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Standard Terms and Conditions for TM-Trade Minerals

§1 – General

1.1 The following general conditions of sale apply to all sales of raw materials. Our terms and conditions apply only to entrepreneurs within the statutory meaning of that term.

1.2 We hereby expressly reject the customer’s own terms and conditions. This rejection of such terms and conditions is effective without any further express declarations on our part during or after the conclusion of the contract.

1.3 Our offers are subject to change, and become binding only upon our confirmation or upon the fulfilment of the order. Changes to our offers on the part of the buyer require our explicit written confirmation. 

§ 2 – Scope of shipments

2.1 The mutually agreed upon written statements are binding for determining the type and scope of deliveries. In the absence of a written contract, the order confirmation from TM-Trade Minerals is binding unless the buyer objects immediately.

2.2 TM-Trade Minerals assumes no procurement risk. Should we fail to receive the object of the delivery despite having previously concluded a corresponding purchase contract, TM-Trade Minerals is entitled to withdraw from the contract with respect to outstanding deliveries. In the event of withdrawal, TM-Trade Minerals shall reimburse the buyer for the corresponding payment, provided that said payment has already been made.

§ 3 – Domestic and European Businesses

3.1 Unless otherwise contractually agreed, all prices are net prices in EURO from the loading station, excluding freight costs, customs duties, insurance and any incidental costs incurred for the international traffic of goods. Our prices exclude VAT, which shall be charged at the statutory rate as of the day on which the invoice is issued, and which shall be listed as a separate line on the invoice.

3.2 Invoices from TM-Trade Minerals are either to be paid by deposit or immediately and without deductions upon receipt of each invoice. If the buyer is in default of payment, interest will be charged at the statutory rate. We reserve the right to claim additional damages. A reminder fee of EUR 5.00 will be charged for each overdue notice, beginning with the first.

3.3 The buyer must provide all documents necessary for the sales and transportation process.

3.4 Buyers from EU countries must submit a valid VAT Identification Number prior to the first transaction. Without a valid VAT Identification Number, the sale will only be completed after adding the applicable VAT.

3.5 Prior to the first transaction, we will deliver the goods to the recipient only if they can prove their approval as importers of the substances in question by means of appropriate, internationally recognised proof.

3.6 The customer agrees to pay a deposit equal to 30% of the value of the order within

one week of signing the contract. The balance becomes due after sending copies of the invoice, bill of lading, and loading photos, and in any case no later than ten days before the arrival of the container. If payment is instead made immediately after placing the order, a 2% discount shall be applied to the net invoice amount.

3.7 We expressly reserve the right to change prices after the signing of the contract, provided that the goods have not yet been shipped, and market prices have significantly increased in the interim, or else a price adjustment has become necessary due to force majeure or circumstances beyond the control of TM-Trade Minerals. In such cases, we shall announce price changes in writing. Unless the customer objects without delay, the price change shall be considered accepted by the customer 10 days after its announcement. Should the customer object, the customer may withdraw from the contract.

3.8 After successful shipment, the customer is obliged to accept the goods at the agreed-upon price. The price may not be altered.

3.9 Lump payments from the customer shall be reckoned against that customer’s oldest outstanding accounts. This also applies if there are several contracts or continuing obligations with the customer.

§ 4 – Delivery and collection deadlines for domestic and EU customers

4.1 The delivery deadlines specified in our order confirmation are binding.

4.2 Acceptance dates are binding on the customer. Should the customer fail to perform their duties by the deadline, TM-Trade Minerals asserts their statutory rights, particularly the rights of withdrawal and damages.

4.3 Compliance with the delivery deadline presumes that the customer has previously provided all necessary documents and releases, complied with the payment terms as agreed and performed all other duties required of them. Insofar as noncompliance causes a delay in the fulfilment of our delivery obligations, the buyer shall set us a reasonable grace period before withdrawing from the contract or assessing damages in lieu of specific performance.

4.4 The effects of force majeure, war, civil war, shortage of raw materials and energy, strikes, lockouts, malfunction and traffic disruptions, as well as similar unforeseeable and unavoidable events beyond our control, shall exempt us of our obligation to deliver affected shipments for the duration. If these effects are not temporary in nature, and in any case after 3 months of disruption, we are entitled to withdraw from the contract in whole or in part, without the buyer becoming entitled to any damages.

4.5 If delivery is delayed for reasons under the customer’s control, the delivery deadline shall be considered met if the customer is notified of readiness for delivery or pick-up by the delivery date.

4.6 The buyer is obliged to notify TM-Trade Minerals immediately if circumstances arise which lead to the buyer being unable to keep to the agreed-upon collection date, or if such circumstances are foreseeable by the buyer. The customer shall bear any additional costs which may result.

4.7 Risk transfer with respect to the goods takes place upon delivery to the shipping carrier. The delivery contract does not include goods in transit insurance.

4.8 The contractual obligations of TM-Trade Minerals shall be suspended for such time as fulfilment is rendered substantially more difficult or impossible for reasons outside of the control of TM-Trade Minerals (e.g. force majeure or other circumstances such as strike, lock-out or official order).

§ 5 – Delivery and Shipping Dates for Export / Overseas

5.1 For maritime shipments, delivery dates cannot be established for a specific hour or day. The customer is therefore prohibited from making claims based upon maritime transport and associated delivery delays.

5.2 The buyer will be informed of the shipping date and estimated day of arrival closer to the time.

5.3 Otherwise, the same conditions apply as under 4.2 to 4.8 for domestic and European foreign countries.

§ 6 – Duties concerning Acceptance and Complaints

6.1 Upon receipt of the containers, the customer is obliged to inspect the containers for damage, photograph and log any damage, and make any complaints directly to the shipping company. A copy of the complaint must be sent to TM-Trade Minerals immediately, along with the log of the damage. If the customer fails to do so, the customer shall bear any costs to TM-Trade Minerals which may arise as a result. Any invoices of the shipping company concerning any damage shall be at the expense of the customer.

6.2 The customer must immediately inspect the goods for adherence to the contractual quantity and specifications. Any defects which may be detected must be reported to TM-Trade Minerals in writing within 7 days (domestic and European customers) or immediately upon receipt of the goods (export by sea container), and must be accompanied by suitable documentation such as photos, material samples or chemical analyses. Defects appearing after this deadline will not be acknowledged.

6.3 Rejection of a defective partial delivery in accordance with a proper complaint procedure does not entitle the customer to reject subsequent deliveries. To reject subsequent deliveries, the customer must immediately make a proper complaint of defects in accordance with § 6.1 and § 6.2 concerning the subsequent faulty delivery.

§ 7 – Complaints, Defects and Warranty

7.1 A defect exists only if the goods do not meet the specifications as agreed upon and written in the order confirmation. These may be individually specified, e.g. as specific ratios of contaminants or colours, size criteria, calorific content, etc., or may arise by reference to general standards catalogues. We assume no liability for any unconventional application, further processing or use of the goods, nor for the suitability of the goods for any specific purpose.

7.2 No defect claim exists if properties deviate only by an insignificant amount, or if the usability of the material delivered is only insignificantly less than that of the sample.

7.3 Written notification of any complaints concerning the goods delivered must be given immediately upon receipt. For overseas exports by sea container, this notification must be given immediately after receipt of the container at the destination port. The customer must indicate the cause for complaint by suitable means, such as a readout from a calibrated scale, chemical analyses, informative photographs of the cargo and – if visible – the defect, along with details of the sea container and cargo number. The customer is obliged to provide TM-Trade Minerals with the item in question or samples thereof to the extent necessary to review the complaint. Should the customer culpably fail to fulfil their aforementioned obligations or fail to preserve evidence needed to press claims against the carrier, the warranty is void.

7.4 The customer, together with TM-Trade Materials, must stipulate weight differences which are to be considered ‘minor’ (+ / – 5%) by material and container in the contract. If the actual weight differences differ from those agreed on as ‘minor’, both parties have the right to request official verification or weighing at a weighing or measuring facility recognised by both parties. The result of this weighing is binding for both parties. The costs for this weighing are borne by the unsuccessful party .

7.5 In the event of a defect, we reserve the right to issue a credit note or to offset the defect against a new order. Before the customer can withdraw from the contract due to a defect, we are entitled to attempt to make good if the customer rejects the option of being issued credit or offsetting the defect against a new order.

7.6 Unless otherwise agreed, all defect claims expire within 12 months of the passing of risk.

7.7 The responsibilities of TM-Trade Minerals in cases of malicious intent and negligence are not affected by the other provisions of these terms and conditions.

§ 8 Liability for Damages

8.1 Our liability for breach of contract and tort is limited to cases of malicious intent or gross negligence. This does not apply to injury to life, limb or health of the customer, or claims due to the breach of cardinal duties, i.e. of obligations arising from the nature of the contract, the breach of which puts the purpose of the contract as well as the replacement of damages caused by delay at risk. In such cases, we are liable for every degree of fault, but the extent of our liability is limited to damages typical for the type of contract and foreseeable  upon the conclusion of the contract.

8.2 The aforementioned exclusion of liability shall also apply to breaches of duty by our vicarious agents as a result of slight negligence.

8.3 Where liability for damages not based on injury to the life, body or health of the customer is not excluded due to mere slight negligence, such claims shall expire within one year, beginning with the date on which the claim arose or, where the claim is for damages in lieu as a result of a defect, from the date on which the item was transferred into the possession of the customer.

8.4 Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.

§ 9 – Retention of Title

9.1 Until the full payment of the outstanding charges from our business relationship with the buyer, the materials sold remain the property of TM-Trade Minerals. The buyer is authorised to make use of the purchased goods as part of the ordinary course of business.

9.2 The retention of title also extends to the full value of products resulting from the processing, mixing or combination of our goods, in which case TM-Trade Minerals is the manufacturer.

9.3 If the object of purchase is processed, mixed or combined with other items not belonging to TM-Trade Minerals, TM-Trade Minerals acquires co-ownership of the new item in the ratio of the value of the object of purchase to the value of the other items processed, mixed or combined with that item at the time of processing, mixing or combining.

9.4 If the buyer’s item is to be regarded as the main item, the customer shall transfer co-ownership to TM-Trade Minerals in proportion.

9.5 The customer surrenders as security any accounts receivable against third parties arising from the resale of the materials to TM-Trade Minerals, either in whole or in proportion to our co-ownership, and TM-Trade Minerals accepts this surrender of title.

9.7 The customer is not entitled to withdraw from the contract due to the assertion of the retention of title by TM-Trade Minerals.

9.8 The goods and accounts in lieu may only be pledged to third parties, used as securities or ceded after full payment of our accounts. The Customer shall inform TM-Trade Minerals without delay of any access by third parties to waste materials, other materials or accounts owned by TM-Trade Minerals by transferring the documents required for intervention by registered letter, particularly in cases of foreclosure. This is also applicable for cases of any other types of impairment to TM-Trade Minerals’ title.

9.9 If the realisable value of the securities exceeds our claims by more than 20%, we may, at our discretion, release securities accordingly at the buyer’s request.

§10 – Final provisions

10.1 German law shall apply, with the exception of the Convention of the United Nations on the International Sale of Goods (CISG).

10.2 The original and legally binding version of this contract is the German version.

10.3 The courts of Cologne, Germany, have exclusive jurisdiction for cases relating to contracts with us. The plaintiff in each case is also entitled to appeal to the courts in the general place of jurisdiction of the respective defendant. 

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