| as of March 31, 2006
1. Scope
1.1 The Terms contained herein shall apply to all quotations, offers, deliveries and services made and provided by us. Our employees and trade representatives may not make oral promises, nor are our trade representatives authorized to accept notices of defects or to receive money. Our Terms shall also apply to future business contracts.
1.2 Terms issued by a Buyer which deviate from, conflict with, or are supplementary to, these Terms are hereby objected to. Such terms issued by the Buyer shall not form an integral part of the contract, unless their application has been expressly approved in writing.
2. Offers and Conclusion of Contracts
2.1 Our offers are subject to change and are not binding. This shall also apply to quotations. We reserve the right of modifications due to technological advances, and of changes in shape, color, weight and/or other characteristics, provided that such modifications and changes are reasonable.
2.2 By placing an order, the Buyer makes a binding manifestation of his intent to purchase the ordered goods. The order shall be subject to confirmation in writing or to execution by us in order to be effective. Orders already confirmed may be changed only if the production process still allows such change. In case of cancellation of goods already in production we are entitled to charge at least 30% of the order value plus statutory value-added tax.
2.3 Regarding contracts concluded by electronic means, Section 312e Sub-section 1 Sentence 1 Numbers 1 to 3, Sentence 2 of the German Civil Code shall apply only if the Buyer is a consumer within the meaning of Section 13 of the German Civil Code. In such event, we will promptly acknowledge receipt of the order, store the contents of the contract and, at the Buyer's request, send it to him by email together with these Terms.
3. Prices, Delivery, Passing of Risk
3.1 All prices quoted by us are exclusive of value-added tax, plus shipping costs. If a period of more than four months has lapsed between the conclusion of the contract and the delivery date, the prices current at the date of delivery shall be applied.
3.2 Delivery dates and delivery periods are not binding. Partial deliveries are admissible. Fixed delivery dates shall be subject to written confirmation by us. In case of custom-built goods, an excess or shortfall in the delivered goods of up to 10% may not be objected to.
3.3 If the Buyer is a businessman within the meaning of Section 14 of the German Civil Code, the risk of accidental loss and of accidental deterioration of the goods shall pass to the Buyer upon delivery, and in case of sale to destination according to buyer's instructions, upon delivery of the goods to the person determined for the execution of the shipment. At Buyer's request in writing, insurance for such goods shall be taken out at his expense. In the event that the Buyer is a consumer, the risk of accidental loss and of accidental deterioration shall pass upon delivery of the goods even in case of sale to destination according to Buyer's instruction. Buyer's default in acceptance shall be deemed equivalent to delivery.
3.4 Notwithstanding our statutory rights, after the expiry of a supplemental period of ten days in case of non-acceptance of the goods, we may, at our option, invoice the purchase price, rescind the contract, or claim damages for breach of contract. The same shall apply to shipments where a delivery period has not been agreed upon and the Buyer, despite having been requested to do so, has not accepted the goods within a supplemental period of ten days.
3.5 A delay in delivery due to force majeure (e.g. strike, lockout, war, civil unrest, power failure, shortage of raw material, traffic restrictions and similar circumstances) or other unforeseeable circumstances beyond our control, shall result in a reasonable extension of the delivery period.
4. Payment Terms
4.1 Invoices shall be settled by the Buyer within a period of 30 days from the date of invoice. After the expiry of this period the Buyer will be in default on his payment. For payment within a period of 10 days we grant a discount of 2%. For each reminder a fee in the amount of EUR 5.00 will be charged.
4.2 Individual deliveries may generally by made conditional on advance payment of the purchase price and the shipping costs.
4.3 In the event of Buyer's acting in breach of contract, in particular delay in payment, we are entitled to rescind the contract and to reclaim the goods. The same applies in the event that at a later point in time we should become aware of any circumstances which cast a doubt on Buyer's solvency. In such event we are entitled to make deliveries not yet effected conditional on the provision of appropriate security.
4.4 The Buyer may offset his own claims only if such claims have been awarded to him by final and absolute court decree or if they have been recognized by us. The Buyer may assert a right of retention only if his counterclaims are based on the same contract.
5. Right of Revocation of Orders Placed by Means of Telecommunication
If the Buyer, as a consumer, places an order only through means of telecommunication, he shall be entitled to revoke his manifestation to conclude a contract within two weeks, without giving reasons, by notice in writing or by return shipment of the goods. This period of revocation shall begin upon receipt of the goods, the dispatch in time of the notice of revocation or of the return shipment of the goods being sufficient for such period to be observed. For order values of up to EUR 40.00 the costs for the return shipment in case of revocation shall be borne by the Buyer, unless the delivered goods do not comply with the goods ordered.
6. Notice of Defects
6.1 Business owners shall give written notice of defects within a period of two weeks from receipt of the goods, otherwise warranty claims shall be excluded. Business owners shall bear full burden of proof for the fact that the requirements for the warranty claim have been fulfilled. Notice of hidden defects must be given promptly upon their discovery.
6.2 Consumers shall give written notice of defects within a period of two months from the discovery of a defect in the goods. The relevant date for such period shall be the date of receipt of the notice in our office. Should the consumer fail to give notice, warranty shall expire two months from the discovery of the defect.
6.3 Defective delivered goods shall be returned by the Buyer to us at his own expense. Should the complaint about the defect be justified, the Buyer will be refunded the costs incurred in usual return shipment.
7. Warranty
7.1 If the Buyer is a business owner, the defect in the goods shall at first be remedied by repair or substitute delivery.
7.2 If the Buyer is a consumer, he may, at his option, request subsequent performance through repair or substitute delivery. The method of subsequent performance chosen may be rejected by us if it involves unreasonable costs, unless the other method of subsequent performance involves a considerable disadvantage to the consumer.
7.3 For business owners the warranty period shall be 1 year, for consumers 2 years from the delivery of the goods. In the event of failure of subsequent performance, warranty claims other than subsequent performance may be asserted.
7.4 At Buyer's request remedy of the defect may be carried out at such place as determined by him. He will not be charged for work covered by the warranty, but shall refund any expenses other than those covered.
7.5 In the event of unjustified notices of defects we may demand from Buyer refund of any expenses incurred in the attempt to remedy the defect.
8. Reservation of Title
8.1 Title in the goods will be reserved by us for contracts with businessmen until all current or future claims arising in connection with the business relationship have been settled.
8.2 Title in the goods will be reserved by us for contracts with consumers until the purchase price has been completely settled.
8.3 The goods subject to reservation of title (reserved goods) shall be stored separately by the Buyer, marked as our property, and treated carefully; he shall inform us promptly of any attachment of these goods, such as levy of execution, of any damages caused to them, or of their destruction. The pledging of such goods or their transfer of ownership by way of security shall not be admissible.
8.4 In the event that the Buyer should resell or lease the reserved goods in the ordinary course of business, he shall here and now assign to us as security his future claims towards his customers from such resale or lease, a separate declaration of assignment not being required in the future. As long as notice to the contrary has not been given, the Buyer shall be authorized to collect the claims assigned, but shall not be entitled to make any other use of such claims (e.g. assignment). At our request the Buyer shall inform his customers of the assignment and furnish us the documents and the information required for asserting our rights.
8.5 Should the Buyer have defaulted on all or part of his payments, or should he be indebted or have suspended his payments, or should he have experienced a considerable deterioration of his financial situation, or should he have filed a petition for insolvency, we are entitled to immediate recovery of the entire reserved goods. The reclaiming or taking possession of the goods shall not be deemed as rescission of the contract. The reserved goods may be sold by us with the diligence of a prudent businessman so as to satisfy our outstanding claims by offsetting them against the proceeds obtained from such realization.
9. Final Provisions
9.1 An export of the goods delivered by us in particular beyond the national borders of the country to which they had been delivered, shall be subject to our prior written approval.
9.2 Place of performance shall be the place of business of our company. If the Buyer is a businessman, a legal entity under public law, or a trust under public law, jurisdiction for all disputes arising hereunder shall be at the place of business of our company. In such case we are entitled to take recourse to the courts having general jurisdiction at the place of business of the Buyer.
9.3 This contract shall be governed exclusively by the laws of the Federal Republic of Germany, the United Nations' Convention on Contracts for the International Sale of Goods being excluded.
9.4 In the event that any provisions of these Terms should be or become wholly or partly invalid or unenforceable, the validity of the remaining provisions or agreements shall not be affected. The invalid provision shall be replaced with a valid provision that comes as close as possible to the objective of this contract. This shall apply analogously to any gaps that need to be filled.
Observation pursuant to Section 33 of the German Data Protection Act:
The Buyer's name and address and all data required for the processing and execution of the order are stored in automated files.
Standard Terms and Conditions of Purchase
(„Terms of Purchase“)
Haidermetall Eduard Haider GmbH & Co. KG
as of March 31, 2006
1. General Issues – Scope
1.1 Our Terms of Purchase contained herein shall be applicable exclusively. We shall not be bound by terms and conditions issued by the Supplier which conflict with, or are complementary to, these Terms of Purchase, even if we have not objected to them, the Supplier has declared that he will make delivery only subject to such terms and conditions issued by him, or if we have accepted delivery without reservation in knowledge of such conflicting terms and conditions issued by the Supplier, unless their application has been expressly approved by us in writing.
1.2 Orders, acceptance, and any further agreements between the Supplier and us, as well as modifications of, and/or amendments to, them must be made in writing. Oral additional agreements shall only be effective if confirmed by us in writing.
1.3 Any correspondence shall be maintained with the department placing the order. Agreements made with other departments shall be subject to the ordering department's express confirmation in writing in order to be effective.
2. Offers, Duties to Advise and to Take Care
2.1 Should the Supplier not accept our order within a period of 14 days, we shall be entitled to revoke such order as long as we have not received Supplier's confirmation of acceptance. No third parties may be put in charge of the entire shipment and the performance of the order placed without our prior written approval.
2.2 If the Supplier has been informed by us of the intended use of the shipment, or if the Supplier is able to recognize such intended use even without express indication, the Supplier shall be obligated to advise us promptly if Supplier's shipment or performance are not suitable for the intended purpose.
2.3 The Supplier shall promptly inform us in writing of any deviations of the processed material in the manufacture or in the constructive design from identical shipments and performances in the past. Such modifications shall be subject to our prior written approval.
2.4 The Supplier shall take out adequate product-liability insurance including the risk of recall and shall submit, at our request, such insurance policy to us for inspection.
3. Prices – Terms of Payment, Prohibition of Assignment
3.1 The prices stated in our order shall be binding and are quoted free to the place of performance. They include the costs of suitable packing of the goods to be shipped and, if any, the costs for customs formalities, customs duties and delivery free domicile. The costs for insurance of the shipment, in particular transport insurance, shall not be borne by us.
3.2 The prices are plus the current statutory value-added tax.
3.3 We are able to process invoices only if the order number shown in the order and the marks requested in the order are stated in the invoice. The period of payment shall not begin until receipt of a duly made out invoice.
3.4 Payments shall be made in compliance with the terms and conditions specified in the order. Except as otherwise agreed upon, the purchase price will be settled by us within 14 days from receipt of the delivery and the invoice with a discount of 3%, or net within 30 days from receipt of the invoice. Periods during which our company is closed for works holidays shall not be taken into consideration in the calculation of the payment period. Deduction of discount shall be admissible also in case of set-off or retention for defects.
3.5 Without our prior written approval, the Supplier shall not be entitled to assign any claims he may have towards us and/or to have such claims collected by third parties. This shall not apply in the event that the Supplier has effectively agreed upon an extension of the reservation of ownership.
4. Shipment, Packing
4.1 The delivery date agreed upon shall be binding. Advance shipments and/or partial shipments shall be admissible only with our prior approval.
4.2 The Supplier shall be obligated to inform us promptly in writing whenever there occur or become apparent any circumstances denoting that the delivery period agreed upon cannot be met.
4.3 In the event of a delay in delivery, we shall be entitled to the remedies at law.
4.4 Place of performance for shipments or performances of the Supplier shall be the shipping address stated in the order. If no shipping address been given and the place of performance cannot be deduced from the nature of the obligation, the place of performance shall be our company's place of business.
4.5 The articles to be shipped shall be dispatched with proper packaging. All packing and shipping instructions must be observed. All delivered items must be in compliance with public regulations concerning safety and health requirements. Delivery notes and packing lists must be included in each shipment. The order numbers and the marks requested in our orders must be stated in all documents. A dispatch note shall be remitted to us on the day of dispatch at the latest. Any additional costs incurred by us following the non-observance of the above provisions shall be borne by the Supplier.
5. Defects
5.1 The goods received will be inspected by us in compliance with commercial standards. Notice of defect shall be deemed as timely if the Supplier has received such notice within a period of 7 work days from the date of receipt of the shipment, or, in the event of hidden defects, from the date of discovery of such defects.
5.2 We shall be entitled to all statutory remedies regarding warranty for defects.
6. Reservation of Title, Provision of Materials
6.1 In the event that we have made available to the Supplier any items, we shall reserve the title to and the copyright for such items. Such items may be used exclusively for the performance of the ordered shipment and services, and may not be disclosed to third parties without our express written approval. Such items shall be promptly returned to us upon execution of the order or upon our request.
6.2 The Supplier shall carry out in due time, and at his own expense, any maintenance, inspection and repair that may become necessary, insure adequately the items left to him, in the amount of their replacement value, against damage by fire, water and theft, and submit proof of such insurance upon our request. Upon conclusion of an insurance contract, the Supplier shall assign to us any compensation claims that may arise under such insurance, the assignment being herewith accepted by us.
6.3 As far as any items made available by us to the Supplier are integrated or transformed by the Supplier into new articles, we shall be the manufacturer of such articles. If such items are combined with, or inseparably integrated into, other articles, we shall acquire co-ownership in such new articles in proportion to the value of such items at the time of their combination with, or integration into, such articles. If such items are combined or integrated in a way that Supplier's article is considered the principal article, it shall be agreed that the Supplier assigns to us the proportionate co-ownership, the co-ownership being held in custody by the Supplier for us.
7. Industrial Property Rights, Secrecy
7.1 The Supplier shall ensure that no third-party rights are infringed in connection with his delivery. Should any third parties assert claims against us, the Supplier shall be obligated to indemnify and hold us harmless against such claims. Supplier's indemnity obligation shall include any necessary expenses incurred by us in connection with any claims asserted by third parties.
7.2 The Supplier shall not disclose any commercial and technical information and documents not generally known of which he has obtained knowledge through the business relationship, in particular depictions, drawings, and calculations, and shall use such information exclusively for the performance of the ordered shipment and service. The Supplier shall also obligate to secrecy any sub-contractors he may have. The obligation to secrecy shall continue beyond the period of the execution of the contract.
7.3 The Supplier may give as credential or mention our company and/or our brands in publications only with our prior written consent.
8. Endangerment of Performance
Should the economic situation of the Supplier worsen during the term of the order to the point of seriously endangering the performance of the contract, should he suspend (even temporarily) his payments, or should he file a petition for insolvency proceedings, we shall be entitled to rescind the contract regarding the part not yet performed. If a partial delivery is not in our interest, we shall be entitled to rescind the entire contract.
9. Jurisdiction and Applicable Law, Miscellaneous
9.1 If the Supplier is a businessman, jurisdiction shall be at our company's place of business. We are entitled to take recourse to any court having jurisdiction as directed by law.
9.2 German law shall be applicable. The United Nations' Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not be applicable.
9.3 In the event that any provisions hereunder or of the contract should be wholly or partly invalid, the remaining provisions shall not be affected.
9.4 Packaging material shall be returned only at Supplier's written request and at his risk and expense..
Observation pursuant to Section 33 of the German Data Protection Act:
The Supplier's name and address and all data required for the order and its execution have been stored in automated files.
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