Terms and Conditions of Sale and Delivery of BIKAR-METALLE GmbH

General terms and conditions

BIKAR-METALLE GmbH
Industrial road 3 - 17
57319 Bad Berleburg-Raumland

Status: May 7, 2014

1.) General

All offers and contracts with companies are exclusively based on the following terms and conditions. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions printed below, even if we have not objected to them in individual cases, unless these have been expressly confirmed by us in writing. By placing the order and/or accepting the delivery, the purchaser accepts our terms and conditions.

2) Offers

Our offers are subject to change. All agreements require our written confirmation to be valid or become binding with the start of order execution.

All declarations aimed at the conclusion, amendment or termination of contracts must be made in writing. These are only binding for us if they are confirmed by us in writing.

If the customer orders the goods electronically, the text of the contract shall be stored by us and sent to the customer upon request together with these General Terms and Conditions.

3.) Information on drawings or in other form.

The quality of the goods shall be governed exclusively by the delivery specifications agreed between us and confirmed by us in writing. If we have to deliver according to drawings, specifications, samples, etc. of our customer, the customer shall assume the risk of suitability for the intended use. Decisive for the contractual condition of the goods is the time of the transfer of risk. In this respect, we shall only be liable for proper processing. Unless expressly agreed, no liability shall be assumed for the determination of the material quality and for corrosion damage.

Information in brochures, drawings, catalogs or other sales documents, including the weights and dimensions stated therein, are non-binding unless expressly marked as binding and serve only as approximate values customary in the industry.

The dimensions, weights and quantities stated by us are within the tolerances customary in the trade and do not constitute a guarantee of quality, even in our quotations and order confirmations.

Measured values from freely programmable additional equipment. The calibrated measured values can be viewed.

4) Copyrights

We reserve the property rights and copyrights to offers or cost estimates, brochures, calculations, drawings and other documents as well as molds, manufactured devices and tools, etc.; they may not be used, made accessible to third parties, reproduced or disclosed without our written consent. The purchaser is liable for all direct or indirect damages resulting from non-compliance with this stipulation.

5) Prices

Unless otherwise agreed, our prices are ex works plus the applicable value added tax, excluding packaging, freight costs, insurance and customs duties as well as other possible fees. These will be charged separately if necessary.
Insofar as our delivery is made in accordance with the contract or at the request of the purchaser later than two months after the order has been placed, we shall be entitled to make a new price calculation based on this in the event of a change in the prices of raw materials and/or wages occurring during this period.
 

Insofar as we receive goods for further processing, the price agreements made with the purchaser shall apply on condition that the purchaser makes his goods available to us in good time so that the agreed delivery date can be met. In the event of late provision of the goods, which leads to delays in delivery, we shall be entitled to adjust our prices to reflect changes in the price basis (e.g. raw materials, wages) during this period for prices valid on the date of delivery.

The prerequisite for the validity of the agreed prices is that the items on which the agreement is based remain unchanged and can be provided without impediments for which the customer is responsible (e.g. inaccurate or incorrect documents provided by the customer, incomplete or untimely self-delivery). Subsequent extensions and changes which result in additional expenditure shall be additionally remunerated by the Purchaser.
Contracts without a price agreement shall be invoiced at the respective valid daily price.

6.) Payments, Default of Payment

The agreed remuneration shall be payable in accordance with the terms of payment agreed with the Purchaser in each case or as stated in our order confirmation.

Bills of exchange shall only be accepted upon express written agreement. Discount and expenses shall be borne by the customer. In the event of payment by check or bill of exchange, payment shall be deemed to have been made only after encashment.
 

After expiry of the agreed payment period or the payment period stated in the order confirmation, we shall be entitled, without further reminder, to demand interest at the statutory default interest rate (§ 288 BGB). We expressly reserve the right to prove higher damages caused by default.

The customer shall not be entitled to set off any counterclaims other than those which are undisputed or have been finally determined by a court of law. The customer shall only be entitled to rights of retention insofar as they are based on the same contractual relationship.

No cash discount shall be granted.

In the event of a significant deterioration in the financial circumstances of the customer, we shall be entitled to provide our deliveries and services only against cash in advance or against cash on delivery or to make them dependent on the provision of security. In this case, existing claims for services already rendered shall be due immediately - despite deferral. This shall apply in particular if, in the event of default in payment, further payments are not made despite a reasonable period of grace. If the customer does not comply with our request to provide security within a reasonable period of time set for him, we shall be entitled to withdraw from the contract.

7.) Delivery

The delivery periods stated in the offers are only to be regarded as empirical values and are not binding for us. The prerequisite for the start of and compliance with the delivery times stated by us is the clarification of all technical questions as well as the timely receipt of all services to be provided by the customer (provisions, approvals, releases, plans, other documents, ...).
The place of performance for all services to be rendered to us by the customer for the execution of the work shall be our respective delivery plant.

In the event of subsequent changes to the order, the originally agreed delivery time shall be invalid and a new delivery date shall be agreed in writing, or shall be specified by us upon request.

In the event of force majeure or other unforeseeable, extraordinary circumstances for which we are not responsible, such as difficulties in procuring materials, strike, lockout, failure of means of transport, interventions by the authorities, power supply difficulties, etc., even if they occur with upstream suppliers, the delivery period shall be extended to a reasonable extent if we are thereby prevented from fulfilling our obligation in a timely manner.

If an agreed delivery date is exceeded for reasons for which we are responsible, the purchaser shall set us a reasonable deadline for subsequent delivery in writing. He shall only be entitled to withdraw from the contract after this grace period has expired without notice.

The delivery deadline is met when the goods are handed over to the carrier.

Customary excess and short deliveries of quantities are permissible.

Deviations in weights and quantities of up to 10% are permitted in the delivery of the goods for reasons of production technology, both with regard to the total final quantity, the individual partial delivery and the individual order items. If no special dimensional tolerances have been agreed in writing, the generally known DIN/EN standards shall apply. In the case of goods not listed in the DIN/EN standards or if no special tolerances have been agreed in writing, free size tolerances shall apply.

8.) Partial deliveries

We shall be entitled to make partial deliveries unless these are unreasonable for the Purchaser.

9.) Call orders

Insofar as call-off orders have been agreed with the customer, these shall be called off in approximately equal monthly quantities in a maximum of 12 months in the absence of any other express written agreement. If the agreed individual call-offs are significantly increased at the customer's request, we reserve the right to delay delivery to a reasonable extent. If the agreed individual call-offs are significantly reduced, we reserve the right to adjust freight and packaging costs. If the agreed individual call-offs are delayed by more than 2 months at the customer's request, we shall be entitled to charge storage costs at a reasonable rate. We also reserve the right to make use of the price adjustment clause in § 5.

10.) Dispatch, transfer of risk, insurance

All deliveries of our company are made "ex works" (EXW Incoterms 2000). Accordingly, the risk of destruction, loss or damage of the goods shall pass to the customer upon handover of the delivery to the forwarding agent or carrier in our warehouse.

In the absence of instructions to the contrary from the customer, we reserve the right to choose the shipping route and the shipping method. As a rule, the material is delivered unpacked and not protected against rust. We only deliver packed if this is customary in the trade. The costs for this shall be borne by the purchaser.

At the request of the purchaser, we will insure the shipment at his expense against theft, breakage, transport, fire and water damage as well as other insurable risks.

In the event of damage in transit, the Purchaser shall immediately arrange for a statement of facts to be submitted to the competent authorities.

11.) Acceptance

If the goods or other services are to be formally accepted, we shall determine the place and time of acceptance. The costs of acceptance shall be borne by our contractual partner. If our contractual partner does not appear for acceptance, we may set a deadline of 7 days for formal acceptance with the notice that our delivery shall be deemed accepted if our contractual partner does not appear for acceptance within the 7-day period. After the 7th day, our performance shall then be deemed to have been accepted. Special arrangements require our written confirmation.

We shall then be entitled, but not obliged, to dispatch the goods. The costs associated with the acceptance shall be borne by the customer.

12.) Claims for defects

The contractual conformity and freedom from defects of our deliveries shall be measured exclusively in accordance with the express agreements. We shall only assume liability for a specific purpose or a specific suitability if this is expressly stated in writing in the agreements and confirmed by us in writing. In all other cases, the risk of suitability and use shall be borne exclusively by the customer.

The contents of the contractual agreements with the purchaser do not constitute a guarantee. The assumption of a guarantee requires an agreement expressly confirmed by us in writing.

The Purchaser shall inspect our deliveries immediately upon receipt with regard to transport and packaging damage, as well as the quantity delivered and other obvious delivery defects, and shall document any defects discovered in the process on the delivery documents and notify us immediately in writing. Further, non-hidden defects must be reported immediately in writing. Hidden material defects must be notified in writing without delay and in accordance with the statutory provisions after their discovery. Insofar as an acceptance has been agreed, the notification of defects which could have been detected during this acceptance shall be excluded after performance.

Should the purchaser discover defects during the inspection, he shall immediately give us the opportunity to inspect the delivery complained about. Upon our request, the delivery subject to complaint shall be made available to us in whole or in part at our expense in accordance with our instructions. In the event of unjustified complaints, we reserve the right to charge the purchaser for any freight, packaging, inspection and other ancillary costs incurred. For goods which we have expressly sold as declassified material ("II-A material"), the Purchaser shall not be entitled to any claims for defects which we have indicated in the offer or the order confirmation or which he must normally expect.

In the event of a justified complaint, the customer shall grant us a reasonable period of time for subsequent performance, unless this is dispensable for legal reasons. We shall then provide subsequent performance at our own discretion by means of replacement delivery or rectification of defects or new production. In the case of defective parts on ready-to-install elements, subsequent improvement shall generally be effected by replacing the defective parts, but not the entire element or the entire delivery. The rectification or replacement shall be carried out within a reasonable period of time which, at the time of the complaint, requires the procurement, rectification and/or remanufacture of the defective parts under standard market conditions. If we fail to remedy the defect within a reasonable period of time or if the remedy fails, the customer shall be entitled to demand a reduction of the remuneration or, in the event of a more than insignificant breach of duty, to rescind the contract. If only parts of the delivery are defective, the purchaser's further rights shall only apply to the defective part of the delivery.

If our processing instructions are not followed, if the Supplies are incorrectly assembled or put into operation by the Purchaser or third parties, if modifications are made without our prior consent, if parts are replaced or materials are used which do not correspond to the originals, the Purchaser shall have no rights in respect of defects. If the purchaser himself or a third party carries out improper modifications or repair work on the delivery without our written approval, no claims for defects shall exist for these and the resulting consequences.

Claims under a right of recourse by the Purchaser against us pursuant to Section 478 of the German Civil Code (BGB) on account of the recourse of a businessman in the case of a sale of consumer goods shall only exist to the extent that the Purchaser has not concluded any agreements with its customer exceeding the statutory claims. Increased additional expenses due to transport, labor and material costs incurred for subsequent performance shall be excluded insofar as these are caused by the fact that the delivery was subsequently taken to a place other than the place of performance, unless the transfer corresponds to the intended use. This shall also apply in the event of claims under a right of recourse. Any further claims of the Purchaser based on defects shall be excluded and shall only be compensable within the scope of liability pursuant to Clause 13.

The limitation period for material defect claims shall be 12 months, unless longer periods are prescribed by law in accordance with §§ 438 para. 1 no. 2 BGB (delivery of items for construction work), 479 para. 1 BGB (right of recourse in the case of purchase of consumer goods) and 634 a para. 1 no. 2 BGB (construction defects). Also in cases of injury to life, body or health, intentional or grossly negligent breach of duty and fraudulent concealment of defects, the statutory limitation period shall apply.

13.) General liability provisions

Insofar as claims are asserted against us for damages or reimbursement of expenses, irrespective of the legal reason, in particular due to violations of obligations arising from the contractual relationship concluded with the customer or from tort, we shall only be liable as follows:

The liability of our company, our legal representatives or our vicarious agents is limited to intent and gross negligence or if the breached obligation is essential for achieving the purpose of the contract (cardinal obligation).
Liability for slight negligence is excluded, unless it is a breach of essential contractual obligations. In this case, however, our liability for damages shall be limited to the foreseeable damage typical for the contract.
This exclusion or limitation of liability shall not apply insofar as we are compulsorily liable in the case of injury to life, limb or health or for damage to privately used items in accordance with the Product Liability Act or for other reasons. This agreement does not imply a change in the burden of proof to the disadvantage of the customer.

In the event of liability under the above provisions, the amount of such liability shall be limited to such damages as were foreseeable at the time of the conclusion of the contract as a possible consequence of such breach of contract or which were known to us or should have been known to us, taking into account all circumstances, or which were foreseeable in the exercise of due care.
In the event of liability for indirect damage and consequential damage as a result of a defective delivery of goods, our obligation to pay compensation shall only apply to such damage that is typically to be expected when using the delivery item as intended.

The aforementioned provisions shall also apply to the same extent to our legal representatives, employees and vicarious agents.

Claims under the Product Liability Act and under a guarantee shall remain unaffected.

The claims shall become statute-barred within one year from handover of the delivery to the purchaser. The statutory provisions shall apply to claims for damages under the Product Liability Act.

14.) Right of the Supplier to withdraw from the contract

In the event of unforeseen events, insofar as they significantly change the economic significance or the content of the performance or have a significant effect on our operations, and in the event that it subsequently becomes apparent that performance is impossible, the contract shall be adjusted accordingly. If this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part.

The purchaser shall not be entitled to claim damages on account of such a withdrawal. If we wish to exercise our right to withdraw from the contract, we shall notify the Purchaser thereof without undue delay after having become aware of the consequences of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.

15.) Provisions

We shall only store templates, raw materials and other items for reuse, such as semi-finished and finished products of the Purchaser, by prior agreement and against special remuneration. Our liability for these shall be governed by Clause 13.

We shall only be obliged to subject the materials, parts, semi-finished products, tooling or other parts made available to us by the customer to a prior inspection if this has been expressly agreed with the customer and the bearing of costs has been regulated. The customer cannot derive any claims against us for material defects or for the unusability of materials provided due to other circumstances for which we are not responsible. He shall replace the corresponding parts free of charge and carriage paid and take back the defective parts free of charge and carriage paid.

16.) Retention of title

We retain title to the goods until all claims arising from an ongoing business relationship have been settled in full, irrespective of the legal grounds on which they arose. In the case of a current account, the retention of title shall serve as security for our respective balance claim. This shall also apply if payments are made by the customer on specific claims. In case of breach of contract by the customer, in particular default of payment, we shall be entitled to take back the goods subject to retention of title and to enter the customer's premises for this purpose.

The purchaser hereby expressly agrees to this. We are also entitled to put ourselves in possession of the purchased item. The purchaser expressly agrees to this, so that this does not constitute any prohibited interference.

The purchaser is obliged to treat the goods with care. If maintenance and inspection work is required, the Purchaser shall carry this out regularly at its own expense.

Processing or transformation of the goods subject to retention of title shall always be carried out on our behalf as manufacturer, without this giving rise to any liability on our part. In the event of processing or transformation of the reserved goods with other goods not supplied by us, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the value of the other processed or transformed goods at the time of processing or transformation.

In the event that our ownership of the goods subject to retention of title expires due to combination or mixing, the Purchaser hereby assigns to us already now its (co-)ownership rights in the new item or the mixed stock to the extent of the invoice value of the goods subject to retention of title and shall hold them in custody for us free of charge. The new item (hereinafter referred to as "new item") created by processing, transformation, combination or mixing or the (co-)ownership rights to the new item to which we are entitled or which are to be transferred pursuant to No. 2 of this Clause shall serve as security for our claim in the same way as the reserved goods themselves pursuant to Clause 1. Unless otherwise provided in the following provision of these Clauses, it shall apply mutatis mutandis to the new item.

The purchaser may only sell the goods subject to retention of title in the ordinary course of business under normal business conditions and only as long as he punctually meets his payment obligations towards us. For his part, the customer shall be obliged to resell the reserved goods only subject to reservation of title and to ensure that the claim from such sales transactions can be transferred to us.

The purchaser's claim from a resale of the goods subject to retention of title is already now assigned to us. We accept the assignment. The claim shall serve as our security to the same extent as the reserved goods. If the customer sells the goods subject to retention of title together with other goods not supplied by us, the assignment of the claim shall only apply to the invoice amount resulting from the resale of our goods subject to retention of title. In the event of the sale of the goods in accordance with item 2 or the statutory provisions on the combination and mixing of the item which is co-owned by us, the assignment of the claim shall apply in the amount of our co-ownership share.

If the customer includes claims from the resale of goods subject to retention of title in all current account relationships existing with his customer, he hereby assigns to us any recognized or closing balance in his favor in the amount corresponding to the total amount of the claim from the resale of our goods subject to retention of title included in the current account relationship.
The preceding paragraph shall apply accordingly in this respect.

The purchaser is authorized to collect the claim assigned to us from the resale of the reserved goods. The customer is not permitted to assign the claim from the resale, even within the framework of a genuine factoring agreement.
We may revoke the collection authorization at any time in the event of default in payment, cessation of payments, transfer of the Purchaser's business operations to third parties, impaired creditworthiness and trustworthiness or dissolution of the Purchaser's company, as well as in the event of a breach by the Purchaser of its contractual obligations pursuant to Clause 3 of this Section. In this case, the purchaser is obliged to inform his customers immediately of the assignment of the claim to us and to provide us with all information and documents necessary for collection. Furthermore, in this case he shall be obliged to surrender or transfer to us any securities to which he is entitled for customer claims.
If the realizable value of the securities existing for us exceeds our secured claims by more than 15 %, we shall be prepared, at the request of the customer, to release securities to this extent at our discretion.

The purchaser is obliged to inform us immediately of any seizure or other or actual impairment or endangerment of the reserved goods or other securities existing for us.
The customer undertakes to insure the reserved goods sufficiently, in particular against fire, water, storm, lightning and theft. He already now assigns his claims from the insurance contracts to us.
We shall be entitled to withdraw from the contract and demand the return of the goods in the event of a breach of contract on the part of the customer, in particular in the event of a default in payment or a breach of an obligation under this section. In this case, the purchaser already now declares his consent to our taking away or having taken away the goods subject to retention of title located at the purchaser's premises or - insofar as we are the sole owner - the new item within the meaning of item 2. of this section. In order to carry out these measures, as well as for a general inspection of the goods subject to retention of title or the new item, the customer shall grant us or persons commissioned by us access at any time.

17.) Industrial property rights of third parties

In the event that we deliver according to specifications (drawings, samples, models, ...) or using workpieces provided by the customer, the customer shall be responsible for ensuring that the property rights of third parties are not infringed thereby.

Insofar as such an infringement of property rights is asserted, the customer shall indemnify us upon first request against all claims of third parties and compensate us for any damage resulting therefrom. Our company shall not be obliged to deliver if a third party prohibits the manufacture of the delivery by invoking an industrial property right allegedly belonging to it. The defense against such claims is the sole responsibility of the customer; we are not obligated to do so.

We shall not be liable for damage to or loss of workpieces, drawings, samples, tools or the like provided to us by the customer. Insofar as the purchaser wishes to take out insurance for the items provided by him, we shall only do so upon express written request and at the purchaser's expense.
Insofar as means of production are manufactured by us for the performance of the work, these shall remain our property - irrespective of payment or partial payment by the Purchaser - unless a deviating written agreement exists with the Purchaser.

18.) Proof of export

If the Purchaser, who is domiciled outside the Federal Republic of Germany, collects our services himself or has them collected by a third party and transports or dispatches them to the foreign territory, the Purchaser shall immediately provide us with the export certificate required for tax purposes. As long as this proof has not been provided by the Purchaser, the Purchaser shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany on the full invoice amount.

19.) Export control

The fulfillment of the contract by us is subject to the proviso that no restrictions or prohibitions based on national, supranational or international regulations of foreign trade law as well as no embargos or other sanctions oppose the fulfillment.

The customer is aware that any illegal export and any illegal use of goods delivered by us means a serious impairment of the business interests of Bikar-Metalle GmbH, even if the violation of the law in connection with export or use is not carried out by the customer himself, but by third parties. If, after the conclusion of the contract, we become aware of circumstances which indicate that the fulfillment of the contract would be prohibited according to the national, supranational or international regulations applicable to us, we shall be entitled to withdraw from the contract at any time. In this case, the customer shall not be entitled to any claims for damages.

The export of goods of the company Bikar-Metalle GmbH may (for example due to their nature or intended use) be subject to a licensing requirement by the export control authorities responsible for this. If the delivery to the customer requires the issuance of a license by the competent export control authorities (export license or shipment license), any delays in delivery due to the duration of the processing of such a licensing procedure shall not be at our expense and shall not entitle the customer to withdraw from the contract or to claim damages. The same shall apply in the event that such approval is refused.

The customer undertakes to strictly observe all relevant export regulations and provisions of the EU and all EU member states prior to any onward delivery of goods sold or delivered by us to the customer. Insofar as this requires the customer to obtain an export license, the customer shall obtain such license in its own name and at its own expense.

In particular, the customer shall ensure that goods delivered by us are not intended for armaments-related, nuclear or weapons-related uses (including carrier technology), unless an effective export license has been granted by the competent export control authorities for a delivery for one of these uses.

The Customer further undertakes to notify in writing all recipients of goods delivered by us to the Customer of the observance of relevant export regulations of the EU and the EU Member States.

20.) Place of performance, place of jurisdiction, applicable law
Place of performance for both contracting parties is Bad Berleburg.

The place of jurisdiction for all disputes arising from contracts with the customer shall be Bad Berleburg if the customer is a merchant, a legal entity under public law or a special fund under public law.

However, we shall also be entitled to sue the customer at the court of his place of residence.

The law of the Federal Republic of Germany shall apply.

The validity of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.

The contract language is German.

21.) Severability clause

If any part of the contract is invalid for any reason, the validity of the remaining part of the contract shall not be affected. In this case, the parties undertake to reach an agreement that comes as close as possible to the invalid provision.

22.) Data protection provisions

We are entitled to archive correspondence electronically. The data will be treated confidentially in accordance with the valid data protection laws. We would like to point out that we process personal data that we receive regarding the business relationship or in connection with it, whether from you yourself or from third parties, in accordance with the Data Protection Act. These are treated by us as strictly confidential and are used exclusively for the purpose of processing your inquiries, orders and deliveries.

They will be used exclusively by employees and authorized trade partners of the company Bikar-Metalle GmbH or its subsidiaries.

The company Bikar-Metalle GmbH is entitled to have your data checked by a protection association for trade creditors, such as Creditreform.

The data will be processed and stored in accordance with the German data protection regulations.

Upon request, you will be provided with complete and free information about the stored data at any time, insofar as it relates to you. Personal data will not be passed on to third parties. This agreement shall be deemed to be consent within the meaning of the Data Protection Act.

23.) Validity and commencement

These terms and conditions of sale and delivery come into force with immediate effect and replace all previous terms and conditions of sale and delivery or general terms and conditions.

Bad Berleburg, May 7, 2014