General Terms and Conditions of Purchase (AEB)
§ 1 Scope of validity
- The following Terms and Conditions of Purchase shall exclusively govern all our purchase orders. We shall not recognize any terms and conditions contradicting our Terms and Conditions of Purchase, or deviating from them, as may be contained in a supplier’s offer or order acceptance (order confirmation), unless we recognize them expressly in writing. Our Terms and Conditions of Purchase shall even apply, if we unconditionally accept deliveries from our supplier, although we are fully aware of such terms and conditions existing on the part of the supplier that contradict, or deviate from, our own Terms and Conditions of Purchase. This shall not require our express objection to any such terms and conditions of our supplier.
- Our General Terms and Conditions of Purchase shall also apply to all future business transactions with the supplier, even if they have not been agreed once again.
- Our General Terms and Conditions of Purchase shall only apply to business transactions with entre-preneurs pursuant to Article 310, sub-section 4, of the [German] Civil Code (BGB).
§ 2 Terms and conditions customary in the trade
- Unless something else has expressly been agreed which does not contradict our General Terms and Conditions of Purchase,
a) the „Terms and conditions customary in the trade for deliveries of non-alloyed steel scrap“ in their currently valid version, as issued by the Bundesvereinigung Deutscher Stahlrecycling- und Entsorgungsunternehmen e.V. (Federal Association of German Steel Recycling and Disposal Companies [BDSV]), shall additionally apply to purchases of non-alloyed steel scrap,
b) the „Terms and conditions customary in the trade for deliveries of cast iron scrap and foundry steel scrap“ in their currently valid version, issued by the Bundesvereinigung Deutscher Stahlrecycling- und Entsorgungsunternehmen e.V., shall additionally apply to business transactions with foundries and
c) the “Trade usages of the metal sector”, as issued in their currently valid version by the Verein Deutscher Metallhändler e.V. (Association of German Metal Traders [VDM]) shall additionally apply to purchases of non-ferrous metals.
- When making purchases on the basis of one of the INCOTERMS, the INCOTERMS 2000 shall be deci-sive. However, these trade terms shall only be applicable to such an extent as no other provisions have been adopted in these terms and conditions or in separate agreements.
§ 3 Purchase orders
- Only purchase orders placed in writing shall be legally binding.
Purchase orders placed verbally or collateral agreements not made in writing by our management, by a holder of a general commercial power of attorney (“Prokurist”) or by any other explicitly authorized person shall require our written approval to take effect. The same shall apply to any subsequent modifications or amendments to our purchase order or to contracts concluded with us.
- We shall be entitled to withdraw our purchase order, if the supplier does not accept the purchase order in writing within 10 working days after having received it.
- Suppliers shall prepare and submit their offers free of charge to us.
§ 4 Prices
- The agreed prices are quoted as fixed prices. Additional demands of any kind in this respect shall be excluded.
- Unless something else has been agreed, the prices shall be free ex works, free ex warehouse or free shipping address as agreed, including packaging, customs duty, shipping insurance and freight costs. The type of pricing shall not affect the agreement about the place of performance.
- Since the principle of Reverse Charge can be applied, the method used for the relevant materials shall be clearly marked in the invoices concerned (e.g. Article 13b).
In the case of business transac-tions not subject to Reverse Charge (e.g. services), the applicable statutory value added tax is not included in the price, unless explicitly stated differently.
§ 5 Packaging
- The goods shall be delivered in a way as is customary in the trade, in any case in an environmentally-friendly way, and they shall be packaged in such a way that shipping damage can be avoided. Packaging materials shall be used to such an extent only, as is necessary to achieve this purpose.
- The supplier shall comply with the “Regulation on the avoidance and recovery of packaging waste” (packaging regulation) in its currently valid version and, especially, ensure that the packaging materials can be returned at the supplier’s expense and are properly recycled.
- We shall be entitled to return packaging materials to the supplier at his own expense and risk.
§ 6 Dispatch
The order number, the reference number and the date of issue shall be stated on all shipping docu-ments. Any costs incurred to us caused by misdirected deliveries due to disregarding this obligation shall be borne by the supplier.
§ 7 Force Majeure and other obstructions
- Events of Force Majeure shall entitle us to postpone performing our acceptance obligations during the time this obstruction continues plus a reasonable period of time thereafter, without being found in default. If this obstruction continues for longer than three months, both the supplier and we shall be entitled to withdraw from that part of the contract that has not been executed. The supplier shall not be entitled to a compensation for any loss or damage caused in this respect.
- Force Majeure shall be tantamount to all and any circumstances that make it considerably difficult or even impossible to perform our acceptance obligations, such as strikes, lockouts, official or sovereign measures, a breakdown of machinery, a lack of raw materials and energy as well as an obstruction of the traffic route, irrespective of, whether these circumstances occur on our own premises or elsewhere at third parties.
§ 8 Delivery periods
- The agreed delivery periods and deadlines are binding and shall be met. The supplier shall immedi-ately notify us in writing and state the reasons, when circumstances occur or are expected by him which pose a risk that the agreed deadline cannot be met.
- The receipt of the goods at our premises shall be decisive, whether the delivery date has been complied with.
- In the event of a delayed delivery we shall be entitled to the statutory claims, especially to claim damages instead of the performance of contract and/or to withdraw from the contract after a grace period has unsuccessfully expired.
- In the event of an early delivery, we shall be entitled to return the goods at the contracting party’s expense. If, in the event of an early delivery, the goods are not returned, we shall store them until the agreed deadline at the supplier’s risk and expense.
§ 9 Delivery notices
A separate delivery notice informing us about the dispatch of a delivery must be transmitted and reach us before this delivery arrives. The delivery notice shall contain precise details as to the goods delivered, such as the number of items, the dimensions, the weight, the types of goods and analyses as well as our order number.
§ 10 Establishment of weight and quantities
The number of items, the dimensions, the weight, the types of goods and the analyses established by us when receiving the goods shall be decisive for the pricing. The weight of the relevant delivery as established by us shall be recorded on a weighing slip that is issued in two copies; the supplier shall receive one copy, while the other one shall remain in our records.
§ 11 Invoicing, mode of payment
- Invoices shall be submitted after the delivery in three copies, with the statutory sales tax (VAT) being shown separately. In the case of monthly deliveries, the invoice shall be submitted by the third working day of the month following the delivery. The order number shall be stated on each invoice.
- The agreed prices shall not become due for payment, before the relevant invoice that must conform to the statutory requirements has been received. We shall settle the invoices net by the 20th day of the following month, unless something else has been agreed, and provided a proper and verifiable invoice has been submitted by the date and provided the delivery has been complete and free from defects.
- In the event of early deliveries, the amounts invoiced shall not become due any earlier.
- Unless something else has been agreed in writing, we shall deduct a 2 % discount from the agreed purchase price when paying cash or when paying by bank transfer within 30 days after receipt of the invoice.
- We shall be entitled to the right of setoff and the right of retention to the extent stipulated by law.
§ 12 Prohibition of assignment/setoff
- The supplier must, neither wholly nor partly, assign his contractual obligations or his contractual rights to any third party without our explicit written approval. A breach of this obligation by the sup-plier shall entitle us to withdraw from the contract, either wholly or partly, and to claim damages.
- The supplier can only set off counterclaims or exercise a right of retention, if and to the extent his counterclaim is undisputed or has been legally established.
§ 13 Special obligations of the supplier
- The proper performance of the contract presupposes that all items to be delivered and services to be rendered conform to the state-of-the-art, to the applicable legal provisions as well as to the regulations and directives of authorities and trade and professional associations. The deliveries and services shall especially conform to the EU Regulation on Shipments of Waste (1013/2006/EC) and to other applicable legal regulations. The relevant certificates shall be handed over with the delivery, if mandatory or customary. The supplier shall ensure the agreed varietal purity and that all statutory obligations to make declarations and to produce supporting documents in this respect are met and monitored. The supplier shall be fully responsible for proving the origin of the goods as well as for any possible foreign particles and contaminants contained in them, irrespective of, whether admissible under the waste laws or not.
- The goods to be delivered must also be free from radioactively contaminated substances. If any contaminated fractions are still identified, all costs incurred by such delivery contrary to the agreement, especially the loading costs, also additional ones, the analysis costs, the costs of separating, securing and storing these materials, possible fines as well as other consequential costs, shall be charged to the supplier. Apart from that, the supplier shall also be liable for any resulting personal injuries and property damage. The supplier shall take back the contaminated materials, if permitted by law.
§ 14 No explosives
- All mixed metal fractions shall be delivered free from explosives, free from items suspected to con-tain explosives, free from closed hollow containers and free from other items affecting proper operations. Mixed metal fractions with explosives, with items suspected to contain explosives, with closed hollow containers and with other items affecting proper operations must be taken back by the supplier.
- The supplier represents and warrants by concluding the contract that the mixed metal fractions to be delivered by him have been duly examined and analyzed to identify the existence of explosives, items suspected to contain explosives, closed hollow containers and other items affecting proper operations and that the scrap delivered by him is free from explosives, free from items suspected to contain explosives, free from closed hollow containers and free from other items affecting proper operations.
- The supplier shall be fully liable for any loss or damage we suffer from the inclusion of the materials in deliveries to us.
§ 15 Duties of inspection and to give notice of defects
- We shall report obvious defects in the delivery to the supplier in writing and without undue delay, as soon as such defects have been established in the normal course of business, but not later than 10 working days after the delivery has been received at its place of destination. The same shall apply to hidden defects once they have been identified. In the case of chain-of-delivery business, the notification period for defects shall not commence before we have received a proper written notice of defect from the customer.
- The supplier shall reimburse us for the inspection costs and for the complaint about the defective delivery. He shall also bear the cost and risk of returning the defective items delivered.
- Signing a delivery note cannot be construed as recognition that the delivery or service conforms to the contract.
§ 16 Warranty
- We shall be entitled to the full statutory claims for defects and, especially, to demand from the supplier, at our discretion, the rectification of defects or a replacement delivery. In such case, the supplier shall bear the costs required to rectify the defects or to make a replacement delivery. This shall not affect our right to claim damages apart from the service, and/or the service.
- We shall be entitled in all and any cases of a defective service rendered by the supplier, to conduct the subsequent performance ourselves, or have it conducted, at the supplier’s expense, after a grace period set to the contracting party for the rectification of the defect has unsuccessfully expired, although we are under no obligation to do so. We shall also be entitled, although not be under any such obligation, to procure the replacement of the defective item(s) elsewhere at the supplier’s expense.
- The period of limitation for our claims on the ground of a defective delivery shall amount to 36 months, irrespective of the legal reason. This restriction shall not affect longer statutory periods of limitation.
- The expiry of the period of limitation for claims for defects shall be suspended from the moment the defect has been reported until the supplier’s service can be used without any defects. The warranty period for repaired or replaced parts shall commence at the moment, when they can be used.
§ 17 Transfer of risk
The risk of accidental loss of the goods shall pass to us, when the receipt of the goods at the agreed place of destination has been confirmed. In the case of contracts for work or contracts for labor and materials, the risk shall pass with the completion of the entire contract and its acceptance by us, at the earliest.
§ 18 Drawings, plans
- We shall reserve the right of ownership and the copyright in all drawings, plans and other documents we have provided to the supplier so as to enable him to perform the purchase order. These documents must not be used for any other purposes without our written approval and, especially, not be made available to third parties. They shall be returned to us together with the offers or after the purchase order has been executed, without being specifically demanded to do so. The supplier shall have no right of retention in this respect.
- The drawings, plans and other documents belonging to the purchase order shall be binding on the supplier, although it does not release him from the duty to examine these documents before per-forming his contractually agreed services to identify possible shortcomings, discrepancies or faults. Any such shortcomings, discrepancies or faults shall be immediately reported to us in writing. In the event of violating the above duties, the supplier cannot invoke existing shortcomings, discrepancies or faults. This shall not affect any further claims we can assert in this respect.
§ 19 Governing law
All legal relations between the supplier and us shall be governed by German law, with the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as the reference norms of private international law being excluded.
§ 20 Place of performance and place of jurisdiction
- The place of performance for the deliveries shall be the shipping address; for the payments our registered office.
- The place of jurisdiction for all and any disputes between the contracting parties arising from the contractual relationship shall be 90451 Nuremberg. However, we can also bring legal action against the supplier at his general place of jurisdiction.
B&A Metallaufbereitungs-GmbH – General Terms and Conditions of Purchase (AEB), December 2012