reports or test certificates on their behalf, this does not release the client from the obligation to subject the parts processed by us to corresponding measurements, inspections, and tests on their part. If, in an individual case, due to time constraints and considering the delivery time specified by a client, we are unable to carry out the aforementioned measures, we disclaim all liability.
8.18 Immediately occurring corrosion on untreated surfaces does not constitute a claim. Surface-treated material is susceptible to condensation and friction corrosion. It must be properly packaged, stored, and transported.
8.19 The client must define the minimum layer thicknesses at a measurement point to be agreed upon, prescribe the shipping method, and prevent chemical and mechanical damage to the surface through suitable measures. We are not liable for weather damage or for any damage caused by residues from the treatment process later seeping out of overlaps and other inaccessible cavities.
9 Security Rights
9.1 We are entitled to a statutory contractor’s lien on the items processed by us. Irrespective thereof, the client grants us a contractual lien on the items handed over for surface treatment, which serves to secure our claim arising from the order. Unless otherwise agreed by the contracting parties, the contractual lien also applies to claims from previously executed orders and services, insofar as they are intrinsically related and form a unified economic relationship with the subject of the order. If the surface-treated parts are delivered to the client before full payment, it is hereby agreed with the client that ownership of these parts is transferred to us in proportion to the value of our claim to the value of the delivered parts to secure our claims, and the transfer of possession is replaced by the client holding the parts for us. The same applies with regard to the client’s expectant right to items handed over to us for surface treatment that were delivered to the client by a third party under retention of title. We are entitled to bring about the lapse of the retention of title. The client’s claims for re-transfer of ownership against a third party, to whom the client had previously transferred ownership of the items handed over to us for surface treatment as security, are hereby assigned to us. We hereby accept the assignment.
9.2 The client may neither pledge nor transfer ownership of items on which we have a lien or which are subject to our security ownership. However, the client may resell or process the goods in the ordinary course of business, unless he has already effectively assigned the claim against his contractual partner to a third party in advance. Any processing of the goods transferred to us as security by the client into a new movable item is carried out on our behalf with effect for us, without giving rise to any liabilities. We hereby grant the client co-ownership of the new item in proportion to the value of the new item minus the value of our service to the value of the new item. The client must store the new item with commercial diligence and free of charge.
9.3 In the event that the client acquires sole or co-ownership of a single new item through the combination, commingling, or mixing of our secured goods with other movable items, he hereby transfers to us this right of ownership to secure our claims, in proportion to the value of our secured goods to the value of the other item, with the simultaneous promise to properly store the new item for us free of charge.
9.4 In the event of the resale of the goods processed by us and transferred to us as security, or of the new item produced from them, the client must inform his customers of our security ownership.
9.5 To secure the fulfillment of our claim, the client hereby assigns to us all present and future claims arising from the resale or further processing of the goods transferred to us, including ancillary rights, up to the value of the goods. We hereby accept the assignment.
9.6 The client is authorized to collect claims against third parties resulting from the resale or further processing for our benefit. Upon our request, the client must individually prove the claims and disclose the assignment to third-party purchasers with the request to pay us up to the amount of our claims. We are also entitled, at any time, to notify the subsequent purchaser of the assignment ourselves and to collect the claim. However, we will not request the client to collect the claims or disclose the assignment, nor will we collect the claim ourselves or disclose the assignment ourselves, as long as the client duly fulfills his payment obligations towards us.
9.7 The client is obliged to inform us immediately of enforcement measures by third parties against the security rights.
9.8 The client is obliged to adequately insure the goods subject to our security ownership against fire and theft, as far as possible, and, upon request, to assign the claims against the insurer and the party causing damage to us.
9.9 Upon the client’s request, the securities to which we are entitled according to the preceding provisions shall be released to the extent that their value exceeds the claims to be secured by more than 10%.
9.10 In the event that third parties assert rights to the secured goods, the client hereby undertakes to immediately hand over all necessary documents to us and to reimburse us for intervention costs incurred, provided the intervention is successful and enforcement against the third party as cost debtor has been attempted in vain.
9.11 All our claims, including those from other contracts, become due immediately, even in the event of deferment, as soon as the client culpably defaults on other, not insignificant obligations towards us, stops payments, is over-indebted, insolvency proceedings are opened over his assets, or the opening of such proceedings is refused due to lack of assets. In such a case, we are entitled to refuse outstanding deliveries and services and to set the client a reasonable deadline within which he must make payment or provide security, at his discretion, concurrently with our performance or delivery. After the unsuccessful expiry of the deadline, we are entitled to withdraw from the contract.
10 Export Control
10.1 The conclusion and fulfillment of the contract shall be carried out in compliance with all applicable national, European, and US export control regulations, including all European or US sanctions lists and other personal embargoes (collectively “Export Control Regulations”).
10.2 Compliance with and implementation of the relevant export control regulations and other laws of his country, as well as the country to which delivery is to be made, fall within the buyer’s area of responsibility. The buyer must inform the seller in writing of all special circumstances arising from these provisions at the time of contract conclusion.
10.3 In the event that the seller, after contract conclusion, identifies circumstances which give rise to the assumption of a possible or actual violation of export control regulations or the buyer’s obligations under this clause and its sub-clauses, the seller will inform the customer thereof in writing.
10.4 In any case where circumstances become known which give rise to the assumption of a possible or actual violation of export control regulations or the buyer’s obligations under this clause and its sub-clauses, any delay in performance by the seller is excluded for a reasonable period to give the seller the opportunity to review.
10.5 If actual violations of export control regulations or the buyer’s obligations under this clause and its sub-clauses are found or cannot be ruled out, the seller may withdraw from the contract.
10.6 The buyer undertakes to indemnify the seller against any damage arising from the incorrect or non-fulfillment of the buyer’s obligations under this clause and its sub-clauses. The scope of damages to be compensated also includes the reimbursement of all necessary and reasonable expenses incurred or arising for the seller, in particular, the costs and expenses of any legal defense, as well as any official administrative fines or penalties.
11 Place of Performance, Place of Jurisdiction, Applicable Law, and Severability Clause
11.1 DE-59846 Sundern is agreed upon as the place of performance for obligations arising from the contract or a declared withdrawal.
11.2 The place of jurisdiction is the court responsible for the registered office of ON Metall GmbH, insofar as the customers are merchants, legal entities under public law, or public-law special funds. Even in this case, we are entitled to appeal to the court responsible for the customer’s domicile or place of business.
11.3 The laws of the Federal Republic of Germany apply, to the exclusion of foreign law and the unified international sales law. The German version of a contract text is authoritative.
11.4 Should a single contractual provision or a severable part of a contractual provision be void or ineffective, the validity of the entire contract and the remaining provisions shall remain unaffected. The void or ineffective provision shall be replaced by the parties with an effective provision.
12 Data Protection/Privacy Policy
12.1
Regarding data protection, our privacy policy applies. This can be found on the website of ON Metall GmbH.
