General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
Page 1 of 8
General Terms and Conditions
of the company
cometal Metallhalbzeuge (semifinished metal products) GmbH
Content:
§ 1 General stipulations - scope ..................................................................................... 2
§ 2 Conclusion of the agreement, placing of orders........................................................ 2
§ 3 Delivery period, shipment, passing of risk, acceptance............................................. 3
§ 4 Reservation of title.................................................................................................... 4
§ 5 Remuneration........................................................................................................... 5
§ 6 Warranty................................................................................................................... 5
§ 7 Limitation on liability ................................................................................................. 6
§ 8 Specific aspects of purchases made by us ............................................................... 7
§ 9 Data protection ......................................................................................................... 8
§ 10 Final clauses ............................................................................................................ 8
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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§ 1 General stipulations, scope
(1) The terms and conditions shall apply to all present and future business relations
with entrepeneurs. Entrepeneurs for the purpose of the Terms and Conditions are
individual persons or legal entities or incorporated partnerships with whom business
relations are established and who carry out transactions in the pursuit of their professions
in a trade or business or working in a self-employed capacity.
(2) Any deviant, conflicting or supplementary General Terms and Conditions shall not
be part of the agreement, even to the event that there is knowledge of them, unless
it is expressly agreed in writing that they shall be effective.
§ 2 Conclusion of the agreement, placing of orders
(1) Our quotes are non-binding. Any alterations or amendments require confirmation in
writing to be effective. We have the right to award subcontracts.
(2) By ordering goods/services, the customer bindingly agrees to purchase the ordered
goods or to award a purchase order. We have the right to accept the contract offer
underlying the order within two weeks after having received it. We may state our
acceptance either in writing or by delivery of the goods/services to the customer. In
the order confirmation the services or goods to be delivered are specified and the
estimated delivery date is given.
(3) The conclusion of the agreement shall take place subject to the correct and timely
supply to ourselves by our suppliers. This shall only be effective in the event that
we are not responsible for the failure to deliver, especially when a congruent hedging
transaction with our supplier has been concluded. The customer shall be informed
without delay of the non-availability of the goods/service. The consideration
shall be repaid without delay.
(4) We reserve property rights and copyright of any information, especially illustrations,
drawings, calculations and other documents which are passed on to our customers
or suppliers; this information must not be made accessible to third parties. This
shall apply especially to any such documents in writing and information which is
marked as "confidential"; before these are passed on, the customer/supplier must
obtain our express written consent.
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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§ 3 Delivery period, shipment, passing of risk, acceptance
(1) The delivery period shall result from the agreements between the contracting parties.
We may comply with the delivery period provided that the contracting parties
have clarified all commercial and technical questions and the customer has fulfilled
all of his contractual obligations, such as providing the required official certificates
or permits from authorities or has fulfilled the obligation to render an advance payment.
Where this is not the case, the delivery period will be extended accordingly.
This shall not apply insofar as we are responsible for the delay.
(2) Packaging shall take place according to standard technical aspects and normal
trade practice. All packaging costs shall be borne by the customer. Packaging material
shall be charged at cost and will not be taken back. The customer shall bear
all our costs arising from the dispatch of the goods. Provided the customer wishes,
we will conclude a transport insurance commissioned by the customer, charging the
original cost. We shall not assume liability for the lowest priced carriage nor for the
transport period.
(3) The delivery period is observed if and when the object of the contract has left the
factory or the storage location by expiry of the period. As far as an acceptance has
to take place, the date of acceptance shall prevail - except in the event of legitimate
refusal of acceptance.
(4) The risk shall be passed to the customer as soon as the goods have left the factory
or the storage location, even in the event that partial deliveries take place or that we
have taken over other services, such as dispatch costs or delivery. To the extent
that acceptance is required, this shall be authoritative for the passing of risk. It must
be carried out by the deadline of delivery without delay, alternatively after the supplier's
report on readiness for acceptance. The customer must not refuse acceptance
in the event of a minor defect.
(5) Where the dispatch or acceptance of the object of the contract is delayed for reasons
or the customer culpably violates other obligations to cooperate, we shall be
authorized to claim damages, including any contingent additional expenses that we
incur from the violation. For mere storage costs we charge a lump sum of € 5.00
per day and per sqm of area. In this event the risk of an accidental loss or accidental
deterioration of the object is passed to the customer at the moment he becomes
in default of acceptance.
(6) Where we or our suppliers are hindered in fulfilling the contract in due time due to
disruptions in acquisition, production or delivery (e.g. energy scarcity, traffic congestion,
strike, lockout, force majeure, etc.), the delivery period will be extended accordingly.
(7) The customer may withdraw from the contract without deadline where the complete
services are impossible for us to render before the passing of risk. Furthermore the
customer may withdraw from the contract where a part of the delivery for an order
becomes impossible and where he has a legitimate interest in refusing the partial
delivery. Where this is not the case, the customer must pay the contractual price
arising from the partial delivery. The same shall apply in the event of the supplier's
incapacity. Where the impossibility or the incapacity occurs during the default of acceptance
or where the customer is responsible for the circumstances alone or predominantly
alone, he will be obliged to the consideration.
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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(8) Where we are delayed and a damage accrues from this to the customer, he shall
be entitled to claim compensation for damage caused by delay. It shall be 0.5 % per
full week of delay, but altogether 5 % of the value of that part of the total delivery
which due to the delay cannot be used in time or not according to contract. Where
the customer sets for us - in consideration of legal exceptional cases - an appropriate
time limit after maturity and where this time limit is not observed, the customer
shall be entitled to withdraw from the contract.
(9) We shall be entitled to carry out partial deliveries within a reasonable scope.
§ 4 Reservation of title
(1) Until full payment of all receivables arising from or having arisen from the business
relationship with the customer - regardless of their nature and for whatever legal
grounds - we reserve the right to ownership of the delivered goods and services. In
the event of behaviour in breach of contract of the customer, especially delay in
payment, we shall be entitled to exercise our lawful rights and to take back the
goods. After taking back the goods, these can be realized and the proceeds can be
credited to the customer.
(2) Where the retained goods have been processed or combined with other items not
belonging to us, we acquire a co-ownership in the value of the goods delivered to
us, proportionally to that of the other material. The customer shall keep the new
item for us free of charge. The customer shall transfer property and/or co-ownership
rights in the mixed stock or the new object to us with immediate effect.
(3) The customer may process or sell the retained goods in the framework of proper
business operations, as long as he is not delinquent. Any exceptional dispositions
such as pledging, transfer by way of security and any other assignment are unadmissible.
(4) In the event of attachments of property of judgment debtor by court authorities or
other interventions the customer must inform us in writing without delay. For the
event of a law suit in accordance with § 771 of the German Code of Civil Procedure
the customer shall have to reimburse our court costs and extra-judicial costs, as far
as these are not reimbursed by third parties.
(5) Claims arising from resale or another legal ground (insurance/tort) with regard to
the retained goods shall be assigned to us by the customer for security purposes
with immediate effect. The customer shall be granted revocable authorization to collect
receivables assigned to us in his own name. The direct debit authorization will
only be revoked where the customer is delinquent, where a petition for opening insolvency
procedures has been filed or where payment has been suspended. On
request the customer must notify his agreement partner of the assignment in writing,
provide all and any information and documents to us, hand over documents as
well as pay bills of exchange. Furthermore the customer shall have to make any retained
goods which are still in his possession accessible to us and to send us a detailed
listing of the goods, to sort out and hand over the goods.
(6) Where the realizable value of the retained securities exceeds the receivable to be
secured by 15 %, we will release securities of our choice on the customer's request.
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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The customer shall bear burden of proof that the retained securities exceed the receivable
by 15 %.
(7) The customer must keep the delivery item in proper condition in the course of reservation
of title and have all necessary or scheduled maintenance and repair done
without delay.
§ 5 Remuneration
(1) The price offered shall be binding. Quotations do not include value added tax and
are valid ex storage location without packaging. Where taxes, customs duties,
freight rates, fees or expenses are increased or introduced between the conclusion
and fulfillment of the contract, we shall be entitled to increase the purchase price
accordingly, provided that 4 months have passed since the conclusion of the
agreement or the agreement partner is a merchant. Prices shall be valid for four
months from the day of the conclusion of the agreement. Where the contracting
parties have agreed upon a delivery period of over four months or in the event of
continuous obligation lasting for more than four months, we shall be entitled to pass
on to the customer the intermittent cost increases incurred for procurement/delivery,
including cost increases dependent on amendment to laws (e.g. increase of VAT).
(2) We shall be entitled to require an appropriate payment on account, unless the receivables
are otherwise secured. This shall be effective only for coherent partial
performances.
(3) The customer shall undertake to pay the purchase price within 30 days after having
received the goods. After the expiry of this period the customer is delinquent. During
the period of default, the customer shall have to pay interest on the debt in the
amount of 8 % above the base rate. We reserve the right to supply proof of and
claim a higher damage caused by delay.
(4) The customer shall be entitled to claim a set-off only where such counterclaims
have been legally established or recognized by us. The customer may only exercise
his right of retention where his counterclaims are based on the same contractual relationship.
(5) Where the customer is delinquent, we shall be entitled to deny further delivery to
the customer even in the event that corresponding delivery agreements have already
been concluded.
§ 6 Warranty
(1) We shall provide a warranty for defects initially through our choice of rectification of
defects or compensation delivery/re-production.
(2) For material supplied by the customer or material procured due to specifications
determined by the customer as well as for constructions determined by the customer,
we do not provide a warranty.
(3) In the case that the supplementary performance fails, the customer may in general
require a reduction of remuneration or a rescission of the contract (revocation), acGeneral
Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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cording to his own preference. However, in the event of only negligible nonconformity
with the contract, the customer does not have a right of rescission.
(4) Claims of the customer based on defects require that the customer has duly fulfilled
his obligations to check the goods for defects and make a complaint about these in
accordance with § 377 of the German Commercial Code. The customer is solely
responsible for providing evidence that his claim is justified, especially with regard
to the defect itself, but also to the time the defect was detected and he is solely responsible
for making the claim in due time.
(5) Apart from choosing to withdraw from the contract after failed supplementary performance
of contract due to a defect of title or defect as to quality the customer
does not have the right to claims for damages due to that defect. Where the customer
chooses claims for damages after failed supplementary performance of contract,
the goods shall remain with the customer should this be a reasonable requirement.
Compensation for loss suffered shall be limited to the difference between
the purchase price and the value of the defective item. This shall not apply
where we have fraudulently caused the breach of contract.
(6) The warranty period shall be one year ex delivery of the goods / ex acceptance of
the completed work.
(7) With regard to the condition of the goods, generally only the manufacturer's product
specification shall be considered agreed upon. Aside from that, any public comments,
targeting or advertisement from the manufacturer do not represent a description
of the goods according to the contract.
(8) The customer shall not receive warranties in the legal sense from us. Warranties of
the manufacturer shall remain unaffected by this.
(9) Rights of recourse of an entrepeneur (§§ 478, 479 of the German Civil Code) shall
remain unaffected by the preceding sections, insofar as no requirements to make a
complaint about defects are infringed, especially according to section 3 of this stipulation.
§ 7 Limitation on liability
(1) In the event of slightly negligent violation of duties, our liability shall be limited to a
predictable actual average damage typical for this type of contract and depending
on the type of the goods/the work. This shall be apply also to slightly negligent violation
of duties by our legal representatives or vicarious agents. With respect to entrepeneurs
we shall not be liable for slightly negligent violation of non-essential contractual
obligations.
(2) The foregoing limitations on liability shall not relate to the agreement partner's
claims arising from product liability. Furthermore limitations on liability shall not apply
where the agreement partner suffers bodily and health injuries - for which we
are responsible - or loses life.
(3) The agreement partner's claims for damages due to a defect shall come under the
statute of limitations one year after ex delivery of the goods. This shall not apply
where we are culpable of a grossly negligent act, as well as where the agreement
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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partner suffers bodily and health injuries - for which we are responsible - or loses
life.
§ 8 Specific aspects of purchases made by us
(1) In the event of a delay in delivery or an ultimate failure to deliver on the supplier's
part, the same shall have to pay a lump sum compensation to us in the amount of
20 % of the cost of the goods for which delivery has been delayed or for which
there is ultimately a failure to deliver. In the case that we provide proof of a higher
damage or the supplier proves a lower damage, the compensation payment for loss
suffered shall be increased or decreased accordingly.
(2) Where the supplier sets for us an appropriate period of grace including a warning of
refusal, after we have fallen into arrears, he shall be entitled to withdraw from the
agreement upon expiry of this additional period, should it be unsuccessful; claims
for damages due to a failure to comply with the agreement in the amount of the estimated
damage shall be due to the supplier only in the event that the delay is
based on intent or gross negligence; furthermore the liability for claims for damages
shall be limited to 50 % of the incurred damage. However, this limitation on liability
shall not be effective where a commercial transaction for delivery by a fixed date
has been agreed upon.
(3) We shall undertake to examine the goods within an appropriate period; the claim is
in due time provided that it is received by the supplier within a period of 2 weeks.
(4) Warranty claims shall be due to us without restrictions.
(5) We shall pay the purchase price within 14 days upon receipt and from the day of
delivery, with a 3 % discount or the net sum within 30 days, unless otherwise provided
in writing.
(6) Where the supplier is responsible for product damage, he shall be obligated to indemnify
us from any third parties' claims for damages on first demand insofar as the
cause is found in his area of control or organization and he is liable to third parties.
Within this scope the supplier shall be obligated to reimburse possible expenses
arising from or in connection with a product recall carried out by us. We will inform
the supplier - insofar as possible and reasonable - on the content and scope of the
product recall measures which are to be carried out and will give him the opportunity
to state his position.
(7) The supplier shall guarantee that no third parties' rights are infringed in connection
with his delivery. Where a third party therefore asserts a claim against us, the supplier
shall be obligated to indemnify us on first demand from these claims; we are
not entitled to make any agreements with the third party, especially to effect a settlement,
without the supplier's consent. This obligation of the supplier to indemnify
us relates to any expenses necessarily incurring to us which arise from or are in
connection with the assertion of a claim through a third party.
(8) In other respects, the other provisions of these Terms and Conditions shall be effective
with respect to purchases made by us. This shall be effective referring to §
10 (1), including the stipulation that the provisions of the UN Sales Convention shall
apply.
General Terms and Conditions of cometal Metallhalbzeuge (semifinished metal products)
GmbH
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§ 9 Data protection
The agreement partner shall agree that we may process data received in connection
with the business relationship, in accordance with the German Data Protection
Act, regardless of whether they come from the agreement partner himself or from
third parties.
§ 10 Final clauses
(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN
Sales Convention shall not apply.
(2) Provided that the agreement partner is a merchant, a legal entity under public law
or as defined by the public seperate estate, our registered office shall be the place
of fulfilment and legal venue for all disputes, insofar as the confirmation of the order
does not provide otherwise; however we shall be entitled to bring an action against
our agreement partner in his venue.
(3) Should individual stipulations of the agreement with the customer become fully or
partly ineffective, including the present General Terms and Conditions, the effectiveness
of the other stipulations shall remain unaffected by this. The partly or fully
ineffective provision shall be substituted by a provision approching with regard to
economic success as closely as possible the one which has become ineffective.

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