I. Scope of application
1. Our terms and conditions of sale and delivery shall apply to all present and future contracts with commercial buyers and public legal entities in regard to deliveries and other services, including contracts relating to the manufacture. Any terms and conditions of the buyer shall not be applicable.
2. Our offers are non-binding as a basic priciple. A contract is not deemed as effectice until the buyer has received our written order confirmation, or we begin to perform the deliveries or services. The written form shall also be met in cases of telefax and e-mail transmission.
3. Due to the high complexity of the procurement process for our products (coordination of preliminary suppliers and man- ufacturers) we are entitled to confirm any order within 4 weeks from receipt of order.
4. Any subsequent amendments, additions, verbal agreements or side-agreements made or given by our staff shall not be binding unless confirmed by us in writing. Any drawings, analysis, samples and graphs are approximate unless confirmed by us in writing.
5. Our commitment to deliver is subject to our own correct, timely and contractual self-delivery, unless we are responsible for the deficient, late or non-contractual self-delivery.
II. Price and payments
1. Insofar as not otherwise seen from our order confirmation our prices are ex works, for unpacked goods and exclusive of value added tax. Ancillary transport expenses (e.g. taxes, customs duties, freight charges, fees, other levies, insurance premiums, etc) as well as any materials required for dispatch must be paid separately by the buyer. If the goods are shipped by sea, prices are FOB (Free on Board) at the port of departure.
2. In case of carriage paid deliveries ex warehouse/works, the prices are for delivery, unloaded, to the place of use via hard roads.
3. Costs for changes to order shall be borne by the buyer.
4. Orders, for which no fixed prices have expressly been agreed, will be invoiced at the list prices valid on the date of delivery if applicable plus the alloy surcharges.
5. Agreed prices are not binding for follow-up orders.
6. Should our external expenses (duties, taxes or other third-party charges) included in the agreed price change or newly incur later than 4 weeks after the conclusion of the contract, we shall be authorised to modify the price accordingly with regard to the goods not yet delivered to the Buyer as of the beginning of each calendar month concerned. In the event that the modified price surpasses the originally agreed price by more than 15%, the Buyer may, within one week after receipt of our price modification notice, withdraw from the contract with respect to the goods affected by the price modifi- cation.
7. Once we have transferred the purchase object to the buyer or the transporteur and our invoice has been received by the buyer, our invoices are due for immediate payment onto a bank account we specifiy, without deductions of any kind. The criterion for timely payment is the date on which the amount is credited to our account.
8. The Buyer may retain or set off any counterclaims only in so far as his claims derive from the same contractual rela- tionship or are undisputed or have been recognised by us or have become legally binding.
9. In the event Buyer exceeds the payment term or defaults in payment, he will be liable to pay interest at 9 %points above the basic interest rate, unless higher rates have been agreed upon. We reserve the right to claim additional dam- ages resulting from late payment.
10. Our claims shall become due and payable immediately if terms of payment are not satisfied or should we become aware of any circumstances which are suitable for reducing the creditworthiness of the buyer. We shall in this case be entitled to execute outstanding deliveries and services only against advance payment or provision of security.
1. Terms of delivery shall begin on the date the order is confirmed, however not before all details of the order have been clarified. They shall be deemed as having been complied with if the goods have left our warehouse / mill or notification has been given by us that the goods are ready for dispatch by the end of the period of delivery. It shall be extended by a reasonable period of time if the buyer does not satisfy his obligations towards us or undertakes changes to the order.
2. Cases of force majeure (unforeseen circumstances and events occuring through no fault of our own that we cannot have avoided by exercising due diligence, e.g. strike and lock-out, war, fire traffic disruptions, scarcity of raw materials, official measures) shall interrupt our delivery and service obligations for the duration of their impact, even when we have already defaulted on delivery.
IV. Grades and quantities
1. Composition of the material, dimensions, quality and weight are determined according to the corresponding ASTM, DIN and EN standards. Any reference to such standards, mill’s standards or work-certificates as well as any indication with regard to grade, size, weight or usage of the goods shall not be regarded as a description, a warranty or a guarantee. The same shall pertain to any declaration of origin or conformity, to mills’ confirmations and to any related marks such as CE and GS.
2. The weight of the goods shall be determined on our or our suppliers’ scales and shall be evidenced by the presentation of the pertinent weight check. Where provided by law, the weight may be determined without weighing in accordance with the standards. Deviations in weight above or below the total quantity charged (trade weight) pursuant to the common practice in steel trading within the Federal Republic of Germany, shall remain unaffected.
Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding if and in so far as the goods are invoiced by weight. Where, according to the contract, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be propor- tionally allocated to them.
3. We shall be entitled to make partial deliveries with reasonable quantities. Excess quantities or shortfalls in quantities are permitted in case of special productions for each semi finished product +/- 10%, in the event of pipes at least one production length.
V. Delivery and passing of risk
1. Insofar as not otherwise derived from the order confirmation delivery shall be agreed ex works.
2. Unless explicity agreed otherwise, the goods shall be delivered in unpackaged form and without protection against rust. Any agreed packing shall be provided against a standard surcharge and in the form commonly used in trade. Any such agreement must be recorded in writing. We will take back packing material only at our warehouse. We will not bear any costs for their re-transport or disposal.
3. In the absence of a separate agreement, the manner and path of dispatch are left to our disrection.
4. The risk of accidental loss of, or accidental damage to the goods, shall pass to the buyer as soon as we have handed over the goods for transportation to a forwarder, to the carrier or to any other person or agency designated to execute the shipment, at the latest, however, when the goods leave our factory or warehouse. If the goods are ready for dispatch and dispatch is delayed through no fault of our own, the risk is deemed to have passed to buyer when notification has been received of readiness for dispatch. In such a case we are entitled to dispatch the goods at our disrection and at the ex- pense and risk of the buyer, or to store the goods at our disrection and to invoice them immidiately.
5. If the goods are dispatched using loading aids (pallets, etc.) the buyer is obliged to return the same quantity and quality of loading aids to us at no charge. Should the buyer fail to meet this obligation even after a deadline of one week to be set by us, he shall owe us the amount required to procure the same quantity and quality of loading aids.
VI. Retention of Title
1. All goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts resulting from the business relationship with him, in particular any account balances have been settled. This condition shall apply to any future as well as any conditional claims including accepted notes and such cases where the Buyer will affect pay- ments on specifically designated claims. As soon as the Buyer has settled his accounts with us in full, he shall obtain title to those goods which were delivered to him before such payment was effected.
2. With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within the meaning of sec. 950 BGB (German Civil Code) without committing us in any way. The processed or manufactured goods shall be regarded as Reserved Property within the meaning of clause VI/1 of these Conditions. If the Buyer manu- factures, combines or mixes the Reserved Property with other goods we shall obtain co-ownership in the new goods in proportion to the invoiced price of the Reserved Property to the invoiced price of the other goods. If, by such combining or mixing, our ownership expires, the Buyer herewith transfers to us any rights which the Buyer will have in the new stock or goods in proportion to the invoiced price of the Reserved Property, and he will keep them in safe custody free of charge. Such transfer is hereby accepted. Our co-ownership rights shall be regarded as Reserved Property within the meaning of para. 1 above.
3. The Buyer may resell the Reserved Property only within the normal course of his business in accordance with his nor- mal business terms and provided he is not in default of payment and provided also that any rights resulting from such resale will be transferred to us in accordance with para. 4 through 6 below. The Buyer shall not be entitled to dispose of the Reserved Property in any other way.
4. The Buyer hereby assigns to us any claims resulting from the resale of the Reserved Property. Such assignment is hereby accepted. Such claims shall serve as our security to the same extent as the Reserved Property itself. If the Re- served Property is resold by the Buyer together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to us in the ratio of the invoiced value of the other goods sold by the Buyer. In the case of resale of goods in which we have co-ownership rights according to para. No. 2 above, the assignment shall be limited to the part which corresponds to our co-ownership rights.
5. The Buyer shall be entitled to collect any receivables assigned to which result from the resale of the Reserved Property. This right shall expire if withdrawn by us, at the latest if the Buyer defaults in payment; fails to honour a bill of exchange; or files for bankruptcy. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardised by the lack of Buyer’s ability to pay. The Buyer shall – upon our request – immediately inform his customers of such assignment and to forward to us any information and documents necessary for collection.
6. The Buyer shall immediately inform us of any seizure or any other attachment of the Reserved Property by a third party. He shall bear any costs necessary to suspend such seizure or attachment or removal of the Reserved Property, if and in so far as such costs are not borne by a third party.
7. Should the Buyer default in payment or should he fail to honour a draft and after expiry of a reasonable period of grace we shall be entitled to take back the Reserved Property and to enter, for this purpose, the Buyer’s premises and to resell the Reserved Property best possible by crediting the proceeds to the purchase price. The same shall apply should, after the conclusion of the contract, it become evident that payment resulting from this contract or from other contracts is jeop- ardised by the Buyer’s lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as with- drawal from the contract. The provisions of the German Insolvency Code shall remain unaffected.
8. Should the total invoiced value of our collateral exceed the amount of the secured receivables including additional claims for interest, costs etc. by more than 50 %, we shall – upon the Buyer’s request – release pro tanto collateral at our discretion.
1. Any defects in the goods shall be notified in writing immediately, however no later than seven days after delivery. De- fects which cannot be detected within this period notwithstanding the most careful examination shall be notified in writing immediately after being discovered, however no later than before the expiry of the contractual or statutory period of pre- scription with all processing to be ceased forthwith.
2. In the event that an inspection of the goods has been agreed upon, the buyer shall not have any right of recourse with respect to any defects which could have been detected during such inspection.
3. If and in so far as Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion, remedy the defect (“improvement”) or deliver non-defective goods (“replacement”, improvement and replacement hereinafter: “cure”). Should we fail or decline the cure, the Buyer may, upon the elapse of an adequate additional period of time set by him, withdraw from the contract or reduce the purchase price. In cases where the defect is minor he may only reduce the purchase price.
4. In the event the Buyer fails to give us the opportunity to immediately inspect the defect, or the Buyer, especially when asked to do so, fails to make the objected goods or samples therefrom available without delay, any warranty claims shall be void.
5. No warranty shall be given to goods sold as declassified material with regard to such defects either specified in the contract or to those normally to be expected. Goods classified as “IIa-Ware” (“secondaries”) are not subject to any warran- ty.
6. We shall bear any expenditure related to the cure in so far as these expenses are reasonable and not disproportionate in relation to the goods purchase price. We may refuse to bear these expenditures in so far as they exceed the goods purchase price by more than 150%. We shall bear any further expenditures such as for the mantling and dismantling of the defective goods only in accordance with the provisions of sec. VIII of the present conditions. We will not compensate for any expenditures in connection with the delivery of the goods to any other place than the place of performance, unless such delivery corresponds to the contractual use of the goods.
VIII. General restrictions of liability
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliver- ies, for breach of duties prior to the contract as well as for tortuous acts – including our responsibility for our managerial staff and any other person employed in performing our obligations – shall be restricted to damages caused by our wrongful intent or by our gross negligence and, in case of gross negligence, shall in no case exceed the foreseeable losses and damages characteristic for the type of contract in question. Apart from that, our liability for damages resulting from defects including consequential damages shall be excluded.
2. The aforesaid restrictions shall not apply to such cases where we breach our fundamental contractual obligations; it shall neither pertain to damages to life, to the body or to health caused by our fault nor to any cases where we have guar- anteed certain characteristics of the goods; nor shall such clause affect our statutory liability pursuant to the German Product Liability Act. Our contractual obligations shall be considered to be fundamental if they are required to safeguard the due performance of the contract and on which Buyer typically may rely on. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
3. Unless otherwise agreed, any contractual claims which the Buyer is entitled to in connection with the delivery of the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buy- er. This limitation shall also apply to such goods which, according to their normal purpose of use, have been used for constructional works related to real estate property and which have caused damage within this construction, unless this purpose of use has been agreed upon in writing. This restriction shall not apply to our liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damages to life, to the body and to health caused by our fault nor to any statutory recourse claims. In the event a cure has been performed the limitation period shall not commence anew.
IX. Place of performance, place of jurisdiction and applicable law, version
1. Unless expressly agreed to the contrary, the place of performance for our deliveries shall be the mill. The place of juris- diction is, at our discretion, the city of Düsseldorf (Germany) or the Buyer’s seat.
2. All legal relations between the Buyer and us shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply. 3. In cases of doubt, the German version of these General Conditions of of sale and delivery shall apply.
I. Scope of application
1. These General Terms and Conditions of Purchase shall apply to all purchase orders for goods or services and their execution. Any Seller’s terms and conditions in derogation hereof will not be accepted by us unless these General Terms and Conditions or the contract with the Seller specify otherwise. If we take delivery of the goods without expressly objecting to, this shall not be construed to be an acceptance of any such Seller’s terms and conditions.
2. Any oral agreements made by or with our employees will not bind us unless and until confirmed by us in writing.
3. Quotes and offers shall be prepared free of charge to us and not bind us.
4. Drawings, models, designs and other documents provided to the Supplier or produced by him to our specifications may only be used to draw up the quotation and to deliver the ordered goods. They must be returned to us immediately on demand, upon completion of our request or delivery of the ordered goods.
5. Commercial clauses shall be interpreted pursuant to the INCOTERMS as amended from time to time.
1. Agreed prices shall be fixed prices free point of destination. Goods shall be invoiced excluding packing.
2. Prices quoted “free point of destination”, “free place of destination” or other “delivered free” clauses shall include freight and packaging. Packaging will not be paid unless expressly agreed upon. In such cases, 2/3 of the invoiced packaging costs shall be credited if the packaging is returned freight prepaid to the place of dispatch.
III. Delivery item
1. Our order shall determine the content, nature and scope of the goods to be delivered.
2. The drawings, specifications etc. associated with the order shall be binding on the Supplier; however, he should check them for possible discrepancies and inform us immediately in writing of any errors found or suspected. The Supplier shall bear sole responsibility for drawings, plans and specifications produced by him, even where they have been approved by us.
1. Invoices shall be submitted in quintuplicate by separate mail (i.e., not included with the consignment) promptly after delivery of the goods or provision of the services. Payment shall be subject to the correctness of the invoices and the contractual quality of the goods and services concerned. Unless agreed otherwise, payment shall be due within 8 days of receipt of the delivery item and the invoice with a 3% discount, or within 14 days with a 2% discount, or by the end of the following month with no discount, the means of payment to be specified by ourselves. Inspection or acceptance documents specified in the order shall be considered part of the complete delivery.
2. Invoices received late will throughout be paid by end of the month succeeding invoice receipt, on unchanged terms and without any interest refund, deducting any additional costs for late invoice receipt (in particular the costs for bank guarantees we may have furnished).
3. Payment or cash discount periods will commence with the date of invoice receipt, however, not before the receipt of the goods or the acceptance of services, and not until any contractually agreed documentation, test certificates (e.g. mill certificates) or similar documents have been delivered to us.
4. We are entitled to offset/retaining liens within the statutory scope.
5. The seller shall not assign his receivables or collect his receivables by a third party without our prior written consent which shall not be withheld unreasonably. In case the Seller assigns his receivables to a third party contrary to sentence 1, the assignment is valid. However, we are entitled to pay either to the Seller or to the third party with the effect of discharging us from our obligation.
V. Delivery dates/delayed delivery/passage of risk
1. The agreed delivery dates shall be strictly observed. Part shipments will be subject to our written consent. Any impending delays in delivery shall be promptly communicated in writing to us, proposing suitable counteractions to avert repercussions of the delay. Excess or short shipments (pipes: -0 meter/+1 random length, fittings and flanges: +/- 0 pieces) will only be permitted as customary in trade.
2. Unless otherwise agreed in writing, the delivery time commences with the date of the legally binding purchase order.
3. All shipping documents, operating instructions and other certificates forming part of the Seller’s obligations shall be sent to us at the shipment date. If delayed delivery by the Seller (including late transmittal of the aforesaid documents) causes any payment collateral to expire, we will not pay until payment has been received from our customer.
4. Any default by the Seller on the performance of his obligations shall entitle us to all legal rights and remedies. In particular, we shall be entitled to claim damages in lieu of performance after the futile expiration of a reasonable extension granted by us. Our right to claim performance of the contract shall not expire until after the Seller has paid the damages in full.
5. Without prejudice to the aforesaid, in the case of any delay in delivery for reasons attributable to the Seller, the Seller shall pay us a penalty equivalent to 0,5% of the purchase price for each week of delay or fraction thereof, up to the aggregate maximum of 5%, unless otherwise agreed. If we name, and the Seller accepts, a specific vessel for the shipment of the goods, the Seller shall, notwithstanding the aforesaid, bear all charges for demurrage, dead freight, etc., if the goods are for whatever reason shipped not at all or late.
6. Any early delivery made without our consent will not affect the term of payment, which hinges on the scheduled date of delivery.
7. If in cased of force majeure, strike or lockout, performance of our contractual obligations is frustrated or materially impeded, we may cancel the contract wholly or in part or demand that the contract be performed at a later date, without entitling the Seller to any claims against us.
8. The Seller may only claim the non-receipt of any documents we are obligated to furnish if he has not received them even after a written reminder.
9. The Seller shall bear the risk of accidental loss and deterioration until the goods are physically delivered at the place of destination; this includes shipments “delivered free” and “free place of destination”.
VI. Production checks/final inspections
1. We reserve the right to check the quality of the materials used, the accuracy of dimensions and quantities and the general quality of the parts to be produced both during manufacture and before delivery, and to confirm compliance with the other requirements of the order in the factories of the Supplier and his own Sub-Suppliers.
2. Where we have reserved the right to carry out a final inspection of the completed delivery item in the factory of the Supplier, or to request such an inspection by a third party, readiness for the final inspection must be notified to us and the third party in writing 14 days in advance, unless agreed otherwise. The material costs of production checks and final inspections shall be borne by the Supplier.
3. Where we have specified a final check on the completed delivery items by a third party, the Supplier must arrange for the final inspection to be carried out by the third party at no cost to ourselves, and send us the results of the inspection immediately, or at the latest with the shipping documents.
4. The production checks and the final inspection shall not exempt the Supplier from his duty to perform or from his warranty commitments.
VII. Reservation of title and ownership
1. In respect of the Seller’s right to retain title and ownership, the Seller’s terms and conditions shall apply provided that title to the goods passes to us when such goods have been fully paid for. Any extended reservation of title (pending payment of all debt balances outstanding under the business relationship with the Seller) shall not apply.
2. On the basis of the reservation of title and ownership, Seller may not claim return of the goods unless the Seller has rescinded the contract.
VIII. Certificates of origin
The following shall apply in cases in cases where Seller makes any statements on the origin of the goods sold:
1. The Seller agrees to (i) permit any documentary evidence of origin to be verified by the customs authorities and (ii) provide all information and/or confirmations or endorsements that may be required.
2. The Seller will be obligated to indemnify us for any loss caused by a certificate of origin declared inappropriate or non-verifiable by the local authorities, unless any such consequential loss is beyond the Seller’s control.
IX. Liability for defects
1. The Seller shall provide the goods or services free and clear of any defects and third-party rights, interests or liens.
2. The Seller is obligated to deliver only such goods and materials that are free of any indication of ionising radiation. The Seller is obligated to compensate all costs and damages resulting from a breach of this obligation.
3. The Seller waives and disclaims the defense of delayed notification of defect under the terms or Art. 377 German Commercial Code (“HGB”). 4. If the goods or services are defective, we are entitled to the legal rights and remedies at our discretion. The expenses incurred for the purpose of subsequent performance (by repair or replacement) shall also be deemed to include any expenses of our customer. For any repaired or replaced goods, the warranty period shall recommence to run.
5. If any warranty claims are asserted against us after resale to a third party, the Seller shall indemnify and hold us harmless for and against any resultant loss or damage. In addition, the Seller agrees to treat any such warranty claim asserted against us by our customer as a claim directly asserted against the Seller himself.
6. The limitation period for our warranty claims shall commence with the date of delivery of the goods or acceptance of the services. The Seller’s warranty and liability for defects from or in connection with the delivery of goods will expire two years after physical delivery of the goods. Claims arising from or in connection with the delivery of goods which are typically used for building proposes will become statute barred five years after physical delivery. In all other cases, the statutory periods shall apply.
7. On our account of performance of his contractual obligations, the Seller hereby assigns to us any and all rights and interests he may claim against his pre-suppliers in connection with the provision of defective goods or services. The Seller shall duly furnish us with all documents required by us to assert any such claims.
X. Place of performance, place of jurisdiction and applicable law
1. Unless otherwise agreed, place of performance for deliveries shall be our plant. The competent courts in Düsseldorf, Germany, shall have exclusive jurisdiction. Nevertheless we shall also be entitled to take legal proceedings against the Seller at his seat at our disrection.
2. All legal relations between the Seller and us shall be subject to German substantive law applicable to the legal relations between domestic parties in addition to these Terms and Conditions. The provisions of the Convention of Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall be excluded.
3. The Seller, at his own cost and expense and without undue delay, shall ensure that all documents required for the effectiveness of the contract or order, e.g. export permits, licenses, approvals, etc. are available and remain valid while the order or contract is in progress. Failure by the Seller to meet this obligation shall entitle the Buyer to cancel or rescind the contract and claim damages from the Seller. The same shall apply if e.g. despite the Seller’s efforts the required documents are (i) not granted within a period reasonably acceptable to the Buyer or (ii) withdrawn or become invalid while the order or contract is in progress.
XI. Severability and interpretation
1. Should any clause of these General Terms and Conditions of Purchase be partially or totally invalid, the balance of the Conditions shall remain unaffected. It is hereby agreed that the ineffective clause shall be replaced by such valid provision which is fair to both parties and which comes as close as possible to the economic purpose of the ineffective provosion.
2. In case of differences of opinion regarding the interpretation of the English version, the German version takes precedence over the English version.