a) These Terms and Conditions are valid for all purchase contracts for raw materials (hereinafter Material or Materials) of Schrott24 GmbH (hereinafter Schrott24) with the Contract Partner (hereinafter the Contract Partner). The conditions of Schrott24 apply exclusively. Schrott24 does not accept alternative conditions of the Contract Partner, even if the conditions have not been expressly contradicted or a delivery or pick-up has been accepted, unless Schrott24 has expressly acknowledged the validity of such alternative conditions in writing. These conditions also apply to all future contracts/deliveries from the Contract Partner, even if the validity of the conditions has not been expressly agreed with the Contract Partner.
b) In case of deviation between these Terms and Conditions and the mutually agreed contract, the provisions of the contract shall prevail.
2. Confirmation of Contract
The contract of Schrott24 is binding, even if the Contract Partner does not countersign the contract. However, for documentary and regulatory purposes a signed contract has to be returned by the Contract Partner to Schrott24 within 14 days.
3. Customs Clearance
The Contract Partner shall assure to carry out export customs clearance by using the appropriate customs tariff number according to applicable national laws and regulations. The following documents are required to carry out the import customs clearance in the European Union:
- Transport documents (e.g. Bill of Lading) - ANNEX VII (if applicable)
- Packing list
- Certificate of preferential origin (if applicable) - Others (if applicable)
4. Declaration (REACH / Waste / Dangerous goods and hazardous Material)
The Contract Partner is responsible for declaration. a) Substances: The Contract Partner guarantees that any Material which is shipped to Schrott24 is compliant with its obligations according to REACH regulation (EC) No. 1907/2006. In case of a REACH substance, the corresponding REACH number has to be declared by the Contract Partner.
b) Waste: If the Material cannot be clearly allocated to the “green list” pursuant to EU Regulation 1013/2006 Annex III et seq., the Contract Partner must arrange for the necessary notification. For Materials on the green list, a “Green List Contract” between the Contract Partner and Schrott24 has to be prepared and duly signed before shipment. The Contract Partner shall include the documents required for the respective waste shipment with the transport papers and/or transfer them to Schrott24. The Contract Partner shall be liable for all costs resulting from incorrectly declaring waste shipments and not carrying out the proper notifications.
c) Dangerous goods and hazardous Material: Dangerous goods and hazardous Materials must be correctly classified, packed and labeled in accordance with GHS, CLP and IMDG, etc. The corresponding documents shall be presented upon delivery or pick-up, if included in the contract. The Contract Partner shall be liable for all costs resulting from incorrectly declaring Dangerous goods and hazardous Material.5. Radioactivity and harmful components / impurities
a) The Contract Partner declares and guarantees that the Material is not radioactive.
b) If not otherwise agreed, the Contract Partner declares and guarantees that the Material is free of harmful components and impurities such as oil, chlorine, arsenic, bismuth, beryllium, cadmium, antimony, mercury, asbestos, etc., as well as free of other toxic substances.
c) The Contract Partner also guarantees that any delivered Materials from upstream suppliers are free from the above mentioned components and impurities.
d) If radioactivity or harmful components or impurities are found, Schrott24 reserves the right to reject the delivery or pick-up and/or to deny entry to the receiving site or to store the Materials on its grounds, unless Schrott24 is legally required to destroy, remove or otherwise process the Materials. After notification of non-conformance, the Contract Partner has a period of five working days to retrieve the non-conformant Materials. After this period has elapsed, Schrott24 cannot guarantee for a separate storage of the delivered Material.
e) If radioactivity or harmful components or impurities are found, the Contract Partner shall compensate all corresponding costs and damages and indemnify Schrott24 against all third party claims.
6. Notification / Documentation
a) The contract and reference numbers shall always be noted on corresponding documents. A detailed packing list is mandatory.
b) If applicable, the Safety Data Sheet has to be provided before the conclusion of the contract. c) At the moment of delivery or pick-up, if included in the contract, the Contract Partner must hand over to Schrott24 all documents that are required on the basis of the law or the special stipulations of the corresponding purchase contract.
d) Schrott24 reserves the right to reject deliveries or pick-ups for which the documents are insufficient and/or incorrect or notification details do not match the driver’s name and/or license plates. The Contract Partner shall be liable for all costs resulting from insufficient and/or incorrect or notification.
e) Advanced shipping notice: Truck deliveries to receiving plant: The Contract Partner is obliged to request a time slot for a delivery of Material at the receiving plant. Schrott24 will provide a delivery date upon which the Materials are to be delivered. Schrott24 reserves the right to reject deliveries without a confirmed time slot. Sea deliveries: The Contract Partner shall inform Schrott24 about the vessel’s departure and the estimated date of arrival at the corresponding port immediately, at the latest on the next working day. Within five working days after the vessel’s departure, the Contract Partner shall forward to Schrott24 all corresponding documents. If the shipping time is less than ten days, the Contract Partner shall forward to Schrott24 all the documents latest one day after the vessel’s departure. f) For any delivery which requires sampling activities other than agreed in the contract, the Contract Partner must announce these requests at the moment of notification of the Material. Schrott24 reserves the right of performing sampling activities as contractually agreed if the above mentioned requests have not been stated in due time.
7. Transport, Packaging, Load Securing and Unloading
a) Unless otherwise agreed, the Contract Partner shall load one quality of Material per truck or container only. If several qualities on one truck or container have been agreed, the Contract Partner shall ensure that the different qualities are clearly marked and separated and can be precisely identified on the basis of the packing list.
b) Any unclear identification or incorrect loading of parcels will result in a halt of unloading (goods
receipt process) and cause waiting times for the carrier or a refusal of the delivery or pick-up. Schrott24 cannot be held liable for any expenses caused by unclear identification or incorrect loading of parcels. In the case of unclear identification or incorrect loading of parcels, Schrott24 reserves the right to charge an additional handling fee.
c) The Material must be packed as agreed in the contract. Unless otherwise agreed or unless requested due to reasonable security or legal reasons, the Material shall be loaded as bulk (loose). Schrott24 does not accept plastic packages of any kind, such as plastic pallets, drums or boxes. The Contract Partner warrants that any applicable wood packing materials comply with the ISPM15 regulation (IPPC Standard). Schrott24 reserves the right to pass on costs/fines resulting from a deviation of the contractually agreed packaging to the Contract Partner. The same applies to costs/fines that arise, e.g. due to additional efforts required for unloading or due to overloading. In particular, this applies if different Materials are not separated appropriately upon delivery or pick-up.
d) The Material shall be stowed inside the truck or container in a traffic safe way in accordance with the legal stipulations and, in the absence thereof, in a usual manner, in order to safeguard workers’ protection.
e) The Contract Partner shall ship the Material in (a) 20-foot container(s) only. Schrott24 is not equipped to discharge (a) 40- foot container(s) safely. Schrott24 holds the right to reject Material shipped in (a) 40-foot container(s) and shall not be liable for extra costs due to rejection.
f) The Contract Partner shall agree with the respective shipping company 14 days free “combined” detention/demurrage at the port of destination. The Contract Partner shall confirm to Schrott24 in writing the agreement with the shipping company.
g) The Contract Partner warrants that any vessel used for shipment of the cargo under this contract shall comply with the requirements of the ISPS Code relating to the vessel.
h) Contract Partner shall assure the issue of an Electronic Bill of Lading (Sea Waybill / Express Bill of Lading) whenever the business allows the usage of a corresponding electronic document.
8. Taxes and Duties / Price
a) Taxes, duties and other charges that are levied for the Materials outside of the country of the receiving plant as well as for the related documents shall be borne by the Contract Partner, if not agreed otherwise in the contract.
b) Prices and additional costs specified by the Contract Partner exclude value added tax (VAT). c) Schrott24 reserves the right to send back invoices that are not in accordance with local laws. d) If there are any significant changes of the reference prices (e.g. LME, LBMA or LPPM), referring contract structures and/or their application, or significant changes regarding the conversion of currencies, Schrott24 will determine a new reference which comes as close as possible in an economic and legal sense to the original intention of the parties.
c) Price fixings cannot be accepted on national, regional and exchange holidays.
If contractually agreed, and in the case of CIF deliveries, the Contract Partner shall, at its own expense and to the benefit of Schrott24, insure all risks of transport until arrival at the agreed point of destination, including the risks of war, strikes, riots and civil commotion, in the amount of 110 % for the provisional Material value and subject to subsequent adjustment of the final Material value, with insurers with excellent ratings. The insurance services shall be provided without any deductions and in the same currency as the contractual price. The corresponding insurance certificate shall be sent to Schrott24 before arrival of the vessel.10. Transfer of Risk and Ownership
a) The transfer of risk is covered by the respective Inco Terms (2010). If not agreed otherwise, the risk is transferred to Schrott24 upon acceptance of the ordered Materials at the receiving plant. This also applies in cases in which Schrott24 bears the transport costs or takes out transport insurance.
b) The Contract Partner is aware that the Material is mixed with and bound to other materials. The Contract Partner’s right of ownership of the delivered Material expires at the latest upon acceptance of the ordered Materials at the receiving plant. Schrott24 reserves the right to reject the transfer of title if the Contract Partner has delivered outside of the agreed delivery period. The Contract Partner’s right of (co-) ownership of the delivered Material expires upon fulfillment of the return delivery at the latest.
11. Volumes / Quality / Non-conformance a) If not otherwise agreed, excess, reduced or partial deliveries are not permitted.
b) The Contract Partner shall supply the Material strictly in accordance with the contractual specifications.
c) In the event that the Contract Partner has materially breached the contract, Schrott24 may serve a notice of revocation/termination of the contract, which notice shall specify the breach. Any persistent failure of the Contract Partner to deliver the agreed quality meeting the specifications shall be deemed a material breach of the contract. A persistent failure shall mean (for example but not limited to) a significant deviation of the contractually agreed quality in minimum two shipments.
12. Weighing, Estimation, Sampling, Moisture
Either estimation or sampling of the Material can be contractually agreed at the receiving plant under the following conditions. If not otherwise agreed, the weighing at the receiving plant is solely decisive for the final settlement. Estimation and/or sampling, including the determination of the moisture content, at the receiving plant is solely decisive for the final settlement if an exchange of assays (§ 13) has not been agreed.
In the case of estimation, the Contract Partner must notify Schrott24 within three working days after receipt of the corresponding results if the Contract Partner does not agree with the estimated value determined by the receiving plant. If the Contract Partner does not notify Schrott24 within this period, Schrott24’ estimate is solely decisive for the settlement and the Material is released for processing. In case of performing a sampling due to missing agreement about the estimated value of material, the cost of sampling and analyses shall be borne by the party whose assessment was further from the final governing result. If a sampling will be necessary after the material has arrived on site and the Contract Partner wishes to be represented by a sampling specialist, the Contract Partner has to nominate this person within three working days. Schrott24 offers a timeslot for the corresponding sampling. If the sampling specialist is not nominated in due time, not present or is delayed at the submitted timeslot, Schrott24 has the right to start the sampling procedure promptly. The provisions of the following § 12b apply accordingly.
In the case of sampling, the Contract Partner has the right, at its own expense, to be represented by an authorized sampling specialist that is approved by Schrott24. The representation by members or employees of the Contract Partner is excluded if not otherwise agreed. The sampling specialist has to be nominated by the Contract Partner at least six working days before arrival. Schrott24 offers a timeslot for the corresponding sampling. If the sampling specialist is not nominated in due time, not present or is delayed at the submitted timeslot, Schrott24 has the right to start the sampling procedure promptly. The result of this sampling procedure is solely decisive for the settlement. After sampling, it is within Schrott24’ discretion to process the delivered Material immediately. Depending on the type of Material, the Material can be sampled and analyzed either on a wet chemical basis or with analytical devices. In the case that the sampling of the Material delivered will not be carried out in trust by Schrott24 or is not attended by an authorized sampling specialist, the Contract Partner shall automatically receive two (2) samples per sampling lot free of charge. If more samples per sampling lot are required, the request shall be expressed in writing at the latest six (6) working days prior the arrival. Schrott24 reserves the right to charge a sample fee for each additional sample requested.
Schrott24 will check the moisture content of delivered Materials. In case of estimation of moisture, the result will be shown as percentage of the Material evaluation. In case of sampling for the determination of moisture, the result will be shown as a deduction of the weight of the delivered Material.13. Exchange of Assays
a) Assays shall be made independently by Contract Partner and Schrott24 and the results of such assays shall be exchanged simultaneously by mail on a date mutually agreed upon. Should the difference between the Contract Partner’s and Schrott24' assays be not more than the agreed splitting limits the exact average of the two results shall be taken as the agreed assay.
b) In the case of any greater difference the sealed reference sample which is held by the receiving plant shall, at the request of either party, be referred in rotation lot by lot to independent umpire(s) as stipulated in this contract for umpire purposes. Should the assay of the umpire fall between the respective results of Contract Partner and Schrott24, the mean between the umpire's result and that of the party nearer to the umpire shall be binding on both Contract Partner and Schrott24. If the umpire assay is the exact mean of the results of Contract Partner and Schrott24, the umpire assay shall be accepted as final. Should the assay of the umpire fall outside the respective results of Contract Partner and Schrott24 the middle assay of the three shall be final for settlement. Should the assay of the umpire coincide exactly with the result of either of the two parties, the umpire's result shall govern. The party whose assay is further from the umpire assay shall pay the umpire's charges, except when the umpire assay is the exact mean between the assays of the two parties in which case the umpire charges shall be shared equally. The umpire may not be assigned to prepare the assays of the parties.
14. Rights Related to Product Defects
a) Schrott24 holds unconditional legal and, if applicable, contractually agreed warranty rights. b) The statute of limitations for Schrott24’ defect claims is 36 months and starts – including in the case of partial deliveries – with the delivery of the entire order. Reductions require a written agreement.
15. Indemnity and Liability
a) Schrott24 is entitled to unconditional indemnity claims against the Contract Partner as set forth by law. A restriction or exclusion of indemnity claims is only permissible in the form of an individual written agreement.
b) As a rule, Schrott24 shall be liable for damage insofar as the other prerequisites for a claim are given if Schrott24 is culpable of intent or gross negligence. In the case of simple negligence, Schrott24 shall be liable in the case of violation of an obligation whose fulfillment makes proper performance of the contract at all possible and compliance with which the respective other contracting party may rely on (also known as cardinal obligation). In all other respects, liability for compensation for damages of any kind whatsoever, regardless of the basis for claim – including violation of mutual confidence in the preparation of contract – shall be excluded. In the case of slight negligence, Schrott24’ liability shall be limited to typically foreseeable damage, the occurrence of which Schrott24 should have anticipated in accordance with the circumstances known to Schrott24 upon conclusion of the contract. Furthermore, liability for lost profit shall be excluded in these cases. Insofar as a warranty has been assumed, the above exclusions of and limitations on liability shall not apply for damages which are to be paid in accordance with product liability law as well as damages for fatal injury, personal injury and damage to health.
16. Rights of Third Parties
The Contract Partner affirms that the matter is free from claims of any third parties, especially reservations of ownership, industrial property rights or liens.
17. Offset Rights, Rights of Retention and Assignment
a) The Contract Partner is only entitled to offset rights and rights of retention when the counterclaims of the Contract Partner are uncontested or when the legal force of the counterclaim has already been ascertained.
b) Offsetting is also permissible with and against claims made by affiliated companies.
c) The Contract Partner may only assign claims with written consent.18. Confidentiality
All information and documents that have good cause to be kept secret (Confidential Information) must be kept confidential by the Contract Partner, its subcontractors and other auxiliary persons. Such Confidential Information is not to be made accessible to third parties and cannot be used for third parties or for any other purpose apart from fulfilling the contract without Schrott24’s prior written consent.
19. Force Majeure
In the event of force majeure such as fire, flood, breakdown, accident, war, insurrection, riot, governmental action, labor dispute, shortage of fuel, electricity, raw materials or supplies, lack of freight facilities, caused by any act of God or any other cause beyond the reasonable control of the Contract Partner or Schrott24, the arrangements and obligations of the contract are suspended completely or partially, depending on the extent of the hindrance, for the duration of the force majeure from the moment in which the affected party informs the other about the existence of force majeure in writing, including the reason for it. In the case of force majeure at the receiving plant, deliveries are only permitted with Schrott24’s express agreement. A suspension of performance shall not have the effect of cancelling the contract which shall again come into full force and effect immediately upon termination of the force majeure event. The contract shall, each time, be extended for a period equal to the period of suspension. If a case of force majeure lasts longer than three months from the time it is announced, each Contract Partner has the right to rescind the contract with respect to the volumes that were not delivered and/or accepted due to the force majeure. Notwithstanding the foregoing provisions, should the price of the metals, which delivery was suspended due to an event of force majeure, have already been fixed, then such price is applied to the Material to be first delivered after the delivery thereof is resumed.
20. Compliance and Sustainability
a) The Contract Partner warrants that the Material is produced and/or exported in compliance with (i) all laws, regulations, statutes or official rules or requirements of the country of origin, (ii) all sanctions or trade restrictions imposed by any rule, regulation or statute of, e.g. the USA or EU and (iii) all applicable United Nation human rights, environmental and safety conventions/regulations. b) The Contract Partner undertakes, especially but not limited to, to observe all applicable laws, provisions and directives, or any other regulations combating bribery and corruption, in particular the relevant legislation in the U.S. and the United Kingdom, hereafter summarized as “regulations”, and not to enter into any function, activity or conduct (e.g. the requesting, offering, promising, approving, giving or receiving of any unlawful payments or other benefits) which constitutes criminal action according to the regulations stated.
b) The Contract Partner undertakes to inform Schrott24 promptly of any circumstances which could constitute the violation of the regulations stated.
c) Schrott24 will not knowingly purchase Material that contains conflict minerals that directly or indirectly finance or benefit armed groups, as required by the Dodd–Frank Wall Street Reform and Consumer Protection Act and the EU Regulation 2017/821 (“Conflict Minerals”). The Contract Partner shall take necessary steps to identify and assess risk in its supply chain in accordance with the standards of the OECD Due Diligence Guidance for Responsible Supply Chains and will thereby ensure that Conflict Minerals are not sold to Schrott24.
d) Schrott24 expects that the Contract Partner complies with the principles of the United Nations Global Compact and the core labor standards of the International Labor Organization (ILO) including but not limited to the following: - Compliance with the applicable national statutory provisions in respect of fundamental labor rights, remuneration and working hours, standards of occupational health and safety, environmental legislation, regulations and standards - Avoidance and banning of any kind of child labor - Prohibition of all forms of discrimination - Prohibition of all forms of slave labor - Prohibition of bribery and corruption Schrott24 expects that the Contract Partner communicates these fundamental principles and requirements to its business partners and encourages them to observe these standards. The Contract Partner shall consider these factors in its choice for business partners.
e) Failure to observe this clause is a significant violation of this contract and entitles Schrott24 to terminate the contract without notice.
f) Schrott24 is not liable for claims, losses or damages that arise in connection with non-compliance with this clause on behalf of the Contract Partner. The Contract Partner shall release Schrott24 from and hold Schrott24 harmless against such claims, losses or damages.
21. Conversion Factors
1 metric ton (mt) = 1,000 kilograms (kg)
1 kilogram = 2.20462 pounds (lbs.)
1 troy ounce = 0.0311035 kg
22. Place of Jurisdiction, Applicable Law
a) If not otherwise agreed, the place of jurisdiction is Vienna. Schrott24 also has the right to initiate court proceedings at the Contract Partner’s place of business.
b) If not otherwise agreed, the laws of Austria shall apply.
Status: August 12, 2017