General Terms and Conditions of Sale

Sept. 1st, 2015

1. Scope

1.1. These general terms and conditions (“Terms and Conditions”) shall apply to all sales of goods from Golden Egret Carbide Germany GmbH (“GESAC”) to entrepreneurs, legal entities under public law or special funds under public law (“Customers”).

These Terms and Conditions, as amended from time to time, shall also apply as a framework agreement to future sales of goods from GESAC to the same Customer without having to be referred to again.

1.2. These Terms and Conditions apply to the exclusion of other terms and conditions.

Conflicting or supplementary general terms and conditions of the Customer do not apply, unless GESAC has given its express written consent.

In particular, this consent requirement also applies if GESAC, whilst aware of the Customer’s general terms and conditions, fulfills orders without reservation.

1.3. If individually agreed contracts / provisions are entered into with the Customer on a case-by-case basis (including side agreements, additions and amendments), such individually agreed contracts / provisions will take precedence over these Terms and Conditions. The content of an individually agreed contract / provision will be derived from its written record or, as applicable, our written confirmation.

1.4. References to applicable statutory provisions are included for clarification purposes only. Even without such clarification the statutory provisions will apply, insofar as they have not been directly amended or expressly excluded by these Terms and Conditions.

2. Quotations and Conclusion of Contract

2.1 Any information contained in catalogues, brochures or in any other advertising of GESAC is merely a description and does not constitute a guarantee.

GESAC reserves the right to modify the advertised products, to replace or to discontinue their sales.

2.2 Invitations to treat / quotations issued by GESAC are made without obligation and are non-binding.

The Customer’s placing of an order of goods shall be regarded as a binding contract offer.

2.3. Unless the order provides otherwise, GESAC is entitled to accept the Customer’s contract offer within four (4) weeks of receipt.

2.4. Acceptance can either be declared expressly by way of confirmation of order or by implication by way of delivery of the goods to the Customer.

2.5. If the goods are to be used for the customer’s specific purposes, this specific function and the requirements to which the goods must adhere must be agreed in writing.

2.6. GESAC is not required to check details and / or specifications provided by the Customer for correctness and / or legal compliance; the liability for such details lies solely with the Customer. This particularly applies to liability for possible breaches of intellectual property rights.

This limitation of liability is subject to the provisions of section 9.3.

3. Intellectual Property

3.1. The Customer warrants that by executing the purchase order, no intellectual property rights are breached by any products, drawings or samples provided by the Customer or third parties, and that the Customer will run any defence proceedings at its own cost, reimbursing GESAC for any related costs.

3.2. GESAC retains all rights of ownership and copyright in all quotations and other documents provided by GESAC.

The Customer must not make available to third parties, publish, use or copy or allow others to use or copy these materials or their content without GESAC’s prior express approval.

4. Delivery Time

4.1. The delivery period will be agreed individually as between the parties or set out in the purchase order confirmation.

In all other cases, the delivery time shall amount to approximately six (6) weeks from the conclusion of the contract.

4.2. The commencement of a delay in delivery is determined in line with statutory provisions.

In any event, a reminder from the Customer will be required.

4.3. If binding delivery dates cannot be met for reasons for which GESAC is not responsible (unavailability of performance), GESAC shall notify the Customer of such circumstances immediately and advise the Customer of the expected new delivery time.

Unavailability of performance shall particularly apply if GESAC has entered into a corresponding supply agreement with its own supplier (kongruentes Deckungsgeschäft) and such supplier does not deliver on time.

Should performance not be possible for a period of more than two (2) months, GESAC shall be entitled to withdraw from the agreement (vom Vertrag zurücktreten) in return for immediate reimbursement of any consideration already provided by the Customer.

Statutory rights of withdrawal (Rücktrittsrechte) of GESAC or the Customer remain unaffected, particularly such rights based on impossibility or unreasonableness of performance.

4.4. GESAC is entitled to make partial deliveries, if reasonable.

5. Delivery, Place of Performance, Passing of Risk, Shipping, Acceptance

5.1. Unless agreed otherwise, sold goods are delivered ex warehouse (EXW), which place shall also be the place of performance.

5.2. The risk of accidental destruction and accidental deterioration of the goods passes to the Customer upon delivery of the goods to the Customer.

This also applies if partial deliveries are made or if GESAC has taken over other obligations (e.g. transport, see section 5.3).

The same shall apply if the Customer is in default of accepting delivery.

5.3. At the Customer’s request and expense, the goods will be shipped to a destination other than the place of performance (sales shipment).

In the event of a sales shipment, the risk of accidental destruction and accidental deterioration passes to the Customer upon the handing-over of the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment.

6. Prices, Payment

6.1. In the absence of any agreement to the contrary, GESAC’s standard prices current at the time the respective contract is entered into apply, ex warehouse plus, where applicable, VAT.

6.2. In the event of a sales shipment (see section 5.3), the Customer bears the costs of transportation arising once the goods leave the place of performance, the costs of transport insurance (if requested) and any other ancillary costs such as customs duties, fees, taxes and other public charges.

6.3. Unless agreed otherwise, the purchase price is due and payable within 30 days from the date of the invoice and delivery of the goods.

On expiry of this payment deadline, the Customer will be in default of payment.

6.4. The Customer shall only be entitled to rights of set-off and retention if the Customer’s counterclaim (i) has been finally recognised by judgment without the possibility of further legal recourse or (ii) is undisputed.

7. Retention of Title

7.1. GESAC shall retain ownership in the goods supplied (“Secured Goods”) until full payment of all current and future claims arising under the contract and from the business relationship with the Customer (“Secured Claims”).

If Secured Claims are included in a current account, the retention of title shall attach to and safeguard the final outstanding and agreed balance.

7.2. The Customer stores the Secured Goods with the care of a prudent businessman.

7.3. The Customer is permitted to process and / or resell the Secured Goods in the ordinary course of business, subject to the following provisions:

a) The retention of title applies also to products which are created by processing, mixing or combining the Secured Goods (“Products”), where GESAC is considered the manufacturer.

If the Secured Goods are processed, mixed or combined with goods of third parties, the retention of title applies to such Products proportional to the invoice value of the Secured Goods.

b) The Customer already herewith assigns to GESAC by way of security all receivables resulting from the resale of the Secured Goods and Products or, as applicable, all receivables resulting from the resale of the Secured Goods and Products in the amount of the possible co-ownership interest arising under section 7.3.a) 2nd sentence above (“Assigned Claims”).

The Customer is authorised to collect payment of the Assigned Claims.

The above-mentioned authorisation to process and / or re-sell the Secured Goods and / or to accept payment of Assigned Claims can be revoked if the Customer is in default of payment.

If the right to process and / or re-sell the Secured Goods and / or to accept payment of Assigned Claims is revoked, the Customer shall provide GESAC with all such information necessary to make use of the Secured Goods, Products and / or Assigned Claims (“Securities”), to provide the relevant documents and to notify the Customer’s debtors of the transfer to GESAC of the Assigned Claims.

7.4. Securities must neither be pledged to third parties nor be assigned or surrendered to third parties by way of security prior to full payment of the Secured Claims or prior to the respective Securities having been released.

The Customer must notify GESAC immediately of any interference by third parties with the Securities.

7.5. If the realisable value of the Securities exceeds the value of the Secured Claims by more than 10%, GESAC will at its own discretion release Securities upon the Customer’s request.

8. Warranty

8.1. The enforcement of warranty claims (Mängelansprüche) is subject to the Customer having performed its statutory inspection and notification obligations.

Notice in respect of visible defects must be given promptly upon delivery, notice in respect of hidden defects must be given promptly upon discovery.

Notifications of defects must be made in writing.

If the number of delivered products is deviating from what was ordered at a rate customary in the trade (branchenübliche Mehr- oder Minderlieferungen), such number shall be deemed to have been approved by the buyer.

8.2. If at the time risk passes there is a defect in the goods acquired, GESAC is permitted at its discretion to cure the defect by way of repair or replacement.

Without prejudice to any rights to claims for damages, the Customer is entitled within the framework of the statutory provisions to withdraw from the agreement (vom Vertrag zurücktreten) or reduce the purchase price if

a) the cure (Nacherfüllung) is not provided within a reasonable time frame;
b) the cure is refused by GESAC;
c) the cure fails;
d) the cure would be unreasonable for the Customer or
e) the cure is dispensable for other reasons under statute.

8.3. Warranty claims of the Customer become time-barred within one (1) year from delivery.

The aforementioned restriction on the statute of limitation does not apply in the following events:

a) Liability by GESAC for damage from injury to life, body or health;
b) Liability by GESAC for other damage arising from an intentional (vorsätzlich) or grossly negligent (grob fahrlässig) breach of duty;
c) Warranty claims of the Customer in connection with building-related performances (bauwerksbezogene Leistungen) (sections 438 (1) no. 2 and 634a (1) no. 2 German Civil Code);
d) Warranty claims of the Customer due to real rights (dingliche Rechte) of third parties on the basis of which return of the purchased goods can be requested (section 438 (1) no. 1 German Civil Code);
e) Warranty claims of the Customer if defects in the purchased goods have been concealed fraudulently (arglistig verschwiegen) (section 438 (3) German Civil Code);
f) Warranty claims of the Customer within the framework of the rules on recourse of the entrepreneur following the sale of the goods to a consumer (sections 478, 479 German Civil Code) or
g) Liability by GESAC under the German Product Liability Act.

9. Liability

9.1. Liability by GESAC and its vicarious agents (Erfüllungsgehilfen) for slightly negligent (leicht fahrlässig) breaches of non-material contractual obligations (nicht vertragswesentliche Pflichten) is excluded.

Liability by GESAC and its vicarious agents for slightly negligent breaches of material contractual obligations is limited to the damage typically foreseeable under the contract.

Material contractual obligations shall be all such obligations the fulfilment of which are essential for the proper performance of the contract in the first place and the fulfilment of which the contractual partner may regularly rely on.

9.2. The statute of limitations for claims by the Customer for damages for defects in the purchased goods is governed by section 8.3 above.
The statute of limitations for other claims for damages by the Customer is governed by statute.

9.3. The aforementioned exclusions and limitations of liability do not apply in the following events:

a) Liability by GESAC for damage from injury to life, body or health;
b) Liability by GESAC for other damage arising from an intentional (vorsätzlich) or grossly negligent (grob fahrlässig) breach of duty;
c) Liability by GESAC if defects have been concealed fraudulently (arglistig verschwiegen) or if a quality guarantee (Beschaffenheitsgarantie) has been breached or
d) Liability by GESAC under the German Product Liability Act.

The same applies to the limitation of liability contained in section 2.6 above.

10. Choice of Law / Place of Jurisdiction / Language

10.1. German law applies, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.2. The courts at the seat of GESAC have exclusive jurisdiction (as courts of first instance).

GESAC is also entitled to issue proceedings at the Customer’s general place of jurisdiction.

10.3. In the event of any inconsistencies between the German and English versions of the Terms and Conditions, the German version shall prevail.

Version: AGB-GESAC-002