General Terms of Sale and Delivery of Baoshida Swissmetal Ltd.

(Version: January 2014)

 
 

1.                     General Provisions

  
1.1             The following General Terms of Sale and Delivery (hereinafter “GTSD”) apply to all sales contracts made by BAOSHIDA SWISSMETAL LTD. and the buyer (hereinafter jointly referred to as “the parties”) concerning merchandise and internally produced goods of BAOSHIDA SWISSMETAL LTD. (hereinafter: “goods”).
 
  1.2             Special terms of the buyer that conflict in whole or in part with the present terms shall not apply except with the written consent of BAOSHIDA SWISSMETAL LTD.
 

 2.                     Offer and Contract

 
 2.1             Offers that do not specify a time limit for acceptance are not binding on BAOSHIDA SWISSMETAL LTD.
 
 2.2             The contract is established once BAOSHIDA SWISSMETAL LTD. has duly signed the confirmation of its acceptance of the order (“order confirmation”).
 

3.                     Scope of Goods and Services

 
All goods and services of BAOSHIDA SWISSMETAL LTD. are identified in the order confirmation, including any annexes to the same. BAOSHIDA SWISSMETAL LTD. is authorised to make unilateral changes that result in improvements, provided that these changes do not result in a price increase.
 

4.                     Plans and Technical Documents

        

4.1             Unless otherwise agreed, prospectuses and catalogues are not binding. Statements made in technical documents are only binding insofar as their binding effect has been expressly warranted in writing.
 
4.2             Each party reserves all rights to plans and technical documents it has delivered to the other party. The receiving party acknowledges these rights and agrees not to make the documents available to any third party in whole or in part without the prior written authorisation of the other party and not to use the documents for any purpose other than that for which they were provided to it.
 

5.                     Regulations in the Destination Country

            

5.1             Unless otherwise agreed, the goods and services comply with the regulations and standards in force in Switzerland.
 
5.2             If the buyer would like the goods and services to comply with the regulations and standards of another country (destination country), then, by the time the buyer places the order, The buyer must call BAOSHIDA SWISSMETAL LTD.’s attention to the special regulations and standards that relate to the provision of the goods and services and are to be complied with in the destination country. BAOSHIDA SWISSMETAL LTD. disclaims any and all liability for the information provided by the buyer.
 

6.                     Quantities and Weights

 
6.1             Quantity and weight information provided in connection with offers and order confirmations shall be deemed approximate and entitle BAOSHIDA SWISSMETAL LTD. to the following additional or reduced quantities based on the order quantity: Under 1,000 kg: 20% additional or reduced quantities, over 1,000 kg: 10% additional or reduced quantities.
 
6.2             For partial deliveries, the quantity and weight tolerances shall apply accordingly.
 

7.                     Prices

 
7.1             Unless otherwise agreed, all offer prices are non-binding and subject to change. Prices shall be adjusted whenever the crude metal or manufacturing costs on which the offer is based change prior to the order confirmation.
 
7.2             Value-added tax is not included in the prices and shall be stated separately on the invoice.
 
7.3             If the parties agree on a fixed price for metal, then the buyer is obligated to purchase the goods in full within six (6) months after the date of entry into the contract. Once these six months have passed, BAOSHIDA SWISSMETAL LTD. has the right to collect finance charges from the buyer.
 
7.4             If there is no special agreement on prices between the parties, then the metal price valid for immediate hedging at the time of the order confirmation shall apply. The price shall be based on the daily stock-exchange quotes for alloying elements in accordance with the London Metal Exchange (LME) and the current exchange rate.
 

8.                     Payment Terms

  
8.1             Unless otherwise agreed, the following payment periods apply:
-        Within the EU/EFTA States, thirty (30) days from the invoice date, net without cash discounts;
 
-        Outside the EU/EFTA States, sixty (60) days from the invoice date, net without cash discounts.
 
These payment periods also apply to shares of tool costs. BAOSHIDA SWISSMETAL LTD. may decide to which of its claims any incoming payments shall be applied. Any transfer fees shall be paid by the buyer.
 
8.2             If the amount owed is not paid in full within the payment period specified in para. 8.1 above, then the buyer is automatically in default as of the 31st day (within the EU/EFTA States) or as of the 61st day (outside the EU/EFTA States), no additional reminder being required. In this case, the buyer must pay default interest of 5% p.a. beginning with the due date. BAOSHIDA SWISSMETAL LTD. reserves the right to claim any additional losses.
 
8.3             If agreed-upon advance payments or the collateral to be provided at the time of entry into the contract have not been provided in accordance with the same, then BAOSHIDA SWISSMETAL LTD. has the right either to adhere to the contract or to withdraw from the same. In either case, BAOSHIDA SWISSMETAL LTD. may demand damages from the buyer.
 
8.4             If the buyer is in default in payments or, because of a situation arising after the contract was entered into, BAOSHIDA SWISSMETAL LTD. suspects that the buyer will fail to make payments in full or when due, then BAOSHIDA SWISSMETAL LTD. is authorised, without prejudice to its rights prescribed by law, to suspend its performance of the remainder of the order and to withhold goods ready for shipment until such time as the parties have agreed on new payment periods and new terms of payment and BAOSHIDA SWISSMETAL LTD. has received sufficient collateral from the buyer. Otherwise, BAOSHIDA SWISSMETAL LTD. has the right to withdraw from the contract and to demand damages.
 
8.5             The buyer does not have the right to withhold payments and is prohibited to offset claims of BAOSHIDA SWISSMETAL LTD. with any counterclaims the buyer may have.
 
8.6             If the buyer becomes insolvent, then all claims of BAOSHIDA SWISSMETAL LTD. shall become due and payable regardless of the agreed due date and may be claimed immediately. In this case, BAOSHIDA SWISSMETAL LTD. has the right to suspend or terminate all of its delivery obligations.
 

9.                     Delivery Clause

 
Products shall be delivered “EXW” (ex works) in accordance with Incoterms 2010.
 

10.                   Delivery Periods

          

10.1           Confirmed delivery periods are ex works.
 
10.2           If BAOSHIDA SWISSMETAL LTD. does not receive in a timely manner the information it requires for purposes of fulfilling the contract or if the buyer subsequently modifies this information and thereby causes a delay in the provision of goods or services, then the respective delivery periods shall be extended accordingly. Where BAOSHIDA SWISSMETAL LTD.’s operations are interrupted without fault, BAOSHIDA SWISSMETAL LTD. has the right either to extend the delivery period accordingly or to withdraw from the contract amicably. All resulting claims for damages are waived.
 
10.3           BAOSHIDA SWISSMETAL LTD. has the right to make partial deliveries at any time.
 

11.                   Reservation of Title

 
11.1           BAOSHIDA SWISSMETAL LTD. shall reserve title to all delivered products until such time as the buyer has paid in full all claims arising from the contract.
 
11.2           The buyer is obligated to cooperate in actions necessary for safeguarding the title of BAOSHIDA SWISSMETAL LTD. Specifically, upon entry into the contract, the buyer authorises BAOSHIDA SWISSMETAL LTD. to enter or register the reservation of title in public registers, books, or the like pursuant to the relevant national laws and to satisfy all formalities in this regard at the buyer’s expense.
 
11.3           For the duration of the reservation of title, the buyer must keep the delivered products in good condition at its own expense and insure the same against theft, breakage, fire, water, and other risks for the benefit of BAOSHIDA SWISSMETAL LTD. The buyer must also take all measures to ensure that BAOSHIDA SWISSMETAL LTD.’s title is neither impaired nor cancelled against its will.
 

12.                   Warranty, Liability for Defects

 
12.1           Immediately upon receiving the delivery item at the destination, The buyer must inspect the delivery item and must notify BAOSHIDA SWISSMETAL LTD. in writing, via fax, or electronically regarding any patent defects identified in the process within seven (7) days of receipt of the goods; otherwise, the delivery item shall be deemed approved. Notice of latent defects must be given within seven (7) days of their discovery but at latest within one (1) year for business customers or two (2) years for private customers after receipt of the delivery item at the destination; otherwise, the delivery item shall be deemed approved and the buyer forfeits any claim of liability. Notices of defects must be accompanied by samples in all cases.
 
12.2           Defects resulting from improper handling, storage, working or processing, excessive demand placed on the delivery item by the buyer and for other reasons not attributable to BAOSHIDA SWISSMETAL LTD. shall not establish a warranty claim against BAOSHIDA SWISSMETAL LTD.
 
12.3           Where the buyer has given well-substantiated notice of defects in good time and proper form, BAOSHIDA SWISSMETAL LTD. shall normally take back the delivery item in question and deliver goods in flawless condition in lieu thereof. However, BAOSHIDA SWISSMETAL LTD. has the right to refund to the buyer the depreciation in lieu of the same. The buyer has no right to a rescission of the contract in this case.
12.4           Where special products have been manufactured based on information, samples, or drawings provided by the buyer, the buyer shall be liable for the infringement of any patents or other rights caused by these products.
 
12.5           Neither party shall be liable to the other for indirect losses, such as loss of production or lost profits.
 
12.6           Warranted qualities are only those expressly designated as such in the order confirmation or specifications. The warranty shall only apply until the expiry of the one-year or two-year warranty period specified in para. 12.1 above.
 
12.7           Apart from the claims and rights expressly specified in para. 12.3 above, the buyer shall have no claims or rights based on defects in material, construction, or design nor based on the absence of warranted qualities.
 

13.                   Exclusion of other Liability

 
All cases of contractual breach and the results of the same, as well as all claims of the buyer made for any reason whatsoever, are governed exhaustively in these GTSD. Specifically, all claims to damages, reduction of the purchase price, cancellation of the contract, or withdrawal from the contract that are not expressly mentioned are excluded. Under no circumstance shall the buyer have any claim to compensation of losses not incurred by the delivery item itself, including but not limited to loss of production, loss of use, loss of orders, lost profits, and other direct or indirect losses. This exclusion of liability shall not apply in case of wrongful intent or gross negligence on the part of BAOSHIDA SWISSMETAL LTD.; however, the exclusion applies to wrongful intent or gross negligence on the part of auxiliary persons of BAOSHIDA SWISSMETAL LTD.
 

14.                   Tools

 
14.1           Tools are the property of BAOSHIDA SWISSMETAL LTD. even if the buyer has contributed to the cost of the same.
 
14.2           The buyer’s contribution to the cost of tools does not entitle the buyer to derive a corresponding exclusive right from this fact.
 

15.                   Take-back of Waste (Chips)

 
Processing and reworking waste shall be taken back subject to the following conditions:
 
-        In the case of full-price transactions, the buyer undertakes to return, within three (3) months of delivery, waste accumulated by BAOSHIDA SWISSMETAL LTD. through the processing of delivered semi-finished products, in accordance with the take-back percentage and return price stipulated in the order confirmation. BAOSHIDA SWISSMETAL LTD. shall issue the corresponding credits to the buyer.
 
-        In the case of reworking transactions, BAOSHIDA SWISSMETAL LTD. has the right to mix the material supplied by the buyer with material of the same kind. The buyer shall receive a corresponding credit. The buyer warrants that it is the rightful owner of the material, even if the material is supplied by third parties, and that BAOSHIDA SWISSMETAL LTD. therefore has the right to work and process the material.
 
-        In all cases in which waste is taken back, the buyer shall be liable to BAOSHIDA SWISSMETAL LTD. for complying with all statutory provisions and the relevant regulatory directives. In the event of loss, the buyer shall be fully liable to BAOSHIDA SWISSMETAL LTD. for damages. Furthermore, the buyer undertakes to comply with Euronorm EN 12861:1999, the details of which shall be provided to The buyer upon request.
 

16.                   Amendments to the GTSD

 
Amendments or additions to these GTSD shall become an integral part of the contract unless the buyer objects in writing within 30 days of delivery of the amended or supplemented GTSD.
 

17.                   Governing Law

 
All contracts made by BAOSHIDA SWISSMETAL LTD. are subject to the laws of Switzerland, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
 

18.                   Place of Jurisdiction

 
The courts of the place of registered office of BAOSHIDA SWISSMETAL LTD. shall have jurisdiction over all disputes arising from or in connection with the contract between BAOSHIDA SWISSMETAL LTD. and the buyer. However, BAOSHIDA SWISSMETAL LTD. also has the right to take legal action against the buyer at the latter’s principal registered office.
      If this English version of the GTSD differs on one or more points from the German version, only the German version shall be binding.