General conditions of sale

General conditions of sale
Autogena Stahl GmbH, Rudolf-Diesel-Weg 11, D-30419 Hannover, Germany
02/2006

I. Application, Offers

  1. These General Conditions of Sale (Conditions) shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts, with regard to deliveries and other services, including contracts relating to the supply and manufacture of non fungible goods. The Buyer’s purchase conditions shall not be binding even if we do not expressly object to them again after their receipt.
  2. Our offers are not binding to us. Oral agreements, promises, assurances and guaranties made or given by our sales staff shall not be binding unless confirmed by us in writing.
  3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.

II. Prices

  1. Unless otherwise agreed, all our prices are quoted as delivered from our warehouse plus VAT in force at the time of our complete delivery.
  2. Should taxes or other extraneous expenses included in the agreed upon price change or be added later than four weeks after the conclusion of the contract, we shall be authorised to modify the price relative to the respective change.

III. Payment and Set-Off

  1. Unless otherwise agreed or stated in our invoices, payment shall be made without cash discounts immediately so that we can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer.
  2. The Buyer may retain or set off any counterclaims only in so far as his claims are undisputed or have become legally binding.
  3. Should the Buyer default in payment, he will be liable to pay interest at 8 %points above the Basic Interest Rate, unless higher rates have been agreed upon. We reserve the right to claim additional damages resulting from late payment.
  4. Should it become evident after the conclusion of the contract, that payment is jeopardised by the Buyer’s lack in financial means, or should the Buyer be in default with a considerable portion of the amount due or should other circumstances arise which show a material deterioration in the Buyer’s financial position after the conclusion of the contract, we shall be authorised to make use of rights under § 321 BGB (German Civil Code) and to make due any and all of our accounts receivable due and resulting from the same legal relationship.
  5. Any agreed upon cash discounts always relate to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely settled all payables due at the time of the discount. Unless otherwise agreed to, discount periods shall begin with the date of the invoice.

IV. Performance of Deliveries, Delivery Times

  1. Our commitment to deliver is subject to our correct and timely self-delivery unless we are responsible for the deficient or late self-delivery.
  2. Any confirmation as to delivery times shall only be approximate. Delivery times shall commence with the date of our order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifications, to provide letters of credit and payment guarantees or to pay agreed instalments.
  3. Any agreed delivery time shall be considered to be met if and in so far the goods have left the mill or our warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.

V. 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 payments 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 § 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 V/1 of these Conditions. If the Buyer manufactures, 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. Our co-ownership rights shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions.
  3. The Buyer may resell the Reserved Property only within the normal course of his business in accordance with his normal 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 clause V/4 through V/6 of these Conditions. 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 claims shall serve as our security to the same extent as the Reserved Property itself. If the Reserved 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 clause V/2 of these Conditions, the assignment shall be limited to the part which corresponds to our co-ownership rights.
  5. The Buyer shall have the right to collect any receivables resulting 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. Should the Buyer default in payment or should he fail to honour a draft we shall be entitled to take back the Reserved Property and to enter, for this purpose, the Buyer’s premises. 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 jeopardised by the Buyer’s lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as withdrawal from the contract. The statutory regulations of the Insolvenzordnung ( = German Insolvency Act) shall remain unaffected.
  7. 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.

VI. Grades, Sizes and Weights

  1. Grades and sizes shall be determined in accordance with the agreed upon norms or, in absence of such agreement, with the norms in force at the time of the conclusion of the contract, in absence of such norms with the trade usage.
  2. The weight of the goods shall be determined on our or our suppliers‘ scales. Where admissible, the weight may be determined without weighing in accordance with the norm. We may determine the weight on a calculated (“theoretical”) basis as provided by the norms and to add 2 ½ % as trade weight (“Handelsgewicht”).

VII. Material Testing / Inspections

  1. We shall provide for the testing of the goods and for the test certificates if and in so far agreed within the contract. Any personal and other testing costs will be invoiced to the Buyer as incurred.
  2. We will not be responsible for the correctness nor for the completeness nor for the timely delivery of any test certificates. In particular, we will not be liable for any confirmation given in such certificates.
  3. Where a formal inspection of the goods has been agreed, it can only be performed either at our warehouse or at the manufacturer’s place. Should, through no fault of ours, an agreed upon inspection of the goods fail or be delayed or be incomplete, we shall be authorised to dispatch the goods without prior inspection or to store them at the Buyer’s expense and risk and to invoice the goods to him.

VIII. Passing of Risk, Partial and Continuous Delivery

  1. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the Buyer at the time where we hand them over to the forwarding agent or to the carrier, at the latest with their departure from our warehouse.
  2. We shall be entitled to make partial deliveries with reasonable quantities. Where and in so far allowed by trade usage, we may exceed or reduce the agreed quantities. Where “ca.”-quantities have been agreed to, we may exceed or reduce such quantities up to 10 %.
  3. Where the contract provides for continuous deliveries, the Buyer 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 fair and just discretion. Should the single calls for delivery exceed the total contractual quantity, we shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.

IX. Warranty Provisions

  1. Our liability for any defects of the goods will exclusively be determined by the written agreements. We shall not be responsible for an only insignificant decrease in value or suitability of the goods.
  2. If and in so far the Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion, remedy the defect or deliver non-defective goods (“substitution”).
  3. Should we fail or decline substitution, 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 the goods have already been resold, processed or transformed, the Buyer may only reduce the purchase price.
  4. We will reimburse the Buyer for his expenditures in connection with any substitution only in so far as such expenditures are reasonable and proportional to the purchase price of the goods. We will not bear any costs for testing, sorting out, removal, re-installation of the goods nor any costs for the Buyer’s own repair nor for any other labour or material unless conceded in section X of these Conditions.
  5. If the Buyer fails to immediately give to us the opportunity to inspect the defect, especially if he fails – upon our request – to immediately make the goods or samples hereof available to us, he will loose all of his warranty rights.
  6. No warranty shall be granted for such goods which have been 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 warranty.

X. Restriction of Liability and Limitation Periods

  1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliveries, for breach of duties prior to the contract (“sulpa in contrahendo”) 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 shall in no case exceed the foreseeable losses and damages characteristic for the type of contract in question.
  2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and where such a breach of contract will jeopardize the contractual purpose; 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 guaranteed certain characteristics of the goods. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
  3. Any of the Buyer’s claims with regard to defects of the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. This restriction shall not apply to our liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence and shall not affect such statutory rules which provide longer limitation periods.

XI. Place of Performance / Jurisdiction / Applicable Law

  1. The place of performance for our deliveries shall be the supplying work in cases of ex-work deliveries, in all other cases it shall be our warehouse.
  2. The place of jurisdiction shall be Duisburg or – at our discretion – the Buyer’s seat.
  3. All legal relationships between us and the Buyer shall be governed by the laws which applies to domestic parties at our seat excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).
  4. The place of jurisdiction shall be Hannover or – at our discretion – the Buyer’s seat.
  5. All legal relationships between us and the Buyer shall be governed by the laws which applies to domestic parties at our seat excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).