Baran Refractory Solutions LLC
General Terms and Conditions
Date: May 2025
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I. Scope of Terms and Conditions:
These general terms and conditions (the Terms) shall apply to all present and future business relations with the customer, unless the customer is a consumer. Offers, order confirmations, deliveries, performances, etc., provided by Baran Refractory Solutions LLC (the Company;) are based exclusively on these Terms. These Terms shall also apply to all future business relations, even if not explicitly re-confirmed. At the latest upon acceptance of the delivery, performance, etc., these Terms are considered to have been accepted. Any terms and conditions of the customer that deviate from, conflict with, or supplement these Terms, even if known, shall not be considered contractually valid unless expressly confirmed in writing by the Company.
II. Offers, Conclusion of Contract, and Prices
1. Offers and Order Confirmations: The Company offers and order confirmations determine the contractual obligations and the nature of the delivery, performance, etc. The scope of deliveries and performances is defined in final form in the Company order confirmation. Supplements, changes, etc., must be confirmed in writing or text form by the Company. Dimensions, weights, diagrams, and drawings for execution are only binding if expressly confirmed in writing.
2. Pricing and Validity: Unless otherwise specified, the Company offers
remain valid for 30 days from their dates. The prices listed in the order confirmation apply plus value-added tax at the applicable rate. The Company reserves the right to revoke as yet unaccepted offers if significant price changes of at least 5% occur in the raw material or auxiliary materials markets during this 30-day period.
3. Price Adjustments: The prices apply ex works. Additional deliveries, performances, etc., will be charged separately. If costs included in the price for raw and auxiliary materials, personnel, and, in particular, energy costs change, or if new costs accrue related to the fulfillment of deliveries, the Company reserves the right, within the framework of longer-term contractual relationships (with terms exceeding six months), to revise the pricing taking into account the changes in costs that have come about, subject to the principles of equitable discretion.
4. Minor Deviations: Customary and reasonable minor deviations in color, shape, dimensions, and weight shall not constitute quality defects.
5. Contract Conclusion: The contract is concluded subject to the correct and timely satisfaction of the Company's own requirements by its suppliers. This applies only in the event that the Company is not responsible for any relevant non-delivery, particularly in the case of the conclusion of a congruent cover transaction with its suppliers. The customer shall be informed without delay concerning non-availability of the performance. Payment made shall be reimbursed immediately.
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III. Property Rights and Examination of Delivery
If the customer provides documents, the customer assumes liability for their use so as not to violate any rights of third parties.
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IV. Period of Delivery and Performance
1. Delivery and Performance Period: The period of delivery and performance shall be agreed in writing. However, it shall not begin before all details of the execution are clarified and both parties agree on all terms of the contract, and refers to completion in the factory. Compliance with these conditions requires the timely fulfillment of the contractual obligations of the customer, in particular, the terms of payment and the preconditions to be created by the customer. If these prerequisites of the customer are not fulfilled in time, the period shall be extended for the Company accordingly. The time of delivery and performance shall be deemed to have been observed if the delivery, performance, etc., has left the Company registered office by the end of the time of delivery and performance or, in the event that the Company is prevented from dispatch or acceptance through no fault of its own, is ready for dispatch or acceptance at the Company registered office. In the case of deliveries, services, etc., on demand, these must be agreed in writing for each requisition.
2. Force Majeure: A reasonable extension of the delivery period shall also be granted if the Company is prevented from fulfilling its obligations by events for which it is not responsible, such as mobilization, war, civil unrest, natural disasters, riots, as well as interventions by sovereign measures, strikes, or lockouts, or due to the occurrence of unforeseen obstacles and events beyond the Company will or influence, even if they occur during a delay in
delivery, e.g., epidemic or pandemic-related business interruptions or
interruptions of the business or supply chain due to official or legal orders.
The same shall apply if official approvals or other approvals or information
required by the Buyer for the execution of the delivery are not received in
time; the same shall apply in the event of subsequent changes to the order by the Buyer. If the delivery, performance, etc., becomes impossible or
unreasonable for the Company, it may withdraw from the contract to the
extent that it has not yet been fulfilled. The customer shall have the same right with regard to deliveries, services, etc., which it can no longer reasonably be expected to accept due to the delays.
3. Delay Compensation: If the Company is in arrears with the delivery and/or performance through its own fault, the customer may, if it proves damages resulting from the delay, claim compensation of up to a maximum of 0.5% of the delivery value in arrears for each full week of delay, but no more than a total of 5% of the amount in arrears. Other or further compensation claims by the customer are ruled out in cases of delayed deliveries, even upon expiry of a grace period granted to the Company, unless the Company delay results from intent or gross negligence. The customer right to withdraw from the contract after fruitless expiry of a deadline set for the Company shall remain unaffected.
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V. Manufacturing and Shipping
1. Test Methods: The Company applies test methods that adhere to the
relevant international and national standards of the countries of origin,
including but not limited to:
• American National Standards (ASTM) and United States Federal
Standards: For products sourced from the USA.
• German Industrial Standards (DIN): For products sourced from Germany.
• Brazilian National Standards (ABNT NBR): For products sourced from
Brazil.
• Indian Standards (IS): For products sourced from India.
• Vietnamese National Standards (TCVN): For products sourced from
Vietnam.
• Chinese National Standards (GB): For products sourced from China.
The Company ensures that all products meet the applicable standards and
regulations of the origin country and any additional international standards
that may be relevant. Quality assurance is carried out through statistical
quality control measures performed at the Company registered office.
Customers are responsible for ensuring that the products comply with any
local regulations or standards in their country of use. The Company will
provide certificates of conformity upon request, detailing the standards met for each product.
2. Certificates: Certificates of material tests of any kind will only be issued by the Company if agreed in writing and on the basis of the statistical quality control carried out at the Company registered office. In case of doubt, only a certificate of works (ISO 9001) will be issued.
3. Quality Control: A quality control carried out does not replace the obligation to examine and give notice of defects. For the observance of legal, official, or other regulations and provisions of the Company deliveries, services, etc., the customer is responsible.
4. Proper Use and Storage: The customer shall be responsible for using the Company deliveries, services, etc., properly, storing them properly, if necessary, and protecting them from incompatible influences. Typical contractual wear and tear shall not constitute a breach of duty on the Company part. If the customer exports to other countries, including processing by the customer, the Company shall not be liable for the exportability of its deliveries, services, etc., and for the freedom to obtain permits and import into the customer export countries.
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VI. Inspection, Approval, and Dispatch
1. Transfer of Risk: The risk is transferred to the customer upon dispatch ex works. If dispatch is delayed through the fault of the customer, the risk shall pass to the customer from the day of readiness for dispatch. Deliveries,
services, etc., accepted prior to dispatch shall be deemed to have been manufactured in accordance with the agreed conditions.
2. Immediate Payment: If deliveries, performances, etc., which are available to the customer remain on the Company premises upon delivery or collection for reasons for which the Company is not responsible, then demands immediate payment in accordance with the agreed payment terms become. The deliveries, services, etc., are then at the expense and risk of the
customer. This shall not affect the Company's right to demand acceptance.
3. Dispatch at Customer Risk: Dispatch shall take place exclusively and
always at the risk and on behalf of the customer. Any claims for remuneration, commissions, storage charges, interest, etc., shall be presented or borne by the customer; in this respect, the customer shall always indemnify the Company from such claims, even if the Company is the sender.
VII. Billing and Payment
1. Weight Determination: Weight as determined by the Company shall be decisive for determining the weight of the deliveries, services, etc. In the case of packaging and loading, the weight shall be determined in the customary manner gross for net, i.e., the weight of the deliveries, services, etc., including packaging material shall be decisive. At the Company's discretion, the weight may alternatively be determined on the basis of the nominal weight of the packaging units.
2. Packaging Costs: The costs for packaging shall be borne by the customer. Disposable packaging shall not be taken back by the Company. Instead, the Company shall inform the customer of a third party who will treat the packaging in accordance with the statutory, official, or other rules and regulations.
3. Payment Terms: Invoices are due immediately and are to be paid immediately. The Company is not obligated to accept bills of exchange and checks. The payment shall only be deemed to have been made when, in the case of bills of exchange and checks, the redemption and final payment is made.
4. Default of Payment: Default of payment shall occur at the latest upon expiry of the set payment period without requiring a reminder or other prerequisites, unless it has already occurred before according to the law. The customer shall only be entitled to set off against a counterclaim of the customer which has become res judicata or is undisputed by the Company. The customer may only exercise a right of retention if their counterclaim is based on the same legal relationship.
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VIII. Retention of Title
1. Retention of Title: The Company reserves title to ownership of its deliveries, performances, etc., until all its claims from the contract or previous contracts or other legal relationships arising from the business relationship between the parties, in particular resulting from any current account balance, have been regulated.
2. Separate Storage or Return: In the event of delay of payment, substantial deterioration of the financial circumstances of the customer, opening of judicial or extrajudicial insolvency proceedings on the assets of the customer, the Company may, without withdrawing from the contract, at its discretion demand separate storage of the deliveries, services, etc., or return of the goods, or take possession of them itself or have them taken, whereby the costs incurred, in particular for return transport, shall be borne by the customer. The same shall apply if, after the delivery, performance, etc., the Company has reasonable doubts about the solvency or willingness of the customer to pay.
3. Use and Combination: The customer shall be entitled to use the deliveries, performances, etc., in the normal course of business operations as long as it is not in default of payment. If new items are created through processing, the Company shall acquire co-ownership of these items in the course of the processing. The ratio of the remuneration of the affected deliveries, services, etc., rendered by the Company to the value of the new items created by the combination at the time of their creation. The same shall apply accordingly in the case of a combination with items not belonging to the Company. In the cases of processing and combination, the customer shall keep the new items in storage for the Company.
4. Pledging and Seizure: The customer is not entitled to pledge the deliveries, performances, etc., or to assign them as security. Seizures by other creditors must be reported to the Company without delay.
5. Assignment of Claims: As long as the customer is not in default of payment, it is entitled to use the deliveries, services, etc., in the ordinary course of business. It hereby assigns to the Company already now any claims arising in this connection, regardless of whether they are transferred without or after processing and whether they are transferred to one or more buyers. The assigned claims serve as the Company's security in the amount of the value of the respective deliveries, services, etc., provided. In the event that the deliveries, services, etc., are handed over by the customer together with other items not belonging to the Company, whether without or after processing, the assignment of the claim shall only apply to the value of the Company deliveries, services, etc. The customer undertakes to inform the Company on request of the names of the third-party debtors and the amounts of the claims. Under the conditions stated in item 1, the Company shall be entitled to inform the third-party debtor of the assignment and to assert the assigned claim. The customer shall only be entitled to collect assigned claims as long as it fulfills its obligations to the Company. Cash amounts collected are immediately transferred to the Company property and must be stored separately. Insofar as the Company claims are due, the customer shall immediately transfer the collected amounts to the Company. The customer, however, is not entitled to dispose of such claims by assigning them to third parties.
6. Release of Securities: At the request of the customer, the Company is
obliged to release portions of the securities as selected by the customer if the value of securities held by the Company exceeds the claims by more than 20%.
7. Further Securities: If a granted security is not valid or is eliminated, and if the customer has also not granted further sufficient securities, the Company may at any time request further securities.
8. Duration of Retention of Title: The retention of title of ownership and the securities legally held by the Company shall remain valid until such time as full release from the contingent liabilities the Company has entered into in the interest of the customer shall be achieved.
IX. Warranty, Performance Disruptions, Breaches of Duty, Material and Legal Defects
1. Warranty Obligations: In the case of defects of materials items or work
performed, the Company undertakes warranty obligations provided that the applicable warranty conditions have been met by the customer or their
agents. The customer's duty to inspect and notify the Company of any defects follows the principles of Uniform Commercial Code (UCC) § 2-607, requiring timely examination and notification of nonconformities. Obvious defects must be reported in writing immediately upon discovery, and in any case before processing or installation takes place. Claims regarding weight, quantity, or external characteristics must be made no later than 14 days after receipt. Defects affecting physical or chemical composition must be notified upon discovery and prior to processing or installation. Once resale, processing, or installation occurs, defects that should have been reasonably identified cannot be claimed. No explicit guarantees regarding durability are provided, and any implied warranties are expressly disclaimed where legally permitted.
2. Defect Claims: Claims arising from any defects in the deliveries,
performances, etc., shall be assessed using internationally recognized
standards for sampling and quality control. Unless specifically agreed upon
statistical quality control measures apply, defect claims may only refer to the individual defective items. If statistical quality control has been agreed upon, it shall be performed in accordance with ASTM C703 (Standard Test Method for Thermal and Mechanical Properties of Refractories) and ISO 8656 (Sampling of Ceramic Materials). The quality assessment shall be conducted by a laboratory entrusted by the Company, with each party bearing the costs as individually incurred. A quality control process that yields a positive result, in which a customer representative was invited to participate, precludes subsequent complaints about the tested characteristics of the deliveries, performances, etc. Sampling for quality control shall follow ASTM and ISO standards, ensuring compliance with established methods for evaluating refractory materials.
3. Approval Inspection: If approval inspection by the customer has been
agreed upon, this shall be in the form of a statistical quality control at the factory; if the control detects only defects in individual samples that are still within the range of the agreed acceptable quality limit (AQL), they do not entitle the customer to issue a complaint. If the inspection reveals defects beyond the range of the AQL, the Company shall be obligated – as far as possible – to sort out and replace the defective items. This must be followed by a re-inspection. If defects are then once again detected that are beyond the range of the AQL, or if replacement of the defective items is not possible, the customer may refuse to accept delivery of the entire inspected lot. A statistical quality control with a positive result in which a representative of the customer was invited to participate precludes subsequent complaints relating to the tested characteristics of the deliveries, performances, etc. If the customer carried out an approval inspection in a form other than a statistical quality control, the Company may only issue complaints regarding defects that were not evident in the approval inspection.
4. Dispute Resolution: In case of disputes regarding compliance with agreed- upon chemical composition or physical properties of the materials, an opinion from an independent and qualified third-party expert shall prevail. Samples must be taken by the parties in common. The cost of the testing/investigation shall be borne by the losing party.
5. Defect Checks and Rework: If the Company performs, at the request of the customer, defect checks, replacement deliveries, or reworking and it is subsequently determined that the Company was not obligated to do so, the customer shall be obligated to pay for such actions under the usual conditions for orders.
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X. Limitations of Liability
1. Negligent Breaches: In cases of mildly negligent breaches of duty, the Company liability shall be limited to immediate, foreseeable, average damages typical for the contract according to the type of delivery, performance, etc., involved. This also applies to mildly negligent breaches of duty on the part of the Company legal representatives or agents.
2. Product Liability: The above limitations of liability shall not apply to customer claims arising from product liability.
3. Statute of Limitations: Customer claims for damages due to defects shall expire one year from the date of delivery, performance, etc.
4. Exclusions: The above limitations of liability, even beyond this section, do not apply in cases of intent, gross negligence, bodily harm, damage to health, or loss of life. The exclusions also do not affect the customer’s rights under Uniform Commercial Code (UCC) § 2-607 and § 2-714, which provide for defect-related claims and reasonable costs of repair or replacement. The customer may seek recovery for nonconforming goods, including necessary expenses for installation and removal, where legally permitted. Any recourse claims against the Company’s suppliers shall be governed by contractual indemnification agreements, rather than statutory provisions, and must be explicitly stipulated in the purchase contract. Warranty limitations shall comply with applicable state and federal laws, including specific state consumer protection statutes.
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XI. Data Protection
1. Collection and Use of Personal Data The Company collects, processes, and stores personal data necessary for conducting business operations, including customer identification, order fulfillment, and compliance with legal obligations. Personal data may include names, contact details, payment information, and transaction history.
2. Compliance with Applicable Laws The Company adheres to all relevant U.S. federal and state data protection laws, including but not limited to:
• California Consumer Privacy Act (CCPA) for California residents.
• Gramm-Leach-Bliley Act (GLBA) for financial data protection.
• Federal Trade Commission (FTC) Act governing consumer privacy
practices.
• Other applicable state privacy laws based on customer location.
3. Data Security Measures The Company implements reasonable security safeguards to protect personal data from unauthorized access, disclosure, or misuse. These measures include encryption, access controls, and secure storage practices.
4. Third-Party Data Processing Personal data may be shared with third-party service providers for order processing, payment transactions, and regulatory compliance. The Company ensures that such third parties adhere to strict confidentiality and security obligations.
5. Customer Rights and Requests Customers may request access, correction, or deletion of their personal data, subject to legal and contractual limitations.
Requests can be submitted via the Company’s designated privacy contact.
6. Data Breach Notification In the event of a data breach, the Company will notify affected individuals in accordance with state and federal breach
notification laws, including timelines and remediation steps.
7. Retention and Disposal Personal data is retained only as long as necessary for business operations and legal compliance. Upon expiration, data is securely deleted or anonymized.