General Terms and Conditions of Purchase
1. CONTRACTUAL PARTNERS, SCOPE OF APPLICATION, GENERAL PROVISIONS
1.1 The supplier’s contractual partner is Gebrüder Fabian GmbH (‘Gebrüder Fabian’), registered in the commercial register of the Hamburg Local Court under HRB 92568.
1.2 These General Terms and Conditions of Purchase apply exclusively. Any conflicting or supplementary general terms and conditions of the supplier shall not apply, even if Gebrüder Fabian does not expressly object to these general terms and conditions of the supplier. These General Terms and Conditions of Purchase shall also apply exclusively if the supplier’s performance is accepted without reservation in the knowledge of conflicting or supplementary contractual terms and conditions of the supplier. Any previously agreed contractual terms and conditions of the supplier that conflict with or supplement these General Terms and Conditions of Purchase shall no longer be recognised. If the supplier does not agree to the exclusive application of these General Terms and Conditions of Purchase, it must inform Gebrüder Fabian immediately in a separate letter. In this case, Gebrüder Fabian reserves the right to refuse acceptance of the delivery.
1.3 For purchases of non-ferrous metals, the ‘Usances of the Metal Trade’ published by the Verein Deutscher Metallhändler e.V. (Association of German Metal Traders) in their currently valid version shall apply in addition. In the event of contradictions, these General Terms and Conditions shall take precedence.
2. Orders, form
2.1 Orders placed by Gebrüder Fabian for deliveries from the supplier are only binding if they are made in writing, in text form or by fax, or if they are confirmed in writing, in text form or by fax following a verbal or telephone order placed by Gebrüder Fabian.
2.2 The scope and type of service shall be determined solely by the order confirmation issued by Gebrüder Fabian.
2.3 Insofar as orders placed by Gebrüder Fabian contain deviations from these General Terms and Conditions, the terms and conditions of the order shall take precedence over the General Terms and Conditions.
2.4 Call-offs, cancellations, declarations of withdrawal, contract amendments or supplements or other declarations must be made in writing, in text form or by fax.
3. Changes to the subject matter of the service, quality
3.1 The supplier shall check whether the service description contained in an order confirmation from Gebrüder Fabian for a delivery by the supplier, or other instructions issued by Gebrüder Fabian in connection with the delivery are incorrect, incomplete, ambiguous or otherwise unsuitable for the proper execution of the delivery and shall immediately notify Gebrüder Fabian of this circumstance and the consequences thereof in writing, in text form or by fax, stating a proposed change.
3.2 The supplier shall assume the full procurement risk for the delivered goods and guarantee that they have the contractually guaranteed properties. If deliveries to Gebrüder Fabian are based on samples and models, the properties of these samples and models shall be deemed to have been guaranteed by the supplier.
3.3 If deliveries to Gebrüder Fabian are based on previous deliveries or within the framework of a permanent business relationship, the supplier is obliged to inform Gebrüder Fabian of any changes in the composition and ingredients of the goods prior to delivery.
3.4 All deliveries must be free of ionising radiation exceeding natural background radiation and free of explosive devices, objects suspected of being explosive and closed hollow bodies. If the supplier is an entrepreneur, the relevant provisions of the ‘Standard Terms and Conditions for the Delivery of Unalloyed Steel Scrap’, the ‘Standard Terms and Conditions for the Delivery of Alloyed Iron and Steel Scrap’ and the ‘Standard Terms and Conditions for the Delivery of Casting Breakage and Foundry Steel Scrap’ (hereinafter collectively referred to as ‘Standard Terms and Conditions’).
3.5 Deliveries must be accompanied by proper shipping documents containing information on the standard material designation, quantity or weight, place of receipt and order number. The same applies to compliance with environmental requirements for monitoring in accordance with the Closed Substance Cycle Waste Management Act, the Verification Ordinance, dangerous goods law, transport law, etc. A loading list must be enclosed with deliveries of different materials. Unless otherwise agreed, different types of materials must not be mixed. Any sorting costs resulting from defects in the delivery shall be borne by the supplier.
3.6 The supplier guarantees that no third-party rights are infringed in connection with its delivery or performance. The supplier assures that the goods it delivers are its property and do not originate from a criminal offence nor are they subject to seizure or transfer by way of security.
4. Delivery times and delay in delivery
4.1 The agreed delivery times are binding. Delivery periods begin on the date of order confirmation. The date of receipt by Gebrüder Fabian or the receiving point specified by Gebrüder Fabian is decisive for compliance with the delivery period.
4.2 If delays are to be expected, the supplier must notify Gebrüder Fabian in writing immediately after becoming aware of them. In cases of force majeure, Gebrüder Fabian shall be entitled to withdraw from the contract if the delay in delivery is not only temporary.
4.3 In the event of a delay in delivery, Gebrüder Fabian shall be entitled to the statutory claims without prejudice to the above clause 4.2. In particular, Gebrüder Fabian shall be entitled, after the expiry of a reasonable period of time, to claim damages in lieu of performance and/or to withdraw from the contract.
5. Acceptance and transfer of risk
5.1 Suppliers of scrap metal and metals must accept suspensions imposed on them. Suspensions shall generally be announced by Gebrüder Fabian in advance by telephone and confirmed in writing.
5.2 Unless otherwise agreed, the risk shall pass to Gebrüder Fabian as soon as the goods have reached its premises, its warehouse or another delivery location specified by Gebrüder Fabian in the order. If unloading at the delivery location is not carried out by Gebrüder Fabian, the transfer of risk shall be postponed until the goods have been completely unloaded.
5.3 Delays in acceptance that were not foreseeable at the time of conclusion of the contract due to force majeure and similar events whose causes are beyond the control of Gebrüder Fabian entitle Gebrüder Fabian to postpone acceptance for the duration of the hindrance plus a reasonable start-up period without the risk of price changes being transferred to them. If the hindrance lasts longer than three months, both contracting parties are entitled to withdraw from the contract with regard to the part not yet fulfilled. Gebrüder Fabian shall notify the supplier of the beginning and end of such hindrances as soon as possible.
5.4 Persons working on the premises of Gebrüder Fabian in fulfilment of the supplier’s obligations must comply with the instructions and provisions of Gebrüder Fabian’s works regulations and the accident prevention, occupational safety, environmental and other regulations applicable at Gebrüder Fabian.
6. Weight, quantity and findings
6.1 The weight determined by Gebrüder Fabian upon receipt shall be decisive for invoicing. The relevant provisions of the customary terms and conditions shall apply in addition.
6.2 Gebrüder Fabian is not obliged to accept excess quantities. Gebrüder Fabian may, at its discretion, accept these at the contract price or at the current market price, or refuse to accept them. In the latter case, the supplier is obliged to bear all costs for transport to and from the premises.
6.3 In the event of deviations in material and quality from the agreed specifications, the material and quality findings issued by Gebrüder Fabian upon receipt of the goods shall apply to entrepreneurs, without prejudice to the rights of Gebrüder Fabian under section 9 below, unless the supplier objects to such findings in writing within one working day of receiving a corresponding notification from Gebrüder Fabian. If no such objection is made, the supplier shall be deemed to have agreed to the findings communicated.
7. Prices, payments, payment terms, offsetting
7.1 Unless expressly agreed otherwise, the agreed price includes delivery ‘free domicile’. The price covers all transport, insurance, packaging and other ancillary costs as well as fees for delivery and unloading to the delivery address specified by Gebrüder Fabian and, in the case of imports, customs duties and other import charges, unless otherwise expressly agreed.
7.2 Unconditional payment of an invoice amount by Gebrüder Fabian does not imply acceptance of the supplier’s performance as being in accordance with the contract.
7.3 Payments to be made by Gebrüder Fabian are due 14 days after receipt of the supplier’s invoice, unless expressly agreed otherwise.
7.4 Gebrüder Fabian is entitled to set-off and retention rights to the extent permitted by law.
7.5 With the exception of advance assignments to upstream suppliers within the scope of retention of title agreements, assignments of claims by the supplier against Gebrüder Fabian require the latter’s express prior consent.
8. Data protection
8.1 For the purpose of fulfilling and executing the contractual relationship, Gebrüder Fabian collects personal data of the respective contact persons of the seller and, if applicable, of its contractual partners (discontinuation points) in accordance with Art. 6 (1) lit. b and f EU GDPR and processes it in accordance with the provisions of the European General Data Protection Regulation and the German Federal Data Protection Act.
8.2 Among other things, the personal data of contact persons of the seller and, if applicable, of its contractual partners (omitted sections) communicated to Gebrüder Fabian will be transferred to the freight forwarders employed by Gebrüder Fabian as subcontractors for the fulfilment and execution of the contractual relationship in accordance with Art. 6 (1) lit. b and f EU GDPR. Gebrüder Fabian has contractually obliged the subcontractors to process this data exclusively for the fulfilment and execution of the respective subcontractor contract in accordance with the provisions of the European General Data Protection Regulation and the German Federal Data Protection Act as controllers in accordance with Art. 4 No. 7 EU GDPR. The data subject may exercise his or her rights listed below with regard to this data transferred to subcontractors both vis-à-vis us and vis-à-vis the subcontractors.
The seller is obliged to provide the relevant information to his contractual partners in the supply chain in an appropriate manner, insofar as corresponding personal data of contact persons of these contractual partners is passed on to the seller and transferred to Gebrüder Fabian. The seller indemnifies Gebrüder Fabian against all claims based on a violation of data protection regulations by the seller, whether by private third parties or by authorities.
8.3 The data will be stored for the duration of the business relationship and for the period of commercial and tax retention periods, usually ten years from the end of the calendar year in which the respective exchange of services took place. After this period has expired, Gebrüder Fabian will immediately destroy or delete the data.
8.4 During the retention period, the data subject is entitled at any time to request information about their data and copies stored by Gebrüder Fabian.
8.5 In addition, the data subject may at any time request the correction or deletion of individual personal data, as well as a restriction of data processing or object to data processing, provided that this does not conflict with Gebrüder Fabian’s legitimate interest in continuing data processing, in particular in the context of contract execution and the above-mentioned commercial and tax retention periods. In addition, the data subject has a right to data portability. The further rights of the data subject are set out in Articles 15-23 of the EU GDPR
8.6 The data subject is entitled to lodge a complaint with the competent supervisory authority if he or she believes that the processing of his or her personal data is not lawful. The address of the supervisory authority responsible for Gebrüder Fabian is: The Hamburg Commissioner for Data Protection and Freedom of Information, Ludwig-Erhard-Str 22, 7th floor, 20459 Hamburg, telephone: +49 40/428 54 40 40, fax: +49 40/42 79 11 811, email: mailbox@datenschutz.hamburg.de.
8. 7 When accepting goods that may contain personal data of third parties (e.g. address labels on waste paper and cardboard boxes, data on old electrical appliances), the seller is obliged to expressly and transparently point out the respective personal responsibility of the data subjects with regard to the independent deletion, obliteration or other destruction of personal data. If the seller is itself a data subject within the meaning of data protection law, Gebrüder Fabian hereby provides it with a corresponding notice. Insofar as the seller does not obtain such goods in the supply chain directly from the persons affected by data protection law, it shall also oblige its upstream suppliers to provide corresponding notices in a corresponding manner. If the seller has not expressly (also) commissioned Gebrüder Fabian with order processing within the meaning of Art. 28 EU GDPR in a legally effective manner, Gebrüder Fabian shall not be liable for any violations of data protection regulations either to the data subjects or to the seller. The seller indemnifies Gebrüder Fabian against all claims, whether from private third parties or from authorities.
9. Warranty and liability
9.1 Gebrüder Fabian is entitled to the full extent of statutory claims for defects.
9.2 Gebrüder Fabian complies with the statutory inspection and notification periods by reporting obvious defects or incompleteness of the goods within 3 working days of their arrival at its premises or, in the case of drop shipments, within 6 working days of their arrival at the respective destination. For deliveries of alloyed iron and non-ferrous scrap, the complaint period is 10 working days.
9.3 Complaints regarding non-apparent defects must be made within 10 working days of discovery.
9.4 Gebrüder Fabian is entitled to exercise its right to withdraw from the contract and claim damages in lieu of performance even in the case of insignificant deviations from the agreed quality or insignificant impairment of the usability of the goods.
9.5 In the event of a defective delivery, Gebrüder Fabian reserves the right to demand, at its discretion, either rectification of the defect or a new delivery. Subsequent performance shall be deemed to have failed after the first unsuccessful attempt.
9.6 In the event of quality-related returns of goods, the supplier is obliged to immediately repay Gebrüder Fabian any payments already made for these goods, including interest. If this does not happen, Gebrüder Fabian has the right to retain the goods until the repayments have been received.
9.7 The limitation period for claims by Gebrüder Fabian due to defects in the delivery is 36 months, regardless of the legal basis. Longer statutory limitation periods remain unaffected.
9.8 The supplier’s liability is determined in accordance with the statutory provisions. The supplier shall indemnify Gebrüder Fabian upon first request against any claims by third parties based on a defect in the service or for which the delivery or the conduct of the supplier was otherwise responsible.
9.9 The supplier shall be liable for the fault of its vicarious agents and the assistants it employs as if it were its own fault.
9.10 Claims against Gebrüder Fabian for damages, regardless of their legal basis, are excluded unless Gebrüder Fabian or its legal representatives or vicarious agents act with intent or gross negligence or the claim for damages results from the breach of essential contractual obligations. If Gebrüder Fabian is liable in cases of slight negligence due to the breach of essential contractual obligations, liability shall be limited to compensation for typical foreseeable damage. Liability for damage resulting from injury to life, limb or health, as well as liability under the Product Liability Act and other mandatory statutory provisions, remains unaffected.
10. Retention of title
An extended or expanded retention of title by the supplier is only binding on Gebrüder Fabian if it has been agreed separately in writing.
11. Final provisions
11.1 Gebrüder Fabian is entitled to transfer claims and rights to which Gebrüder Fabian is entitled against the supplier to third parties without the supplier’s consent.
11.2 The contractual relationship is subject to German law, excluding the provisions of international private law and internationally harmonised sales laws, in particular the UN Convention on Contracts for the International Sale of Goods.
11.3 Should any provision of these General Terms and Conditions of Purchase be or become invalid or void, this shall not affect the validity of the remaining provisions of these General Terms and Conditions of Purchase. The invalid or void provision shall be replaced by a valid provision which the parties would have agreed upon at the time of conclusion of the contract if they had been aware of the invalidity or voidness in order to achieve the same economic success.
11.4 If the supplier is a merchant, a legal entity under public law or a special fund under public law, Hamburg shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship and its existence. However, Gebrüder Fabian shall also be entitled to sue the supplier at its general place of jurisdiction. This shall not apply if and to the extent that there is an exclusive statutory place of jurisdiction for a dispute in an individual case.
Hamburg, 26 January 2019