1. The present General Terms and Conditions shall apply only with respect to entrepreneurs within the meaning of § 14 German Civil Code (BGB), they shall not apply to consumers.
2. These General Terms and Conditions shall apply to the entire business relationship with our customers. They shall apply in particular to deliveries and services effected by us but also to deliveries and services effected by the customer to us, if and to the extent that products containing precious metals are concerned. Our Terms and Conditions of Purchase shall apply to the purchase of other products as well as to other services effected for us by the customer. We do not acknowledge any terms to the contrary or any deviating terms used by the customer, unless such have been expressly approved by us.
3. Our General Terms and Conditions shall also apply to future business, even if in specific cases we have made no reference to the same.
Besides the General Provisions under IV. hereof, the following provisions shall apply to deliveries made by us.
1. Offer and Conclusion of Contract
1.1 Our offers are without obligation and are not binding unless they have been expressly stipulated to be binding.
1.2 Each order shall be governed by our written acknowledgement of order which may also be sent together with the invoice. If the customer has any objections as to the contents of the acknowledgement of order, he must oppose such acknowledgement of order without delay. Otherwise the contract shall take effect in accordance with the acknowledgement of order.
2.1 If on delivery of products, a customer has to pay the portion of precious metals in Euros, any previously agreed price (fixed price) shall be primarily binding. If no specific price has been agreed, the price of the precious metal portion shall be calculated on the basis of the market selling rate quoted by the company Umicore (can be viewed at www.umicore.de) applicable on the day of delivery.
2.2 Prices shall be ex place of dispatch plus any value-added-tax, if applicable. Any costs for freight, packaging, insurance and other ancillary charges shall be borne by the customer.
3. Delivery of Precious Metals
We have the right to make the manufacture and delivery of ordered goods dependent on the prior supply of the quantity of precious metals required for this purpose by the customer. Delivery of the precious metal by the customer shall be for the account and at the risk of the customer. Upon delivery title to the precious metal shall pass to us. The customer will be credited with the corresponding amount.
4. Delivery and Passing of Risk
Dispatch and transportation of the goods shall be at the risk and expense of the customer. The risk shall pass to the customer as soon as the goods leave our premises, at the latest upon delivery to the customer. If we select the mode of shipment, the transport route or the shipping agent we shall be liable only for gross negligence with regard to such selection.
5. Delivery Period, Delay in Delivery and Default of Acceptance
5.1 The delivery period shall start on the day of our acknowledgement of order, however not before all details have been fully clarified, including but not limited to the receipt of advance payments, deliveries of precious metal or provision of security if such have been agreed.
5.2 In the event of Force Majeure, any interruption of operations beyond the scope of our responsibility or labour disputes the delivery period will be appropriately extended. The same shall apply if through no fault on our part material and/or accessories are not delivered to us or are delivered late.
5.3 If delivery is delayed for reasons for which we are responsible, we shall be liable, in cases of gross negligence, for the damage suffered by the customer on account of the delay. In the event of ordinary negligence, our liability for proven damages caused by the delay shall be limited in each case to a compensation of 0.5 % for each full week of the delay up to a maximum of a total of 5 % of the net price, excluding precious metal, for the part of the deliveries which could not be properly deployed for the intended purpose on account of the delay.
5.4 If delivery is delayed because the customer is in default of acceptance, if the customer fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible we shall have the right to claim compensation for the damage thus caused, including any extra expense (e.g. storage costs). For this we will charge an global indemnity amounting to 0.5 % for each calendar week up to a maximum of a total of 5 % of the net price respectively 10 % in the event of definitive nonacceptance, commencing with the delivery period or, if no delivery period has been agreed, with the day of notification that the goods are ready for dispatch.
6. Material Defects
6.1 The customer must inspect the goods without delay and must notify us immediately of any apparent defects or if the consignment is incomplete. Any hidden defects must be communicated as soon as they are discovered. Otherwise the shipment shall be deemed as having been accepted.
6.2 In the event of a defect for which we are responsible, we shall be entitled to carry out subsequent performance and we shall be free to either remedy the defect or to deliver goods free of defects in replacement. Our right to refuse subsequent performance as provided by the law shall be unaffected hereby. If we were not originally under the obligation to perform assembly, subsequent performance shall include neither removal of the defective item nor reassembly.
6.3 In the event of an actual defect, the costs of inspection and subsequent performance, including but not limited to transportation, shipping and handling, labour and material costs (excluding assembly and disassembly costs) shall be borne by us. However, if a customer request for a remedy of defects turns out to be unfounded we shall have the right to demand compensation from the customer for the costs thus incurred.
6.4 Claims for damages asserted by the customer shall be subject to the provisions stipulated under IV. 3 hereof.
7. Statute of Limitations
The general period of limitation for claims of the customer due to material defects shall be one year from delivery. Such limitation period shall also apply to the contractual and extracontractual claims for damages of the customer which are based on defective goods.
The statutory periods of limitation shall apply in the following cases:
- in case of injury to life, limb or health;
- for liability under the German Product Liability Act;
- if we have fraudulently concealed a defect;
- if we have furnished a guarantee;
- if the goods delivered by us are a building or an object that, in conformity with its customary manner of utilization, has been used for a building and has caused its defectiveness;
- for recourse claims against the supplier in the event of end delivery to a
8. Retention of Title
8.1 We retain title to all goods delivered by us until each and every claim we have against the customer, including future claims and incidental claims, has been paid in full. Claims shall also include receivables from cheques as well as receivables from current account.
8.2 If the customer is in default of payment or if it becomes apparent that our claims for payment are endangered by the customer’s inability to perform we shall be entitled to claim the surrender of the goods based on our retention of title.
8.3 In the event of distraint or other thirdparty interventions the customer undertakes to notify us immediately thereof. The customer shall bear all costs which need to be incurred in order to ensure that such intervention discontinues and to ensure the recovery of the goods delivered, to the extent that such costs cannot be collected from such third party.
8.4 Subject to admissible revocation for good cause, the customer shall be entitled to dispose of the delivered goods within the framework of his ordinary course of business. In particular it shall not be permitted to transfer the goods by way of security or to pledge them. The customer may only pass on goods that are subject to retention of title to the purchaser if the customer is not in default with respect to his obligations to us.
In the event of resale, the customer assigns to us already now all and any claims from such resale, in particular claims for payment, but also other claims relating to the sale, up to the total amount of our invoice (including value-added-tax), irrespective of whether the goods delivered were sold without or after processing.
Subject to our admissible revocation for good cause, the customer shall be entitled to collect the assigned claims on a fiduciary basis. Resale of the receivables within the framework of actual factoring shall be subject to our prior consent. For good cause we shall have the right to notify thirdparty debtors of the assignment of claims also on behalf of the customer. Notification of the assignment to a thirdparty debtor shall end the customer’s right to collect the debt. If the right to collect the debt is revoked, we can require the customer to disclose to us the claims assigned as well as the debtors thereof, to provide us with all information required for collection, to hand over all relevant documents and to notify the debtors of the assignment.
Good cause within the meaning of the present stipulations shall include but not be limited to the customer being in default of payment, the customer having suspended his payments, in the event of insolvency proceedings having been initiated against him or in the event of evidence indicating an overindebtedness or imminent insolvency of the customer.
8.5 If or to the extent that a retention of title or an assignment of claims is ineffective or unenforceable due to mandatory provisions of foreign law, the security corresponding to retention of title or assignment of claims applicable in this area shall be deemed as agreed. If, according to this, the assistance of the customer is required, he must take all steps necessary in order to establish and maintain the security.
III. Recycling and Purchase
In addition to the General Provisions the following supplementary provisions shall apply to the recycling (precious metal recovery) and purchase of products containing precious metals.
1. Properties and Condition
1.1 Before conclusion of the contract the customer must inform us in writing of any hazardous nature (e.g. toxic, corrosive, explosive, highly flammable or radioactive components) as well as of any harmful or obstructive components (e.g. chlorine, cadmium, bromine, mercury, arsenic, selenium, tellurium, etc.) of the material to be delivered (material to be processed). Such material may be delivered to us only with our prior written consent. The material to be processed must be appropriately packaged, taking into consideration all and any instructions which may have been given by us.
1.2 The customer shall be liable for all and any damage resulting from failure to notify us of the hazardous or harmful nature of the material to be processed.
1.3 We reserve the right to increase the handling or processing costs as well as the right to extend the periods for return delivery or the purchase periods if specific properties or characteristics of the material to be processed not known to us upon acceptance of the order require additional expenditure.
2. Delivery / Passing of Risk
The customer shall bear the costs and the risk of the delivery of the material to be processed until it is handed over to us or delivered to the place of delivery designated by us. If we have agreed with the customer that the material to be processed is picked up by a third party, risk shall pass to us when the material to be processed is handed over to us or to the shipping agent commissioned by us.
3. Passing of Title
Title to the delivered material to be processed shall pass to us with the melting of the material. If previously, upon conclusion of a purchase contract, we have paid a purchase price to the customer, title to the material to be processed shall pass to us upon payment or advance payment of the purchase price. Both parties, i.e. we and the customer, agree on the passing of title.
The material to be processed will be melted by us. Samples will be taken from this process to determine the weights and contents of the precious metals. We render an account based on the results of this analysis and inform the customer thereof. Such account will become binding if the customer agrees to it or if the customer does not object to it in writing within three working days after receipt of the statement. Once the account is binding we have the right to continue processing the material.
The customer will receive a credit entry based on the weights and contents of precious metal determined in the account. Depending on what has been agreed, the customer is either entitled under the law of obligations to delivery of the corresponding quantities of precious metal or, in case of a purchase contract, entitled to payment of the purchase price for the precious metals.
5. Compensation / Offsetting
The customer owes to us the compensation invoiced by us for recycling. We shall have the right to offset the payment due to us for recycling against claims of the customer against us or assert rights of retention.
6.1 If we enter into a purchase agreement with the customer on the basis of which we buy precious metals from the customer, the price agreed with the customer shall apply primarily hereto, otherwise our day’s rate for purchases (according to II. 2.1 hereof). Such shall also apply if the purchased precious metal is only obtained after the recycling process.
6.2 If a purchase contract was concluded, the customer undertakes to make the purchased precious metals fully available to us. If the customer does not provide us with the full amount of the precious metal purchased we may, at our option, require the customer to subsequently deliver us with the shortfall quantity of precious metal or, if we have already paid the purchase price to the customer, require the customer to refund to us the money paid in excess in accordance with the missing quantity of precious metal. Furthermore, after setting an appropriate deadline, we may also assert claims for damages. Such damages may in particular be determined in such a way that we procure the precious metal owed by the customer elsewhere and, if applicable, assert a higher purchase price as damages. The aforesaid provisions shall in particular also apply if, after recycling, it is found that the precious metal content actually obtained does not conform to the precious metal content determined by us as purchased quantity before recycling.
IV. General Provisions
The following General Provisions shall apply to all business relations with the customer within the scope of these General Terms and Conditions.
1. Terms of Payment
1.1 Unless otherwise agreed, invoices shall be paid net, without deduction, within 14 days of the date of the invoice. Invoices for precious metals shall be due for payment net, without deduction, within 3 days after receipt. Upon expiry of the aforesaid payment deadlines the customer will be in default of payment.
1.2 Cheques shall only be accepted on account of payment. Bills of exchange shall only be accepted with our prior written consent and shall not be deemed an extension of the term of payment. Any resulting discount charges shall be borne by the customer.
2. Offsetting against Claims and Retaining Lien
2.1 The customer may only offset counterclaims that are undisputed or recognised by declaratory judgement. The customer may only enforce a right of retention if such claim is based on the same contractual relationship.
2.2 If, after conclusion of the contract, it becomes apparent that our claim to the purchase price or to the otherwise agreed compensation is endangered by the customer’s inability to perform (e.g. due to a petition for the initiation of insolvency proceedings), in accordance with the statutory provisions we shall have the right to refuse performance and – after setting a deadline, as the case may be – to withdraw from the contract, § 321 German Civil Code (BGB). In case of contracts on the production of individual items (custommade products) we are entitled to declare our withdrawal immediately; the statutory provisions on the dispensability of setting deadlines shall be unaffected hereby.
3.1 In the event of intent and gross negligence we shall be liable for damages, irrespective of the legal reason upon which these are based. We shall be liable for ordinary negligence only in the following cases:
- for damages resulting from the injury to life, limb or health of a person;
- for damages resulting from the breach of fundamental contractual obligations (obligations, the performance of which are essential for the proper execution of the contract and the observance of which the customer regularly relies and may rely upon); in such case, however, our liability shall be limited to the compensation of the foreseeable damages that typically occur.
3.2 The present limitations of liability shall not apply if we have fraudulently concealed a defect, have furnished an express guarantee as well as for liability under the German Product Liability Act.
3.3 The legal provisions on burden of proof shall be unaffected by the aforesaid provisions.
4. Right of Lien
4.1 The customer hereby grants us a right of lien to all assets of whatever type or nature which may come into our possession or under our control within the scope of the business relationship. This shall include all and any objects and rights of whatever nature as well as claims the customer may have against us.
4.2 The lien shall secure all and any claims we may have against the customer in connection with the business relationship, i.e. all and any existing and future claims, conditional claims or claims subject to a timelimit and statutory claims.
4.3 We will only retain the assets subject to a lien under these General Terms and Conditions in case of a legitimate interest for security. We have the right to utilise the assets if the customer fails to meet his liabilities upon maturity in spite of a reminder granting him a reasonable extension and threatening utilisation of the assets in accordance with § 1234  of the German Civil Code (BGB).
5. Release of Securities
Upon request of the customer we will, release securities at our option, if the realisable value of the securities to which we are entitled exceeds the value of our claims by more than 10 %.
6. Place of Performance, Jurisdiction, Applicable Law
6.1 Unless otherwise agreed, place of performance for delivery, payment and all other obligations arising from the contractual relationship shall be Pforzheim.
6.2 In the event of any legal disputes arising out of the contractual relationship as well as its creation and effectiveness, our company’s principal place of business shall have exclusive - also international - jurisdiction for both parties if the customer is a merchant, a public law entity or a special fund under public law. At our option, we may also bring an action at the customer’s seat.
6.3 These General Terms and Conditions as well as all legal relationships existing between us and the customer shall be governed by German law excluding the international conflict of law provisions and the international unified standard law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).