General Terms of Business of the Company TMS Thüringer Metall- & Stahlservice GmbH

1. Validity

These General Terms of Sale and Delivery apply for all our contracts, deliveries and other services unless they are altered or excluded with our express written permission. These terms are considered accepted at the latest on taking receipt of our material. We are under no obligation to accept the terms and conditions of the customer even if we do not expressly contradict them upon receipt. The terms of sale and delivery of the respective factory or factory collective which makes the sale apply additionally to these terms especially with regard to suspension or annulment of contracts of sale in drop shipping, also in the case of imports. We will provide these terms to the customer on request.

2. Offers

Our offers are not binding; they apply only in case of immediate acceptance. Spoken contracts and agreements require our written confirmation in order to become valid.

3. Prices

Orders for which no fixed prices have been expressly agreed will be charged at the prices which are valid on the day of delivery. Prices apply ex-factory or ex-stores unless agreed otherwise. If carriage paid prices are agreed, the price applies free to easily accessible unloading point, unloaded at ground level. All ancillary charges, public expenses, freight costs, size surcharges or increases which directly or indirectly affect the deliveries or make these more expensive must be paid by the customer unless legal provisions to the contrary exist. This also applies for fixed price agreements. They do not apply especially to additional services listed separately in the offer. All shipments are made freight forward unless agreed otherwise. In the absence of a contrary agreement all transport and other protective means are charged separately as well as covered wagons and other special wagons. Delivered goods which exhibit no defects may only be returned with the prior consent of the supplier. The supplier reserves the right to deduct at least 10% of the amount to be reimbursed for administration costs incurred.

4. Payment and settlement

Payment must be made in full without deductions by the 15th of the month following the delivery ex-factory or ex-stores or notification of completion. We only accept bills of exchange and cheques after express agreement and in payment. The discount, expenses and all costs in connection with the collection of the bill of exchange or cheque amount will be paid by the customer. Accordingly, all credit notes for bills of exchange and cheques are issued subject to receipt of the amount and minus the expenses with the value date of the day on which we are in receipt of the amount. Interests and commissions are due payable according to the respective bank rates but at least 3 % above the respective bank rate of the Deutsche Bundesbank plus VAT in the event that deadlines are exceeded. If the respectively valid bank rates for interests and commissions are higher for short-term loans, we are entitled to charge interests and commissions to the amount of these rates. All our demands are due payable immediately regardless of the term of any received and credited bills of exchange when the customer exceeds the payment deadline or when if circumstances become known to us after the contract of sale which lessen the customer's creditworthiness in our opinion. In such as case we are also entitled to demand advance payments or acceptable securities for outstanding deliveries and to cancel the contract after a reasonable extension of the deadline or to demand damage compensation due to non-fulfilment of contract. We may also forbid the further sale of the goods delivered under reserve of title and demand their return or the transfer of the indirect proprietary rights at the cost of the customer. The customer automatically authorises is to enter his premises and confiscate the delivered goods in such cases. Notwithstanding other rights issuing from default of the customer, promised delivery times are extended by the period during which the customer is in default with his obligations to us from this or another contract. Promised discounts will not be granted is the customer is behind with the payments of earlier deliveries. We are entitled to settle our demand against the customer for whatever legal reason even if the mutual demands are due on different dates. This right may only apply to the balance. If the demands are due on different dates, our demands will be settled in this respect at the latest with the due date and the value date of our obligations. Securities given to us by the customer – even if for a specific demand – are liable for all our demands. The customer may neither settle with counter claims which we do no acknowledge nor enforce a right of retention because of these claims.

5. Retention of title

All goods remain our property (reserved goods) until fulfilment of all demands, for whatever legal reason, including any future demands, including those from contracts concluded at the same time or later. This also applies if payments are made on specially described demands. The reserved property is valid as a security for our balance demand in case of open invoice. Processing of the reserved goods is performed for us as the manufacturer in the sense of § 950 Civil Code without any obligation to us. The processed goods are considered as reserved goods in the sense of these terms. If the reserved goods are processed or inseparably mixed with other objects which do not belong to us, we obtain joint ownership in the new object in the ratio of the invoice value of the reserved goods to the invoice value of the other used goods at the time of their processing or mixing. The thus ensuing joint ownership rights are considered as reserved goods in the sense of these terms. If our goods are connected or inseparably mixed with other movable objects in a uniform object and the other object is to be considered as the main object, it is understood as agreed that the customer will grant us a proportional joint ownership if the main object is his property. The same applies otherwise for the object resulting from the processing and connection as well as mixing as for the reserved goods. The customer may only sell the reserved goods in normal business transactions, at his normal terms of business and as long as he is not in default, providing that he agrees retention of title and that the demands from the further sales are transferred to us in accordance with paragraphs d. to f. He is not entitled to any other disposals on the reserved goods. Further sale is correspondent with the installation in properties or systems connected with the property or buildings or the use of the reserved goods for the fulfilment of other factory contracts or factory delivery contracts by the customer. The customer automatically subrogates the demands from the further sale to us which ensue from the further sale against the customer or third parties, regardless of whether the reserved goods are resold without or after processing. The customer is forbidden to make agreements with his customers which exclude or violate our rights in any way. In particular, the customer may not enter into any agreements which annul or affect the previous subrogation of the demands to us. If the reserved goods are sold together with other goods not sold by us either without or after processing, mixing or connection, the subrogation of the demand from the resale only applies to the amount of our invoice value of the respectively sold reserved goods. In case of sales of goods in which we share ownership according to these terms, the subrogation of the demand to the value of these joint ownership percentages applies. Insofar as the customer makes claims against insurers or other third parties due to damage, depreciation, loss or destruction of the reserved goods, these claims will also be relinquished to us in advance with all the additional rights in lieu of the sales profit. As long as the customer fulfils his payment obligations, it not overdebted or illiquid, he is entitled to collect the demand relinquished to us. However, he may not dispose of it by subrogation. He is obliged on our demand to notify his customers of the subrogation to us and to provide us with the necessary information and documents to enforce our claim. We are entitled at all times to notify third debtors of the acquisition of the demand and to demand their payment to us. If we enforce the retention of title this only applies as a withdrawal from the contract if we declare this expressly in writing. The customer’s right to own the reserved goods expires if he fails to fulfil his obligations ensuing from this or another other contracts. We are entitled to seize possession of the reserved goods without extending the deadline or declaring our withdrawal and to turn it to account in the best possible way by sale by private contract or auction notwithstanding the payment obligations and other obligations of the customer. The amount from sale is set off against the customer's obligations after deduction of costs. Any excess will be paid out to him. If the value of securities granted to us exceeds the total demand against the customer by more than 25% we are obliged to release securities of our choice at the customer’s demand.

6. Delivery times

Delivery times and deadlines are only approximate agreements. Claims for damages due to non-fulfilment or later delivery are excluded.

7. Force majeure

and other delivery disturbances entitle us to reasonably postpone the fulfilment of obligations or to withdraw wholly or partially from the contract at our discretion due to the not fulfilled part. Claims for damages or redelivery are excluded. Force majeure also includes strikes, lockouts and other circumstances which make delivery very difficult or impossible regardless of whether they occur at our company or one of our suppliers or factories. Hindrances which existed before conclusion of contract but were unknown to the contract parties are included. The customer can demand a declaration from us whether we intend to withdraw from the contract or deliver within a reasonable period. The customer is entitled to withdraw from the contact if we make no such declaration.

8. Qualities, dimensions and weights

Qualities and dimensions of the material which we deliver are determined exclusively according to German Material Standards. The weight determined on scales applies for deliveries in warehouse business. Charges are made according to metric weights if legally permissible.

9. Dispatch and transfer of risk

The goods are delivered unpacked and not protected against rust unless otherwise expressly agreed. An agreed packing is made at the normal surcharge and in the normal way. Return of the packing material is excluded. The goods are weighed gross for net in case of bundling. The dispatch route and means are left to our choice with all liability excluded in the absence of a special agreement.

10. Notice of defects and warranty

External and internal material flaws may only be objected to if they considerably impair reasonable processing and utilisation of the material type and product form. This also applies for the absence of guaranteed properties. The customer must give us or our suppliers the opportunity to convince ourselves of the justification of complaints as far as possible by submitting the allegedly flawed material or samples thereof; all claims will be null and void if he fails to do so. We will not be liable for defects caused by unusual or unsuitable processing of the material by the customer. If the customer wants no packing or the packing he specifies is unsuitable, we will not be responsible for any ensuing damage. Notices of defects from the customer must reach us within 10 days of arrival of the goods at their destination by letter, fax or telegraph. Defects which cannot be discovered within this period even with the most careful inspection must be reported immediately after their discovery, but three months after receipt of the goods at the latest, and any processing ceased immediately We are obliged to make repairs, credit the depreciated value, deliver flawless goods or flawless parts and to make substitute deliveries for missing goods. All other claims are excluded. Defect claims come under the statute of limitations at the latest one month after receipt of our written rejection. Second choice goods (II-a goods short lengths, W, WW, random dimensions and part plates, other goods which have been reduced in price due to rolling faults, other defects, roll-overs and similar) are considered accepted on viewing, if not viewed then on leaving the delivery works or stores as conditionally delivered. Notices of defects are excluded here.

11. Place of fulfilment, place of jurisdiction and applicable law

The place of fulfilment for our deliveries is the delivery factory for ex-factory deliveries and the warehouse for ex-warehouse deliveries. The sole place of jurisdiction for all legal disputes including bills of exchange and cheque proceedings is Erfurt. The above rules only apply to deliveries to full merchants and persons and societies of equal standing. We are in any case entitled to prosecute the customer at the court of his general place of jurisdiction.

12. Partial deliveries

The customer is not entitled to refuse partial deliveries; we are entitled to make partial deliveries. Every partial delivery is considered as an independent delivery.

13. Voidness or invalidity

The voidness or invalidity of individual terms of this or other contracts does not affect the validity of the other terms. The invalidated or voided terms are automatically replaced by a contract content which comes closest to the economic goal of the contract as it was expressed in the contract and these terms.