I. Conclusion of Contract
1.These General Supply and Payment Terms and Conditions apply to all –even future –contracts, deliveries and other services, including consultation services, information, etc.,unless they are explicitly amended or excluded by us in writing. These override any purchasing conditions of the purchaser.
2. Our offers are non-binding Concluded contracts and other agreements, in particular oral corollary agreements and assurances only become binding once we have approved them in writing.
3. In cases of doubt, the interpretation of commercial clauses is subject to the most recent version of the Incoterms.
1. Provided nothing different has been agreed, the prices and conditions in the price list valid at the time the contract is concluded apply.
2. Unless something different has been agreed, the prices are understood to be from the factory or warehouse, plus VAT.
3. In the case of deliveries from the factory (third party delivery) and if we have not explicitly approved a fixed price, we reserve the right to calculate the prices in accordance with the price list for the given factory valid on the day of delivery. All unforeseen additional fees, public duties and customs as well as new duties, freight or increases that make the delivery more expensive must be borne by the purchaser, provided no compelling law prevents it.
III. Payment and Settlement
1. Payment is due in full such that we can dispose of the amount on the due date. The purchaser bears the costs of financial transactions.
2. We only accept as payment re-discountable and officially-taxed bills of exchange if expressly agreed.
Expenses will be deducted from credit in the form of bills of exchange and cheques at the value on the day at which we will be able to dispose of the equivalent value.
3. If the purchaser is in arrears of payment, we are untitled to apply interest at the rate of 4% above the rate issued by the Deutsche Bundesbank unless the purchaser can produce evidence of lower damages. We reserve the right to assert other damage due to delay.
4. All of our payment claims are due independent of the term of any accepted bill of exchange if the purchaser is in arrears of payment or we become aware of subsequent circumstances that result in a fundamental decrease in the assets of the purchaser and which pose a risk to our payment claim.
In the event of delayed payment, we are also entitled to prohibit the further sale and processing of the goods supplied and to demand their return or the transfer of the current inventory of the supplied goods at the expense of the purchaser. In such a case, we are entitled to repossess goods, and if applicable, to enter the premises of the purchaser to remove the goods in order to best sell them and apply the proceeds to the outstanding purchase price claim, minus any costs accrued.
5. In the cases listed under Section 4, we are entitled to revoke the collection authorisation pursuant to Section V 5 and to demand advance payment for remaining deliveries.
6. We are entitled to offset all payment claims in favour of the purchaser against us, regardless of the reason, with all payment claims in our favour and against the purchaser.
This also applies when one party has agreed on payment in cash and the other on payment in bills of exchange or other services.
If the payment claims are due at different times, our payment claims become due at the latest when our debt becomes due, and will be calculated as per the value date. The purchaser may not offset with claims that we dispute.
The purchaser is entitled to rights of retention only to the extent provided for in the same contractual relationship.
7. By providing a surety in the amount of our endangered payment claim, the purchaser can avoid the legal consequences listed in Section III, No. 4 and 5.
IV. Delivery periods and dates
1. Our supply obligation is subject to the limiting condition of complete and proper self-supply except in the case that the failure to supply or the delay is attributable to us.
Delivery periods begin on the date of our order confirmation, however not before full clarification of all order details and the acquisition of any necessary certifications.
Delivery periods and delivery dates are understood in relation to the time that the goods leave the factory or warehouse. They are deemed to have been observed once the notification of readiness to ship is made if the goods cannot be shipped on time due to no fault of our own.
We are not liable for delays or failures to deliver that are attributable to our suppliers.
The delivery period is extended by the time that the purchaser is in arrears with us for obligations from this or other contracts. This applies correspondingly to delivery dates.
2. In the event that we are delayed, the purchaser may, after expiry of a grace period made known to us, withdraw from the contract provided the goods have not been shipped or have not been reported as ready to ship.
3. The purchaser may only exercise the right to withdraw due to impossibility or delay to the extent that the purchaser is not expected to adhere to the contract.
4. Force majeure circumstances entitle us to extend the delivery by the duration of the resulting delay, plus an appropriate start-up period.
Force majeure events are all situations that significantly complicate delivery or make it impossible for us, e.g. monetary policy and commercial policy or other state measures, strik es, lock-out, operational interruptions (e.g. fire, machinery or roller breakdown, lack of raw materials or energy) as well as impairments of the transportation network, regardless of whether these circumstances occur at our location, at the factory or hap pen to a sub-supplier.
5. Pursuant to Section X, claims for damages in favour of the purchaser are subject to these conditions.
V. Reservation of title
1. All goods supplied remain our property (goods subject to reservation of title) until all claims are satisfied, regardless of the legal basis, including conditional claims or claims that will arise in the future, e.g. acceptor change, even those from contracts concluded simultaneously or at a later time.
This also applies if payments are made toward specially designated payment claims.
2. Treating or processing of the goods subject to retention of title occurs with us as the manufacturer within the meaning of § 950 BGB, without placing us under any obligation.
The treated or processed goods are deemed goods subject to reservation of title within the meaning of No.1.
3. If the purchaser processes, combines or mixes the goods subject to reservation of title with other goods, we are co-owners of the new item proportionally to the relationship between the value of the goods subject to reservation of title and the other goods.
If our ownership lapses due to combination or mixing, the purchaser immediately transfers to us the ownership rights to the new goods or item to which the purchaser is entitled in the proportion of the value of the goods subject to reservation of title and retains them for us at no charge.
Co-ownership rights are considered goods subject to reservation of title within the meaning of No.1.
4. The purchaser may only sell the goods subject to reservation of title within the context of normal commerce and only if the purchaser is not in arrears, provided the payment claims deriving from the further sale pursuant to No. 5 to 7 are transferred to us.
The purchaser is not entitled to any other disposal rights in relation to the goods subject to reservation of title.
5. The payment claims in favour of the purchaser deriving from the further sale of the goods subject to reservation of title are immediately assigned to us. They serve as surety in the same proportion as the goods subject to reservation of title. If the goods subject to reservation of title are sold together with other goods that were not sold by us, the assignment of the claim is only in the value of the further sale of the goods subject to reservation of title.
In the event of the sale of goods in which we have proportional co-ownership rights pursuant to No. 2, the assignment of the payment claim is in the amount of the proportional co-ownership rights.
6. The purchaser is entitled to collect payment claims deriving from the further sale until we revoke that right, which we may do at any time.
We will only make use of the right of revocation in the cases specified in Section III, No.4.
The purchaser is only entitled to assign the receivable payment claims- including the sale of the claims to factoring banks –with our prior written approval. If we request it, the purchaser undertakes immediately to notify its purchasers of the assignment to us – to the extent we do not do so ourselves – and to give us the information and documents necessary for collection.
7. The purchaser must immediately notify us regarding pledges or other impairments by third parties.
8. If the realisable value of the securities held by us exceeds our claims by over 10%, we shall be obliged, if so requested by our customer, to release such securities as we may choose in respect of this 10% excess.
VI. Grades, dimensions and weights.
1. Grades and dimensions are determined in accordance with the DIN standards and material data sheet, provided no foreign standards have been agreed in writing.
Provided no DIN standards or material data sheets exist, the corresponding EURO standards apply, and if none of these apply, the accepted commercial practice applies.
2. As concerns weights, the measurement done by us or our sub-suppliers is the valid value.
The weight is documented by presenting the scale printout.
To the extent permitted by law, weights can be determined without weighing pursuant to DIN.
The usual additions and deductions (commercial weights) common in the steel trade in Germany remain unaffected.
Recorded weights can only be objected to on the basis of official subsequent weighing to be performed immediately after delivery. Quantities, bundle quantities or similar specified in the notice of shipping are non-binding in terms of weight.
Unless the goods will not usually be weighed individually, the total weight of the shipment applies.
Differences with regard to the calculation of the individual weights will be distributed amongst them proportionally.
1. Material will only be formally accepted and/or inspected if this has been explicitly agreed.
After the performance of an agreed acceptance verification by the purchaser, any objection to defects that could have been identified by the type of acceptance verification agreed upon is excluded.
2. Acceptance and inspection are at the expense of the purchaser, in the factory or warehouse.
If the purchaser does not perform the acceptance verification or inspection, does not perform it completely or in a timely manner after notification of readiness to ship, we are entitled to ship the material without acceptance or inspection, or to warehouse it at the expense of the purchaser and to consider the delivery to have been made.
VIII. Shipping, Transfer of Risk, Partial Delivery, Ongoing Delivery
1. Unless anything different has been agreed in writing, we determine the shipping route and means of shipping, as well as couriers and freight carriers.
2. Goods that are registered as ready to ship in accordance with the contract must immediately be called off, otherwise we are entitled, at the expense and risk of the purchaser, either to ship them or to warehouse them as we see fit and immediately charge for them.
3. If due to no fault of our own transport on the intended route or at the intended place is not possible in the intended time, we are entitled to make the delivery using another route or at another place; the purchaser shall bear any expenses incurred.
The purchaser will be given a chance to respond in advance.
4. The material is supplied unpackaged and not protected from rust.
If it is the usual commercial practice, we supply the goods packaged.
We will arrange for packaging, protection or transportation aids in accordance with our experience and at the cost of the purchaser. Packaging, protection or transportation aids will not be taken back, unless something different has been agreed on in writing.
5. In all transactions, risk passes to the purchaser, including risk of seizure, once the goods are transferred to a courier or freight carrier, however at the latest when the goods leave the factory or warehouse.
6. We are entitled to make partial deliveries to a reasonable extent. Increases and reductions of the agreed quantity to the extent that is common in the industry are permissible.
7. In the case of contracts involving ongoing delivery, the Buyer shall divide the quantities and grades of the goods called off into approximately equal monthly shipments; otherwise, we are entitled to specify them as we see fit.
If the quantity agreed in the contract is exceeded by individual call-offs, we are entitled to supply the excess, but not obligated to.
We may charge for the excess at the price valid at the time of the call-off and/or delivery.
IX. Objections to Defects and Warranty
Our liability for defects, including the lack of assured characteristics, is as follows:
1. Defects – including the lack of assured characteristics – must be objected to in writing immediately after discovery, and any processing activities of the material must be immediately stopped.
Objections to obvious defects are excluded after a period of 14 days from receipt of the goods at the agreed place.
Objections to defects are excluded after expiry of the statutory period specified for warranties.
2. In the event of a justified objection to a defect made immediately, we will take back defective goods and supply unobjectionable goods as a replacement; otherwise we are entitled to remedy the defect.
If we do not perform our obligations relating to supply of replacement goods or subsequent delivery, or if we do not do so in accordance with the contract, the purchaser has the right to not make payment or to cancel the contract.
3. If the purchaser does not immediately give us the opportunity to inspect and confirm the defects, or in particular, if the purchaser does not immediately provide the goods in question or samples of them when requested, all claims for defects lapse.
4. In the case of goods that have been sold as lower grade-material – e.g. so called “Ila material” – the purchaser has no warranty rights in relation to the listed defects and those that are usually expected.
5. Compensation claims for damages that did not occur in direct relation to the goods (consequential damages) are excluded pursuant to Section X.
In cases where assured characteristics are lacking, we are liable to the extent that the assurance had the aim of assuring the purchaser that the consequential damages that occurred will not occur.
6. Materials designations and DIN provisions do not constitute any assurance of characteristics of goods within the meaning of §459, Para. 2, German Civil Code.
7. Where defects are remedied, we offer a warranty of the same sort as for the original goods or service.
X. General Limitation of Liability and Term of Limitation (Expiry)
1. Provided nothing different is agreed in these terms and conditions, we assume liability for damages due to infringement of contractual or other obligations only in the event of wilful conduct or gross negligence.
Our liability does not encompass – except in cases of wilful conduct – damage that is not typically expected in the specific transaction, or for which the purchaser has insurance or can otherwise be insured.
2. All claims against us, regardless of the legal basis, expire at the latest six months after delivery and/or transfer of risk, provided no longer terms of limitation apply compellingly in the case of structures.
XI. Place of Performance, Venue and Applicable Law
1. For deliveries from the factory, the place of performance for our deliveries is the destination factory, for other types of delivery, it is the warehouse.
2. The venue is Hanover, to the extent permissible.
We can also file suit against the purchaser in the latter’s local venue.
3. The fundamental law at our location that is applicable to legal relationships between domestic parties applies to all legal relationships between us and the purchaser.
Special Conditions for the Further Sale of EBKS Products
1. Our purchaser may not
a) supply EGKS products that have not been explicitly sold for export to other countries to locations outside the European Community in an unprocessed state;
b) leave EGKS products that have been explicitly sold for export to other countries at locations within the territory of the European Community in an unprocessed state, deliver or bring them back to EC territory or deliver or bring them to any other country than that specified in the purchase order.
These goods may also not be processed within the territory of the European Community.
The sovereign nations of Finland, Norway, Austria and Sweden are considered equivalent to the European Community.
2. At our request, the purchaser undertakes to document the location of the material.
3. The purchaser must also impose the obligations pursuant to No. 1 on its purchasers, with the obligation to continue passing on these obligations.
The purchaser must assert the claims deriving from this circumstance and if requested, assign to us these claims to documentation, damages and imprisonment.
The purchaser undertakes immediately to notify us of infringements by its purchasers against the obligations imposed on them pursuant to Clause 1.
4. If the purchaser or one of its downstream purchasers infringes its aforementioned obligations the purchaser must compensate us for the lost proceeds and pay a contractual penalty of 30 percent of the agreed purchase price.
5. If the goods were delivered to a different place and/or address than that established in the invoice, regardless of whether the purchaser’s fault has to be demonstrated, the purchaser must provide compensation for all benefits granted with regard to the specified recipient, plus EUR 50 per ton of mis-delivered goods, however at least double the value of the benefits.
6. If the value of the existing sureties exceeds the assured payment claims overall by more than 10%, we are obligated to release sureties as we see fit if requested by the purchaser.
Last amended: 5/02