General Terms and Conditions

I. General Provisions, Scope, Conflict Rule

These General Terms and Conditions apply to contracts between Foundry4 Thermdos GmbH (hereinafter: FOUNDRY4) and a natural or legal person or a partnership which, on conclusion of the contract, is acting in the exercise of its commercial or independent professional activity (an entrepreneur within the meaning of section 14 of the German Civil Code (BGB)), or legal persons under public law or a special fund under public law.
These General Terms and Conditions apply in addition to any special contractual conditions of FOUNDRY4 and any individual agreements between the parties. In the event of a conflict, individual agreements take precedence over the special contractual conditions and these General Terms and Conditions, and the special contractual conditions take precedence over these General Terms and Conditions.

II. Offer Documents

Illustrations, drawings, calculations, reference lists and other documents provided to the contractual partner – in particular where these have been designated as “Confidential” – remain the property of FOUNDRY4 and must be returned on request. They may only be passed on to third parties with the consent of FOUNDRY4.
The contractual partner is entitled to a right of retention in respect of these documents only where its counterclaims are undisputed or have been established with final legal effect.
FOUNDRY4 reserves the copyright in the aforementioned documents.

III. Prices and Payment Terms

All prices are net, i.e. exclusive of statutory value added tax; VAT is shown separately in the invoice at the statutory rate.
Unless otherwise separately agreed between the parties, prices apply ex works and exclude packaging and unloading.
A discount for early payment is granted only where separately agreed between the parties.
The contractual partner is entitled to a right of retention only where its counterclaims are undisputed or have been established with final legal effect. The same applies to the contractual partner’s right to set off counterclaims.

IV. Delivery Time, Delays in Delivery

The delivery time results from the agreements between the parties. Compliance with it requires that all technical questions between the parties have been clarified.
Compliance with the delivery time further requires that the contractual partner has fulfilled all of its duties and obligations in good time (e.g. obtaining any necessary official permits or certificates, making a down payment, duly accepting the performance). If the contractual partner is in default with regard to these obligations, the delivery period is extended accordingly.
The assertion of further damages and the defence of non-performance of the contract remain reserved.
Compliance with the delivery time is subject to FOUNDRY4 itself being supplied in good time. FOUNDRY4 will inform the contractual partner as early as possible of any delivery delays that become apparent.
In cases of force majeure – in particular industrial action, state or official measures for which FOUNDRY4 is not responsible, or natural disasters – which temporarily make it considerably more difficult or impossible for FOUNDRY4 to comply with the delivery time, the delivery time is extended appropriately.
Delays to the agreed delivery time within the meaning of the above paragraphs of less than three months do not entitle the contractual partner to withdraw from the contract. Where circumstances of the kind described make performance considerably more difficult or impossible and the impediment is not merely of a temporary nature, FOUNDRY4 is entitled to withdraw from the contract.
The contractual partner is obliged to accept the delivery item at the agreed delivery time. If it fails to comply with this obligation, it is obliged to compensate the damage resulting from this.

V. Transfer of Risk, Partial Deliveries

Delivery is made EXW ex works in accordance with Incoterms 2010, unless otherwise agreed.
FOUNDRY4 is entitled to make partial deliveries where this is reasonable for the contractual partner.

VI. Warranty Claims

The warranty period is 24 months from delivery.
The delivered items must be inspected carefully without delay after delivery to the contractual partner or to a third party designated by it. They are deemed approved if FOUNDRY4 does not receive a notice of defect in text form regarding obvious defects or other defects that were identifiable during a prompt and careful inspection, within seven working days of delivery of the delivery item, or otherwise within seven working days of discovery of the defect or of any earlier point in time at which the defect was identifiable to the contractual partner during normal use of the delivery item without closer inspection.
At the request of FOUNDRY4, the delivery item complained of must be returned carriage paid. In the case of a justified notice of defect, FOUNDRY4 reimburses the cost of the most favourable shipping route; this does not apply where the costs increase because the delivery item is located somewhere other than the place of its intended use.
In the case of material defects in the delivered items, FOUNDRY4 is initially obliged and entitled, at its own choice to be made within a reasonable period, to rectify the defect or to make a replacement delivery. In consultation with the contractual partner, FOUNDRY4 must be allowed a reasonable amount of the time required for this.
Within the framework of the statutory provisions, the contractual partner has a right of withdrawal if FOUNDRY4 allows a reasonable additional period set for rectification or replacement delivery on account of a material defect to elapse without result. In the case of merely insignificant defects, the contractual partner is entitled only to a reduction of the price, but not to withdrawal. The right to withdraw without setting an additional period in the cases provided for by law remains unaffected.
If a defect is due to the fault of the seller, the customer may claim damages under the conditions set out in section VII.
The warranty does not apply if the contractual partner modifies the delivery item, or has it modified by third parties, without the consent of FOUNDRY4 and this makes the rectification of defects impossible or unreasonably difficult. In every case the contractual partner must bear the additional costs of rectifying defects arising from the modification.
Where the delivery of used items has been agreed with the contractual partner in an individual case, this is made under exclusion of any warranty for material defects.

VII. Liability

The liability of FOUNDRY4 for damages, on whatever legal grounds, in particular arising from impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this provision insofar as fault is relevant in each case.
FOUNDRY4 is not liable in cases of simple negligence on the part of its governing bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual duties. Material contractual duties are those which make the proper performance of the contract possible in the first place and the breach of which seriously jeopardises the achievement of the purpose of the contract.
Where FOUNDRY4 is liable for damages in principle in accordance with the above paragraph, such liability is limited to damage which FOUNDRY4 foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or which it should have foreseen applying customary care. Indirect damage and consequential damage resulting from defects in the delivery item (the works or other main performance) are only compensable where such damage is typically to be expected when the item is used as intended.
In the case of liability for simple negligence, the obligation of FOUNDRY4 to compensate for damage to property and any further financial loss resulting from it is limited to an amount of EUR 10 million per case of damage, even where a breach of material contractual duties is involved.
The above limitations of liability apply equally in favour of the governing bodies, legal representatives, employees and other vicarious agents of FOUNDRY4.
Where FOUNDRY4 provides technical information or acts in an advisory capacity and such information or advice does not form part of the scope of services contractually owed by it, this is done free of charge and under exclusion of any liability.
The above limitations of liability do not apply in cases of intentional conduct, fraudulent misrepresentation, guaranteed characteristics, injury to life, body or health, or under the German Product Liability Act.

VIII. Retention of Title

The retention of title agreed below serves to secure all current and future claims of FOUNDRY4 against the contractual partner arising from the delivery contract.
The goods delivered by FOUNDRY4 remain the property of FOUNDRY4 until all secured claims have been paid in full. The goods, as well as any replacement or additional goods, constitute goods subject to retention of title.
The contractual partner stores the goods subject to retention of title free of charge for FOUNDRY4. It is entitled to process and sell them until the realisation event occurs, provided this takes place in the ordinary course of business. Pledging or transfer by way of security is not permitted.
If the goods subject to retention of title are processed, the processing is carried out in the name and for the account of FOUNDRY4. FOUNDRY4 thereby acquires ownership or co-ownership of the new item in the ratio of the value of the goods subject to retention of title.
If goods subject to retention of title are combined or mixed with other items, the contractual partner transfers proportionate security rights to FOUNDRY4.
In the event of withdrawal (e.g. in the case of default in payment), FOUNDRY4 is entitled to demand the return of the goods subject to retention of title.

IX. Final Provisions

The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
The place of jurisdiction for all disputes arising from the business relationship between FOUNDRY4 and the contractual partner is, at the option of FOUNDRY4, Hochheim or the registered office of the contractual partner. For actions against FOUNDRY4, Hochheim is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.

This English text is a translation of the German original and is provided for information purposes only. In the event of any discrepancy, the German version shall prevail.