General conditions of sale and delivery

1. Scope, Form

1.1 These General Terms and Conditions of Sale and Delivery (GTCS) shall apply to all business relations of Eberhard Mayr GmbH & Co. KG with our business partners and customers (hereinafter also referred to as "Customer"). The ALB shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

1.2 Unless otherwise agreed, the ALB shall apply in the version valid at the time of the Customer's order or, in any case, in the version last notified to the Customer in text form as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.

1.3 Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we provide the service without reservation or deliver goods to the customer without reservation in the knowledge of the customer's GTC.

1.4 Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.

1.5. Rechtserhebliche Erklärungen und Anzeigen des Kunden in Bezug auf den Vertrag (z.B. Fristsetzung, Mängelanzeige, Rücktritt oder Minderung), sind schriftlich, d.h. in Schrift- oder Textform (z.B. Brief, E-Mail, Telefax) abzugeben. Gesetzliche Formvorschriften und weitere Nachweise, insbesondere bei Zweifeln über die Legitimation des Erklärenden bleiben unberührt.

2. Termination of contract

2.1 Our offers are subject to change and non-binding (invitatio ad offerendum).

2.2 The ordering of goods or other placing of orders by the customer shall be deemed to be a binding offer of contract. Unless expressly stated otherwise in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.

2.3 Acceptance may be declared either in writing (e.g. by order confirmation), in text form (e.g. by confirming e-mail), or by delivery of the goods to the customer or performance of the service.

2.4 In the case of transactions based on an import or in the case of export transactions, the conclusion of the contract shall in principle only apply subject to the granting of the import or export permit by the competent authorities.

3. Delivery period, delay in delivery

3.1 Information on delivery periods is approximate and only non-binding information based on the estimated processing or provision time and shall not become part of the contract unless otherwise expressly agreed with the customer.

3.2 If there are any queries regarding the deliveries, the delivery time shall be calculated from the day on which all such queries have been answered by the Customer.

3.3 Exceeding of agreed delivery periods by up to 10 calendar days shall be considered as timely delivery even without justification. They shall not constitute a delay and shall not entitle the Customer to claim damages and/or rescission. Usually we inform about the delay in delivery at the latest on the day of the scheduled delivery.

3.4 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, even taking into account the deadline in accordance with 3.3 (for example, non-availability of the service, high violence, etc.), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. We shall immediately refund any consideration already paid by the customer. The case of non-availability of the performance in this case shall be deemed to be in particular the non-timely self-delivery by our suppliers if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case or there are operational disruptions.

4. shipment, transfer of risk, delivery, default in acceptance, determination of weight, partial deliveries

4.1 Shipment shall be effected at our discretion ex works, ex warehouse or ex place of discharge and shall be at the risk and for the account of the customer, unless expressly agreed otherwise (sale by delivery to a place other than the place of performance). In cases in which we have not been given special instructions, shipment shall be effected at our discretion, without, however, creating an obligation to select the most favorable or fastest mode of shipment - this shall not create a legal situation deviating from p. 1. Goods reported ready for shipment must be called off immediately. If the goods are not called off or if shipment is impossible, we shall be entitled to store the goods at the customer's expense and risk at our discretion and to invoice them as delivered. The risk of accidental loss or accidental deterioration of the goods, including any official seizure or requirement - shall pass to the customer in any case, for example also in the case of fob and cif transactions - upon handover to the forwarding agent, to the carrier, to the person otherwise designated to carry out the shipment, or - in the case of self-collection - to the customer, but no later than upon leaving the warehouse, the delivery plant or the point of discharge pursuant to p. 1. This shall also apply if we have to bear the freight to the place of destination in whole or in part. If shipment is delayed at the customer's request, the risk shall pass to the customer upon notification of readiness for delivery.

4.2 If, through the fault of the customer, our vehicles have to stand still (waiting times due to the sequence of events) or the possibility of unloading the means of transport is delayed, we reserve the right to claim the resulting costs from the customer. For this purpose, an hourly rate of 50.00 EUR is generally applied, whereby we are, however, at liberty to claim damages in excess of this. The customer reserves the right to prove that damages have not been incurred in this amount.

4.3 If the customer is in default of acceptance and fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs).

4.4 In the case of sale by weight, the calculation shall generally be based on the weight determined by us or by weighing by the railroad, unless another regulation is decisive. Weight complaints/differences will only be taken into account if, in the case of a weight difference of more than 300 kg, a statement of facts from the receiving station showing full and empty weighing by the railroad authorities is submitted. A weight difference of up to 300 kg shall be deemed to be an admissible tolerance without any claim for compensation or claim for adjustment of the contract.

4.5 In the case of contracts with continuous delivery, we must be given call-off orders and grade allocations for approximately equal monthly quantities. If call-offs or grading are not made in good time, we shall be entitled, after setting a grace period to no avail, to grade the goods ourselves and deliver them or - even at a later date - to withdraw from the part of the contract still in arrears and to claim damages.

4.6 We shall be entitled to make partial deliveries if the partial delivery is, at our discretion, usable for the customer within the scope of the contractual intended purpose and the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional expenses or costs as a result. The agreed price shall remain unaffected.

4.7 If the contract quantity is exceeded by the Customer's individual call-off orders, we shall be entitled, but not obliged, to deliver the surplus. We may charge for the excess at the prices valid at the time of the call or delivery.

4.8 We shall be entitled to have the services to be rendered by us performed in whole or in part by a suitable subcontractor or sub-subcontractor. References in these GTCS to us shall also refer to this third party accordingly.

5. Prices, terms of payment

5.1 Unless otherwise agreed, our prices are quoted in Euro plus the statutory value added tax, customs duties and transport charges (5.2) ex works or ex warehouse or place of discharge.

5.2 In the event of subsequent introduction or increase of customs duties, taxes, freight charges, energy costs, etc., we shall be entitled to charge these to the customer, even if they come into force retroactively. Exchange rate changes occurring as a result of currency conversions can be taken as a basis for the calculation if they occur after the transaction has been concluded. In the case of transactions in foreign currency, the customer shall bear the exchange rate risk from the conclusion of the contract.

5.3 Our invoices are due for payment immediately and without deduction. However, we shall be entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment.

5.4 Additional, freight or special services will be charged separately.

5.5 If the agreed method or route of payment cannot be complied with, the customer shall be obliged to make payment at our discretion.

5.6 The customer shall only be entitled to a right of set-off or retention with regard to payments owed by him if his claims are undisputed or have been established as final and absolute.

5.7 Information about a bad financial situation of the customer entitles us to either withdraw from the contract at any time or to make our performance dependent on the prior fulfillment of the payment obligation. If the service has already been rendered, the price for the delivered goods or rendered service shall become due immediately. We are also entitled to reclaim goods already delivered or services already rendered and to retain them until the price has been paid in full.

6. Retention of title

6.1 All goods delivered shall remain our property (goods subject to retention of title) until all claims, in particular also the respective balance claims, to which we are entitled against the customer - irrespective of the legal grounds - have been satisfied.

6.2 In cases of processing, combining and mixing of the goods subject to retention of title, the statutory provisions of §§ 946 ff. BGB (German Civil Code) with the proviso that the processing of the goods subject to retention of title is carried out for us as manufacturer within the meaning of § 950 BGB. The processed goods shall be deemed to be goods subject to retention of title. If our ownership lapses as a result of combining or mixing, the customer shall already now transfer to us the ownership rights to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge.

6.3 The customer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us. He shall not be entitled to dispose of the reserved goods in any other way. The Buyer's claims arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the respective reserved goods sold. The customer shall be entitled to collect claims from the sale until revoked by us, which shall be permissible at any time. The customer shall not be authorized to assign the claims under any circumstances. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to hand over to us the information and documents required for collection.

6.4 If an application for the opening of insolvency proceedings has been filed against the customer's assets or if third parties have access (in particular through seizure or execution) to the goods subject to retention of title which are our property, the customer shall be obliged to inform us thereof immediately in writing or in text form and also to inform the third party of the existence of the rights subject to retention of title.

6.5 If the value of the existing securities exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice at the customer's request. If the retention of title or the assignment is not effective according to the law in whose area the goods are located, the security corresponding to the retention of title or the assignment in this area shall be deemed to be agreed. If the customer's cooperation is required in this regard, the customer shall take all measures necessary to establish and maintain such rights.

7. Liability

7.1 Our liability shall be excluded in full - to the extent permitted by law and irrespective of the legal nature of the claim asserted. This exclusion of liability does not apply to our liability arising from a breach of duty for damages resulting from injury to life, body or health, nor to liability for other damages based on an intentional or grossly negligent breach of duty and in the case of strict liability prescribed by law, such as the Product Liability Act.

7.2 The above exclusions and limitations of liability shall apply to the same extent and for the benefit of the organs, legal representatives, employees and other vicarious agents of our company.

8 Force majeure

8.1 Delays in the performance of the contract due to force majeure and due to events whose causes are beyond our control shall entitle us to postpone the performance of the contract for the duration of the hindrance plus a reasonable start-up period. This shall also apply if such events occur during an already existing delay. If the impediment lasts longer than three months, both the customer and we shall be entitled to withdraw from the contract with regard to the part not yet fulfilled. We shall inform the customer as soon as possible of the beginning and end of such impediments. Cases of force majeure shall include, in particular, insufficient wagon delivery, labor disputes, serious transport disruptions (e.g. due to road blockades), operational disruptions for which we are not responsible (e.g. due to bad weather conditions) or official measures not attributable to the respective party (e.g. pursuant to the IfSG) as well as other impediments for which we are not responsible in our plants or in the plants of our suppliers commissioned by us with the performance or delivery.

8.2 Claims for damages are excluded for the cases mentioned in this clause 8.

9. Assignment

We are entitled to assign the claims arising from our business relationship.

10 Choice of Law, Place of Jurisdiction, Place of Performance, Final Provisions

10.1 These GTCS and the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding all references to other legal systems and international treaties. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. This shall also apply insofar as national law refers to the UN Convention on Contracts for the International Sale of Goods.

10.2 The exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Stuttgart. Overriding mandatory statutory provisions shall remain unaffected.

10.3 Insofar as reference is made in the GTCS to statutory provisions, this shall only be for clarification purposes. Insofar as these GTCS do not deviate from the legal situation by means of an express provision, the statutory provisions shall apply unchanged.

10.4 Should individual provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by valid provisions which come as close as possible to the economic intention. The above provision shall also apply mutatis mutandis in the event of gaps in the contract; in this case, those legally effective provisions shall be deemed to have been agreed which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTCS if they had been aware of the gap in the provisions.

10.5 Amendments to these GTCS shall be notified to the customer in writing or by e-mail and shall be deemed to have been approved if the customer does not object to the amended GTCS in writing or by e-mail within 6 weeks of notification. The customer will be informed of this separately when the changes are announced. In the event of a timely objection, the originally included ALB shall continue to apply.

Note: The customer acknowledges that we store data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserve the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the fulfillment of the contract.

Eberhard Mayr GmbH & Co KG
Wernerstraße 120
70469 Stuttgart, Germany

Phone: +49 (0) 711 655 102 – 0
Fax: +49 (0) 711 655 102 – 230
E-Mail: info(at)eberhard-mayr.de

Registered office and commercial register: Mannheim, HRB 7225
Sales tax identification number: DE 185234297

Management:
Susanne Mayr-Kohn
Annette Beling
Hardy Tiffert
Ralph Burr