GENERAL BUSINESS TERMS OF SCHWERMETALL HALBZEUGWERK GMBH & CO. K
§ 1 Conclusion and Subject Matter of the Contract
1. The terms below will apply exclusively to all goods and services.
2. An order will only be regarded as accepted where confirmed in writing. We are not bound to the Orderer’s purchase terms, even where we have not explicitly rejected them and the Orderer has not explicitly agreed to our General BusinessTerms.
The Orderer agrees to the present General Business Terms by the latest upon acceptance of the consignment.
3. Any ancillary agreements, amendments or other agreements will require our written consent.
4. The Orderer’s rights arising from the present contract are only assignable with the prior consent of the Supplier.
5. The invalidity of individual parts of the contract will not affect the overall validity of the contract.
6. German law will apply. The terms of the Hague Sales Convention are excluded.
§ 2 Prices
1. All prices are valid ex works and exclusive of packaging.
2. Shipping costs will be borne by the Orderer.
3. Packaging requested or deemed necessary by us will be charged at cost price.
4. Prices set on the basis of the supply of raw metals will be regarded as fixed prices with regard to the metal component. Acceptance of the quantity ordered must be made immediately after manufacture. Where goods are ordered in excess of the quantity ordered or agreed we will have the right to charge the additional volume at the respective daily price
5. In the case of reworking transactions, the metals or metal alloys agreed on by the Orderer must be delivered in flawless, pure and usable quality by the latest 4 weeks before performance of the order, in the case of completed reworking transactions with a shorter delivery period, immediately after conclusion of the contract.
Reworking materials delivered in quality which is less than flawless are to be rejected; they will be regarded as not having been delivered. The weights and qualities determined by us will apply to the metal evaluation.
6. Any subsequent claims for value added tax from reworking or accessory transactions arising for any reason are to be borne by the Orderer and to be paid to the full amount immediately after they are claimed. The respective valid tax regulations will apply to the subsequent claims.
7. Reworking or accessory materials not yet supplied with consignment of the ordered goods will be charged at the metal prices valid at the day of shipment.
§ 3 Passing of Risk
All risks and dangers will pass to the Orderer upon loading onto the delivery truck.
§ 4 Excess and Shortfall Delivery Quantities
In the case of goods delivered from the cogging roll, technically-caused deviations of weights of up to 10% are permissible with regard to the entire order volume and the individual partial deliveries.
§ 5 Inspection
Where the goods are to be inspected under special conditions, the inspection will be performed at our factory. We will bear the material costs; the Orderer will bear the personal travel and accommodation costs. Where the purchaser waives inspection in the factory, the goods will be regarded as having been accepted from the moment they leave the factory. The Orderer will also bear any costs for analysis reports.
§ 6 Guarantee and Liability
1. Complaints regarding the weight or quality of the goods are to be made immediately, but by the latest within 2 weeks after receipt of the consignment irregardless of an earlier statutory reporting duty.
2. Where complaints regarding goods cast and rolled by us are justified, we will deliver replacement goods free of charge and free of shipping fees to the receipt station, in the case of quality defects, however, only where the defective material is more than 5% of the delivery quantity and the defective material is returned. Goods will be replaced on a weight for weight basis. Any further-reaching claims such as rescission or price reduction, damage compensation or wage compensation, default penalties, etc. are excluded. The Orderer may not derive any rights extending to the other partial quantities on the basis of defective partial quantities.
3. Complaints may not be made at a later date for goods accepted and inspected by the Orderer in the factory.
4. We will not be liable for input stock of any kind delivered to us for processing in a salaried transaction. Neither will we be liable for loss of value due to defective processing. We have the right to supply the partially processed material in the respective condition ex works to the Orderer. Material intended for salaried transactions will be stored at our factory at the Orderer’s risk. It will only be insured against fire, theft, etc. after separate agreement with the Orderer.
5. Orders according to the documents and information provided by the Orderer will be performed at the Orderer’s risk regarding patent, design and trademark law. Where third party rights are infringed by the performance of such orders, the Orderer will bear liability for each case of damage incurred to us.
6. Contractual and extracontractual damage compensation claims, e.g. due to infeasibility, delay, positive breach of contract, illegal act or lack of guaranteed features are excluded unless they are or based on willfulness or gross negligence by our managers or executives. This exclusion of liability includes direct and indirect damage (consequential damage).
§ 7 Delivery Date und Acceptance Deadlines
1. Delivery is conditional on feasibility in every case. The delivery date is only approximate and is agreed on subject to the condition of smooth transaction. The purchaser will not have any claims to damage compensation from incomplete or delayed delivery or non-delivery, only the right to rescission in accordance with statutory provisions. Incomplete deliveries or partial deliveries will be regarded as an independent transaction.
2. Delivery date is defined as the date of delivery ex works and is regarded as having been complied with where readiness for shipping was reported or the item left the factory.
3. The delivery period will be extended to an adequate extent in the case of unforeseen events (e.g. operational impairments, government intervention, labor dispute measures, force majeure, delayed supply of essential primary and ancillary materials). The same will apply to any such cases of impairment experienced by pre-suppliers. Where delivery is not possible, we will be released from our delivery obligation. In cases of an extension of the delivery period or of release from our duties (even in the case of partial deliveries) any damage compensation claims and rescission rights by the purchaser will not apply.
4. On-call orders of partial deliveries are to be placed in good time at regular intervals and for regular quantities. We have the right to make partial deliveries unless the contrary has been explicitly agreed on.
§ 8 Supplier’s Right of Rescission
The Orderer’s unrestricted creditworthiness is the prerequisite for the delivery obligation. Where we receive information which makes the grant of a loan to the amount arising from the contract seem not completely unobjectionable or where facts arise shedding doubts in this matter, e.g. in particular considerable deterioration of the financial situation, cessation of payments, audits, bankruptcy, liquidation, change of management, etc. or where the Orderer pledges stocks, outstanding claims or purchased goods or furnishes them as security for other creditors or fails to pay invoices despite a reminder, we will have the right to immediately demand advance payment or security without stipulation of a deadline, to rescind the contract or to demand damages due to non-performance or to demand cash payment where a payment mode other than cash payment was agreed on.
§ 9 Reservation of Title
1. We reserve the ownership of all goods delivered by us until complete payment. All deliveries in this case will be regarded as a single delivery transaction. In the case of a current account, the reservation of title will be regarded as security for our claim to the payment amount. Only receipt of the equivalent amount by us will be regarded as cash payment.
2. The Orderer has the right to process and resell the goods in the proper course of business provided that he is not in arrears with payment. Where new items originate as part of the processing, we will acquire co-ownership on the basis of the ratio of the sales price of the goods concerned or delivered by him at the time of their origin. The same will apply in the case of a combination of the goods with goods not belonging to the seller. In the cases of processing and combination, the Orderer will store the new items on our behalf. Where the Orderer resells the goods supplied by us in accordance with their purpose he hereby assigns the claims against the seller arising from the sale with all ancillary rights to us until complete redemption of all our claims. We accept this assignment. Where such a claim simultaneously applies to other goods or services or the Orderer is only co-owner of the sold goods, only the part of the claim equivalent to the value of the goods belonging to him or to his share in ownership at the time of sale will be assigned to us. At our request, the Orderer will be obligated to announce the assignment to third party purchasers and to provide us with the necessary information and documents for asserting our rights.
3. The Orderer must inform us immediately of any pledging of the goods subject to the reservation of title or any other encroachment upon our rights by third parties. We will release the securities being held by us where their value exceeds the claims to be secured by more than a total of 20%. The Orderer must insure the goods subject to the reservation of title against fire, theft and water damage at his own expense.
4. Where the reservation of title should prove to be not wholly valid on legal grounds, the Orderer will be obligated to ensure the legal securing of our claim to the goods and to participate in the measures necessary for this. The seller’s reservation of title is subject to the condition that upon full payment of all claims of the seller arising from the business relationship the ownership of the goods subject to reservation of title will unconditionally pass to the purchaser and the purchaser will be unconditionally entitled to the assigned claims.
5. As soon as we become aware of circumstances which could jeopardize the satisfaction of our claims, we may demand return of the goods subject to reservation of title.
6. The request for return of the goods on the basis of the reservation of title only constitutes a rescission of the contract where expressly so declared.
§ 10 Assignment
We have the right to assign claims to third parties.
§ 11 Payment Clause for Outstanding Claims
Where we become aware of circumstances which make the customer’s creditworthiness appear doubtful, in particular in the case where the customer stops payment or does not cash a check, we will have the right to demand payment of all outstanding claims from the business relations, even where we have accepted checks. In such a case, we will also have the right to accept advance payments. Moreover, we will have the right to withdraw all accepted bills, bills of exchange and checks immediately from circulation.
§ 12 Rights of Set-Off/Retention
The Purchaser will only have a right to set-off where the counterclaims are uncontested or res judicata; moreover, he will only have a right of retention to the extent that his counterclaim is based on the same legal situation.
§ 13 Payment Terms
1. The invoice total is to be paid in cash as a net amount within 14 days after the invoice date-shipping date. Cash payment includes only payment made in cash, credit transfers and checks.
2. In the case of payment later than 14 days after the invoice date, default interest of 3% above the discount rate of the German Federal Bank will be charged.
3. The Orderer does not have the right to retain or set off payments, not even due to complaints or counterclaims. The Orderer will not have any claims on the basis of delayed invoicing.
4. In the case of delayed payment, we have the right to charge default damage to the amount of the minimum interest due in the period between due date and payment as well as commission payments as demanded by the German banks, subject to the proviso of the assertion of other rights. Delay will not be necessary for our right to claim default damage. Where payment is made per check or other payment order, the Orderer will bear the costs for discounting and collection. Bills of exchange will only be accepted for payment purposes and subject to the proviso of a discounting possibility.
5. We have the right to satisfy claims we have against the Orderer by use of the Orderer’s material in our possession without a debt enforcement title through a lien pursuant to the provisions of the BGB.
§ 14 Place of Performance, Place of Jurisdiction
1. The place of performance and jurisdiction for all payments, goods and services is Stolberg/Rheinland. However, we also have the right to sue at the seat of Orderer.
2. The Orderer’s rights from the present contract are not assignable.
§ 15 Data Protection
We are informing you that we use electronic data processing. For this purpose, we have stored your personal data, confined to data necessary for business. The Seller has the right to record, store, process and use information and data on the purchase and to pass it on to third parties for debt collection or outsourced debt management.