Terms and conditions

General Payment and Delivery Terms and Conditions

 Minmetals Germany GmbH

March 2007

I. Conclusion of Contract

  1. Our supplies and services are provided exclusively on the basis of the following terms and conditions. Customer's terms and conditions of purchase are hereby rejected.
  2. These terms and conditions shall apply to all present and future contractual relationships with the Customer, even if these relationships do not refer to them explicitly.
  3. Our offers are not binding.
  4. Contractual relationships with our customers are entered into under the condition precedent that we have obtained a credit line from our insurance company covering the deliveries to the respective customer.

II. Prices

  1. Our prices are to be understood CFR European Main Port (Cost and Freight, Incoterms 2000) exclusive of spooling, packaging (beyond our commitment according to clause VIII.3), transportation, insurance and eventual acceptance procedures or quality tests. Such costs are charged in addition to the ex works prices to Customer.
  2. The prices are net prices, i.e., if applicable, value added tax (Umsatzsteuer) according to the statutory regulations in Germany must be paid in addition to the net prices. Additional charges resulting from special transportation requirements are borne by Customer.

III. Terms and conditions of payment

  1. Payment shall be due at the latest 30 days after delivery.
  2. If it has been agreed that the Customer shall release the goods for shipment within a certain period of time after our notification of readiness for shipment (release order), we are entitled to invoice the goods from the date of readiness for shipment; in this event, the price is payable 30 days after the date of invoice. We reserve the rights stipulated in clause III.4.
  3. Payment shall be made without deducting of cash discount and securing that the amount is available to us on due date. Customer is entitled to offset only against claims which are either undisputed or have become finally determined by the responsible courts; Customer shall only be entitled to rights of retention insofar as they are based on one and the same contract.
  4. If our claim for payment became a risk due to circumstances appearing subsequent to the conclusion of contract which may be held as a significant deterioration of Customer's economic situation we are entitled to demand and receive immediate payment.
  5. In case of a situation as under clause III.4 above as well as under clause V.8 we are entitled to revoke Customer's authorisation to collect payments (clause V.7) from his customers and we are furthermore entitled to demand and receive advance payments for outstanding supplies.
  6. Customer can avoid the consequences referred to under clause III.4 and V.8 by furnishing collateral in the amount of our payment claim at risk. If, in the cases of clause III.4 or V.8., the Customer fails to make advance payment or furnish securities within a reasonable period of time, we are entitled to exercise the right of rescission to the exclusion of all claims for compensation on the part of the Customer.
  7. The statutory provisions on default in payment shall remain unaffected.
  8. In the event of default in payment that is due to a recognisable deterioration in the financial position of the Customer, we are also entitled to rescind the contract without setting a deadline for payment.
  9. If the Customer is in delay with the payment of a significant amount in one contractual relationship between us and the Customer, we are entitled to withhold our performance in other contractual relationships between us and the Customer until the outstanding amount including applicable interest is fully paid. If the payment is delayed for more than four weeks, we are entitled to withdraw from any of the other contractual relationships.

IV. Collateral; Credit Insurance

  1. We are entitled to demand and obtain collateral which is customary in the business in nature and amount, even if our claims are conditional or limited in time.
  2. Our obligation to make the contractually agreed deliveries is subject to the availability of the Customer's credit line from our insurance company. If the credit line of the Customer is used up, we are not obligated to deliver the quantities not covered by the credit insurance until either the purchase price has been paid by the Customer or the Customer's credit line has been refreshed respectively.

V. Retention of title

  1. All goods delivered shall remain our property (goods in which title is retained) until all accounts receivable from Customer are settled. This shall also apply to future and conditional claims.
  2. Machining and processing of the goods in which title is retained shall take place on our behalf as our being the manufacturer in the meaning of section 950 of the German Civil Code (BGB), without any obligation on our part deriving there from. The machined and processed goods shall be deemed to be goods in which title is retained in the meaning of clause V.1.
  3. If the goods in which title is retained are processed, combined and mixed with other goods by Customer, we shall have joint title to the resultant merchandise, proportionally in the amount of the invoiced value of the goods in which title is retained. If by such combining, mixing or processing our title ceased to exist, Customer shall hereby assign to us the proprietary/prospective rights to which Customer is entitled in the new products, proportionally in the amount of the invoiced value of the goods. In such case Customer shall keep the new products in custody for us free of costs. In proportion to our co-ownership rights the new products shall be deemed to be goods in which title is retained as defined under clause V.1.
  4. Goods in which title is retained may only be resold by Customer in the normal course of his business at normal terms and conditions and as long as he is not in default, always provided that he shall retain title on the products sold by him and the claims from the resale shall be assigned to us as set forth in clauses V.5 and V.6. Customer shall not be entitled to dispose in any other way of the goods in which title is retained. Use of the goods in which title is retained to perform contracts for works or contracts for works and materials shall also be deemed to constitute resale in the meaning of this section V.
  5. All claims accruing to Customer from the resale of goods in which title is retained are hereby assigned to us. They shall serve as collateral to the same extent as the goods in which title is retained in the meaning of clause V.1.
  6. If the goods in which title is retained are resold by Customer together with other goods, the claim from the resale shall be assigned to us proportionally in the amount of the invoiced value of the goods in which title is retained. In the case of resale of goods in which we have co-ownership rights in accordance with clause V.3 we shall be assigned a part of the claim in the amount of our proportion of co-ownership.
  7. Customer is entitled to collect claims resulting from the resale unless we revoke this authorisation in the cases mentioned in clause III.5 and clause V.8. At our request and unless we do so ourselves, Customer shall notify his customers immediately of the assignment to us and furnish us with the information and records required to effect collection of payment. Customer shall in no event be authorised to assign claims; this applies also to all kinds of factoring transactions, which are not permitted irrespective of the authorisation to collect payments.
  8. In case of payment arrears we are entitled to forbid the further processing of the goods supplied, to claim restitution of the goods and, at our discretion, if required to enter the premises of Customer and to remove the goods. Restitution of the goods shall not constitute withdrawal from the Contract.
  9. In case Customer's property were seized or otherwise became subject to third party rights, Customer shall inform us immediately.
  10. If the value of the existing collateral exceeds the secured accounts receivable by more than 10% in total we shall be obliged, at Customer's request, to release collateral in the appropriate value; in case of different kinds of collateral we are free to determine which collateral is release.

VI. Delivery periods, delivery dates

  1. Delivery periods shall start with the date of our order confirmation, however, not before full clarification of all details of the order and not before we have obtained credit insurance from our insurance company covering the respective delivery; the same shall apply correspondingly concerning delivery dates. All delivery periods and dates are conditional on there being no unforeseeable production stoppages and on our being supplied on time with the necessary feedstock materials and, insofar as the inclusion of small quantities purchased from third parties in order to complete the contractual volume has been agreed or is regarded usual in the ordinary course of trade, subject to availability and timely receipt of such quantities.
  2. If Customer is in delay with his contractual obligations - including cooperation obligations or ancillary duties - such as but not limited to opening of a letter of credit, furnishing required domestic or foreign certificates or effecting advance payments or providing the information and documentation necessary for us to obtain credit insurance, we are entitled - irrespective of any additional statutory or contractual right based on Customer's default - to appropriately extend our delivery periods and dates in accordance with the requirements of our production sequences.
  3. The date of loading in the loading port shall be decisive for determining our compliance with delivery periods or dates.
  4. In cases of force majeure, the contractual obligations of both parties are suspended and the periods and dates for the fulfilment of contractual obligations are postponed accordingly; deemed to be circumstances of force majeure are also labour disputes in our own works or third party works, transport delays, machine failures, acts of a sovereign nature, and other circumstances for which neither of the parties are responsible. The other contractual party must be notified without delay in the event of force majeure. Both contractual parties are entitled to withdraw from the contract at the earliest six weeks after receiving this notification.
  5. In the event of failure to comply with delivery periods, the Customer has the rights under sections 281 and 323 BGB only after he has granted us a reasonable extension for delivery combined with the declaration - deviating from sections 281 and 323 BGB - that he will refuse acceptance after expiry of the extended delivery period; after expiry of the extended delivery period without delivery having been effected the right to claim performance is excluded.
  6. In the event of default on our part, we are liable as defined in section X. for the default damages to the extent evidenced by the Customer.
  7. Prior to passing of the risk, Customer is entitled to withdraw from the contract without advance notice in the event that the contract performance in whole finally turns out impossible to be fulfilled by us. Beyond such situation, Customer is also entitled to withdraw from the contract if a part of our contract obligations turn out impossible to be fulfilled by us and Customer has a legitimate reason to reject a partial fulfilment. If the latter is not the case, Customer remains obligated to pay the contractual price corresponding to the partial delivery made. Impossibility in the meaning of this clause shall also include subjective impossibility. Besides, section X. remains applicable.
  8. We are authorized to make partial deliveries to the extent that this is reasonable for the Customer.

VII. Dimensions, weight and grade

Deviations from contracted dimension, weight or analysis are permitted within the range allowed by EN/DIN or customary business practice. Weight shall be established on our calibrated weighing facilities and shall be decisive for invoicing. Weight shall be evidenced by submission of the weighing report or Mill’s certificate. If items are not weighed individually in the ordinary course of business, the total weight of the consignment shall be used. Differences in contrast to the calculated individual weights shall be allocated proportionally.

VIII. Shipment, packaging and passing of risk

  1. We shall appoint the forwarder or the carrier.
  2. If, for a reason for which Customer is responsible, take-over or despatch of the goods were delayed, we shall be entitled, at our discretion and at Customer's risk and expense, to put the goods into storage and to take all further measures deemed suitable to preserve the goods and we shall also be entitled in such case to invoice the goods as delivered. The same applies if goods notified ready for shipping are not called up in due course. The statutory regulations in respect of default in acceptance shall remain unaffected.
  3. To the extent it is customary business practise, we will deliver the goods packed at the Customer's expense. We do not take back packaging, protective equipment and transport aids. An express agreement is required for any packaging beyond transportation purposes or for other type of special protection, e.g. for longer-term preservation or storage.
  4. If the goods are damaged during transportation, Customer shall arrange for the appropriate ascertainment or facts by the competent bodies.
  5. The risk shall pass to Customer when the goods are handed over to the forwarder or carrier, latest, however, when leaving our plant or warehouse.

IX. Claims based on defects

  1. The goods are in conformity with the contract if they do not or do not deviate significantly from the agreed specification at the time of passing of the risk; contract conformity and absence of defects concerning our goods are determined exclusively in accordance with the express agreements on quality and quantity of the goods ordered. Liability for a specific use or purpose or specific suitability is assumed only to the extent to which this is expressly agreed; otherwise the risk of suitability and use lies exclusively with the Customer. We are not liable for any deterioration or loss or improper treatment of the goods after the risk has passed.
  2. Contents of the agreed specification and any expressly agreed purpose do not constitute a guarantee; the granting of a guarantee requires a written agreement.
  3. The Customer has to examine goods upon receipt without delay. Claims based on defects are available only if defects are reported without delay, at the latest within 30 days after delivery, in writing, concealed defects must be reported without delay after their discovery. After an agreed acceptance has taken place, any complaint about defects which should have been discovered in the course of the acceptance procedures is excluded.
  4. In the event of complaints about defects, the Customer has to give us an opportunity to examine the goods alleged to be defective without delay; at our request, the goods alleged to be defective or a sample of the same must be made available to us at our expense. In the event that complaints are unjustified, we reserve the right to charge the freight and transhipment costs as well as the costs of examination.
  5. In the event of a product defect we shall, at our discretion, taking into account the Customer's interests, restore contract conformity either by delivering conforming products or by repair. If we fail to restore contract conformity within a reasonable period of time, the Customer may notify us a reasonable deadline for compliance; if the deadline expires without compliance having been effected, the Customer may either reduce the selling price or withdraw from the contract; no further claims are available, section X. remaining applicable.
  6. The warranty period for defective deliveries ends one year after Customer's receipt of the respective product. Irrespective of the foregoing sentence, the statutory warranty periods shall apply in the case of goods that were used in line with their regular purpose for building construction and that caused that buildings structural defect; repair or replacement deliveries do not cause the warranty period to begin again.
  7. The Customer's rights of recourse against us under section 478 BGB are restricted to the statutory limitations of the claims based on defects brought by third parties against the Customer and always provided that the Customer has complied with his obligation to notify us defects without delay pursuant to section 377 of the German Commercial Code (HGB).

X. Limitation of liability

  1. Except in cases of intent, any and all liability of us under a contract with the Customer is limited to the contract value, i.e. the purchase price due to Minmetals Germany GmbH under said contract.
  2. Unless otherwise stipulated in these terms and conditions, we shall be liable to compensate incurred damages in the event of violation of contractual or non-contractual obligations, including the phase of contract negotiations, only in case of intent or gross negligence on the part of our statutory representatives or contractual agents or for being at fault for violating essential contract obligations. In the event of being at fault for the violation of essential contract obligations, we shall be liable - except in the case of intent or gross negligence on the part of our statutory representatives or contractual agents - only for the foreseeable, contract specific typical damage.
  3. The above liability restrictions shall not apply in cases of harm to life, physical injury or harm to health.
  4. Claims based on personal injury or damage to privately used goods under the German Product Liability Act (Produkthaftungsgesetz) remain unaffected from the above.

XI. Export certificate

If a Customer domiciled outside the Federal Republic of Germany or an agent of said Customer collects goods and transports or despatches them abroad the Customer shall furnish the export certificate required under tax law. If said certificate is not furnished, Customer shall be obligated to pay to us the applicable German value added tax in proportion to the invoice amount.

XII. Applicable law

The substantive laws of the Federal Republic of Germany shall govern the contractual relationship with the Customer. The United Nations Convention on Contract for the International Sale of Goods (CISG) of April 11, 1980 shall not apply.

XIII. Place of performance and legal venue

Place of performance for our supply obligations shall be the location of the supplying plant or the warehouse from which we supply. The place of fulfilment for Customer's payment obligation as well as the place of jurisdiction for both contract parties shall be Düsseldorf, Federal Republic of Germany. We are also entitled to enter into legal proceedings against Customer at his general legal venue.