1. GENERAL 

1.1 Unless otherwise agreed in writing, the following General Terms and Conditions of Sale and Delivery (“GTC”) apply to the entire business of Freiberger Eurometall GmbH and its affiliates (hereinafter referred to as “FEM”). Other provisions, in particular the customers’ General Terms and Conditions shall not apply, even if FEM has not explicitly rejected such conditions. These GTC shall apply exclusively also in the event that FEM provides services unreservedly while being aware that contrary or deviating terms and conditions exist. 

1.2 Individual agreements between FEM and the customer made in a particular case shall take priority. Such arrangements, as well as any amendments and supplements to, or the cancellation of an arrangement including these General Conditions between FEM and the customer require the written form to be effective. The same applies to the repeal of the requirement of written form. 

 

2. OFFERS, PURCHASE ORDERS 

2.1 Offers made by FEM shall always be deemed non-binding unless they are expressly marked as binding. This shall also apply to recommended prices and capacities announced by FEM. Invoices and delivery notes are also deemed written confirmations. Verbal supplementary agreements as well as changes of the contract will only become valid after being put down in writing. Unless otherwise agreed, FEM will deliver within in the framework of tolerances given by the German Industrial Standard (DIN) regulations. If such standard regulations are not applicable, FEM will deliver within a framework of tolerances which has to be agreed. The Customer Is obliged to inform FEM about intensified use, special operation purposes as well as risks which have to be taken into consideration from the very beginning of an order 

2.2 Customer purchase orders shall become binding for FEM only upon written acceptance or the delivery of goods. FEM may accept purchase orders within one week from receipt thereof. 

2.3 Contract Annulment In the event of unjustified withdrawal from an order, FEM shall be entitled to claim compensation from the Purchaser amounting to 10% of the contract price despite the possibility of asserting higher actual losses. These 10% result from costs for processing an order and loss of profit FEM is not obliged to prove its damages or losses. This obligation rests with the Customer. 

 

3. DELIVERY, ACCEPTANCE 

3.1 Unless otherwise agreed, deliveries shall be Ex-Works (Incoterms 2010). 

3.2 Delivery terms and delivery dates specified by FEM shall be non-binding, unless binding terms and dates were expressly agreed upon in individual cases. In case of non-binding delivery terms or dates, FEM shall be in default only if a reasonable time for delivery set in writing by the customer lapses unsuccessfully. The customer shall set the expiry of such a term to a date at least four weeks after the expiry of the non-binding delivery term or non-binding delivery date. 

3.3 FEM shall not be in default of delivery, if suppliers fail to deliver in a proper or timely manner due to reasons beyond FEM’s sphere of responsibility. 

3.4 FEM shall be entitled to make partial deliveries provided that the acceptance of such partial deliveries is reasonable for the customer and, in particular, if the delivery of the remaining goods ordered is ensured and no significant additional expenditure or additional cost arise for the customer as a result thereof (unless FEM agrees to bear such cost). Each partial delivery may be invoiced separately. 

3.5 The customer shall be in default of acceptance, if it fails to accept the goods on the bindingly agreed delivery date. In case of non-binding delivery terms or dates FEM may notify the customer when the goods are ready for collection within a period of four weeks. The customer shall be in default of acceptance, if it fails to collect the goods within that timeframe. 

3.6 If the customer is in default of acceptance or if the usual time taken for unloading is exceeded at the time of acceptance, it shall be charged the additional cost arising as a result, such as container rental cost and other storage cost. FEM shall be entitled to charge the customer 0.1% of the amount invoiced for the stored goods per calendar day of storage as lump-sum compensation for storage costs. However, the customer shall be charged a maximum of 1% per calendar month, unless it provides evidence that damages incurred are lower. FEM reserves the right to submit evidence of greater damages. However, FEM shall be entitled to find alternative ways to dispose of the goods, if attempts to determine a reasonable period of time are unsuccessful. 

 

4. PRICES, PRICE ADJUSTMENT 

4.1 Unless otherwise agreed, the price list valid at any one time given shall apply. Prices shall be EXW (Incoterms 2010) unless otherwise agreed. Any applicable sales tax shall be calculated separately at the legal rate valid at the respective time and shall be paid by the customer. 

4.2 FEM reserves the right to implement price adjustments, if, following the conclusion of the contract until delivery, costs change on account of the following factors which FEM is not responsible for and which were not foreseeable with reasonable certainty: sales taxes, wage settlements, changes in raw material prices, other suppliers’ price changes or currency fluctuations. FEM shall disclose the reasons for such price adjustments upon the customer’s request. 

 

5. PAYMENT, DEFAULT OF PAYMENT 

5.1 Unless otherwise agreed, invoices shall be paid within 14 days of delivery and receipt of invoice without deduction and are payable via bank transfer into one of the accounts indicated by FEM. Unless otherwise agreed, payments shall be made in Euro. Place of fulfillment shall be the registered office of FEM. 

5.2 If the customer exceeds the payment term, it shall be in default without further reminder. The timeliness of payment shall be determined by the date on which the invoiced amount is received on the account indicated. 

5.3 In case of delayed payment, FEM shall be entitled to claim default interest in the amount of 8 percentage points above the base interest rate, however, a minimum of 12% of the outstanding amount per year. The right to claim further damages shall remain unaffected. 

5.4 If the customer falls in arrears with at least two payments arising from the business relationship with FEM, all of its effective payment obligations from all business relationships with FEM shall become due immediately. 

 

6. TITLE RETENTION 

6.1 FEM shall retain ownership of the goods delivered until the receipt of all payments arising from the business relationship. If an open account relationship exists, FEM shall retain ownership of the goods delivered until the receipt of all payments from the approved balances. 

6.2 If the customer acts in breach of the contract, in particular in case of delayed payment, FEM shall be entitled to take back the goods delivered subject to title retention ("Reserved Goods"). In case of delayed payments, setting a deadline beforehand shall not be required. Costumer hereby grants FEM, or a third party designated by FEM, access to the customer’s business premises and warehouses during usual business hours to take back the Reserved Goods. FEM or the designated third party shall be granted access to the Reserved Goods and the customer shall provide sufficient support in removing the Reserved Goods. Further claims of FEM shall remain unaffected. 

6.3 Once the Reserved Goods have been taken back, FEM shall be entitled to adequate utilization of the same, provided FEM has informed the customer beforehand of its intention with reasonable prior notice. The utilization proceeds shall be set off against the customer’s liabilities reduced by reasonable utilization costs. 

6.4 Following the assignment of claims, the customer shall remain authorized to collect claims. FEM’s right to collect claims itself shall remain unaffected. However, FEM shall not collect claims if the customer meets its payment obligations from the proceeds received, does not fall in default of payment and or, above all else, has not applied for the opening of insolvency proceedings or ceases payments. If any of the above should be the case, FEM shall be entitled to demand that the customer make known the assigned claims and the respective debtors, furnish all information necessary for collection, deliver the associated documentation and inform the debtors of the assignment. The customer’s right to collect claims ceases to exist with the occurrence of such event 

 

7. DETERIORATION OF FINANCIAL SITUATION

7.1 If, after having entered into a contract with the customer, it becomes clear that the customer may be unable to fulfill its contractual duties due to its financial status (particularly if payments are discontinued, insolvency proceedings have been instituted, seizure or forced execution measures have been taken, cheques and bills are protested and direct debits are returned, involving third parties as well), FEM shall be entitled to retain deliveries until prepayment of the purchase price is effected or an adequate security is lodged. The same shall apply if legitimate doubts exist concerning the customer’s creditworthiness or its ability to pay as a result of payments being delayed. 

7.2 Furthermore, in the cases listed under section 7.1, FEM shall be entitled to retain deliveries until all of the customer’s outstanding debts have been paid in full or an adequate security is lodged. However, for all claims not yet due, including those where FEM is required to render advance performance under contracts already concluded, as well as claims which lack an economic connection with the delivery, this rule shall apply only if there is a legitimate interest on FEM’s part. 

7.3 If a current account relation exists within the context of the business relationship, FEM shall be, in the cases listed under section 7.1, entitled to retain deliveries until all payments under the approved balances have been received or an adequate security has been provided. 

7.4 If the customer does not provide the advance payment or the security in accordance with section 7.1, within two weeks, FEM shall be entitled to rescind the respective individual contract or, if the contract comprises the performance of a continuing obligation (e.g. a framework supply agreement), even terminate such contract without notice. 

 

8. QUALITY OF GOODS, INFORMATION AND USE, GUARANTEES 

8.1 As regards the quality of the goods, only the agreed upon specification shall apply. The customer shall be solely responsible for verifying that the goods are suitable for the desired purposes. 

8.2 Information provided by FEM in writing, verbally or in any other form with regard to suitability, including application, processing or another use, as well as technical support offered are rendered to the best of FEM’s knowledge; however, all of the above shall be deemed non-binding information only. The information shall not release the customer from verifying on its own behalf the suitability of goods delivered by FEM for the intended purposes. Application, processing and any other use of the goods are beyond FEM’s control and shall therefore be the customer’s responsibility. Guarantees, particularly guarantees of quality shall be binding on FEM only to the extent that (i) they are included in an offer or order confirmation, (ii) they are referred to expressly as "guarantee" or "guarantee of quality", and (iii) FEM’s duties from such guarantee are expressly stated. 

 

9. WARRANTY RIGHTS 

9.1 Notification of defects shall be made in writing and specify the defect. Defects on account of incomplete delivery or other evident defects shall be notified to FEM in writing without delay, or, at the latest within one week from delivery. Hidden defects shall be notified without delay or, at the latest within one week from their discovery. Acceptance of goods shall not be refused on grounds of minor defects. Belated claims for defects shall be excluded. The customer shall bear the cost incurred from the inspection of goods. Defective goods shall be made available to FEM for inspection on demand. 

9.2 FEM shall provide subsequent performance for defective goods by, at its sole discretion, either eliminating the defect (rectification of defects) or delivering goods free of defects (subsequent delivery). Subsequent performance shall be made without recognition of a legal obligation. If FEM chooses to provide supplementary performance by eliminating the defect, the remaining part of the original statutory period begins as of the date the rectified goods are returned. The same applies in the case of subsequent delivery. 

9.3 If subsequent performance fails, the customer shall be entitled to rescind the contract. The right to reduce the purchase price shall be excluded. Additional claims for defects, regardless of the type of claim, are excluded, except for claims for damages, which are subject to the limitations set out in section 10. 

9.4 The customer shall bear any reasonable cost incurred from an unjustified enforcement of warranty rights (e.g. product was not defective); the same shall apply, if FEM erroneously grants warranty rights without being obliged to do so. 

 

10. LIABILITY 

10.1 As a basic principle, FEM shall be liable to the customer in accordance with the legal requirements for all damages caused in connection with the delivery. However, the following liability limitations set out under section 10.2 through 10.5 shall apply for all claims for damages, independent of the legal base, and with the exception of claims raised by the customer (i) based on the belief that damages were caused intentionally, (ii) under the product liability act, (iii) due to fraudulently concealed defects, (iv) due to defects in regards to which a quality guarantee was provided (here too, a liability provision or limitation period due to the guarantee may apply), (v) resulting from the damage to life, body or health or (vi) due to gross negligence on the part of FEM’s management or executive staff. 

10.2 In the case of ordinary negligence, FEM shall be liable only for damages resulting from the violation of essential contractual duties the performance of which is required for the due execution of the contract and the observance of which the contracting partner relies on and may rely on, regularly. In this case, however, liability shall be limited to the typically foreseeable damage. This limitation of liability shall also apply to damages caused by gross negligence by FEM employees or representatives who do not belong to the management or executive staff. 

10.3 Liability for cases specified under section 10.2 shall be limited to double the purchase price of the delivery concerned. 

10.4 For cases specified under section 10.2, the limitation period shall be two years after the date on which the claim arose and the customer gained knowledge of the circumstances substantiating the claim. The customer may not bring forth any claim against FEM after three years from the event that triggered the damage independent of the customer’s knowledge thereof.  

10.5 The above limitation of liability shall also apply to damage claims raised by the customer against FEM’s management, executives, employees or representatives. 

 

11. FORCE MAJEURE 

In the event of FEM being unable to fulfill their contractual duties as a result of force majeure (i.e. mobilization, war, terrorism, insurgence, natural catastrophes, fire) or due to other unforeseeable circumstances for which FEM bears no responsibility (i.e. strikes or lawful lockouts, operation or transport interruptions, difficulties with the procurement of raw material, inadequate delivery from suppliers), the delivery terms agreed on shall be extended by the duration of the obstruction plus an appropriate resumption time. Furthermore, FEM shall not be held responsible for the circumstances mentioned if they occur during an already existing delay. FEM shall notify the customer as soon as possible of the start and expected end of such circumstances. If the obstruction lasts six months or longer, both parties shall be entitled to rescind the contract. 

 

12. ADHERENCE TO REGULATIONS AND EXPORT 

12.1 The customer shall adhere to all legal regulations and official requirements as well as to all applicable laws and particularly to the export regulations and laws of the country in which the customer is conducting business. The customer shall obtain all required authorizations and licenses in due time as well as all other permissions, which are required as per such applicable laws for the use and export of goods. 

12.2 FEM shall be entitled to retain delivery from the customer if, without FEM’s fault or sharing in the responsibility in such, the customer violates such applicable laws or if not all of the required permissions have been obtained. 

 

13. OFFSETTING AND RIGHT OF RETENTION 

The customer shall not be entitled to either offset or exercise its right of retention on account of counterclaims which are contested or not yet stated as legally binding. Furthermore, the customer shall not be entitled to exercise its right of retention to the extent that the counterclaims are not based on the same contractual relationship. 

 

14. ASSIGNMENTS 

The customer shall not be entitled to assign any of its rights and duties in conjunction with deliveries either in part or in full without obtaining prior written approval by FEM. FEM shall be entitled to assign its rights and duties in conjunction with deliveries particularly to affiliated companies. 

 

15. APPLICABLE LAW, PLACE OF JURISDICTION, MISCELLANEOUS 

15.1 All legal relationships between FEM and the customer shall be subject to German law under the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). 

15.2 Exclusive jurisdiction and legal venue for all disputes resulting from or in connection with a delivery shall be Chemnitz. However, FEM shall be entitled to institute proceedings against the customer at its place of business.