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General terms and conditions for the Common Law Area

Hinweis: Beachten Sie bitte, dass die "General terms and conditions for the Common Law area" nur für die englischsprachigen Länder in welchen das Rechtssystem  des "Common Law" vorherrscht, von Bedeutung ist. Für alle anderen Geschäfte gelten die ebenfalls auf unserer Website vorliegenden Einkaufs- und Verkaufsbedingungen.

Valid as per August 2012

  • 1. Definitions
  • 2. Scope
  • 3. Offer and conclusion of contract
  • 4. Prices
  • 5. Fulfillment
  • 6. Late performance
  • 7. Taking over of the product
  • 8. Quality and environment
  • 9. Representation and warranty
  • 10. Liability
  • 11. Retention of title
  • 12. Payment conditions
  • 13. Right to set-off
  • 14. Statute of limitation
  • 15. Applicable law and jurisdiction
  • 16. Severability

1.       DEFINITIONS

          •  Company: Stahl Judenburg GmbH, FN 58759k (hereinafter referred to
              as "STJ")
          •  Business seat of the company: Gussstahlwerkstraße 21, 8750
              Judenburg, Austria/Europe
          •  Business hours: Monday until Thursday 9 am to 12 am and 2 pm to 4
              pm local time Austria.

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2.       SCOPE

2.1.    These General Terms and Conditions shall apply to all legal transactions 
          between STJ and its business partners and customers (hereinafter
          referred to as "Buyer") for the supply of goods and, correspondingly, for
          the provision of services. All offers and contracts of STJ are based upon
          these General Terms and Conditions.

2.2.    If individual provisions of these General Terms and Conditions are directly
          in conflict with provisions set out in offers or order confirmations of STJ, 
          the provisions set out in offers and order confirmations shall take
          precedence. In such case only those provisions of these General Terms
          and Conditions are valid that do not directly conflict with the provisions of
          the offers or order confirmations of STJ.

2.3.    The Buyer expressly accepts that STJ objects to any and all provisions in
          an order or in other business documents of the Buyer that deviate from
          the terms and conditions referenced in section 2.1. or 2.2. If STJ does not
          explicitly consent to Buyer's terms and conditions in writing, STJ does not
          accept any general terms and conditions of the Buyer that deviate from
          these General Terms and Conditions, even if STJ does not expressly
          object to such terms and conditions for any individual transaction.

2.4.    These General Terms and Conditions also shall apply as a framework
          agreement to all further legal transactions with the Buyer.

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3.       OFFER AND CONCLUSION OF CONTRACT

3.1.    The price, the amounts and the supply information of STJ generally are
          unbinding and are not to be interpreted as offers within the meaning of
          sections §§ 862 and the following of the Austrian General Civil Code
          (Allgemeines Bürgerliches Gesetzbuch). They are to be interpreted as an
          order to submit an offer. Only offers that are printed on business paper
          of STJ and contain explicit language that they are binding are binding
          offers of STJ. E-mails in any case are unbinding information.

3.2.    A contract (agreement) only shall be concluded with STJ by way of
          transmitting a written (also via telefax) order confirmation of STJ on the 
          basis of these Terms and Conditions. A contract shall not be deemed
          concluded on the basis of implied actions of STJ.

3.3.    Information contained in catalogues, brochures etc. as well as any other
          written or oral statements shall only be binding if the order confirmation
          expressly refers to them.

3.4.    Later amendments and supplements to the contract or side agreements
          require a written confirmation of STJ to be valid.

3.5.    STJ is entitled to correct mere typing and calculation errors contained in
          offers, order confirmations or invoices at any time.

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4.       PRICES

          The prices that have been mutually agreed with STJ apply. In case of
          doubt, such prices are net prices (value added tax excluded). Any duties,
          taxes or other charges incurred in connection with the delivery shall be
          paid by the Buyer.

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5.       FULFILLMENT

5.1.    Scope of contract:

          If not defined in more detail, STJ is obliged to deliver goods of average
          kind and quality. Because of the production proceedings, deficient
          products in an amount of up to 7% of a delivery are accepted.

5.2.    Place of fulfillment and passage of risk:

5.2.1. The place of fulfillment is Premises West of STJ.

5.2.2. Utilization and risk shall pass to the Buyer upon shipment ex works or ex
          warehouse, irrespective of the pricing agreed in writing for the delivery
          (e.g., delivered free, CIF etc.). This shall also apply if delivery is effected
          within the scope of an assembly or if the shipment is executed or
          organized and fulfilled by STJ.

5.2.3. In case of services, the place of fulfillment shall be the place where the
          service is provided. The risk of a service or an agreed partial service shall
          pass to the Buyer upon its provision being provided.

5.2.4. If products to be delivered are not taken over by the carrier without STJ
          being at fault, the risk shall pass to the Buyer on the day on which the
          carrier should have taken over the product. STJ shall hold the affected
          products in custody, whereby the Buyer shall pay the costs associated
          with the holding of such products in custody.

5.3.    Time of fulfillment:

5.3.1. In general, fulfillment shall occur at the time defined in the order
          confirmation. A deviation of the specified months of delivery of up to 1
          month earlier or later is permitted because of the existing delivery chain
          and the production proceedings.

5.3.2. If delivery periods are stipulated, such agreed delivery periods shall 
          commence on the below-mentioned dates, whichever is latest:
          a)  date of order confirmation;
          b)  date on which all technical, commercial and other requirements under
               Buyer's responsibility have been fulfilled;
          c)  date on which STJ receives a down payment or security to be provided
               before the delivery of the goods.

5.3.3. The Buyer shall obtain any third-party approvals from authorities that
          may be required. If such approvals are not provided in due time, the
          delivery period shall be extended accordingly.

5.3.4. In the event of a default or delay of agreed payments the delivery period
          shall be extended accordingly.

5.3.5. The delivery period shall be deemed complied with if the delivery item 
          leaves the warehouse of STJ before the delivery period expires or if STJ
          has notified the Buyer of its abilityto deliver.

5.3.6. In the event of the occurrence of unforeseeable circumstances or 
          contingencies beyond the control of the parties, such as all events of 
          force majeure, which prevent meeting the agreed delivery date, said
          delivery date shall be extended for a period equal to the duration of such
          events, to the exclusion of any and all legal claims that the Buyer
          otherwise may have; such events shall include in particular armed
          conflicts, interventions and prohibitions of authorities, transport and
          customs delay, shipping damage, power and raw material shortage, labor
          disputes and default of a supplier that is difficult to replace. The above-
          mentioned events justify the extension of the delivery date also if they
          occur with suppliers utilized by STJ.

5.4.    Delivery and packaging:

5.4.1. The products are delivered in packaging chosen by STJ which is available 
          and fulfills its purpose and, if not agreed differently, is included in the
          offer price. Special packaging or wishes of the Buyer or deviations in case
          of doubt are not included in the offer price.

5.4.2. Delivery occurs: FCA, Stahl Judenburg GmbH, Dispatch Hall, Premises
          West, Gussstahlwerkstraße 21, 8750 Judenburg, Austria/Europe, 
          pursuant to the INCOTERMS 2010.

5.4.3. If further services shall be performed by STJ exceeding such terms of 
          delivery, they are to be understood as unbinding services that need to
          be paid by the Buyer and the Buyer needs to indemnify, defend and hold
          STJ harmless with regard to such services. A management without order
          (Geschäftsführung ohne Auftag) is not triggered in such cases.

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6.       LATE PERFORMANCE

6.1.    Late delivery:

6.1.1. The agreed times of delivery are indicative dates which STJ can deviate
          from within the borders mentioned above (section 5.3.1. of these General
          Terms and Conditions) without any consequences. In case of risk of late
          delivery outside of these borders, STJ will immediately inform the Buyer
          and in case the Buyer requests so, will specify a time period within which
          delivery will occur.

6.1.2. If late delivery occurs, no quicker / more expensive (e.g., air freight
          instead of truck) transport will be provided, if not requested by the Buyer
          in writing and paid by the Buyer. Additional works and costs of STJ for
          such quicker transport are to be borne by the Buyer.

6.1.3. Cases of force majeure mentioned in 5.3.6. of these General Terms and
          Conditions do not constitute cases of late delivery. Afer the reason of late
          delivery ceased to exist, STJ has the choice to terminate the order
          without any consequences. The Buyer does not have such right in the
          cases mentioned.

6.2.    Late taking over of the products:

6.2.1. Pursuant to these General Terms and Conditions STJ informs the Buyer in
          time of when the ordered goods will be ready. If the Buyer rightfully or
          unjustifiably refuses the taking over of the goods, STJ nevertheless
          immediately issues the invoices (further information regarding the terms
          of payment see below) and the amount is immediately due. The Buyer is
          given a term of 14 days for taking over the products.

6.2.2. During the time period of late taking over of the products, STJ can choose
          whether the goods are kept at STJ's premises or externally. All costs
          resulting from the late taking over of the goods are to be borne by the
          Buyer. For such time period no custody contract (Verwahrungsvertrag) in 
          the sense of the Austrian General Civil Code exists. The liability for the
          loss of the goods including damages and vandalism is borne by the
          Buyer.

6.2.3. In case of late delivey exceeding the time period of 14 days, STJ has the
          right to deduct the costs resulting from the late delivery from the amount
          received from scrapping the goods at a daily price, which leaves the main
          claim of the Buyer as it is. STJ has no obligation to deliver the part of the
          goods that has been scrapped. The right of delivery of the scrapped good
          to the Buyer ceases to exist.

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7.       TAKING OVER OF THE PRODUCT

          If a take-over of goods/products is agreed with the Buyer, STJ will inform
          the Buyer about it when the goods are ready. If the Buyer does not take
          over the products within a time period of 14 days or refuses the take-
          over, the provisions regarding late taking over (Section 6.2. of these
          General Terms and Conditions) apply and the goods are deemed having 
          been taken over without any restrictions (fiction).

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8.       QUALITY AND ENVIRONMENT

          STJ guarantees to comply with the legal provisions of Austria and directly 
          enforceable provisions of the European Union. If the Buyer makes
          requests for other countries, such are to be specified in written form in 
          the German or English language and are to be agreed upon separately in
          written form with STJ. As a consequence STJ will, if possible, try to fulfill
          such requirement. STJ has management systems pursuant to
          ISO 9001/TS 16949 and ISO 14001.

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9.       REPRESENTATION AND WARRANTY

9.1.    STJ only and exclusively provides the representation and warranty for
          deficiencies regarding the product, a representation and warranty for
          legal deficiencies is excluded. The term for the representation and
          warranty amounts to six (6) months and starts with shipping the goods
          pursuant to the delivery condition (FCA, Incoterms 2010). The warranty
          period shall neither be extended nor suspended due to remedying and
          improvement attempts.

9.2.    No warranty claims may be derived from information contained in
          catalogues, brochures, marketing material and written or oral statements
          that have not been included in the contract.

9.3.    Immediately and without delay after receipt of the goods and before any
          adaptation or processing of the goods is undertaken, the Buyer needs to
          inspect the goods with regard to deficiencies and then immediately inform
          STJ of deficiencies detected in written form and in detail during the
          business hours mentioned above. If no correct and timely notification
          regarding deficiencies is made, all warranty claims vis-à-vis STJ are
          excluded. If notification regarding deficiencies reaches STJ more than
          seven (7) days after shipping it is incontestably assumed that the notified
          deficiencies have been accepted by the Buyer (too late notification of
          deficiencies). Each written notification of deficiencies needs to contain an
          amount of delivered and deficient goods whereby the amount is
          determined by STJ. Only with receipt of such goods the notification of
          deficiencies is deemed to have been made correctly. The notification does
          not imply the Buyer is entitled to retain the amounts invoiced or any part
          thereof.

9.4.    The representation and warranty regarding products refers to 
          deficiencies such as deficiencies in the surface (notches, imprints) which
          make the goods unusable as well as deficiencies in material and
          deviation from its size if such examination was explicitly requested by the
          Buyer or deviates from an international norm and was detectable by STJ 
          during the production process. Deficiencies of the surface which have no 
          influence on the functionality of the final product are to be qualified as
          merely optical deficiencies that are not relevant (in doubt). The
          representation and warranty for surface deficiencies terminates in any
          case at the latest when the product was manipulated by the Buyer
          and/or was taken out of the transport packaging (manually and
          automatically) and was used for further works.

9.5.    STJ warrants only that the products exhibit the characteristics that are 
          generally presumed for these products in commerce. For such
          characteristics above and beyond these, whether mentioned in public
          declarations such as advertisements, or otherwise, STJ assumes
          responsibility only if STJ has warranted these characteristics in writing in
          its order confirmation.

9.6.    If a defect subject to a warranty obligation pursuant to this section 9
          exists, STJ shall, at its option, rectify the defective product or the
          defective part at the place of performance or have the product or part
          sent to it for rectification or effect a reasonable price reduction.

9.7.    The Buyer must declare discrepancies between the ordered and the
          delivered goods (Aliud) in writing immediately after the delivery and
          before any adapation or processing of the goods is undertaken;
          otherwise the goods shall be considered approved and STJ shall not be
          obliged to take them back or exchange them.

9.8.    The Buyer is obligated to furnish proof of the existence of a defect. The 
          Buyer always bears the burden of proving the defectiveness of the
          delivered goods at the time of the delivery. The legal presumption of
          § 924 of the Austrian General Civil Code (Allgemeines Bürgerliches
          Gesetzbuch
) is explicitly excluded.

9.9.    If a product is manufactured by STJ based on design details, drawings, 
          models or other Buyer specifications, STJ shall have no liability arising out
          of such specifications.

9.10.  The warranty shall immediately expire if the Buyer itself or a third party
          not expressly authorized by STJ changes or repairs, or opens and/or
          dismounts the supplied items without STJ's prior written consent.

9.11.   Claims pursuant to § 933b of the Austrian General Civil Code
           (Allgemeines Bürgerliches Gesetzbuch) are excluded.

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10.     LIABILITY

10.1.  STJ is liable vis-à-vis the Buyer for direct positive damage caused directly
          by STJ by way of willful misconduct or extreme gross negligence (krasse
          grobe Fahrlässigkeit
) or caused by willful misconduct or extreme gross
          negligence of the vicarious agents of STJ. The liability of STJ in the event 
          of minor gross negligence (schlichte grobe Fahrlässigkeit) is excluded. 
          Compensation for purely financial losses, loss of profit, interest loss,
          damage arising from third-party claims or indirect, incidental,
          consequential or punitive damages are excluded to the extent permitted
          by law. The Buyer must prove the existence of extreme gross negligence
          on the part of STJ. Regarding personal injuries the Buyer must prove
          slight negligence on the part of STJ.

10.2.  For damages suffered by the Buyer, STJ's liability is limited to a maximum
          to the net sales price of the concerned products. The liability of STJ only 
          encompasses consequences of deficits in production, but not in
          construction and design.

10.3.  For product liability the Austrian Products Liability Act applies with the 
          restriction that with regard to recourse claims of third parties the Buyer
          will defend, indemnify and hold STJ harmless.

10.4.  Claims for damages against STJ shall be time barred and lapse after 12
          months. The Buyer shall inform STJ of the damage by written notice within
          a reasonable time, at the latest, however, within 8 days of the Buyer
          discovering the damage or within 8 days of the Buyer having had the
          opportunity to discover the damages, whichever is earlier.

10.5.  If the Buyer is itself held liable on the basis of the Austrian Product 
          Liability Act (Produkthaftungsgesetz) or similar foreign regulations, the
          Buyer expressly waives every right of recourse against STJ, in particular
          pursuant to § section 12 of the Austrian Product Liability Act or similar
          foreign regulations. If the Buyer introduces the goods STJ has delivered
          onto the market outside of the European Economic Area, it is obligated to
          exclude vis-à-vis the buyer the duty of replacement according to the
          Austrian Product Liability Law or similar foreign regulations, to the extent
          that is possible and permissible according to the applicable law or the law
          agreed between seller and buyer. In this case or in the event of the
          omission of this duty to exclude liability, the Buyer is obligated to
          indemnify and hold STJ harmless against third-party product liability
          claims.

10.6.  Buyer shall defend, indemnify and hold STJ harmless from and against 
          any damages, or any claims in respect thereof, brought by third parties
          arising from the goods (for instance installation, operation, use, misuse
          or inability to use the goods), including where the third party brings the
          claim. This exclusion applies regardless of whether such damages are 
          sought based on breach of warranty, breach of contract, negligence,
          strict liability in tort, product liability claims or any other legal theory.
          Should STJ nevertheless be found liable for any such damages, such
          damages shall be limited to the amounts set forth in section 10.1. to the
          extent permitted by applicable law. This indemnification, defense and
          hold harmless obligation applies to personal injury, property damage as
          well as to damage to the goods.

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11.     RETENTION OF TITLE

11.1.  STJ retains the title of all goods delivered until the invoiced amounts plus
          interest and charges have been fully paid. The goods are to be marked
          as belonging to STJ and to be separated from other goods at the risk and
          costs of the Buyer. Until transfer of the ownership, the products are
          being deemed kept by the Buyer in the sense of the custody agreement
          without remuneration pursuant to section §§ 957 and the following of the
          Austrian General Civil Code; the liability of the Buyer is being extended to
          cases of chance (section § 1311 of the Austrian General Civil Code).

11.2.  Provided that STJ does not withdraw from the contract the assertion of 
          the retention of title does not constitute a withdrawal from the contract
          and does not suspend the Buyer's obligations, in particular that of paying
          the amounts owing to STJ. Within the scope of STJ's retention of title
          regarding the object of purchase, the Buyer is authorized to transfer its
          existing vested property right within the scope of its business operations,
          but may not pledge the object of purchase as collateral or transfer it by
          way of security. The Buyer is obligated to bear the costs, including for the
          measures taken to remedy the infringement, in particular the costs of
          intervention proceedings and similar actions. If STJ's goods are 
          processed, connected or combined with other materials, STJ acquires
          joint ownership in the goods thereby produced according to the
          proportion of the value added.

11.3.  Thus, the Buyer assigns to STJ with immediate effect, for the purpose of
          securing and satisfying, all claims from the resale of groods subject to 
          retention of title, even if they have been processed, redesigned or
          commingled, in order to collateralize STJ's purchase money claim and
          untertakes to make a corresponding note in its accounting records or on
          its invoices and to render the assignment properly apparent. STJ accepts
          such assignment. The Buyer is obligated to immediately inform STJ of its
          buyer's name and address, the inventory and the amount of the 
          receivables resulting from the resale, as well as to verifiably inform its
          respective buyer of the assignment. STJ is entitled to inform the buyers of
          the Buyer of the assignment at any time. The Buyer shall with immediate
          effect re-assign to STJ all sums received through cash sales of goods to
          which STJ retains reservation of title, up to the amount owed to STJ from
          STJ's delivery of these goods to the Buyer. As of now STJ instructs the
          Buyer to hold these sums in separate custody for STJ.

11.4.  The Buyer is obliged to fulfill all requirements pursuant to the laws of the 
          Buyer's business seat in order to ensure that the retention of title
          provision to the benefit of STJ with regard to the sold items is effective 
          and valid (e.g., by way of an agreement and an entry into a special
          register at the place of the Buyer's business seat).

11.5.  In the event of attachment or other utilization, the Buyer shall be obliged
          to point out the legal title of STJ and notify STJ immediately.

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12.     PAYMENT CONDITIONS

12.1.  If a transaction is entered into (order confirmation of STJ required), a 
          payment in the amount of 30% of the net value of the order immediately
          becomes due and is to be transferred to the account of STJ without
          incurring costs for STJ. STJ is entitled to pay imbursements, costs, etc.
          which were caused by an incorrect implementation of the contract
          (reason and fault irrelevant) from such prepayment and to set it off
          without the consent of the Buyer. Such prepayment therefore also fulfills
          the function of a lump sum damages payment; whereby STJ reserves the 
          right to proof and claim increased damage. In case of withdrawing from
          the contract by STJ or non-fulfillment by way of fault of STJ, a maximum of 
          100% of the prepayment is to be refunded without interest; more than
          100% of the prepayment never may be reclaimed. In all other cases the
          prepayment shall be owned by STJ. In all cases the parties refrain from
          reduction of the prepayment by a judge. If for whatever reasons the
          prepayment is not made at the time of entering into the contract, the
          Buyer's obligation to pay such prepayment does not automatically cease
          to exist.

12.2.  The claim against the Buyer resulting of the delivery becomes immediately
          due when the invoice is issued (net without deduction), prepayments are
          to be set-off of such claim without interest. Because of the international
          payments, the Buyer is given a time period of 7 days as of issuing of the
          invoice within which he needs to pay the entire invoice amounts without
          costs to STJ to the account of STJ (IBAN: AT671100007943168000, 
          BIC/Swift: BKAUATWW). A retaining of partial amounts for whatever
          reason is impermissible. In case of a payment delay, interest for late 
          payment in the amount of 10% per annum becomes due.

12.3.  The Buyer is not entitled to hold back or offset payments on grounds of
          warranty or any other claims.

12.4.  A payment shall be deemed effected as of the day STJ has the payment
          at its disposal.

12.5.  If the Buyer has caused a delay of payment or a delay of any other
          service associated with this or other transactions, STJ may, without
          prejudice to its other rights, delay the fulfillment of its own obligations
          until such payment or other service has been effected and extend the
          time of delivery accordingly. In any event, STJ shall be entitled to charge 
          pre-trial costs, especially collection and legal fees.

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13.     RIGHT TO SET-OFF

          STJ is entitled to offset against existing claims with all receivables to
          which STJ or Georgsmarienhütte Holding GmbH
          (http://www.georgsmarienhuette-holding.de) are entitled. A set-off of
          the Buyer is permissible only with undisputed or judicially validly
          determined demands.

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14.     STATUTE OF LIMITATION

          Except where otherwise provided for these General Terms and
          Conditions, claims of the Buyer shall become time-barred after 12 months
          if legal proceedings are not instituted within such time period.

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15.     APPLICABLE LAW AND JURISDICTION

15.1.  The contract shall be exclusively governed by Austrian law without regard
          to its conflict of law provisions and without regard to the United Nations 
          Convention on Contracts for the International Sale of Goods.

15.2.  All legal and other disputes arising out of or in connection with the
          contract and these General Terms and Conditions, including disputes
          about its validity, shall be exclusively settled by (ausschließlicher
          Gerichtsstand) the competent court at the STJ's business seat. STJ
          reserves the right to bring a claim against the Buyer before any other
          court worldwide.

15.3.  The contractual and commercial language is German or English. If
          correspondence or agreements are in a different language, STJ has the
          choice whether such correspondence or agreements are valid.

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16.      SEVERABILITY

           Should individual provisions of the contract or these General Terms and
           Conditions become void, the validity of the remaining provisions shall in
           no way be affected. The void provision shall be replaced by a valid
           provision coming as close as possible to the sense and spirit and 
           purpose of the achieved target in economic terms. Gaps and 
           contradictions are to be dealt with pursuant to the Austrian General Civil
           Code; the interpretation needs to be made pursuant to the will of the
           drafting party (STJ).

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