General Terms and Conditions of Delivery of International Metal Service Germany

I – Scope of Application, Protective Clause

1-     These general terms and conditions of delivery and payment (hereinafter referred to as “Terms and Conditions of Delivery”) apply to our entire business relationship with companies as defined in Section 14 BGB (German Civil Code), legal entities under public law or special funds under public law (“Buyer”), in particular for contracts regarding the sale and/or delivery of movable goods.

2-     Our Terms and Conditions of Delivery apply exclusively. We shall not accept any conflicting, deviating or supplementary terms and conditions of business of the Buyer unless we expressly agree to their validity in writing.

 

II. Reservation of, inter alia, Copyright and Intellectual Property Rights; Confidentiality

We reserve all ownership rights, copyright and intellectual property rights in all materials and other items we put at the disposal of the Buyer, in particular catalogues, offers, price lists, quotations, plans, drawings, illustrations, calculations, product descriptions and product specifications, manuals, samples, models and other physical and/or electronic items, documents and information.

 

III. Conclusion of Contract

1-     Our offers are provided without obligation and are non-binding unless they are expressly designated as binding or if they contain a certain acceptance deadline. The order placed by the Buyer shall be regarded as a legally binding offer to conclude a contract. We accept orders by providing a written declaration (e.g. by means of our order confirmation or only upon our notice of readiness to ship or collect).

2-     Any agreements made that deviate from our Terms and Conditions shall be reduced to writing for their effectiveness.

3-     No guarantees of any kind are given save for the guarantees expressly agreed contractually.

 

IV. Prices and Payment Terms

1-     Unless agreed to otherwise, the respective net prices excluding statutory value added tax, if applicable, agreed at the time of contract conclusion shall apply. Unless otherwise agreed, “EXW Incoterms (2020)” (from the warehouse that we deliver the respective goods from) apply to all our deliveries excluding insurance, transport and packaging.

2-     If prices are not agreed, the current listed price applicable at the time of delivery (excluding statutory value added tax) shall be invoiced. The quantity in units, metres or kilograms as determined by the delivering plant or our warehouse shall be decisive for the calculation of the price.

3-     For alloy, inflation and scrap surcharges, the surcharges published by the delivering plants on the day of delivery shall apply.

4-     Our invoices are payable by the 15th of the month following the delivery without any deduction whatsoever and in EUR (€). The Buyer shall be in default after expiry of the payment deadline without further notification, in particular without a reminder being issued.

5-     We are entitled to refuse any outstanding performance within a contractual relationship if, after contract conclusion, it becomes evident (e.g. by means of an application for insolvency) that our entitlement to payment from the contractual relationship is at risk due to the Buyer’s lack of performance. Our right to refuse performance shall not apply if payment has been made or collateral is provided. We are entitled to determine an appropriate deadline for the Buyer prior to which the Buyer shall make payment or provide collateral, at the Buyer’s discretion, concurrently with our performance. If the deadline expires without payment having been received, we may withdraw from the contract.

 

V. Reservation of Title

1-     The goods we deliver to the Buyer (including the items which take their place in accordance with the following provisions and which are also covered by the retention of title) shall remain our property until full payment of all claims arising from the business relationship is received (“Goods Subject to Reservation of Title”).

2-     The Buyer shall store the Goods Subject to Reservation of Title at no charge to us. The Buyer shall treat the goods with due care and adequately insure them against fire, water and theft damages at their original value.

3-     The Buyer is not entitled to pledge or assign as security the Goods Subject to Reservation of Title. If the Goods Subject to Reservation of Title are attached by third parties or in the event of other actions thereupon by third parties, the Buyer is obliged to indicate to the third party that they are our property and notify us thereof immediately in writing to enable us to defend our ownership rights.

4-     The Buyer is entitled to use, process, transform, combine, mix and/or sell the Goods Subject to Reservation of Title in the ordinary course of business as long as no application for the institution of insolvency proceedings over the Buyer’s assets has been filed and as long as there is no lack of performance on the part of the Buyer.

5-     If the Goods Subject to Reservation of Title are processed or transformed by the Buyer (Section 950 BGB), this shall always be done for us as the manufacturer in our name and for our account. We shall acquire ownership in the newly created item directly or – if the processing or transformation is carried out using materials from several owners – co-ownership (fractional ownership) in the Goods Subject to Reservation of Title in the ratio of their value (gross invoice value) to the value of the other processed/transformed materials at the time of processing/transformation.

6-     The Buyer already at this stage assigns to us in full the Buyer’s payment claims against its buyers arising from a resale of the Goods Subject to Reservation of Title and the Buyer’s claims in respect of the Goods Subject to Reservation of Title arising against its buyers or third parties for any other legal grounds (in particular claims arising due to tortious liability and entitlements to insurance payments), including all demands relating to the current account balance. In the event of our co-ownership in the Goods Subject to Reservation of Title, the above shall apply on a pro rata basis in accordance with our co-ownership share. We herewith accept this assignment.

7-     We herewith revocably authorise the Buyer to call in the claims assigned to us on our behalf in its own name. This shall not affect our right to call in these claims ourselves. However, we shall not call these in ourselves and we shall not revoke the call-in authorisation as long as the Buyer properly meets its payment obligations to us (in particular does not default on its payments) as long as an application for the institution of insolvency proceedings over the assets of the Buyer has not been filed and as long as there is no lack of performance on the part of the Buyer. If any of the aforementioned events arises, we may demand that the Buyer notify us of the assigned claims and the respective debtors, notify the respective debtors of the assignment and hand over to us all the documents and provide all the information required for asserting the claims.

8-     Should we withdraw from the contract on account of the Buyer’s conduct in breach of the contract in accordance with the legal regulations, we shall be entitled to demand that the Buyer surrender to us the Goods Subject to Reservation of Title. Our withdrawal declaration shall be made at the latest with our request for surrender. The transport costs incurred due to the withdrawal shall be borne by the Buyer.

 

VI. Delivery Periods/Dates

1-     The delivery periods/dates envisaged by us for deliveries and services (“Delivery Periods”) shall be regarded as being only approximate unless a fixed delivery period has been expressly promised or agreed. Our Delivery Periods are subject to correct and timely delivery by our suppliers.

2-     For a delivery of goods, a Delivery Period is adhered to when our notice of readiness to collect is received by the Buyer by the end of the Delivery Period, or – if shipping is agreed – we have handed the goods to the transport company or would have been able to hand the goods over in the case of their non-appearance or non-timely appearance.

3-     If it becomes evident to us that a Delivery Period cannot be adhered to, we shall endeavour to immediately notify the Buyer thereof and communicate to the Buyer an expected new Delivery Period.

4-     We shall not be liable for impossibility or delay to the extent such is based on force majeure or other events not foreseeable at the time of contract conclusion that are beyond our control (e.g. operational disruptions of any kind, fire, natural disasters, weather, flooding, war, riots, terrorism, transport delays, strikes, lawful lockouts, lack of staff, energy or raw materials, delays in the issue of any official approvals that may be required, actions taken by the authorities or the state, in particular embargoes or sanctions). It is irrelevant whether the circumstances arise at us or a sub-supplier.

5-     In the case of events under paragraph , the Delivery Periods shall extend automatically by the duration of the event plus an appropriate ramp-up period. Furthermore, we are entitled to withdraw from the contract if such events make performance significantly more difficult or impossible for us and are not merely of a temporary nature. If the acceptance of the performance is no longer reasonable for the Buyer due to the delay caused by such an event, the Buyer can also withdraw from the contract by means of an immediate written declaration. Unreasonableness shall be assumed if the expected new Delivery Period is more than 30 calendar days after the original Delivery Period or if the Delivery Period cannot be foreseen.

 

VII. Shipment

1-     Goods are delivered without packaging unless agreed to otherwise or if certain packaging is industry-standard. The packaging (boxes, containers, palettes, etc) shall be returned to us carriage paid.

2-     In order to comply with the requirements of the German Packaging Act (Verpackungsgesetz), any packaging shall be taken back at our warehouse within an appropriate period of time, separated according to type as far as possible. We shall not be responsible for the Buyer’s costs of return transport or for any disposal of packaging by the Buyer directly.

3-     Goods notified as ready for shipment by the agreed date must be called off immediately. If the Buyer delays acceptance, fails to carry out a required cooperation obligation, or if our performance is delayed for other reasons that the Buyer is responsible for, we are entitled to invoice compensation for any losses incurred thereby including any additional expenses (e.g. warehousing costs).

 

VIII. Handover

Risk, including the risk of accidental deterioration, shall pass to the Buyer upon handover of the goods to the forwarding agent or carrier. This also applies to FOB and CIF shipments.

 

IX. Tolerances and Other Deviations, Excess Quantities and Shortfalls

1-     Deviations in dimensions, weight and quality are permitted in accordance with the European Standards (EN) for steel and iron or commercial practice.

2-     Weights shall be determined by the weighmen at our delivering plants. Submission of the weighing slip shall constitute proof. In all cases, the total weight is decisive for the calculation. No guarantee is given for the number of units and/or bundles stated in the invoice as long as the stated total weight is in line with the contractually agreed total weight.

3-     Delivery of excess quantities or shortfalls of up to 10% of the scope of supply shall be deemed as agreed.

 

X. Defects, Delivery of Goods not as Contractually Agreed

1-     If acceptance is agreed, any objections to defects that could have been detected during the agreed type of acceptance, or that would have at least had to be detected in the ordinary course of business, are excluded. The same applies if the Buyer does not perform an agreed acceptance or does not do so in time or incompletely. We cannot assume any responsibility if acceptance is performed by a third party (e.g. Germanischer Lloyd or TÜV) or if such is industry-standard, in particular not for its timeliness.

2-     If acceptance is not expressly agreed, the Buyer is obliged to examine the delivered goods immediately upon delivery to the Buyer or have an examination performed by a third party appointed by the Buyer and to notify us of any defects in writing. Sections 377 and 381 HGB (German Commercial Code) and, in supplement, the provisions in this paragraph, apply in this regard. To save time, the written notification may be sent by fax or e-mail. In order for the notice to be deemed as having been sent without delay, it must be sent no later than within five (5) working days after delivery (Section 377 (1) HGB) or – if the defect could not be identified during the examination (Section 377 (2) and (3) HGB) – no later than within three (3) working days after discovery of the defect. If, with normal use of the goods, it is proven that the latter defect could have been identified at an earlier point in time than that of the discovery, this earlier point in time shall be decisive for the start of the aforementioned notification period. The examination of the goods after delivery may not be limited to external appearances and the shipping documents, but must also include an appropriate examination of quality and functionality, at least with the examination of appropriate random samples. If the Buyer fails to properly examine the goods and/or notify us of any defects timeously, our guarantee obligation and other liability for the defects in question are excluded.

3-     Upon our request, any disputed goods shall first be returned to us without delay at the cost of the Buyer. In the event of a justified complaint, i.e. if the goods are defective, we shall reimburse the Buyer the costs of the most economical shipping route; this shall not apply if the costs increase because the goods are located in a place other than that of their intended use.

4-     The Buyer shall give us the adequate time required and opportunity to verify complaints and other objections as well as for subsequent performance. This also includes making the disputed goods available to us for the purposes of examination or – if they are permanently installed or similarly fixed on site – providing access to them.

5-     If the goods correspond to the contractually agreed quality but nevertheless do not meet the Buyer’s expectations, this shall not constitute a defect. No liability is accepted for the suitability of the purchased item “for normal use” as well as for its “customary quality”.

6-     If notification of a defect is received timeously, the Buyer is entitled to the statutory guarantee rights with the proviso that these expire within one year.

 

XI. Liability

1-     We accept liability in accordance with the legal regulations in the case of intent, gross negligence, acts of culpable negligence causing death, personal injury or harm to health, for the assumption of a guarantee or a procurement risk and in the case of liability under the German Product Liability Act (Produkthaftungsgesetz).

2-     In addition, we accept liability in the event of a negligent violation of material contractual obligations, meaning those obligations the performance of which enables the proper performance of the contract at all and on compliance with which the Buyer regularly relies and may rely on. In this case, our liability is limited to the amount of the damages typical for this type of contract foreseeable at the time of contract conclusion. Any further liability is excluded.

3-     The aforementioned provisions also apply if damages are caused by our executive bodies, legal representatives, employees or other vicarious agents.

4-      If our liability is excluded or limited in accordance with the aforementioned provisions, this shall also apply to the personal liability of our executive bodies, legal representatives, employees and other vicarious agents.

5-     Furthermore, we shall not accept liability in the event of delay or non-performance of our deliveries and services if this delay was caused by events over which we were unable to exert any other influence by making reasonable efforts. This applies in particular in cases of force majeure (e.g. war, actions taken by the authorities, in particular embargoes or sanctions, as well as operational disruptions not caused by our fault) and other events or circumstances beyond our control which we cannot prevent despite taking reasonable care. It is irrelevant whether the circumstances arise at us or a sub-supplier. We shall notify the Buyer immediately if such an event occurs and take appropriate reasonable measures to minimise the period of the event and its effects. If, as a result of the aforementioned events, the performance of the contract becomes unreasonable for one of the contracting parties, that party may withdraw from the contract by means of an immediate declaration in text form.

 

XII. Place of Jurisdiction

If the contractual partner is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), an entrepreneur within the meaning of Section 14 BGB, or a legal entity under public law or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising from or in connection with these General Terms and Conditions of Delivery and the contractual relationship with us is our registered office in Düsseldorf.

 

XIII. Miscellaneous

1-     Partial deliveries are permitted.

2-     In the case of exports, we shall not assume any liability if third-party intellectual property rights are violated by our products.

3-     The law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) applies.

4-     Any claims against us, with the exception of monetary claims, may only be assigned to third parties with our written consent. Any set-off or assertion of a right of retention with counterclaims shall be excluded, unless the Buyer’s claims asserted for set-off or retention are undisputed or have been finally determined by a court of law.

5-     Insofar as provisions of these Terms and Conditions of Delivery do not become part of the contract or are void or ineffective, the contractual provisions shall be governed by the statutory provisions (Section 306 (2) BGB). However, if no suitable statutory provision for filling the gap is available and no supplementary interpretation of the contract takes priority or is possible, the parties shall agree to an effective provision that comes as close as economically possible to the original provision to replace the provision not becoming part of the contract or the void or ineffective provision.