General Terms and Conditions (GTC/AVB)

SMF Metall GmbH
Rheinpromenade 13, 40789 Monheim am Rhein

1. Scope of Application
   1.1 The present General Terms of Sale (AVB) apply to all our business relationships with our customers (“Buyer”). The General Terms of Sale apply only if the Buyer is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law or a special fund under public law within the meaning of § 310 paragraph 1 BGB.
   1.2 Our General Terms of Sale apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall also apply if the Buyer refers to its own GTC in the context of the order and we do not expressly object to those GTC.
   1.3 These General Terms of Sale apply to contracts for the sale and/or delivery of movable items (“Goods”). It is irrelevant whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms of Sale shall also apply as a framework agreement in the version valid at the time of the Buyer’s order or in the version last communicated to the Buyer in text form for similar future contracts, without our having to refer to them again in each individual case (Note: as a precaution, the General Terms of Sale should in any case be attached to the order confirmation).
   1.4 Individually agreed arrangements with the Buyer (including side agreements, supplements and amendments) and information in our order confirmation shall take precedence over these General Terms of Sale. Subject to proof to the contrary, a written contract and/or our written confirmation shall be decisive for the content of such agreements.
   1.5 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. notices of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). More stringent statutory formal requirements and further proof (if necessary, in case of doubts about the authority of the person making the declaration) shall remain unaffected.
   1.6 If reference is made to the applicability of statutory provisions, this is only for clarification. The statutory provisions apply even without such clarification, to the extent that they are not amended or excluded by these General Terms of Sale.

2. Offer and Conclusion of Contract
   2.1 Our offers are non-binding and without obligation. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards) as well as other product descriptions or documents (also in electronic form). We reserve title and copyright to all documents provided to the Buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the Buyer our express written consent.
   2.2 The order of the Goods by the Buyer constitutes a non-binding contractual offer pursuant to § 145 BGB. If nothing to the contrary arises from the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.
   2.3 Acceptance of the contractual offer by the Buyer may be declared either in writing (e.g. by an order confirmation) or by delivery of the Goods to the Buyer. If we as the Seller do not accept the Buyer’s offer within the period specified in clause 2.2, any documents sent to the Buyer must be returned to us without delay.

3. Prices and Payment Terms
   3.1 Unless otherwise agreed in writing in the individual case, our prices valid at the time of conclusion of the contract shall apply ex warehouse, plus statutory VAT. Packaging costs will be invoiced separately. If no fixed price agreement has been made, we reserve the right to make reasonable price changes due to changed wage, material and distribution costs for deliveries that take place three months or more after conclusion of the contract.
   3.2 In the case of a sale by dispatch, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the actual transport costs incurred in the individual case, we charge a flat-rate transport fee (excluding transport insurance), which will be communicated in advance. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
   3.3 Payment of the purchase price shall be made exclusively to the account stated on the reverse. A discount deduction is only permissible in the case of a separate written agreement.
   3.4 Unless otherwise agreed, the purchase price shall be due and payable within fourteen days from the date of invoice and delivery or acceptance of the Goods. However, we are entitled at any time, even in the context of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
   3.5 The Buyer shall be in default if the above payment period expires. During default, the purchase price shall bear interest at the statutory default interest rate applicable at the time pursuant to § 288 paragraph 2 BGB, in the amount of nine percentage points above the respective base interest rate (see Annex 1). We reserve the right to assert further default damages. Our claim to the commercial default interest (§ 353 German Commercial Code – HGB) shall remain unaffected with respect to merchants.
   3.6 If, after conclusion of the contract, it becomes apparent that our claim for payment of the purchase price is endangered due to lack of performance capability on the part of the Buyer (e.g. due to an application to open insolvency proceedings), we shall be entitled, in accordance with the statutory provisions, to refuse performance and, if applicable, after setting a deadline, to withdraw from the contract (§ 321 BGB). In contracts in which the manufacture of non-fungible goods (custom-made products) is owed, we may declare immediate withdrawal. Statutory provisions on the dispensability of setting a deadline shall remain unaffected.

4. Rights of Retention

Rights of set-off or retention shall accrue to the Buyer only if its claim has been finally established by a court or is undisputed, and its counterclaim is based on the same contractual relationship. In the event that defects occur in connection with the delivery, the Buyer’s counter-rights, in particular pursuant to clause 8.6 sentence 2 of these General Terms of Sale, shall remain unaffected.

5. Delivery Period and Delay in Delivery
   5.1 The delivery period is agreed individually or indicated by us when accepting the order.
   5.2 If we are unable to meet delivery deadlines that have been contractually agreed for reasons for which we are not responsible, we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected or new delivery period. If delayed delivery due to non-availability of performance is also not possible within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer (in the form of payment of the purchase price) shall be refunded without delay. Non-availability of performance exists, for example, if there has been no timely delivery to us by our supplier, if we have concluded a congruent covering transaction, if other disruptions in the supply chain occur (for example due to force majeure), or if we are not obliged to procure in the individual case.
   5.3 Whether a delay in delivery on our part as Seller has occurred is determined in accordance with the statutory provisions. However, a reminder by the Buyer is a prerequisite for a delay in delivery on our part. If there is a delay in delivery, the Buyer may claim compensation for its delay damages in the form of a lump sum. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but not more than a total of 5% of the delivery value of the Goods delivered late. We reserve the right to provide evidence that the Buyer has suffered no damage or only less damage than the above lump sum.
   5.4 The rights of the Buyer pursuant to clause 9 of these General Terms of Sale and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

6. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
   6.1 Delivery is made ex warehouse. The warehouse is also the place of performance for the delivery and for any subsequent performance. If the Buyer wishes the Goods to be dispatched to another destination (sale by dispatch), it shall bear the cost of dispatch. If nothing has been contractually agreed, we may determine the type of dispatch ourselves (packaging, shipping route, transport company).
   6.2 Upon handover of the Goods to the Buyer, the risk of accidental loss and accidental deterioration shall pass to the Buyer. In the case of a sale by dispatch, the risk of accidental loss of the Goods, accidental deterioration of the Goods and the risk of delay shall already pass to the Buyer upon delivery of the Goods to the freight forwarder or carrier. If acceptance of the Goods has been contractually agreed, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and services shall remain unaffected. Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
   6.3 If the Buyer is in default of acceptance or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation from the Buyer for the damage incurred, including additional expenses (e.g. storage costs). Statutory claims on our part (reimbursement of additional expenses, reasonable compensation, termination) as well as proof of higher damages shall remain unaffected.
   6.4 Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that no damage at all or only significantly less damage than the above lump sum has been incurred by us.

7. Retention of Title
   7.1 We retain title to the delivered Goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
   7.2 Until full payment of the secured claims has been made, Goods subject to retention of title may neither be pledged to third parties nor assigned as security. The Buyer must notify us in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. by way of attachment) access the Goods belonging to us. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the Buyer shall be liable for the loss incurred by us.
   7.3 In the event of conduct on the part of the Buyer in breach of contract, in particular in the event of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand return of the Goods on the basis of the retention of title. The demand for return does not at the same time include a declaration of withdrawal; rather, we are entitled merely to demand the return of the Goods and reserve the right to withdraw. If the Buyer does not pay the due purchase price, we must have set the Buyer a reasonable deadline for payment which has expired unsuccessfully before asserting these rights. This shall only apply if such a deadline is not dispensable under the statutory provisions.
   7.4 The Buyer is authorised, subject to revocation pursuant to clause 7.4.c, to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
   a) The products resulting from combining, mixing or processing our Goods shall be subject to retention of title at their full value, with us being deemed the manufacturer. If, in the event of combining, mixing or processing with Goods of third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the combined, mixed or processed Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title. The Buyer also assigns to us by way of security any claims against a third party which arise for it from the combination of the Goods subject to retention of title with a property. We hereby accept this assignment.
   b) The Buyer hereby assigns to us, already at this stage, the claims against third parties arising from the resale of the Goods or the product, in total or in the amount of our possible co-ownership share in accordance with clause 7.4.a, by way of security in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The obligations of the Buyer listed in clause 7.2 shall also apply with regard to the assigned claims.
   c) The Buyer shall remain authorised, together with us, to collect the claim. As long as the Buyer meets its payment obligations towards us, there is no shortage in its performance capability and we do not assert the retention of title by exercising a right pursuant to clause 7.3, we undertake not to collect the claim. If we assert a right pursuant to clause 7.3, we may demand that the Buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the corresponding documents and inform the debtors (third parties) of the assignment. In addition, we are entitled to revoke the Buyer’s right to resell as well as its right to process the Goods subject to retention of title.
   d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.
   7.5 The Buyer is obliged, as long as ownership has not yet passed to it, to treat the purchased item with due care. In particular, it is obliged to insure it adequately at its own expense at replacement value against theft, fire and water damage (Note: only permissible in the case of sale of high-value Goods). If maintenance and inspection work is required, the Buyer must carry this out in good time at its own expense.

8. Buyer’s Claims for Defects
   8.1 The Buyer’s rights in the event of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions) shall be governed by the statutory provisions, unless otherwise stipulated below. Statutory provisions on consumer sales (§§ 474 et seq. BGB) and the Buyer’s rights arising from separately granted guarantees, in particular on the part of the manufacturer, shall remain unaffected.
   8.2 Agreements which we have made with Buyers regarding the quality and the intended use of the Goods (including accessories and instructions) shall regularly form the basis for our liability for defects under warranty. An agreement on quality shall include all product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were made publicly known by us (in particular in catalogues or on our website) at the time of conclusion of the contract. If no quality has been agreed, it is to be assessed according to the provision of § 434 paragraph 3 BGB whether a defect is present. In this context, it must be noted that public statements made by the manufacturer within the framework of advertising or on the label of the Goods take precedence over statements made by other third parties.
   8.3 In the case of Goods with digital elements or other digital content, it must be noted that we are only obliged to provide and update the digital content insofar as this results expressly from a quality agreement in accordance with clause 8.2. We do not assume liability for public statements by the manufacturer or other third parties.
   8.4 We shall not be liable for defects that the Buyer knows of or is grossly negligently unaware of at the time of conclusion of the contract (§ 442 BGB).
   8.5 The Buyer’s claims for defects shall only exist if the Buyer has complied with its statutory duties to inspect and notify defects (§§ 377, 381 HGB). If the Goods are building materials or other Goods intended for installation or further processing, an inspection must take place immediately before processing. Written notification to us must be made without delay if a defect becomes apparent during delivery, inspection or at a later date. If the Buyer fails to properly inspect the Goods and/or notify us of defects, our liability for the non-notified or not timely or not properly notified defect shall be excluded in accordance with the statutory provisions. If the Goods were intended for installation, mounting or fitting, this shall also apply if the defect only became apparent after corresponding processing as a result of failure to comply with or breach of one of these obligations. In this case, the Buyer shall not be entitled to claims for reimbursement of the “installation and removal costs”.
   8.6 If the delivered Goods are defective, we as the Seller shall have the right to choose whether we shall provide subsequent performance by remedying the defect (rectification) or by delivering Goods that are free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, it may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance to be provided by us dependent on the Buyer paying the due purchase price. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
   8.7 For the purpose of subsequent performance, the Buyer must grant us the necessary time and opportunity. In particular, the Buyer must hand over the item for which it has asserted a defect to us for inspection purposes. If we carry out a replacement delivery of an item that is free of defects, the Buyer must return the defective item to us in accordance with the statutory provisions. However, the Buyer shall not have a claim to return.
   8.8 Unless we are contractually obliged to do so, subsequent performance shall not include the removal or dismantling of the defective item or the installation, fitting or mounting of an item free of defects. Claims by the Buyer for reimbursement of the “installation and removal costs” shall remain unaffected.
   8.9 We shall reimburse the expenses necessary for inspection and subsequent performance (transport, labour and material costs and, if applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms of Sale if a defect actually exists. However, we may require reimbursement from the Buyer of the costs incurred as a result of an unjustified request for remedy of defects, if the Buyer knew or could have known that no defect actually existed.
   8.10 The Buyer shall have the right to remedy the defect itself and to demand reimbursement of the objectively necessary expenses if there is an urgent case (e.g. in the event of risk to operational safety or to prevent disproportionate damage). In the event of self-remedy, the Buyer must inform us without delay. If we would be entitled to refuse subsequent performance under the statutory provisions, the Buyer shall have no right to self-remedy.
   8.11 The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions. In the case of an insignificant defect, however, the Buyer shall not have the right of withdrawal.
   8.12 Claims of the Buyer for reimbursement of expenses pursuant to § 445a paragraph 1 BGB are excluded, unless the last contract in the supply chain is a consumer sale (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 paragraph 5, 327u BGB).
   8.13 Claims of the Buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall exist, even in the event of a defect, only in accordance with clause 9 and clause 10.

9. Limitation Period
   9.1 The general limitation period for claims arising from material or legal defects shall, deviating from § 438 paragraph 1 no. 3 BGB, be one year from delivery. If acceptance has been contractually agreed, the limitation period shall commence upon acceptance.
   9.2 The limitation period shall be five years from delivery in accordance with the statutory regulation (§ 438 paragraph 1 no. 2 BGB) if the Goods are a building or an item which has been used for a building in accordance with its usual use and which has caused its defectiveness (building material). This is subject to further statutory special regulations regarding limitation periods (in particular § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b BGB).
   9.3 The above limitation periods under the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect in the Goods, unless the application of the regular statutory limitation period pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in the individual case. Claims for damages of the Buyer pursuant to clause 10.1 and 10.2.a) as well as those under the Product Liability Act shall be subject exclusively to the statutory limitation periods.

10. Other Liability
    10.1 We as Seller shall be liable, unless otherwise specified in these General Terms of Sale including the following provisions, for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
    10.2 Within the scope of fault-based liability, we shall be liable, regardless of the legal grounds, for damages only in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. due care in own affairs; insignificant breach of duty), only:
    a) for damages resulting from injury to life, body or health,
    b) for damages resulting from the breach of an essential contractual obligation (obligations whose fulfilment is a prerequisite for proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely). In this case, however, our liability shall be limited to compensation for the foreseeable damage typical for the contract.
    10.3 The limitations of liability resulting from clause 10.2 shall also apply in favour of third parties and in the case of breaches of duty by persons whose fault we are responsible for in accordance with statutory provisions. If a defect has been fraudulently concealed and a guarantee has been assumed for the quality of the Goods, the limitations of liability shall not apply. The same shall apply to claims of the Buyer under the Product Liability Act.
    10.4 The Buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we as Seller are responsible for the breach of duty.
    10.5 A right of termination on the part of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

11. Choice of Law and Place of Jurisdiction
    11.1 These General Terms of Sale and the contractual relationship between us as Seller and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
    11.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our registered office in Monheim am Rhein shall be the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB.
    11.3 We shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms of Sale and/or a prior individual agreement or at the general place of jurisdiction of the Buyer. Mandatory statutory provisions (exclusive places of jurisdiction) shall remain unaffected.