General terms and conditions

General Terms and Conditions valid as of February 2019

I. General, scope of application

1. These General Terms & Conditions (hereinafter “GTC”) apply to the company EschmannStahl GmbH & Co. KG, Otto-Hahn-Strasse 3, 51580 Reichshof, Germany (hereinafter referred to as “EschmannStahl”). All deliveries (hereinafter referred to as “Object of Delivery”) and offers of EschmannStahl are effected exclusively on the basis of these GTC, which form an integral part of all contracts which EschmannStahl concludes with its contract partners (hereinafter referred to as the “Customer”) for the deliveries and services offered by EschmannStahl. They shall also apply to all future deliveries and services or offers to the Customer, even where they (the GTC) are not separately agreed once more.

2. These GTC apply with exclusive effect. Customer terms and conditions which differ from, conflict with or supplement these GTC will only become an integral part or a contract when and insofar as EschmannStahl has expressly consented to their applicability. This consent requirement shall for example also apply where EschmannStahl, having cognisance of the Customer’s terms and conditions, executes an order for the Customer without demur.

3. Individual agreements reached with the Customer in individual cases (including supplementary accords, additions and amendments) shall in every case have priority over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or EschmannStahl’s written confirmation.

4. All declarations and advices which have to be delivered by the Customer to EschmannStahl after conclusion of the contract (e.g. setting of time limits, notice of defects, declaration of withdrawal or reduced payment) must be in writing, that is in written or text form (e.g. by letter, email or fax). This shall be without prejudice to statutory requirements and other verifications, particularly in case of doubt as to the legitimate status of the declaring party.

5. References to the applicability of statutory provisions shall have clarifying significance only. The statutory provisions shall therefore apply even without such clarification except where they are directly amended or expressly excluded in these GTC.

II. Offer and conclusion of contract

1. All EschmannStahl’s offers are without obligation and subject to confirmation. This shall also apply where EschmannStahl has supplied the Customer with catalogues, technical documentations (e.g. drawings, plans, calculations, pricing/costing, references to DIN standards), other product descriptions or documents – also in electronic form – to which EschmannStahl reserves title and copyright.

2. The order by the Customer is deemed to be a binding offer of a contract. Except where the order determines otherwise, EschmannStahl shall be entitled to accept such offer of a contract within a limited period of 2 weeks after receipt thereof.

3. Acceptance may be effected either in writing (e.g. through an order confirmation) or by delivery of the goods to the Customer.

4. Information given by EschmannStahl on the Object of Delivery (e.g. weights, dimensions, practical value, load capacity, tolerances and technical data) and presentations of same (e.g. drawings and illustrations) shall only be definitive in an approximate sense, unless usability for the contractually intended purpose is conditional on an exact match. The said information shall not represent guaranteed condition or characteristics but descriptions or designations of the Object of Delivery. Discrepancies customary for the trade and discrepancies, which are due to legal requirements or represent technical improvements, and the replacement of components with parts of the same standard, shall be admissible except where they compromise usability for the contractually intended purpose.

5. EschmannStahl reserves title or copyright to all the offers and cost estimates it has submitted and to all the drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and equipment provided to the Customer. The Customer may not make these items, whether as such or the content thereof, accessible to third parties without the express consent of EschmannStahl, nor make said items known, nor use them itself or via third parties, nor reproduce same. On request by EschmannStahl the Customer shall return these items to EschmannStahl in full and destroy any copies that may have been made if and when they are no longer required by the Customer in the normal course of business or if negotiations do not result in the conclusion of a contract. All know-how, inventions, patents or similar rights to which EschmannStahl has title are provided for the purpose of performance of the contract and are not transferred to the Customer.

III. Delivery periods and dates

1. The time of delivery is agreed for each individual case or stated by EschmannStahl on acceptance of the order. All delivery times and dates shall be subject to unforeseeable production breakdowns and EschmannStahl receiving its own supplies in timely manner.

2. Where EschmannStahl cannot adhere to binding delivery times for reasons for which it is not responsible (materials or performance not available), EschmannStahl will inform the Customer thereof without delay and at the same time state the expected new delivery time. If the performance is not available inside the new delivery period, EschmannStahl shall be entitled to withdraw from the contract wholly or in part; any payments made by the Customer by that time will be reimbursed without delay. Non-availability of performance shall, for the present purpose, in particular mean unpunctual delivery by EschmannStahl’s supplier where EschmannStahl has concluded a congruent hedging transaction, where neither EschmannStahl nor the said supplier is at fault, or in an individual case where EschmannStahl is not obliged to ensure procurement.

3. The relevant statutory provisions shall determine when default on delivery has occurred. In every case, however, a warning notice by the Customer shall be necessary. Where EschmannStahl defaults on delivery, the Customer may require flatrate compensation for the loss resulting from default. The compensation amount shall be 0.5% of the net price (delivery value) for each completed calendar week, but a maximum total of 5% of the value of the goods delivered late.
EschmannStahl reserves the right to provide evidence that the Customer has suffered no loss or a substantially lower loss than the aforesaid compensation amount.

4. The rights of the Customer under section I of these GTC and the legal rights of EschmannStahl, in particular in case of an exclusion of the obligation to perform (e.g. on grounds of contract performance and/or supplementary performance being impossible or unreasonable) shall remain unaffected.

IV. Delivery, shipment, packing and transfer of risk

1. Delivery shall be made ex works, which is also the place of performance for the delivery and any possible supplementary performance. On request by and at the expense of the Customer, the goods may be shipped to a different destination. Except where otherwise agreed, EschmannStahl shall be entitled to determine the mode of shipment itself (in particular carrier, route, packing). Transport insurance will only be taken out at the Customer’s request. It will be conditional on a written order from the Customer stating the insurance amount. The costs of the transport insurance shall be met by the Customer.

2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer not later than the time the goods are handed over to the Customer. In the case of shipment, however, the risk of accidental loss and accidental deterioration of the goods, and also the risk of delay, shall pass at the time the goods are delivered to the forwarder, the carrier or other person or organisation designated for the execution of shipment. If acceptance has been agreed, this shall determine the time of transfer of risk. In other respects too an agreed acceptance shall be subject to the relevant statutory provisions of work and services contract law. The same provisions shall apply to hand-over or acceptance where the Customer is in default with acceptance.

3. If the Customer defaults on acceptance or fails to fulfil a cooperation obligation, or if delivery by EschmannStahl is delayed for other reasons for which the Customer is responsible, EschmannStahl shall be entitled to require compensation for the loss resulting therefrom, including additional expenditure (e.g. storage costs). This shall be without prejudice to the statutory provisions governing default on acceptance.

4. Where customary for the trade, EschmannStahl will supply the goods in packed form and protected against rust; the costs shall be borne by the Customer. Packing, protective and transport equipment will not be returned, with the exception of items on deposit, loading equipment and means of transport. Packing exceeding transport requirements or the use of other special protective materials, e.g. for long-term safekeeping or storage, will be subject to an express agreement.

5. In the case of damage during transport the Customer must immediately arrange for the facts of the matter to be recorded.

V. Prices

Except where agreed otherwise in an individual case, our current prices will apply as at the time the contract is concluded. The terms are ex works, in euros, plus statutory VAT and other taxes, fees, customs duty, other official charges, and costs such as transport, packing and acceptance-related costs.

VI. Terms of payment

1. Unless otherwise agreed, the purchase price will be due and payable, without deduction, no later than 30 days net after invoicing and delivery or acceptance of the goods. If a payment period is stated on the invoice, payment must be made by that time at the latest. EschmannStahl shall however also be entitled at any time in the course of the current business relationship to carry out partial or full delivery, but only against payment in advance. EschmannStahl shall use the order confirmation, at the latest, to reserve its right to do so.

2. The Customer shall be in default as of expiry of the payment period referred to above. Interest will then be due on the purchase price at the statutory default interest rate effective at the time. EschmannStahl reserves the right to assert claims for losses of greater extent due to the default. Vis-à-vis merchants the claim to interest on arrears (section 353 HGB, German Commercial Code) shall remain unaffected. The Customer shall have rights of offsetting and withholding payment only where its claim has been finally established at law or is undisputed. This shall be without prejudice to the Customer’s counter-claims in case of defect, in particular under sentence 2 of subsection VII of section H of these GTC.

3. If it becomes apparent after conclusion of the contract that the claim to the purchase price is at risk due to the Customer’s deficient capacity to make payment (e.g. through an application for the opening of insolvency proceedings), EschmannStahl shall, pursuant to the relevant statutory provisions, be entitled to refuse performance and – where appropriate after setting a time limit – to withdraw from the contract (section 321 BGB, German Civil Code). In the case of contracts on the production of unacceptable items, EschmannStahl may declare its withdrawal immediately, the statutory provisions on the dispensability of the setting of a time limit remaining unaffected.

VII. Retention of title

1. EschmannStahl reserves title to the Object of Delivery until payment has been made in full of all present and future claims under the contract and in a current business relationship (secured demands for payment). If the Object of Delivery is a processing service, EschmannStahl shall acquire joint title to the article ordered in the invoice value. The following rules for retention of title shall apply in every respect to the joint title.

2. The goods under retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The Customer must inform EschmannStahl immediately, in writing, if and when an application has been filed for the opening of insolvency proceedings and where access has been gained by third parties (e.g. seizures) to the goods belonging to the Customer.

3. In case of breach of contract by the Customer, in particular failure to pay the purchase price due, EschmannStahl shall be entitled under the relevant statutory provisions to withdraw from the contract and/or to require surrender of the goods on grounds of retention of title and the said withdrawal. The demand for surrender does not necessarily entail a declaration of withdrawal; instead, EschmannStahl is entitled only to require surrender of the goods and reserve the right of withdrawal. If the Customer does not pay the invoice amount due, EschmannStahl may only assert these rights if it has previously, to no avail, set the Customer a reasonable deadline for payment, unless there are statutory provisions which allow EschmannStahl to dispense with setting a deadline.

4. The Customer shall until further notice be entitled the resell and/or process the goods that are under retention of title in the course of proper business. In this case the following provisions shall additionally apply:

a) The retention of title shall extend to include, in their full value, goods resulting from processing, commingling or combining, EschmannStahl being deemed the manufacturer. If, in the course of processing, commingling or combining with goods of third parties, the latter’s title continues to be effective, EschmannStahl shall acquire joint title in proportion to the invoice values of the processed, commingled or combined goods. In other respects the same shall apply to the resulting product as to the goods supplied under retention of title.
b) Under the provisions of the previous paragraph, the Customer now assigns to EschmannStahl as security the claims against third parties resulting from the resale of the goods or the product, in the full amount or to the extent of any possible joint title of ours. EschmannStahl hereby accepts said assignment. The Customer’s obligations specified in subsection II shall also apply in respect of the assigned claims.
c) The Customer continues to be authorised, as well as EschmannStahl, to collect claims. EschmannStahl undertakes not to collect claims as long as the Customer fulfils its payment obligations vis-à-vis EschmannStahl, no defects are present in its performance capacity and EschmannStahl does not assert its retained title through exercise of a right referred to in subsection III. If however this is the case, EschmannStahl may require the Customer to make the assigned claims and their obligors known, to provide all the information necessary for collection, to hand over the appurtenant documents and advise the obligors (third parties) of the assignment. Furthermore, in this case EschmannStahl is entitled to revoke the authorisation of the Customer to resell and process the goods that are under retention of title.

VIII. Claims for defects

1. The rights of the Customer in case of defects of quality and title (including short and incorrect delivery and unprofessional assembly or inadequate assembly instructions) are governed by statutory provisions, except where determined otherwise below. Claims for recourse against suppliers are excluded where the defective goods were further processed by the Customer or another entrepreneur, e.g. through installation in another product.

2. The Object of Delivery conforms to the contract if, at the time of transfer of risk, it deviates not at all or only insignificantly from the agreed specifications. The Object of Delivery’s conformity with contract and absence of defect are determined exclusively according to explicit agreements on the quality and quantity of the Object of Delivery ordered. A warranty for a specific purpose of use or a specific suitability is only assumed where this was expressly agreed; in other respects the risk of suitability and specific use is borne exclusively by the Customer.

3. The contents of the specifications and e.g. an expressly agreed intended use shall not constitute a warranty; a written agreement is required for the assumption of a warranty.

4. The Customer’s claims for defects are conditional on its having fulfilled its statutory obligations of inspection and complaint (sections 377 and 381 HGB). The Customer must inspect received goods immediately after receipt. Claims for defects shall only be possible if a written complaint is made without delay; complaints about hidden defects must be made immediately they are detected. In any case, written notice of manifest defects must be given within 5 days of delivery, and the same time limit applies after detection of non-manifest defects through inspection of the goods. If the Customer does not do the proper inspection and/or give notice of defect, liability for a defect which is not properly reported or not in due time is, under the relevant statutory provisions, excluded. After an agreed acceptance has been carried out it is not possible to complain about defects which could have been detected during the acceptance process. Claims under warranty are also excluded where the Customer or third parties carry out inappropriate or unsuitable modifications or repairs to the Object of Delivery.

5. In case of complaints the Customer must immediately give EschmannStahl an opportunity and time to examine the Object of Delivery complained about; on request EschmannStahl must be provided with such Object of Delivery or a sample thereof at EschmannStahl’s expense. The expenditure necessary for inspection and supplementary performance, in particular transport, road charges, labour and material costs and, as appropriate, disassembly and installation costs, shall, under statutory requirements, be met by EschmannStahl provided that there is in fact a defect. If however a request by the Customer for the remedying of a defect proves to be unjustified, EschmannStahl may require the Customer to reimburse the costs incurred except where the absence of defect could not become apparent to the Customer.

6. Where a quality defect is present, EschmannStahl shall have the option – with due consideration for the interests of the Customer – of supplementary performance by way of either delivery of replacements or rectification. This shall be without prejudice to EschmannStahl’s right to refuse supplementary performance subject to the relevant statutory conditions.

7. EschmannStahl shall be entitled to make the required supplementary performance dependent on payment by the Customer of the invoice amount due. The Customer shall however be entitled to withhold an appropriate part of the purchase price, the amount being proportionate to the defect. The supplementary performance shall include neither the disassembly of the defective part nor the renewed installation if EschmannStahl was not originally obliged to effect installation.

8. If the supplementary performance was unsuccessful, or if the reasonable time limit set by the Customer for supplementary performance expired to no avail or can in law be dispensed with, the Customer may withdraw from the contract or reduce the agreed purchase price. However, if the defect is insignificant there is no right to withdraw.

9. In the case of a defect of title, EschmannStahl shall have the right of supplementary performance through correction of the defect of title within two weeks of receipt of the goods.

10. The following special provisions apply in addition in the case of processing services:

a) Deviations of dimensions, weight and quality shall be treated as contractually correct performance where they are regarded as permissible by DIN standards or accepted practice. Other deviations require a separate contractual agreement.
b) The weight is established on calibrated scales and determines this aspect of the invoicing. Evidence of weight is given by presentation of the weight log. Except where it is usual for individual items to be weighed, the total weight of the shipment shall apply.
c) The parts to be treated must be faultless, free of chips and oil or emission residues and match the specified values. They must where appropriate have the normal machining allowances.

11. The following special requirements apply to heat treatment:

a) All the parts handed in for heat treatment must be accompanied by an order or a delivery note giving the following details:

– Name, quantity, net weight, type of packing

– Material quality (standard designation or steel brand and manufacturer)

– Heat treatment desired, in particular

– for case hardening steels as per DIN 6773, either the desired depth of hardening or the prescribed case depth with reference hardness value and surface hardness

– for Q & T steels, the required tensile strength or the Brinell ball pressure test on the surface is decisive. Revaluations, except where otherwise agreed, are subject to DIN ISO 18265.

– for tool and high-speed steels, the desired degree of hardness by Rockwell, Brinell or Vickers.

– for nitriding steels, the desired nitriding hardness depth

– for induction and flame hardening, the desired surface hardening depth with border hardness and surface hardness

– for salt bath nitrocarburizing and short-time gas nitrocarburizing, either the duration of treatment or the desired strength of the bond zone

– Details of desired testing procedures, inspection body and test load

– Other information or rules necessary for the success of the treatment

12. Where partial hardening be required, drawings must be included which show which points must be kept hard or soft. If parts of the same type are made from different steel melts, this must be stated. Special requirements regarding size accuracy or surface condition must be specified. The Customer must also make special reference to welded or soldered parts.

13. If the heat treatment is not successful and EschmannStahl is not responsible, among other reasons because e.g. the Customer gave incorrect information or the material to be treated had hidden defects, payment must still be made. Necessary supplementary treatment will be billed separately. Complaints of any kind must be filed in writing immediately after receipt of the parts. Reworking of parts complained about without written approval by EschmannStahl will absolve us from any liability for defects. The parts are inspected after manufacture and before they leave the works. Any special test over and above that will only be carried out on the basis of separate agreements, additional costs being charged. EschmannStahl’s inspection will not release the Customer from its incoming goods inspection.

14. Claims by the Customer for damages or compensation for wasted expenditure shall be dependent on the provisions of the following subsection and are otherwise excluded. In case of damage to the part and other defect losses caused by EschmannStahl, Eschmannstahl will be liable only for reasonably predictable damage or loss in standard contract conditions.

15. No claims for defects may be asserted in case of process-related shrinkage of reasonable extent as is customary for the trade.

16. Claims by the Customer for damages or compensation for wasted expenditure shall be dependent on the provisions of the following subsection and are otherwise excluded.

IX. Other liability

1. Except where regulated otherwise in these GTC, EschmannStahl is liable under the relevant statutory provisions for a breach of contractual and extra-contractual obligations.

2. EschmannStahl is liable for damages – for whatever legal reason – within the limits of liability for fault in the case of wilful intent or gross negligence. In the case of minor negligence EschmannStahl is liable, subject to application of a milder measure of liability, under the relevant provisions of statute law (e.g. for due care in its own affairs) only for

a) damage or loss resulting from loss of life, physical injury or damage to health,
b) damage or loss resulting from serious breach of an essential contractual obligation (an obligation which makes the correct performance of the contract possible in the first place and on the fulfilment of which the contract partner relies and is entitled to rely); in this case EschmannStahl’s liability is limited to foreseeable damage or loss occurring in standard situations.

3. The limitations resulting from subsection II shall also apply to breaches of obligations by persons for whose culpability EschmannStahl is responsible in law. They do not apply where EschmannStahl has intentionally failed to mention a defect or has assumed a warranty for the properties and/or condition of the goods and for claims by the Customer under the German product liability act.

4. The Customer may withdraw from or terminate the contract on grounds of a breach of obligation which does not involve a defect only if EschmannStahl is responsible for the said breach. The Customer does not have an unrestricted right of termination. The statutory requirements and legal consequences apply in other respects.

X. Time-barring

1. The period of limitation for claims on grounds of defects of quality and title is one year as from delivery or making the goods available for collection or as from acceptance.

2. This period of limitation shall also apply to contractual or extra-contractual claims for damages by the Customer which are based on a defect in the goods, except where the application of the standard statutory limitation (sections 195 and 199 BGB) would in an individual case lead to a shorter period of limitation. Claims for damages by the Customer under section I, subsection II, sentences 1 and 2, no. 1 of these GTC and under the said product liability act, however, become time-barred exclusively as laid down in the relevant statutory provisions.

XI. Export controls

The Customer undertakes to become familiar with and comply in every respect with all the national, European and international laws, regulations, sanctions and embargoes as most recently amended concerning experts and re-exports, including but not limited to restrictions related to domestic business transactions, brokering services and other bans on circumvention which directly or indirectly affect its (the Customer’s) activities (including the resale of our products). This shall also apply to decisions taken inside the voestalpine group – if and insofar as they were made known to the Customer – regarding the delivery of products or services to specified countries, to specified end customers or for specified final uses.

XII. Export certificate

If a Customer based outside the Federal Republic of Germany (extra-territorial buyer) or its authorised agent collects goods or ships them to a territory outside Germany, the Customer must submit to EschmannStahl the export certificate necessary for tax purposes. If this certificate is not provided, the Customer will have to pay the VAT rate applicable to deliveries inside the Federal Republic of Germany on the invoice amount.

XIII. Applicable law

These GTC and the contractual relations between EschmannStahl and the Customer are governed by the law of the Federal Republic of Germany to the exclusion of international unitary law, in particular the United Nations CISG Convention.

XIV. Place of performance and jurisdiction

The place of fulfilment and jurisdiction for both contracting parties is Gummersbach. EschmannStahl will however also be entitled to bring actions at the place of fulfilment of the delivery obligation, subject to these GTC or to an overriding individual agreement, or at the general place of jurisdiction of the Customer. Overriding statutory provisions, in particular regarding exclusive jurisdictions, shall remain unaffected.

XV. Final provisions

If a provision of these GTC is or becomes null and void, this shall not affect the remaining provisions of the GTC. In this case the provision which is or has become void must be replaced only with a provision which serves the intended purpose and is legally admissible.

Gummersbach, February 2019

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