The following terms shall apply exclusively to deliveries and performance. Agreements or supplements to the contrary or deviating agreements or supplements shall only be binding if they are confirmed in writing by GfE. Purchasing terms of the customer shall not be valid, even if GfE has not raised express objection to the said terms. The terms of delivery and payment are recognised by awarding the order and / or acceptance of the goods.
The offers are made without obligation; supply contracts shall come into existence if GfE confirms the purchase order and / or performs the order by delivering the goods.
The provisions of the agreed terms of delivery according to the currently valid Incoterms shall be applicable.
4.1. Delivery dates are non-binding, unless they are agreed in writing with an express reference within the scope of a transaction for delivery by a fixed date. Delivery date undertakings shall commence on the date of the sales confirmation.
4.2. Part deliveries are permissible.
4.3. In cases of force majeure or other unforeseeable impediments which cannot be overcome by reasonable expenditure and for which GfE is not responsible (e.g. interruption of operations, raw material shortages, strikes, etc.), the delivery periods shall be extended in a reasonable manner.
5.1. Unless otherwise agreed, payments must be made in due time and without deduction.
5.2. In the case of default in payment, GfE is entitled to charge default interest in the amount of 8 % above the authoritative base interest rate according to Article 247 of the German Civil Code. If a greater loss on account of default can be proved, then GfE is entitled to assert this said loss.
5.3. Bills and cheques shall be accepted subject to agreement only by way of provisional performance and shall only be regarded to be paid upon encashment.
5.4. The customer shall only be entitled to rights of set-off or retention if its counter-claims are recognised by declaratory judgement, are undisputed or are accepted by GfE.
6.1. GfE shall retain title to the supplied goods until payment in full of all claims from the ongoing business relationship.
6.2. The customer is only entitled following the prior written agreement of GfE to resell, pledge or transfer by way of security the goods subject to reservation of title or to hire them out or send them abroad. If the resale to third parties comes under the customer's customary business operations, then it is by way of exception entitled to resell the supplied goods in the ordinary course of business.
6.3. The customer already now assigns to GfE all claims and compensation claims to which it is entitled regarding the goods subject to reservation of title in the amount of the invoice value of the goods subject to reservation of title. GfE accepts the assignment. The customer is authorised to effect collection as long as it meets its payment obligations in a due and orderly manner and is not in default in payment.
6.4. The treatment and processing of the goods subject to reservation of title by the customer shall always be effected in the name of and on behalf of GfE. If processing is undertaken with articles which do not belong to GfE, then GfE shall acquire co-ownership of the new article in proportion to the value of the goods supplied by GfE to the other processed articles. The same shall be applicable if the goods are mixed with other articles which do not belong to GfE.
6.5. In the case of access by third parties to the goods subject to reservation of title or the processed new article, the customer must draw attention to the title of GfE without delay. In the case of conduct contrary to the terms of the contract by the customer, especially in the case of default in payment, GfE is entitled - even without setting a reasonable period for performance - to withdraw from the contract, to collect the goods subject to reservation of title and accordingly to enter the place of storage or use of the goods. The customer waives the rights to which it would be entitled due to unlawful interference with possession and permits GfE access to the premises where the goods subject to reservation of title are located.
6.6. Claims assigned to GfE may be directly collected by GfE at the third party. The collected claims shall be set off against the purchase price minus the costs and interest incurred by GfE. A surplus shall be paid to the customer.
7.1. The details contained in catalogues, brochures, circulars, advertisements, illustrations and comparable public promotions on performance, dimensions, weights, prices and suchlike are non-binding, unless they expressly become an integral component of the contract.
7.2. GfE shall assume liability for defects to the goods (as defined by Article 434 of the German Civil Code). Parts which show a material defect within the limitation period are at the supplier's option to be repaired, supplied anew or rendered anew free of charge. GfE is entitled to undertake several repair attempts in so far as this is reasonable for the customer. Material defect claims shall become statute-barred after 12 months from delivery .
7.3. The obligation arising from liability for material defects shall expire if the goods are altered by the customer, are wrongly used or treated or are used or treated contrary to the instructions.
7.4. Claims for damages of the customer, irrespective of the cause in law, especially due to the infringement of duties arising from the obligation and on account of tort, are excluded.
This shall not apply in so far as compulsory liability is applicable, e.g. according to the German Product Liability Act, in cases of intent, gross negligence, on account of death, physical injury or damage to health or the infringement of fundamental contractual obligations.
7.5. GfE's liability shall be limited to the amount of the purchase price, unless intent or gross negligence is applicable or liability is assumed on account of death, physical injury or damage to health.
7.6. If the subsequent performance according to 7.2. is unsuccessful, the customer can in principle at its option demand a reduction of the purchase price or the rescission of the contract instead of performance. In the case of only a slight infringement of the contract, especially in the case of only slight defects, the customer shall, however, not be entitled to a withdrawal right.
7.7 With regard to materials delivered by GfE which are physically, chemically or technologically treated or changed by the customer; their applications as construction and / or structural materials are only permissible with prior written consent from GfE.
8. Examination and defect-notification obligation
8.1. The customer must examine the goods without delay after receipt in so far as this is possible in the ordinary course of business. If a defect is apparent, then GfE is to be informed accordingly without delay. The defect-notification deadline shall be 14 days. The receipt of a complaint in writing by GfE shall be authoritative. If the defect for which GfE is responsible is only discovered at a later date, then notification must be made without delay after discovery of the defect.
8.2. The customer's liability rights shall lapse if it does not comply with the obligations described in Section 8.1.
8.3. The goods which form the subject-matter of the complaint must be sent back to GfE in the original packaging or in equivalent suitable packaging in a reasonably priced manner.
The supply contract concluded by GfE with the customer shall be governed by and construed according to German law. The application of the UN sales law (CISG) and EC law is excluded.
Place of jurisdiction for both parties is Nuernberg.
If individual provisions of these terms are or become ineffective, then this shall not affect the effectiveness of the other provisions.
Advanced Metallurgical Group, N.V.
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