All information about our products result from many years of practical experience which we gladly pass on to our customers as applied technical support. However, since we have no influence on the execution of work performed with our products, our liability is limited to those compensations described in our terms of sale.
General terms and conditions of
Im Lipperfeld 11
General Sales Terms and Conditions
These General Sales Terms and Conditions are a constituent part of all our offers and order confirmations. Any declarations or agreements which deviate from the following conditions or our order confirmation are only binding if we have expressly agreed to them in writing. Our offers are fundamentally not binding. We are only obligated by our written order confirmation. The type and extent of the delivery are stipulated in the order confirmation. The agreement is also deemed to be in effect in the event of deviating conditions of the Customer in relation to our order confirmation, unless the Customer explicitly contradicts this in writing and on time.
Our deliveries are performed ex works or ex warehouse. The delivery date is the day of disposition in the works or warehouse. If an agreed delivery time is not observed, the Customer can set an appropriate grace period in writing and cancel the contract after its unsuccessful expiration. Further claims are excluded. In the event that orders or off-the-shelf orders are not accepted or requested on schedule, the Customer bears the additional costs incurred. Furthermore we can demand immediate payment and compensation for damages or entirely or partially withdraw from the contract.
Even if freight paid delivery has been agreed, the risk is transferred to the Customer once the contract goods have left our works. The shipment is generally sent uninsured, also for freight paid deliveries. Upon written request of the Customer a transport, breakage or fire insurance can be arranged at the Customer's cost.
If Incoterms have been agreed upon or made reference to, the Incoterms valid at the time of the conclusion of the contract apply to the contract.
The Parties shall be released from their duty to perform in the event of a breach of contract due to force majeure or unavoidable events. This applies for us as well so far as the breaches of contract occur over our upstream suppliers. Cases of force majeure or an unavoidable event also include official interventions, strikes, lockouts, malfunctions in the power and raw material supply as well as unusual significant increase in price for the raw materials, accidents as well as other unforeseeable events which make a fulfilment of the contractual obligations impossible or unconscionable during this time. In the event that any third party makes infringement claims (copyright or patent rights) on our manufacturing or delivering the delivery item, we may cease the delivery or cancel the contract without prior examination of the legal position.
Our prices refer to the defined scope of delivery cited in the order confirmation, exclusive of customs, import, or similar ancillary costs as well as packaging and shipping charges, which are billed separately. Our price calculations are based on the material, personnel, and freight costs effective at the time of contract conclusion. In the event that price changes ensue after the contract conclusion up until delivery due to changes in the aforementioned cost factors, we reserve the right to correct the prices accordingly.
In the event that payment is not rendered within the specified time, we calculate interest on arrears starting from the time that payment was due at the respective usual bank rate of credit costs for call money, however at least 8%-points above the base rate of the European Central Bank, which is valid at the time of start of default. We expressly reserve the right to assert claims for greater damages. Furthermore we may bill an additional charge of 15.00 euros per letter of reminder. All still respective accounts receivable are immediately due. This also applies in the event of suspension of payment, compromise settlement or insolvency process of the defaulter or the purchasing association. Payments of the Customer to purchasing associations have no discharging effect on us. Discount deductions are impermissible as long as older invoices are due for payment. Payments always settle the oldest invoice, also in case of different references made by the Customer. We may refuse outstanding deliveries or agree to deliver only against a security deposit, prepayment or cash on delivery. Likewise we may withdraw from the contract without notice or demand remedy for breach of contract. Cash, bank transfers and cheques are accepted in payment. Promissory notes are fundamentally not accepted. Cheques are received as payment only subject to the corresponding credit entry by our bank. In the event of accepted cheques we assume no obligation for punctually declaring or procuring a protest. Collection expenses are at the expense of the Customer. Should it turn out after contract completion that the credit situation of the Customer is such that it is not suitable for credit to be granted, we may demand security deposits or prepayments for all due or not yet due claims arising from the contracts, or entirely or partially withdraw from the contracts at our discretion. Claims for restitution of damages of the Customer are in this case excluded. Counter- claims of the Customer do not entitle him to offsetting. Notifications of defects do not postpone the obligation to pay.
We retain title to all delivered goods until such time as complete payment has been made for all claims arising from the contract. If the goods are consumed (used in molten pool) before complete payment, then the retention of title also extends to the liquid or pumped out molten pool. Since our goods (here: solders) are reduced in value by 40% by use, the retention of title extends to the metal bath or the utilised metal or semi-finished product in corresponding quantities. In case payment difficulties arise on the part of the Customer we may take possession of the goods subject to retention of title. Any costs incurred therefrom go on the account of the customer. Repossession of the goods only means a cancellation of the contract if we explicitly declare this to be the case. The Customer may resell the goods subject to retention of title in the ordinary course of business, but is not allowed to pledge them or transfer ownership as security. The Customer is obliged to secure our rights as conditional purchaser upon resale of the goods subject to retention of title on credit. The Customer already now transfers to us his claim from the resale of the goods subject to retention of title. The Customer may collect on the claim as long as he completely fulfils all his obligations to us and does not fall into financial arrears. In such a case, upon request the Customer must immediately provide all the required information about the assigned claims necessary for the collection, and inform the debtors of the assignment. In the event that the goods subject to retention of title are resold at a higher price along with other goods or after combination or mixing with other goods, then the assignment in advance is only to the amount of value of the original goods subject to retention of title. Furthermore the amount of a collected claim is already transferred to us in advance. The Customer holds the money in trust for us separately as indirect possessor and pays it out to us without delay. The Customer must inform us without delay of any imminent or executed access of third parties to the goods subject to retention of title or to the claims assigned in advance and must provide us with all the necessary information and documentation for an intervention. We are obligated to release the securities to which we are entitled in the extent that the realisable value of our securities exceed the claim for which securities are provided by more than 10%. In such case we are entitled to select the securities that are to be released.
Our product information and advice result from many years of research work and experience, and are provided to the best of our knowledge. However they serve solely as recommendation and do not justify any obligation to assume liabilities for the Buyer's usage of the delivered goods. In any case the Buyer is obligated to examine the suitability of our products and services with regard to the intended usage at his own responsibility. Technical changes which unavoidably occur due to the advances of progressive product development remain explicitly reserved. The contents of our product information are in no case to be considered as assurance of fitness for purpose.
Every delivery must be examined for defects without delay. Complaints are to be immediately stated in writing. The same applies to hidden defects upon determination of the defect. In the event of complaints, the Customer is also obligated to keep the goods properly at his expense until settlement of the notification of defects. Quantitative deviations within usual commercial custom and qualitative deviations within the applicable DIN-EN standards are permissible. We must be provided the opportunity of examining a notified deficiency on the premises. Without our permission, nothing may be changed on the criticized goods, nor may they be used, without loss of warranty rights.
The Customer fundamentally must prove any defectiveness. In the event of justified defects we can correct the shortcomings free of charge, deliver a replacement free of charge, or issue a credit entry for the defective goods at our discretion. The defective goods are to be returned to us at our request. Further claims, especially for compensation for damages, are excluded. However in the event that reworking or compensation delivery remains undone or is impossible, the Customer is entitled to the right of withdrawal from the contract. We can refuse the warranty claim for a deficiency until all due obligations of the Customer have been satisfied. Characteristics are only then considered assured if there is an explicit written agreement about this point. The assurance fundamentally does not mean that the Customer is secure against consequential damages caused by defects.
Guarantee entitlements expire at the earliest after the date of minimum durability (expiration date) or after 12 months from the delivery date if no expiration date is specified.
- for personal damages to the extent of the law
- for material damages up to the invoiced value of the delivered goods. Any service performances or precious metal surcharges remain unconsidered.
- Liability for property damage is fundamentally excluded
The limit of liability does not apply insofar as we or our legal representatives or vicarious agents act deliberately or with gross negligence. The limit of liability also does not apply if and insofar we are necessarily liable for personal damages or damages to privately used goods according to the law on product liability or for other reasons.
Without exception the law of the Federal Republic of Germany applies. The application of the United Nations Convention on the International Sale of Goods (CISG) from 11 April 1980 is hereby excluded. The place of performance for the parties and exclusive legal venue for any legal disputes, no matter what the legal basis, is Oberhausen. However we reserve the right to also take legal action at the seat of the Customer. If individual provisions of this contract are or become ineffective and/or void, this fact shall have no effect on the validity of the remaining provisions of this contract. The parties shall endeavour to replace those provisions which have become ineffective and/or void with such provisions which come nearest in meaning to the purpose of the original provisions.
Procurement Terms and Conditions
Unless expressly agreed upon differently, these General Terms and Conditions for Purchasing shall apply exclusively for any and all contract declarations, deliveries and services of FELDER's contract partner (hereinafter referred to as "Supplier") to FELDER GMBH (hereinafter referred to as "FELDER"), as well as for future business with Supplier; it shall be considered to be expressly agreed upon that other General Terms and Conditions, in particular those of Supplier, shall not become subject of the contract, not even by way of acceptance of the contractually agreed upon subject of delivery or by the complete payment for them. These Terms and Conditions shall not, however, apply to Consumers within the meaning of Sec. 13 BGB [Bürgerliches Gesetzbuch - German Civil Code]. Supplier's General Terms and Conditions shall not apply unless FELDER has agreed in writing that they shall apply.
Supply Agreements, their modifications and/or supplements shall be in writing to be valid. Supplier's quotes shall meet FELDER's inquiries, requirements, specifications, etc. as well as the statutory and other general requirements and quality standards, or include express notes regarding deviations. Supplier shall inform FELDER ahead of time in case Supplier has knowledge of differing country-specific requirements, regardless of whether they are statutory or related to quality. This shall also apply in case technical further developments were not taken into consideration in the inquiry. The quotes shall be free of charge for FELDER.
FELDER shall consider an order binding for 10 business days after it was sent. Calls for deliveries shall become binding if Supplier does not object within 5 business days from date of receipt. Prior to execution of a delivery, FELDER may, at any time, request a change with respect to the deliverable, the quantity or the execution of the items to be delivered unless this would be unreasonable for Supplier. For any effect this may have on costs or schedules, the parties shall arrive at a mutually suitable agreement. Calls for deliveries always may also be transmitted by remote data transfer.
The prices listed in the order shall be binding and shall be construed as net each, meaning that they do not include the statutory value added tax. Provided that nothing different has been agreed upon in writing, they shall include any and all of Supplier's ancillary services, in particular packaging, transport insurance (in addition to traffic liability insurance), mill test report 2.2 in accordance with EN 10204:2005 as well as free delivery to the business site of FELDER or the agreed upon delivery location.
Provided that nothing different has been agreed upon, FELDER shall pay invoices according to the delivery date, the delivery and receipt of invoice on the 25th of the month that follows the delivery with a discount of 3%. Supplier shall be entitled to offsetting or retention only if Supplier's counterclaims are undisputed or have been determined to be final and absolute. Any right to retention of Supplier shall be limited to claims arising from the respective specific contract. Any assignment to or inclusion of claims against FELDER by third parties shall be expressly excluded unless they arise from deliveries with extended reservation of title by Supplier's sub-suppliers.
Supplier shall deliver the deliverables and services to be delivered to FELDER's business site, said deliverables and services to be of its own production. A partial delivery and/or service as well as the utilisation of sub-suppliers shall not be allowed without FELDER's approval. Unless FELDER performs the transport itself, the risk shall be transferred to FELDER, independent of the method of shipment, upon handover of the goods to FELDER at FELDER's site of business or at the agreed upon delivery location.
In case of the delivery of metals, metal products and chemicals, a batch number shall be mandatory for each line item of the bill of delivery. If this is missing, FELDER shall be entitled to a lump sum in the amount of EUR 100 as reimbursement for having to do the registration itself. For each delivery of metals and metal products, Supplier shall provide FELDER free of charge with a mill test report 2.2 in accordance with EN 10204:2005, to be included with the delivery.
The delivery deadline specified in the order shall be computed from the day of ordering and shall be binding. It shall be fulfilled when the goods are received at FELDER or at a delivery location specified by FELDER, in case of work performed with the day of acceptance. In case of delayed delivery due to Supplier's fault, Supplier shall reimburse FELDER the additional costs/damages caused by the delay through a lump sum payment in the amount of 10% of the total sum for the contract unless FELDER proves a higher expense or if Supplier proves lesser expense or damages. Further statutory claims shall remain unaffected by this.
If Supplier does not deliver within the delivery period, FELDER may provide Supplier with a grace period of 14 days. In this case, FELDER shall be entitled, upon unsuccessful expiration of the grace period, to withdraw from the contract through written declaration and to demand compensation for damages. In this case, the compensation for damages shall amount to 0.2% of the total sum of the contract, however, in total no more than 20% of the contractually agreed upon remuneration, in case of services billed by actual expenditures 20% of the services not yet performed, unless FELDER proves higher damages or Supplier proves lower damages.
The rights to the deliveries and services shall belong to FELDER exclusively.
If FELDER provides Supplier with items, FELDER shall retain title to said items. They shall only be used for FELDER's order. Supplier shall perform processing and conversions for FELDER. In case of processing or utilisation, FELDER shall acquire joint ownership in the new item in the amount of the value of the item provided relative to the other processed items at the time of processing. Supplier shall store the joint property free of charge for FELDER. Supplier shall include FELDER in its current business insurance or in the business insurance to be purchased (against the risks, e. g., fire, burglary, etc.) for the goods provided and for the goods subject to reservation of title. Supplier shall herewith assign to FELDER any direct claims against the insurer.
In the event that Supplier is in default with payments or if Supplier violates its obligations arising from the reservation of title, FELDER shall be entitled to demand that the items that were supplied be surrendered, and shall be free, upon written announcement, to make free use of them in any way it deems best, taking into account the contractual consideration. For the period a reservation of title is in place, Supplier shall not be authorised without prior written approval by FELDER, to sell, encumber, assign as surety, rent or in any other form or fashion relinquish or change the items supplied in a manner that would be capable of affecting the surety purpose intended by FELDER. Supplier shall notify third parties of the reservation of title if said third parties access the items, in particular seize or claim a business lien, and [Supplier] shall immediately notify FELDER of this. Supplier shall bear the costs of annulling such access and for any recovery of the items.
Supplier shall agree to treat as confidential any and all business and technical details that Supplier gains knowledge of due to its business relations with FELDER. Documents, information, samples, patterns, models, tools and other means of manufacturing which Supplier receives from FELDER shall remain property of FELDER. Even beyond the duration of the contract, Supplier shall keep these confidential and shall neither record nor use and/or provide them to third parties, irrespective of the form they are in, without FELDER's approval - unless necessitated for achieving the contract's purpose. This shall apply in particular to products which are manufactured based on these documents. Supplier shall transfer these obligations to its staff, representatives and sub-suppliers. Any and all documents, including copies, duplicates, etc., shall be returned at the expiry of the contract at Supplier's cost and risk. A right o retention to this shall be excluded.
Models, matrixes, stencils, samples, tools and other means of manufacturing as well as confidential information that was provided to Supplier by FELDER or for which FELDER paid in part or in full shall only be utilised for deliveries to third parties upon prior written approval by FELDER. If Supplier violates any of these confidentiality agreements, a lump sum compensation for damages in the amount of EUR 50,000.- shall be agreed upon without a specific proof of damages, notwithstanding further claims, such as to cease, etc. The compensation for damages shall become due once the violation has been established legally.
ISO 9001 in the version that is valid at the time the contract is concluded shall apply as a minimum quality standard. For its deliveries, Supplier shall comply with the well-known laws of engineering, safety regulations, the agreed upon technical data as well as all applicable statutory rules and regulations. Product information, etc., handed out by Supplier shall be construed as a promised feature. Changes to the delivery item shall require FELDER's prior written approval. Supplier shall continuously check the quality of the delivery items. The contract partners shall inform each other regarding opportunities for quality improvement.
If there is no firm agreement between Supplier and FELDER with respect to type and scope of checks, FELDER shall be willing, upon Supplier's request and within the limitations of its knowledge, experience and options, to discuss the checks with Supplier to determine the respective necessary state of inspection technology. Furthermore, FELDER shall inform Supplier upon written request of the relevant safety rules and regulations.
The inspection reports prepared by Supplier in accordance with EN 10204:2005 shall be stored for ten year and shall be presented to FELDER upon request. Supplier shall be required to obligate sub-suppliers to the same extent within the scope of what is allowed by law. If customers of FELDER request insight into the production process and FELDER's test documents, Supplier shall, upon FELDER's request, provide them with the same rights at its facility and shall provide any and all reasonable support.
Supplier shall be liable for claims regarding violations of property rights and property right applications that arise from the contractual use of the delivery items. Supplier shall hold harmless FELDER and its customers from all claims arising from the utilisation of such property rights. This shall not apply if supplier manufactured the delivery items based on drawings, models or other descriptions equivalent to them provided by FELDER or on the basis of other information provided by FELDER and did not know or, in connection with the products developed by Supplier, could not know that this would result in a violation of property rights.
The contract partners shall mutually agree to inform each other immediately upon gaining knowledge of any risks of violation and alleged cases of violation and shall provide each other in these cases with the opportunity to counter such claims by mutual agreement. Upon request by FELDER, Supplier shall inform FELDER in writing of the utilisation of its own publicised and non-publicised property rights and of licensed property rights and property right applications regarding the delivery item.
FELDER shall be required, in accordance with Sec. 377 HGB (Handelsgesetzbuch - German Commercial Code) to inspect goods/services for obvious quality and quantity deviations within a reasonable period of time after receiving the delivery . The complaint shall be construed as having arrived at Supplier's on time if Supplier receives it within a period of 21 calendar days from the documented delivery date of the goods/services at FELDER.
In return, Supplier shall be required to inspect the goods to be shipped for freedom from defects within the meaning of the contractual agreement and shall assure FELDER that it has provided goods that are 100% free of defects. Supplier shall guarantee in this context that its goods/services, according to its knowledge, are free of third-party rights and that their utilisation by FELDER in accordance with the contract does not infringe on third party property rights. This shall not apply to those items and documents provided by FELDER.
Provided nothing different was agreed upon, the following shall apply: in accordance with Item 4 of these Terms and Conditions of Purchasing, the claims for defects shall expire 24 months after the delivery date. Sections 478, 479 BGB (Bürgerliches Gesetzbuch - German Civil Code) shall apply. Supplier shall also have opportunity to remedy the defect(s) in case of defects that were determined prior to manufacturing (processing or installation), unless FELDER does not consider that to be reasonable for it. If supplier is not able to remedy this or does not act upon this immediately, FELDER shall be entitled to withdraw from the contract without setting an additional grace period and shall be entitled to return the goods at Supplier's cost and risk. In urgent cases, FELDER shall be entitled, upon coordination with Supplier, to remedy defects itself or through third parties at Supplier's expense. The right to claims for damages shall remain unaffected. If goods from more than three deliveries within one year are defective, FELDER shall be entitled to withdraw from further not yet fulfilled contracts/deliveries and to that extent also demand claims for damages due to non-performance. The assertion of additional claims shall remain unaffected by this.
Supplier shall support, as far as Supplier's products are involved, FELDER free of charge in the defense against any and all claims arising from product and producer liability and shall hold harmless FELDER of these as well as any and all other costs arising from the defense against such claims. For this case, Supplier shall purchase a product liability and recall insurance, the coverage of which shall be sufficient to cover the potential financial consequences of a civil liability suit due to a product liability case and/or a recall of one or all products. This insurance shall always be maintained at its full scope.
Supplier shall provide proof of insurance without being prompted by means of a confirmation from the insurer prior to concluding the contract with FELDER and by presenting it annually without prompting in case of regular business relations upon the recurring due date of the insurance policy by means of a current confirmation. Claims by the Supplier for damages shall be excluded unless they arise from damages to life, body or health that FELDER is responsible for or other damages that were caused by gross negligence or wilful breach of duty by FELDER, its legal representatives or its vicarious agents and are typical of such contract and foreseeable or were founded in wilful behaviour. FELDER shall be liable if and to the extent that damages occurring are covered by FELDER's insurance and only in the amount of the insurance coverage available for the damage event. For measures taken by FELDER to mitigate damages (e. g. recall), Supplier shall be jointly liable to the extent of Supplier's share of causing them.
Permanent obligations shall begin with the signature and shall be deemed to be valid for one year from the date of the first call of a partial service, unless something else was agreed upon. There shall be no automatic extension. Furthermore, a contract shall end automatically upon expiration of the agreed upon duration, without requiring a separate termination notice. The extraordinary termination for cause without prior notice shall remain unaffected. One of the important reasons FELDER considers to be cause for terminate shall be, but not be limited to, the filing of bankruptcy proceedings against Supplier's assets as well as Supplier's performance delays of more than one month.
Transfers to third parties of Supplier's rights and obligations arising from contracts concluded between FELDER and Supplier shall require written approval by FELDER to become effective. If Supplier stops providing its services or if bankruptcy proceedings are filed against its assets or if an out-of-court settlement is filed, then FELDER shall be entitled, independent of the regulation under Item 10, para. 2, to withdraw from the non-fulfilled part of the contract.
The law of the Federal Republic of Germany shall be exclusively applicable. The agreement of the United Nations dated April 11, 1980 regarding Contracts regarding the International Sale of Goods (CISG) shall expressly be not applicable even if Supplier's place of business is abroad. Place of Performance for the services of the contract partners and exclusive Place of Jurisdiction in case of disputes, no matter for which legal reason, shall be Oberhausen (Germany). FELDER does, however, reserve the right to also file suit at Supplier's location. As a courtesy, these terms and conditions have been provided in English as well as German. In the event of an inconsistency the original version (German) shall prevail.
A potential nullity of individual contract clauses shall not affect the effectiveness of the other clauses. The contract partners shall strive to replace the void provision with one that is legally valid and for the most part equivalent to the meaning and purpose of the void provision.