General Terms and Conditions of Sale (GTC) for Deliveries and Services

As at February 2008

  1. General provisions

    The following terms and conditions shall apply exclusively for all goods and services delivered by Bayerische Kabelwerke AG (hereinafter referred to as the "supplier") to its purchasers even if no express reference is made to them in future business transactions or if purchasers reference other terms and conditions. The latter as well as any ancillary agreements are only binding if confirmed in writing by the supplier.

    The ordered quantity will be delivered in the agreed standard lengths within the permissible tolerances. Nevertheless, up to 10% of the order may be delivered in other lengths. Deviations in quality, quantity, weight, dimensions, appearance, or colour such as may be customary in the trade or due to variations in the raw materials or production processes are permitted. The supplier is entitled to supply its products and services, e.g. cables, wires, semi-finished products, colour concentrates, mixtures, etc. in excess or short lengths depending on fabrication. Any pieces that must have a precise length are to be indicated as such by the purchaser in the order. Purchasers are entitled to demand subsequent delivery (at their cost) in form of a standard length in the case of a shortfall quantity. Partial deliveries are permitted. Any return of delivered goods to the supplier for whatever reason requires the supplier's prior consent.

    The rights associated with ownership and copyright of any prepared documents or records (e.g. drawings, data sheets, cost estimates, etc.) remain unconditionally with the supplier. They may be disclosed to third parties only with the prior written consent of the supplier and must be returned immediately upon request.

  2. Offer/Order confirmation

    Offers are always subject to change without notice and are not binding even for repeat orders. Unless otherwise agreed, all offers are valid only for 10 days. The order is deemed to be clarified if the supplier is in a position to confirm a binding order confirmation with regard to quantity, type, delivery time, etc. If it is impossible to procure the raw materials required to fulfil the order, the supplier may withdraw from the contract.

    All information about diameter and properties of the cable products is approximate. The supplier reserves the right to deviations to the same, caused by fabrication and the properties of the raw materials used insofar as this is reasonable for the purchaser and does not impair the quality of the product. Once clarified, the supplier always confirms orders in the form of an order confirmation. Only then shall the price and performance details as well as other declarations or assurances be binding for the supplier.

  3. Prices

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    A distinction is made between the following price types:

    Power cablel

     Price without metal:              

     corr. list price

    Net price without metal:

    corr. list price less discount

    Net market price:

    corr. list price less discount plus metal price (Cu, Al, Pb)

    Communication cables, railway and signal cables

    Base price:

    corr. list price (Cu basis €100, potential Pb basis €50)

    Net base price:

    corr. list price (Cu basis €100, poss. Pb basis €50) less discount

    Net market price:

    corr. list price (Cu basis €100, poss. Pb basis €50), less discount, plus metal price (Cu, Pb)

    Cables

    Base price:

    corr. list price (Cu basis €150)

    Net base price:

    corr. list price (Cu basis €150), less discount

    Net market price:


    corr. list price (Cu basis €150), less discount, plus metal price (Cu, Pb)

     


    Metal value:

    The metal prices are calculated by multiplying the metal numbers stated in the sales catalogue or in the supplier's offer by the metal quotation plus procurement costs.The calculation of the metal price in €/100 kg is based on the following indices:

    Copper:
    DEL quotation on the basis of the prices offered by the major copper processors and suppliers plus 1% procurement costs.

    Aluminium:
    The daily changing quotation for conductive, high-grade aluminium incl. delivery in Germany plus the usual market surcharges for conversion into Properzi wire.

    Lead:
    Quotation for cable lead.

    The metal prices are those quoted on the market on the day following the receipt of the clarified order at the supplier's plant. If no quotation is posted on this day, the next market price quoted shall apply. Quotations used in offers are not binding. If metals are supplied by the purchaser, the price without metal will be charged. Reworking jobs are agreed separately. Metal or reworked goods which the purchaser has agreed to provide must be delivered to the supplier's plant no later than 6 weeks before the delivery deadline.
    Prices are agreed in Euro and do not include VAT. This will be invoiced separately at the respectively applicable rate in accordance with the respectively applicable tax regulations.
     
  4. Terms of payment

    The payment period begins when the invoice is issued or notice is given that the order is ready for dispatch. The supplier will not cover any fees associated with purchaser payments.

    Unless otherwise agreed, the payment period is 14 days net. The supplier reserves the right to demand advance or immediate payment at any time, as well as to make delivery dependent on collateral or other security if there are doubts about the purchaser's creditworthiness.

    If the purchaser is in default either in whole or in part, default interest at a rate equal to nine points above the base interest rate set by the European Central Bank shall be payable, unless the supplier can prove higher damages. This does not affect any other rights pertaining to the supplier. In the event of default, we reserve the right to process further orders/ deliveries only when paid in advance.

    If the purchaser stops payment, is overdrawn, or has filed for bankruptcy, all claims shall become due immediately. The same shall apply in the event of a significant deterioration in the purchaser's financial situation. In such cases, the supplier may demand sufficient security or withdraw from the contract.

    If metals (copper, aluminium, lead) are covered at the purchaser's request without a specific order for cable products being placed at the same time, the metals will be invoiced separately. This invoice for the metal purchase is due immediately and payable without discount. After payment has been received, title to the metal transfers to the purchaser.

  5. Packaging

    Product packaging (paper, foil, cardboard, etc.) for standard products is included in product prices. Shipment packaging will be charged separately.

    The delivery of crates and flat pallets is done on an exchange basis. If delays occur in the exchange, the costs incurred by the supplier will be passed on to the purchaser. If possible, all goods to be delivered on drums with a diameter between 0.50 and 2.80 m are sent on Kabeltrommel GmbH & Co. KG, Cologne (KTG) drums. These drums are owned by KTG and are supplied on its behalf in accordance with its General Terms and Conditions for the Supply of Cable and Rope Drums. KTG drums are marked with the KTG logo. The delivery of cables on KTG drums is indicated in offers and order confirmations. KTG's General Terms and Conditions for the Supply of Cable and Rope Drums are available for inspection at our offices. They can also be viewed at  www.kabeltrommel.de  or sent on request. It should be noted that KTG will charge rent for any drums not returned on time. All drums from our plant remain our property. We are merely lending them to purchasers. Purchasers are liable for any loss or damage. Our drums are to be returned in good condition once emptied. The purchaser bears the return costs. The drums are lent at no extra charge for 3 months or as agreed. From the fourth month or after the expiry of the agreed lending period, the drum rent for each month or part thereof shall be 15% of the drum deposit value.  Drums that have not been emptied within 12 months will be charged at the full deposit value.

    For drums which the supplier then subsequently takes back within 3 years from the original delivery date, the supplier will reimburse 25% of the deposit value. The export of drums will be agreed separately. Drum supports and casings are charged at cost and will not be taken back.
  6. Retention of title

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    The goods shall remain the property of the supplier until all its claims against the purchaser have been satisfied, even if the individual goods have been paid for. Pledging or using the goods as security is not permitted.

    In the event that the reserved goods are further sold or leased as part of the purchaser's ordinary course of business, the purchaser hereby assigns the supplier a security interest in any of its claims against its customers arising therefrom, such interest persisting until all of the supplier's claims have been settled. No further notice of this security interest is required. The assignment shall also extend to the purchaser's accounts receivable from transactions with its customers.

    In the event that a legitimate interest is confirmed, the purchaser must provide the supplier with the information required to assert its rights against the customer, and hand over the necessary documents. Where the reserved goods are further sold or leased together with other items and no individual prices were stipulated for the reserved goods, the purchaser hereby grants the supplier a priority claim to that fraction of the total combined price equivalent to the value of the reserved goods.

    Until revoked, the purchaser is entitled to collect these assigned claims on behalf of the supplier, bearing all associated collection costs. If there are grounds, specifically default of payment, cessation of payments, protest of a bill, the opening of insolvency proceedings, or other comparable well-founded indications suggesting insolvency on the part of the purchaser, the supplier may revoke the purchaser's authority to collect these claims on its behalf. In addition, after giving adequate warning, the supplier may disclose the purchaser's assignment of his claims, collect the assigned claims, or demand that the purchaser discloses the assignment of his claims to the customer.

    In the event that the payments for the claims assigned to the supplier are received by the purchaser or its financial institution, the purchaser shall notify the supplier immediately and redirect them to the supplier's account. If the purchaser processes the reserved goods, transforms them, or combines them with other objects, this work is done on the supplier's behalf. The latter shall become the direct owner of the item thus produced. Should this not be possible for legal reasons, the purchaser agrees to transfer title to the same to the supplier.

    The purchaser shall store said new item on the supplier's behalf with all due diligence. This new item shall be deemed to be the reserved goods. In the event of any processing, transformation or combination with other items not belonging to supplier, the supplier shall have joint ownership of the new item in proportion to the value contributed by the reserved goods it supplied thereto. If the new item is further sold or leased, the purchaser hereby assigns the supplier a security interest in any of its claims against its customers arising therefrom. No further notice of this security interest is required.

    If the reserved goods are combined to property or movable assets, the purchaser hereby assigns the supplier a security interest in any of its claims arising therefrom. No further notice of this security interest is required. If the purchaser is the owner of the property or has some other legal claim to the rent from this property, this rent shall also be assigned to the supplier. This assignment is limited to that amount invoiced by the supplier for the goods it supplied. That portion of the claim assigned to the supplier has priority over any other claims.

    In the event of seizures or other third-party attempts to intervene with the reserved goods, the purchaser must inform the supplier immediately.

    If the purchaser is derelict in his duties, especially default in payment, the supplier shall be entitled to repossess the goods. The purchaser is obliged to surrender the same. If the supplier repossesses the goods or asserts its associated claims, this does not constitute withdrawal from the contract unless expressly declared. After issuing a prior warning, the supplier has the right to sell or use the repossessed goods otherwise and to satisfy its outstanding claims from the proceeds.

     
  7. Delivery
    Delivery periods are only binding if the Supplier expressly acknowledges them as such in writing. The delivery period shall begin on the day on which the order was clarified and an order confirmation is present. The delivery period shall be adhered to when the goods leave the factory or the warehouse within the period. If the shipment or collection is delayed for reasons which are not the fault of the Supplier, the period shall be considered as adhered when the readiness for dispatch notice is given within the agreed period.
    If the non-adherence to the period is due to force majeure, e.g. bad weather, mobilisation, war, riot or strike, lock-out, incorrect or delayed deliveries from suppliers or the occurrence of unforeseeable obstacles which are beyond the control of the Supplier or his suppliers, the period shall be extended appropriately.
    If the Supplier falls behind schedule, the Purchaser can request delay compensation for each week of the delay which has been completed in the amount of 0.5% up to a maximum of 5% of the value of the goods which were delivered late if he credibly establishes that he has incurred damages as a result of the delay. Other compensation claims from the Purchaser due to delivery delays and in lieu of performance shall be excluded in all cases of delivery delays, even if a grace period set for the Supplier expires. This shall not apply in cases of intent, gross negligence or due to injury to life, limb or health. Any change to the burden of proof to the detriment of the Purchaser shall not be linked to this.
    Otherwise the right of the Purchaser to withdraw after an unsuccessful expiration of a grace period set for the Supplier shall remain unaffected.
    The Purchaser is obliged to state whether or not he wishes a withdrawal from the contract and/or compensation in place of performance due to a delay in delivery within an appropriate period when requested by the Supplier.
    If the Purchaser causes a delay in the shipment or delivery of the delivery objects, the Supplier shall be entitled to charge the resulting additional costs to the Purchaser.

  8. Transfer of risk/Incoterms
    For deliveries ex works, the risk (transport and remuneration risk) shall transfer to the Purchaser when the goods have left the factory or warehouse of the Supplier, irrespective of whether this occurs with their own or external means of transport. In the event of free deliveries, the risk shall transfer to the Purchaser when the Purchaser receives the goods, before unloading. If the shipment is delayed due to circumstances caused by the Purchaser or if, at the request of the Purchaser, the shipment takes place at a later time than was agreed, the risk shall transfer to the Purchaser from the day of the notification of readiness for dispatch for the duration of the delay. The Supplier is obliged to conclude the insurances requested by the Purchaser at the request and cost of the Purchaser. Without a specific request from the Purchaser, a delivery shall not be insured against theft, break-in, transport and fire damage. If the Purchaser requests the conclusion of insurance, this shall be concluded at the cost of the Purchaser. The Incoterms shall apply for exports in their applicable version.

  9. Material defects
    The Supplier shall be liable as follows for material defects:
    a) All parts which are proven to be unusable or whose usability is significantly impaired due to material defects before the transfer of risk and during the limitation period– irrespective of the service life - must be either repaired or redelivered, at the discretion of the Supplier.
    b) In the case of cable products , material defects shall only be considered as defects if they would have led to disruptions under normal circumstances with proper handling.
    c) Shortfall quantities and visible material defects must be immediately established upon arrival and disclosed to the Supplier in writing, giving the order and delivery number. Otherwise, rights cannot be derived from them.
    d) The inspection as to whether a material defect is present must, if applicable, take place according to the standards applied in cable construction or on the basis of the agreed conditions. If this inspection shows that no material defect is present, the costs shall be borne by the Purchaser.
    e) Defect claims shall expire 12 months after delivery or the notification of readiness for dispatch. This shall not apply insofar as the law according to §§ 438 (1) No. 2 (construction work and objects for construction), 479 (1) (recourse claim) and 634a 1 No. 2 (structural defects) of the BGB [German Civil Code] considers longer periods to be more appropriate.
    f) The Purchaser must always allow the Supplier the required time and opportunity to remove the defect, at their discretion. If he refuses this, the Supplier shall be freed from the defect removal.
    g) If the Supplier allows a reasonable grace period set for him to expire without removing the defect, if the repair is impossible, refused or does not lead to a removal of the defect and the Purchaser cannot be expected to conduct further repairs, the Purchaser shall have the right to reduce the remuneration in a reasonable proportion to the material defects which have occurred, irrespective of any compensation claims according to clause 11. If the Purchaser and the Supplier do not agree on the reduction, the Purchaser shall also be entitled to withdraw.
    h) Claims from the Purchaser shall expire if goods were damaged through improper handling or storage or if changes or repairs were carried out on them without the written consent of the Supplier and the changes or repairs led to the material defect.
    i) The parts replaced in fulfilment of claims for defects shall become the property of the Supplier upon removal.
    j) The Supplier shall be liable for repair works and replacement parts to the same extent as for the original delivery object and within the limitation period applicable for the original delivery object.
    k) Claims made by the Purchaser related to costs required for subsequent performance, in particular transport, infrastructure, labour and material costs, shall be excluded, if said costs increase because the object of delivery is subsequently transferred to a location other than a subsidiary of the Purchaser, unless said transfer corresponds to its proper use.
    l) Recourse claims made by the Purchaser against the Supplier shall only be accepted if the Purchaser has not made any agreements with its buyers that extend beyond statutory claims of defect. Moreover, paragraph k) shall apply for the scope of the Purchaser’s recourse claim against the Supplier.
    For compensation claims, clause 11 (other compensation claims) shall otherwise apply. Further claims made by the Purchaser against the Supplier and its vicarious agents other than the claims for material defects set out in this clause 9 shall be excluded.

  10. Property rights
    The Supplier shall assume the domestic liability against the Purchaser for the delivery object being free from the property rights of third parties.
    This is on the condition, however, that the Purchaser immediately informs the Supplier of claims from property rights which third parties raise against him and acts in agreement with the Supplier when dealing with these claims and pursuing his rights. If one of these conditions is not fulfilled, the Supplier shall be free from his obligation. If a breach of third party property rights occurs for which the Supplier is liable and if the Purchaser is legally forbidden from using the lease object in whole or in part, the Supplier shall, at his own cost and discretion, either
    a) procure the right to use the lease object for the Purchaser or
    b) configure the delivery object so as to avoid a violation of rights or
    c) replace the delivery object with another object with corresponding capabilities which does not infringe on any property rights or
    d) return the delivery object against reimbursement of the purchase price.
    If the Purchaser makes changes to the delivery object, installs additional devices or combines the delivery object with other devices or equipment, and if third party property rights are breached in doing so, the liability of the Supplier shall not apply.
    Likewise, the Supplier shall not be liable for the breach of external property rights for a delivery object which is manufactured according to the drawings, designs and other information from the Purchaser. In this case, the Purchaser must indemnify the Supplier from all third party claims.
    The Purchaser shall not be entitled to additional or other claims due to a breach of third party property rights. In particular, the Supplier shall also not compensate for any consequential damage, such as disruptions in production or use, or lost profit. This shall not apply if there is mandatory liability in the event of intent or gross negligence.
    The Purchaser shall not acquire any claims to use of the property rights available to the Supplier which concern the interaction of the delivery object with other items.

  11. Other claims for damages
    Unless anything to the contrary is specified above, the Supplier and its performing and vicarious agents shall be liable for the Purchaser’s compensation claims as follows:
    a) Liability for personal injury shall be governed by the applicable laws.
    b) The liability for material damage is limited to 500,000 euros per claim and 1 million euros in total.
    c) Liability for financial losses is excluded.
    The liability restriction under b) and the liability exclusion under c) shall not apply if liability is mandatory, e.g. in accordance with the German Product Liability Act, in case of intent, gross negligence, injury to life, limb or health or a breach of fundamental contractual obligations. Any change to the burden of evidence to the detriment of the Purchaser shall not be linked to the aforementioned regulations.
    If the Purchaser is entitled to make claims for damages in accordance with this clause 11, said claims shall expire at the end of the period of according to clause 9e.

  12. Place of performance, Jurisdiction, Binding nature
    The place of performance for all statutory and contractual claims is a choice of the factories or warehouses of the Supplier. The place of jurisdiction for disputes is Schwabach.
    If individual provisions of this agreement are ineffective, the validity of the remaining provisions and the contract itself shall not be affected by this.
    The contract shall be subject to the laws of the Federal Republic of Germany. All legal relationships with us shall solely be subject to the law of the Federal Republic of Germany. The application of the United Nations Agreement of 11 April 1980 on contracts for the international sale of goods (UN Convention on Contracts for the International Sale of Goods) shall be excluded.