1. Scope

These general terms and conditions of sale only apply to entrepreneurs exercising their commercial or independent professional activity and to legal entities under public law. They apply to all business transactions between Hartmetall-Gesellschaft Bingmann GmbH & Co. KG (hereinafter referred to as "Hartmetall-Gesellschaft") and the customer, even if they are not mentioned in subsequent contracts. They apply accordingly to work and services. Instead of acceptance of the delivered products, the acceptance of work and the acceptance of the service for services.

Conditions of the customer that contradict, supplement or deviate from these General Conditions of Sale do not become part of the contract unless Hartmetall-Gesellschaft has agreed to their validity in writing. These General Conditions of Sale also apply if the Hartmetall-Gesellschaft carries out a delivery to the customer without reservation in the knowledge of his conflicting, additional or deviating conditions.

Conflicting, additional or deviating agreements to these general terms and conditions of sale that are made between Hartmetall-Gesellschaft and the customer for the execution of a contract must be set out in writing in the contract. This also applies to the cancellation of this written form requirement.

Rights to which the Hartmetall-Gesellschaft is entitled in accordance with statutory provisions or other agreements beyond these General Conditions of Sale remain unaffected.

2. Conclusion of a contract for orders outside the online shop

Offers by the Hartmetall-Gesellschaft are subject to change and non-binding, unless the Hartmetall-Gesellschaft informs the contrary.

An order only becomes binding if it has been confirmed by the Hartmetall-Gesellschaft in a written order confirmation within two weeks of the order date or if the Hartmetall-Gesellschaft executes the order, in particular if the Hartmetall-Gesellschaft fulfills the order by sending the products. An order confirmation created with the help of automatic equipment, in which the signature and name are missing, is considered to be in writing. Insofar as the order confirmation contains obvious errors, spelling or calculation errors, it is not binding for Hartmetall-Gesellschaft.

3. Conclusion of a contract for orders in the online shop

When ordering via the online shop of the Hartmetall-Gesellschaft, the customer can select the products of the Hartmetall-Gesellschaft and place them in his "shopping cart". An order is bindingly triggered by the purchaser when the purchaser clicks on the electronic control panel (button) "buy now" in the "shopping cart" area at the end of the order process. Before clicking on the “Buy now” button, the previously entered data and the content of the shopping cart can be changed at any time, or the ordering process can be canceled by leaving the online shop. The text of the contract is saved by the Hartmetall-Gesellschaft after an order has been placed. However, this is not accessible to the customer. A contract is only concluded when the Hartmetall-Gesellschaft accepts the order with a declaration of acceptance or by sending the respective product. After submitting his order, the customer receives a confirmation of receipt of his order. This is not an acceptance of the offer, but only serves to inform that the order has been received, unless acceptance is declared in addition to the confirmation of receipt.

4. Product information, documents, withdrawal

Illustrations, drawings, weight or dimensions as well as other descriptions of the products from the documents included in the offer are only approximate, unless they are expressly designated as binding. They do not constitute an agreement or guarantee of a corresponding quality or durability of the Products, unless they have been expressly agreed as such in writing.

Hartmetall-Gesellschaft reserves all property, copyrights and other proprietary rights to all offer documents. Such documents may not be made available to third parties. At the request of the Hartmetall-Gesellschaft, the customer shall immediately issue all tender documents to the Hartmetall-Gesellschaft if they are no longer needed in the normal course of business. The same applies in particular to all other documents, drafts, samples, samples and models.

If the Purchaser’s financial situation substantially worsens or if the justified application for the opening of insolvency or similar proceedings against the Purchaser’s assets is rejected due to lack of assets, the Hartmetall-Gesellschaft shall be entitled to withdraw from the contract in whole or in part.

5. Scope of delivery, changes to the products

The written order confirmation of the Hartmetall-Gesellschaft shall be decisive for the scope of the delivery. Changes to the scope of delivery by the customer require the written confirmation of the Hartmetall-Gesellschaft in order to be effective. We reserve the right to make changes to the design and shape of the products, insofar as they are industry-standard deviations, or insofar as the deviations are within DIN tolerances or insofar as the changes are not significant and reasonable for the customer. The same applies to the choice of material, the specification and the type of construction.

Delivery in parts is permissible, unless delivery in parts is not reasonable for the purchaser taking into account the interests of the Hartmetall-Gesellschaft.

The Hartmetall-Gesellschaft reserves the right to deliver more or less of up to 10% of the scope of delivery for production reasons. In this respect, claims for defects are excluded.

6. Delivery time, transport insurance

The agreement of delivery times (delivery deadlines and deadlines) requires the written form. Delivery deadlines and deadlines are non-binding unless they have been previously designated as binding by the Hartmetall-Gesellschaft in writing.

The delivery period begins with the conclusion of the contract, but not before the complete submission of the documents, approvals and approvals to be procured by the customer, the clarification of all technical issues and the receipt of an agreed down payment or, in the case of a foreign transaction, after receipt of the full payment. In the event of a delivery date, the delivery date shall be postponed in a reasonable manner if the customer does not provide the documents to be procured by him in good time, authorizations are not granted in good time, all technical issues are not fully clarified in good time or the agreed down payment or in the case of a foreign transaction the entire payment is not received by the Hartmetall-Gesellschaft in full. Compliance with the delivery time presupposes the timely and proper fulfilment of the other obligations of the purchaser.

The delivery time is met if the products leave the factory by their expiration date or if the Hartmetall-Gesellschaft has notified that they are ready for collection or dispatch. Compliance with the delivery time is subject to proper, in particular timely self-supply by the Hartmetall-Gesellschaft, unless the Hartmetall-Gesellschaft is responsible for the reason for the improper self-supply. Hartmetall-Gesellschaft is entitled to withdraw from the contract in the event of improper self-supply. The Hartmetall-Gesellschaft shall inform the customer immediately if the Hartmetall-Gesellschaft makes use of its right of withdrawal and shall, for example, refund any intermediate services provided by the customer.

Transport or dispatch of the products is uninsured, unless the purchaser has expressly and in writing instructed the Hartmetall-Gesellschaft to take out a transport insurance.

7. Cross-border deliveries

In the case of cross-border deliveries, the purchaser shall provide the competent authorities with all declarations and actions necessary for export from Germany and import into the country of destination in good time, in particular to obtain the documents required for customs clearance and to comply with any export controls or other restrictions on marketability.

Deliveries are subject to the condition that performance is not impeded by national or international regulations, in particular export control regulations, embargoes or other sanctions.

Delays due to export controls extend delivery times accordingly; Delivery dates are postponed in a reasonable manner.

8. Prices and Payment

The prices are valid ex works in the absence of special agreement and do not include shipping, packing, any insurance, statutory taxes, customs duties or other charges. The costs incurred in this respect, in particular the costs for packaging and transport of the products, shall be invoiced separately. The statutory value added tax is shown separately in the invoice at the statutory amount in force on the day of invoice.

If production-related price increases occur up to the day of delivery, the Hartmetall-Gesellschaft is entitled to adjust the price accordingly without regard to the offer and order confirmation.

In the absence of a special agreement, the delivery price is to be paid net within 14 days of receipt of the invoice. The date of payment shall be the date on which the Hartmetall-Gesellschaft is able to dispose of the delivery price. In the event of late payment, the customer shall pay default interest in the amount of 9% points above the respective base interest rate p. a. Further claims of the Hartmetall-Gesellschaft remain unaffected.

In the case of foreign transactions, payment shall be made prior to delivery, by way of derogation from paragraph 3, unless otherwise agreed in writing.
The acceptance of bills of exchange and cheques takes place on the basis of fulfilment. The effect of performance only takes effect when the respective amount is irrevocably credited to the Hartmetall-Gesellschaft. The purchaser shall bear the costs incurred as a result of payment by bills of exchange or cheques, in particular bills of exchange and cheque charges.

9. Transfer of risk

The risk of accidental loss and accidental deterioration shall pass to the customer as soon as the products are handed over to the person carrying out the transport or leave the warehouse of the Hartmetall-Gesellschaft for the purpose of shipment. In the event of collection by the purchaser, the risk shall pass to the purchaser upon notification of readiness for collection. Sentence 1 and Sentence 2 shall also apply if the delivery is made in parts or if the Hartmetall-Gesellschaft has assumed further services, such as transport costs or assembly of the products at the customer’s premises.

If the purchaser is in default of acceptance, the Hartmetall-Gesellschaft may demand compensation for the damage incurred, unless the purchaser is not responsible for the non-acceptance of the products, as well as compensation for any additional expenses. The same shall apply if the Purchaser breaches other obligations to cooperate, unless the Purchaser is not responsible for the breach of other obligations to cooperate. The risk of accidental loss or accidental deterioration of the products shall pass to the customer at the latest at the time when he is in default of acceptance. The Hartmetall-Gesellschaft is entitled to dispose of the products in other ways and to supply the customer with an appropriately extended period of time after the fruitless expiration of a reasonable period set by the Hartmetall-Gesellschaft.

If dispatch is delayed due to circumstances for which the Hartmetall-Gesellschaft is not responsible, the risk shall pass to the customer upon notification of readiness for dispatch.
The products shall be accepted by the customer, without prejudice to his claims for defects, even if they show insignificant defects.

10. Claims for defects

The buyer’s rights to defects presuppose that he checks the delivered products upon delivery, if reasonable also by trial processing or trial use, and that he has notified the Hartmetall-Gesellschaft in writing of open defects immediately, at the latest two weeks after delivery of the products. Hidden defects must be notified to the Hartmetall-Gesellschaft in writing immediately, at the latest two weeks, after their discovery. The customer shall describe the defects in writing when notifying the Hartmetall-Gesellschaft. The customer must also comply with the specifications, notes and conditions in the technical notes, instructions and other documents of the individual products when assembling, processing and using the products. Claims for defects arising as a result of the breach of this obligation are excluded.

In the event of defects in the products, the Hartmetall-Gesellschaft is entitled, at its own discretion, to rectify the defect or to supply a defect-free product. In the event of subsequent performance, the Hartmetall-Gesellschaft is obliged to bear all expenses necessary for the purpose of the subsequent performance, in particular transport, travel, labour and material costs. Replaced parts shall become the property of the Hartmetall-Gesellschaft and shall be returned to the Hartmetall-Gesellschaft.

If the Hartmetall-Gesellschaft is unwilling or unable to perform further, the customer may, at his option, withdraw from the contract or reduce the delivery price, without prejudice to any claims for damages or expenses. The same shall apply if the subsequent performance fails, is unreasonable to the customer or is delayed beyond reasonable periods for reasons for which the Hartmetall-Gesellschaft is responsible.

The customer’s right of withdrawal is excluded if he is unable to return the received service and this is not due to the fact that the return is impossible due to the nature of the received service, is to be held responsible by the Hartmetall-Gesellschaft or the defect only became apparent during the processing or remodeling of the products. The right of withdrawal is further excluded if the Hartmetall-Gesellschaft is not responsible for the defect and if the purchaser has to pay compensation instead of the return.

No claims for defects resulting from natural wear and tear, in particular in the case of wear parts, improper handling, assembly, use or storage or improperly executed changes or repairs of the products by the customer or third parties shall be made. The same shall apply to defects which are attributable to the customer or which are due to a technical cause other than the original defect.

Claims of the customer for compensation of expenses instead of compensation for damages instead of performance are excluded, unless the expenses would have been incurred by a reasonable third party.
The Hartmetall-Gesellschaft does not assume any warranties, in particular any warranties of quality or durability, unless otherwise agreed in writing in individual cases.

The limitation period for the customer’s claims for defects is one year, unless a consumer goods purchase takes place at the end of the supply chain (the end customer is a consumer). If the defective products have been used in accordance with their normal use for a building and have caused its defect or if it is a defect in a building, the limitation period shall be five years. The limitation period of one year also applies to tort claims based on a defect in the products. The limitation period begins with the delivery of the products. The limitation period of one year does not apply to the unlimited liability of the Hartmetall-Gesellschaft for damages resulting from the breach of a warranty or from injury to life, body or health, for wilful intent and gross negligence and for product defects or insofar as the Hartmetall-Gesellschaft has assumed a procurement risk. A statement by the Hartmetall-Gesellschaft on a claim for defects asserted by the customer shall not be regarded as entering into negotiations on the claim or the circumstances justifying the claim, provided that the claim for defects is rejected by the Hartmetall-Gesellschaft in its entirety.

11. Liability of the Hartmetall-Gesellschaft

Hartmetall-Gesellschaft is fully liable for damages resulting from the breach of a warranty or from injury to life, body or health. The same applies to intent and gross negligence or insofar as the Hartmetall-Gesellschaft has assumed a procurement risk. Hartmetall-Gesellschaft is only liable for slight negligence if essential obligations arising from the nature of the contract and which are of particular importance for the achievement of the purpose of the contract are violated. In the event of breach of such obligations, delay and impossibility, the liability of Hartmetall-Gesellschaft is limited to such damages that must typically be expected to occur within the scope of this contract. A mandatory legal liability for product defects remains unaffected.
Insofar as the liability of the Hartmetall-Gesellschaft is excluded or limited, this also applies to the personal liability of the employees, employees, employees, representatives and vicarious agents of the Hartmetall-Gesellschaft.

12. Product Liability

The customer shall not modify the products, in particular he shall not modify or remove existing warnings about the dangers of improper use of the products. In the event of a breach of this obligation, the purchaser shall indemnify the Hartmetall-Gesellschaft internally against third party product liability claims, unless the purchaser is not responsible for the change of the products.
If the Hartmetall-Gesellschaft is induced to a product recall or a product warning due to a product defect, the customer shall cooperate to the best of his ability in the measures which the Hartmetall-Gesellschaft deems necessary and appropriate and shall support the Hartmetall-Gesellschaft in this regard, in particular in determining the required customer data. The customer is obliged to bear the costs of the product recall or warning, unless he is not responsible for the product defect according to product liability principles. Further claims of the Hartmetall-Gesellschaft remain unaffected.

The customer shall immediately inform the Hartmetall-Gesellschaft in writing about the risks arising from the use of the products and possible product defects.

13. Force Majeure

If the Hartmetall-Gesellschaft is prevented by force majeure from fulfilling its contractual obligations, in particular with regard to the delivery of the products, the Hartmetall-Gesellschaft shall be released from the obligation to perform for the duration of the impediment and a reasonable start-up period, without being obliged to pay compensation to the customer. The same shall apply if the Hartmetall-Gesellschaft is unreasonably hindered or temporarily rendered impossible by unforeseeable circumstances beyond the control of the Hartmetall-Gesellschaft, in particular by industrial action, administrative measures, energy shortage, delivery impediments at a supplier or substantial operational disruptions. This also applies if these circumstances occur with a sub-supplier. This also applies if the Hartmetall-Gesellschaft is already in default. Insofar as the Hartmetall-Gesellschaft is released from the delivery obligation, the Hartmetall-Gesellschaft shall refund any intermediate services provided by the customer.

The Hartmetall-Gesellschaft is entitled to withdraw from the contract after a reasonable period of time if such an obstacle lasts for more than three months and the Hartmetall-Gesellschaft no longer has any interest in the performance of the contract as a result of the obstacle. At the customer’s request, the Hartmetall-Gesellschaft shall declare after the expiry of the period whether it will exercise its right of withdrawal or deliver the products within a reasonable period of time.

14. Retention of title

The delivered products shall remain the property of Hartmetall-Gesellschaft until the full payment of the delivery price and all receivables owed by the Hartmetall-Gesellschaft from the business relationship against the customer. The customer is obliged to treat the products subject to retention of title with care for the duration of the retention of title.
The customer is only permitted to sell the products subject to retention of title in the ordinary course of business. In addition, the purchaser is not entitled to pledge the products subject to retention of title, to transfer them as security or to make other dispositions endangering the property of the Hartmetall-Gesellschaft. In the event of seizures or other interventions by third parties, the customer shall immediately notify the Hartmetall-Gesellschaft in writing and provide all necessary information, inform the third party of the property rights of the Hartmetall-Gesellschaft and cooperate in the measures taken by the Hartmetall-Gesellschaft to protect the products subject to retention of title. Insofar as the third party is unable to pay the Hartmetall-Gesellschaft the legal and extrajudicial costs of enforcing the To reimburse the Hartmetall-Gesellschaft’s property rights, the customer is obliged to compensate the Hartmetall-Gesellschaft for the resulting loss, unless the customer is not responsible for the breach of duty.

The customer assigns the receivables from the resale of the products with all ancillary rights to the Hartmetall-Gesellschaft, regardless of whether the products subject to retention of title are resold without or after processing. The Tungsten Carbide Company has already accepted this assignment. If an assignment is not permissible, the customer hereby instructs the third party debtor to make any payments only to the Hartmetall-Gesellschaft. The customer is revocably authorised to collect the receivables assigned to the Hartmetall-Gesellschaft on behalf of the Hartmetall-Gesellschaft in his own name. The amounts recovered shall be paid immediately to the Hartmetall-Gesellschaft. Hartmetall-Gesellschaft may revoke the purchaser’s authorization to collect and the purchaser’s authorization to resell for good reason, in particular if the purchaser does not properly fulfil his payment obligations towards the Hartmetall-Gesellschaft, is in default of payment, ceases to make payments or if the opening of insolvency proceedings or similar proceedings the Purchaser applies for debt settlement on the Purchaser’s assets or the reasoned application of a third party for the opening of insolvency proceedings or similar proceedings for debt settlement on the Purchaser’s assets is rejected for lack of assets. In the event of a global assignment by the customer, the claims assigned to the Hartmetall-Gesellschaft shall be expressly excluded.

At the request of the Hartmetall-Gesellschaft, the customer is obliged to inform the third party debtor of the assignment without delay and to provide the Hartmetall-Gesellschaft with the information and documents required for collection.

In the event of non-contractual conduct, in particular in the event of default of payment by the customer, the Hartmetall-Gesellschaft shall be entitled, without prejudice to its other rights, to withdraw from the contract after expiry of a reasonable grace period set by the Hartmetall-Gesellschaft. The customer shall immediately grant the Hartmetall-Gesellschaft or its agent access to the products subject to retention of title and hand them over. After timely notice, the Hartmetall-Gesellschaft may otherwise use the products subject to retention of title in order to satisfy its due claims against the customer.

The processing or transformation of the products subject to retention of title by the customer shall always be carried out for the Hartmetall-Gesellschaft. The purchaser’s right of claim to the products subject to retention of title shall continue to apply to the processed or transformed item. If the products are processed or remodelled with other goods not belonging to the Hartmetall-Gesellschaft, the Hartmetall-Gesellschaft acquires co-ownership of the new item in proportion to the value of the delivered products to the other processed goods at the time of processing or remodeling. The same shall apply if the products are combined or mixed with other objects not belonging to the tungsten carbide company in such a way that the tungsten carbide company loses its full ownership. The customer keeps the new items for the Hartmetall-Gesellschaft.

The Hartmetall-Gesellschaft shall, at the request of the customer, release the securities to which it is entitled insofar as the realizable value of the securities, taking into account normal bank valuation haircuts, exceeds the receivables of the Hartmetall-Gesellschaft from the business relationship with the customer by more than 10%. The valuation shall be based on the invoice value of the products subject to retention of title and the nominal value of receivables. The selection of the items to be released is the responsibility of the Hartmetall-Gesellschaft.
In the case of deliveries to other jurisdictions in which this retention of title rule does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants the Hartmetall-Gesellschaft a corresponding security right. If further measures are required for this purpose, the customer shall do everything to grant the Hartmetall-Gesellschaft such a security right without delay. The purchaser shall participate in all measures which are necessary and conducive to the effectiveness and enforceability of such security rights.

15. Confidentiality

The parties are obliged to keep confidential all information which becomes available to them and which is designated as confidential or otherwise identifiable as a business or business secret for a period of five years from the date of delivery and not to record, pass on or use it, except where necessary for the business relationship.
The obligation of secrecy shall not apply if it is proven that the information of the receiving party was already known to the public before the contractual relationship was established or was generally known or available to the public before the contractual relationship was established or became known to the public without the fault of the receiving party. The burden of proof shall be borne by the receiving party.
The parties shall ensure, by means of appropriate contractual arrangements with their employees and agents, in particular their freelancers and contractors and service providers, that they also refrain from any use, disclosure or unauthorised recording of such business and industrial secrets for a period of five years from the date of delivery.

16. Data protection

The parties are obliged to comply with the statutory provisions on data protection, in particular the EU General Data Protection Regulation (“GDPR”) in the execution of the contract and to require their employees to comply with these provisions.

The parties process the personal data received (names and contact details of the respective contact persons) exclusively for the fulfilment of the contract and will protect them by means of security measures (Art. 32 GDPR) that are adapted to the current state of the art. The parties are obliged to delete the personal data as soon as their processing is no longer necessary. Any statutory storage obligations remain unaffected by this.

Should a party process personal data on behalf of the other party in the course of the performance of the contract, the parties shall conclude an agreement on the processing of the contract in accordance with Art. 28 GDPR.

17. Final provisions

The transfer of rights and obligations of the customer to third parties is only possible with the prior written consent of the Hartmetall-Gesellschaft.
Gegenansprüche des Bestellers berechtigen ihn nur dann zur Aufrechnung, wenn sie rechtskräftig festgestellt oder unstreitig sind. Ein Zurückbehaltungsrecht kann der Besteller nur geltend machen, wenn sein Gegenanspruch auf demselben Vertragsverhältnis beruht.

The law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG), shall apply to the legal relations of the Purchaser with the Hartmetall-Gesellschaft.

If the customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a public special fund, the exclusive place of jurisdiction for all disputes arising from the business relationship between the hard metal company and the customer is the seat of the hard metal company. Hartmetall-Gesellschaft is also entitled to take legal action at the customer's registered office and at any other permissible place of jurisdiction. Arbitration clauses are contradicted.

The place of fulfillment for all services of the customer and the Hartmetall-Gesellschaft is the seat of the Hartmetall-Gesellschaft, unless otherwise agreed.
The contract language is German.

Should any provision of these General Conditions of Sale be or become wholly or partially ineffective or unenforceable or should there be a loophole in these General Conditions of Sale, this shall not affect the validity of the remaining provisions. Instead of the ineffective or unenforceable provision, the effective or enforceable provision that comes closest to the purpose of the ineffective or unenforceable provision shall apply. In the event of a loophole, the provision shall be deemed to have been agreed which corresponds to what would have been agreed according to the purpose of these General Conditions of Sale, provided that the parties had considered the matter from the outset.

December 2019