Terms and Conditions

§ 1 Scope and conclusion of contract

  1. Deliveries and services are exclusively based on the following conditions. Any purchaser’s conditions are explicitly rejected and are not considered binding, even if the contract is unconditionally executed.
  2. All agreements between us and the Purchaser with the purpose of contract execution must be in writing.
  3. All agreements shall be officially binding upon receipt of a written order confirmation.

§ 2 Offer and offer documentation

  1. All offers are subject to change. Likewise, technical descriptions and other information in offers, brochures and other sources are non-binding.
  2. We reserve all ownership and copyrights for images, drawings and calculations, which shall not be passed on to third parties.
  3. Should it be necessary for the order to be qualified as an offer in accordance with section 145, BGB (German Civil Code), we can agree to this within 15 business days.
  4. Information referred to in paragraph 1 as well as any official statements issued by us, the manufacturers or their assistants (section 434, subsection 1, sentence 3, BGB (German Civil Code)) shall only be part of the specifications if explicitly stated in this contract.

§ 3 Pricing, terms of payment and settlement

  1. Unless otherwise stated, our charges refer to goods excluding packaging – either delivered from the factory or from the warehouse. Additional charges for packaging shall be listed separately.
  2. Value added tax (VAT) is not included in our prices. It shall be calculated on the invoicing day and stated separately on the invoice.
  3. Deductions of any kind require prior written agreement.
  4. Payments are to be made in cash or transferred within 15 business days after receiving the goods and invoice. As soon as we receive the funds the payment is considered valid.
  5. Other payment methods require prior written agreement. The purchaser shall bear any additional costs caused by other payment methods for both sides.
  6. The Purchaser is only entitled to set off or assert rights of retention if their counter claims are final and absolute under a court judgement, undisputed or acknowledged by us.  The Purchaser’s rights of retention are only granted if they refer to the same contract.

§ 4 Delivery, time of delivery and obligation to co-operate

  1. The scope of our obligation of delivery results exclusively from the contract with the Purchaser. Differences in construction, shape or colour may occur due to technical improvements or as required by legal entities. We reserve the right to make such changes, if these changes can be considered fundamentally just and reasonable for the Purchaser.
  2. Partial deliveries can be made, if they are reasonable for the Purchaser, and will be charged for.
  3. Our obligation of delivery shall be subject to complete and correct self-delivery, unless non-delivery or delay is caused by fault on our part. In case we do not receive deliveries ourselves despite having placed the corresponding orders with reliable suppliers, we reserve the right to withdraw from the contract.
  4. Delivery periods are explicitly linked to the Purchaser’s cooperation according to the contract. The compliance with our obligation of delivery is subject to the Purchaser complying with their contractual obligations in due time.
  5.  The set time of delivery depends on all technical queries being clarified.
  6. Compliance with delivery periods and dates shall be calculated based on the time of dispatch from the factory or warehouse. As soon as the delivery readiness has been notified the delivery deadline is considered to be met, even if the goods cannot be dispatched through no fault of our own.
  7. If the contract is concluded, but the Purchaser provides insufficient guarantee for payment which risks our payment claim, we reserve the right to deny delivery until the Purchaser makes the payment or provides a security. In case of the payment or security provision not being effected within 7 business days after explicit notification, we reserve the right to withdraw from the contract.
  8. If the Purchaser falls behind in delivery call-off, acceptance or pick-up, or causes a delay with dispatch or delivery, we shall be entitled – irrespective of further claims – to charge an all-in fee for local warehouse storage, regardless whether we store the goods in one of our own warehouses or a third-party warehouse. It rests with the Purchaser to prove that little or no damage has been caused.

§ 5 Delay of delivery

  1. In case of operational disruptions and events of force majeure, we reserve the right to postpone the time and date of delivery for the duration of the hindrance and a reasonable break-in period. Force majeure includes events such as strikes, lockouts and other events which significantly impede or prevent delivery, whether they occur with us or one of the subcontractors.
  2. If the disruptions continue for one month after the expiry of the agreed delivery time and date, both parties may fully or partially withdraw from the contract.
  3. Further claims regarding exceeded delivery time and date through no fault of our own are excluded.
  4.  Subsection 2 shall not apply, if the delay is based on intent, gross negligence or major breach of duty. Neither is it applicable where a commercial fixed-date transaction has been agreed.

§ 6. Place of fulfilment, transfer of risk and transport insurance

  1. Unless otherwise stated in the order confirmation, delivery will be free ex-works. The place of fulfilment is our registered office, stated on the order confirmation.
  2. On request by the Purchaser, we will cover the delivery with a transport insurance. Additional costs for this service as well as delivery costs are to be paid by the Purchaser.

§ 7. Securing retention of title

  1. The retention of title is reserved for the duration of all claims being met by the Purchaser in the business relationship including further future claims from other contracts which were made at the same time or at a later date. This equally applies if claims are incorporated into a current account and the account balance has been settled and acknowledged.
  2. The Purchaser is entitled to resell or process the goods in the ordinary course of business. Any processing on our behalf shall be done without any obligations arising for us. Processing, combining or commingling the retained goods with other goods principally creates a co-ownership share for the new goods, which in case of processing refers to the ratio value (i.e. gross invoice value including additional expenses and taxes) of the invoice value of the goods subject to the reservation compared to the invoice value of the new goods; in case of combining or commingling refers to the ratio value of the invoice value of the goods subject to the reservation compared to the invoice value of the other used goods. The Purchaser retains the resulting ownership or co-ownership for us.
  3. The Purchaser hereby assigns to us all claims resulting from the resale of the ownership or co-ownership under title of retention against a customer or third party. The Purchaser shall retain the right to enforce these claims after assignment. Our authority to enforce these claims ourselves remains untouched, however, we shall not exercise this right as long as the Purchaser fulfils their payment obligations and other obligations in due form. The Purchaser shall notify us of all assigned claims and debtors on request, to give us all information and relevant documents necessary to assert our rights and to inform the debtors of the assignment.
  4. If the Purchaser fails to fulfil their contractual obligations, particularly in case of delayed payment, we are entitled to withdraw the goods. In order to do so, the Purchaser hereby irrevocably authorises us to access all business premises and storage facilities to withdraw all goods delivered under the retention of title.
  5. Insofar as and as long as this reservation of title exists, the Purchaser may neither distrain nor assign goods or goods made from these goods by way of security without our permission. Conclusion of financing contracts (e.g. leasing) which transfer our goods delivered under retention of title shall only be concluded with prior written consent, unless the party providing the financing is obliged under the agreement to pay to us directly the portion of the purchase price to which we are entitled. The Purchases must communicate these changes to us immediately.
  6. In case of distraints or other third party interventions, the Purchaser must notify us immediately. The Purchaser is not entitled to make any arrangements with buyers which may interfere with our rights.
  7. We commit to releasing the securities to which we are entitled, on request of the buyer, insofar as the value of the securities exceeds the secured claims by more than 20% or exceeds its nominal value by more than 50%. The securities released shall be at our discretion.

§ 8. Grades, measures and weights

  1. Grades and dimensions shall be in accordance with DIN standards or material sheets respectively, unless foreign standards are agreed upon in writing. Where no DIN standards or data specifications for materials exist, the relevant European standards apply, in the absence of which the usual trade standards shall apply. Reference to standards, industrial standards, material data sheets or inspection certificates as well as details as to grades, measures, weights and usability are no warranties or guarantees, nor are declarations of conformity, manufacturer’s declarations and marks to this effect such as CE and GS.
  2. Weights are determined based on the weighing established by us or by our suppliers. Evidence of the weight shall be provided by presenting the weighing certificate. To the extent legally permissible, weights can be determined on a standard basis without weighing according to DIN. This does not affect the additions and reductions (commercial weights) customary in the steel industry in the Federal Republic of Germany. Quantities, bundle quantities or similar specifications in the delivery notice are not binding in terms of weight. If individual weighing is not customary, the complete weight of the delivery shall apply. Any difference with regard to the calculation of the individual weights shall be distributed amongst them proportionally.

§ 9. Testing and inspection

  1. Where testing and inspection has been agreed or is legally binding, goods must be inspected in the delivery works or in our warehouse immediately after having been declared ready for dispatch. Personal delivery costs appear on the invoice of the Purchaser according to our price list.
  2. No subsequent claims for defects detected by the Purchaser after inspection shall be admissible.
  3. If the acceptance of goods is not performed at all, or incomplete or late through no fault of our own, we reserve the right to dispatch the goods without prior inspection or to store them at the Purchaser’s own cost and risk and add these expenses to the invoice.

§ 10. Delivery, partial delivery and continuous delivery

  1. If the delivery of the goods is agreed by contract, we choose the route and mode of delivery as well as the forwarding agent and the carrier. The Purchaser shall immediately request delivery of any goods notified to him as ready for dispatch. Otherwise we are entitled to ship the goods at the Purchaser’s own cost and risk or to store them at our discretion and to add these expenses to the invoice.
  2. The goods shall be delivered unpacked and not be protected against rust. On request, we shall arrange packaging, protection and transportation aids based on our experience and at the Purchaser’s expense.
  3. We are entitled to make partial deliveries within a reasonable scope. Excess and short deliveries in respect of the agreed quantities customary in this industry are deemed reasonable.
  4. Where continuous deliveries are agreed, the Purchaser shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise we shall be entitled to specify them at our own discretion.
  5. Where the individual calls for delivery exceed the total contractual quantity, we are entitled, yet not obliged, to deliver the surplus quantity. We shall invoice the exceeding quantity according to the prices applicable at the time of the call or delivery.

§ 11. Material defects

  1. With respect to material defect, the Purchaser is required to comply with the statutory inspection and complaint obligations of section 377, HGB (German Commercial Code).
  2. The customer has no further entitlement arising from material defects which do not affect or do not significantly affect the value and suitability of the goods for the use recognised by us.
  3. If the goods show a material defect at the time of transfer of risk, the Purchaser is entitled to subsequent fulfilment. Subsequent fulfilment shall be made at our discretion through either repair of the defect or replacement delivery. Subsequent fulfilment – particularly costs for transport, travel, labour and material – shall be performed at our expense. If these costs amount to more than 50% of the value of the delivery cost, we are entitled to refuse subsequent performance.
  4. If subsequent fulfilment ultimately fails, is not effected in an appropriate period set by the Purchaser or is declined, the Purchaser is entitled at their own choice to withdraw from the contract or to demand a reduction of the purchase price corresponding to the decrease in value caused by the defect (abatement) or – within the limits of the following paragraphs – demand compensation instead of delivery.
  5. If a material defect results in damage, we shall be liable according to the statutory provisions, insofar as a personal injury is concerned, the damage falls under the German Product Liability Act (ProdHaftG) or is based on malicious intent or gross negligence.
  6. If the damages result from a culpable breach of a major contractual obligation on our part, we shall be held liable only for the damages typically associated with this kind of contract.
  7. Further contractual claims or tortious claims by the participant shall be excluded. Therefore in particular, we are not liable for damages that did not occur on the subject of delivery and for lost profit or other financial damage suffered by the Purchaser.
  8. The above-mentioned provisions do not apply for used goods. In this case, we are liable for material defects only in the case of explicit acceptance of guarantee, intent or gross negligence.
  9. Regarding goods sold as downgraded material, the Purchaser is not entitled to any warranty rights respecting the stated downgrading reasons and similar defect types, which are to be expected.
  10. Section 478, BGB (German Civil Code) is not affected by the aforementioned sections 2-9.

§ 12. Liability for damages

  1. The aforementioned limitations on liability (§ 11, No. 5-9) similarly apply for claims for damages on account of other breaches of duty.
  2. In case of breach of pre-contractual liability or in case of fulfilment barriers existing at the time of entering into contract our liability is limited to the negative interest.
  3. To the extent that our liability is excluded or limited, this equally applies to the personal liability of our members of staff, employees, company organs and other agents involved.

§ 13. Limitation periods

  1. The Purchaser’s right for subsequent fulfilment shall expire subject to sections 438, 479 BGB (German Civil Code) within one year after delivery of the goods. For used articles, no warranty shall be granted.
  2. The Purchaser’s right for compensation claims shall expire subject to sections 438, 479 BGB (German Civil Code) within one year. For claims that fall under the German Product Liability Act (ProdHaftG) and in cases of malicious intent or gross negligence, the applicable legal expiration periods of rights shall apply.

§ 14. Place of performance, jurisdiction and applicable law for national contracts

  1. Unless otherwise stated, the place of performance is our registered office in 26689 Apen.
  2. If the Purchaser is a registered merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is Westerstede / Oldenburg. However, we shall also be entitled to bring an action against the Purchaser at their place of residence.
  3. All legal relations between us and the Purchaser stand under the law of the Federal Republic of Germany.

§ 15. International Business Transactions

  1. All our international business dealings shall be subject only to German laws, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  2. Should a Purchaser based outside of the Federal Republic of Germany or their authorised representative retrieve goods and transport or ship these outside the Federal Republic of Germany, the Purchaser shall prove such by transfer of documentary evidence in conformity with the requirements of the laws on value added tax (VAT) of the Federal Republic of Germany. If the Purchaser fails to do so, the Purchaser is obliged to pay the VAT rate for deliveries applicable in the Federal Republic of Germany.
  3. For shipments from the Federal Republic of Germany to other EU[I2]  member states, the Purchaser shall indicate their sales tax identification number under which their profit and income tax is handled within the EU, prior to shipping.
  4. Products of the European Coal and Steel Community (ECSC) which are not explicitly sold to third party countries, must not be sold in an unprocessed condition to other countries outside the EU. Norway is to be treated on the same level as the EU. The Purchaser must provide evidence as to the location of the goods if requested so by us. If the Purchaser fails to fulfil this obligation, they are obliged to pay a contractual penalty of 30% of the agreed purchase price. We are entitled to claim compensation for the actual damage. The Purchaser is liable to ensure that all products of the ECSC will not be delivered to any other point of destination or recipient than agreed upon. If the Purchaser fails to meet this obligation and draws an undue advantage from the carriage charges, they are obliged to pay a contractual penalty three times the value of the undue advantage. If then the Purchaser draws an undue advantage for the price of the goods, they are liable to a penalty three times the value of the undue advantage. If requested, the Purchaser is obliged to provide proof of these obligations being met.
  5. With regard to their own price lists and conditions of sale and resale in unprocessed condition, Purchasers are obliged to comply with article 2-7 of decision No. 30/53 and decisions No. 31/53 and No. 37/54 of the Commission of the European Communities in their currently applicable versions.

§ 16. General Liabilities

  1. The rights of the Purchaser under this contract are non-transferable.
  2. Should an individual provision be invalid, this shall not affect the validity of the remaining provisions.
  3. According to regulations under the German General Equality Act (AGG), business relations between both partners will be handled without any discrimination. Each party is fully responsible for any discriminatory actions from their side.

Augustfehn, 02.01.2013

General Terms and Conditions for CONTRACT MANUFACTURING

§ 1. Scope

  1. These general Terms and Conditions for contract manufacturing apply for all wage labour commissioned to us. Contrary or additional terms and conditions of the customer do not apply, even if we do not explicitly object to certain conditions or fulfil our contractual obligations without reservations.
  2. Additional specifications for the different manufacturing sectors apply. These specifications can be found on www.stahlwerk-augustfehn.de or ordered from our office.

§ 2. Necessity of information

  1. All work pieces handed to us for processing require a delivery note, which must contain at least the following data: a. designation, number of units, net weight and type of packaging; b. material qualities; c. desired processing; d. desired test procedure; e. any additional information or requirements necessary for the success of the treatment.
  2. In case of the required information being missing, incomplete or incorrect, we shall carry out the processes according to our best judgement.

§ 3. Delivery period

  1. The delivery period commences on the date of our order confirmation, at the earliest at the time of delivery of the work pieces.
  2. Delivery periods are only estimates and non-binding. Non-significant delays in the delivery periods (7 to 14 days) are no entitlement for compensation. Our general terms and conditions apply. In case the delivery period cannot be met definitely, we oblige ourselves to notify this to the Purchaser immediately.

§ 4.Transfer of risk

  1. Unless otherwise stated in the order confirmation, the work pieces are to be delivered by the Purchaser at their own risk and must be collected upon completion.
  2. Should the Purchaser decide do deviate from this procedure, all resulting costs are to be paid by the Purchaser. In any case, the risk shall be transferred to the Purchaser as soon as the pieces leave the works.

§ 5. Terms of payment

  1. Unless stated otherwise, our prices are to be understood ex works excluding the packaging costs. These will be invoiced separately.
  2. Our prices do not include the statutory value added tax (VAT). It will be stated in the invoice separately at the applicable rate at the date of the invoice.
  3. Any discounts require prior written agreement.
  4. Payments are to be made in cash or via bank transfer within 15 days upon receipt of the goods and invoice. They are considered effected as of the date from which the full amount is at our disposal.
  5. Other payment methods require a specific written agreement. Resulting additional expenses are to be made by the Purchaser.
  6. The Purchaser has a right of set-off or retention only on condition that the respective claims or receivables are established as final by a court of law, undisputed or acknowledged by us. The Purchaser only has a right of retention insofar as this right is based on the same contract.

§ 6. Warranty

  1. The processing shall be professionally and accurately carried out by us.
  2. The Purchaser is obliged to examine our processing immediately after the delivery and must notify us of any defects immediately. If the Purchaser fails to do so, the processing is considered approved, unless the defect was not detectable during the inspection. In case such defect shows later, the notification of defect must be communicated to us immediately in writing, otherwise the processing shall be considered approved despite the defect. The notification of defect must be in written form and must state and describe the defect clearly.
  3. In case a notification of defect is legitimate, we will remove the defect at our own choice or we repeat the treatment with an old or a corresponding new workpiece (subsequent fulfilment). If the subsequent fulfilment fails or is not reasonable for the Purchaser, they can reduce the price or withdraw from the contract. Further claims of the Purchaser shall not be accepted, except claims from § 7 (Liability).
  4. The Purchaser is obliged to provide sufficient time and opportunity to correct the defect. In case the request is made, the Purchaser must send samples or – if we chose to request so – the entire quantity of material in question for testing.
  5. The warranty period is one year after transfer of risk.

§ 7. Liability

  1. We only account for damages if a personal injury is involved, if the damage falls under the German Product Liability Act (ProdHaftG) or is based on intent or gross negligence. In all other cases, liability on our part is excluded.
  2. The level of liability is limited to the extent and amount of damage, according to the conditions and facts which were reasonably foreseeable at the time of contract conclusion, as well as the type of damage that is characteristic for this type of business. The liability is furthermore limited to the value of the commissioned work. This limitation is not valid in case of liability under the German Product Liability Act (ProdHaftG) or in cases of harm caused to life, body or health, if an explicit warranty has been granted, or where the cause of damage can be attributed to gross negligence or intent on our part.
  3. To the extent to which the liability excluded or limited, this shall equally apply in favour of our employees and other agents involved.

§ 8. General Liabilities

  1. If the Purchaser is a registered merchant, our business offices in 26689 Apen shall be the exclusive place of jurisdiction. However, we shall also be entitled to bring an action against the Purchaser at their residence of office.
  2. Unless stated otherwise in the confirmation order, our business residence is in 26689 Apen place of fulfilment and also for our obligations of payment.
  3. Should an individual provision be invalid, this shall not affect the validity of the remaining provisions.
  4. Exclusively German law applies to international business dealings with us, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  5. As for the rest our General Terms of Business apply.

Augustfehn, 02.01.2013

SPECIFIC conditions for CONTRACT MANUFACTURING (PROCESSING)

Unless the Purchaser objects to these conditions in written form, all incoming orders are subject to the following conditions:

  1. The work pieces to be processed must be delivered with a delivery note that states the quantity and material quality of the work pieces. The type of processing to be performed must also be clearly stated in the delivery note.
  2. Price quotes and delivery details are subject to change, unless binding arrangements were stated at the time of order placement.
  3. Deliveries and collections must be arranged by the Purchaser. In case the Purchaser requires the material to be returned by us, this will be done as their own risk and expense. A transport insurance of the goods will only be arranged at the Purchaser’s explicit request and will be invoiced. Incidents of force majeure exempt us from the delivery period and entitle us to fully or partially withdraw from the contract. Incidents of force majeure also include all unpredicted and involuntary disturbances and complications of delivery prospects, particularly hindrances and failures of all kind within our own business operations or those of our suppliers.
  4. Contract manufacturing/ processing is due for payment without any deductions within 10 days upon receipt of the invoice.
  5. If the Purchaser has outstanding due payments, there is a right for refund with the processed work pieces. In this case we are entitled to deliver the pieces in question only against simultaneous payment including any other pieces remaining to be paid.
  6. Orders for contract manufacturing/ processing shall be dealt with diligently. Potential claims for damage for whichever legal reason shall only amount to the total amount of the wage labour of the claimed pieces. The contractor is hence granted the right to decide whether to issue a credit note or whether to rework the damaged pieces free of charge. Further claims of damage shall not be accepted. We shall only be liable for damage such as personal injury, damage that falls under the German Product Liability Act (ProdHaftG) or damage that is caused by intent or gross negligence.
  7. Storage in our warehouses and delivery will be done at the Purchaser’s own risk. Wage labour goods are not insured against incidents of fire or theft. The delivered goods will be shipped either in their original or equivalent packaging. We shall not be liable for corrosion, unless the Purchaser explicitly requests so. We recommend taking out an external insurance. Further liability claims can only be acknowledged with written agreements prior to the delivery of the goods to our premises.
  8. Closed hollow containers must only be delivered or treated if provided with ventilation holes to avoid the risk of explosion!
  9. The place of jurisdiction is 26689 Apen.
  10. All our international business dealings shall be subject only to German laws, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  11. Should an individual provision be invalid, this shall not affect the validity of the remaining provisions.
  12. In all other respects, our General Terms and Conditions apply.

Augustfehn, 02.01.2013