General Terms and Conditions of Purchase of alfer aluminium GmbH (as at 01/2025)
1 General Information
1.1 All orders placed by alfer aluminium GmbH ("alfer aluminium") are subject exclusively to the following General Terms and Conditions of Purchase ("GTCP").
1.2 Individual agreements between the contracting parties shall take precedence over these GTCP. Any deviations from and additions to these GTCP by the contractor shall only be effective with the express confirmation of alfer aluminium in text form (e.g. by fax, e-mail or in writing); they shall only apply to the transaction for which they were made in the individual case.
1.3 If alfer aluminium and the contractor agree on provisions deviating from individual provisions of these GTCP, this shall not affect the validity of the remaining provisions of these GTCP.
1.4 Any deviating terms and conditions of delivery or business of the contractor are expressly rejected.
1.5 Besides, the execution of the order by the contractor shall be deemed to be an acknowledgement of these GTCP.
2 Structure of these GTCP
2.1 These GTCP consist of four sections. Section A contains general provisions for all contracts of services to alfer aluminium.
2.2 Section B contains special provisions for contracts for the supply of movable goods to be manufactured or produced.
2.3 Section C contains special provisions for the provision of services and work performances.
2.4 Section D contains special provisions that apply exclusively to the provision of work performances.
2.5 In the event of contradictions, the provisions of Sections B to D shall take precedence over the provisions of Section A. Section D about work performances shall take precedence over Section C in the event of contradictions.
Section A - General Provisions
3 Offer, Order, Conclusion of the Contract
3.1 The scope of delivery shall be determined solely by the order placed by alfer aluminium. Orders shall only be binding if they have been placed or confirmed by alfer aluminium in text form. Cost estimates and the prices stated in the order shall be binding.
3.2 Orders from alfer aluminium must be confirmed by contractor in text form immediately after receipt, stating all order data of alfer aluminium.
3.3 In the event of an express waiver of an order confirmation by alfer aluminium, the order shall be deemed to be the conclusion of a contract unless the contractor objects immediately upon receipt.
4 Delivery Time
4.1 The delivery periods and delivery dates stated in alfer aluminium's order shall be binding.
4.2 Delivery periods run from the date of the order letter from alfer aluminium.
4.3 If goods delivered late are accepted without complaint, this shall only be done to minimise damage, without waiving any claims.
5 Delay of Services
5.1 The contractor shall be obliged to inform alfer aluminium immediately in text form of the reason for and expected duration of a delay if circumstances arise or become recognisable to the contractor which indicate that the agreed delivery time cannot be met. This shall also apply to circumstances and events for which the contractor is not responsible.
5.2 In the event of a delay in performance, alfer aluminium shall be entitled to demand liquidated damages for delay in the amount of 5.00% of the delivery value per day of delay, but not more than 30% of the gross delivery value. Further statutory claims (cancellation and compensation in lieu of performance) remain reserved; the lumpsum compensation shall be offset against claims for damages. The contractor has the right to prove that no damage or significantly less damage has been incurred as a result of the delay.
5.3 alfer aluminium does not agree to limitations of liability and indemnities of any kind on the part of the contractor in the event of a delay in performance.
6 Force Majeure
6.1 "Force Majeure" means the occurrence of an event or circumstance that prevents a party from fulfilling a contractual obligation if and to the extent that the party affected by the event or circumstance ("the affected party") proves (a) that such impediment is beyond its reasonable control and (b) that the effects of the impediment could not reasonably have been avoided or overcome by the affected party. Impediments within the meaning of lit. (a) include inter alia wars, civil wars, insurrections, acts of terrorism, piracy, currency and trade restrictions, embargoes, sanctions, official measures and orders, expropriation, epidemics, pandemics, natural disasters, fire, unless the nonaffected party proves otherwise.
6.2 Insofar as Clause 6.1 is fulfilled, the party concerned shall be released from the contractual obligation and from any liability due to its breach from the time at which the impediment causes the inability to perform and to the extent to which the impediment prevents performance, provided that it notifies the other party immediately. If the notification is not made immediately, the exemption shall only take effect from the time at which the notification is received by the other party. The other party may suspend the fulfilment of its obligations, if any, from the date of the notification.
6.3 If the effect of the asserted obstacle or event is temporary, Clause 6.2 shall only apply for as long as the asserted obstacle prevents the fulfilment of the contractual obligation by the affected party. The affected party must notify the other party as soon as the obstacle in question no longer exists.
6.4 The affected party is obliged to remedy the Force Majeure as far as possible and to limit its effects as far as possible.
6.5 Notwithstanding this, alfer aluminium shall be entitled to withdraw from the contract in whole or in part if the Force Majeure lasts for more than 4 weeks from the agreed delivery date.
7 Invoicing and Terms of Payment
7.1 alfer aluminium can only process the contractor's invoices if they contain the customary information (in particular order and/or article number and commission number, exact description of the service or goods, quantity delivered, dimensions, weight, packaging). The contractor shall be responsible for all consequences arising from noncompliance with this obligation unless it can prove that it is not responsible for them.
7.2 If no special agreements have been made, payment shall be made within eight weeks of receipt of the goods and invoice with a cash discount deduction (Skontoabzug) of 3 % of the invoice amount or within 90 days of receipt of the goods and invoice without deduction. If instalment payments have been agreed, the cash discount deduction shall be granted for each individual payment, provided that it is made within the two-week period.
7.3 A cash discount deduction may also be possible, if alfer aluminium offsets or makes justified retentions or withholdings.
7.4 alfer aluminium does not accept the agreement of interest on due date or interest of delay (Fälligkeits- oder Verzugszinsen) that is higher than the interest owed by law.
8 Statute of Limitation
A shortening of the liability for defects (Mängelhaftung) and other periods of these GTCP is expressly rejected. In all cases, the statutory limitation periods shall apply as a minimum, unless longer periods are agreed below.
9 Scope of Liability, Contractual Penalties, Liquidated Damages
9.1 alfer aluminium does not agree to any limitation of the contractor's contractual and noncontractual liability, neither with regard to the standard of fault (Verschuldensmaßstab) nor with regard to the scope of liability or the amount of liability.
9.2 alfer aluminium hereby objects to any claim by the contractor against alfer aluminium for a contractual penalty as well as for lumpsum payment, in particular any liquidated damages, any lumpsum reimbursement of expenses, any lumpsum reduction as well as any lumpsum reimbursement of costs, in each case irrespective of the legal grounds, as well as any provisions based thereon.
10 Insurances
10.1 The contractor undertakes to maintain business and product liability insurance with a sum insured of at least EUR 5 million per claim (personal injury and/or property damage) until the respective expiry of the limitation period for defects; if the contractor is entitled to further claims for damages, these shall remain unaffected.
10.2 Proof of insurance cover must be provided at the request of alfer aluminium.
11 Rights of Retention, Offsetting, Assignment (Abtretung)
11.1 alfer aluminium shall be entitled to the statutory rights of setoff and retention (gesetzliche Aufrechnungs- und Zurückbehaltungsrechte) in full.
11.2 The assignment of claims against alfer aluminium shall only be legally effective with the prior consent of alfer aluminium in text form. § 354a HGB (Handelsgesetzbuch, German Commercial Code) remains unaffected.
12 Documents from alfer aluminium, Confidentiality
12.1 The documents provided by alfer aluminium to the contractor for the manufacture of the delivery item or the information contained therein shall remain the property of alfer aluminium. alfer aluminium reserves all intellectual property rights. Any acquisition of rights by the contractor is excluded.
12.2 These documents or the information contained therein may not be used, reproduced or made accessible to third parties for purposes other than the manufacture of the delivery item without the express prior consent of alfer aluminium in text form; the latter as long as and insofar as they are not demonstrably publicly known.
12.3 After completion of the delivery or at the request of alfer aluminium, the documents must be returned to alfer aluminium immediately and in full, including all copies.
12.4 The same shall apply to drawings and documents which the contractor produces for alfer aluminium according to alfer aluminium's specifications; the contracting parties hereby agree that title to these documents shall pass to alfer aluminium and that the documents shall be kept by the contractor on alfer aluminium’s behalf. Any acquisition of rights by the Contractor is excluded.
12.5 The Contractor shall be liable for all damages incurred by alfer aluminium as a result of a breach of one of the above obligations, unless the Contractor is not responsible for the breach.
12.6 If the contractor makes goods, tools or documents accessible to third parties, e.g. subcontractors, with alfer aluminium's consent, the above obligations shall also be imposed on them and evidence thereof shall be provided to alfer aluminium upon request.
13 Choice of Law, Place of Fulfilment, Place of Jurisdiction
13.1 The law of the Federal Republic of Germany shall apply exclusively; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. In case of inconsistencies or unclear clauses, the German version of these GTCP shall be the authoritative version.
13.2 The place of destination specified in the order shall be the place of fulfilment for all of the contractor's performances. The place of fulfilment for alfer aluminium's payments shall be Wutöschingen.
13.3 If the contractor is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law or if the Contractor or the Contractor's branch office concluding the contract has its registered office outside the Federal Republic of Germany, the place of jurisdiction for all rights and obligations of the parties to the contract arising from transactions of any kind shall be alfer aluminium's registered office. The same applies if the contractor moves its domicile or usual place of residence outside Germany after conclusion of the contract or if its domicile or usual place of residence is unknown at the time the action is filed. alfer aluminium is, however, also entitled to sue the contractor at its general place of jurisdiction.
14 Retention of Title, Property Rights
The contractor shall be entitled to deliver the goods subject to simple retention of title (einfacher Eigentumsvorbehalt) until they have been paid for. alfer aluminium does not agree to further retention of title provisions, in particular socalled extended or prolonged retention of title or group retention of title (erweiterter oder verlängerter Eigentumsvorbehalt oder Konzernvorbehalt).
Section B - Regulations on the Delivery of Movable Goods
15 Properties of the Delivery Item, Obligation of the Contractor to Inspect
15.1 The delivered item must be suitable for the intended purpose, have the agreed properties, correspond exactly to the specifications on alfer aluminium's order and be state of the art at the time of delivery, new and unused, made of high-quality material, free of defects and fulfil all requirements of applicable legal provisions.
15.2 The contractor warrants that the delivered movable items comply with the statutory and official regulations applicable on the day of delivery, in particular the relevant environmental protection, accident prevention and occupational health and safety regulations.
15.3 The contractor must check technical documents, drawings or specifications that are part of alfer aluminium's order and point out any discrepancies to alfer aluminium and request clarification.
15.4 If technical documents, drawings and specifications prepared by the contractor are approved by alfer aluminium, this shall not release the contractor from its responsibility for the proper fulfilment of the contract.
16 Prices
16.1 All prices are fixed prices without the separately chargeable VAT at the applicable statutory rate. This also applies to standardised and lunmpsum prices.
16.2 Unless otherwise agreed in text form, the price shall include all costs associated with the delivery of the items, in particular packaging and transport to the agreed destination, including customs duties, insurance, fees, taxes and other ancillary costs in accordance with DDP (Incoterms 2020), unless another Incoterms clause has been expressly agreed.
16.3 alfer aluminium does not agree to price adjustment or price increase clauses or to the agreement of a list price valid on the day of delivery (daily price clauses, Tagespreisklauseln).
17 Delivery; Transfer of Risk (Gefahrübergang); Advance, Partial and Additional Performances
17.1 Delivery and transfer of risk are generally based on the agreed Incoterms clause in accordance with Incoterms 2020 named place of destination.
17.2 If no such Incoterms clause has been agreed, delivery shall be made DDP (Incoterms 2020) to the destination specified in the order.
17.3 Advance, partial and additional services shall only be permitted with the prior written consent of alfer aluminium and shall be noted in the delivery documents and invoices.
18 Investigation and Reprimand (Rüge)
18.1 The statutory provisions shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: The obligation to inspect shall be limited to defects which become apparent during the incoming goods inspection under external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognisable during a quality control in a random sampling procedure. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. Notwithstanding the duty to inspect, alfer aluminium's complaint (notification of defects, Mängelanzeige) shall in any case be deemed to be immediate (unverzüglich) and timely if it is sent within five working days of discovery or, in the case of obvious defects, of receipt of the goods.
18.2 Deliveries involving larger quantities of identical parts, in particular smaller vendor parts, will be inspected by alfer aluminium using a statistical sampling procedure. If the random samples reveal defective parts, alfer aluminium shall be entitled, at its discretion, to reject the entire delivery without further inspection or to carry out a further inspection. The contractor shall bear all costs of the further inspection.
19 Liability for Material Defects and Defects of Title (Sach- und Rechtsmängelhaftung)
19.1 alfer aluminium shall be entitled to the full statutory warranty claims.
19.2 In any case, alfer aluminium shall be entitled to demand that the contractor, at its discretion, remedy the defect or deliver a new, defectfree item (subsequent fulfilment, Nacherfüllung). The contractor shall bear all costs and expenses – including dismantling and installation costs – arising from or in connection with the subsequent fulfilment, even if the expenses increase in the case of subsequent fulfilment because the purchased item has been moved to a place other than the place of destination after delivery, unless the move does not correspond to the intended use of the item. The right to claim damages, in particular the right to claim damages in lieu of performance (Schadensersatz statt der Leistung), is expressly reserved.
19.3 Notwithstanding the statutory rights and the above provisions, the following shall apply: If the contractor fails to fulfil its obligation of subsequent performance within a reasonable period set by alfer aluminium, alfer aluminium may remedy the defect and any resulting damage itself and demand reimbursement of the necessary expenses or a corresponding advance payment from the contractor. If subsequent fulfilment by the contractor has failed or is unreasonable for alfer aluminium (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; alfer aluminium will inform the contractor of such circumstances immediately, if possible in advance.
20 Statute of Limitation on Purchase
20.1 The limitation period is 36 months from the transfer of risk.
20.2 In the event of subsequent fulfilment, the limitation period pursuant to Clause 20.1 shall commence anew upon completion of the rectification work or delivery of the new item. However, the new limitation period shall only apply to the repaired or replaced part of a delivery item if only this - also dependent - part has been replaced.
21 Property Rights
21.1 The contractor warrants that no thirdparty rights, in particular no patent or other industrial property rights, are infringed in connection with its delivery.
21.2 If alfer aluminium is held liable by a third party for such an infringement, the contractor shall be obliged to indemnify alfer aluminium in full against such claims in accordance with the following Clauses 21.3 to 21.7.
21.3 In the event of claims for damages by the third party, the contractor reserves the right to prove that it is not responsible for the infringement of the third party's rights. alfer aluminium is not authorised to enter into any agreements with the third party without the contractor's consent, in particular to conclude a settlement.
21.4 The contractor's obligation to indemnify relates to all expenses necessarily incurred by alfer aluminium from or in connection with the claim by the third party, unless the Contractor proves that it is not responsible for the breach of duty underlying the infringement of property rights.
21.5 We reserve the right to assert further rights.
21.6 alfer aluminium does not agree to any restriction of the statutory rights to which alfer aluminium is entitled in the event of a defect of title.
21.7 The limitation period for these claims is three years, beginning with the transfer of risk, unless the 5-year warranty period for construction products applies.
Section C - Provision of Services and Work Performances (Dienst- und Werkleistungen)
22 Scope and Provision of Services
22.1 The scope of the performance shall be determined solely by the order placed by alfer aluminium, unless deviations, amendments or additions have been confirmed by alfer aluminium in text form.
22.2 The contractor's cost estimates and the subsequent prices stated in the order shall be binding. The contractor shall submit a new binding price quotation to alfer aluminium in text form before commencing any work that involves additional costs.
22.3 The contractor shall provide the performance with the necessary expertise of the persons carrying out the work, with the utmost care, in compliance with the current state of science and technology as well as the current applicable legal regulations and free of defects and errors.
22.4 The contractor may only engage subcontractors to provide its performances with alfer aluminium's prior consent in text form. alfer aluminium may only refuse consent in order to safeguard legitimate interests.
22.5 Only the contractor is authorised to issue instructions to its employees and must ensure that the personnel it deploys are not integrated into alfer aluminium's operations.
22.6 Unless otherwise agreed, the contractor shall report to alfer aluminium on the progress of the work on an ongoing basis.
23 Remuneration
23.1 The remuneration for the provision of the performance is based on the order.
23.2 If prices have not been specified either in the offer or in the order confirmation or by written agreement, the contractor must notify alfer aluminium of its prices in text form for confirmation before the order is executed.
23.3 In the absence of an express price agreement, the price last charged by the contractor for these or comparable performances shall apply in the context of ongoing business relationships.
23.4 alfer aluminium does not agree to price adjustment or price increase clauses.
23.5 All prices are exclusive of VAT, which shall be charged separately at the applicable statutory rate. Unless otherwise agreed in text form, the price shall include all costs associated with the performance, in particular travelling expenses, travel expenses and material costs.
24 Subsequent Change to the Scope of Services
24.1 alfer aluminium shall be entitled to request changes to the contractual performances or additional services from the contractor at any time. The contractor may object to such a subsequent change insofar as the implementation of the change request is unreasonable for the contractor.
24.2 The contractor shall submit a new contractual offer for these changes and/or extensions to alfer aluminium in text form within 14 days. Additional remuneration or additional expenses shall only be paid or reimbursed after an order and confirmation of these additional services in accordance with Clauses 3.2 and 3.3 .
24.3 If an agreement cannot be reached, alfer aluminium shall be entitled to extraordinarily terminate the contract for the performance originally to be provided if alfer aluminium cannot reasonably be expected to adhere to the contract without the changes and/or extensions.
25 Appointments
25.1 The deadlines/periods and dates stated in the order are binding.
25.2 If neither performance deadlines nor a performance date have been agreed, performance shall be rendered immediately (sofort), unless the circumstances indicate otherwise.
26 Invoices
26.1 The remuneration for each individual performance must be allocated to the respective order number.
26.2 If remuneration has been agreed on a time basis, time sheets countersigned by alfer aluminium must be enclosed.
26.3 The contractor shall be responsible for all consequences arising from noncompliance with this obligation, unless it can prove that it is not responsible for them.
26.4 Payments by alfer aluminium shall in each case be made subject to correction or reclaim in the event that the incorrectness of the calculation or objections should subsequently become apparent and on condition that the performance is rendered completely and properly. Payments shall not constitute recognition of the performance.
27 Obligations of alfer aluminium to Co-Operate
27.1 If alfer aluminium has to provide performances that are necessary for the performances by the contractor, alfer aluminium will provide these in accordance with the description and deadlines specified in the order or offer. This shall apply accordingly to the handover of requested documents and information.
27.2 If information cannot be obtained by reasonable means or cannot be disclosed due to the rights of third parties, this does not constitute insufficient cooperation. In such cases, the contractor shall not be entitled to terminate the contract unless the contractor cannot reasonably be expected to continue to adhere to the contract.
27.3 If alfer aluminium's cooperation is insufficient, the contractor shall immediately (unverzüglich) send a reminder in text form, otherwise alfer aluminium shall not be in default and the contractor may not invoke this insufficient cooperation.
28 Granting and Transfer of Rights, Rights of Use
28.1 Upon payment of the agreed remuneration, alfer aluminium shall acquire all transferable rights to the documents, records, drafts and ideas developed or designed by the contractor for alfer aluminium, in particular the exclusive, unrestricted, royaltyfree, irrevocable and noncancellable right of use and all other authorisations to publish, reproduce and exploit these performances, including all legal positions (in particular any name and trademark rights) thereto. This transfer of rights is unrestricted in terms of time, place, intended use and in any other way. It includes the right to reproduce, edit and retransmit and also applies to unknown types of use.
28.2 There are no third-party rights to the performances provided by the contractor under this agreement in the form of ideas, drafts and designs that could impair or prevent their use for the contractually agreed purpose.
28.3 If the contractor engages third parties as subcontractors to fulfil the contract, it shall be obliged to provide alfer aluminium with the same legal position with regard to the performances rendered by the third parties as described in this Clause 28. The contractor must prove this to alfer aluminium in a suitable manner upon request. Should the contractor not be able to do so in special cases, it must inform alfer aluminium of this in good time before execution of the respective order.
28.4 When publishing works of the contractor, alfer aluminium shall not be obliged to include a copyright reference to the contractor unless otherwise agreed in individual cases.
28.5 The contractor shall provide alfer aluminium with suitable proof that the author or authors waive the right to be named in the work when transmitting a work, especially in the case of third-party works.
28.6 alfer aluminium reserves the property rights and copyrights to the documents (e.g. illustrations, drawings, models, samples) provided to the contractor for the provision of the performance. The documents may only be used to process the order and to perform the ordered service; they may not be made accessible to third parties without alfer aluminium's prior consent in text form. At the same time, the contractor shall be obliged to hand over any duplicates of the documents made by it; the same shall apply to any documents developed from the documents. Models, etc. produced on the basis of alfer aluminium's documents may only be delivered to alfer aluminium.
29 Cancellation and Withdrawal
29.1 The right to ordinary cancellation by alfer aluminium remains unaffected.
29.2 In addition, both parties are entitled to extraordinary termination for good cause. Good cause for termination includes in particular
- if a party suspends its payments or
- the opening of insolvency proceedings is refused for lack of assets or
- if the other party breaches contractual obligations and this breach is not terminated within a reasonable period of time upon written request by the other party. There is no need to issue a warning or set a deadline if the continuation of the contractual relationship appears unreasonable due to the seriousness of the breach of duty, if success is not to be expected or if immediate termination appears justified after weighing up the interests of both parties. Termination without notice is generally excluded if the breach of contract is insignificant so that, after weighing up all the circumstances, termination without notice does not appear appropriate.
29.3 The cancellation must be declared in text form.
29.4 The previous performances shall be invoiced in accordance with the agreed conditions.
29.5 The right of cancellation for both contracting parties remains unaffected if the legal requirements are met. If the requirements for the right to extraordinary cancellation are met at the same time, there is a right to choose.
30 Safety Precautions
30.1 The contractor must fulfil the duty to ensure the safety of a work facility. All safety precautions required in connection with its performance shall be taken by the contractor itself and shall be set up, maintained and, if necessary, supplemented in accordance with the provisions of the accident prevention regulations.
30.2 If existing safety precautions such as protective covers, railings, stairs, etc. are temporarily removed for the provision of the performance, the contractor is obliged to reinstall the removed devices professionally and safely after the performance has been provided. For the duration of the removal, the contractor shall secure all danger points by suitable measures at its own expense.
30.3 The contractor shall be liable for all damage caused to objects belonging to alfer aluminium as a result of a breach of the aforementioned duties to maintain safety. If claims are asserted against alfer aluminium by third parties for personal injury or damage to property caused by a breach of the aforementioned duties to maintain safety, the contractor shall be obliged to indemnify alfer aluminium in full against any claims, including legal defence costs.
30.4 Insofar as the contractor carries out work on the premises of alfer aluminium, the trade association regulations for safety and health at work and any safety regulations of alfer aluminium shall apply, which can be sent free of charge on request. The contractor shall be responsible for instructing all personnel in safety regulations; alfer aluminium shall bear no responsibility in this respect.
31 Labour and Subcontractors of the Contractor
31.1 The contractor is obliged not to deploy any temporary workers within the meaning of the German Temporary Employment Act (AÜG, Arbeitnehmerüberlassungsgesetz) and/or any employees who are not in possession of a valid work permit and/or a valid social security card. The contractor shall permit alfer aluminium or an authorised representative of alfer aluminium to carry out appropriate checks.
31.2 Any subcontracting of performances to subcontractors shall require alfer aluminium's consent in text form. In case of any subcontracting, the commissioned companies must be named. In the event of subcontracting to a foreign subcontractor, the contractor shall also inform alfer aluminium of the number and duration of work of the foreign employees to be deployed.
31.3 The contractor also undertakes vis-à-vis alfer aluminium to fulfil the obligations to pay the minimum wage and to pay the holiday fund contributions in accordance with the German Posted Workers Act (AEntG, Arbeitnehmer-Entsendegesetz), the collective bargaining provisions applicable to the contractor's business and the obligations under the German Minimum Wage Act (MiLoG, Mindestlohngesetz). The contractor's obligations under the MiLoG include, but are not limited to, the obligation to pay remuneration at least in the amount of the minimum wage at the latest by the due dates specified in the MiLoG, the obligation to record the start, end and duration of daily working hours and to retain these records.
31.4 The contractor is obliged to ensure that the subcontractors commissioned by it do not use any temporary workers within the meaning of the AÜG and/or any employees from third countries who are not in possession of a valid work permit and/or a valid social security card, that these subcontractors both fulfil the obligations under the MiLoG and impose these obligations on other subcontractors (socalled subsubcontractors) to the same extent.
31.5 alfer aluminium shall be entitled to request the contractor to provide evidence of fulfilment of the obligations pursuant to Clauses 31.1 to 31.4.
31.6 Should the contractor violate one or more of the obligations set out in Clauses 31.1 to 31.5, alfer aluminium shall be authorised, subject to any further rights, to set a reasonable grace period for the contractor to fulfil the obligations in question. Should this reasonable period expire without result, alfer aluminium shall be entitled to terminate the contract without notice and to claim damages in lieu of performance.
31.7 If the contractor commissions subcontractors, it shall indemnify alfer aluminium against all claims asserted against alfer aluminium for violation of the provisions of the AEntG by these subcontractors. In its internal relationship with alfer aluminium, the contractor shall assume solely and in full the obligations that apply to alfer aluminium and the contractor as coguarantors (Mitbürgen) pursuant to § 1a AEntG. The same shall apply to the commissioning of labour hire companies in accordance with the AÜG. Furthermore, the contractor shall indemnify alfer aluminium against any third-party claims arising from violations of obligations under the MiLoG.
32 Special Regulations for Services (Dienstleistungen):
32.1 alfer aluminium shall be entitled to full statutory claims in the event of breach of the contractor's primary and ancillary performance obligations (Haupt- und Nebenleistungspflichten), delay in performance, impossibility, default and nonperformance.
32.2 The general limitation period of three years shall apply, calculated from completion of the service or from handover of any work results, whichever occurs later.
Section D - Special Regulations for Work Performances (Werkleistungen):
33 Scope of Performance, Obligations of the Contractor
33.1 The contractor undertakes to manufacture/produce and deliver or make available to alfer aluminium the work exclusively in accordance with the description and specification set out in the individual contract and in accordance with the instructions issued by alfer aluminium in text form. Before work commences, the contractor must confirm in text form at alfer aluminium's request that it has taken note of the description and specification in all details.
33.2 If the review of the description and specification as well as the instructions in accordance with Clause 22.1 reveals ambiguities or if the contractor has reservations about the intended type of execution, the quality of the materials provided by alfer aluminium or the performances of other companies commissioned by alfer aluminium, it is the responsibility of the contractor to inform alfer aluminium of these in text form and to work towards an amicable clarification with alfer aluminium. A record of this clarification shall be drawn up by alfer aluminium and signed by both contracting parties.
33.3 Clause 33.2 shall apply accordingly if the ambiguities or concerns only arise in the course of the execution of the order. The contractor must suspend the provision of performances until the ambiguities or concerns have been fully resolved.
33.4 It is the contractor's responsibility to commence work only once the description and specification as well as alfer aluminium's instructions have been clarified in all details. The contractor may demand that alfer aluminium declare its approval – or partial approval, if applicable – for the performance of the work in text form.
33.5 Costs incurred by the contractor due to the fact that the necessary clarification of ambiguities was omitted shall be borne by the Contractor.
34 Change Request
34.1 If alfer aluminium deems changes to be relevant or necessary after conclusion of the contract, alfer aluminium shall inform the contractor without undue delay. In this case, both parties must agree on the resulting modifications to the content and execution of the contract.
34.2 If the subject matter of the contract is subsequently amended or extended, the contractor shall be entitled to demand an adjustment of the remuneration for the additional costs incurred as a result of the amendment if the contractor has notified alfer aluminium of this as an offer to amend the contract prior to the amendment or extension of the subject matter of the contract. The contractor will only be entitled to the increased remuneration if the offer to amend the contract is expressly accepted by alfer aluminium, whereby alfer aluminium undertakes to accept the offer if the contractor proves that the additional costs notified by it are caused by the subsequent amendment of the subject matter of the contract.
35 Obligations of alfer aluminium to Co-Operate
35.1 If alfer aluminium has to provide performances that are necessary for the performance of the work, alfer aluminium shall provide them in accordance with the contractually agreed description and specification and on the dates specified therein.
35.2 If alfer aluminium fails to provide these services as agreed, the contractor may demand reasonable compensation from alfer aluminium, the calculation of which is specified in the contract or the amount of which is set out in the contract as a lump sum.
35.3 The contractor shall offset against this compensation any expenses saved as a result of alfer aluminium's delay or what it is able to acquire through other use of its labour. The contractor shall be obliged to disclose this to alfer aluminium. The contractor may fulfil its duty of disclosure by allowing alfer aluminium – through an expert professionally bound to secrecy – to inspect the business books.
35.4 In such cases, the contractor shall not be entitled to terminate the contract unless the contractor cannot reasonably be expected to continue to adhere to the individual contract despite the compensation provided for herein.
36 Material
36.1 If it is the contractor's responsibility to procure the material for performance provision, it must do so at its own expense and risk. The material used by the contractor must comply with the contractually agreed description and specification and be free from defects and material faults. If the contractor wishes to use equivalent but different material, such use shall only be in accordance with the contract if alfer aluminium has given its prior consent in text form.
36.2 Insofar as alfer aluminium has specified certain sources of supply for the procurement of the material in the contract, only the use of the material originating from this source of supply shall be in accordance with the contract. In such cases and where alfer aluminium has a legitimate interest, the contractor is obliged, at alfer aluminium's request, to provide alfer aluminium with evidence of its supplier and the place of origin of the material.
37 Cancellation
37.1 Until acceptance, alfer aluminium shall be entitled to terminate the contract for work at any time without stating reasons.
37.2 If the individual contract is terminated by alfer aluminium, the Contractor shall be entitled to demand pro rata remuneration for the partial services already provided by it in accordance with the contract and for the contractual preparation of future partial services.
38 Acceptance
38.1 Acceptance of the work shall take place after completion. Partial acceptance shall not take place.
38.2 If expressly agreed, a record of the acceptance shall be drawn up and signed by both parties.
38.3 If the performance is not in accordance with the contract and alfer aluminium therefore rightly refuses acceptance or if acceptance takes place subject to the elimination of defects to be specified in the protocol, the contractor is obliged to provide performance in accordance with the contract without undue delay and to eliminate the defects, to notify the expected duration of the elimination of defects and to notify the elimination of defects after completion of the rework. If necessary, a new acceptance of the work performance shall take place.
39 Warranty (Gewährleistung), Limitation Period
39.1 alfer aluminium shall be entitled to the rights arising from material defects and defects of title (Sach- und Rechtsmängel) in accordance with the law on contracts for work (Werkvertragsrecht) in full.
39.2 The limitation period is 36 months and for work and planning services for buildings 72 months from acceptance.
39.3 In the event of subsequent fulfilment (Nacherfüllung), the limitation period pursuant to Clause 39.2 shall begin to run again from the completion of the rectification work. However, the new limitation period shall only apply to the rectified part of the work performance if only this – also dependent – part has been rectified.
39.4 The limitation period shall be extended by the time during which the work cannot be used due to a defect or its rectification. The suspension of the expiry of the limitation period shall begin on the day on which the contractor is notified of the defect and shall end when the delivered item can be used again by alfer aluminium.
alfer aluminium
Registration Court Freiburg
HRB 620 227