GTC

General Terms and Conditions

Bead company GmbH

 

Art. 1 General, scope

(1) These General Terms and Conditions apply to all our business relationships with our customers (hereinafter “Buyer”). The General Terms and Conditions only apply if the Buyer is an entrepreneur (German Civil Code [BGB], section 14), a public legal entity or a public-sector entity with special assets. The General Terms and Conditions apply in particular to the sale and/or delivery of movable items (referred to hereinafter also as “Goods”, regardless of whether we manufacture the Goods ourselves or buy them in from sub-suppliers (German Civil Code [BGB], sections 433, 651).

(2) Our General Terms and Conditions apply exclusively. Any different, contradictory or additional General Terms and Conditions of the Buyer shall only form part of the contract, if we have explicitly recognised them. The requirement for recognition applies in every case, for example, even if we carry out the delivery without reservation in knowledge of the Buyer's terms and conditions.

(3) Any individual agreements made in the individual case with the Buyer (including secondary agreements, additions and changes) always have priority over these General Terms and Conditions. A written agreement or our written confirmation is decisive for the content of such agreements.

(4) Accessories and services (e.g. assembly work, accompanying commissioning measures) which are not expressly mentioned in the offer and order confirmation do not form part of the scope of services.

 

Art. 2 Conclusion of contract

(1) Our offers are subject to change and are provided without obligation. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. documentation, plans, calculation, costings, references to DIN standards), other product descriptions or documents, even electronically, to which we reserve proprietary rights and copyright.

(2) If the Buyer orders the goods, then this is considered a binding contractual offer. Unless the offer stipulates to the contrary, we are entitled to accept this contractual offer within two weeks following receipt at our company.

(3) The acceptance can declared either in writing (e.g. by means of an order confirmation) or by sending the Goods to the Buyer.

(4) When an order is placed, we reserve the right to implement our internal manufacturing standards when making moulds. These may deviate from the standards (specifications) of the customer.

(5) When the contract is concluded, the Buyer is responsible for checking the following: Machine accuracy, loading weight of the press frames (mould load capacity), media supply/cross-sections of the supply line (steam, air, water) – also see Points 2.10 and 2.11 of the Safety and instructions for use. The examination of these parameters is not included in the scope of services offered by the Seller.

(6) The finished 3D mould design is not included in the scope of services. In order to guarantee a smooth process flow, we make available to the buyer in individual cases - only on request - after completion of the mould design, general overview drawings in pdf format and 2D/3D viewer data with measuring and cutting function of the mould design.

 

Art. 2a Sampling and experiments in bead factory (TecCenter)

(1) Booking of the TecCenter covers the time needed for setting up the mould systems/prototypes setup as well as the following test times. Charging to the full extend (as daily flat rate).

(2) The system technology, as well as the qualified personnel needed in the TecCenter must be requested in writing in advance and will be made available accordingly on the test days.

(3) The costs for the TecCenter are charged for as daily flat rate. Unless otherwise agreed in writing, T. Michel provides an employee and the system technology (8 hours/day).

(4) During test days, bead company will also provide a meeting room with 8 seats, a 55-inch screen and guest WLAN.

(5) When using the TecCenter, bead company does not guarantee any problem solving, but booking of the TecCenter is solely for experimental and test purposes.

(6) Payment for the services provided in the TecCenter becomes due 8 days after completion of the final day in the laboratory in full.

(7) Provision of the raw material for sampling or test series is organised by the customer, unless otherwise agreed in writing. The raw material to be processed must be supplied to the TecCenter together with the safety data sheets 2-3 work days before the start of the test series.

(8) Unless otherwise agreed in writing, all dimensions are realised in compliance with the general tolerances for PUR foaming  and particle foaming parts according to DIN ISO 2768-1 sg.

(9) If the tests cannot be completed within the booked period, the customer determines the new chargeable time window while considering the current laboratory booking – in agreement with bead company.

(10) The applicable safety regulations must be observed, and personal protective equipment must be worn while in the TecCenter. Customers agree to sign a non-disclosure agreement (for safeguarding projects, systems and plant facilities from T. Michel) on the first day in the laboratory. This can be previewed on our Homepage in the Download area.

(11) Leaving the TecCenter for the production area, as well as the creation of images and videos, is only permitted by approval of an authorised employee of bead company and/or T. Michel.

(12) Downtimes – caused by faults in the laboratory – are made up for by bead company on the same day or the next working day free of charge. In case of faults/delays or execution errors which are not the fault of bead company, the booked laboratory days and flat rates for setup will be charged for in full.

(13) After sampling, customers can have the sample parts collected at their own expense plus packaging costs and any applicable handling fees.

 

Art. 3 Delivery date, default and the Buyer's obligations to co-operate

(1) The delivery date is agreed individually, or we provide it when we accept the order. If the Buyer fails to supply the data mentioned in Art. 3(5) by the time the contract is signed at the latest, we are entitled to extend the delivery date by the period between when the contract is signed and all the data mentioned in Art. 3(5) is handed over, and by a further period of up to 8 weeks if the period between signing the contract and submitting all the data mentioned in Art. 3(5) is more than two weeks. The delivery date mentioned is extended by the period between the agreed due date for payment of the purchase price and receipt of the relevant payments, irrespective of whether the Buyer is late with making payment.

(2) If we are unable to make the binding delivery dates for reasons for which we are not responsible (goods are not available), we shall inform the Buyer about this without delay and notify them of the likely, new delivery date at the same time. If the Goods are also not available within the new delivery date, we are entitled to withdraw from the contract, in full or in part; the Buyer will, of course, be refunded for any payment they have already made. Cases where the Goods are not available are, in particular, if we have signed a congruent covering transaction and we have not been supplied by our supplier, and neither we nor our supplier is responsible, or we have no procurement obligation in the individual case.

(3) Statutory regulations determine whether we are in default. However, the Buyer must always send a reminder.

(4) This shall not affect the rights of the Buyer in accordance with Art. 8 Other liability of these General Terms and Conditions and our statutory rights, particularly the exclusion of the duty to perform (e.g. because performance and/or supplementary performance is impossible or unreasonable).

(5) In the case where moulds or services are purchased, the Buyer has to provide us with all the required data to manufacture the moulds or services (in particular the complete CAD data, free from any errors, in STEP or SolidWorks format, material properties, interface specifications for the machine in which the mould is operated; shrinkage; the material to be processed (EPS/EPP) including details about the density, tool configuration, position and number of fillers and ejectors, technical configuration of the moulds (standard monoblock, crack gap, compression fitting, atomising, surface coating and textures); mould coolant, dimensions of the sealing and guide components by the time the contract is signed at the latest. Adaptions of geometric deviations due to textures and/or coatings and /or inserts are not included in our scope of delivery – see also § 7a (9).

 

Art. 4 Delivery, transfer of risk, acceptance and default of acceptance

(1) Delivery is made ex the Lauert plant that is also the place of performance. The goods may be dispatched to a different location at the Buyer's request and cost. Unless agreed to the contrary, we are entitled to determine the type of shipping (in particular the haulier, dispatch route, packaging) ourselves.

(2) The risk of accidental loss and accidental degradation of the Goods passes to the Buyer at the point they are handed over at the latest. However, in the case of a sale by delivery to a place other than the place of performance, the danger of accidental loss and accidental degradation of the Goods and the risk of a delay already passes to the haulage contractor, freight carrier or other person or organisation charged with carrying out shipping when the Goods are dispatched. If an acceptance inspection is agreed, this is crucial for the transfer of risk. Otherwise, the statutory regulations of the Work and Services Contract Law apply accordingly to an agreed acceptance inspection. If the Buyer defaults on acceptance, this is deemed equivalent to handover and acceptance.

(3) If the Buyer defaults on acceptance, they fail to meet their duty to co-operate, or our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for any arising loss including additional expenditure (e.g. storage costs). We calculate flat-rate compensation of 0.5% of the agreed net price per week commenced (though a maximum 5% of the net price, or in the case of a final failure to accept the goods, 10%), starting from the delivery date, or in the absence of a delivery date, with notification that the Goods are ready to be dispatched. This does not affect our right to claim a higher loss and our statutory rights (in particular reimbursement for any additional expenditure, reasonable compensation, termination); the flat-rate sum is, however, added to any further monetary claims. However, the Buyer is allowed to prove that we did not incur any loss or only a loss significantly less than the aforesaid allowance.

(4) also see the information in §7a

 

Art. 5 Prices and payment terms

(1) Unless agreed to the contrary in the individual case, our current prices agreed at the time the contract was signed, apply, and ex the Lautert plant, plus the statutory rate of VAT.

(2) In the event of a sale by delivery to a place other than the place of performance, (Art. 4(1)), the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance the Buyer requires. The Buyer bears any customs duties, fees, taxes and other official levies.

(3) The purchase price is due and payable strictly net upon receipt of invoice (payments by check are not accepted). 33% is invoiced when the contract is signed, a further 33% upon completion and prior to delivery of the Goods and 34% within 30 days of the Goods being delivered, unless another written agreement concerning payment terms has been concluded.

(4) The Buyer shall be in default if the above payment terms have elapsed. Interest is charged on the purchase price at the applicable rate for default interest during the period of default. We reserve the right to claim a greater loss as a result of default. This does not affect our right to claim commercial default interest in dealings with buyers (German Civil Code, section 353).

(5) The Buyer is only entitled to offset or withhold monies, insofar as their claim is legally enforceable and undisputed. This does not affect the Buyer's rights to make counter claims in accordance with Art. 7(6) paragraph 2 of these General Terms and Conditions in the event of faults with the deliveries.

(6) If it becomes apparent after the contract has been signed that our entitlement to the purchase price is being put at risk because of the Buyer's lack of solvency (e.g. because of an application to open insolvency proceedings), we are entitled to withdraw from the contract in accordance with the statutory regulations to refuse performance, and after setting a period of grace, if necessary (German Civil code, section 321). We are able to withdraw straight away in the case of contracts for the manufacture of specific items (individual constructions); this does not affect the statutory regulations on the lack of necessity to set a time limit.

 

Art. 6 Reservation of title

(1) We retain title to the sold Goods up to payment in full of all our current and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).

(2) The goods subject to a reservation of title may not be pledged to third parties nor given up a security before the secured claims have been paid in full. The Buyer must notify us immediately in writing if and insofar as third parties have claims to the Goods that belong to us.

(3) In the event of conduct by the Buyer that violates the contract, in particular, if they fail to pay the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory regulations and to demand that the Goods be released because of the reservation of title and rescission. If the Buyer fails to pay the purchase price due, we may only assert these rights, if we have previously set the Buyer a reasonable period of grace for payment, or it is possible to dispense with such a period of grace based on the statutory regulations.

(4) The Buyer is entitled to sell on and/or process the Goods subject to the reservation of title during the normal course of business. The following conditions apply in addition in this case.

(a) The reservation of title also extends to products that are created as a result of processing, mixing or co-mingling at their full value, where we are considered to be the manufacturer. If when processing, mixing or co-mingling with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or co-mingled goods. In all other respects, the same applies to the created product as to the supplied Goods with reservation of title.

(b) The Buyer herewith assigns to us by way of security the claims against third parties arising from the onward sale or the claims arising from the products, in full or in part, a sum equal to our possible co-ownership share in accordance with the aforementioned paragraph. We accept the assignment. The Buyer's obligations mentioned in paragraph 2 also apply with respect to the assigned claims.

(c) The Buyer remains authorised to collect the debt alongside us. We are obliged not to collect the debt, provided the Buyer meets their payment obligations to us, does not fall into arrears, no application is made to open insolvency proceedings, and no other lack of its financial capacity occurs. If this is the case, however, we can demand that the Buyer has notified us of the assigned claims and their debts, of all details required for collection, hands over the associated documents and notifies the debtors (third parties) about the assignment.

(d) If the realisable value of the securities exceeds our debts by more than 10%, we may choose to release the securities at the Buyer's request.

 

Art. 7 Buyer's claims for defects

(1) Unless stipulated to the contrary in the following, the statutory regulations apply to the rights of the Buyer for material defects and defects of title (including incorrect and short delivery and incorrect assembly or unsatisfactory assembly instructions). The statutory special regulations for the final delivery of the Goods to a consumer are not affected (recourse against a supplier in accordance with German Civil Code, sections 478, 479).

(2) The agreement reached on the quality of the Goods, in particular, forms the basis for our liability. The product descriptions described as such (also those of the manufacturer) that were assigned to the Buyer before their order or similarly included in the contract as in these General Terms and Conditions, and in particular, the specifications of Art. 7a of these General Terms and Conditions and the document “Safety and User Instructions” that you can download from the “Download” area of our website http://www.michel-form.de) apply as the agreement on the quality of the Goods.

(3) If the quality has not been agreed it should be assessed based on the legal regulations whether there is a defect or not (German Civil Code, section 434(1) ii and iii). We accept no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).

(4) The Buyer's defect claims depend on them having met their statutory duties of inspection and complaint (German Civil Code, sections 377, 381). If a defect emerges during the investigation or subsequently, we must be notified about this in writing without delay. Notification shall be deemed to have been sent without delay if it is made within two weeks, with prompt dispatch of the notification being sufficient for giving notice. Regardless of this duty of investigation and to notify any complaints, the Buyer must notify any obvious defects (including incorrect or short deliveries) within two weeks of delivery, where timely dispatch of such notification is sufficient for granting notice. If the Buyer fails to carry out a proper investigation and/or notify any defects, this excludes liability for any defects that have not been notified.

(5) If the delivered item is defective, we can initially choose whether to provide subsequent performance by rectifying the fault (rework) or by supplying an item free from defects (replacement delivery). This does not affect our right to refuse to provide subsequent performance under the legal requirements.

(6) We are entitled to make subsequent performance for which we are liable dependent upon the Buyer paying the purchase price due. The Buyer is, however, entitled to have returned a reasonable share of the purchase price proportionate to the defect.

(7) The Buyer must give us the necessary time and opportunity to make the subsequent performance for which we are responsible, in particular to hand over the Goods subject of a complaint for the purpose of testing. In the event of a replacement delivery, the Buyer must hand back the defective item in accordance with the statutory regulations. Subsequent performance does not include either the dismantling of the defective item or re-installation, if installation was not originally our responsibility.

(8) We bear the expenditure required for testing and subsequent performance, in particular transport, road charges, labour and material costs (not the costs for dismantling and installation), provided there is actually a defect. If the Buyer's demand for rectification of a defect appears unjustified, we are able to demand reimbursement for any costs incurred from the Buyer.

(9) Claims for compensation on the part of the Buyer or reimbursement for any futile expenditure are only possible subject to Art. 8 and are otherwise excluded.

(10) Any amendments/extensions made by the Customer during the guarantee/warranty period, without the written permission of the manufacturer, will void the whole guarantee/warranty claim.

 

Art. 7a Product features, safety information, conditions of use, repair work and maintenance instructions

Bead company GmbH  assumes no guarantee or liability for existing production facilities equipped with internal pressure, machine steam chambers, monoblock chamber and other machine systems equipped with internal pressure, or for those supplied by bead company GmbH. The system technology operator is fully responsible for operating these pressure systems. He must have the complete production system inspected and approved by a competent specialist (e.g. TÜV / Technical Inspection Agency). Approval must occur in particular – in compliance with the pressure vessel regulation/provisions applicable at the site of operation. If there are specific requirements in this regard, which must be observed by bead company GmbH in advance, the client/operator is obliged to communicate this information to bead company GmbH in a separate document at the time of the enquiry as well as when placing the order.

(1) Demoulding plates, undercuts, slide bars, injectors, surface coating, surface treatments, grooving, steam chambers, ante and build chambers and foam moulding in 2 densities are not included in the Tool's scope of supply, unless explicitly agreed. We require a 3D-date file in order to complete the Tool. If the data file contains errors, a charge of 80 euro per hour will be made for the repair. Tool cavities are manufactured in accordance with the data file. If the data does not contain any drafts, these will only be worked into the CAD model and into the cavities following a special order and at a cost. Our scope of supply does not include identification plates without CAD data. The Tools are made with a manufacturing tolerance of DIN 7168 m and for castings according to DIN 7168 g.

(2) Guide values of the corner radii for milling mould cavities that are milled from blocks:

• R1 up to a moulding depth of 15 mm

• R2 up to a moulding depth of 40 mm

• R3 – R 4 up to moulding depth of 70 mm.

• R5 – R8 up to moulding depth of 90 mm.

• R10 – R12.5 up to moulding depth of 130 mm.

(3) Unless explicitly agreed, we are only responsible for producing the Tool manufactured in accordance with the specifications provided by the Buyer based on Art 3(5). It is the Buyer's responsibility to ensure that the End Product can be produced with the Tools using the data we have supplied. If, contrary to paragraphs 1 and 2, we provide a specification service for the Tool, the Buyer must accept the specification before the Tool is manufactured; in this case, the specification accepted by the Buyer shall be considered the agreed quality.

(4) The following applies unless explicitly agreed to the contrary: to avoid corrosion damage to the sold Tools, the coolant water and the hot steam must be prepared using the water values. A pH value of between 6 and 7.5, and water hardness (limescale) smaller than 1,5 °dH are crucial. The water must also be filtered so that it is free from dirt. We will notify exact water values with respect to other components and properties upon request. The air quality for Tools with compressed air operations, drive elements, particularly for injectors, must be filtered and prepared in accordance with DIN SO 8573-1 quality classification 3.

(5) Operating tools and injectors is subject to technical safety requirements that can be taken from our tooling documentation and injector documentation. Notice should be taken of these prior to the operation. The maintenance instructions and operation instructions can be downloaded from the “Download” area of our website (http://www.michel-form.de). A password is required for this of which we will notify you upon request.

(6) The required air pressure range for filling guns during air removal in the filling operation add up to    5 – 6 bar. By pneumatic driven cylinders and equipments the required air pressure range is minimum  6 – maximum 8 bar.

(7) The installation and implementing (incl. electric cabling) of electric components (e.g. form pressure- and temperature sensor, servomotor) does not effected through bead company GmbH and/or T. Michel Formenbau GmbH & Co. KG. These service is not be integrated in our scope of supply, except this would be explicit agreed and written confirm.

The point load on the membrane of the Sensor may not exceed the pressure of 9 bar.

(8) Mechanical and electrically operated components (e.g. servomotor, core puller mechanism, movable components) must be provided by the customer checked on functionality and electric requested. These inspection /request must be execute trough the customer and is not be integrated in our scope of supply, except this would be explicit agreed and written confirm.

(9) Moulds with a texture and surface coating

All textures are introduced by T. Michel by means of a laser texture. The common etching textures are also introduced by the laser process. Unless the customer expressly ordered an etching grain in the etching process in writing. All laser textures that are deeper than 0.33 mm are designed with a non-stick and protective coating against wear. This coating is a pure protective coating, which wears according to use, but is required for the durability of the texture. If the protective coating wears and the coating is worn in the used areas, the cavities must be recoated. If this is not observed, the surface areas will be irreparably damaged. T. Michel excludes the warranty of all surface coatings. Moulds with textures and surface coating must be particularly protected against mechanical damage. The mould cavities must be covered with a soft protective foam cushion during storage periods. The moulds must be secured and protected against external influences such as pushing, moving, falling and knocking with a mechanical mould protection. The moulds and cavities must be particularly protected against environmental impacts like salt water, rain water, acids, alkalis and soot. We recommend storage in a protected enclosure for this purpose. It must be ensured that the surface coating and textures do not come into contact with hard, pointed and sharp objects during setup, production and maintenance tasks. The delicate surfaces are particularly susceptible to damage by scraping, grinding and scratching. If the textures have been clogged with dust, raw materials or dirt, this must be removed by an expert. We highly recommend to have this operated only by suitable specialist firms. All supplied media like steam, water and air must have specific purity levels and properties specified by the manufacturer (see General Terms and Conditions §7a (4) / Safety and Instructions for Use, item 2). If these purity levels and properties are not complied with, any resulting contamination can clog the ventilation holes and textures. The dust and dirt particles contained in the media and raw material can result in an increased wear of the surface coating and washing off of the cavity decor surface. Before you close the mould you must check the cavity temperature from both sides. We recommend to raise the temperature field gradually from a cold to hot temperature range. In case of overheating, the raw material can melt and get deposited and lodged in the base of the texture. T. Michel assumes no guarantee for the particle foam raw material being free from creases, pores, scratches and being demouldable. These textured surfaces on the production articles depend significantly on the foam material, the density, article geometry as well as the production process and associated production parameters.

Texture depths at the final product depend on process and material. This fact influences the dimensions of components. The exact values can only be determined by practical trials. Data provided by customer are the basis for creating non textured cavities without consideration of texture depths and/or coatings, because textures and/or coatings are applied in the cavities in a second step.

 

Art. 8 Other liability

(1) If these Terms and Conditions including the following regulations do not stipulate to the contrary, we shall be liable for our contractual and non-contractual obligations in accordance with the relevant statutory regulations.

(2) We are liable to provide compensation, regardless of the legal grounds, in the event of intent or gross negligence. In the case of simple negligence, we are only liable for

a) damages that result from injury to life, body or health;

b) damages that result from a breach of an essential contractual obligation (obligation without which the proper implementation of the contract is not possible and upon whose compliance the contractual partners regularly rely and may rely); in this case, however, our liability is limited to the compensation for foreseeable and typically occurring damages;

(3) the limitations of liability that arise from paragraph 2 do not apply if we have maliciously concealed a defect or have accepted a guarantee for the quality of the Goods. The same applies to the Buyer's claims based on product liability legislation.

(4) The Buyer may only withdrew from or terminate the contract because of a breach of obligation that does not consist of a defect, if we are responsible for the breach of obligation. The Buyer has no free right to terminate the contract (in particular in accordance with the German Civil Code, sections 651, 649). The statutory provisions and legal consequences apply in all other respects.

 

Art. 9 Limitation

(1) The period of statutory limitation for claims for material defects and defects of titles is one year from delivery. If acceptance has been agreed, the period of limitation starts with acceptance.

(2) If, however, the Goods are a building structure or an item that has been used as a building structure according to its usual purpose and whose deficiency has been the cause (material), the period of limitation is 5 years in accordance with the statutory regulation (German Civil Code, section 438 (1) ii). The special statutory regulations for third party property claims (German Civil Code, section 438(1) i), fraudulent intent on the part of the Seller (German Civil Code, section 3) and for claims in recourse against the Seller (German Civil Code, section 479).

(3) The aforesaid periods of limitation of sales law apply to the Buyer's contractual and non-contractual claims for compensation that are based on faults with the Goods, unless the application of the regular statutory period of limitation (German Civil Code, sections 195, 199) would result in a shorter limitation period in the individual case. That shall not affect the limitation periods of the product liability law in any case. Otherwise, the statutory periods of limitation in accordance with Art. 8 shall apply to the Buyer's claims for compensation.

 

Art. 10 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and to all legal relationships between us and the Buyer and to the exclusion of international unity and the UN Convention on the International Sale of Goods. Requirements and effects of the reservation of title in accordance with Art. 6 are subject to the law at the particular location where the item is stored, if according to such requirements the choice of law in favour of German law is not permitted or unenforceable.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, or a legal entity under public law or a public-sector entity with special assets, the sole place of jurisdiction for all disputes arising, directly or indirectly, from the contractual relationship is our business premises in Lautert. We are, nonetheless, entitled to make a claim at the Buyer's general place of jurisdiction.

​

Please find the Safty and instructions for use in the download.

- first published in February 2024 -