Storage of Commodities
§ 1 Scope of application
(1) These Standard Terms and Conditions (hereinafter “Terms and Conditions”) shall apply to all services and offers provided by METLOCK GmbH (hereinafter “METLOCK”) with respect to the storage of technology metals, precious metals, rare earth metals, chemicals and similar commodities (hereinafter “Commodities”). The Terms and Conditions constitute an integral part of any and all agreements entered into by METLOCK with its counterparties (hereinafter “Customer(s)”) for the purpose of storage of Commodities. (2) Standard terms and conditions of the Customer shall not apply to the extent they conflict with or deviate from these Terms and Conditions. The foregoing shall apply even in those cases where METLOCK has not expressly disclaimed the application thereof or has taken reference to any document containing the standard terms and conditions of the Customer. (3) These Terms and Conditions shall apply to any and all future agreements between METLOCK and the Customer regarding the storage and management of Commodities.
§ 2 Execution of Contract
(1) To the extent not otherwise expressly indicated, the quotes and price information provided by METLOCK in brochures, advertisements and other promotional material are non-binding and subject to change. (2) The legal relationship between METLOCK and the Customer shall be governed by the mutual agreement for the storage of Commodities (the “Storage Agreement”), including these Terms and Conditions. The Storage Agreement constitutes the entire agreement between METLOCK and the Customer with respect to the storage of Commodities. No ancillary oral agreements exist.
§ 3 Terms of Payment
For the Customer’s storage the Customer shall pay a fee (the “Storage Fee”), the amount of which shall be stipulated in the Storage Agreement. The assessment basis for the Storage Fee shall be the market prices of all assets held in storage. The Storage Fee will be charged quarterly to the day in arrears and is payable by the Customer immediately upon receipt of invoice. The effective date for setting of the market price for the relevant quarter shall in each case be the last day of the quarter. In the year of account opening, the Storage Fee will be charged pro rata against the remaining days of the quarter. In the event of a sale of Commodities back to TRADIUM GmbH, the storage costs incurred up to such time shall be invoiced up to the date of receipt of the repurchase agreement.
§ 4 Storage and Physical Delivery
(1) The Commodities are stored in a high-security bonded warehouse near Frankfurt am Main belonging to METLOCK. An inspection is possible only after consultation and in the presence of security personnel. The bonded warehouse is insured and accessible only by authorised staff. (2) METLOCK will provide the Customer with a Customer’s storage statement indicating the depot. (3) The Customer may during normal business hours request METLOCK to deliver the Commodities owned by the Customer. All the delivery-related costs, including, e.g., applicable taxes, duties, transportation costs, insurance or other charges shall be borne by the Customer. METLOCK will bill the Customer for the costs incurred immediately. The invoice amount is due and payable immediately. The relevant Commodities will be delivered only after the Customer has paid such costs. (4) The Customer may also request the return of its Commodities at the place of storage subject to a deployment period of five (5) days for METLOCK. In that case, METLOCK will provide the Commodities for collection during normal business hours. Costs and charges incurred as a result shall be borne by the Customer. (5) At the Customer’s request, his or her Commodities may be shipped to another warehouse specified by the Customer in Germany or abroad, in whole or in part, at his or her own cost and risk. If the Customer commissions METLOCK to arrange the relocation, METLOCK will charge the Customer for the resulting costs. (6) The order for delivery, shipment or return of the Customer’s Commodities shall include the order for customs clearance, if, without this, the delivery, dispatch or release cannot be executed. (7) For the customs clearance, METLOCK will charge the actual costs incurred plus an extra fee.
§ 5 Statement of Accounts
(1) Available on request, the Customer shall receive an annual statement of his or her Commodities stock in the warehouse of METLOCK and also an invoice for any outstanding invoice amounts (the “Statement of Accounts”). (2) The Statement of Accounts will be sent out at the beginning of each year. (3) The Customer may request that METLOCK send the Statements of Accounts more frequently against a reasonable administrative fee.
§ 6 Liability
METLOCK is liable for the services it provides (§ 4) in accordance with statutory provisions. In cases where METLOCK is liable for any loss or damage to the Commodities, it shall pay compensation therefor.
§ 7 Termination of Storage Agreement
(1) METLOCK and the Customer may terminate the Storage Agreement in writing at any time subject to one (1) month’s notice for any reason. (2) In the event of a return by selling stored Commodities back to TRADIUM GmbH, the Storage Agreement shall terminate promptly as of the date of receipt of the repurchase agreement. (3) The right of termination without notice for good cause (§ 314 German Civil Code (BGB)) remains unaffected. Good cause shall lie for METLOCK including, without limitation, where (a) the Customer is in default of payment of the Storage Fee for more than two (2) weeks and fails to pay despite a grace period having been set and the threat of termination; (b) the Customer is insolvent or overindebted, insolvency proceedings have been instituted or an application has been filed to institute insolvency proceedings against his or her assets or such application has been rejected for lack of assets. If on the effective date of termination there are still Commodities of the Customer in the bonded warehouse of METLOCK, these will be made available to the Customer for collection. The Customer shall assume the costs for the appropriate charges, specifically VAT and customs. The Customer fails to collect the Commodities within a period of four (4) weeks after notification of their availability, METLOCK may put the Commodities of the Customer back into storage and put a lien on such Commodities until the Customer has paid METLOCK the outstanding costs and the costs resulting from returning the Commodities into storage. The Customer’s restitution claims under § 4 (4) sentence 1 under the Storage Agreement pursuant to § 4 (1) shall remain unaffected.
§ 8 Information on Risk and Liability
The services provided by METLOCK extend to the storage of Commodities only. METLOCK does not provide any financial services, investment advice or asset management services.
§ 9 Data Protection
(1) The personal data recorded in the execution of this Agreement will be collected, processed and used by METLOCK in accordance with the German Federal Data Protection Act (BDSG) and the German Teleservices Data Protection Act (TDDSG) in order to perform its obligations under the Storage Agreement. This data may also be transmitted to carefully selected companies within the meaning of § 11 BDSG for the purpose of credit checks. (2) The personal data will be disclosed only to those service partners involved in the performance and settlement of the contract, such as the carriers engaged for delivery and banks instructed with payment issues. In this respect, the scope of the disclosure of personal data is limited to the necessary minimum. (3) By disclosing its personal data to METLOCK, the Customer consents to the collection, processing and use of personal data in accordance with the above privacy statement.
§ 10 Governing law and jurisdiction
(1) This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. (2) To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship between the Customer and METLOCK shall be Frankfurt am Main. In business dealings with consumers, the place of jurisdiction shall be determined by the relevant statutory provisions.
§ 11 Miscellaneous
Should any provision of these Terms and Conditions or the Storage Agreement be or become invalid or unenforceable, either in whole or in part, this shall not affect the validity of the remaining provisions thereof. Instead of the invalid or partially invalid provision, the relevant statutory provision shall apply. The foregoing shall also apply in the case of any omissions. § 139 BGB shall not apply.