Nord-Schrott GmbH & Co. KG
Article 1: Binding nature of our general terms and conditions
1. The following general terms and conditions (hereinafter: the AEB) apply for all current and future business relationships of Nord-Schrott GmbH & Co. KG (hereinafter: NOS) with business partners and suppliers (hereinafter: Sellers). In so far as not otherwise agreed upon or otherwise regulated in these AEB, the commercial practices and customs as well as the legal regulations apply.
2. These provisions do not apply to contracts with private individuals.
3. These AEB apply in particular to contracts for the sale and/or delivery of movable things (hereinafter: goods), irrespective of whether the Seller manufactures the goods himself or buys them from suppliers (Articles 433, 651 BGB (German Civil Code)). In so far as not otherwise agreed, these AEB apply in the version valid at the time that NOS submitted the order or in any event in the text form most recently communicated to the Seller as a framework agreement for similar future contracts too, without the need for NOS to refer to the AEB again each time.
4. These AEB apply exclusively. Differing, conflicting or supplementary general terms and conditions of the Seller will only be an integral part of the contract in so far as NOS has expressly approved their validity in writing. This requirement for approval applies in all cases, including for example when NOS unconditionally accepts the Seller's deliveries of goods, services or payments in awareness of the Seller's general terms and conditions of business. If NOS approves the Seller's general terms and conditions then - unless otherwise regulated in the approval - they only apply for the individual contract in question.
5. In the event of contradictions between the Seller's general terms and conditions that NOS has approved and these AEB, these AEB will prevail.
6. Individual arrangements made on a case-by-case basis with the Seller (including subsidiary agreements, supplements and amendments) will in all cases take priority over these AEB. In the absence of evidence to the contrary, a written contract or NOS's written confirmation will be authoritative in respect of the content of such arrangements.
7. Legally relevant declarations and notices that the Seller issues to NOS after the contract has been entered into (such as deadlines, reminders and notices of withdrawal) must be made in text form to be legally effective. When these AEB require such acts to be made in writing then the respective text form is always sufficient.
8. References to the applicability of legal provisions are for the purposes of clarification only. This means that even without such clarification, the relevant legal provisions are applicable, in so far as they have not been directly amended in or expressly excluded in these AEB.
Article 2: Offers and contracts
1. Offers issued by NOS are non-binding and may be subject to change. In so far as no explicit commitment period is agreed or does not clearly arise from the circumstances (where e.g. a price is designated as 'today's price') then NOS's offers have to be accepted immediately. The legal provisions on revocation options remain unaffected.
2. A contract is formed when the purchase or order has been confirmed in writing (hereinafter: the purchase confirmation) by NOS. Subsequent deviating sales confirmations by the Seller do not amend the contract. The unconditional acceptance by NOS of goods, services or payments does not mean that deviating confirmations have been recognized by NOS.
3. Amendments and supplements to or the dissolution of a contract or of these AEB are not effective until confirmed in writing by NOS. Declarations and notifications made by the Supplier after the contract has been entered into are only effective when made in writing.
Article 3: Prices and other information stated in invoices and delivery documents
1. The price quoted in NOS's purchase confirmation is binding.
2. Unless otherwise agreed upon in writing, the price includes packing, transportation and delivery by the Seller to the shipping address stated in the contract.
3. If NOS provides containers for the collection and/or transportation of the materials and a pick-up is agreed then NOS will charge container rent and transportation costs, unless otherwise contractually regulated.
4. All order confirmations, delivery documents (such as waybills, freight documents, delivery notes and bills of lading) and invoices must quote the contract number stated in the NOS purchase confirmation, as well as the material description, the delivery quantity, the Seller's address and the delivery address. If no material description is stated on the delivery documents then the classification provided in NOS's test findings will apply, without the Seller being entitled to subsequently submit a complaint about this.
Article 4: Performance, delivery, passing of the risk, default of acceptance, payment
1. Unless explicitly arranged, no mixing of multiple types of materials may take place. The Seller is obliged to ensure compliance with all existing statutory obligations regarding declaration and the provision of supporting documents.
2. Without the prior written approval of NOS, the Seller is not entitled to arrange for the performance that he is obliged to provide to be provided by third parties. The Seller bears the procurement risk for his performances, unless otherwise explicitly agreed on a case-by-case basis (e.g. limited to what can be supplied from inventory).
3. Place of performance for the delivery is the agreed takeover point.
4. NOS is entitled to change the time and place of delivery by written communication, subject to a notice period of at least one week prior to the agreed delivery date. This change must not shorten the delivery period. If such changes cause a delay in delivery that cannot be avoided with reasonable effort as part of the Seller's normal production and business operations then there will be a corresponding delay in the delivery date that was originally agreed.
5. When the Seller agrees to ship the goods, in the case of a transboundary shipment of waste he undertakes to provide all information required under waste legislation and to require any forwarders or carriers he deploys to provide this information too. This relates in particular to compliance with the requirements of Regulation 1013/2006 regarding shipments of waste (the WSR) and those of the AbfVerbrG (German waste shipment Act) issued to supplement the WSR, in each case as amended.
6. The risk of accidental loss/destruction/deterioration of the material passes to NOS upon handover at the place of performance. If an acceptance is agreed upon then this is authoritative for the passing of the risk. In other respects too, in the case of acceptance the legal provisions of the legislation on contracts to produce a work apply mutatis mutandis. If NOS is in default of acceptance then this is deemed equivalent to the handover or acceptance.
7. The legal provisions apply to the occurrence of a default of acceptance on the part of NOS. However, the Seller also has to expressly offer NOS his performance if a specific or determinable calendar time is agreed for an act or assistance on the part of NOS (such as the provision of materials). In cases of default of acceptance on the part of NOS, under the legal provisions the Seller can demand reimbursement of his additional expenses (Article 304 German Civil Code). If the contract relates to a not fungible individually assigned item to be manufactured by the Seller (single-unit production) then the Seller is only entitled to further rights if NOS undertook to assist and NOS's lack of assistance is NOS's fault.
8. When scrap metals are being delivered, payments will only be made by NOS or its authorized representatives if the Seller has given NOS a signed declaration that the delivered material is free of explosives.
9. Place of performance for payments is Flensburg. Payment for ferrous and steel scrap will be made by the 30th day of the month following the delivery. If the month has less than 30 days then payment is made at the end of the month. Payment for the delivery of nonferrous metals will be made 8 days after receipt. Shorter credit terms require there to be a separate, written agreement.
10. The Seller undertakes to deliver the goods to NOS free of his own rights and third-party rights.If in a particular case NOS accepts an offer from the Seller for a transfer of ownership that is conditional on payment of the purchase price then the Seller's retention of title expires at the latest upon payment by NOS of the purchase price for the goods delivered. As part of its regular course of business, NOS is authorized to resell the goods (including before payment of the purchase price), subject to NOS's assignment in advance of the resulting claim. Any retention of title on the part of the Seller only applies in so far as it relates to NOS's payment obligations for the respective materials for which the Seller retains ownership. This means that excluded from this are all forms of retention of title such as the expanded or transferred retention of title and retention of title that has been extended to include further processing.
Article 5: Delivery period and delayed delivery
1. The delivery period stated by NOS in the purchase confirmation or that is otherwise authoritative by virtue of these AEB is binding. If no delivery period is stated in the order or otherwise agreed upon then delivery must take place within 4 weeks of the contract being entered into. The Seller is obliged to inform NOS in writing without delay if it is likely that for whatever reason he will be unable to keep to the agreed delivery periods.
2. If the Seller fails to provide his performance at all or fails to perform within the agreed delivery period or if he delays delivery then NOS's rights are determined by the legal provisions, especially in respect of withdrawal and compensation. Subparagraph 3 of this provision remains unaffected by this.
3. In the case of the Seller's delayed delivery, NOS can demand - in addition to more far-reaching statutory entitlements - a lump-sum reimbursement of its losses caused by delay in in the amount of 1 % of the net price per full calendar week but with a maximum amount of 5 % of the goods that were delivered late. NOS reserves the right to provide evidence that additional losses resulted. The Seller reserves the right to provide evidence that no losses at all, or only a significantly lower loss, resulted.
Article 6: Complaints and suspensions
The Seller must accept suspensions against him. The suspensions are communicated to him by NOS by phone, email, fax or in writing. The further delivery of material under the same contractual relationship must be halted immediately.
Article 7: Refusals, defects and defect-related claims
1. NOS's rights in respect of material defects and legal defects relating to the goods (including incorrect delivery and short delivery) and for other violations of duty by the Seller are governed by the legal provisions, in so far as not determined otherwise below.
2. In accordance with the legal provisions, the Seller is liable in particular for the goods having the agreed quality at the time that the risk passes to us.The agreement about the goods' condition will in all cases be governed by those material descriptions that - in particular through their description or reference to them in NOS's purchase confirmation - are the subject matter of the respective contract or are included in the contract in the same way that these AEB are included. This relates in particular to material descriptions or specifications that are customary in business, as well as modifications agreed in this regard. It makes no difference in this regard whether the product description originates from us, the Seller or the manufacturer.In other respects, the condition of the material conforms with the relevant European and national legislation and with the technical provisions, as well as with the respective commercial practices.
3. The Seller declares that all materials were inspected by him for the presence of explosives, objects such as ammunition scrap that may cause explosions and closed hollow items. The Seller will confirm this at any time in writing at NOS's request. In the case of drop shipments, the Seller obliges his upstream suppliers to inspect the goods accordingly and to confirm this inspection upon request in writing.If the aforementioned substances are found then NOS is entitled to refuse acceptance of the material in so far as it is legally permissible to do so, with the Seller of the material being obliged to take it back at the latter's expense. All costs arising from the presence of substances within the meaning of sentence 1 in the materials that are the subject matter of the contract will be borne by the Seller. This includes in particular the costs of discovery, safeguarding and disposal of the substances within the meaning of sentence 1.The Seller also indemnifies NOS against all third-party claims that are asserted in connection with the presence of the substances referred to in sentence 1 in the material that is the subject matter of the contract.
4. All materials must be free of radioactivity. The Seller declares that all materials were inspected by him for the presence of ionizing radiation and are free of ionizing radiation that exceeds the level of ambient background radiation measured. In the case of drop shipments, the Seller obliges his upstream supplier to inspect the goods accordingly. If the aforementioned ionizing radiation is found then NOS is entitled to refuse acceptance of the material in so far as it is legally permissible to do so, with the Seller of the material being obliged to take it back at the latter's expense.
All costs arising from the presence of radiation within the meaning of sentence 1 in the materials that are the subject matter of the contract will be borne by the Seller. This includes in particular the costs of discovery, safeguarding and disposal of the radiation sources that cause the radiation within the meaning of sentence 1 of this provision and the additional expenses that result from officially ordered measures. This includes orders issued by national and foreign authorities.
The Seller also indemnifies NOS against all third-party claims that are asserted in connection with the presence of the radiation referred to in sentence 1 in the material that is the subject matter of the contract.The Seller will certify to NOS at the start of their business relationship and in the case of an existing business relationship at the start of each calendar year, which certification is to be submitted by NOS to its customers, that the Seller has inspected all materials for ionizing radiation and that they are free of such radiation that exceeds the level of ambient background radiation level measured. In the case of drop shipments, the Seller certifies accordingly that he has imposed this obligation on his upstream suppliers too.
5. The Seller also undertakes to inspect the materials for compliance with the authoritative statutory threshold values for the presence of dangerous substances and contaminations. Where threshold values are exceeded that the national and local authorities view as unacceptable, the Seller of the material is obliged to take it back. The Seller is liable in full for losses that arise from the exceeding of the authoritative threshold values or from contaminations, and is in particular liable for third-party claims that are asserted against NOS by virtue of the exceeding or the contamination, as well as for additional expense that arises from officially ordered measures.
6. When commencing the business relationship and in the case of existing business relationships at the beginning of each calendar year, the Seller will certify to NOS, so that NOS can submit this to NOS's customers, that the Seller has inspected all delivered materials for the presence of substances within the meaning of Item 3 sentence 1 and radiation within the meaning of Item 4 sentence 1, and that all materials to be delivered in the future will be inspected, and - in the case of drop shipments - that the Seller has or will accordingly impose this obligation on his upstream suppliers.
7. Scrap must be free of all components that are detrimental to smelting, and must in particular be free of flammable substances, contaminations or such adhesions as residues of fuel, oil or antifreeze. Also considered to be defects are the presence of (for example) foreign adhesions, contaminations or excessive corrosion.
8. Contrary to Article 442 paragraph 1 subparagraph 2 BGB (German Civil Code), NOS is also entitled to unlimited claims for defects, even if at the time that the contract was entered into NOS was unaware of the defect due to gross negligence.
9. With regard to the commercial duty to examine and the requirement to make a defect-related complaint immediately upon receipt of the goods, the legal provisions (Articles 377, 381 HGB (German Commercial Code)) apply, with the following proviso: NOS's duty to examine is limited to defects that are evident in our incoming goods inspection or - in the case of drop shipments - evident in the incoming goods inspection at NOS's customer through external examination, including of the delivery documents and in our quality checks carried out as part of our sampling procedure (e.g. incorrect delivery and short delivery).
The Seller declares in particular that he agrees that an inspection of the material that requires the deployment of heavy sorting equipment, radioactivity meters, analytical devices or other immovable devices that are customarily used, is carried out on NOS's business premises. The Seller further declares that he agrees that in the case of those drop shipments where the goods are transported directly from the Seller to NOS's customer, including if this transportation is carried out in whole or part by NOS, the inspection of the goods will be carried out by NOS's customer on the latter's business premises.
In this case, inspection takes place no later than 14 days after our customer receives the goods at his premises but at the latest 90 days after the Seller has effected the performance.There is no duty to examine if an acceptance has been agreed. In other respects, it depends on the extent to which an inspection is feasible in the regular course of business, taking the circumstances of the individual case into account.
10. In respect of defects subsequently discovered by NOS, the requirement to make a defect-related complaint immediately upon receipt of the goods remains unaffected. In all cases, NOS's notification of a defect will be deemed to have been made without delay and in good time if it is sent within 14 working days of discovery or - in the case of evident defects - of receipt of the goods.
11. Upon receipt by the Seller of NOS's written notification of a defect, the limitation period in respect of warranty claims does not commence until the Seller either rejects NOS's claims or declares the defect to have been remedied or definitively rejects in writing the continuation of negotiations about NOS's claims. In the case of replacement deliveries and the remedying of defects, the warranty period for replaced and repaired parts commences anew, unless NOS must presume from the conduct of the Seller that the latter did not see himself obliged to take the above measure but only undertook the replacement delivery or remedying of defects as a goodwill gesture or for similar reasons.
12. If the Seller fails to fulfil his obligation for cure - which at NOS's option is fulfilled by the remedying of the defect (repair) or by delivery of a defect-free item (replacement delivery) - within a reasonable period of time set by NOS then NOS can remedy the defect himself and demand reimbursement from the Seller for the expenditure necessary for this or demand an appropriate down payment. If the Seller's subsequent performance fails or else cannot be reasonably accepted by NOS (e.g. due to special urgency, threat to operational safety or imminent occurrence of excessive losses) then there is no need to set a time limit; NOS will inform the Seller about such circumstances without delay and if possible beforehand.
13. In other respects, in the event of a material defect or defect of title NOS is entitled to a reduction of the purchase price or to withdraw from the contract in accordance with the legal provisions. In addition, NOS is entitled to compensation and cost reimbursement in accordance with the legal provisions.
14. Compensation claims will be asserted in particular in respect of costs relating to inspection, separation, safeguarding, storage, transportation, treatment, disposal, administration fines and other consequential costs that result from the defectiveness of the material.15. In so far as it is legally permissible to do so, at NOS's request the Seller is obliged to take back defective materials without delay and at the latter's expense, including any and all ancillary costs that arise in this regard.
Article 8: Producer's liability
1. If the Seller is responsible for a product defect then he must indemnify NOS against any third-party claims, in so far as the cause lies within his domain and organizational area and he is himself liable in respect of external relationships.
2. Within the scope of his obligation to indemnify, the Seller must reimburse expenses in accordance with Articles 663, 670 BGB (German Civil Code) that result from or in connection with the deployment of third parties, including for recall operations carried out by NOS. In so far as possible and reasonable, NOS will inform the Seller about the content and scope of recall measures and give him an opportunity to respond. This does not affect more far-reaching statutory entitlements.
Article 9: Limitation of actions
1. The reciprocal claims of the contractual parties become statute-barred in accordance with the relevant legal provisions, unless otherwise provided for below.
2. Contrary to Article 438 paragraph 1 Nr. 3 BGB (German Civil Code), the general limitation period for defect-related claims is 30 months from the passing of the risk. If an acceptance has been agreed then the limitation period commences with the acceptance. The 30-month limitation period also applies mutatis mutandis for claims for legal defects, whereby the statutory limitation period for third-party claims for return in rem (Article 438 paragraph 1 Nr. 1 BGB (German Civil Code)) remains unaffected; additionally, claims for legal defects never become statute-barred as long as the third party can still assert the claim against NOS, especially if it is not statute-barred.
3. The limitation periods for sales law, including the aforementioned extension, apply for all contractual defect-related claims to the extent they do in law. If a defect means that NOS is also entitled to extracontractual compensation claims then the standard statutory limitation period (Articles 195, 199 BGB (German Civil Code)) applies, provided that the deployment of limitation periods under sales law do not lead to a longer limitation period in an individual case.
Article 10: Establishing weights and quantities
Billing is made based on the incoming weight and the findings of the incoming inspection.
Article 11: Assignment/Set-off
1. NOS is entitled to carry out offsetting against all claims that may arise for NOS from the aforementioned provisions due to compensation, release, warranties etc. The Seller expressly already waives any objection to such a declaration of set-off.
2. Without the explicit written consent of NOS, rights and obligations arising from a contract entered into with NOS, and in particular the Seller's counterclaim under this contract, must not be assigned in either whole or part.
3. The Seller is only entitled to set-off to the extent that his claims have been established as being final and absolute, are undisputed or else admitted by NOS. Furthermore, he is entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
Article 12: Obligation to comply with the statutory minimum wage
1. Provided that the Seller comes under the scope of application of the AEntG (the German Law on the Posting of Workers) or the MiLoG (German Minimum Wage Act), he undertakes to pay the corresponding minimum wage to those of his employees who are involved in the fulfilment of his obligations in respect of NOS. If the Seller uses third-party companies to fulfil his obligations in respect of NOS then he obliges them to comply with the applicable minimum wage when paying his employees.
2. If NOS is claimed on due to a violation of the requirements set out in Item 1 of this provision then the Seller undertakes to indemnify NOS against this claim.
Article 13: Data protection
NOS notifies the relevant parties that personal data about the contact partners are collected and stored at the respective suppliers/customers, this personal data including: phone numbers, fax numbers, e-mail addresses, delivery addresses and employment position in the company. The purpose of this data collection is the performance of NOS's contractual obligations in respect of the respective supplier/customer and the compliance with legal obligations.
The legal basis for this is provided by Article 6 paragraph 1 letter b) and Article 6 paragraph 1 letter d) of the EU Regulation 2016/679 (the General Data Protection Regulation). The controller for the data collection is NOS, represented by the private limited company Nord-Schrott Verwaltungsgesellschaft mbH which is represented in turn by its managing director.
The data protection officer is Mr. Joachim Harms-Abildgaard (email@example.com). The recipient of the data is NOS.
The data will be stored for the duration of the retention periods under commercial law and tax law. The data subject has a right to information in respect of NOS for the personal data. In addition, he or she is entitled to correction, deletion or limitation of processing. Furthermore, this person is entitled to object to the processing and is entitled to data transferability. This person is entitled to submit a complaint to a supervisory authority.
The provision of personal data is required by law, in so far as the materials that are the subject matter of the contract are shipped across national borders and, in the context of the shipment, information on a contact person at the supplier/customer is required, or in so far as NOS pays in cash for the materials that are the subject matter of the contract and by virtue of the German Money Laundering Act is obliged to verify identities. In other respects, the provision of data for the entering into of a contract is necessary in order to ensure that deliveries from suppliers or to customers are coordinated. The statutory and contractual requirements place NOS - not the data subject himself or herself - under an obligation. If the personal data of the data subject is not provided then - in the case of statutory obligations relating to the information - the fulfilment of the contractual obligations would not be legally permissible and NOS would not enter into a contractual relationship.
The data subject has the right to not be subjected to a decision that is solely based on automated processing (including profiling) that has legal consequences for him/her or that is significantly detrimental to him/her in a similar way. This does not apply if the decision is necessary in order to enter into or perform a contract between the data subject and NOS or if the decision is permissible by virtue of legislation of the European Union or its member states that the controller is subject to and this legislation contains appropriate measures to safeguard the rights and freedoms and the justified interests of the data subject or else takes place with the express consent of the data subject.
Decisions that are solely based on automated processing (including profiling) are not permissible either when they are based on special categories of personal data in accordance with Article 9 paragraph 1 General Data Protection Regulation, provided that Article 9 paragraph 2 letter a) or letter g) do not apply and appropriate measures to safeguard the rights and freedoms and the justified interests of the data subject were taken.
Article 14: Place of jurisdiction and applicable law
1. These AEB and the contractual relationship between NOS and the Seller are governed by the laws of the Federal Republic of Germany, to the exclusion of international uniform law and in particular of the United Nations Sales Convention (the UN Convention on Contracts for the International Sale of Goods).
2. If the Seller is a merchant within the meaning of the HGB (German Commercial Code) or a legal entity under public law or a separate fund under public law then the sole place of jurisdiction - including internationally - for all disputes arising from the contractual relationship is our principal place of business in Flensburg. The same applies if the Seller is an entrepreneur within the meaning of Article 14 BGB.
However, in all cases NOS is entitled to bring a legal action at the place of performance of the delivery obligation by virtue of these AEB or of an overriding individual agreement or at the Seller's general place of jurisdiction. This does not affect overriding legal provisions, especially those relating to exclusive jurisdictions.