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WOLFRAM INDUSTRIE
Traunstein Tel. +49 (0) 861 9879-0

BAYERISCHE METALLWERKE GMBH
Dachau Tel. +49 (0) 8131 703-0

General Business Terms and Conditions

Section 1: Scope, general information

(1) These general business terms and conditions apply exclusively in relationships with businesspersons pursuant to Section 14 of the German Civil Code (BGB), legal persons under public law or special funds under public law pursuant to Section 310, Paragraph 1 BGB but not in relationships with consumers. The following terms and conditions apply exclusively for all contracts concluded between you and us – including future contracts – for our products and services, unless anything to the contrary is agreed in writing. Your deviating, conflicting or supplementary general business terms and conditions only become part of the contract when and to the extent we expressly consent to their application. This consent requirement applies in any case, for example also when we make a delivery to you without reservation even though we are aware of your general business terms and conditions.

(2) These business terms and conditions apply in particular to contracts for the sale and/or delivery of moveable goods, regardless of whether we manufacture the goods ourselves or buy them from suppliers (Sections 433, 651 BGB). However, they also apply to contracts for work and labour. Therefore “goods” in the following also denotes the factory.

(3) Legally relevant declarations and notifications you need to submit to us after the contract is concluded (for instance setting deadlines, notices of defects, declaration of withdrawal or abatement) must be in written form in order to be effective. Sales representatives, brokers or agents are not authorised to take delivery of such declarations and notifications.

Section 2: Offer and contract conclusion

(1) All offers are subject to change without notice and non-binding. This also applies when we have provided you with catalogues, technical documentation (such as drawings, plans, calculations, references to DIN standards), other product descriptions or documents with reservation of our proprietary rights and copyright. Offers and our order confirmations are always issued subject to a positive credit check.

(2) Your order for goods is deemed to be a binding contract offer. Unless otherwise specified in the order, we have the right to accept this contract offer within two weeks after we receive it.

(3) Acceptance can be declared in text or written form (for instance with an order confirmation) or by delivering the goods.

(4) Verbal agreements, assurances or similar only become binding after they are confirmed by us in writing.

(5) Technical changes and changes in form, colour, material and/or weight are reserved to the extent they are reasonable.

(6) We reserve our proprietary rights and copyright to our documents such as illustrations, drawings and calculations provided to you. They may not be made accessible to third parties without express written consent, and shall be used exclusively for performance of the concrete contractual relationship. No later than upon performance and at any time by our request, they along with all copies that may have been made have to be returned unasked. You have no right of retention.

Section 3: Delivery terms and dates

(1) The term of delivery is individually agreed or specified by us when the order is accepted.

(2) Terms of delivery begin with our technical clarification, should this be required, otherwise on the date of our order confirmation, but not before documents, permits and approvals to be obtained by you and an agreed advance payment, if applicable, are submitted to us.

(3) If you request changes or amendments of more than a minor extent, the terms and deadlines based on the original object of the contract lose their validity.

(4) We have the right to transfer performance to subcontractors. You will be informed of this on request. If you have justified doubts about the suitability or reliability of a subcontractor, you may object to the transfer to this subcontractor.

(5) With contracts for work and labour, we have the right to reject subsequent changes to the scope of work without giving reasons, unless the change is for the purpose of appropriate execution, our operation is set up for it and the change only constitutes a minor alteration of the design.

(6) Insofar as we are unable to meet binding terms of delivery for reasons beyond our control (impossibility of performance), we shall inform you promptly and disclose the expected new delivery date at the same time. If performance is not possible within the new term of delivery either, we have the right to withdraw from the contract in whole or in part; consideration already received from you shall be returned to you promptly. Impossibility of performance in this sense includes in particular the failure of our suppliers to deliver to us on time, when we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not subject to a procurement obligation in a particular case.

(7) Default in delivery on our part is determined by the applicable legal regulations. However, a reminder from you is required in any case. In case of default in delivery on our part, you can demand liquidated damages for damage caused by delay. The liquidated damages are calculated at the rate of 0.5% of the net price (delivery value) for each full calendar week of the delay, with a total of no more than 5% of the delivery value of the goods that are delivered late. We reserve the right to provide proof that you did not incur any damages or significantly lower damages than the liquidated damages.

(8) Your rights pursuant to Section 8 of these business terms and conditions and our legal rights, in particular in case of an exclusion of the obligation to perform (for instance due to impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected.

(9) With successive delivery contracts, the term of delivery begins on the day of your call-off.

(10) Unless anything to the contrary is defined in the contract, you must schedule the required quantities with us in a timely manner in advance for successive delivery contracts and call accordingly. If this is not done, we have the right to establish the respective quantities to be delivered ourselves.

(11) If the total quantity according to the contract is exceeded by the sum of the call-offs for successive delivery contracts, we have the right to make production of the additional quantity dependent on a new price agreement.

Section 4: Delivery, passing of risk, acceptance, default of acceptance

(1) Delivery is from stock, which is also the place of fulfilment for the delivery and possible supplementary performance. By your request and at your expense, the goods are shipped to a different destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we have the right to determine the shipping method (in particular the carrier, dispatch route and packaging) ourselves.

(2) We have the right to make partial deliveries to the extent this is reasonable. We have the right to over and short shipment of the contract quantity to the extent commonly accepted in the industry.

(3) The risk of accidental perishing and accidental impairment of the goods passes to you no later than with their transfer to you. In case of sale by delivery to a place other than the place of performance however, the risk of accidental destruction and accidental impairment of the goods passes upon delivery of the goods to the carrier, shipper or other person or institution appointed for shipment. To the extent acceptance is agreed, it is decisive for the passing of risk. Otherwise the legal regulations pursuant to laws for contracts for work and labour apply correspondingly to an agreed acceptance. Default of acceptance on your part is deemed to constitute the transfer or acceptance.

(4) In case of default of acceptance or failure to cooperate on your part, or if delivery by us is delayed for other reasons within your control, we have the right to demand compensation for the resulting damages including additional expenses (such as storage costs).

Section 5: Prices and payment terms and conditions

(1) Unless otherwise agreed in individual cases, our respective current prices at the time the contract is concluded shall apply, ex stock and plus VAT as required by law.

(2) In case of sale by delivery to a place other than the place of performance (Section 4, Paragraph 1), you bear the transportation costs ex stock and the costs of transport insurance if requested. Any duties, fees, taxes and other public levies are borne by you.

(3) Our prices are based on the purchase prices of the raw materials required to produce the purchase items. The contract price is the base price we attempt to consistently hold until delivery. We only enter into fixed price agreements in individual cases with a term of delivery less than 30 calendar days from the date of the order confirmation; fixed price agreements are only effective if they are designated as such in the order confirmation.
For contracts with a term of delivery of more than 30 calendar days from the date of the order confirmation, we always agree only on the base price.
We have the right to increase the base price by a material price surcharge if our own raw material purchase prices increase due to general price trends – and through no fault of our own – after the contract is concluded and prior to delivery. We shall set and disclose the material price surcharge to you no later than 15 calendar days prior to delivery. If we do not notify you then the base price remains in effect.
If the price increase due to the material price surcharge is more than 10% of the base price, you have the right to withdraw from the contract within 5 calendar days after receiving notice of the amount of the material price surcharge. We have the right to withdrawal if the material price surcharge would be more than 20% of the base price. If we assert a price increase, you have the right to provide proof that a raw material price increase did not occur at all, that we were at fault or that it was foreseeable by us for costing purposes. In these cases the material price surcharge is waived.

(4) If additional or increased expenditures – in particular duties or taxes – are incurred between the conclusion of the contract and delivery because of changed legal norms, we have the right to increase the agreed purchase price accordingly. If the price increase exceeds 15% of the original price, you can reject the price increase. In this case we have the right to withdraw from the contract.

(5) The weight applicable for invoicing is determined at the shipping point of our respective supply plant, unless you request weighing at a different location at your expense.

(6) Unless otherwise agreed, our invoices are due for payment immediately with no discount. Following a positive credit check, we grant payment terms of 30 days. However, we have the right at any time and also within the scope of an ongoing business relationship to deliver only in exchange for advance payment, in whole or in part. We shall declare a corresponding reservation no later than with the order confirmation. The costs of payment transactions are borne by you.

(7) You are in default as soon as the aforementioned payment terms are exceeded. For the duration of late payment, the purchase price bears interest at the rate of 12% annually unless we provide proof of higher damages. In any case late payment interest is owed at least in the amount according to law. We reserve the right to assert additional damages caused by delay.

(8) You only have a right to set-off or right of retention to the extent your claim is legally established or undisputed. In case of delivery defects, your reciprocal rights in particular pursuant to Section 7, Paragraph 6, Sentence 2 of these business terms and conditions remain unaffected. A right of retention can only be exercised by you with counter-claims arising from the same contractual relationship.

(9) If it becomes apparent after the contract is concluded that our payment claim is at risk due to your inability to perform, we according to the applicable legal regulations are entitled to refuse performance and – if applicable after setting a deadline – to withdraw from the contract (Section 321 BGB). In case of contracts for manufacturing unwarranted goods (custom-made items), we can declare withdrawal immediately; the legal provisions regarding the dispensability of setting a deadline remain unaffected. We also have the right to demand immediate payment of all claims arising from the ongoing business relationship with you and to withhold outstanding goods and services, or to only perform in exchange for advance payment or collateral.

(10) If additional or increased fees – in particular duties, levies or currency adjustments – are incurred between the conclusion of the contract and delivery because of changed legal norms, we have the right to increase the agreed purchase price accordingly. This applies correspondingly to examination fees.

(11) An assignment of your claims against us is only effective with our consent. We can only refuse consent for a legitimate reason.

Section 6: Retention of title

(1) The goods remain our property until all claims, in particular also the respective balance claim, from the business relationship are settled in full. This applies correspondingly to future and conditional claims.

(2) Prior to payment in full of the secured claims, the goods subject to retention of title may not be pledged to third parties nor transferred by way of security. You are required to notify us promptly in writing if an application is made for the commencement of insolvency proceedings, or in case of pledging or other third-party access as well as damage or destruction of the goods belonging to us.

(3) In case of behaviour on your part that is contrary to the contract, in particular non-payment of the purchase price that is due, we have the right to withdraw from the contract pursuant to the applicable legal regulations and/or to demand the release of the goods subject to retention of title and to prohibit their resale, processing or removal. We are also permitted to enter your premises for this purpose. The release request does not simultaneously constitute a declaration of withdrawal; in fact we have the right to merely demand release of the goods and to reserve withdrawal. If you do not pay the purchase price when it comes due, we are only permitted to assert these rights if we previously set a reasonable deadline for payment without success or if setting such a deadline is unnecessary pursuant to the applicable legal regulations.

(4) Subject to revocation pursuant to (c) below, you are authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions apply in addition.

(a) The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, for which we are deemed to be the manufacturer. If the proprietary rights of third parties remain in effect upon processing, mixing or combining with the goods of third parties, we acquire joint ownership in the proportion of the invoice value of the processed, mixed or combined goods. Otherwise the resulting products are subject to the same provisions as the goods delivered subject to retention of title.

(b) The claims against third parties arising from resale of the goods or products are assigned to us by you now and in advance as collateral, in total or up to our possible joint ownership share pursuant to the preceding paragraph. We hereby accept said assignment. Your obligations pursuant to Paragraph 2 also apply in consideration of the assigned claims.

(c) You in addition to us remain authorised to collect the claims. We obligate ourselves to refrain from collecting the claims as long as you meet your payment obligations to us, your ability to perform is not impaired and we do not assert the retention of title by exercising one of the rights pursuant to Paragraph 3. If this is the case however, we can demand that you disclose the assigned claims and their debtors to us, provide us with all information required for collection, hand over the corresponding documents and inform the debtors (third parties) of the assignment. In this case we have the right to revoke your authorisation for the resale and processing of the goods subject to retention of title.

(5) If the value of the existing collateral exceeds the secured claims, including ancillary claims (interest, costs and similar) by more than 10%, we are obligated to release collateral of our choice insofar upon your request. You may provide other collateral to secure outstanding claims. If this is accepted by us then you are entitled to release of the retention of title.

(6) You are obligated to treat the goods with care until title has passed to you. If maintenance and inspection tasks are required, you must carry these out in a timely manner at your own expense.

Section 7: Your claims for defects

(1) Your rights in case of material defects and defective title (including incorrect and short deliveries and improper installation or deficient installation instructions) are governed by the applicable legal regulations unless otherwise defined in the following. The special legal regulations for final delivery of the goods to a consumer (supplier recourse pursuant to Sections 478, 479 BGB) remain unaffected in any case.

(2) Our liability for defects is based primarily on the agreement concluded regarding the quality of the goods. All product descriptions that are the object of the individual contract are considered agreements regarding the quality of the goods; here it makes no difference whether the product description originated with you, a third-party manufacturer or us.

(3) If there is no agreement regarding quality, whether a defect exists or not needs to be evaluated according to the applicable legal regulations. However, we assume no liability for public statements made by a third-party manufacturer or other third party (promotional statements or declarations of conformity).

(4) Your claims for defects presume that you have met your legal inspection and complaint obligations (Sections 377, 381 HGB). If defects are noted during the inspection or subsequently, we must be notified promptly in writing. Notification is deemed to be prompt if it occurs within two weeks; the timely dispatch of the notice is sufficient to meet the deadline. Independently of these inspection and complaint obligations, you are obligated to report apparent defects (including incorrect and short deliveries) in writing within two weeks from delivery. Once again, timely dispatch of the notice is sufficient to meet the deadline. If you fail to properly meet the inspection and/or complaint obligations, our liability for defects that were not reported is excluded.

(5) If the delivered goods are defective, we are initially free to choose supplementary performance by eliminating the defect (rectification) or by delivery of goods that are free of defects (replacement delivery). Our right to refuse supplementary performance if the applicable legal requirements are met remains unaffected.

(6) We have the right to make supplementary performance owed by us dependent on your payment of the purchase price that is due. You do however have the right to retain part of the purchase price that is reasonable in proportion to the defect.

(7) You are obligated to give us the time and opportunity required for supplementary performance and, in particular, to hand over the goods that are the object of the complaint for inspection purposes. In case of replacement delivery, you are obligated to return the defective goods to us pursuant to the applicable legal regulations. Supplementary performance includes neither the removal of the defective goods nor re-installation if we did not originally have an installation obligation.

(8) The expenditures required for inspection and supplementary performance, in particular transportation, travel, labour and material costs (not: removal and installation costs) are borne by us, provided a defect actually exists. Otherwise we can demand reimbursement from you for the costs incurred for an unjustified claim for defects (in particular inspection and transportation costs), unless the lack of defectiveness was not discernible by you.

(9) In urgent cases, for example if operating safety is at risk or to avert disproportionate damages, you have the right to rectify the defect yourself and demand reimbursement from us for the expenditures that are objectively required. We must be notified promptly if you exercise this right, if possible in advance. Your right to rectify defects does not apply if we would have the right to refuse corresponding supplementary performance pursuant to the applicable legal regulations.

(10) If supplementary performance has failed or a deadline for supplementary performance to be imposed by you has passed unsuccessfully or is unnecessary pursuant to the applicable legal regulations, you have the right to withdraw from the purchase contract or to abatement of the purchase price. However, there is no right to withdrawal in case of immaterial defects.

(11) Even in case of defects, claims on your part for compensation or the reimbursement of futile expenditures apply only pursuant to Section 8 and are otherwise excluded.

(12) For goods expressly sold as used or declassified, any liability for material defects is excluded.

(13) To the extent required, we have registered the purchase items for certain uses according to the REACH directive. Whether the use intended by you has also been registered or would require registration is solely your responsibility. Use for unregistered purposes is prohibited. You have sole and unlimited liability for violations.

(14) Guarantee agreements must always be concluded in written form to be effective. A written guarantee is only effective if it is designated as such by us and describes the content of the guarantee as well as the term and geographical field of application for guarantee protection with sufficient certainty.

Section 8: Other liability

(1) Unless otherwise defined by these business terms and conditions including the following provisions, we are liable according to the applicable legal regulations for violations of contractual and non-contractual obligations.

(2) Regardless of the cause in law, we are liable for damages within the scope of fault-based liability in case of intent and gross negligence. In case of simple negligence, we pursuant to the applicable legal regulations (for instance for diligence in our own affairs) and subject to a milder standard of liability are only liable
a) for damages due to death, physical injury or the impairment of health,
b) for damages due to a material violation of an essential contractual obligation (an obligation that must be met to make proper performance of the contract possible in the first place, and for which the contractual partner ordinarily trusts and is entitled to trust that it will be met); in this case however, our liability is limited to reimbursement of the foreseeable, typically incurred damages.

(3) The limitations of liability pursuant to Paragraph 2 also apply in case of breaches of duty by and/or in favour of persons where we are responsible for their default pursuant to the applicable legal regulations. They do not apply insofar as we maliciously conceal a defect or have issued a guarantee for the quality of the goods, or for claims on your part pursuant to the Product Liability Act (ProdHG).

(4) You can only withdraw or cancel due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.

Section 9: Statue of limitation

(1) Deviating from the statutory limitation periods for purchase contracts, the general limitation period for claims due to material defects and defective title is one year from delivery. To the extent acceptance is agreed, the limitation period begins with acceptance.

(2) However, if the goods are a structure or an item used for a structure according to its commonly accepted purpose that has caused it to be defective (building material), the limitation period pursuant to the applicable legal regulations is 5 years from delivery. Additional special legal rules for limitation periods also remain unaffected.

(3) The preceding limitation periods pursuant to sales law also apply to contractual and non-contractual compensation claims on your part that are based on defective goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. However, compensation claims on your part pursuant to Section 8, Paragraph 2, Sentence 1 and Sentence 2(a) and pursuant to the ProdHG expire exclusively according to the statutory limitation periods.

Section 10: Tools

Insofar as you contribute to the cost of producing tools for manufacturing the purchase items, you nevertheless do not obtain any rights to or co-ownership of the tools. Tools for which you made a contribution to the cost of production can be disposed of by us without compensation as soon as the tools have not been in use for longer than 5 years from the date they were last used in manufacturing.

Section 11: Supplement for contracts for work and labour

(1) You are responsible for verifying the final planning documents provided to you and the specified dimensions. Discrepancies must be pointed out to us promptly.

(2) Insofar as special official permits, approvals or acceptance procedures are required, these must be obtained and initiated by you in a timely manner at no cost to us. Written documentation and/or acceptance records must be submitted to us unasked.

(3) Unless otherwise defined by the contract, average quality is owed and we have the right to equivalent performance instead of the performance described.

(4) You are responsible for measurements that may be required unless anything to the contrary is agreed. The dimensions specified by you are binding for us.

(5) Unless otherwise agreed, the transfer to you or putting into use by you (in whole or in part) is deemed to constitute acceptance, depending on which event occurs first. If you fail to accept our performance within a reasonable term specified by us even though you are obligated to do so, this is deemed to constitute acceptance.

(7) If you cancel the contract for reasons beyond our control, we are entitled to the claims pursuant to Section 649 BGB. However, we have the right to assert a lump-sum claim in the amount of 10% of the net purchase price agreed at the time of cancellation as compensation for our expenditures and lost profits instead. Furthermore, we are entitled to assert a claim for actual damages instead of the lump-sum claim. Likewise you are entitled to provide proof that we did not incur damages in the amount of the lump-sum claim.

Section 12: Final provisions, choice of law and jurisdiction

(1) You do not have the right to publish information related to performance that is the object of a contract without our consent.

(2) The laws of the Federal Republic of Germany apply to these business terms and conditions and the entire legal relationship between you and us; application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. The contract language is German.

(3) Insofar as you are a merchant pursuant to the German Commercial Code (HGB), legal person under public law or special fund under public law, our registered office is the sole and also international jurisdiction for all disputes arising from the contractual relationship, directly or indirectly. This applies correspondingly if you are a businessperson pursuant to Section 14 BGB. In all cases however, we have the right to file suit at the place of fulfilment for the delivery obligation pursuant to these business terms and conditions and/or an overriding individual agreement, or in your general jurisdiction. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.

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