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General Terms and Conditions of Purchase

2013-11-01
1. General
1.1 These terms, as amended, are the basis for all present and future business transactions for supplies and services with companies, public law legal entities and public law special funds. Any different terms from suppliers that we do not acknowledge in writing are not binding on us, even if we do not contradict them explicitly or accept performance of the contract without raising a specific objection.
1.2 Verbal agreements, assurances and guarantees given by our employees only come into force following our written confirmation. The aforementioned provisions do not cover individual agreements within the meaning of § 305 b German Civil Code (BGB).
2. Orders
  We will only be bound by our orders if we receive a written statement of acceptance within 14 days of the date of the order.
3. Prices, terms
  The prices stated in our orders are fixed prices. They apply free of freight and packing charges and fees to the address stated. We reserve the right to return packing materials and are entitled to reduce the invoice amount by the costs thus incurred.
4. Delivery
4.1 The supplier is obliged to deliver the goods without any material defects or defects of title. The supplier guarantees in particular that all the obligations imposed by Regulation EC No. 1907/2006 (REACH) have been met.
4.2 All deliveries are at the risk of the supplier.
4.3 All delivery/performance deadlines and periods agreed upon are binding. The relevant date is the date when goods/services reach the place named by us.
4.4 The supplier shall inform us in writing immediately of any imminent or existing delay in delivery, the reasons for such delay and the anticipated duration of such delay. Such notice does not affect the fact that delivery has been delayed.
4.5 In the event that the supplier culpably fails to deliver by a defined delivery date, it is agreed that the supplier shall pay us a contractual penalty of 0.2% of the order volume for each working day commenced after the delivery date, but not more than 5% of the order volume.
4.6 Partial deliveries or services must be approved by us in advance.
5. Payments
5.1 Payments will be effected after complete delivery/performance or if agreed or provided by law after acceptance of delivery/performance and receipt of invoice within 14 days less 3% cash discount or within 30 days net.
5.2 No interest may be charged on amounts due.
5.3 Interest on arrears is chargeable at 5% above the base rate. We are in all cases entitled to prove that the supplier's losses resulting from arrears were less than the amount claimed.
5.4 Our rights to offset and withhold are as specified by law.
6. Complaints, warranty, claims for compensation
6.1 Unless the defects are obvious, inspections of and complaints about items supplied do not have to be made until after the items are removed from our store. They must be made at the latest before the warranty period expires, however.
6.2 In the case of material defects we may at our discretion enforce our statutory rights. A remedy by a supplier will be regarded as having failed as soon as the first attempt has proved unsuccessful. We are entitled to revoke the contract even if the supplier's breach of obligation was insignificant.
6.3 Expenses necessary for the purpose of remedy are borne by the supplier.
6.4 Claims based on material defects will expire by limitation as per statutory provisions two years after the removal of the goods in accordance with 6.1 or the acceptance of performance where acceptance is specified by law or has been agreed, and after five years in the case of good/services used for construction purposes, subject to a maximum of 10 years after delivery of goods or acceptance of services.
6.5 Claims for damages are otherwise subject to statutory rules.
6.6 The supplier shall, upon first demand, indemnify us against any and all liability or claims of third parties arising from the manufacture, delivery, storage, or use of delivered goods. The above indemnification shall not apply if the claim is based on an intentional or grossly negligent breach of duties on our part.
6.7 The supplier shall, at all times during the term of this agreement, maintain product liability insurance with an adequate minimum coverage amount of EUR 10,000,000 for each single occurrence of personal and property damage. Evidence of insurance coverage must be provided to us on demand.
7. Retention of title
7.1 We will accept retention of title by the supplier in the usual form, subject to a requirement that title to the goods shall pass to us once they have been paid for.
7.2 We are under no obligation to defend supplier rights based on retention of title of whatever kind against third parties.
7.3 Where payment is made by cheque/bill of exchange it is hereby agreed that the supplier's retention of title remains in force until we redeem the bill.
8. Prohibition of assignment
The supplier may not assign claims arising out of transactions with us to third parties, unless these assignments are made in connection with extended retentions of title and we should have anticipated such an agreement being made.
9. Prohibition of advertising
This order may not be made known to third parties or used for advertising purposes.
10. Applicable law, place of jurisdiction
10.1 All transactions are subject to German law, including foreign transactions. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
10.2 If the conditions required by § 38 of the German Code of Civil Procedure for an agreement on the place of jurisdiction are satisfied, the place of jurisdiction for all claims by the contracting parties is Lübeck.
10.3 We may, however, ask that disputes be settled by amicable arbitration.

General Terms and Conditions of Sale

2013-11-01
1. General
1.1 These terms, as amended, are the basis for all present and future business transactions for supplies and services with companies, public law legal entities and public law special funds. Any different terms and conditions from customers that we do not acknowledge in writing are not binding on us, even if we do not contradict them explicitly or accept performance of the contract without raising a specific objection.
1.2 Verbal statements given by our employees only come into force following our written confirmation. The aforementioned provisions do not cover individual agreements within the meaning of § 305 b German Civil Code (BGB).
2. Offers, acceptance of orders, prices
2.1 Our offers are always subject to change without notice. Goods are subject to prior sale.
2.2.1 Third parties may not be given access to offers, cost estimates, drawings, brochures or any other documentation. We retain copyright and title to these until an order is placed.
2.2.2 Otherwise, all information regarding the business relation is to be treated confidentially, especially with regard to our know-how.
2.3.1 Qualities, dimensions and weights are in accordance with the DIN/EN standards in force when the contract is concluded. If none are in force, they will be in accordance with commercial practice, in particular the most recent version of the ICC-Incoterms®. They do not represent assurances or guarantees; neither do inspection certificates, claims by manufacturers or marks such as CE and GS.
2.3.2 The dimensions and weights that we determine are definitive and are subject to the usual deviations. "Approx." [German "Ca."] in front of indications of volume entitles us to supply 5% more or less.
2.4.1 Amounts supplied will be as specified in our offer/statement of acceptance. Objections to these statements must be communicated to us in writing without delay, no later than one week after receipt, in any case prior to execution of the corresponding order.
2.4.2 Customers are responsible for ensuring that the use of our products is legally and technically permitted, even if we have recommended them accordingly. In case of doubt our technical explanatory leaflets are decisive.
2.5 Prices are net cash ex works / ex store plus freight and the costs of collecting and disposing of packaging, plus value added tax. Unexpected additional expenditure occasioned by the execution of the delivery and for which no surcharges have been agreed shall be borne by the customer, unless we are responsible for them.
3. Performance
3.1.1 We will deliver at the customer's risk ex works / ex store, depending on the transport route, transport method and carrier chosen by us. The customer must unload goods properly and without delay. Waiting time will be charged to the customer.
3.1.2 Should it, through no fault of ours, become impossible or substantially more difficult to transport goods by the intended route or to the intended destination within the intended time, we are entitled to deliver by a different route or to a different destination at the customer's expense, if this is reasonable for the customer.
3.2 Insurance against damage or loss in transit will only be taken out at customers' express request and at their expense. Damage/loss reports must be submitted immediately on the receipt of goods and the nature and scope of damage/loss notified immediately in writing.
3.3 Goods announced as ready for dispatch must be called off immediately. If this is not done we shall be entitled at our discretion either to dispatch them at the expense and risk of the customer or to store them as we see fit and charge for them immediately.
3.4.1 Partial deliveries have to be accepted unless the customer proves that it is unreasonable to expect him to do so. We are entitled to supply more or less to the extent usual in the trade.
3.4.2 When regular deliveries are agreed, the monthly volumes called off from us should be approximately equal.
3.4.3 If the contract volume is exceeded by individual customer call-offs, we are entitled, but not obliged to supply the surplus. We may invoice for the surplus at the prices in force at the time of the call-off or the delivery.
3.5 The performance of the contract and adherence to delivery and performance deadlines are conditional on the punctual and correct delivery of supplies to us by our suppliers, except where failure to deliver or delay in delivery is our fault, the correct and punctual meeting by customers of their obligations to co-operate, in particular by supplying all the information, documentation and approvals necessary for performance, the correct and punctual completion of the work required from the customer or third parties necessary for our performance, in particular including the provision of suitable unloading equipment.
3.6 In all cases of force majeure, including industrial action, we are no longer under an obligation to perform. Otherwise, the provisions of the ICC Force Majeure-Clause 2003 and ICC Hardship-Clause 2003 apply, both published in ICC publication No. 650.
3.7 Delivery dates or times only are binding for us after confirmation in writing. Periods allowed for the delivery of supplies/services are extended by the period for which customers fail to meet their obligations to us and by the duration of such interruptions described in 3.6. The same applies to deadlines for delivery or services.
4. Payment
4.1 Payments are due immediately in euros (EUR) without deduction unless another currency and/or different terms of payment have been agreed. Agreed discount will be allowed when all previous invoices have been settled, except those subject to legitimate objections by the customer. Discount will be calculated on the basis of the net invoice total after the deduction of other allowances, freight etc. All payments become effective when they are credited to our bank account.
4.2 The customer is not entitled to claim any rights of retention or to offset any claims under other transactions, including under the ongoing business relationship. No offsetting by the customer is permitted unless the counterclaim is undisputed.
4.3 The customer is in arrears at the latest 14 days after delivery or if a subsequent payment deadline is missed. In such cases we will charge interest at 8% above the base rate. We reserve the right to enforce a claim for any greater loss.
4.4 If it becomes apparent after the conclusion of the contract that our claim to payment is in jeopardy due to the customer's inability to pay, we will be entitled to enforce the rights conferred by § 321 German Civil Code with respect to all other outstanding payments arising out of the business relationship with the customer. If the customer does not perform or does not give security within a reasonable time, we will then also be entitled to require the immediate payment of all unexpired claims arising out of the current business relationship.
4.5 In the cases specified in 4.3 and 4.4 we may take back goods subject to retention of title (5.3.1 and 5.3.2), revoke the direct debit authorisation (5.5.1) and require advance payment for any outstanding deliveries.
4.6 The customer may avert the consequences specified in 4.5 by providing security equivalent to our claim to payment in jeopardy.
4.7 Otherwise this does not affect statutory provisions relating to arrears in payment.
5. Retention of title
5.1.1 All goods supplied will remain our property ("retained goods") until the satisfaction of all of our claims arising out of the business relationship, including in particular claims on balance of current account. This also applies to future and conditional claims, e.g. based on acceptor's bills, or in the case of cheques/bills until the redemption of the bill by the customer, and also where payments are made on specifically designated claims.
5.1.2 The value of retained goods is the net invoice amount for the goods supplied by us plus a security premium of 50% (22% value deduction, 4% pursuant to § 171 I German Insolvency Regulation, 5% pursuant to § 171 II German Insolvency Regulation and 19% value added tax) which will not be applied to the extent of any opposing third-party rights.
5.1.3 This retained balance will lapse definitively when all claims still outstanding and covered by this retained balance at the time of payment are settled.
5.2 Any processing of retained goods takes place on our behalf as manufacturer as specified in § 950 German Civil Code, without placing us under any obligation. Such processed goods will be regarded as retained goods within the meaning of 5.1.1. If retained goods are processed, combined or mixed by the customer with other goods we will acquire joint ownership of the new item proportional to the ratio of the invoice value of the retained goods to the invoice value of the other goods used. If our title is extinguished by combination or mixing, customers assign to us with immediate effect their title in the new item up to the value of the retained goods and undertake to store them for us free of charge. Our joint ownership rights will be regarded as retained goods within the meaning of 5.1.1.
5.3.1 Customers may only dispose of retained goods in the normal course of business subject to their usual standard terms and conditions and as long as none of the cases specified in 4.3 and 4.4 apply. Such disposal is also conditional on the receivable passing to us in accordance with 5.4.1 to 5.6. Otherwise the customer is not entitled to dispose of retained goods.
5.3.2 Retained goods must be stored separately from other goods and/or marked as our property. We are entitled to take possession of the goods at the customer's expense and to enter the land or the premises of the customer for this purpose. The customer is obliged to treat the goods supplied with care and in particular to insure them at its own expense against loss, damage and destruction for their new value and to provide us with evidence in the form of the insurance policy and/or current premium receipts. The customer hereby assigns to us its claims under the relevant insurance policies. We accept the assignment of the claims. This does not affect the application of the German Insolvency Regulation.
5.4.1 The customer's claims from the further disposal of retained goods, including by installation as an integral element of a piece of land, are hereby assigned to us with immediate effect together with all securities. They will serve as security to the same extent as the retained goods. If retained goods are sold by the customer together with other goods not sold by us, the receivable from the further disposal is hereby assigned to us up to the value of the retained goods.
5.4.2 On the disposal of goods of which we share the ownership as specified in 5.2, a portion corresponding to our share of ownership will be assigned to us.
5.5.1 The customer is entitled to collect receivables from any further disposal unless we revoke the direct debit authority in the cases specified in 4.5, in case of failure to redeem a bill or application for the initiation of insolvency proceedings. We will only make use of our right of revocation if it becomes apparent after this contract is signed that our claim to payment under the terms of this or other contracts with the customer is in jeopardy as a result of the latter's inability to pay.
5.5.2 At our request, customers are obliged to inform their customers immediately of the assignment to us -- if we do not do this ourselves -- and to provide us with the information and documents necessary for collection. In no case will the customer be entitled to any further assignment of claims. This also applies to factoring transactions, except for genuine factoring assignments that are notified to us and in which the proceeds of factoring exceed the value of our secured receivable. Our receivable becomes due for payment as soon as the proceeds of factoring have been received. If customers have agreed not to assign receivables, they hereby authorise us to collect these receivables.
5.6 Customers must inform us without delay of any seizure or other action by third parties affecting retained goods. Customers bear all costs necessary to regain possession of retained goods, to the extent that the intervention was successful and the execution against the debtor was without success.
5.7 If the value of existing securities, including reserved goods within the meaning of 5.1.1, exceeds the total value of the claims secured by more than 50%, we must if required by the customer release securities at our discretion up to the relevant amount.
6. Liability for material defects
6.1.1 Obvious material defects must be notified in writing without delay, no later than within seven days of delivery. Businesspeople, public law legal entities and public law special funds must also give written notice without delay of material defects which are not obvious but are capable of discovery in the course of a reasonable inspection, no later than the expiry of the agreed or legally prescribed period of limitation; otherwise § 377 German Commercial Code is not affected.
6.1.2 If customers do not accept goods in accordance with statute or agreement for reasons for which we are not responsible, claims based on material defects will no longer be enforceable.
6.1.3 If material defects only become apparent when processing begins, complaints will only be considered if the processing of the defective items is stopped immediately.
6.1.4 Any claims based on material defects will lapse if customers fail to give us an immediate opportunity to inspect the defect, in particular if they do not make the goods concerned or samples thereof available on request.
6.2 If a justified complaint is made in time we may initially choose either to rectify the defect or to supply an item free of defects (remedy).
6.3.1 If the remedy fails or is refused, customers may reduce the purchase price or cancel the contract, as long as the defect in question is not insignificant and the goods have not already been sold, processed or transformed.
6.3.2 The customer is entitled to claim compensation for damages as provided by 7.
6.4.1 We will only bear costs associated with remedy where they are reasonable in the individual case, in particular in proportion to the remuneration for the goods/services in question.
6.4.2 We will not reimburse the cost of transporting the goods to a location other than the place of performance unless this corresponds to their contractual use.
6.5.1 The customer's claims for material defects expire one year after delivery to the customer, even if goods are used for construction work, unless this type of use was agreed in writing.
6.5.2 When a remedy is provided, the period of limitation does not begin again.
6.6 The above provisions do not affect claims by the customer based on deliberate or grossly negligent breaches of obligation on our part, on a fraudulent failure to disclose material defects, on a guarantee provided by us or on the customer's recourse rights in accordance with § 478 German Civil Code, as long as these do not exceed the material defect claims provided by law.
6.7 The customer is obliged as stipulated by law to undertake all measures to minimise any damage.
7. Other liability
7.1 We will only be liable for breaches of contractual and non-contractual obligation, including those by our executive staff and other agents, in cases of intent and gross negligence. Our liability is limited to the losses foreseeable at the time when the contract was concluded and typical of that type of contract.
7.2 The provisions of 6.5.1 and 6.5.2 apply accordingly to expiry by limitation.
7.3 These restrictions do not apply in the case of culpable breaches of substantial contractual obligations if the achievement of the purpose of the contract is jeopardised, if the German Product Liability Act imposes absolute liability or in cases of damage to life, limb or health, and they also do not apply if and to the extent that we fraudulently fail to disclose defects or have given a guarantee.
7.4 This does not affect the rules governing the burden of proof.
8. Applicable law, place of jurisdiction
8.1 All transactions are subject to German law, including foreign transactions. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
8.2 If the conditions imposed by § 38 German Code of Civil Procedure for an agreement as to the place of jurisdiction are satisfied, the place of jurisdiction for all claims of the contracting parties is Lübeck.
8.3 We may, however, ask that disputes be settled by amicable arbitration.

Contact

Possehl Erzkontor GmbH & Co. KG
Beckergrube 38-52
23552 Lübeck

Phone:  +49 - (0) 451 - 148 0
Fax:  +49 - (0) 451 - 148 355