Terms and Conditions of Supply and Payment
1.1 As of 01/01/2021, these Terms and Conditions of Supply and Payment apply to all purchase contracts between ourselves and our customers if they are entrepreneurs, entities under public law and special funds under public law.
1.2 Entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of its commercial or independent professional activity.
1.3 If the customer’s terms and conditions of purchase differ from these Terms and Conditions of Supply and Payment, such terms and conditions of purchase shall only apply insofar as we expressly accept their application in text form (e.g. in writing or via email). Counter-confirmations by a customer citing its own terms and conditions are herewith expressly contested and rejected.
1.4 Our Terms and Conditions of Supply and Payment shall also apply exclusively and without restriction even if we effect supply to the customer without reservation in awareness of contrary or differing terms and conditions of the customer.
1.5 If any provisions deviating from individual terms of these Terms and Conditions of Supply and Payment are agreed between us and the customer, the validity of the remaining provisions of these Terms and Conditions of Delivery and Payment shall not be affected thereby.
2. Conclusion and subject of the agreement
2.1 Any and all of our offers are non-binding.
2.2 Models, illustrations, drawings, colour tones, etc., that are contained in catalogues, brochures and other printed matter may differ slightly from the features of the products to be supplied as a result of printing technology; such differences shall not be deemed to constitute defects.
2.3 Illustrations and drawings relating to our goods in brochures, written advertising material and on price lists as well as the data contained therein, e.g. on material, dimensions or shape, shall only become a legally binding part of the agreement if the agreement expressly makes reference to such.
2.4 Information on product properties does not constitute a guarantee of quality or durability.
3. Custom-made products
3.1 Custom-made products shall designate all models that deviate from the models referenced in the current catalogue or brochure. This especially applies with regard to colours.
3.2 Without exception, orders for custom-made products require written confirmation by both parties of any information on design, dimensions, etc.
3.3 The customer shall not acquire any rights to tools by virtue of paying remuneration for costs or shares of costs for the creation or acquisition of tools; we shall retain title to tools.
3.4 Requested samples shall only be supplied subject to charge.
3.5 In case of custom-made products, we shall not be liable for defects resulting from documents submitted by the customer.
3.6 If the custom-made product is manufactured based on drawings, models or other information provided by the customer, we shall not be liable for the violation of third-party intellectual property rights. The customer shall indemnify us with respect to claims by third parties.
4. Minimum order value and prices
4.1 The minimum order value for initial orders is EUR 500.00 plus taxes and customs duties.
4.2 Prices are valid in the indicated currency and do not include applicable taxes (e.g. VAT) and custom duties and, if nothing to the contrary results from the order confirmation, apply EXW (Incoterms 2020) from our plants not including freight and packaging.
5. Freight and packaging costs
5.1 The weights and piece numbers determined upon shipment shall apply in the calculation of freight costs.
5.2 Packaging costs shall be charged at the usual rates in this line of business.
6. Delivery and transfer of risk
6.1 EXW (Incoterms 2020) from our plants shall apply to delivery and transfer of risk even if we assume the freight costs.
6.2 If the goods are ready for shipment and shipment is delayed for reasons for which the customer is responsible, in particular on request of the customer, risk shall pass to the customer upon receipt of the notice of readiness for dispatch; however, we are obliged to effect the insurance requested by the customer at the customer’s request and expense. The customer’s payment obligations remain unaffected by this.
7. Delivery periods, non-availability of performance and delay
7.1 The delivery period shall be agreed individually or specified by us upon acceptance of the order.
7.2 A bindingly committed delivery period shall commence upon the date on which our confirmation of order is sent, but at the earliest at the point in time at which all documents and data to be provided by the customer are received by us.
7.3 The delivery period shall be deemed to be met if prior to its expiry – depending on the agreed type of delivery – the goods have left the warehouse or we have made the goods available for the customer and informed him that they are ready for dispatch.
7.4 If we are unable to meet binding delivery periods for reasons that we are not culpably responsible for (non-availability of performance), we shall notify the customer without undue delay and at the same time notify the customer about the probable new delivery period. If the good to be delivered is still not available before the expiry of the new delivery period for reasons for which we are not responsible, we shall be entitled to cancel the agreement in whole or in part; we shall repay any consideration already rendered by the customer without undue delay. The case of non-availability of performance in this sense shall include in particular the failure of our suppliers to deliver to us on time if we have concluded a congruent hedging transaction or if neither we nor our suppliers are at fault or if we are not obliged to procure the goods in individual cases.
7.5 The default of our delivery shall be determined in accordance with the statutory provisions. In any case a claim to compensation for late delivery on the part of the customer shall be subject to the requirement that the customer has set us a reasonable grace period and we have not effected delivery within this period.
7.6 Our liability for delay shall be limited according to clause 11 of the terms and conditions of delivery and payment below. The legal rights of the parties shall otherwise remain unaffected.
8. Partial delivery, partial delay and partial impossibility
8.1 Partial deliveries are permissible and independently billable, as far as this is reasonable for the customer and he has an objective interest in the partial delivery.
8.2 In the event of a partial delay or partial impossibility, the customer may only withdraw from the entire contract or claim damages for non-performance of the entire obligation if the partial performance of the contract is of no interest to him.
8.3 In all other respects, the provisions of the Clause 7 above shall apply mutatis mutandis to partial default.
9. Terms and conditions of payment
9.1 Our invoices shall be due for payment into the stated bank account immediately without deduction from invoice date.
9.2 If the customer fails to pay the purchase price in due time, statutory law shall apply. The date when payment is credited to the account stated for payment on the invoice shall apply in determining whether payment has been effected in due time by the customer. The customer shall bear all additional costs that arise in connection with the selection of the means of payment.
9.3 We shall be entitled to transfer our claims emanating from the business relationship with the customer for the purposes of factoring.
9.4 Setting off shall only be possible in the case of counter-claims that are based on the same legal relationship, that have been effectively established by a court of law or government authority, or are uncontested or recognised.
9.5 The customer shall only be entitled to exercise a right of retention if its effective and due counter-claim is based on the same legal relationship.
9.6 We shall be entitled to credit payments effected by the customer to older debt of said party.
9.7 Notwithstanding other rights and remedies, if the term of payment is exceeded, we may charge default interest at least in the amount of the interest rates and expenses charged by the banks for current loans.
10. Examination and notification of defects
10.1 The customer shall properly examine the goods or have the goods properly examined without undue dely. The customer’s obligation to inspect shall extend to the entire delivery.
10.2 Shipping papers may not be signed (including subject to reservation) before the number of boxes delivered has been compared with the information contained in the shipping papers. Boxes that are missing or damaged must be noted with precise information on such being provided on the shipping papers and be confirmed by the freight carrier driver by means of a clearly identifiable signature.
10.3 The customer has to give immediate notice of any recognisable defects in writing in text form, at the latest within 3 working days (Saturday shall not be deemed to be a working day) from the date of delivery, with exact details of the alleged individual defects; otherwise the goods shall be deemed to have been approved.
10.4 Hidden defects must be reported in text form immediately after discovery, at the latest after expiry of 7 working days (Saturday does not count as working day); otherwise the goods shall also be deemed approved with regard to these hidden defects.
11. Liability for defects
11.1 Goods for which a complaint has been issued shall be properly stored and kept available to us.
11.2 We shall be provided the opportunity to inspect the goods for which a complaint has been issued.
11.3 If after a notice of lack of conformity is issued by the customer no violation of the agreement can be identified, the customer shall reimburse us for the costs incurred in connection with the inspection of the goods.
11.4 If a defect is demonstrated, we shall be entitled at our choice either remedy the lack defect by repair or supply a substitute contemporaneously with return of the defective goods (subsequent performance).
11.5 Claims arising from supplier recourse (in particular for dismantling and installation costs) shall be governed by the law. Such claims are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
11.6 If the subsequent performance fails, the customer shall be entitled to a reduction in price or withdrawal as well as damages in accordance with the statutory provisions., the customer shall be entitled to a reduction in price or withdrawal in accordance with statutory provisions; however, the scope of liability shall be limited in accordance with Clause 12 below.
11.7 Defects of partial delivery shall not entitle the customer to reject the remaining performances unless the customer is entitled to withdraw from the entire contract due to the defective partial performance.
12.1 We shall bear unlimited liability for harm to life and limb or health impairment that is due to the negligent violation of an obligation by ourselves or that is due to a intentional or negligent violation of an obligation by our legal representative or vicarious agent as well as in case of strict liability, in particular according to the German Product Liability Act and on the assumption of a guarantee.
12.2 We shall be liable without limitation for other damages which are based on an intentional or grossly negligent breach of duty by us or on an intentional or grossly negligent breach of duty by our legal representative or vicarious agent.
12.3 We shall moreover only bear liability in the case of negligent violation of an essential contractual obligation and only for direct damage that was foreseeable and which typically occurs at the point in time when the agreement was concluded. An essential contractual obligation shall be deemed to be an obligation that makes the proper fulfilment of the agreement concluded with the customer possible in the first place and which the customer trusted in and was able to trust in and the culpable failure to fulfil such jeopardises achievement of the purpose of the agreement.
12.4 Our liability is excluded in all other cases, in particular for indirect damage and subsequent damage (including foregone profit, loss of goodwill, damage due to loss of production and comparable expenses).
12.5 Insofar as our liability is excluded or limited, this shall also apply to our employees, representatives and vicarious agents.
13. Limitation period
13.1 In the event of supplier recourse in the supply chain of a sale of consumer goods, in the event of statutory strict liability, in particular under the German Product Liability Act and in the event of guarantee liability, the statutory limitation period shall apply.
13.2 In the case of damages resulting from injury to life, body or health which are based on a negligent breach of duty by us or an intentional or negligent breach of duty by our legal representative or vicarious agent, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by us or on an intentional or grossly negligent breach of duty by our legal representative or vicarious agent, as well as damages which are based on an intentional or negligent breach of essential contractual obligations from the respective contract by us or our legal representative or vicarious agent, the statutory warranty period shall also apply.
13.3 In the case of a building and an object which has been used for a building in accordance with its customary use and has caused its defectiveness, the limitation period shall be five years.
13.4 In all other cases, the limitation period shall be one year.
14. Reservation of title
14.1 We reserve title to the goods supplied by us (reserved goods) until payment of all current and future claims emanating from the purchase agreement and the ongoing business relationship (the claims to be secured) is effected.
14.2 By processing the reserved goods, the customer does not acquire ownership of the goods manufactured in whole or in part; the processing is carried out free of charge exclusively for us. Should the retention of title nevertheless expire due to any circumstances, we and the customer hereby agree that ownership of the goods shall pass to us upon processing. We accept the transfer of ownership. The customer remains the free custodian of these processed goods.
14.3 In the event of processing or mixing with goods owned by third parties, we shall acquire co-ownership of the new goods. The extent of such co-ownership shall be determined by the ratio of the invoice value of the reserved goods to the invoice value of the remaining goods.
14.4 The customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to us the claim arising from the resale of the reserved goods, including to the extent that the goods have been processed or mixed. If the processed product of our goods subject to retention of title contains only such items which either belonged to us or were delivered only under the so-called simple retention of title, the customer shall assign the entire purchase price claim to us. In the other case, i.e. if the advance assignments to several suppliers coincide, we shall be entitled to a fraction of the claim, corresponding to the ratio of the invoice value of our reserved goods to the invoice value of the other processed items.
14.5 The customer may collect the outstanding amounts for us in his own name until revoked. This authorisation to collect can only be revoked if the customer does not properly meet his payment obligations. At our request, the customer shall in such a case provide the information on the assigned claims required for collection, make the corresponding documents available and notify the debtor of the assignment.
14.6 The right to resell or process the reserved goods and to collect accounts receivable shall lapse upon cessation of payments by the customer, an application for the opening of insolvency proceedings against the assets of the customer or seizure of the reserved goods. Any assigned accounts receivable received thereafter shall be accumulated immediately in a special account.
14.7 The customer shall notify us without undue delay in the event of attachment, confiscation or similar and in the event of the reserved goods being damaged and/or lost; any violation of this obligation shall entitle us to withdraw from the purchase agreement. The customer shall bear all the costs that have had to be incurred particularly within the framework of a third -party action successfully lifting an attachment and that may have had to be incurred to successfully reacquire the reserved goods if such cannot be collected from third parties.
14.8 We shall be obligated to release collateral that we are entitled to to the extent that the realisable value of the collateral exceeds our claims to be secured by more than 10 % if so requested by the customer. The above-mentioned coverage limit of 110 % shall be increased by the amount of value added tax if we are burdened with value added tax on the realisation of the secured goods which arises from a value added tax delivery by the customer to us. The customer is also entitled to demand the release of securities if the estimated value of the goods assigned as security exceeds 150 % of the claims to be secured. We shall be entitled to choose the securities to be released.
14.9 If we have effectively withdrawn from the purchase agreement, we shall be entitled to take back the reserved goods if we have threatened to take the goods back a reasonable time in advance. The costs incurred as a result of exercise of the right to take back the goods, in particular transport costs, shall be borne by the customer. We shall be entitled to exploit the reserved goods and satisfy our claims from the proceeds from such exploitation if we have threatened such exploitation a reasonable time in advance. If the proceeds exceed the unsatisfied claims emanating from the contractual relationship, this surplus amount shall be handed over to the customer.
14.10 If a prolonged or extended retention of title according to Sections 14.2 to 14.6 is not effective under the law of the place where the reserved goods are located, the customer shall not be entitled to resell the reserved goods unless he grants us another corresponding means of security and performs the necessary actions for this purpose. The customer shall also be obliged to provide such security if the law of the place where the reserved goods are located does not recognise any retention of title at all.
15. Deterioration in assets and creditworthiness
15.1 If a deterioration in the customer’s financial situation occurs after conclusion of the contract, we shall be entitled to perform outstanding deliveries and services only against the provision of security. If the customer is not able to provide the required security within a reasonable period, we shall be entitled to withdraw from the contract.
15.2 The same shall apply if facts become known to us after conclusion of the contract which give rise to justified doubts as to the solvency or creditworthiness of the customer, unless the customer can prove that these facts were already known to us when the contract was concluded or should have been known if the necessary care had been taken.
15.3 Furthermore, in the above cases we are entitled to prohibit further processing and resale of the reserved goods on the basis of the retention of title agreed in Clause 14 and to revoke the collection authorisation in accordance with Clause 14.5.
16. Place of fulfilment, applicable law and legal venue
16.1 The place of fulfilment for delivery and payment shall be our head office (Wutöschingen, Germany).
16.2 German law applies, however, the Convention of the United Nations on the International Sale of Goods from 11/04/1980 (CISG) shall be excluded.
16.3 If the customer is a merchant under German law, a legal entity under public law or a special fund under public law or if the customer or the branch of the customer concluding the contract has its registered office outside the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Wutöschingen. The same applies if the customer does not have a general place of jurisdiction in Germany, moves his registered office, domicile or usual place of residence outside Germany after conclusion of the contract or his registered office, domicile or usual place of residence is not known at the time the action is filed. We shall, however, also be entitled to assert claims with courts having jurisdiction over the customer.
alfer® aluminium Gesellschaft mbH
Commercial Register of Freiburg Local Court
HRB 620 227