Terms

General Conditions of Business
SMP Sintermetalle Prometheus GmbH & Co KG



Status 1.03.2007

1. Validity of our General Conditions of Business

1.1 Our General Conditions of Business alone apply. They will also apply for future business with the other contracting party. Any conditions of the other contracting party which may contradict our General Conditions of Business will not apply. Our General Conditions of Business will apply only where the other contracting party is a business or a businessman.

1.2 Any amendments to our General Conditions of Business will be notified to the other contracting party in writing. They will be regarded as accepted if the other contracting party does not notify his objection in writing. Special attention will be drawn to this consequence by us at the time of notification of the amendment. The other contracting party must dispatch his objection to us within one month of notification of amendment.


2. Conclusion of the contract

The order placed by the other contracting party is a binding offer. We may, at our discretion, accept this offer by sending written acknowledgement within two weeks or by dispatching to the other contracting party the goods ordered within this period of time. Our quotations are made without obligation and represent only an invitation to the other contracting party to place an order.

3. Prices, packaging

3.1 Unless otherwise stated in the order acknowledgerment, our prices are ex works and do not include packaging and freight. Our prices are net prices. Statutory valueadded tax will be charged separately.

3.2 In the case of contracts where a period of more than 4 months elapses between conclusion of the contract and date of delivery (delivery period), we reserve the right to increase the prices to take account of increased costs due to labour contracts or rises in material prices.

3.3 Packaging and freight costs will be charged at cost price. Pallets on loan will remain our property and must be returned in perfect condition with the next delivery. Their replacement with pallets of the same type and quality is permissible. If the pallets are not returned within one month of delivery, they will be invoiced at cost price.

3.4 The other contracting party is entitled to return the transport packaging from our supplies to our place of business. The packaging must be clean, free of foreign materials and separated according to material, otherwise we reserve the right to charge the other contracting party for the additional cost incurred by us in disposing of the packaging.


4. Payment

Our claims are payable in full immediately, at the latest thirty days after receipt of the delivery. To qualify for discount, the payment must be received by us within this two-week period.


5. Right of withholdment, offset

5.1 The other contracting party will be entitled to withhold only in cases where his claim is undisputed, or has been, or is expected to be, established by a court of law. The right of withholdment may be exercised only to the extent corresponding to the value of the claim. We reserve the right to avert rights of withholdment by means of securities which may be in form of bank guarantees.

5.2 The other contracting party may offset our claims only with counterclaims which are undisputed, or have been, or are expected to be, established by a court of law.

6. Delivery, transfer of risk, delay

6.1 The anticipated date of delivery appears in the order acknowledgement. The agreed period for delivery will be extended within reason in cases where the contracting party is unable to provide documents, materials etc. in time, which are necessary for the processing of the order.


6.2 All deliveries are ex works. The delivery deadline has been met where the goods leave our premises on or before the delivery date.

6.3 We may, within reason, make partial deliveries and invoice these separately, unless the contracting party has indicated his preference for a single delivery of all the goods.

6.4 The risk of accidental loss and accidental deterioration of the goods is transferred to the contracting party on the collection of the goods by the shipping company, carrier or other person or organisation entrusted with the dispatch of the goods, or, in case of transport by his own employees, on collection by these and departure from our premises.



6.5 If, following conclusion of the contract, it becomes apparent that our claims are at risk through failure of the contracting party, we may demand payment in advance if the contracting party is unable to offer adequate security.

6.6 Should our delivery of goods be delayed, the other contracting party must first set us a reasonable period for fulfilment of the delivery. This period must be at least 14 days in length. Only on expiry of this period will the other contracting party be entitled to withdraw from the contract and claim compensation.


6.7 Claims for compensation by the other contracting party due to delay in performance as well as claims for compensation in place of performance will be limited to the value of the contract. This will not apply in cases of gross negligence on our part or in case of death, injury or damage to health. The above does not imply any change in the burden of proof to the disadvantage of the contracting party.

6.8 Should the delivery be delayed at the request of the other contracting party, or for reasons for which he is responsible, we will be entitled to demand payment of a lump sum for storage of the goods amounting to 0.5% of the net value of the goods for every month or part thereof, up to a maximum of 10% of the net order value. The contracting party will have the right to prove that no costs or less costs than the above have actually been incurred. In this case, the lump sum charged for storage will be reduced accordingly. We also reserve the right to prove that higher costs or greater damage have been incurred.


7. Deliveries overseas
For deliveries overseas the following terms will apply additionally:

7.1 Our price quotations do not include the fees and costs involved in obtaining and legalising certificates or origin, consular documentation, approvals etc. Unless otherwise agreed, all such fees and costs will be paid by the purchaser.

7.2 Agreed dates of delivery will be extended wherever this is required by export formalities.

7.3 All payments will be made in EUROS. Fees charged by overseas banks will be paid by the purchaser

7.4 Should the contracting party fail to obtain letters of credit within the period agreed, we will be entitled to withdraw from the contract without any additional deadline being set.


8. Force majeur, right of self-supply

8.1 In cases of force majeur, we will be released from our delivery (or performance) obligation until the removal of the circumstances giving rise to force majeur. Delivery periods will be extended and delivery dates postponed for the duration of such circumstances. This will not apply where we are responsible for the obstacle preventing performance. However, we will not be responsible in cases of force majeur occurring at times when we are already in arrears. The impossibility of obtaining sufficient supplies of raw and auxiliary materials, the impossibility of obtaining transport, as well as cases of strike and lockout will be equivalent to force majeur. We will notify the other contracting party immediately on occurrence of the force majeur and the extension of the period of delivery or postponement of the date of delivery.

8.2 Should the obstacle preventing performance as defined in section 8.1 be more than six weeks in duration, both we and the other contracting party will be entitled to withdraw from the contract. The other contracting party may withdraw from the contract before this time if the later delivery is no longer of any use to him.


9. Reservation of title

9.1 All goods supplied by us will remain our property until all our claims arising from the business relationship between ourselves and the other contracting party, regardless of their legal grounds, have been settled. In case of suspension in current invoice, the reservation of title will apply to the balance involved. The repurchasing of goods will not be equivalent to withdrawal from the contract. However, we will be entitled to repurchase goods in case of arrears of payment by the customer. The goods will be credited to the value of the actual proceeds after deduction of the costs of repurchase and reclamation. The seizure of goods by us will be equivalent to withdrawal from the contract. The other contracting party is responsible for insuring our property against damage by fire, water and theft. His insurance claim is transferred to us.

9.2 The contracting party may process the goods in the normal course of his business or resell them following agreement on a prolonged or extended reservation of title. He is not entitled to dispose of them in any other way. The contracting party's right to process and resell the goods will expire should he fail to fulfil his payment obligations towards us, seriously infringes contracts concluded with us or is in financ ial difficulty. By "financial difficulty" is meant suspension of payment, over-indebtedness, initiation of bankruptcy proceedings and any other serious development in the financial circumstances of the contracting party which may result in a risk to our securities.

9.3 Any processing of the goods subject to reservation of title is done on our behalf (§ 950 BGB). If the contracting party is processing both for us and other suppliers, our share in the property will be as defined in § 947 f. BGB. If the contracting party combines or mixes our goods with articles of which he is the owner, in such a way that the articles of the contracting party is regarded as the main article, the customer here and now transfers to us a share in the ownership of the main article corresponding to the ratio of the value of our goods to the value of the main article. Our share in the ownership will remain in possession of the contracting party, who is entrusted by us with their safekeeping.

9.4 The contracting party assigns his claims and subsidiary rights resulting from the resale of the goods to us according to our share in the property. He is not entitled to conclude any assignment prohibition. Partial payments of the customer of the contracting party to the contracting party will be applied initially in offsetting other claims of the contracting party, and only after their complete settlement, in offsetting ours. The contracting party is entitled to collect transferred claims in the normal course of his business. This authorisation will not apply in the cases described in clause 9.2. In such cases we will be entitled to disclose the assignment to the customer of the contracting party. In such cases, the contracting party undertakes to cooperate in the collection of the claim.

9.5 At the request of the contracting party, we undertake, to release at our discretion the securities to which we are entitled in accordance with the above provisions to the extent that their realisable value exceeds the claim by more than 20%.

9.6 For deliveries overseas, the following will apply: should the reservation of title be prohibited under the law of another state, but permits us as seller to reserve other rights in the goods supplied, we will be entitled to exercise all rights of this kind. The contracting party undertakes to cooperate in any such measures taken by us to secure our property rights (or in their place, other rights) in the goods supplied.


10. Liability in case of defect

10.1 If the contracting party is a businessman, the complaints procedure defined in § 377 HGB will apply. If the contracting party is not a businessman, the following will apply: apparent defects must be notified by the contracting party immediately, or at the latest within seven days of receipt of the supply or service. Other defects must be notified by the contracting party immediately, or at the latest within seven days of their discovery. Notification will be regarded as valid if dispatched within the above period, even if it reaches us at a later date. Should no such notification be made (or not be made in time) the goods or services will be regarded as accepted.

10.2 In case of material defect we will be entitled at our discretion to remove the defect or to supply defect-free goods (later fulfilment). In case of later fulfilment, the contracting party undertakes to provide us with a detailed written description of the defects in question. In case of later fulfilment, we undertake to bear the expenses involved, in particular for transport, travel, labour and material. Should the later fulfilment fail or be unacceptable to the contracting party, he may withdraw from the contract or reduce the payment.

10.3 Should our services be deficient, we will be liable to pay compensation only in case of criminal intent or gross negligence, or if we have undertaken a guarantee. The right of the contracting party to withdraw from the contract, to reduce payment, or demand compensation for expenses in accordance with § 478 Abs. 2 BGB will remain unaffected.

10.4 The statutory period of limitation for claims due to defect is one year after delivery of goods or acceptance of service. This does not apply for a building construction or an article whose customary application is for a building construction and which has caused its deficiency. § 479 BGB will remain unaffected.

10.5 In the case of contracts involving the supply of used goods by us, no guarantee is given with regard to material defect.


11. Liability
On whatever legal grounds, our liability is limited to criminal intent and gross negligence. This limitation of liability will not apply in case of infringement of essential contractual obligations, injury, death, damage to health, product liability and other legally binding regulations or to the extent of reasonable and customary insurance cover. Our liability in case of simple negligence is limited to compensation for the anticipated damage unless this involves a case defined in the preceding sentence excluding the infringement of essential contractual obligations. Other limitations of liability in our General Conditions of Business will remain unaffected.


12. Patent rights, confidentiality

12.1 We reserve all rights of property and copyright in samples, models, drawings, cost estimates, quotations, cost calculations and similar information of material or immaterial nature, including information in electronic form. Such information must not be disclosed to third parties. Should the contracting party receive such information in the course of preliminary contract work, he undertakes to return it to us free of charge should the contract fail to materialise.

12.2 The contracting party undertakes to reveal to third parties information explicitly designated by us as confidential, or whose confidentiality results from the circumstances, only with our explicit approval.


13. Concluding provisions

13.1 German law will apply. German material and formal law will also apply even where German law provides for the application of foreign law. UN commercial law will not apply.

13.2 If the contracting party is a businessman, the sole legal domicile will be Karlsruhe. We may also, at our discretion, take legal proceedings against the contracting party at his seat of business.