Deutsche Nickel GmbH - General delivery and payment terms

§ 1       General Regulations

1.1    These general delivery and payment terms are valid for all parties – including future offers, contract agreements, deliveries and other procedures valid under service contracts (also including subcontract "Hire-work") between us and the "purchaser/customer". Any deviating conditions laid out by the purchaser, which are not explicitly confirmed by us in writing are therefore non-binding, even if we agree a contract without clearly objecting to such conditions.
In case of an effective defensive clause we make use of our proprietary rights under regulation §10 for goods (“Goods” or also to include “delivery items”) delivered to the customer in coverage of the purchase order.

1.2    These general terms of delivery and payment terms are specifically applicable to companies, personnel representing the public law, or public law entities in terms of German Civil Law §310 paragraph 1.

§ 2    Quotation and Order placement

2.1    All offers issued are non-binding and free of obligation. The contract is only then in place and intact as soon as we have confirmed the acceptance of the order in writing or have issued the order confirmation. Our written order confirmation is decisive towards the extent of the supply. All arrangements are expected to be in writing; this is also valid for additions, amendments and any additional agreements. We reserve the right to undertake correction of mistakes as issued on offers, order confirmations and invoices.

2.2    The written contract acts as the only decisive and binding entity for the legal relationship between us and the customer, in association with these general terms of delivery and payment. This concerns all agreements made between the parties obliged to the contract. Verbal promises made by us prior to contract agreement between the parties are not legally binding and any verbal agreements made between the parties will be replaced by the written contract, provided that it does not explicitly mention the validity of the subject matter as mentioned previously.

2.3    All information contained in our brochures, catalogues and advertisements, as well as any documentation provided with quotations (such as pictures, drawings, samples, brochures, technical designations and catalogues) as well as other technical data are non-binding. They are merely for descriptive purposes and should only convey a general idea of the goods represented. The aforementioned data can only be considered a component of any contract, if it is explicitly confirmed in writing by us as obligatory.

2.4    Additions and changes to agreed arrangements including these general terms of delivery and payment can only be considered effective if agreed in writing. This is also valid in the case of waiving the requirement for written confirmation. With the exception of managing directors or authorised managers, our employees are not entitled to confirm any verbal agreements. In order to safeguard the written form, transmission via fax is accepted, however electronic transmission, in particular by e-mail is not sufficient.

2.5    Written communications sent by post from our side are considered as received by the customer, as long we can prove we have sent these to the latest documented address, fax number or email address as provided by the customer.
Excluded from this assumption of receipt are important announcements, especially notices of termination, resignation or contract extension.

§ 3    Prices, Payment terms, and Group settlements

3.1    Our prices are valid as Ex-works (EXW according to INCOTERMS 2010) excluding sales tax and any other resulting taxes, unless agreed otherwise.
In the event of essential changes to certain expense factors (in particular the costs of wages, raw material, energy or freight) arising between order confirmation and date of delivery; we reserve the right to proportionately factor these additional expenses onto the initially agreed price.

3.2    Our internal costing calculation is based on the requested order quantity, as specified by the customer. Should the customer subsequently decide to only accept delivery of a lesser quantity than agreed, we will be entitled to increase the initially agreed price as appropriate.
3.3    All invoices are due for payment within 30 days from the invoice date (for hire-work payment is due within 8 days). The due payment amount must clear into our bank account by the due date at the latest.

3.4    In the event of late payment, we are entitled to charge interest on arrears at the rate that our Bank calculates for us regarding current account credit. In any case this will be at least 8% above the European Central Bank’s base rate valid at that time.

3.5    The customer may only offset on indisputable or legally confirmed grounds. Retention rights are only entitled to the customer as long as they are based on the same contractual agreement.

3.6    In case of new circumstances arising which could cause financial difficulties and risk to our payment claim, we are entitled to demand the whole payment settlement at any time, thereby over-ruling any previously agreed payment terms.

3.7    In the case of the customer delaying payment and thereby generating arrears, we reserve the right to cancel the agreement and claim compensation for the entitled amount, after expiry of an adequate settlement period. If the payment delay caused by the customer points to a risk to the settlement of a significant part of the money owed, we are in addition entitled to prohibit the processing of the delivered products and further to collect the delivered goods, even if this necessitates entering the customer’s company premises. Such a re-possession of delivered products does not cancel the contract. The provisions and procedures of any insolvency order would remain unaffected.

3.8    Should the customer delay any agreed partial payment, we are entitled to demand settlement of the whole invoice amount with immediate effect.

3.9    In the case of §3.7 and §3.8 we can revoke the proprietary right under regulation §10.7 and insist upfront payments for outstanding deliveries.

3.10    The customer can avoid §3.7 and §3.8 with provision of a security payment / deposit to cover the amount at risk.
In case of §3.7 or §3.8; should the customer undertake neither an advanced payment nor offer an adequate security payment within the set notice period, we reserve the right to exit the contract with the provision to claim compensation. We are also entitled to our claims regardless of type and extent of the security demand, even if conditional or time limited.

3.11    The customer’s right to determine which demands are paid are waived in favour of the legal repayment regulation of German Civil Law §366 paragraph 2.

3.12    The legal regulations regarding default of payment remain unaffected.

3.13    Due to the authorisation given to us through our group companies ("affiliated companies"), we retain the right to invoice and charge the customer in response to any claims made by them against either ourselves our one of our affiliated companies. The customer would be provided with an off-set settlement valuation and thereby end his responsibility for payment and his liability to the relevant affiliated company. Only the group companies affiliated with us according to §18 AktG can be involved in this settlement process.
According to customer request we will promptly disclose these affiliated companies. The above settlement procedure is also valid for demands and obligations which are not yet due in respect of granting a discount of general bank interest rates.
This settlement process does not differentiate between payment types (e.g. cash payment or banker’s draft).

§ 4    Dimensions, Weights and Specifications

4.1    Grades and dimensions are determined by agreement and will be governed further by the German Institute for Standardisation, DIN and EN Norms or to commercial standards in the absence of any agreement made on completion of the contract.
References to specifications, factory standards, material data sheets or test certificates as well as any information about the grades, measures, weights and usability provide no assurances or guarantees, nor are conformance declarations, manufacturer's declarations and registered marks such as CE and GS.

4.2    Deviations in dimension, weight, grade and other specifications are allowed according to the German Institute for Standardisation (DIN), EN if covered by a valid standard.
Manufacturing dependent under or over-deliveries of quantities are allowed within a tolerance of +/-10% of the whole order quantity.
Deviations within this context do not include the material quality in respect to German Civil Law §434. Any quantity that is over-delivered in respect to the order but within the tolerances as mentioned above becomes valid for invoicing and is therefore payable by the customer.
Any other deviations are subject to special agreement.

Weights are measured by our calibrated scales and are decisive for invoicing. In case of hire-work, the materials as received are weighed by our scales and become decisive for accounting and consequent invoicing. The proof of weight is confirmed on the scale print-out. When legally allowed, we reserve the right to determine the weight by theoretical calculation as per the relevant standard. Any additions or reductions of commercial weights typical for the steel industry in the Federal Republic of Germany remain admissible.

Any given number of pieces or bundles etc. as stated in the delivery note are irrelevant for invoicing except for the weight.

The total weight of the whole consignment is valid in each case unless piece by piece / individual weighing has been agreed. Calculated deviations in respect to the individual weights are spread over these accordingly.

§ 5    Dispatch and Risk transfer

5.1    Route and means of transport, as well as the choice of forwarding agent or carrier are defined by us, unless otherwise previously agreed.
5.2    Material declared ready for dispatch is to be taken over by the customer immediately. If the dispatch of the ordered material for which the customer is responsible gets delayed by the customer, we are entitled to demand any incurred cost caused by this delay.

5.3    Any damage to the goods caused during transport must be declared immediately with a damage inspection and notification report to be sent to us in writing.

5.4    As long as no other written agreements have been made between the parties the transfer of risk is passed on to the customer as soon as the goods are handed over to the transport company, agent, carrier or even loading onto our own vehicles. In any case latest by dispatch and exit from our premises. This is also valid for arranged part deliveries or where we have agreed for example on covering the transportation- or delivery costs. The customer may not refuse the delivery in case of a claim for minor defects.

5.5    If the dispatch is delayed on the request of the customer or as a result of circumstances for which the customer is responsible, the risk transfers to the customer with the issue of the material delivery note.

5.6    Commercial terms are interpreted in accordance with the INCOTERMS 2010 regulations.

5.7    We are entitled to despatch part deliveries if (i) the partial delivery can still be utilized by the customer for its intended use, (ii) the delivery of the remaining quantity can be guaranteed and (iii) it does not result in significant additional expenditure or costs to the customer (in such cases we would consider the possibility of contributing to such costs).
5.8    Unless customary or agreed otherwise, the product will be delivered unpacked and unprotected against the formation of rust.
For any material packed by ourselves, we will arrange for any packaging and protective material, as well as any transportation aid (eg. pallets) and charge the customer for the cost of this accordingly. The return of the delivery packaging is subject to the agreement we have in place with the customer. We are not responsible for any costs associated with return delivery of packaging or for the disposal or recycling of the packaging by the customer.  

§ 6    Lead times, Delivery delays

6.1    Any lead times or dates quoted by us in respect of deliveries or processes are only to be considered as approximate, unless a firm lead time or date has been specifically agreed. Should such an agreement be legally binding, then any liability must be agreed in writing.

6.2    In case of the customer not fulfilling their own contractual duties on time, including co-operation duties or secondary obligations - for example provision of any necessary official certificates or licenses, including any export licenses, opening of Letters of Credit, provision of domestic or export certificates, credit of any advance payments or similar, we reserve the right to postpone the lead times as necessary and adjust our production planning accordingly without any liability to the customer. Furthermore, we can only adhere to the stated lead time if all commercial and technical questions between the contract parties have been agreed.

6.3    Unless otherwise agreed, we dispatch on "ex-works" basis (EXW according to INCOTERMS 2010). The only relevant information for checking whether a quoted lead time or dispatch date has been maintained is a notification from ourselves that the material is ready for collection or despatch. Should the customer subsequently request any amendment to an already booked order, which requires an increase in production time, then the originally quoted lead time will be extended accordingly.  

6.4    Our delivery obligation is subject to on-time receipt of delivery to ourselves by our suppliers, unless we ourselves are responsible for the late receipt of delivery by our suppliers. Our contractual obligation for delivery and performance exists under the pretext that this is not affected by obstacles such as national or international regulations, export regulations, embargoes or other sanctions.

6.5    In the case of any of the following situations, we are entitled to extend the leadtime by the duration of the impediment plus a reasonable response time: force majeure, labour disputes, riots, government measures, as well as non-fault internal operational problems (e.g. fire, plant or rolling mill failure, raw material shortage, power cut, illness-related shortage of key employees, as well as strikes, lockouts or a lack of employees in general), delays on transport routes, delays caused by import/export customs clearance, as well as any other non-fault causes. The same applies for any of these issues at our suppliers or subcontractors. This is also valid if such events occur during a time at when we are already in a delay period, unless we have deliberately caused the delay through negligence. The contracted parties are obliged to provide the necessary information as quickly as is reasonable and to adapt their liabilities to these changed conditions and circumstances in good faith.

6.6    The industry standard under- or over-deliveries of order quantities is allowed. The statement of "circa" entitles us to under or over-deliver respectively by 10%.

6.7    In case of a delivery being delayed, we are entitled to receive a reasonable lead time extension by the customer. Any reminders or new requested dates reported by the customer must be in written form. Should the goods still not be ready for dispatch after the deadline set by the customer, then the customer is entitled to withdraw from the contract or indeed cancel the contract only if the threat of order cancellation was explicitly mentioned in respect to the deadline set at the time of writing. Any further liability is excluded as per German Civil Law §287. If we enter a period of delay of delivery or service, or if we find that the fulfillment of delivery or service becomes impossible for any given reason, then our liability is limited to compensation in accordance with §11 of these general terms of delivery and payment.

§ 7    Commercial protective rights

7.1    Our quotations, drafts, drawings and other documents or models remain our property. The customer is only entitled to use such material for the purpose of their contractual arrangement with us. We retain the copyright with all exclusive rights for any documents and information provided to the customer, even if any of this information and data was published in co-operation with the customer. Distribution of such information to a Third Party is only permissible following receipt of a written request by the customer and our corresponding approval. Any document and/or drawing provided by us as part of the offer is to be returned by the customer immediately, either at our request, or in the case of the order not being booked. In addition any hard copies are to be destroyed and soft copies to be permanently deleted from any electronic media.

7.2    In case a customer places and order with us to manufacture a product in accordance with any drawings, samples or other requirements which in turn contravene the protective rights of a Third Party, the customer is deemed to be solely responsible and obliged to declare us free from any liability or claim. We are not obliged to the check any provided documents nor the existing protective commercial rights of any Third Party.

§ 8    Call-off orders

8.1    Call-off orders for goods which have been reported as ready for dispatch must be called off immediately, otherwise we reserve the right i) to dispatch these goods in accordance with our choice of transport, following on from the issue of a reminder, pointing out the expenses and risks to the customer or ii) to stock the material in a manner we consider suitable and invoice the goods immediately.
Should the customer fail to call off the ready-produced and reported goods within three months of the date of the reminder, we are entitled to immediately cancel either the call-off schedule itself, or the frame contract of which the call-off schedule is part and also cease manufacturing any further material in production for the call-off schedule.
The customer is obliged to call-off and be invoiced for any produced goods within three months starting from the cancellation date, so long as the call-off schedule does not indicate any earlier due date for dispatch and invoicing.

8.2    For agreements based on a rolling schedule, we expect to receive call-offs for similar monthly quantities; otherwise we are entitled to determine the most efficient terms ourselves. In case of the individual call-off quantities exceeding the agreed total quantity as stated within the frame-contract, we are entitled to over-deliver, but are not obliged to. Furthermore we are entitled to invoice this excess quantity at the same unit price as for a normal call-off consignment

§ 9    Obligation to give notice of defects, faulty products, guarantee

9.1    Public announcements, marketing literature or advertising are not guarantees of product quality. Any claims made by ourselves regarding the quality of our goods cannot be regarded as a guarantee, unless both parties agree specifically to such in writing. Such guarantee agreements are only binding if made by our legal representatives and our authorised managers. In this case the customer’s rights are determined by the content of the guarantee agreement provided by us. The customer has to apply for any claim in writing within two months of receipt of the warranty case  (preclusion period).

9.2    The delivered goods are to be inspected immediately and carefully after receipt by the customer or his requested Third Party. Material defects of the goods should be reported immediately in writing, latest within seven days. Any material defects, which were not initially observed even by careful examination within the first notice period, should be reported in writing as soon as these have been discovered, latest within four days, with any further processing being stopped immediately after the detection.

9.3    We shall be granted a reasonable reaction time to assess the claimed material defect. The rejected goods are to be returned to us immediately if requested by us. In any case where the material defect claim is subsequently accepted by ourselves, we will compensate the transportation charges in full, on condition that these costs are not increased due to the fact that the delivered material has to be returned from a different location than the originally agreed delivery address.

9.4    According to commercial law and the following limitation regulations, we guarantee rejected materials if a notice of defects has been justifiably submitted within the appropriate period (except for hire-work, for which §9.11 applies). In case of an agreed initial sample testing at time of delivery, no claim can be accepted for any defects which were not detected during that first sample inspection by the customer.

9.5    In the case of acknowledged defects to the delivered goods, we reserve the right to offer re-worked or replacement material within a reasonable set period. In case of repeated failure, i.e. due to the impossibility, unacceptability, refusal or unreasonable delay of the re-work or replacement delivery, the customer can withdraw from the contract or request a reduction on the purchase price where appropriate. In the case of only slight material defects being present, the customer is not entitled to withdraw from the contract. In any case, the prerequisite of any customer right to cancel the contract must be the expiry without a successful outcome of the predetermined and written time period, unless a settlement term is deemed legally unnecessary. Should the customer choose to withdraw from the contract due to a legal dispute or material fault, no further entitlement to compensation claim will be granted to him except for this particular fault. In the case of cancellation, the customer would become liable for any deterioration, downgrade or non-utilisation, not only for due diligence but also for all obligations. In case of re-working faulty goods; at our request, the customer has to explain the defects in the form of a written fault report and provide any other relevant data, which may be helpful for investigating the defect. We will cover the costs of the rework and transport, so long as this has not increased due to the fact that the material has been moved to a different location than originally agreed.

9.6    The mere performance of replacement services from our side does not constitute acknowledgement of any material defects as claimed by the customer, irrespective of the scope of work carried out. The approval of such acknowledgement can only be made by our legal representatives or authorised managers.

9.7    If we acknowledge responsibility for the fault, we will offer compensation payment for damages or any unsuccessful additional expenditure incurred by the defect, but only within the scope and limit according to §11 of these general terms of delivery and payment.

9.8    We will not respond to claims for minor material defects which have insignificant impact on the value or usability of the product.

9.9    The guarantee entitlement of the customer is revoked, should the customer undertake changes to the delivery goods without our approval or allow changes to be performed by a third-party such that they impair the intended repair process by making it unreasonably complicated or even impossible. In such a case the customer has to cover any additional costs incurred by the performed changes which are then necessary to facilitate the intended repair.

9.10    The customer’s right to redress remains unaffected according to German Civil Law §478. However, The customer’s right to redress against us is only valid if the customer has not made any further agreements with his own customer which might extend beyond the claim for defects.

9.11    For goods which have been sold as second rate material e.g. so called II-a-Material, the customer has no quality guarantee entitlement, due to the stated lower quality classification of such goods, than the customer therefore would usually expect.

9.12    Regarding Hire-work orders, we are only liable to attempt to re-work the material to the best of our ability, on condition that the claim for defects has been correctly reported by the customer within the required time-scale. In case of repeated failure, i.e. due to the impossibility, unacceptability, refusal or unreasonable delay of the re-work or replacement delivery, we do agree to pay compensation within the scope and limits according to §11 of these general terms of delivery and payment.

§ 10    Retention of title

10.1    All delivered goods remain our property (retention of title) until the fulfilment of all demands; in particular payment of any open invoices, to which we are entitled as part of the business relationship. This is also valid for future and contingent demands, e.g. reverse bill of exchange.

10.2    Any further processing or treatment of goods subject to retention of title is handled by us as a manufacturer without any obligation in respect to German Civil Law §950. The processed or treated product remains subject to retention of title as per the terms of § 10.1.

10.3    If the customer processes, combines or mixes the goods subject to retention of title with any other goods, then we are entitled to joint proportionate ownership of the total (new product) in relation to the invoice value of the goods subject to retention of title. Should we lose our property through combining, mixing or processing, the customer instantly transfers to us to his acquired ownership and claim rights for the new object or product to a value reflecting the invoice value of the goods subject to retention of title, where in case of processing, the invoice value of the reservation goods relative to that of the invoice value of the processed goods is transferred free of charge in our favour. Our co-ownership rights remain valid for goods subject to retention of title according to § 10.1.

10.4    The customer may resell the goods subject to retention of title under his normal business terms and in accordance with his usual business dealings as long as he fulfils his obligations towards our business relation and provided that the customer has further agreed retention rights with his buyer with respect to retention of title of the resold goods reverting back to us in line with §10.5 and §10.6.
The customer is not entitled to any other form of disposal of the reservation goods.
Also the usage of goods subject to retention of title for the completion of factory or factory-supply orders are also considered in the same way.

10.5    The obligations of the customer with regards to the further disposal of the goods subject to retention of title are already assigned to us. They primarily serve as security, similar to the goods subject to retention of title stated in § 10.1.

10.6    Should the customer resell the goods subject to retention of title along with other goods, the entitlement to payment from this resale is surrendered to us for the invoice value of the goods subject to retention, relative to that of the invoice value of the other goods.
In case of resale of goods, for which we posses joint-ownership according to §10.3, an appropriate part of payment demand entitlement is reverted to us in respect to the joint-ownership we hold.

10.7    The customer is entitled to make payment demands from the resale. However, this authorisation is cancelled at our repeal, in particular in case of delayed payment, non-redemption of a bill of exchange or application for any insolvency procedure. We only exercise our right of repeal according to §3.10.
At our request, the customer is obliged to inform his buyer immediately of the cancellation, if not already performed by ourselves, as well as to provide us with any relevant information and documents needed for account receivables. With respect to payment demands, the customer is considered as the trustee with the explicit obligation to honour payment settlement of the owed funds minus any of his own additional costs.

10.8    The re-assignment of any payment demands from further resale to a Third Party is not allowed, unless, it relates to delegating the debt to a reputable factoring institution, which is to be indicated us and where the factoring value exceeds the value of our own firm payment demand.
Our payment demand becomes immediately due as soon as the factoring institution credit has been issued.

10.9    The customer must inform us immediately of a seizure or other impediments instigated by a Third Party.

10.10    Should the value of the existing securities exceed the value of payment demands by a total of more than 20%, we have the option to decide on the release of the securities in response to request from the customer.

10.11    Failure of due diligence by the customer, in particular with respect to failure to make payment, provides us with the right to cancel the order and demand the return of goods, subject to the expiry without settlement of a reasonably set payment deadline; the legal terms for the settlement period remain unaffected. The customer is obliged to release settlement on demand.

We are entitled to cancel the contract as soon as any insolvency procedure is commenced against the assets of the customer.

10.12    At our request the customer is obliged to immediately inform his customers about our contract cancellation and furthermore to provide us with the necessary information and documents needed for the collection. In case of payment delay and at our request, the customer has a duty to provide us with details of his own customers to whom the goods subject to retention of title have been sold, unless these have already been fully paid for.

10.13    The customer has the duty to inform us immediately and hand over any relevant documents issued by Third Parties, especially in case of enforcements measures, and will furthermore have to clearly point out to any Third Party rights or threats of intervention to secure ownership the goods under retention of title and other receivables or securities allocated to us. This is also valid for any other type of intervention claim. The customer is liable to settle the cost of such procedures.

10.14    Should the customer intend to transfer the delivered goods to another country, we must be notified of such immediately in writing. At our request the customer must provide us with a suitable security guarantee with regards to the rights of title of the supplied goods in full compliance with the legal system of the destination country.

§ 11    General limitation of liability

11.1    Our liability for compensation is limited to the provisions stated in this § 11, irrespective of any legal foundation, in particular in the case of  failure or delay to deliver, supply of defective or incorrect material, breach of contract, breach of duties at contract negotiations or unauthorised activity which leads to indebtedness.

11.2    We do not accept liability in case of minor carelessness by our bodies, legal representatives, employees or other personnel, as long it does not involve any breach of essential contractual obligations. This would include firmly established contractual duties whose infringement would endanger the purpose of the contract, as well as  contractual duties deemed necessary for the completion of the contract upon which the customer continually relies on and would be expected to rely on.

11.3    Insofar as we are liable for compensation according to §11.2, this liability is however limited to damages which we have envisaged as a possible consequence of a breach of contractual agreement, or which we would be expected to foresee through due diligence. Any indirect or consequential damages caused by the supply of any defective product are moreover only subject to compensation in cases where the product is used in the intended way and causes such damages.

11.4    The preceding disclaimers of exceptions and limitation of liability apply equally to our  bodies, legal representatives, employees or other personnel.

11.5    The limitations to our liability stated in §11 do not apply in case of:
-     gross conduct, eg. we deliberately conceal a fault,
-     guaranteed quality features,
-     death, injury, or other health issues,
-     the product liability law.

11.6    Claims for reimbursement of expenses made by the customer are limited to the value of demand required to fulfill their contract.

11.7    The onus of proof remains valid as per the regulations stated in §11.

§ 12    Liability period

12.1    The expiry date for quality-related fault claims under the statute of limitations is one year from the date of delivery. Fault claims related to a building or to an item which caused the fault, despite being utilised according to its intended function for a building, will have a statutory limitation period of five years.
In the event of replacement material being supplied, the liability period does not restart from the beginning. Any contractual claims made by the customer due to breach of obligations by the supplier and any non-contractual claims made by the customer also have a deadline of one year starting from the commencement of the legally recognised liability period.

12.2    The following exceptions to the aforementioned regulations in §12.1, will lead to the corresponding legal statutory limitation periods being applied, if and when a) the claim of the customer against us is based on German Civil Law §478 or §§651, 478 or b) the claim made by the customer against us is due to our intentionally malicious behaviour or gross misconduct by personnel working for us, or c) the claim made by the customer against us is due to death, injury or other health issues, or d) the claim made by the customer against us is issued through the product liability law, or e) defect claims made by a Third Party in rem, in which case the surrender of the purchased item can be requested, or f) defect claims residing on another registry as stipulated in the code of law. The regulations in §12.1 are furthermore not valid if the filed claim is covered by a guarantee made by us in relation to German Civil Law §443. In this respect the following regulations stated in §12.3 come exclusively into effect.

12.3    The statutory limitation period for claims that are based on an issued guarantee, are subject to the German Civil Law §438, unless, a shorter period of limitation arises from the contents of the guarantee.

12.4    The valid period for liability claims from or in connection with the contractual relationship between the parties comes to an end according to German Civil Law §203, as and when we or the customer refuse the continuation of the negotiations concerning the claim or refuse to accept the claim due to its circumstances. Provided that neither of the parties explicitly declares the failure of the negotiations in writing, the continuation of the negotiations will be considered open for up to six months after the date of the previous correspondence relating to the claim itself or the circumstances behind the claim.

12.5    12.5 The regulations of German Civil Law §§196, 197, 479, as well as the rules of the burden of proof remain unaffected by the aforementioned regulations §§12.1 to 12.4.

§ 13    Applicable law, Place of fulfilment and Jurisdiction

13.1    The Law of the Federal Republic of Germany applies, to the exclusion of the Convention of Contracts for the International Sale of Goods, as issued by the United Nations on 11th of April, 1980 (CISG).

13.2    Place of fulfilment and exclusive legal place of jurisdiction for both contractual parties is considered to be in Schwerte (Germany), as far as legally admissible. We are also entitled to institute court proceedings against a customer at their legally registered location.

§ 14    Export compliance

14.1    The customer accepts German, EU and foreign export control regulations and restrictions, together with a commitment not to sell on, nor to export, re-export, deliver or pass on the goods (including technical information) either directly or indirectly to those people, companies or countries, which are not permitted by German or Foreign laws or regulations.

14.2    The customer is obliged to inform us immediately of all information necessary for the verification of matter of facts relating to any embargo, in particular the name and address of the end-customer, place of installation or usage, as well as the intended application. The customer remains duty-bound to maintain sole responsibility for carrying out these checks and providing us with the results of these checks. Should the customer fail to carry-out these end-customer information and verification duties, we are entitled to exercise our right of product retention and furthermore to cancel the contract, should the customer still not fulfil his aforementioned obligations within a reasonable stated deadline.

14.3    Moreover, the customer commits himself, prior to any export of the goods (within or beyond the EU) to obtain at his own expense all necessary export licenses, import or export permits or other documents in connection with a (subsequent) import, export, re-export, transfer or use of the goods and further to oblige and to inform all other goods receiving parties within the supply-chain in the same manner about the important necessity of adherence to these laws and orders. The customer takes accepts full liability for the disregarding of any relevant regulations by Third Parties in the supply-chain and absolves us from any consequent claim. In addition, the customer will notify us promptly should he become aware of any offences committed by Third Parties against their obligations in connection with (re-) export of the goods themselves or other products manufactured using these goods.

§ 15    Final provisions

15.1    Our previously issued general terms of delivery and payment are hereby no longer valid.
15.2    Should the contract or these general terms of delivery and payment contain regulatory gaps, the relevant legal regulations for the fulfilment of these gaps will be valid, such as the contractual partners would have originally agreed regarding the economic objectives of the contract and the purpose of these general terms of delivery, if they had known about these regulatory gaps from the outset.

The customer is herewith informed that we will retain data from the contractual relationship for the purpose of data processing according to §28 of the Federal Data Protection act and furthermore reserve the right to transmit such data to Third Parties (e.g. insurance companies etc.) as required to fulfil the terms of the contract.

Deutsche Nickel GmbH    
Schwerte, 01. August 2016