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General Terms and Conditions of Sale and Delivery

Article 1 General provisions / Scope

(1) Our General Conditions of Sale apply exclusively; we shall not recognize terms and conditions of the Customer which conflict with, deviate from or add to, our General Conditions of Sale, unless we have expressly agreed to their validity in writing. Making reference to a letter of the Customer which includes or refers to the terms and conditions of the Customer or third parties indicates no agreement to the validity of said terms and conditions. Our General Conditions of Sale also apply if we implement an order without reservation in the knowledge of terms and conditions that conflict with, deviate from or add to our General Conditions of Sale.

(2) Our General Conditions of Sale only apply to entrepreneurs within the meaning of Section 310(1) of the German Civil Code, as well as legal entities and special funds under public law.

(3) If individual provisions of our Conditions of Sale are or become ineffective, the validity of all other provisions shall not be affected.

Article 2 Offer and contract conclusion / Different oral agreements

(1) Our contractual offers are subject to change and non-binding, unless they have been expressly designated as binding or they include a specified term of acceptance. We are entitled to accept orders or commissions within 14 days of receipt. The time limit begins with receipt of the order.

(2) Our written order confirmation determines the scope of delivery or service. Assurances of properties, amendments, additions and collateral agreements shall only be effective if made in writing.

(3) Our sales staff is not authorised to make verbal collateral agreements or promises which extend beyond the contents of the written agreement.

(4) We retain proprietary rights and copyright to images, drawings, calculations and other documentation. Prior to providing these to third parties, the Customer requires our express agreement thereto.

(5) In the case of series production or custom-made products we reserve the right to under or over deliver by 10%. The excess or shortage quantities are calculated accordingly.

(6) We are entitled to partial deliveries, insofar as they are reasonable for the Customer.

Article 3 Prices / Payment

(1) The prices stated by us apply for the scope of performance and delivery listed in the order confirmation. Additional or special services will be invoiced separately. Prices are to be understood in Euros and "ex works" excluding packaging, legally applicable VAT, customs as well as fees and other public dues for export deliveries.

(2) Insofar as no fixed price agreement has been made, we reserve the right to make reasonable price modifications due to due to changes in cost of wages, materials and/or sales for deliveries occurring 3 months or more after conclusion of the contract.

(3) Invoice amounts are to be paid without any deduction within 30 days, unless otherwise agreed in writing. The date on which we receive the payment is authoritative. Cheques shall be considered as payment only after having been cashed.

(4) We are entitled to make outstanding deliveries or provide outstanding services only against advance payment or provision of security, if following conclusion of the contract circumstances become known which could substantially reduce the Customer's creditworthiness and endanger payment of our open claims arising with the Customer from the contractual agreement.

Article 4 Delivery times / Default of acceptance / Transfer of risk

(1) Delivery is "ex works".

(2) Delivery dates and periods indicated by us apply only approximately, except if a fixed date or period has been promised or agreed upon expressly.

(3) Delivery times begin on the date of our confirmation of order; their beginning requires all technical queries to be clarified. Compliance with delivery times also assumes timely and proper fulfilment of the Customer's obligations. The plea of non-performance of the contract remains reserved.

(4) Insofar as shipment has been agreed upon, delivery times and deadlines refer to the time of handover to the forwarder, carrier, or other third party assigned to transport the goods. 

(5) Our delivery obligation is subject to our own correct and timely receipt of supplies, except if we are responsible for the incorrect or delayed delivery.

(6) Where the Customer is in default of acceptance or culpably violates other obligations to cooperate with us, we shall be entitled to demand compensation for damages that we incur, including any additional expenses. We reserve the right to make further claims.

(7) Insofar as the conditions at (5) exist, the risk of accidental loss or deterioration of the object purchased transfers to the Customer at the time at which the Customer is first in default of acceptance or performance of other obligations to cooperate.

(8) Delivery times are considered to have been met if the goods leave the warehouse in Graben-Neudorf before the delivery time expires.

(9) In the event of unforeseen obstacles which are beyond our control and could not be prevented even with the due care required by the circumstances - regardless of whether they occurred at our premises or at those of a subsupplier - such as force majeure events (e.g. war or natural catastrophes), delays in delivery of essential raw materials or other circumstances not imputable to us - we are entitled to wholly or partially withdraw from the delivery contract or to extend the delivery time by the duration of the impediment. We hold the same rights in the event of strikes or lockouts at our premises or at those of a sub-supplier. We will promptly inform our clients of such circumstances.

(10) In the event of a delay in delivery, the Customer is entitled to withdraw from the contract after a reasonable period of grace has expired to no avail; in the event of impossibility of performance on our part, the Customer is entitled to this right even without a grace period. A period of at least 14 days (and at least 1 month for orders of custom-made products) is appropriate. Delay in delivery shall be equated to impossibility if the delivery does not follow after 1 month or 6 weeks in the event of deliveries of custom-made products. Claims for damages (including any consequential damages) are excluded without prejudice to paragraph 11; the same applies to reimbursement of expenses.

(11) The exclusion of liability regulated under paragraph 10 does not apply insofar as an exclusion or limitation of the liability for damages from injury to life, limb, or health is agreed and said injury is caused by an intentional or grossly negligent violation of the duties by the user or an intentional or grossly negligent violation of the duties by a legal representative or vicarious agent of the user; the exclusion of liability does not apply either insofar as an exclusion or limitation of the liability for other damages is agreed and said damages are caused by a violation of the duties by a legal representative or vicarious agent of the user.

Insofar as we culpably breach a contractual or material obligation, liability is not excluded, but limited to foreseeable damages that are typical of the contract. The above shall apply also to reimbursement of expenses.

Article 5 Transfer of risk / Packaging costs / Insurance

(1) The risk of accidental loss or accidental deterioration transfers to the Customer upon handover to the carrier or haulier, at the latest, however, when the equipment leaves the premises. The Incoterms-2000 "ex works" clause shall apply (German version).

(2) If handover is delayed due to any circumstance for which the Purchaser is responsible or on its instructions, then risk transfers to the Customer from the date of notification of readiness for shipping. Upon express, written request of the Purchaser, we undertake to insure the goods stored by us at its expense. This also applies if a delivery deadline has not been agreed expressly, subject to the risk transferring to the Customer 7 calendar days after notification of readiness for shipping.

(3) Where requested by the Customer, we shall obtain transport insurance for the delivery; the Customer shall bear the costs incurred in this respect.

(4) Transport packaging and all other packaging that complies with the German Packaging Ordinance will not be taken back except for pallets. The Purchaser undertakes to dispose of the packaging at its own expense.

(5) The Customer shall take delivery of the goods supplied, even if they are slightly defective, without prejudice to its rights arising from Section 433 et seq. of the German Civil Code.

Article 6 Retention of title

(1) We retain title to all delivered goods until full receipt of all payments arising from the business relationship with the Customer. Insofar as there is a current account agreement between us and the Customer, the reservation of title also applies to the currently recognised balance. If the Customer acts contrary to contract, in particular, if the Customer is in default of payment, after setting an appropriate deadline, we are entitled to take back the object purchased Taking back the goods always constitutes withdrawal from the contract. We are entitled to dispose of the goods after taking them back; the proceeds from disposal are to be credited to the liabilities of the Customer – minus reasonable disposal costs.

(2) The Customer undertakes to handle the delivered goods with care; in particular, it undertakes to insure the said object against fire, water damage and theft with sufficient to cover its replacement value.

(3) In the event of seizure or other action by third parties, the Customer must inform us immediately in writing, so that we can bring a complaint under Section 771 of the German Code of Civil Procedure. Where the third party is not able to pay the judicial and extra-judicial costs of our complaint under § 771 German Code of Civil Procedure, the Customer shall be liable for the resultant costs incurred by us.

(4) The Customer is entitled to resell the goods in the ordinary course of business; it shall, however, assign to us all claims which accrue to it from the resale against its customers or third parties, in the amount of the final invoiced amount (including VAT), regardless of whether the goods are resold without or after processing. The Customer is entitled to collect the assigned claims even after assignment. Our power to collect the claims remains hereby unaffected. However, we undertake not to collect the receivables, so long as the Customer continues to meet its payment obligations from the proceeds collected, does not enter into default of payment and, in particular, is not the subject of an application for the initiation of insolvency proceedings and has not suspended payments. However, where these circumstances arise, we can require the Customer to notify us of the assigned receivables and the relevant debtors and to provide us with all necessary information to collect the receivables and with accompanying documentation and to notify the debtors (third parties) of the assignment. The claim transferred to us in advance by the Customer, insofar as a current account agreement exists, refers also to the acknowledged account balance.

(5) Processing or modification of the goods by the Customer is always undertaken on our behalf. Insofar as the goods are processed with other objects that do not belong to us, we shall acquire co-ownership of the new item at the ratio of the value of the goods (final invoiced amount, including VAT) to the other processed objects at the time of processing. The same provisions shall apply to the object resulting from such processing as to the goods under reservation of title.

(6) If the goods are inseparably combined with objects that do not belong to us, we shall acquire co-ownership of the new item at the ratio of the value of the goods delivered by us (final invoiced amount, including VAT) to the other combined objects at the time of combination. Where the combination is effected in such a way that the Customer's item is the main constituent of the new object, it is agreed that the Customer shall assign proportionate joint title to us. The Customer shall hold the sole ownership or co-ownership on our behalf.

(7) We undertake to release securities available to us, upon the Customer's request, when the realisable value of our securities exceeds the value of the receivables being secured by more than 10 %; we are entitled to choose which securities to release.

Article 7 Warranty and liability

(1) The Customer is obliged to meet its obligation to inspect and submit complaints in compliance with Section 377 of the German Commercial Code as a pre-requisite for making any claim on the basis of defects. Quality-related defects in the goods shall be reported in writing promptly, no later than 7 days after delivery. Quality-related defects that cannot be discovered within this period, even upon examination with the utmost care, shall be reported in writing promptly upon their discovery, no later than before the agreed or statutory limitation period expires, and any reworking or processing shall be immediately discontinued. In the event of a significant reduction of value or usability of the goods, our liability for material defects is excluded. If the goods have already been resold or transformed, the Customer only has the right to reduction.

(2) If there is a defect imputable to us, we are at our discretion entitled to rectification or replacement delivery. The precondition in this case is that the defect is not insignificant. In the event of repair, we are obliged to bear transportation, labour and material costs, insofar as these are not increased by virtue of the delivered goods being taken to a place other than the place of performance. The information provided by us regarding the object of the delivery as well as our representation of it (such as drawings, images) are only approximations, insofar as usability for the contractually determined purpose requires precise conformity. Discrepancies in weight of up to 2% do not constitute defects. Wherever permissible, weights can be calculated according to DIN standards without weighing. The additions and reductions (commercial weights) reductions customary in the non-ferrous semi-finished metal product trade in Germany remain unaffected. The number of units or bundles and other similar information stated in the delivery notice is not binding for goods specified by weight. Insofar as an individual weighing is not carried out usually, the total weight of the delivery shall prevail. Differences to the calculated single weights shall be distributed proportionally.

The Customer is obliged to describe to us in accurate and comprehensive detail the conditions under which the delivered goods are to be used. We reserve the right to design modifications for the benefit of technical progress, provided that they do not involve any changes in function.

If one of the two types of subsequent performance or both prove impossible or unreasonable, we are entitled to refuse them.

As long as the Customer fails to meet payment obligations to an extent that reflects the defect-free portion of the performance, we are entitled to refuse subsequent performance.

(3) If the rectification or replacement delivery do not occur within a reasonable period - in consideration of our delivery possibilities - or if the rectification and/or replacement delivery fail, the Buyer may demand a reduction of purchase price or withdraw from the contract.

(4) Unless otherwise provided below (par. 6), further claims by the Buyer, on any legal grounds (in particular claims arising from a breach of principal or subsidiary contractual obligations, reimbursement of expenses with the exception of that pursuant to Section 439 II of the German Civil Code, unlawful acts or other tortious liability), are excluded; this applies in particular to damages not caused to the delivery item itself and to claims for loss of profit; claims which do not result from the defectiveness of the object purchased are also included.

(5) The preceding provisions also apply in the event of delivery of another item or a lesser quantity.

(6) The exclusion of liability regulated under paragraph 4 does not apply insofar as an exclusion or limitation of the liability for damages from injury to life, limb, or health is agreed and said injury is caused by an intentional or grossly negligent violation of the duties by the user or an intentional or grossly negligent violation of the duties by a legal representative or vicarious agent of the user; the exclusion of liability does not apply either insofar as an exclusion or limitation of the liability for other damages is agreed and said damages are caused by a violation of the duties by a legal representative or vicarious agent of the user.

Insofar as we culpably breach a contractual or material obligation, liability is not excluded, but limited to foreseeable damages that are typical of the contract; it is otherwise excluded pursuant to par. 4.

Furthermore, the exclusion of liability does not apply if under product liability law liability exists for personal injury or material damage to privately used objects.

It also does not apply in the event of assumption of a guarantee and assurance of a feature, if a defect thereby covered triggers our liability.

The above shall apply also to reimbursement of expenses.

(7) No warranty shall be assumed for damages attributable to unsuitable or improper use, incorrect assembly by the Customer or a third party, normal wear and tear, incorrect or negligent treatment, improper modifications carried out without our prior consent or maintenance work performed by the Customer or a third party. We also give no warranty for specific applications or purposes of the product, unless otherwise agreed in writing; the customer shall otherwise have the exclusive risk of fitness and use.

(8) Claims on subsequent performance, damages and reimbursement of expenses become time-barred one year after delivery of the purchased object.

This does not apply to an object which has been used according to its usual purpose for a building and has caused its defectiveness; in this case, claims shall only lapse after 5 years.

Claims on reduction and exercise of the right to withdraw from the contract are excluded, insofar as the subsequent performance claim has lapsed.

The Customer may however refuse payment of the purchase price in the event of 3 insofar as it would be entitled to do so based on withdrawal or reduction; in the event of exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the contract.

(9) Claims arising from the manufacturer's right of recourse remained unaffected by this paragraph.

(10) If an acceptance inspection has been agreed upon, this may only take place at the supplier plant or our warehouse immediately after we have given notification of readiness for such acceptance inspection. The personnel-related costs in connection with such inspection shall be borne by the buyer; the material costs in connection with such inspection shall be charged to the buyer according to our price list or the supplier plant's price list.

If, through no fault of our own, an acceptance inspection is not carried out, is not carried out in a timely manner or is not fully carried out, we shall be entitled to ship or store the goods without an acceptance inspection at the buyer's expense and risk.

Article 8

Withdrawal from the Contract by the Customer and Other Liability on Our Part

(1) The following provisions apply to breaches of obligation other than liability for defects and shall neither exclude nor limit statutory right of withdrawal. Likewise, any statutory or contractual rights and claims that we are entitled to shall be neither excluded nor limited.

(2) The Customer may withdraw from the contract if the overall performance becomes impossible; the same applies also to inability. The Customer may also withdraw from the entire contract if for an order of items of the same type the execution of a part of the delivery becomes impossible in terms of quantity, we are liable therefore, and the Customer has no interest in partial performance; if this is not the case, the Customer may reduce compensation accordingly; the right to withdraw does not apply in the event of a non-material breach of contract.

(3) If performance is delayed, the Customer grants us an appropriate time to carry out the performance after justification of the delay, and this extension is not complied with, the Customer is entitled to withdraw. If the Customer at some point prior to delivery a different version of the object to be supplied is required, the progress of the delivery period will be stayed up to the day of agreement on the version and, if necessary, extended by the time necessary for the altered performance.

(4) Withdrawal is excluded if the Customer is solely or mainly responsible for the situation that entitles it to the withdrawal or if the circumstance imputable to us occurs during the buyer's default in acceptance. In the event of impossibility, we retain, in the cases mentioned above, our right to compensation pursuant to Section 326 Par. 2 of the German Civil Code.

(5) Further claims by the Customer, on any legal grounds (in particular claims arising from faults at the point of conclusion of the Contract, a breach of principal or subsidiary contractual obligations, reimbursement of expenses, unlawful acts or other tortious liability), are excluded; this applies in particular to damages not caused to the delivery item itself and to claims for loss of profit; claims which do not result from the defectiveness of the object purchased are also included.

This does not apply insofar as the cause for damage is based on wilful ntent or gross negligence on our part, by our legal representatives or vicarious agents. This also does not apply insofar as damages from culpable injury to life, limb or health are concerned. Likewise, liability shall not be excluded in cases where a guarantee has been assumed, if a breach of obligation thereby covered triggers our liability.

Insofar as we culpably breach a contractual or material obligation, liability is not excluded, but limited solely to foreseeable damages that are typical of the contract.

Article 9 Liability for subsidiary obligations

(1) If through our fault the delivered object cannot be used by the Customer as provided for in the contract or damage arises due to negligent or incorrect execution of proposals and consulting that took place prior to or after conclusion of the contract, or of other subsidiary obligations, the provisions of Articles 7 and 8 shall apply under exclusion of further claims by the Customer.

Article 10 Right of set-off / Right of retention

(1) The Customer shall only have a right of set-off against our claims if its counterclaims have been legally established, are undisputed or are acknowledged by us.

(2) The Purchaser is only entitled to exercise a right of retention to the extent that its counterclaim derives from the same contractual relationship.

Article 11 Place of performance / Place of jurisdiction / Applicable law

(1) Unless not otherwise provided for in the confirmation of order, the place of performance for all liabilities arising from the contractual obligation, in particular for the payments to be made by the client, is our registered office in Graben-Neudorf.

(2) If the customer is a merchant, the location f our registered office shall be the place of jurisdiction.

(3) The law of the Federal Republic of Germany applies; application of UN Sales Law (CISG) is excluded.