PPM High Purity Metals GmbH
This is a non-binding English translation of the German-language "Allgemeine Geschäftsbedingungen der PPM High Purity Metals GmbH" provided for convenience. In the event of any discrepancy, the German version is controlling (see Clause 27.4).
1.1 These General Terms and Conditions, hereinafter "GTC", apply to all offers, sales, deliveries and other services of PPM High Purity Metals GmbH, Hoppenstedter Straße 6, 38835 Osterwieck, Germany, hereinafter "PPM", in particular for the sale and delivery of high-purity metals, semi-finished products, substances, mixtures, by-products, samples and other goods. Ancillary services such as packaging, documentation, shipping preparation and product-related information are provided only in connection with a sale of goods, unless expressly agreed otherwise in an individual case.
1.2 These GTC apply exclusively to traders within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. PPM does not enter into contracts with consumers on the basis of these GTC.
1.3 These GTC also apply to future business with the customer, provided they are effectively incorporated at the time the contract is concluded. They apply independently of PPM's General Terms and Conditions of Purchase, hereinafter "GTCP". The GTC apply exclusively to the extent PPM acts as seller or supplier; the GTCP apply exclusively to the extent PPM, as buyer or principal, procures goods or services. Neither set of terms displaces the other outside its respective substantive scope. For a contract involving mutual delivery or performance obligations, it is determined for each individual obligation which party is, in that respect, seller, supplier, buyer or principal, unless the parties agree on a prevailing individual arrangement.
1.4 Deviating, conflicting or supplementary terms and conditions of the customer do not become part of the contract unless PPM expressly agrees to their application, at least in text form. Unconditional performance, delivery or acceptance of a payment does not constitute acceptance of the customer's terms.
1.5 Individually negotiated agreements take precedence. Their content is governed by an agreement or confirmation issued by PPM, at least in text form. Mandatory statutory provisions remain unaffected.
2.1 PPM's offers are non-binding unless expressly designated as binding. Cost estimates, price indications, availability information and preliminary technical information are non-binding unless PPM expressly declares otherwise.
2.2 An order placed by the customer is deemed a binding offer to contract. A contract is concluded only upon PPM's order confirmation, at least in text form, upon execution of the delivery or service, or upon another unambiguous declaration of acceptance by PPM.
2.3 Automated acknowledgements of receipt confirm only that an order has been received and do not constitute acceptance.
2.4 Changes or supplements to an order, as well as collateral agreements, become effective only once confirmed by PPM, at least in text form.
2.5 The following order of precedence applies to the type and scope of the delivery or service owed:
2.6 In the event of contradictions, the higher-ranking document prevails. Specific provisions take precedence over general provisions.
2.7 PPM is entitled to make acceptance of an order contingent upon a credit check, export control review, sanctions screening, end-use verification, regulatory approval, advance payment, security or other objectively justified requirement.
3.1 The properties owed are governed exclusively by the expressly agreed specifications and PPM's order confirmation.
3.2 Information in catalogues, data sheets, sample analyses, brochures, on websites, in samples or other documents constitutes descriptions or reference values, unless expressly agreed as binding properties.
3.3 Information on purity, composition, dimensions, weights, grain sizes, shapes, surfaces, packaging, yields or other technical characteristics applies within the expressly agreed tolerances, or those customary in trade, production and the relevant measurement method.
3.4 The agreed test method, sampling procedure, and agreed rounding and detection limits are controlling for chemical analyses and test values. In the absence of an express agreement, the methods applied by PPM and suitable for the product apply.
3.5 The customer is responsible for the selection of the goods, the intended use, further processing and fitness for its specific purpose, unless PPM has expressly agreed that the goods are fit for a specific purpose.
3.6 Advice given by PPM does not relieve the customer of its own tests, trials, risk assessments and product-, application- and site-specific approvals. A guarantee requires an express declaration by PPM, at least in text form, and must be designated as a guarantee.
3.7 The customer may not use PPM's products for medical, pharmaceutical, nuclear, aerospace, military or other particularly safety-critical applications, unless PPM has expressly approved the specific intended use, at least in text form, before conclusion of the contract.
4.1 Samples and specimens serve exclusively for testing and evaluation. They do not constitute a guarantee that later series or batch deliveries will be identical in all respects, unless expressly agreed.
4.2 Special analyses, additional test certificates, customer-specific documentation and special sampling are owed only if expressly agreed in connection with a sale of goods.
4.3 The customer warrants that data, drawings and specifications provided by it may be lawfully used and do not infringe any third-party rights.
5.1 Prices are stated in the agreed currency plus statutory value added tax, customs duties, import charges and other public-law levies, unless expressly included in the price.
5.2 Unless agreed otherwise, prices for delivery are quoted according to the standard delivery term specified in Clause 11.3, excluding packaging, freight, insurance, and dangerous-goods, energy, small-quantity, analysis, documentation and other ancillary costs.
5.3 To the extent the price is based on metal, raw material, energy, freight, exchange-rate or other variable cost components, the price formula, price basis or reference specified in the offer or order confirmation is controlling.
5.4 If, in the case of a continuing obligation or a call-off delivery contract, there is no final price commitment, and the costs relevant for calculation change materially after conclusion of the contract and before the respective delivery, the parties shall negotiate a reasonable adjustment for deliveries not yet performed. If no agreement is reached within 14 calendar days of a request to negotiate made at least in text form, either party is entitled to terminate the affected, not yet performed part of the contract with immediate effect. Statutory rights arising from interference with the basis of the transaction (Störung der Geschäftsgrundlage) remain unaffected.
5.5 Additional services requested by the customer after conclusion of the contract are remunerated separately. This applies in particular to special packaging, additional analyses, certificates, documentation, expedited handling, re-labelling, storage, redirection or repeated delivery attempts.
6.1 Invoices are payable without deduction within the period stated in the offer or order confirmation. If no payment period is stated, the invoice amount is payable within 30 calendar days of receipt of the invoice and due date.
6.2 PPM may transmit invoices electronically. To the extent legally required or agreed, invoicing shall be in a permissible structured electronic format.
6.3 Payments shall be made exclusively to the account specified in the invoice. Employees, commercial agents, carriers and other third parties are not authorised to receive payments without express power of attorney.
6.4 The customer falls into default in accordance with the statutory provisions. In the event of default, PPM may demand statutory default interest, the statutory default lump sum and further default damages.
6.5 PPM is entitled to withhold outstanding deliveries or services if the customer is in default with due payments, or if it becomes apparent after conclusion of the contract that the payment claim is at risk due to the customer's inadequate financial capacity. Statutory rights remain unaffected.
6.6 The customer has rights of set-off and retention only in respect of undisputed, acknowledged or legally established counterclaims. This does not apply to counterclaims that stand in a legal relationship of reciprocity with PPM's claim. Mandatory statutory rights remain unaffected.
7.1 Delivery and performance dates are binding only if PPM has expressly confirmed them as binding. Non-binding statements indicate the anticipated period of delivery or performance.
7.2 Delivery periods commence only once all commercial and technical questions have been clarified, any required approvals, permits, security and advance payments have been received, and the customer's cooperation obligations have been fulfilled.
7.3 Subsequent change requests by the customer reasonably extend delivery and performance periods to the extent they affect procurement of materials, production, testing, documentation, packaging or transport.
7.4 Partial deliveries and partial performance are permissible to the extent reasonable for the customer. They may be invoiced separately.
7.5 If PPM falls into default, the customer has the statutory rights. Rescission or damages in lieu of performance require a reasonable grace period, unless dispensable by law.
8.1 Force majeure is an event originating from outside, unforeseeable at the time the contract was concluded, and unavoidable even with reasonable precautions and measures reasonably expected, which prevents PPM or a material upstream supplier temporarily or permanently from performing.
8.2 This may include, in particular, natural disasters, war, embargoes, sovereign acts of state, lawful industrial action, pandemics with concrete effects, far-reaching failures of critical infrastructure, significant transport disruptions, and cyberattacks, provided the requirements of Clause 8.1 are met.
8.3 PPM will inform the customer without undue delay of the occurrence and anticipated effects. Performance obligations are suspended for the duration and to the extent of the direct effects. Delivery periods are extended accordingly.
8.4 If the impediment continues for more than 60 calendar days, or if the purpose of the contract can no longer be achieved, either party may terminate or rescind the not yet performed part of the contract. Services already rendered in accordance with the contract shall be remunerated.
9.1 For deliveries by weight, the net weight determined by PPM using a suitable scale is controlling, unless a deviating official or contractual weighing has been agreed.
9.2 For arsenic, an excess delivery is permissible up to the greater of the following quantities:
- 2.5 g; or
- 1 percent of the agreed quantity.
A short delivery is permissible up to the greater of the following quantities:
- 0.1 g; or
- 1 percent of the agreed quantity.
A deviating tolerance may be agreed in the offer or order confirmation.
9.3 The quantity actually delivered is invoiced, unless a lump-sum price has been agreed.
10.1 PPM determines the type of packaging, shipping route and means of transport taking into account the goods, statutory requirements, safety and cost-effectiveness, unless otherwise agreed.
10.2 Aluminium pallets used by PPM remain the property of PPM, unless expressly agreed otherwise. They shall be returned or made available in reusable condition and in good time, in accordance with the order confirmation or a separate customer agreement. Details regarding place of return, return period, transport, deposit, remuneration or compensation for loss and damage are set out in the respective agreement. Other reusable or loan packaging is used only pursuant to an express agreement.
10.3 The customer shall provide PPM in good time with all information required for shipment, import, use and safe handover. The customer bears additional costs and delays resulting from incomplete or incorrect information to the extent it is responsible therefor.
10.4 For dangerous goods, the customer shall ensure that the named recipient is authorised to accept the shipment, reachable, and organisationally and technically able to safely receive it.
11.1 The delivery term and named place are set out in the offer or order confirmation.
11.2 If an Incoterms® term is agreed, the Incoterms® 2020 of the International Chamber of Commerce (ICC) apply. A later version applies only if expressly agreed, at least in text form.
11.3 In the absence of a deviating agreement, delivery is made FCA at the premises of PPM High Purity Metals GmbH, Hoppenstedter Straße 6, 38835 Osterwieck, Germany, Incoterms® 2020. Deviating delivery terms, in particular EXW, CPT, CIP, DAP, DPU or DDP, may be expressly agreed in the offer or order confirmation for the respective contract.
11.4 The agreed Incoterms® clause governs only the delivery obligations covered by it, as well as the allocation of costs and risk. Transfer of title, payment, defect rights, liability, choice of law and jurisdiction are governed by the contract, these GTC and the applicable law.
11.5 If shipment or acceptance is delayed at the customer's request or for reasons within the customer's sphere of responsibility, risk passes to the customer upon notification of readiness to ship or readiness for acceptance. PPM may store the goods at the customer's cost and risk.
12.1 Performance of the contract is subject to the proviso that it is not precluded by applicable national, EU or other binding provisions of foreign trade, export control, embargo, sanctions or customs law.
12.2 The customer shall provide PPM in good time with accurate and complete information on the end recipient, country of destination, end use, transport route and other circumstances relevant to export control, and shall submit any required evidence and end-use statements.
12.3 The customer may not, directly or indirectly, export, re-export, transfer, broker, make available or use goods, technologies, documents or services of PPM contrary to applicable export control or sanctions provisions.
12.4 PPM is entitled to suspend performance or rescind the contract to the extent a required permit is not granted, not granted in time, or granted only subject to unreasonable conditions, or performance would be legally impermissible. This does not apply to the extent PPM is responsible for the impediment.
12.5 The customer bears customs duties, import charges and the costs of regulatory procedures to the extent they are allocated to its sphere of responsibility under the agreed delivery term or the contract.
13.1 PPM provides statutorily required safety data sheets, labelling and product-related safety information in accordance with the applicable provisions.
13.2 The customer shall observe safety data sheets, exposure scenarios, labelling, restrictions on use and other safety instructions, and shall pass on required information along its supply chain.
13.3 The customer is responsible for safe storage, handling, processing, transport, disposal and use from the passing of risk. It shall carry out required risk assessments and implement suitable technical, organisational and personal protective measures.
13.4 The customer shall inform PPM without undue delay of any product-related safety risks, unusual reactions, regulatory measures, safety-related complaints or circumstances that could become known to it and that might necessitate a warning, corrective action or a recall.
13.5 Unauthorised changes to labelling, packaging, safety information or traceability features are not permitted to the extent they would impair statutory requirements, product safety, traceability or PPM's legitimate interests.
14.1 If the contract constitutes a commercial transaction for both parties, the customer shall inspect the goods without undue delay after delivery in the ordinary course of business and shall give notice of recognisable defects without undue delay. Hidden defects shall be notified without undue delay after their discovery.
14.2 The notice of defect must state the nature and extent of the defect, the goods, batch and quantity affected, the delivery documents and, to the extent reasonable, suitable evidence. The goods shall be kept separately, safely and unaltered pending clarification.
14.3 If the customer fails to carry out a proper inspection or to give timely notice, the statutory legal consequences apply. In the event of fraudulent concealment, PPM may not rely on this.
14.4 Complaints regarding weight, quantity or externally recognisable transport condition shall be noted on the transport documents upon handover, to the extent reasonable. Statutory rights remain unaffected.
15.1 In the event of defects, the customer has the statutory rights, subject to the following provisions.
15.2 PPM may, initially, at its own discretion, either remedy the defect or deliver a defect-free replacement. The choice must not be disproportionate. The customer shall give PPM reasonable opportunity for inspection and cure.
15.3 If cure fails, is unreasonable, or is seriously and finally refused by PPM, the customer may, subject to the statutory requirements, reduce the price or rescind the contract. Damages are governed by Clause 17.
15.4 Defect claims do not exist in the case of only immaterial deviation from the agreed properties, natural variance within agreed tolerances, unsuitable or improper use, storage, transport or processing, mixing with unsuitable substances, normal wear and tear, or interventions by the customer or third parties, to the extent PPM is not responsible for the defect.
15.5 Returns require prior coordination with PPM. Hazardous substances, contaminated goods and opened containers may only be returned following prior safety clearance and in compliance with transport regulations.
16.1 The limitation period for defect claims is one year from delivery. This is the standard period provided for new goods in commercial dealings as a general contract term. A further shortening or exclusion may only be agreed individually and within the statutory limits.
16.2 Clause 16.1 does not apply:
17.1 PPM is liable without limitation:
17.2 In the case of a slightly negligent breach of a material contractual obligation (an obligation the fulfilment of which is a precondition for the proper performance of the contract in the first place, and on the observance of which the customer may regularly rely), PPM is liable only for the damage typical for the contract and foreseeable at the time the contract was concluded.
The parties agree that this typically foreseeable damage corresponds at most to the following amounts:
PPM's liability for slight negligence is limited to these amounts. If the customer considers these coverage amounts insufficient in view of its specific application risk, PPM will, at the customer's express request, examine whether and on what terms an increase of the coverage amount is possible by taking out supplementary insurance (e.g. excess/umbrella insurance), against the customer bearing the additional premium costs.
17.3 In all other respects, PPM's liability for slight negligence is excluded.
17.4 The limitations of liability apply accordingly for the benefit of PPM's legal representatives, employees and vicarious agents.
17.5 To the extent PPM provides technical information, recommendations or advice without being contractually obliged to do so, this is provided free of charge and with liability for slight negligence excluded. Clauses 17.1 and 17.2 remain unaffected.
18.1 PPM retains title to delivered goods until full payment of all present and future claims arising from the respective contract and the ongoing business relationship.
18.2 The customer may process, combine and resell goods subject to retention of title in the ordinary course of business, as long as it is not in default of payment. Pledging or transfer by way of security is not permitted.
18.3 Processing or transformation is carried out for PPM as manufacturer, without obligating PPM. In the event of processing, combination or mixing with other items, PPM acquires co-ownership in proportion to the invoice value of the goods subject to retention of title relative to the value of the new item at the time of processing, combination or mixing.
18.4 The customer hereby assigns to PPM, in advance, claims arising from the resale of the goods subject to retention of title or of the new item, in the amount of the invoice value of the goods subject to retention of title. PPM accepts the assignment. The customer remains authorised to collect the claim as long as it meets its obligations.
18.5 In the event of conduct contrary to the contract, in particular default in payment, PPM may, subject to the statutory requirements, demand surrender of the goods subject to retention of title. A demand for surrender does not automatically constitute rescission.
18.6 If the realisable value of the security exceeds the secured claims by more than 10 percent, PPM will, upon request, release security of its choice.
19.1 PPM retains ownership, copyright and other rights in offers, analyses, calculations, formulations, processes, samples, drawings, specifications, software, documentation and other documents.
19.2 The customer may use these exclusively for the purpose envisaged by the contract. Reproduction, modification, reverse engineering, disclosure or making accessible to third parties requires PPM's prior consent, unless mandatorily required for contractual use or legally permitted.
19.3 Pre-existing know-how, processes, tools, software, data and rights of PPM remain with PPM.
19.4 To the extent PPM delivers goods according to the customer's instructions, drawings or specifications, the customer shall ensure that no third-party rights are infringed. It shall indemnify PPM against justified third-party claims to the extent the infringement is based on its specifications and PPM neither knew of the infringement nor should have recognised it.
20.1 Both parties shall treat as confidential any non-public commercial, technical, operational and other confidential information of the respective other party, and shall use it only for the performance of the contract.
20.2 Information may be made accessible only to such employees, advisors and approved subcontractors who require it and who are appropriately bound to confidentiality.
20.3 The obligation does not apply to information that can be demonstrated to have already been lawfully known, independently developed, lawfully obtained from third parties, publicly known without breach of duty, or required to be disclosed pursuant to a statutory or regulatory obligation.
20.4 The obligations continue for five years after termination of the contract. Trade secrets shall be protected for as long as they meet the statutory requirements of a trade secret.
20.5 The customer may use or publish the company name, trademarks, logos, product names or the business relationship with PPM as a reference only with PPM's prior consent, at least in text form.
21.1 The parties shall process personal data in accordance with the applicable data protection law.
21.2 Information on data processing by PPM is contained in the Privacy Policy of PPM High Purity Metals GmbH in its respective current version.
21.3 If the customer is given access to PPM's systems, data or information, it may use these only for the intended purpose, through authorised persons and in compliance with PPM's security requirements.
21.4 Information security or data protection incidents that affect or may affect PPM's data, systems, access, deliveries or business processes shall be reported to PPM without undue delay, and at the latest within 24 hours of becoming aware of them, initially as an early warning.
The early warning must contain the facts known at that time, the data, systems or services potentially affected, the recognisable effects, and any immediate measures already initiated.
At the latest within 72 hours of becoming aware, the report shall be updated based on the information then available. Information not yet available shall be provided without undue delay. The customer shall keep PPM informed of material new findings and countermeasures until processing is complete.
Statutory reporting, information and notification obligations of the parties remain unaffected.
22.1 The customer shall comply with all provisions applicable to it, the transaction, the product and the end use, in particular regarding anti-corruption, anti-money laundering, competition, human rights, occupational safety, the environment, chemicals, export control and sanctions.
22.2 The customer may not offer, promise, grant, demand or accept improper advantages in connection with business with PPM.
22.3 In the event of a serious or repeated compliance violation, PPM may, subject to the statutory provisions, terminate the contract or rescind parts not yet performed, to the extent that continuing the contract is unreasonable for PPM.
23.1 The statutory rights to terminate or rescind remain unaffected.
23.2 PPM may terminate a contract for good cause or rescind parts not yet performed, in particular if:
23.3 A grace period is dispensable to the extent the breach of duty is not remediable, remedy is finally refused, or waiting is unreasonable.
24.1 The customer may assign claims against PPM only with PPM's prior consent, at least in text form. Statutory provisions on the validity of assignments in commercial dealings remain unaffected.
24.2 The customer may transfer the contract, or material rights and obligations arising from it, to third parties only with PPM's prior consent.
24.3 PPM may assign claims arising from the business relationship to financing, factoring or credit insurance companies.
25.1 If the customer's relevant registered office is in the Federal Republic of Germany or in another member state of the European Union (EU), the law of the Federal Republic of Germany applies exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded in this case.
25.2 If the customer's relevant registered office is outside the European Union (third countries), the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies to the contract.
25.3 Legal questions not falling within the substantive scope of the CISG (in particular the validity of the contract, questions of limitation of liability, interest, and retention of title) or not conclusively governed by the CISG are, within the scope of Clause 25.2, additionally and exclusively governed by the law of the Federal Republic of Germany.
25.4 The application of conflict-of-laws provisions of private international law that would lead to the application of another legal system is excluded in all cases.
26.1 The place of performance for deliveries is the place determined by the agreed delivery term. The place of performance for payments is PPM's registered office.
26.2 To the extent legally permissible, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is PPM's registered office.
26.3 PPM is entitled to also sue the customer at its general place of jurisdiction or at any other legally permissible place of jurisdiction.
27.1 Amendments and supplements to the contract should, for evidentiary purposes, be made at least in text form. Individual agreements and mandatory statutory formal requirements remain unaffected.
27.2 Should any provision of these GTC be or become wholly or partially invalid, unenforceable or not incorporated into the contract, the validity of the remaining provisions shall remain unaffected. The statutory provisions shall take their place.
27.3 PPM's rights are not forfeited merely because PPM does not exercise them, or does not exercise them immediately.
27.4 To the extent a foreign-language version is provided, the German version shall be controlling in the event of any discrepancies, unless expressly agreed otherwise.
27.5 The version of these GTC incorporated at the time the contract was concluded is controlling. A later publication does not alter contracts already concluded, unless the parties agree otherwise.