ogólne warunki handlowe

I. Application / Offers
1. These General Terms and Conditions shall apply to all contracts and future contracts concluded
with companies, legal entities under public law and special funds under public law for supplies
and other services including contracts of services and supply of non-fungible items.
Furthermore, in the case of third-party deals, the conditions stated in the price list of the
contracted supplier shall apply. Purchase conditions of the buyer shall not be accepted, even if
not explicitly rejected by us upon receipt.
2. Our offers are subject to confirmation. All oral agreements, acceptances, warranties and
guarantees in connection with conclusion of contract made by our employees, shall be binding
only upon our written confirmation.
3. For the interpretation of the commercial terms, in case of doubt the newest versions of the
respective Incoterms shall apply.

II. Prices
1. Unless otherwise agreed upon, prices and conditions stated in our valid price list at conclusion of
contract shall apply.
2. If later than four weeks after conclusion of contract, charges or other external charges included in the price agreed upon should change or should there be new charges or other external charges, we shall be entitled to a price change as appropriate.

III. Payment and Settlement
1. Unless otherwise agreed upon or stated in our invoices, the purchase price is due for payment
immediately after delivery without deduction and payment shall be effected in such a way that we are able to dispose of the amount on due date. Costs arising from the payment transaction shall be borne by the buyer. The buyer is only entitled to a right of retention and right to offset insofar as his counter claims are established as undisputed and legally binding.
2. Upon exceeding the payment date, latest at default, we shall charge an interest rate amounting to 8%tage points above the valid base rate unless higher interest rates have been agreed upon. The entitlement to claims for further damage caused by delay shall remain reserved.
3. At the latest 10 days after due date of our receivables the buyer shall be in default without the need of a reminder.
4. Should it become noticeable that our payment claims are in jeopardy due to lack of solvency on the part of the buyer, or should the buyer fall in default with a substantial amount, or should other circumstances arise that allow to suggest a considerable deterioration of the solvency of the buyer following conclusion of contract, we are entitled to the rights according to § 321 of the German Civil
Code. We shall then be entitled to call due all other undue claims resulting from the existing business relationship with the buyer.

IV. Execution of deliveries and delivery times and dates
1. Our obligations for delivery are subject to our receiving correct and punctual delivery unless we are responsible for the incorrect and delayed delivery to us.
2. Information on delivery dates are approximate. Delivery dates begin with the date of our order confirmation and apply only under the condition of the timely clarification of all detail points of the order and timely fulfilling of all commitments by the buyer, e.g. submission of all confirmations from authorities, providing of Ls/C and guarantees or the accomplishment of down payments.
3. For the compliance with delivery times and dates the point of time of dispatch ex works or ex stock is decisive. They are deemed as fulfilled with the notification of the readiness for dispatch if the goods cannot be dispatched on time independent of our negligence.
4. In the case of a delay in delivery the buyer can accord us a reasonable grace period and upon unsuccessful termination of this grace period withdraw from the contract insofar as the contract is not fulfilled. In such cases claims for damages shall be in accordance with paragraph XI of these terms and conditions.

V. Reservation of proprietary rights
1. All goods delivered remain our property (goods subject to retention) until fulfilment of all claims, particularly also the appropriate settlement claims, which we have in the context of the business relationship (overall reservation of title). This also applies to future and conditional claims e.g. from acceptor’s bills and also in cases where payments are effected for specially defined claims. This overall reservation of title finally lapses with the settlement in proper time of all payments still open and claims that have arisen because of this reservation of title.
2. Processing and handling of goods subject to retention is effected for us as the manufacturer in the sense of § 950 of the German Civil Code without our obligation. If the buyer processes, combines or mixes the goods subject to retention with other goods, we shall obtain a co-ownership in the new product at a ratio of the invoiced value of the goods subject to retention to the invoice value of the other goods used. If our ownership ceases as a result of combining or mixing, the customer shall transfer to us now his ownership of the new stock or item to the extent of the invoice value of goods delivered by us, and shall hold them in custody on our behalf at no charge. Our co-ownership rights apply for goods subject to retention in terms of No. 1.
3. The Buyer shall only have the right to dispose of the goods subject to retention in ordinary business transactions in accordance with the normal business conditions and as long as he is not at default; however, provided that the outstanding debts of resale pursuant to No. 4 to 6 are transferred to us as payment.. He is not entitled for other disposals of the goods subject to retention.
4. All claims resulting from the resale of the goods subject to retention shall be transferred to us now already together with all other securities that the buyer acquires for the claims. They shall serve as security to the same extent as the goods subject to retention. Should the buyer dispose of the goods subject to retention together with other goods not disposed of by us, the claims resulting from the resale shall be transferred to us at the ratio of the invoiced value of the goods subject to retention to the invoice value of the other goods sold. With the resale of goods to which we have co-ownership rights pursuant to No. 2, a share corresponding to our proportional co-ownership shall be assigned to us.
5. The buyer is entitled to collect claims resulting from the resale. This authorisation to collect lapses in the event our revocation, however latest in case of default of payment, not honouring a bill or filing a petition for insolvency proceedings. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardised by the lack of the buyer's ability to pay. Upon our demand, the buyer shall be obligated to immediately inform his buyer of its assignation to us and provide us with the necessary documents required for collection.
6. The buyer shall immediately inform us of an attachment or other impairments by a third party. The buyer shall bear all costs that must be paid to cancel access or for return transport of the goods subject to retention unless they are compensated for by third parties.
7. Should the buyer fall in default or should he not honour a bill at maturity, we shall be entitled to withdraw the goods subject to retention and for this purpose to enter the premises of the buyer. The same applies in the event that, following conclusion of contract, it becomes noticeable that our payment claims resulting from this contract or from other contracts with the buyer are in jeopardy due to lack of solvency. Taking back the goods shall not constitute withdrawal from the contract.
8. If the invoiced value of the existing securities exceeds the secured claims, including incidental claims (interest; costs etc.), in total by more than 50 percent, we shall be obligated at the buyer's request in this respect to release securities at our option.

VI. Grades, dimensions and weights
1. Grades and dimensions shall be determined in accordance with the DIN-/EN or mills' standards effective at the time of the conclusion of the contract, in absence of such to the established practices of trade. References to standards, mills’ standards or material inspection certificates and details of qualities, dimensions, weights and usability are neither assurances nor guarantees, just as conformity declarations, manufacturers' declarations and corresponding labelling such as CE and GS are neither assurances nor guarantees.
2. The weighing performed by us or our suppliers is decisive for the weights. Evidence of weight is stated by presenting the weight note. As far as legally permissible, weights can be established without weighting according to standard weighing. The usual increases and reductions shall remain unaffected (commercial weights). The number of pieces, bundles or others stated in the delivery note are not binding if the goods are calculated by weight. If individual weighing is not usually performed, the overall weight of the shipment shall apply in each case. Differentials as compared with the calculated individual weights shall be distributed proportionately to these.

VII. Acceptance
1. If an acceptance procedure has been agreed, it can only take place in our plant or warehouse immediately after notification of readiness for acceptance. The personal inspection costs shall be borne by the buyer, the actual inspection costs are calculated for the buyer according to our price list or the price list of the supplying plant.
2. Should the acceptance not be undertaken in a timely manner or should it be taken incompletely through no fault of ours, we shall then be entitled to effect the delivery without acceptance or to store the goods at the cost and risk of the customer.

VIII. Dispatch, transfer of risk, packaging and partial delivery
1. We shall determine the dispatch route and means of transport as well as the forwarder and haulage company.
2. In accordance with the contract, goods that are reported as ready for dispatch must be released immediately; otherwise we are entitled, after a warning, to either dispatch or store at our discretion at the buyer's cost and risk and to bill immediately.
3. If at no fault of ours, transport on the proposed route or to the proposed location in the proposed period is not possible, we shall be entitled to deliver using a different route or to a different location; the buyer shall bear the resulting extra costs. The buyer will be given the opportunity to comment beforehand.
4. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the buyer at the time when handed over to the forwarder or to the haulage company, at the latest with their departure from our warehouse.
5. The goods shall be delivered unpacked and unprotected against rust. Should it be customary business practice, we shall deliver the goods packed. We provide packaging, protection and/or transport aids according to our experience at the buyer's cost. They shall be taken back at our warehouse. We shall not take over any costs of the buyer for return transport and for own disposal of packaging.
6. We shall be entitled to render partial deliveries of reasonable quantities. Standard industry additional and part deliveries of the completed amounts are permissible.

IX. Call orders, continuous deliveries
1. Where the contract provides for continuous deliveries, the buyer shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise we shall be entitled to specify them at our own fair and just discretion.
2. Where the single calls for delivery exceed the total contractual quantity, we shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.

X. Liability for defects
1. Defects in the goods must be communicated immediately in writing, at the latest seven days after delivery. Defects that cannot be discovered, even after a thorough examination within this period, are to be immediately communicated in writing as soon as they are discovered – whilst immediately discontinuing all handling and processing works -, at the latest before expiration of the limitation period.
2. In the event of a justified, punctual notification of defects, we can, at our option, either remedy the defective goods or supply faultless replacements (subsequent fulfilment). In the case of failure or refusal of subsequent fulfilment the buyer can withdraw from the contract or reduce the purchase price after unsuccessful expiry of a reasonable period. If the defect is not substantial or if the goods have already been disposed of, processed or altered, the buyer is only entitled to reduce the price.
3. We shall take over costs in connection with the remedy delivery in each individual case only insofar as they are reasonable in particular in relationship with the purchase price. We will not bear costs that are incurred in the situation where the sold goods have been brought to a location other than the agreed place of fulfilment, unless this was in accordance with their contractual use.
4. After performance of an agreed acceptance of the goods by the buyer, the objection to defects which could be determined at the agreed acceptance shall be precluded. If the buyer remained unaware of a defect because of negligence, he can only assert his rights resulting from this defect, if we maliciously concealed the defect, or if we have made a guarantee for the procurement of the item.
5. If the buyer does not give us an immediate opportunity to satisfy ourselves of the defect, in particular if he does not make available on demand the goods in question or tests on the goods for the purposes of inspection, all rights arising from the defect are inapplicable.
6. For goods that have been sold as declassed material, the buyer has no rights arising from defects, with regard to the specified declassification reasons and such defects, which normally occur. In the event of sale of IIa-goods, our liability for defects is excluded.
7. Further claims of the buyer shall be in accordance with paragraph XI of these terms and conditions. Rights of recourse of the buyer according to §§ 478, 479 of the German Civil Code remain unaffected.

XI. General limitation of liability
1. In the event of violation of contractual and non-contractual obligations, in particular for impossibility, delay, default in negotiating the agreement and any unauthorised action, we shall be liable – for our
executives including for any other servants or agents – only in cases of deliberate intent and gross negligence, restricted to a contract-inherent damage foreseeable at conclusion of contract. Generally, our liability is precluded, also for damage and consequential damage from defects.
2. These limitations do not apply to a culpable breach of substantial contractual obligations, if the fulfilment of the purpose of the contract is endangered, in the event of culpably effected damage to life, body and health, and then also not if we have made a guarantee for the procurement of the sold item, and in cases of mandatory liability in accordance with product liability legislation. The provisions relating
to burden of proof remain unaffected by this.
3. Unless otherwise agreed upon, any contractual claims which the buyer is entitled to in connection with the delivery of the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered to the buyer. This period applies also to such goods, which according to their usual application have been utilised for a building and caused its defectiveness, unless said
utilisation was agreed upon in writing. This restriction shall not apply to our liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damage to life, to the body and to health caused by our fault nor to any recourse claims under §§ 478, 479 of the German Civil Code.

XII. Place of performance and jurisdiction and applicable law
1. The place of fulfilment for our deliveries ex factory is the supplying plant and, for usual deliveries, our warehouse. The place of jurisdiction shall be – as far as permissible – Neuss. The jurisdiction clause applies only to companies, legal entities under public law and special funds under public law. In other respects we are also entitled to sue the customer at the customer’s registered office.
2. All legal relationships between us and the buyer shall be governed by the non-standardised laws of the Federal Republic of Germany supplementing these terms and conditions, especially the German Civil Code/German Commercial Code, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).

XIII. Applicable version
1. In case of doubt the German version of these General Terms and Condition shall be decisive.

Rosenberger GmbH • Duisburger Strasse 24 • D-41460 Neuss • +49 (0) 21 31 - 709-0 •