Steinmetz Schleiftechnik GmbH & Co. KG General terms and conditions of sale

1. Offer and conclusion of contract:
1.1 Our quotations shall be non-binding and subject to alteration. They shall be subject to revocation until explicit acceptation.

1.2 The mutual written agreements shall be essential for the type and scope of the delivery. If such agreements do not exist, or if they do not correspond to each other, only our written confirmation of order shall be valid.

1.3 The acceptation of the order shall be subject to the validity of the following general terms and conditions. We shall not need to file an objection against the purchaser in case their conditions of delivery and purchasing do not match our conditions.

1.4 If it is statutory or explicitly agreed on, safety devices are also delivered.

1.5 The property right and the copyright utilization rights for quotations, drawings and further documents shall remain absolutely with the supplier. Access to the property rights and the copyright utilization rights shall be allowed to third parties only after approval of the supplier. Drawings and further documents belonging to the quotations have to be returned without delay if the supplier does not obtain the commission. The abovementioned clauses shall also be valid for the purchaser’s documents. Third parties, however, may have access to these documents as far as the supplier has permissibly transferred deliveries or services.

2. Prices and payments:
2.1 Prices shall be calculated ex works. The delivery shall not include assembly or packaging charges, excl. VAT at the statutory rate.

2.2 If the expenses for material, wages, taxes or similar expenses increase in a period of four months between conclusion of contract and delivery, without us being responsible, the prices are subject to a reasonable alteration, if we have not agreed on a fixed price.

2.3 If the contractual item is a fungible good, the purchaser shall have the right to withdraw from the contract within 14 days after the notification about the alteration in prices, if the increase amounts to more than 5% of the purchase price agreed on in the contract.

2.4 Payments shall be made, if no deviating agreements done, either after 10 days less 2% discount or after 30 days without any discount, beginning on the day of delivery of the purchased item to the destination, free cashier’s office of the supplier. All payments shall be made directly to us. The payment shall only be considered as being made when we have the whole amount due at our disposal. In case of a delayed payment, we calculate a default interest of 8 percentage points above the basic interest rate of the European Central Bank for the amount due.

2.5 The set-off due to possible counterclaims of the purchaser shall be impossible, unless they are considered uncontested because of a written confirmation or have been determined without further legal recourse. The purchaser shall only be empowered to exert their right of retention if and when their counterclaims are based on the same contractual relationship.

2.6 In case of delivery to a foreign country, we can demand to issue an irrevocable and confirmed letter of credit, payable at any bank we have listed, or we can demand equivalent collateral. The Academy of European Law (ERA) shall therefore explicitly enter into the contract.

3. Reservation of proprietary rights:
3.1 Goods which we have delivered (goods subject to retention of title) remain our property until the complete claims of the business relation against the purchaser, especially possible claims on current accounts, are offset. We shall be committed to release our safety rights on request, unless they exceed the amount of the outstanding money more than 20%. The goods subject to retention of title must not be neither pawned nor be pledged as security without our consent. We shall be immediately informed of pledges of goods which are our property or of claims assigned to us.

3.2 The purchaser is obliged to treat the delivered good carefully, until the ownership has passed on to them. He is especially obliged to insure them at their own expense up to the reinstatement value against damages due to robbery, fire or water. If maintenance works or inspections have to be carried out, the purchaser has to carry them out in time at their own expense. Unless the property has not been passed on to the purchaser, the purchaser has to inform us immediately in written form if the delivered item is in danger or exposed to any modifications by a third party. If the third party is not able to refund the court and out of court expenses following a court suit according to § 771 ZPO (civil process order), the purchaser is held responsible for the liability of loss occurred to us.

3.3 The purchaser shall be entitled to resell the goods subject to retention of title in the normal course of business dealings. In case of resale, the purchaser shall already now transfer all claims resulting from this resale to the amount of the final invoice (incl. VAT). This shall also be true in case of a resale after transformation or processing as well as in case of joining the good with a property or a chattel. If the resale of the good subject to retention of title takes place after transformation or processing with further items that do not belong to our property or after the jointly combining of the goods with a real estate property or a chattel, the claims of the purchaser towards his purchaser shall be considered as transferred at the purchase price that the purchaser and we have fixed for the good subject to retention of title.

3.4 The purchaser remains authorized to collect the claim even after the transferring has taken place. Our authorization to collect the claim remains unaffected. We shall commit ourselves, however, to refrain from collecting the claim as long as the purchaser fulfils their payables of the collected proceeds, does not default and does not apply for the opening for insolvency proceedings. If the purchaser, being authorized, collects the claim, we shall be paid the collected proceeds resulting from the transferring at the delivery price which we have agreed on with the purchaser.

3.5 The processed goods shall be considered goods subject to retention of title. Processing or reshaping of the goods subject to retention of title takes place according to § 950 BGB (German Civil Code) for us as producer, without any obligation

If goods owned by us are processed with other items, we acquire property of the new item in relation of the market value of our good to the value of the other processed items at the moment of processing. The safekeeping of the new item shall be effected with the common-practice care by the purchaser free of charge for us.

4. Delivery, packing, passage of risk:
4.1 Unless we have not agreed differently in the abovementioned mutual written statement, the delivery shall take place from our works (or, if a direct delivery is stated, from the pre-supplier’s works).

4.2 The purchaser pays freight and transport charges, unless stated differently in the contract.

4.3 The delivery dates shall only be binding if they have been agreed on in a written form. The adherence to the delivery deadline shall require that the purchaser has clarified all questions and specifications needed for the execution of the delivery, concerning especially the documents he has to make available, the technical dates, needed authorizations, approvals, the in-time clarification and authorization of needed plans. The dates of delivery are delayed according to any delays of the abovementioned issues.

4.4 We cannot be held responsible for delays in delivery and services due to unpredictable circumstances which we were not able to avoid despite the greatest of reasonable care as well as for delays in delivery and services due to events which considerably complicate or make delivery impossible – meant are particularly strikes, lock outs, official rulings – even in the case of binding stipulated time limits and deadlines. This is also true if the delay occurs at a distributor or a preliminary distributor. The delay authorizes us to postpone the delivery or services for the period of the delay plus a reasonable start-up time.

4.5 Fixed delivery deadlines shall be considered as met:

4.5.1 in case of deliveries excluding installation of assembly, if they are dispatched or collected within the fixed delivery time or, in case of collection by the purchaser, if they have been provided. If the delivery is delayed due to circumstances which are the fault of the purchaser or if the delivery is impossible without our responsibility, the deadline shall be considered as met in case of notice of the readiness to deliver within the fixed period of time.

4.5.2 in case of delivery of assembly, at the moment of installation or assembly within the fixed period of time.

4.6 If the supplier does culpably not keep his deadline or is delayed for any other reason, the purchaser has to grant a reasonable extension of time under penalty of refusal. The extension of time begins on the day of receiving the written setting of default or ends, in case of a specified period of time, when this period is over. After this grace period has expired with no result, the buyer shall have the right to withdraw from the contract.
Concerning the liability, clause 8 of these GTCs is valid.

4.7 If the purchaser is in default in acceptance or in default in taking delivery or if he neglects culpably other duties to cooperate, we shall be authorized to demand refund for any damage caused by this including possible additional expenses. Further claims remain reserved. If the abovementioned conditions exist, the risk of incidental destruction or incidental worsening of the commodity shall be passed on to the purchaser in the moment in which he is getting into delay in acceptation or into debtor’s delay. By request and at the expense of the purchaser, the supplier takes out the insurance policy which the purchaser demands.

4.8 The risk of incidental destruction shall be passed on to the purchaser at the latest when the supply parts are dispatched or when the work is accepted, also if a part delivery is executed or in case of direct performances by the pre-supplier or if the supplier has undertaken further duties, e.g. the shipping costs or carriage and assembly or installation. If the collection or the shipping is delayed due to circumstances which are the purchaser’s fault, the risk of incidental damage shall be passed on to the purchaser on the day of notification of readiness of collection or of shipping or of acceptability.

4.9 If dispatch or shipment is delayed at the purchaser's request by more than one month after notice of the readiness for dispatch was given, the purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the supplies. The storage costs are limited to a total of 5 % of the price of the item, unless higher expenses are attested.

4.10 The supplier shall be authorized to have the commodity at their free disposal and to supply the purchaser within a reasonable grace period after the setting of a grace period is expired with no result.

5. Acceptance:
Delivered goods shall be accepted by the purchaser, even if they show minor defects. Part-delivery is permitted.

6. Erection and assembly:
Concerning erection and assembly, the following regulations shall apply, if not stated differently in written form:

6.1 The purchaser shall bear the costs and has to provide in time:

6.1.1 teams like handymen, and, if needed, also craftsmen as well as further skilled workers including the tools needed in appropriate number.

6.1.2 the complete groundwork, concrete work, construction work, chiselling work, scaffolding work, plastering work, paint work or other ancillary work outside the scope of the supplier, including construction materials and tools.

6.1.3 the items and working materials needed for the assembly and commissioning, like scaffold boards, wedges, bedding, cement, plastering and sealing agents, lubricants, fuels etc. and scaffoldings, lifting devices and other required devices.

6.1.4 electricity and water as well as further necessary energies, including the required connections at the point of use. Furthermore heating and lighting.

6.1.5 at the assembly site, enough huge, appropriate, dry and lockable rooms for the storage of parts of the machine, equipment, materials, tools etc. and appropriate working and recreation rooms including appropriate sanitation facilities for the assembly staff. Moreover, the purchaser shall be obliged to protect the owner, the contractor and the assembly staff at the building site and has to take the necessary precautions.

6.1.6 in particular, the approach routes and the assembly or erection site shall already have been levelled off and cleared, the foundation walling shall be set and dry, the foundation walls shall be trued and back-filled; in case of indoor installation, the walls and ceiling shall be fully plastered and doors and windows fitted.

6.1.7 they shall provide the necessary protective clothing or protection equipment for free if they are not customary for the contractor.

6.2 The purchaser shall be obliged to inform the contractor about the particular circumstances of the assembly site. Before the erection work starts, the purchaser shall make available of its own accord any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.

6.3. Prior to commencement of assembly or installation, the delivered parts shall already be directly located where they are to be assembled and all preparatory works, which have to be carried out prior to commencement of assembly shall be completed to the extent that assembly or erection work can commence immediately upon arrival of the assembly staff and carried out without interruption.

6.4 If the erection, assembly or commissioning is confronted with a delay due to circumstances which are the purchaser’s fault, the purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the supplier or the erection staff.

6.5 The purchaser shall confirm the working hours of the erection or assembly staff weekly to the best of their knowledge. Moreover, the purchaser shall be obliged to confirm the completion of the erection or assembly immediately in written form to the erection or assembly staff.

6.6 The contractor shall not be hold liable for the work of the erection or assembly staff and further assistants, unless the works are linked to the delivery and erection or assembly or if they are initiated by the purchaser.

6.7. In case the supplier has to execute the erection of assembly against separate invoicing, the following terms shall apply in addition:

6.7.1 The purchaser has to pay to the supplier the charging rates fixed when placing the order for working hours including supplements for overtime work or work on night, Sunday or holiday and for work under harder conditions as well as for planning and supervision.

6.7.2 The following costs are paid separately:

- travelling costs, costs for the transport of tools and personal luggage
- the per diem allowance for the working hours as well as for rest days and public holidays.

7. Liability for defects - warranty:
7.1 Purchasing:
7.1.1 The purchaser shall be obliged to check the delivery immediately for completeness, damages due to transport, defects, size, materials, quality and characteristics. Obvious defects shall be reported to us within 3 days after delivery in written form. Defects which are not obvious shall be reported within 3 days after they have been noticed. Otherwise, the goods are also deemed in consideration of this defect as approved. The abovementioned clauses shall not be valid if we have fraudulently concealed the defect or if we have given a respective guarantee.

7.1.2 After a defect has been reported to us within the allowed period of time, we shall deliver in addition or improved at no charge. We shall be allowed a reasonable deadline for compensation delivery or improvement. The improvement is deemed a failure upon the second unsuccessful attempt, unless further attempts should be appropriate and reasonable for the supplier in the framework of the underlying contract. If the supplementary performance has failed or if we have refused the supplementary performance altogether, the purchaser shall – without prejudice to any claims for damages – demand either the reduction of the purchase price (decrease in value) or the withdrawal from the contract.

7.1.3 Transmitted claims, irrespective of the legal basis, shall be excluded, unless caused by grossly negligent conduct on the part of the seller. This is in particular valid for claims for compensation concerning consequential damages and costs.

7.2 The supplier shall be hold liable for defects concerning the contract for work:

If a commercial transaction exists for both parties, the acceptance shall be deemed to have been granted if the supplies have been accepted ready for use after erection and assembly in the purchaser’s place of business or, in case of a test operation, if the test operation is concluded without any faults. In this case, it is assumed that the test operation or the acceptance respectively follows immediately upon the ready-to-operate erection or assembly. If the purchaser does not accept the offer of a test operation or the acceptance in their place of business, the acceptance shall be deemed to have been granted after a deadline of 14 days after this offer, unless the purchaser objects in written form.
All parts or services, which become unfit for use or become significantly restricted in their use [within 12 months?] from the day of transfer of risk due to a circumstance, which existed prior to the transfer of risk, especially due to defective construction, poor materials or defective workmanship, shall be repaired or redelivered or, in the case of services, provided again at supplier's choice. Defects shall be reported immediately in written form, incidentally clause 7.1.1. shall valid for the report of obvious and hidden defects.

7.3 The supplier shall be exempted from the liability for defects, if the purchaser refuses the elimination of defects.

7.4 What is unaffected by this is however that the purchaser shall keep the payment obligations imposed on them, in particular the payment conditions which we have agreed on. If a notice of defects is raised, payments on the part of the purchaser can be withheld to a degree which is reasonable compared to the actual defects. If the defect is claimed in connection with a contract that is integrated in operating their business, the purchaser can only withhold the payment if the justification of an asserted defect complaint is beyond all doubt.
 
7.5 Claims on account of defects do not exist in case of an only minor deviation from the quality agreed upon, in case of a merely minor impairment in usability, in case of natural wear and tear or damage after the passing of risk due to defective or neglected treatment, excessive strain, defective operating resources, defective construction works, inappropriate building ground or owing to special external influences, in particular of chemical, electrochemical or electrical kind, which were not fore-seen under the terms of the contract. If the purchaser or third parties carry out maintenance work or modifications improperly, we can not be held liable for these defects nor for any resulting consequences.

7.6 Claims arising from defects shall be subject to a limitation of 12 months after delivery of the goods at the purchaser’s place of business. This shall not apply in case of fraudulently conceal of defects or assumption of a guarantee for the condition and quality or in case a claim for compensation in damages is lodged against us according to clause 8 “Liability” of these GTC. The warranty period within the scope of a contract for work shall also be 12 months – calculated from the day the risk was transferred, irrespective of the operating time.

7.7 The following clauses apply respectively for such claims on the part of the purchaser concerning improvement [and/or] compensation delivery which arouse due to suggestions or consulting in the scope of the contract only because of violation of contractual secondary obligations.

8. General liability:
8.1 We shall only be held liable within the framework of the contract on its merits for the purchaser’s damages (a) which we or our statutory agents or our vicarious agents caused deliberately or by serious negligence, (b) due to injury of life, body or health which result from a breach of duty by us or our statutory agent or our vicarious agent and (c) which have occurred due to the breach of a duty which is essential for reaching the purpose of the contract (cardinal duty). Cardinal obligations are those obligations that enable the realisation of the contract according to the rules in the first place and on whose observance the contractual partner regularly trusts.

8.2 In the cases mentioned in clause 8.1. (a) and (b), our liability shall be unlimited. In case of clause 8.1. (c), the damage claim shall be limited to foreseeable, contract-typical damage. The liability for damages which have been caused to legally protected interests of the purchaser by the delivery good (e.g. damages to other items) is excluded.

8.3 In other cases than those explicitly mentioned in the framework of these GTC, our liability is completely excluded – irrespective of the legal basis.

8.4 The abovementioned limitations of liability apply also in favour of our vicarious agents.

8.5 Liability according to the law relating to product liability shall remain unaffected.

8.6 The purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the supplies was subsequently brought to another location than the purchaser's branch office, unless doing so complies with the intended use of the supplies.

8.7 The purchaser’s rights of recourse against us shall only apply to the extent that the customer has not made any agreements with the final consumer that go beyond the statutory claims for physical defects. As for the extent of the claim of the customer against the supplier as a result of the right of recourse paragraph 9.6 shall be applicable accordingly.

8.8 The abovementioned clauses shall apply accordingly for such purchaser’s claims for compensation for damages which have occurred due to suggestions or consulting within the frame of the contract by violation of contractual secondary obligations.

9. Place of jurisdiction:
9.1 Exclusive jurisdiction and legal venue for all disputes arising directly or indirectly from this contract shall be – at the supplier’s choice – the supplier’s principal place of business or a branch office, if the customer is a commercial businessman, legal entity of public law or public special estate

9.2 This contract and the entire legal relationships of the parties are subject exclusively to the laws of the Federal Republic of Germany, to the exclusion of the Convention Relating to a Uniform Law on the International Sale of Goods (CISG).

10. Acceptance of the conditions of sale and delivery:
All orders entered towards us shall be considered as an acceptance of the abovementioned conditions and oblige the buyer to adhere to them. The abovementioned conditions of delivery apply to all actual and future contracts, unless they are explicitly modified or excluded. Collateral agreements are only valid if confirmed in writing.

11. Information concerning data processing:
11.1 We carefully attend to the regulations of the German Data Protection Act (Bundesdatenschutzgesetz) and of the German Multimedia Act (Multimediagesetz) and, if necessary, further applicable privacy terms. We shall use the purchaser’s inventory data exclusively for the processing and completion of their orders / the contract. All customer data is saved and processed in accordance with the pertinent regulations of the Federal Information Protection Law (BDSG) and the Teleservice Information Protection Law (TDDSG).

11.2 We do not forward personal data of the buyer, including their postal address or email address to third parties. Exempt from this policy are service partners who must have data in order to process orders (e.g. the shipment enterprise commissioned with the delivery and the bank which handles the payments). The amount of the data transmitted for this purpose is restricted to what is genuinely required.

12. Salvatorious clause:
The possible ineffectiveness of individual parts or possible gaps of these conditions of delivery and sale shall not affect the effectiveness of the remaining conditions.

13. Non-disclosure agreement concerning deliverers:
13.1 The deliverer shall not use the information which we provide him with without the explicit written approval and they shall not make them the object of trademark rights, domestic and abroad.

13.2 The deliverer shall likewise, in this context, keep the documents we have been provided with a secret towards third parties, and shall make copies only for their own use (including the awarding of contracts to sub-deliverers). They shall moreover not use the information for their own commercial purposes (costumer protection)

13.3 After the completion of the cooperation or on our request at any time, the deliverer shall return all the documents completely to us. Even after the completion of the cooperation, the deliverer shall not forward the information to third parties or use them for their own commercial purpose.

13.4 The deliverer shall make sure the fulfilment of the obligation on the part of their employees and sub-deliverers by means of the appropriate measures.