General terms and conditions of sale

of Baumbach Stahlhandel GmbH

As at 30.04.2020

I. Conclusion of the contract

These General Terms and Conditions of Delivery and Payment (T&C) apply to all – including future – contracts, deliveries and other services, including consultancy services, information and the like, unless they are amended or excluded with our express written consent. We are not bound by any terms and conditions of the buyer even if we do not expressly object to them after receipt by us.
All quotations are considered to be subject to availability. Conclusions of contracts and other agreements, in particular verbal subsidiary agreements and assurances, only become binding when confirmed by us in writing.
The information, drawings, illustrations, technical data, descriptions of weights, dimensions and services contained in brochures, catalogues, circulars, advertisements, price lists or in the documents belonging to the offer are non-binding unless they are expressly designated as binding in the order confirmation.

II. Prices

Prices are ex works or ex warehouse plus freight and VAT, unless otherwise specified.
In the case of deliveries ex works (drop shipments), we may, if we have not expressly promised a fixed price, charge the prices in accordance with the conditions of the price list of the respective supplying plant valid on the day of delivery. All ancillary charges, public charges and customs duties as well as any newly added charges, customs duties, freight charges or their increases, which contribute to making the delivery more expensive, are to be borne by the buyer, unless mandatory statutory provisions dictate otherwise.

III. Payment and settlement

Payment is to be made by the 15th of the month following delivery ex warehouse, works or notified completion without delay in such a way that the amount required to settle the invoice is available to us at the latest by the due date.
We only accept rediscountable and properly taxed bills of exchange on account of payment if this has been expressly agreed. Bills of exchange and cheques are credited effective as of the day we have access to the amount less expenses with value date.
If the buyer is in arrears with payment, we are entitled to charge interest in the amount of the respective bank rates for overdraft facilities, but at least interest in the amount of 3 per cent above the discount rate of the Deutsche Bundesbank, in each case plus value added tax. We reserve the right to claim higher amounts of damages for defaulted payments.
All our accounts receivable become due immediately, irrespective of the term of any bills of exchange accepted and credited, if the terms of payment are not complied with or if we become aware of circumstances which, following our due diligence and assessment, give cause to reasonable doubts with respect to the customer's creditworthiness. We also retain the right to make outstanding deliveries only against advance payment and to withdraw from the contract after a reasonable period of grace or to claim damages for non-performance. We may also prohibit the resale and processing of the delivered goods and demand their return or transfer of constructive possession of the delivered goods at the buyer's expense and revoke the collection authorisation pursuant to Clause V 5. In the aforementioned cases, we retain the right to enter the buyer's premises, remove the delivered goods and process them in the best possible way by private sale to offset the outstanding purchase price due less any costs incurred.
We retain the right to offset all claims to which we are entitled against the buyer against all claims to which the buyer is entitled against us, irrespective of the legal grounds.
This also applies if payment in cash has been agreed by one party and payment in bills of exchange or other services on account of performance by the other party. If the claims fall due at different times, our claims fall due in this respect at the latest when our liability falls due and are to be settled with value date.
Offsetting with counterclaims by the buyer that are disputed by us is not permitted.

IV. Delivery times and dates

Delivery periods commence on the date of our order confirmation but not before complete clarification of all details of the order and the provision of any necessary certificates. Delivery periods and dates refer to the time of dispatch ex works or ex warehouse. They are deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own. We cannot accept any liability for deliveries delayed or not made due to the fault of our suppliers.
The delivery periods will be extended – without prejudice to our right arising from default on the part of the purchaser – by the period by which the purchaser is in arrears with his obligations towards us arising from these or other contracts. This applies accordingly to delivery dates.
If we are in default, the buyer may withdraw from the contract after expiry of a reasonable grace period granted to us insofar as the goods have not been dispatched or notified as ready for dispatch by the expiry of the grace period. Claims for damages due to delay in delivery are excluded. Sec. 276(2) of the German Civil Code (BGB) remains unaffected.
Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable initiation period. If the performance of the contract becomes unreasonable for one of the parties, it may withdraw from the contract to that extent. Force majeure is deemed to include all circumstances which make delivery significantly more difficult or impossible for us, such as, for example, currency and trade policy measures or other sovereign measures, strikes, lockouts, operational disruptions (e.g. fire, machine or roller breakage, shortage of raw materials or energy) as well as obstruction of transport routes, irrespective of whether these circumstances occur at our premises, at the supplier's works or at a sub-supplier's premises.

V. Retention of title

All goods supplied remain our property (goods subject to retention of title) until all claims have been fulfilled, and even if individual claims or all our claims have been included in a current account and the balance has been struck and recognised, including claims arising in the future or conditional claims, also from contracts concluded at the same time or later. This also applies if payments are made on specially designated claims.
Treatment and processing of the goods subject to retention of title is carried out for us as manufacturers within the meaning of Sec. 950 BGB (German Civil Code) without any obligation on us. The processed goods are deemed to be goods subject to retention of title within the meaning of Clause 1. If the unpaid goods are processed, combined or joined with other products by the buyer, we retain a proportionate right to the new property equivalent to the ratio of the value of our invoice to that of the invoices for the other components used. If our property rights should be nullified as a result of processing, joining or combining with other components, the ordering party hereby assigns any rights of property and anticipated rights in the new goods in proportion to the value of the goods supplied by us, which value is to be safeguarded by the ordering party on our behalf and without charge. The co-ownership rights arising hereunder are deemed to be goods subject to retention of title within the meaning of Clause 1.
The buyer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with clauses 4 to 6. The customer shall have no further right to dispose of the goods subject to retention of title.
The claims of the buyer from the resale of the goods subject to retention of title are hereby assigned to us. They serve as security to the same extent as the goods subject to retention of title. If the goods subject to retention of title are sold by the buyer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the goods subject to retention of title sold in each case.
In the event of the sale of goods in which we have co-ownership shares pursuant to Clause 2, the assignment of the claim applies in the amount of these co-ownership shares.
The buyer is entitled to collect claims from the resale until our revocation, which is permissible at any time. We will only exercise the right of revocation in the cases described in Clause III. 4.
The buyer is only entitled to assign receivables – including the sale of receivables to factoring banks – with our prior written consent. At our request, he is obliged to inform his customers immediately of the assignment to us – unless we do so ourselves – and to provide us with the information and documents required for collection.
If we assert retention of title, this is only deemed to be a withdrawal from the contract if we expressly declare this in writing. The buyer's right to obtain title to the goods subject to retention of title expires if he fails to fulfil his obligations under this or any other contract.
The buyer must notify us immediately of any seizure or other interference by third parties.
Where the value of the collateral in our favour exceeds the value of the claims secured by the buyer's collateral by more than 10%, the buyer is entitled to demand a release from a corresponding amount of collateral.

VI. Quality grades, dimensions and weights

Quality grades and dimensions are determined according to DIN standards or material sheets, unless foreign standards have been agreed in writing. If no DIN standards or material sheets exist, the corresponding European standards apply or, in the absence of such, commercial practice.
The pre-weighing carried out by us or our upstream supplier is decisive for the weights. Proof of weight is provided by presentation of the weighing slip. As far as legally permissible, weights can be determined without weighing according to DIN. The surcharges and discounts (trade weights) customary in the steel trade of the Federal Republic of Germany remain unaffected. Weight determinations can only be objected to on the basis of official reweighing immediately after delivery. Weight deviations of up to 2% cannot be objected to. Quantities, bundle numbers, etc. stated in the dispatch advice are non-binding for goods invoiced by weight.

VII. Acceptance inspections and test certificates

Material is only subjected to acceptance testing and/or inspection if the relevant material standards provide for acceptance or inspection or if this has been expressly agreed. Material for which acceptance tests are mandatory is tested by the manufacturer's works and supplied with a works acceptance certificate.
Acceptance and inspection take place at the purchaser's expense in the supplying factory or at the warehouse. If the buyer does not carry out the acceptance or the inspection immediately after notification of readiness for acceptance, we are entitled to dispatch the material without acceptance or inspection or to store it at the buyer's expense and risk and to invoice it as delivered.

VIII. Dispatch, transfer of risk, partial delivery, continuous delivery

We determine the route and means of dispatch as well as the forwarding agent and carrier, unless otherwise agreed in writing.
Goods reported ready for dispatch in accordance with the contract must be called off immediately, otherwise we are entitled to dispatch them at our discretion at the expense and risk of the buyer or to store them at our discretion and to invoice them immediately.
If, through no fault of our own, transport by the intended route or to the intended place in the intended time becomes impossible, we are entitled to deliver by another route or to another place, and the additional costs incurred are to be borne by the buyer. The will be given the opportunity to comment beforehand.
The material is delivered unpacked and not protected against rust. We will deliver packed, where this is standard commercial practice. We will provide packaging, protection and/or transport aids at the buyer's expense in accordance with our experience. Packaging, bulk and transport aids will not be taken back unless otherwise agreed in writing.
With the handing over of the material to a forwarding agent or carrier, at the latest, when the material leaves the warehouse or the supplying plant, the risk, including the risk of seizure of the material, passes to the buyer in all transactions.
We retain the right to make partial deliveries to a reasonable extent. Customary excess and short deliveries of the contracted quantity are permissible.
In the case of contracts for repeat deliveries, call-offs and grade bundling must be submitted for approximately the same monthly quantities. If the contractual quantity is exceeded by the individual call-offs, we are entitled but not obliged to deliver the surplus. We may charge for the surplus at the prices valid at the time of the call-off or delivery.

IX. Complaints about defects and warranty

We accept liability for defects, which also include the absence of warranted characteristics, as follows:

Defects – including the absence of warranted characteristics – must be notified in writing immediately after discovery and any processing must be stopped immediately. Complaints about obvious defects are excluded after 14 days from receipt of the goods at the place of destination. Complaints about defects will no longer be entertained three months after receipt of the goods.
In the event of a justified, immediate notice of a defect, we will take back the defective goods and deliver faultless goods in their place; alternatively, we are entitled to replace or repair the affected items while reasonably safeguarding the interests of the buyer.
If we do not fulfil the obligation to deliver a replacement or rectify defects or do not do so in accordance with the contract, the buyer is entitled to a reduction of the payment or, at his discretion, to termination of the contract.
If the buyer does not immediately give us the opportunity to assess the defect ourselves, in particular if he does not immediately provide the goods complained of or samples thereof upon request, all claims for defects lapse.
In the case of goods that have been sold as declassified material – e.g. IIa material – the buyer is not entitled to any claims on account of any defects.
Further claims are excluded; this applies in particular to claims for compensation for damage that did not occur to the goods themselves (consequential damage caused by a defect.)
Material designations and DIN provisions do not in principle imply any assurance of properties of the goods within the meaning of Sec. 459(2) BGB.
The above provisions also apply in the case of delivery of goods other than those in accordance with the contract.

X. General disclaimer

Claims not expressly listed in these terms and conditions, in particular claims for damages arising from impossibility, delay, breach of ancillary contractual obligations, culpa in contrahendo, tort – also insofar as such claims are in connection with the purchaser's warranty rights – are excluded unless we are in mandatory liability in cases of intent or gross negligence.
All claims against us, irrespective of the legal grounds, become statute-barred at the latest one year after the transfer of risk to the buyer, unless the statutory limitation period is shorter.

XI. Place of performance, court of jurisdiction and applicable law

The place of performance for our deliveries is the supplying plant in the case of delivery ex works, and our warehouse in the case of all other deliveries. The place of jurisdiction is GREVENBROICH, as far as legally permissible. We may also sue the buyer at his place of jurisdiction. All legal relations between us and the buyer are governed solely by the law applicable to legal relations between domestic parties at our registered office.

XII. Severability

In the event one of these provisions may be or become ineffective, we are entitled to replace the ineffective provision with an effective provision whose economic effect corresponds as far as possible to that of the ineffective provision.

Appendix
Special conditions for the resale of products relating to the European Coal and Steel Community (ECSC)

Our buyer and its downstream buyers may not:
a) take material that is not expressly sold for export outside the federal territory in an unprocessed state;
b) leave material sold for export in unprocessed condition in the Federal territory, return it there, bring it back or deliver or transport it to a country of destination other than the one named in the order. This material may also not be processed in the federal territory.
At our request, the buyer is obliged to provide proof of the whereabouts of
the material.
If the buyer or one of his downstream customers violates the above conditions, he is required to pay a contractual penalty in the amount of 30 per cent of the purchase price. Insofar as we are exposed to claims for loss of profit due to the buyer's conduct, the also undertakes to compensate us for the profit lost to our suppliers upon proof.
The buyer is obliged
a) to impose the conditions specified in 1. to 3. on its customers with the obligation to pass them on accordingly and to inform us immediately of any infringements of these conditions by its customers of which it becomes aware.
b) to assert the claims to which it is entitled on the basis of an unauthorised delivery by its customers or to assign these to us on request.
In the case of products subject to the European Coal and Steel Community Treaty, only delivery to a territory outside the common market and the territory of the Republic of Austria, the Kingdom of Sweden, the Republic of Finland, the Kingdom of Norway and on the territory of the Portuguese Republic are considered as export. The territory of the Common Market and the above-mentioned territories of the five States are deemed to have the same status as the federal territory in this respect.
In the case of goods covered by the Common European Coal and Steel Community Treaty, our buyer is obliged to adhere to the current version of the provisions of Art. 2-6 of Decision No. 30/53 and the provisions of Decisions No. 31/53 and 37/54 in his own price lists and conditions of sale for resale in unaltered condition, with the exception of sales from stock.

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General Terms & Conditions

General terms and conditions of sale