GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
ThyssenKrupp MinEnergy GmbH; 45143 Essen
Stand 01.2009

I. Applicability / Offers

1. These General Terms and Conditions apply to all present and future contracts entered into with companies, public law entities or public law entities with special public funds in respect of deliveries and other services including specific-task contrasts, particularly for the delivery of railway-related and underground-engineering products and the processing (laying) thereof on construction sites, consulting, proposals and other ancillary services. In the case of transfer orders, the terms and conditions set out in the subcontracted supplier’s price list shall additionally apply. The Customer’s purchasing conditions shall be deemed void notwithstanding the fact that we have not expressly refused to be bound by them upon receipt.
2. Our offers are subject to change without notice. Any oral agreements, promises, commitments or guarantees made by our employees in connection with the contract shall not be binding upon us unless confirmed by us in writing.
3. In the case of any doubt, the commercial clauses shall be interpreted pursuant to the prevailing version of the Incoterms.
4. All specifications such as dimensions, weights, illustrations, descriptions, installation sketches and drawings contained in sample books, price lists and other printed matter have been ascertained to the best of our ability but are approximate only and therefore not binding on us. This shall also apply to any information given by the factories. All models and drawings shall remain our property.
5. For the purposes of these terms and conditions, the “Buyer” shall also be the “Orderer” in the contract for services of work and labor.

II. Prices

1. Prices are quoted ex works or warehouse plus freight and value added tax.
2. In the absence of anything to the contrary, the prices and terms set out in our price list prevailing on the date on which the contract is entered into shall apply. The product is calculated “gross for net”.
3. In the event of any change to taxes, duties or other external costs forming a component of the agreed prices later than four weeks after the contract is entered into, we shall be entitled to adjust the prices accordingly.
4. With respect to goods whose delivery is still pending, we reserve the right to increase the agreed price in the event of any circumstances arising as a result of a change in the supply of raw materials or the general state of the economy making production and/or procurement of the products in question materially more expensive than was assumed on the date on which the prices were agreed upon. In such case, the Customer may cancel the orders concerned within four weeks of being informed of the price increase.

III. Payment and offsetting

1. In the absence of anything to the contrary herein or in our invoices, the purchase price shall be due net immediately upon delivery and shall be paid such that we are able to draw on the proceeds on the day on which payment is due. The Customer shall bear all payment costs. The Customer may only retain or offset payment if his counterclaims are undisputed or have been upheld in a court of law.
2. If it is not possible to dispatch or ship the goods from the point of dispatch on account of missing instructions or documents or if delivery is delayed for any other reasons for which we are not responsible, the full invoice amount shall be due for payment on the 15th day of the month following notification that the goods are ready for dispatch. In all cases in which a letter of credit is opened, the Customer undertakes to modify the terms of the letter of credit accordingly.
3. If the Customer fails to pay the invoice amount by the due date or is in default of payment, we shall charge interest at a rate of 8 percentage points above the base rate unless higher interest rates have been agreed upon. This shall not operate to restrict any other remedies available on account of the Customer’s default.
4. The Customer shall be deemed to be in default of payment if he fails to pay within 10 days of the invoice / payment list falling due and being received or of the goods or service being received.
5. Pursuant to the letter of attorney granted to us by the companies belonging to our Group (§ 18 of the AktG (German Stock Corporation Act)**), we are authorized to offset all receivables to which the Customer is for any reason entitled vis-à-vis ourselves or any of these Group members. This shall also apply if one side has agreed upon cash payment and the other payment by bill of exchange or other payment arrangements as fulfillment of the contractual obligations. Where applicable, these agreements shall apply only to the balance. If the receivables fall due for payment on different dates, our receivables shall be due by no later than the date on which our liability falls due for payment and is invoiced with full effect on payments.
6. If it becomes evident after the contract has been entered into it that our entitlement to payment is jeopardized on account of the Customer’s inability to perform, we shall be entitled to exercise the rights under § 321 of the BGB/German Civil Code (defense of uncertainty). In such case we shall also be entitled to demand immediate payment of all amounts under the current business relations with the Customer not barred by the passage of time. Moreover, the defense of uncertainty shall apply to all other outstanding deliveries and performances under the business relations with the Customer.
7. If any cash discount has been agreed upon, this shall always only apply to the invoice value excluding freight and may only be taken if the Customer has discharged in full all liabilities due for payment as of the date on which he seeks to take the cash discount.

IV. Execution of deliveries, delivery dates and periods

1. We shall only be bound by our obligation to deliver provided that our own suppliers provide us with the requisite goods correctly and on time, except in cases in which incorrect or delayed delivery on the part of our suppliers is due to reasons for which we are responsible.
2. All delivery dates and periods shall be approximate only. Delivery periods shall commence on the date on which we confirm the order and shall apply only provided that all details relating to the order have been clarified and the Customer has complied with all his duties, e.g. the provision of all official permits, letters of credit and guarantees or the remittance of advance payments.
3. The date on which the goods are dispatched from the factory or warehouse shall be decisive for determining compliance with delivery dates or periods. In the event of any delay in shipment for reasons for which we are not responsible, they shall be deemed to have been complied with upon notification that the goods are available for dispatch.
4. In the event of any events beyond our control, we may delay delivery for the duration of such event plus a reasonable start-up time. This shall also apply if such events occur during prior default. Events beyond our control shall also be deemed to include monetary, trade and other trade policy decisions and sovereign measures, strikes, lockouts, any disruptions to our production operations for reasons beyond our control (e.g. fire, breakage of machinery or rollers, non-availability of raw materials or energy), transportation obstructions, delays in import/customs clearance as well as all other circumstances for which we are not responsible materially impairing delivery or rendering is impossible. In this respect, it shall be of no consequence whether the effects of such circumstances are sustained by us or one of our factories or suppliers. If as a result of any of the aforementioned events either party can no longer be reasonably expected to execute the contract and, in particular, if performance of material parts of the contract is delayed by more than six months, such party may rescind the contract.

V. Reserved ownership rights

1. The goods shall remain our property until all our claims against the Customer under the contract have been satisfied.
2. Should this retention of title provision be invalid under the law of the country in which the goods are situated, such security which corresponds to the above retention of title provision shall be deemed to have been agreed upon. The Customer shall take all measures necessary for such security to come into effect and/or to be maintained.
3. Should a more extensive retention of title clause be permitted by the law of the country in which the goods are situated (such as – without prejudice to the generality of the foregoing – the assignment of the Customer’s future claims resulting from the resale of the goods delivered by us), the Customer shall, upon our request, implement such clause.

Vl. Qualities, dimensions and weights

1. Qualities and dimensions shall be determined pursuant to the DIN/EN standards or materials specifications sheets in force on the date on which the contract is entered into or, in the absence of these, in accordance with commercial practice. References to standards, factory standards, materials specifications sheets or examination certificates as well as qualities, dimensions, weights and suitability for certain uses shall not be deemed to constitute guarantees, declarations of conformity, producer declarations or corresponding designations such as CE and GS.
2. The weights stated shall be based on measurements taken by us or our supplier. Proof of weight shall be furnished in the form of an attestation of weight. Weights may be determined according to standards without measurements being taken to the extent that this is permitted by law. This shall have no effect on the additions and discounts standard in steel trading in Germany (trading weights). The quantities and bundled volumes etc. stated in the delivery note shall not be binding in the case of goods charged by weight. The total weight of the consignment shall apply except in cases in which it is usual for individual goods to be weighed. Any discrepancies in the calculated individual weights shall be spread on a proportionate basis.

VII. Acceptance inspections

1. In cases in which it has been agreed that the goods are to be subject to an acceptance inspection, such acceptance inspection may only be conducted at our factory or warehouse immediately after notification that the goods are ready for such acceptance inspection has been received. The Customer shall bear the personal acceptance inspection costs; the technical acceptance inspection costs shall be charged in accordance with our price list or the factory’s price list.
2. If the acceptance inspection is not performed punctually or either partially or fully for reasons for which we are not responsible, we may dispatch the goods without prior acceptance inspection or store them at the Customer’s expense and risk. For this we will issue a corresponding invoice.

VIII. Dispatch, transfer of risk, packaging, part deliveries

1. We shall determine the method and route of dispatch as well as the forwarder and carrier.
2. If, for reasons for which we are not responsible, transportation of the goods on the planned route or to the planned destination in the planned period of time is rendered impossible or is materially impaired, we may deliver the goods via a different route or to a different destination; the Customer shall bear any additional costs in this connection. The Customer shall be given a prior opportunity to make any comments.
3. Risk, including the risk of the goods being seized, shall pass to the Customer for all transactions including carriage-free or carriage-paid transactions upon the goods being made available to the forwarder or carrier, however, no later than upon their leaving the warehouse or factory. We shall only arrange for insurance to be effected if instructed to do so by the Customer. The discharge obligation and costs shall be borne by the Customer.
4. The goods will be delivered in an unpacked state free of rust protection. We shall deliver the goods in a packed state if this is normal industry practice. We shall arrange packaging, protection and/or transportation facilities at the Customer’s expense on the basis of our experience. These shall be taken back at our warehouse. We shall not assume the cost incurred by the Customer of returning or disposing of the packaging.
5. We shall be entitled to effect reasonable part deliveries. Surpluses or shortfalls over the contracted quantity shall be permissible in keeping with standard industry practice. The declaration of a circa amount authorizes us to over-/undershoot the amount up to a level of 10%.

IX. Call-off orders

1. In the case of call-off orders, goods which have been declared as being available for dispatch must be called off immediately, failing which we shall – subject to sending the Customer a written warning – be entitled to dispatch them at the Customer’s expense and risk or, at our discretion, store them in our warehouse and immediately invoice them.
2. In the case of orders entailing continuous delivery, we are to be notified of call-offs and quantities of types for roughly identical monthly quantities, failing which we may determine this using our own discretion.
3. If the individual call-off orders exceed the total amount contracted, we shall be entitled but not obliged to supply the excess quantity. We may invoice the excess quantity at the prices prevailing on the date of call-off or delivery.

X. Liability for material faults

1. Any material faults in the goods shall be reported in writing immediately, however no less than seven days after delivery. Material faults which cannot be detected within this period notwithstanding extremely careful examination shall be reported in writing immediately after being discovered, however no later than before the commencement of the contractual or statutory time bar – with all processing to be ceased forthwith.
2. In the event that a prior acceptance inspection of the goods has been agreed upon, the Customer shall not have any right of recourse with respect to any material faults exhibited by the goods which could have been detected during the contractual examination.
3. If the complaint is justified and is lodged within the requisite period, we may at our discretion either remedy the fault or supply fault-free replacements (subsequent performance). In the event that subsequent performance fails or is rejected, the Customer may reduce the purchase price or – if we fail to successfully remedy the goods within a deadline set by the Customer – rescind the contract. The Customer may only reduce the purchase price in the case of a minor fault, if the value or capacity of the goods has an insubstantial diminution than the liability of material faults is rejected. Is the good already liquidated, processed or rearranged the customer only can use the right of reduction.
4. The Customer shall relinquish all rights with respect to the fault if he does not immediately give us an opportunity to verify the fault and, in particular, fails to furnish the goods or samples immediately after being asked to do so.
5. If the goods are sold as lower-grade material – e.g. so-called IIa material – the Customer shall not have any rights with respect to material faults if these are due to the reasons for which the material was degraded and he could reasonably be expected to encounter such fault. We shall not be liable for material faults in the case of IIa material.
6. We shall bear the costs of subsequent performance only up to a reasonable amount in individual cases particularly in the light of the purchase price of the goods. For no reason we bear a price over 150% from the value of the good. We shall not assume any costs arising by the installation and removal from the goods as well as the costs for the self-disputation for a default except in cases in which this is normal practice.
7. This shall not have any effect on the Customer’s right of recourse pursuant to § 478 of the BGB (German Commercial Code).

XI. General restrictions of liability

1. We shall only be liable for the breach of contractual and non-contractual obligations, particularly impossibility, default, precontractual fault and tort, including on the part of our management staff and other servants, in the event of willful misconduct and gross negligence, it being understood that such liability shall be confined to the typical loss or damage which could have reasonably been foreseen on the date on which the contract was entered into.
2. These restrictions shall not apply in the case of a culpable breach of any material contractual obligations jeopardizing the achievement of the purpose of the contract, cases of mandatory liability pursuant to the German Product Liability Act (Produkthaftungsgesetz), injury to persons or cases in which and to the extent that we fraudulently conceal the existence of any faults or guarantee their absence. This shall not have any effect on the rules governing the onus of proof.
3. In the absence of any agreement to the contrary, contractual claims held by the Customer against us as a result of or in connection with the delivery of the goods shall be time-barred one year after delivery of the goods. This period shall also apply to goods customarily used for construction purposes and causing faults. This shall have no effect on our liability for willful misconduct and gross negligence or the expiry of statutory rights of recourse. The period of limitation shall not restart in the case of subsequent performance.

XII. Place of fulfillment, legal venue, applicable law

1. The place of fulfillment for our deliveries shall be the factory in the case of delivery ex works or our warehouse in all other cases. Any disputes shall at our discretion be referred to the courts of law responsible for the city in which our main office is located or in which the Customer is domiciled.
2. All legal relations between the Customer and us shall be subject to non-unified German substantive law in addition to these Terms and Conditions. The provisions of the Convention for the International Sale of Goods (CISG) of April 11, 1980 shall be excluded.

XIII. Miscellaneous

1. If the Customer is domiciled outside the Federal Republic of Germany (foreign customer) and he or his agent collects goods, or transports or dispatches them to a foreign location, the Customer shall be required to furnish us with the export papers required for tax purposes. Failing this, the Customer shall be liable to pay the value added tax on the invoice amount applicable to transactions inside Germany.
2. In the event of deliveries from Germany to another member country of the EU, the Customer shall notify us of his VAT identification number under which his income is taxed within the EU. Failing this, he shall be required to pay the VAT amount stipulated by law.
3. When deliveries from the Federal Republic of Germany to another member country of the EU are invoiced, the VAT arrangements of the recipient member country shall apply if the Customer is registered in another EU member country for VAT purposes or we are registered for VAT purposes in the recipient member country.

**These include in particular :
ThyssenKrupp Services AG, Düsseldorf; ThyssenKrupp Nirosta GmbH, Krefeld; ThyssenKrupp Steel AG, Bochum; ThyssenKrupp Metallurgie GmbH, Essen; ThyssenKrupp Coferal, München; ThyssenKrupp AT.PRO tec, Essen