General Terms and Conditions of Sale and Delivery.

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1.    General Provisions

All deliveries and services are subject to the following terms and conditions. General terms and conditions of trade of the customer shall only be applicable to the extent they are expressly agreed to in writing. These Terms and Conditions shall apply to the entire business dealings with the customer even if they are not expressly mentioned in any future contracts. This shall also apply in case the customer refers to its own terms and conditions of business in any future orders, unless we have expressly agreed to them.

2.    Offer and Order

2.1    All offers are not binding, unless they are expressly and in writing referred to as binding.

2.2    In case of purchase according so samples or test products, we reserve minor deviations in quality, colour and design as far as such deviations are due to manufacturing technology or to the further development of products. Unless expressly otherwise agreed, the data set out in the data sheets provided by us shall be applicable in any case of doubt.

3.    Prices

The prices indicated in our confirmation of the order shall be applicable. They are always understood plus VAT at the respective applicable legal rate. The prices are understood ex works or ex distribution centre. Price changes shall be permissible if the period between conclusion of the contract and the agreed delivery date is longer than eight weeks and if the production costs have increased due to an increase in particular in wage costs and costs of materials. The price increase must be appropriate to the increase in costs that actually occurred. The customer shall be entitled to rescind the contract subject to prior notice if the price increase exceeds the rise in the general cost of living to a not inconsiderable extent.

 

4.    Delivery

4.1    Compliance with the agreed time of delivery requires the receipt in good time of all documents, necessary authorizations, releases and materials (raw materials, chemicals, etc.) to be delivered by the customer as well as adherence to the agreed terms of payment and other obligations on part of the customer. If these conditions are not fulfilled in good time, the periods shall be extended accordingly; this shall not apply if we are responsible for the delay.

4.1.1    If we are behind schedule, the customer can demand contractual penalty to an amount of 1.0 % for every complete week of the delay, up to a maximum total amount of 10 % of the value of that part of the delivery or service that was not put into proper operation due to a delay in the completion of individual items belonging to it. The customer's right to withdraw after the fruitless expiration of a reasonable additional period granted to us shall remain unaffected.

4.1.2    Any further claims of the customer against us for default are excluded. This shall not apply if we are imperatively liable in cases of intent or gross negligence; this shall not be connected with a shift of the burden of proof to the disadvantage of the customer.

4.2    Any operational breakdowns and interruptions of transport, fires, floods, lack of manpower, raw materials or fuels, strikes, lockouts, interventions by authorities and other cases of force majeure that impede production or shipping completely or in part shall release us from the obligation to make the respective delivery for the duration, scope and consequence of the interruption.

4.3    The choice of way and type of shipping shall be left to us whenever we bear the freight costs.

5.    Packaging

5.1    The kind of packaging shall be left to us.

5.2    Packaging is charged at cost price and is not taken back, unless this is required by law. It is a part of the delivery in any case and therefore is to be paid upon maturity of the entire purchase price.

5.3    If the delivery of our products requires lending containers, such containers shall be returned free of charge.

5.4    If they are not returned within a period of six months, they shall be charged according to the terms usual in the trade.

6.    Giving Information and Advice

Information on possibilities of processing and application of our products, technical advice and any other details are given to the best of our knowledge, but without commitment and to the exclusion of any liability. Cases of gross negligence and intent shall remain unaffected.

7.    Terms of Payment

7.1    In case of exceeding, there shall be charged the legal default interest, reserving the assertion of further damages caused by default. Bills - conditional acceptance - shall only be accepted in performance subject to the possibility of discounting against reimbursement of the bank, discount and collection fees; the acceptance is not regarded as cash payment. Any right of retention of the buyer based on any counter claims not recognized by us under any other contractual relationship is excluded. The same applies to the setoff against any counter claims that are neither based on an undisputed claim nor on a claim that has become res judicata.

7.2    All deliveries are based on the buyer's creditworthiness. If, during the term of contract, we get any negative information on the buyer's creditworthiness and if that endangers our claim for payment or if the buyer fails to pay any amounts due as agreed, all of our outstanding accounts payable by the buyer shall immediately become due for payment. Moreover, we shall be entitled to demand advance payments or securities or withdraw from current contracts.

8.    Warranty of Quality and other Warranty

8.1    The buyer must make any notification of defects in writing in such manner that it is received by us within 10 days from the receipt of the goods at the place of destination. Any complaints will only be considered if the goods are still in the condition as received; except for necessary measures of examination.

8.2    A return of the goods complained about shall only be permissible with our consent. The freight shall be paid by the buyer. It shall only be reimbursed in case of a justified notification of defect.

8.3    All of those parts or services that show a defect as to quality during the limitation period shall be, at our option, repaired, newly delivered or newly rendered free of charge.

8.4    We shall only be liable for any public statements, in particular in advertising, if we have caused them.In such cases, a duty to accept liability shall only exist in case the advertising has actually influenced the buyer's decision to buy.

8.5    Claims based on material defects are subject to a limitation period of 12 months.

8.6    We give warranties only in case of express and special agreements. A reference to DIN standards only serves to describe the goods and does not constitute a warranty.

9.    Liability

Any claims of the buyer for damages, on whatever legal ground, in particular for breach of duties under the relationship of obligation and for tortuous acts are excluded. This shall not apply in cases of imperative liability, for example under the product liability act, in cases of intent, gross negligence, for damage to life, body or health, or for the violation of material contractual duties. Damages for the violation of material contractual duties, however, are limited to contractrelated typical, foreseeable damages up to the amount of the purchase price as a maximum, except in case of intent or gross negligence or in case of liability for damage to life, body or health. We are not liable for loss of production, interruption of operations, loss of profit, damage to processed items as well as for such damage that was caused by a failure to observe the information on dangers given by us.
Any further claims for damages, on whatever legal ground, are excluded, except in cases of imperative liability for intent, gross negligence, on grounds of product liability or for a lack of warranted characteristics.

10.    Reservation of Title

10.1    We retain title to the goods delivered until full settlement of all claims due to us against the buyer under the business relation. If the value of all security interests due to us exceeds the amount of all secured claims by more that 10 %, we will release a respective part of the security interests at the buyer's request.

10.2    In case of processing (combination, mixing) with other goods not belonging to us by the buyer, there shall apply the provisions of §§ 947, 948 BGB (German Civil Code) with the consequence that our co-ownership in the new item becomes reserved property within the meaning of this provisions. The buyer undertakes to participate in the fulfilment of any formal requirements that may be necessary in this connection.

10.3    In case of a resale of the reserved goods, the resulting claims of the buyer shall be assigned to us already now.

10.4    The buyer shall store the reserved goods for us and undertakes to insure it against damage by the elements (fire, water damage, etc.) and against theft.

10.5    The buyer hereby assigns to us, to the amount of our claim, its claims for compensation for damage of the above-mentioned kind against insurance companies or other claims for damages.

10.6    In case of default in payment, in particular in case of general suspension of payments, we shall moreover be entitled to demand the immediate separation of our reserved goods and their surrender to us. The taking back or the assertion of our reservation of title shall not require a rescission on our part; these acts or an attachment of the reserved property by us do not constitute a rescission of the contract, unless expressly declared by the user.

11.    Place of Performance and Place of Jurisdiction

11.1    The place of performance for all obligations under the contractual relationship shall be the town of Fürth (Bavaria).

11.2    The place of jurisdiction for all disputes in connection with this agreement shall be the seat of our company, Fürth (Bavaria). Either party shall be moreover entitled to sue the respective other party at the competent place of jurisdiction of the latter.

12.    Choice of Law

All disputes shall be settled in accordance with these Terms and Conditions and all additional agreements on its performance, otherwise in accordance with the substantive law currently applicable in Germany, excluding the option to have resort to any other substantive laws. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.

13.    Legal Effectiveness

If any provision of these General Terms and Conditions of Sale and Delivery should be invalid, this shall not affect the legal validity of the remaining provisions.

Terms and Conditions of Purchase.

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1.    General Provisions
 
1.1    Our Terms and Conditions of Purchase apply exclusively; we do not acknowledge any general terms and conditions of trade of the supplier conflicting with or deviating from our Terms and Conditions of Purchase, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also be applicable if we accept and pay for the delivery of products and services of the supplier (hereinafter referred to as object of the contract), having knowledge of terms and conditions of the supplier conflicting with or deviating from our Terms and Conditions of Purchase. 

1.2    Our Terms and Conditions of Purchase shall also apply to all future deliveries and services delivered to us by the supplier until our new Terms and Conditions of Purchase enter into effect. 

2.    Conclusion and Alteration of Contracts 

2.1    Orders, contracts and calls for delivery as well as changes of and additions to them must be made in writing. Orders and calls for delivery can also be effected by remote data transmission or telefax. 

2.2    Any oral agreements made before or upon the conclusion of the contract are subject to written confirmation of the purchasing department to become effective. Item 2.1, sentence 2 remains unaffected. 

2.3    Any oral agreements made after the conclusion of the contract, in particular subsequent alterations of and additions to our Terms and Conditions of Purchase - including this written-form clause - as well as collateral agreements of any kind, are also subject to written confirmation of the purchasing department to become effective. 

2.4    Estimates of costs shall be binding and not to be paid for, unless expressly otherwise agreed. 

2.5    If the supplier does not accept an order within a period of two weeks from its receipt, we shall be entitled to cancel it. Calls for delivery shall become effective if the supplier does not object to them within a period of five working days from their receipt. 

2.6    In case of orders for goods that contain hazardous and/or ecologically harmful substances, the supplier undertakes to indicate and offer equivalent alternative products, if any, containing substances that are less or not hazardous/ecologically harmful, without being asked. This does also apply with regard to the consumption of energy and natural resources as well as to the generation of waste and emissions in production, packaging and shipment. 

2.7    We expect our suppliers to use management systems for a constant improvement of their performance as to quality, environmental protection and industrial health and safety, too. That is why we prefer suppliers with respective certified and validated systems. 

3.    Delivery 

3.1    Any deviations from our contracts and orders shall only be permissible subject to our prior written approval. 

3.2    Agreed dates and periods shall be binding. The date of receipt of the goods at our plant shall be decisive with regard to the observance of the date or period of delivery. In case delivery "free works" (DDU or DDP according to Incoterms 2000) is not agreed, the supplier must make the goods available in good time, taking into account the required loading and transport time to be co-ordinated with the forwarding agent. 

3.3    If the supplier has assumed the installation or assembly and if not otherwise agreed, the supplier shall bear all required ancillary costs, such as travel expenses, provision of tools as well as daily allowance, except as otherwise provided.  

3.4    In case of a failure to observe any agreed dates, the respective legal regulations shall be applicable. If the supplier can foresee any problems with regard to the production, provision of input material, observance of the delivery date or similar conditions that might prevent him from making the delivery in due time or in the agreed quality, the supplier must immediately notify our department that placed the order. 

3.5    The unconditional acceptance of a delayed delivery or service shall not constitute a waiver of any claims for compensations we are entitled to due to the delay in delivery or service; this shall be valid until full payment of the remuneration for the respective delivery or service due from us. 

3.6    Partial deliveries are generally inadmissible, unless we have expressly agreed to them or we can be reasonably expected to accept them. 

3.7    With regard to numbers of pieces, weights and dimensions, the values determined by us in the incoming goods inspection shall be decisive, unless other proof is available. 

3.8    With regard to any software that is part of the product delivery, including is documentation, we shall have, apart from the right of utilization to the extent permitted by law (§§ 69a ff. UrhG - Copyright Act), the right of utilization with the agreed performance characteristics to the extent required for a utilization of the product in accordance with the contract. We shall also be entitled to make a backup copy even without express agreement. 

3.9    In case of goods approved on the basis of samples, the supplier is obliged to inform us immediately about any change in its manufacturing process or in the manufacturing process of purchased goods or components and to apply for a new approval. 

3.10    All deliveries must include a delivery note in duplicate indicating our order number, our materials number, the quantity delivered and the date of our order. The accompanying documents of every delivery of hazardous materials and preparations must include the legally required safety data sheets as well as information sheets with special instructions re-garding storage and handling. 

3.11    In case of deliveries of hazardous goods, the supplier shall be responsible for the compliance with all provisions and regulations in connection with transport law (e.g. correct marking, packaging and securing of the load) and shall be liable for resulting damage in case of a failure to observe these regulations. 

3.12    The supplier is obliged to mark the goods in accordance with our order. In case of hazardous materials and preparations, the marking required by law is to me made in addition. 

3.13    If the supplier does not submit at all or not in a proper form any test certificates (e.g. according to EN 10204) or attestations of conformity and CE markings required in the order, we reserve the right to reject the delivery at the supplier's expense and to withdraw from the contract. 

4.    Force Majeure 

Force majeure, labour disputes, non-culpable operational breakdowns, unrest, measures taken by authorities and other inevitable events shall entitle us - without prejudice to our other rights -to withdraw completely or in part from the contract, as far as they are of a not inconsiderable duration and lead to a considerable reduction of our needs. 

5.    Shipping Advice and Invoice 

The data indicated in our orders and calls for delivery shall be applicable. The invoice shall be made out in triplicate indicating the invoice number and other assignment characteristics and shall be sent to the respective address printed on it. It must not be included in the consignments. 

6.    Pricing and Passing of Risk 

Unless otherwise agreed, the prices are understood free works customs cleared (DDP according to Incoterms 2000) including packaging, VAT not included. The supplier shall bear the material risk until acceptance by us or our agent at the place that the goods are to be delivered to according to the contract. 

7. Terms of Payment 

Unless otherwise agreed, invoices shall be settled either within 20 days with deduction of a discount of 3% or within 30 days without deduction from the due date of the remuneration account and the receipt of both the invoice and the goods or the rendering of the service. Payment shall be made subject to invoice checking. The payment shall neither constitute an acknowledgement of performance nor a waiver of claims based on material defects. 

8.    Claims Based on Defects and Recourse 

8.1    Acceptance shall be made subject to an inspection as to faultlessness, in particular also as to correctness, completeness and suitability. We shall be entitled to examine the object of the contract as far and as soon as that is expedient in the regular course of business; any defects found will be notified by us immediately after their detection. We are only obliged to an examination and notification under § 377 HGB (Commercial Code) as far as defects are obvious. In that case, the notification of defect can still be given within a period of 10 working days from the receipt of the goods. For observing the period, the posting date shall be sufficient in case of a written notification of defect. In case of hidden defects, the supplier moreover waives the plea of late notification of defect. 

8.2    Unless otherwise provided, there shall be applicable the legal regulations on material defects and defects of title. 

8.3    We are generally entitled to choose the kind of subsequent performance. 

8.4    If the supplier should fail to start to remove the defects immediately upon our respective request, we shall be entitled in urgent cases, in particular for averting imminent danger or avoiding major damage, to remove such defects ourselves or have them removed by a third party at the supplier's expense. Claims based on material defects shall become statute-barred after 2 years, unless the item was used, in accordance with its customary use, for a building and has caused its defectiveness. The limitation period for claims based on material defects begins upon delivery of the object of the contract (passing of risk). 

8.5    In case of defects of title, the supplier shall moreover indemnify us against any possible claims of a third party. Defects of title are subject to a limitation period of 10 years.  

8.6    For any parts of the delivery restored or repaired within the limitation period of our claims based on defects, the limitation period shall start anew at the point of time when the supplier has completely satisfied our claim for subsequent performance. 

8.7    In case we incur any costs as a consequence of the defective delivery of the object of contract, in particular costs of transport, travelling, work, materials or costs of an incoming goods inspection exceeding the normal scope, such costs shall be borne by the supplier. 

8.8    In case we take back any products manufactured and/or sold by us as a consequence of the defectiveness of the object of contract delivered by the supplier of if, due to that reason, our sales price was reduced or any other claims were asserted against us, we reserve to have recourse against the supplier. In the cases provided by law, our rights based on defects are not subject to fixing a period. 

8.9    We are entitled to demand from the supplier compensation for the expenses we incurred with regard to our customer if the latter asserted against us claims for reimbursement of the expenses required for the purpose of subsequent performance, in particular costs of transport, travelling, work, materials. 

8.10    Notwithstanding the provisions under item 8.5, the cases under items 8.8 and 8.9 shall become statute-barred not earlier than 2 month from the moment we have satisfied the claims asserted against us by our customers and not later than 5 years from the date of delivery by the supplier. 

8.11    If a material defect is detected within a period of 6 months from the passing of risk, it shall be assumed that the defect already existed at the time of passing the risk, unless such assumption is incompatible with the nature of the item or of the defect. 

9.    Product Liability and Recall 

In case we are held liable to recourse on the basis of product liability, the supplier shall be obliged toindemnify us against any such claims if and as far as the damage was caused by a defect in the object of contract delivered by the supplier. In cases of no-fault liability (strict liability), however, this shall only be applicable if any fault is attributable to the supplier. As far as the cause of damage lies in the supplier's sphere of responsibility, the supplier shall bear the burden of proof in this connection.In these cases, the supplier shall assume all costs and expenses, including the costs of prosecution, if any, and the costs of a recall action. As for the rest, the legal provisions shall be applicable. 

10.    Execution of Work 

Any persons who, in performance of the contract, do any work at the factory premises must observe the provisions of the respective factory regulations. Liability for accidents happening to such persons at the factory premises is excluded, unless such accidents are caused by wilful or negligent breach of duty on part of our legal representatives or vicarious agents. 

11.    Materials Provided by Us 

All substances, parts, containers and spezial packaging provided by us remain our property. They shall be exclusively used in accordance with the respective regulations. The processing of substances and the assem-bly of parts shall be done for us. It is understood that we shall be co-owners of the products manufactured with the use of our substances or parts in the ratio of the value of the materials provided to the total value of the complete product. Such products shall be stored for us by the supplier. 

12.    Documents and Secrecy 

12.1    All business or technical information (including any features that can be gathered from any items, documents or software that is handed over and other knowledge or experience) must, as long as it is not provably known to the public, be kept secret from all third parties and shall only be made accessible to those persons in the own firm of the supplier who necessarily need to use them for the purpose of the delivery to be made to us and who have also been obliged to observe secrecy; they remain our exclusive property. Except for the purpose of deliveries to be made to us, such information must not be copied or commercially used without our prior written consent. At our request, all information coming from us (including all copies or notes made, if applicable) and all items lent must be immediately and completely returned to us or destroyed. In case of a breach of duty, a contractual penalty of 25,000 Euro shall be payable per individual case. Any further claims for damages remain unaffected. We reserve all rights in such information (including copyrights and the right to apply for industrial property rights, such as patents, utility models, semiconductor protection, etc.). As far as we make them available to a third party, this reservation of right shall also apply for the benefit of such third party. 

12.2    Any products that have been made according to documents created by us, such as drawings, models and the like, or according to our confidential information or with the help of our tools or copied tools must neither be used by the supplier itself nor be offered or supplied to a third party. The same applies accordingly to our print orders. 

13. Place of Performance 

The place of performance shall be the place where the goods are to be delivered to according to the contract. 

14. Certificate of Exemption for Construction Services 

Every supplier of construction services shall submit a valid certificate of exemption according to § 48b 1 EStG (Income Tax Act) to the user without being asked. The supplier of construction services shall be liable for its correctness and validity. If the certificate of exemption should be limited in time or expire during the performance of the contract, the supplier shall be obliged to submit a current certificate. Remaining below the minor-case limit does not relieve of the obligation to submit a certificate of exemption. 

15. General Provisions 

15.1    If any of the provisions of these Terms and Conditions and of any further agreements made should be or become invalid, this shall not affect the validity of the other provisions. The contracting parties are obliged to replace the invalid provision by a regulation that comes as close as possible to its economic purpose. 

15.2    The place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationships based on these Terms and Conditions of Purchase shall be the town of Fürth (Bavaria). Moreover, we are entitled, at our option, to sue the supplier before the competent court at its seat or before the competent court at the place of performance. 

15.3    The contractual relations are exclusively subject to German law, excluding the conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

Acupowder International, LLC
Platinum Equity
SCM Metal Products Inc.