Terms of Payment and Delivery
Preamble, Scope
All our offers and all agreements closed with us – including those for future goods and services – are subject to the terms and conditions set forth herein.
The ordering party (hereinafter: “Customer”) accepts these terms and conditions for payment and delivery upon placing an order and at the latest upon acceptance of delivery. If the Customer has conflicting terms and conditions for purchase they shall be valid only if expressly accepted by us in writing. Deviations from these terms and conditions require written agreement. Counter-confirmations by Customer referencing its standard terms and conditions are hereby expressly excluded. Our terms and conditions for payment and delivery shall therefore govern exclusively and without limitation, even if we are aware of Customer terms and conditions that conflict or deviate from the present terms and conditions and we deliver to the Customer without express reservation.
Offers and Acceptance of Orders
All offers are nonbinding. Models, pictures, drawings, dimensions, weights, colour shades etc. presented in catalogues, prospectuses and other printed materials represent approximate values as generally applicable in the industry.
Without exception, information concerning the execution, dimensions etc. of special, bespoke orders require written confirmation.
We are not liable for errors attributable to documents supplied by the Customer. We reserve the right to make design and model changes that appear necessary based on our experience. Customer acquires no rights in any tools for which it has reimbursed all or a portion of the cost; they remain our property. Any samples requested shall be delivered only against an invoice.
Invoicing, Payment
Our invoices are payable within 10 days of delivery with a 2% discount for prompt payment or net within 30 days or as provided by special written agreement. Payment default shall be governed as provided by law. Timeliness of Customer payment shall be governed by the date the account designated for payment is credited. For factoring purposes, we may assign rights under our business relationship with the Customer.
The Customer shall bear the costs of payments made by bill of exchange including, in particular, discounting and collection fees. No prompt payment discount is granted in the case of payment by bill of exchange. Invoiced bill of exchange costs are payable immediately without discount. Bills of exchange and checks shall not be deemed payment until encashed.
Customer shall have rights of set off only if the respective counterclaim has been determined with legal finality, is undisputed or has been acknowledged. In addition, the exercise of a right to withhold performance is permissible only if the counterclaim is based on the same legal relationship.
We have the right to apply Customer payments first to any older Customer debt.
If the due payment date is not observed, we may, subject to other claims, charge fees and late payment interest at a rate at least equal to the interest rates charged by banks for current loans. Failure to meet the due payment date shall cause all claims, without regard to the maturity of any outstanding bills of exchange, to become immediately due and payable. In addition, in such case we shall be entitled to demand advance payment for further deliveries, rescind the agreement and have any goods delivered subject to reservation of title returned to us at Customer’s expense. The same shall apply if, after closing the agreement, we learn of circumstances that diminish Customer’s credit worthiness.
Prices
Orders for which no fixed price has been expressly agreed shall be invoiced at the price prevailing on the delivery date. If there is a material change in certain cost factors including, in particular, labour, component materials or freight, the agreed price may be reasonably adjusted commensurate with the influence of the respective cost factors. Unless the order confirmation provides otherwise, prices are quoted ex our plant or our representative’s logistics warehouse.
Goods with a minimum order value from EUR 500.00 (excl. VAT) are delivered free of charge within Germany or to the German border for delivery abroad. An initial order must be at least EUR 150.00 (excl. VAT) and all further orders at least EUR 25.00 (excl. VAT). Prices quoted in catalogues and price lists (excl. VAT) are prices only for resellers.
Packaging
Packaging costs are invoiced according to industry practice.
Shipping, freight, and risk of loss
Deliveries are from our plant or our representative’s logistics warehouse. If the goods are shipped or delivered to Customer’s place of business at his demand, the risk of total loss or accidental diminution in the value of the goods shall pass to the Customer upon delivery to the shipping agent (§ 447 German Civil Code – BGB) but no later than their departure from our plant or our representative’s logistics warehouse, regardless whether they are shipped from the place of performance or who pays the shipping cost. If the goods are ready for shipment and the shipment, forwarding or acceptance is delayed, the risk of loss of the goods passes to the Customer when they are ready for delivery. This shall not apply if we are responsible for the delay. Invoicing shall be governed by the weights and numerical count established at the time of dispatch.
Delivery Times
Quoted delivery periods are generally nonbinding. The delivery period begins with the day the order confirmation is sent, but not before all contract details have been finalised. It is deemed to have been met if the goods leave the plant or representative’s logistics warehouse on time or, in the event of impossibility of shipment, the goods are reported ready to ship by the end of the period. The delivery period shall be reasonably extended – including in the case a default in delivery – if unforeseen hindrances occur, which we could not prevent despite our exercise of reasonable care, regardless whether these circumstances occur at our place of business or that of our supplier – e.g. business disruption, official intervention, labour unrest, delays in the delivery of essential materials. The occurrence of such circumstances shall be promptly communicated to the Customer. If the agreement is subsequently modified in a manner that influences the delivery period, the period shall in the absence of a respective contract provision be reasonably extended to take account of this modification. Default in delivery shall be governed as provided by law subject to the following:
The Customer may demand compensatory damages for non-performance under § 281, 323 BGB only to the extent that third parties assert a damage claim against it. Compensation for lost profits is excluded. Compensatory damages shall not exceed the value of the goods. We shall be responsible for delays in the delivery of goods and services due to ordinary negligence only if these are delays common to this type of agreement. Should we be responsible for gross negligence, we will compensate the damage caused by the delay. Compensatory damages shall not exceed the value of the goods.
Setting a due date for performance is ineffective if the delay in delivery is attributable to force majeure or circumstances for which we are not answerable. Force majeure shall apply if we are prevented from performing our responsibilities by unforeseen – in particular external – circumstances that we could not prevent in the given circumstances despite exercise of reasonable care. Force majeure includes strikes and lockouts. Customer shall be informed immediately of the occurrence of force majeure.
Delivery Volume
Adherence to exact numerical count is not possible for customised bespoke products. Bespoke products include all goods that diverge from the description in the respectively valid catalogue and/or prospectus. This applies in particular with regard to colours.
Defect Complaints, Liability
After goods have arrived at their destination, Customer shall promptly inspect them and meet its obligations under § 377 German Commercial Code (HGB). The duty of the Customer to inspect extends to the entire delivery. Shipping documents may not be signed (including subject to reservation) before the number of cartons delivered is compared with the information on the shipping documents. Information concerning missing cartons or damage must be noted accurately on the shipping documents and confirmed by the driver’s clearly identifiable signature.
Obvious defects shall be reported to us immediately after receipt of the goods, i.e. on the delivery date. Defect complaints must be communicated in writing and include precise details of the alleged individual defects. Non-obvious defects shall be reported to us in writing promptly after their discovery but no later than within five business days after goods delivery. Problems or defect complaints asserted later do not substantiate any entitlement to supplementary performance, rescission, price reduction, compensatory damages or reimbursement of futile expenses.
Goods that are subject to a complaint shall be properly stored and placed at our disposal. We shall be granted opportunity to inspect goods subject to a complaint (duty to present for inspection).
If a defect is substantiated, we may, at the Customer’s option, render subsequent performance by curing the defect or promptly deliver defect-free replacement goods in exchange for the goods that are subject to the complaint. In the event of subsequent performance or replacement delivery, we shall be obliged to bear all costs incurred by subsequent performance (in particular shipping, routing, labour and material costs), to the extent that they are not increased by delivery to a place other than the place of performance. We shall determine the method of shipment. If the attempted subsequent performance fails, the Customer shall be entitled to a price reduction or contract rescission. The statute of limitations for asserting defect claims is 12 months calculated from the passage of risk of loss.
If the Customer asserts compensatory damage claims due to intentional or grossly negligent conduct, including intentional or grossly negligent conduct of our representatives or vicarious agents, we shall be liable as provided by law. To the extent we are not charged with intentional breach of contract, our liability for compensatory damages is limited to the typically foreseeable damage. Likewise we are liable as provided by law to the extent we have culpably breached a material contractual duty. In this case too, however, damage liability is limited to the typically foreseeable damage.
Irrespective of the legal nature of any asserted claim, any further liability on our part to the Customer – beyond the foregoing provisions – is precluded. This applies in particular to compensatory damage claims arising from faults during contract closing, from indirect and consequential damage and from other breaches of duty or tort claims for property damage pursuant to § 823 BGB. The same shall also apply to the personal liability of our managers, employees, representatives and vicarious agents.
Reservation of Title
Until all payment claims under the business relationship are fulfilled – including any refinancing or reverse bills of change – we reserve title to goods delivered by us, which Customer may only dispose of in the ordinary course of business (balance or current account clause).
Further processing of goods delivered by us does not entitle Customer to any proprietary interest in the fully or partly produced goods delivered. Such processing inures exclusively to our benefit at no cost to us. However, should the reservation of title expire due to any given circumstance, alfer® and the Customer hereby already agree that title to such goods shall pass to alfer® after reprocessing. alfer® accepts this transfer of title. Customer shall be the uncompensated custodian of these reprocessed goods (manufacturer and reprocessing clause).
By reprocessing goods that are still the property of third parties we acquire co-ownership in the new goods. Our co-ownership interest shall be proportional to the ratio of the invoice value of the goods delivered by us to the invoice value of all other goods (reprocessing and co-mingling clause).
Customer hereby assigns to us the claims accruing to it from the resale of goods subject to reservation of title, including goods which have been reprocessed. If the reprocessed product of our goods subject to reservation of title contains items that either belonged exclusively to us or were delivered subject to our reservation of title, Customer shall assign to us its entire purchase price claim. In other cases, i.e. in the event of simultaneous advance assignments to multiple suppliers, we shall be entitled to a fraction of the claim corresponding to the ratio of the invoice value of our goods subject to reservation of title to the invoice value of all other reprocessed items (assignment in advance).
We hereby undertake to release the collateral to which we are entitled under the above provisions at the request of Customer to the extent that the realizable value of the collateral exceeds the value of our secured claims by more than 20% (release clause).
Provided Customer fulfils its payment obligations to us, Customer shall be entitled to collect accounts receivable for its own use until this entitlement is revoked. The right to resell or reprocess the goods and collect accounts receivable shall lapse upon cessation of payments, application for insolvency proceedings, dishonour of a check or bill of exchange, or seizure. Assigned accounts receivable paid thereafter shall be credited immediately to a specially designated account (direct debit authority).
Any return of goods shall be accepted only for reasons of safety; even where part payments were subsequently accepted, this shall not constitute contract rescission. Rescission is not required to assert a reservation of title, unless the Customer is a consumer.
Data Collection and Storage
We may collect, store, process, use and forward information and data concerning the Customer to third parties for storage, processing and use – in particular for the purposes of claim collection or outsourced accounts receivable management.
Product Liability
We are liable as provided by German product liability law (Produkthaftungsgesetz).
Place of Performance, Jurisdiction and Venue
The place of performance for delivery and payment is our registered office (Wutöschingen).
Our contractual relationship with the Customer shall be governed by German law – under exclusion of the UN Sales Convention. The provisions of the UN Convention on the Assignment of Receivables in International Commerce are hereby deemed agreed, subject to their entering into effect and from the moment they have entered into effect.
Validity of the Agreement
If individual provisions are legally ineffective, the agreement shall otherwise remain binding.
alfer® aluminium Gesellschaft mbH
Commercial Register of the Municipal Court of Freiburg HRB 620 227
Position:10/2008
Preamble, Scope
All our offers and all agreements closed with us – including those for future goods and services – are subject to the terms and conditions set forth herein.
The ordering party (hereinafter: “Customer”) accepts these terms and conditions for payment and delivery upon placing an order and at the latest upon acceptance of delivery. If the Customer has conflicting terms and conditions for purchase they shall be valid only if expressly accepted by us in writing. Deviations from these terms and conditions require written agreement. Counter-confirmations by Customer referencing its standard terms and conditions are hereby expressly excluded. Our terms and conditions for payment and delivery shall therefore govern exclusively and without limitation, even if we are aware of Customer terms and conditions that conflict or deviate from the present terms and conditions and we deliver to the Customer without express reservation.
Offers and Acceptance of Orders
All offers are nonbinding. Models, pictures, drawings, dimensions, weights, colour shades etc. presented in catalogues, prospectuses and other printed materials represent approximate values as generally applicable in the industry.
Without exception, information concerning the execution, dimensions etc. of special, bespoke orders require written confirmation.
We are not liable for errors attributable to documents supplied by the Customer. We reserve the right to make design and model changes that appear necessary based on our experience. Customer acquires no rights in any tools for which it has reimbursed all or a portion of the cost; they remain our property. Any samples requested shall be delivered only against an invoice.
Invoicing, Payment
Our invoices are payable within 10 days of delivery with a 2% discount for prompt payment or net within 30 days or as provided by special written agreement. Payment default shall be governed as provided by law. Timeliness of Customer payment shall be governed by the date the account designated for payment is credited. For factoring purposes, we may assign rights under our business relationship with the Customer.
The Customer shall bear the costs of payments made by bill of exchange including, in particular, discounting and collection fees. No prompt payment discount is granted in the case of payment by bill of exchange. Invoiced bill of exchange costs are payable immediately without discount. Bills of exchange and checks shall not be deemed payment until encashed.
Customer shall have rights of set off only if the respective counterclaim has been determined with legal finality, is undisputed or has been acknowledged. In addition, the exercise of a right to withhold performance is permissible only if the counterclaim is based on the same legal relationship.
We have the right to apply Customer payments first to any older Customer debt.
If the due payment date is not observed, we may, subject to other claims, charge fees and late payment interest at a rate at least equal to the interest rates charged by banks for current loans. Failure to meet the due payment date shall cause all claims, without regard to the maturity of any outstanding bills of exchange, to become immediately due and payable. In addition, in such case we shall be entitled to demand advance payment for further deliveries, rescind the agreement and have any goods delivered subject to reservation of title returned to us at Customer’s expense. The same shall apply if, after closing the agreement, we learn of circumstances that diminish Customer’s credit worthiness.
Prices
Orders for which no fixed price has been expressly agreed shall be invoiced at the price prevailing on the delivery date. If there is a material change in certain cost factors including, in particular, labour, component materials or freight, the agreed price may be reasonably adjusted commensurate with the influence of the respective cost factors. Unless the order confirmation provides otherwise, prices are quoted ex our plant or our representative’s logistics warehouse.
Goods with a minimum order value from EUR 500.00 (excl. VAT) are delivered free of charge within Germany or to the German border for delivery abroad. An initial order must be at least EUR 150.00 (excl. VAT) and all further orders at least EUR 25.00 (excl. VAT). Prices quoted in catalogues and price lists (excl. VAT) are prices only for resellers.
Packaging
Packaging costs are invoiced according to industry practice.
Shipping, freight, and risk of loss
Deliveries are from our plant or our representative’s logistics warehouse. If the goods are shipped or delivered to Customer’s place of business at his demand, the risk of total loss or accidental diminution in the value of the goods shall pass to the Customer upon delivery to the shipping agent (§ 447 German Civil Code – BGB) but no later than their departure from our plant or our representative’s logistics warehouse, regardless whether they are shipped from the place of performance or who pays the shipping cost. If the goods are ready for shipment and the shipment, forwarding or acceptance is delayed, the risk of loss of the goods passes to the Customer when they are ready for delivery. This shall not apply if we are responsible for the delay. Invoicing shall be governed by the weights and numerical count established at the time of dispatch.
Delivery Times
Quoted delivery periods are generally nonbinding. The delivery period begins with the day the order confirmation is sent, but not before all contract details have been finalised. It is deemed to have been met if the goods leave the plant or representative’s logistics warehouse on time or, in the event of impossibility of shipment, the goods are reported ready to ship by the end of the period. The delivery period shall be reasonably extended – including in the case a default in delivery – if unforeseen hindrances occur, which we could not prevent despite our exercise of reasonable care, regardless whether these circumstances occur at our place of business or that of our supplier – e.g. business disruption, official intervention, labour unrest, delays in the delivery of essential materials. The occurrence of such circumstances shall be promptly communicated to the Customer. If the agreement is subsequently modified in a manner that influences the delivery period, the period shall in the absence of a respective contract provision be reasonably extended to take account of this modification. Default in delivery shall be governed as provided by law subject to the following:
The Customer may demand compensatory damages for non-performance under § 281, 323 BGB only to the extent that third parties assert a damage claim against it. Compensation for lost profits is excluded. Compensatory damages shall not exceed the value of the goods. We shall be responsible for delays in the delivery of goods and services due to ordinary negligence only if these are delays common to this type of agreement. Should we be responsible for gross negligence, we will compensate the damage caused by the delay. Compensatory damages shall not exceed the value of the goods.
Setting a due date for performance is ineffective if the delay in delivery is attributable to force majeure or circumstances for which we are not answerable. Force majeure shall apply if we are prevented from performing our responsibilities by unforeseen – in particular external – circumstances that we could not prevent in the given circumstances despite exercise of reasonable care. Force majeure includes strikes and lockouts. Customer shall be informed immediately of the occurrence of force majeure.
Delivery Volume
Adherence to exact numerical count is not possible for customised bespoke products. Bespoke products include all goods that diverge from the description in the respectively valid catalogue and/or prospectus. This applies in particular with regard to colours.
Defect Complaints, Liability
After goods have arrived at their destination, Customer shall promptly inspect them and meet its obligations under § 377 German Commercial Code (HGB). The duty of the Customer to inspect extends to the entire delivery. Shipping documents may not be signed (including subject to reservation) before the number of cartons delivered is compared with the information on the shipping documents. Information concerning missing cartons or damage must be noted accurately on the shipping documents and confirmed by the driver’s clearly identifiable signature.
Obvious defects shall be reported to us immediately after receipt of the goods, i.e. on the delivery date. Defect complaints must be communicated in writing and include precise details of the alleged individual defects. Non-obvious defects shall be reported to us in writing promptly after their discovery but no later than within five business days after goods delivery. Problems or defect complaints asserted later do not substantiate any entitlement to supplementary performance, rescission, price reduction, compensatory damages or reimbursement of futile expenses.
Goods that are subject to a complaint shall be properly stored and placed at our disposal. We shall be granted opportunity to inspect goods subject to a complaint (duty to present for inspection).
If a defect is substantiated, we may, at the Customer’s option, render subsequent performance by curing the defect or promptly deliver defect-free replacement goods in exchange for the goods that are subject to the complaint. In the event of subsequent performance or replacement delivery, we shall be obliged to bear all costs incurred by subsequent performance (in particular shipping, routing, labour and material costs), to the extent that they are not increased by delivery to a place other than the place of performance. We shall determine the method of shipment. If the attempted subsequent performance fails, the Customer shall be entitled to a price reduction or contract rescission. The statute of limitations for asserting defect claims is 12 months calculated from the passage of risk of loss.
If the Customer asserts compensatory damage claims due to intentional or grossly negligent conduct, including intentional or grossly negligent conduct of our representatives or vicarious agents, we shall be liable as provided by law. To the extent we are not charged with intentional breach of contract, our liability for compensatory damages is limited to the typically foreseeable damage. Likewise we are liable as provided by law to the extent we have culpably breached a material contractual duty. In this case too, however, damage liability is limited to the typically foreseeable damage.
Irrespective of the legal nature of any asserted claim, any further liability on our part to the Customer – beyond the foregoing provisions – is precluded. This applies in particular to compensatory damage claims arising from faults during contract closing, from indirect and consequential damage and from other breaches of duty or tort claims for property damage pursuant to § 823 BGB. The same shall also apply to the personal liability of our managers, employees, representatives and vicarious agents.
Reservation of Title
Until all payment claims under the business relationship are fulfilled – including any refinancing or reverse bills of change – we reserve title to goods delivered by us, which Customer may only dispose of in the ordinary course of business (balance or current account clause).
Further processing of goods delivered by us does not entitle Customer to any proprietary interest in the fully or partly produced goods delivered. Such processing inures exclusively to our benefit at no cost to us. However, should the reservation of title expire due to any given circumstance, alfer® and the Customer hereby already agree that title to such goods shall pass to alfer® after reprocessing. alfer® accepts this transfer of title. Customer shall be the uncompensated custodian of these reprocessed goods (manufacturer and reprocessing clause).
By reprocessing goods that are still the property of third parties we acquire co-ownership in the new goods. Our co-ownership interest shall be proportional to the ratio of the invoice value of the goods delivered by us to the invoice value of all other goods (reprocessing and co-mingling clause).
Customer hereby assigns to us the claims accruing to it from the resale of goods subject to reservation of title, including goods which have been reprocessed. If the reprocessed product of our goods subject to reservation of title contains items that either belonged exclusively to us or were delivered subject to our reservation of title, Customer shall assign to us its entire purchase price claim. In other cases, i.e. in the event of simultaneous advance assignments to multiple suppliers, we shall be entitled to a fraction of the claim corresponding to the ratio of the invoice value of our goods subject to reservation of title to the invoice value of all other reprocessed items (assignment in advance).
We hereby undertake to release the collateral to which we are entitled under the above provisions at the request of Customer to the extent that the realizable value of the collateral exceeds the value of our secured claims by more than 20% (release clause).
Provided Customer fulfils its payment obligations to us, Customer shall be entitled to collect accounts receivable for its own use until this entitlement is revoked. The right to resell or reprocess the goods and collect accounts receivable shall lapse upon cessation of payments, application for insolvency proceedings, dishonour of a check or bill of exchange, or seizure. Assigned accounts receivable paid thereafter shall be credited immediately to a specially designated account (direct debit authority).
Any return of goods shall be accepted only for reasons of safety; even where part payments were subsequently accepted, this shall not constitute contract rescission. Rescission is not required to assert a reservation of title, unless the Customer is a consumer.
Data Collection and Storage
We may collect, store, process, use and forward information and data concerning the Customer to third parties for storage, processing and use – in particular for the purposes of claim collection or outsourced accounts receivable management.
Product Liability
We are liable as provided by German product liability law (Produkthaftungsgesetz).
Place of Performance, Jurisdiction and Venue
The place of performance for delivery and payment is our registered office (Wutöschingen).
Our contractual relationship with the Customer shall be governed by German law – under exclusion of the UN Sales Convention. The provisions of the UN Convention on the Assignment of Receivables in International Commerce are hereby deemed agreed, subject to their entering into effect and from the moment they have entered into effect.
Validity of the Agreement
If individual provisions are legally ineffective, the agreement shall otherwise remain binding.
alfer® aluminium Gesellschaft mbH
Commercial Register of the Municipal Court of Freiburg HRB 620 227
Position:10/2008
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| ©2007 · alfer® aluminium Gesellschaft mbH · Horheim, Industriestraße 7 · D-79793 Wutöschingen, Germany |