General Terms and Conditions

General Terms and Conditions

§ 1 General

Unless other written agreements are made, the following terms and conditions apply to all delivery contracts. The terms and conditions shall be deemed recognised if an order is placed or delivery accepted. Conflicting terms and conditions of the purchaser which have not been explicitly recognised in writing shall not be binding on ALUCA GmbH even if such terms and conditions are not explicitly contradicted.

§ 2 Offers

ALUCA GmbH shall only be committed to offers accepted within 30 days of the day on which such offers are issued.

§ 3 Pricing

Unless stated otherwise in the confirmation of order, our prices shall apply ex works Rosengarten exclusive of packaging; packaging shall be charged as a separate item. Statutory value-added tax is not included in our prices and the statutory VAT amount due on the invoice date shall be shown separately on the invoice.

§ 4 Confirmation of order

We shall only be deemed to have accepted orders placed with us after sending our written confirmation of order. Agreements with ALUCA GmbH representatives shall only be valid if confirmed in writing.

§ 5 Delivery period

Delivery periods shall be approximate only. Delivery periods shall commence on the day on which the confirmation of order is sent and shall be deemed to have been complied with if the goods have left the works by the end of the delivery period or, if the goods can be shipped, when notification of readiness for shipment is made. Performance is contingent on correct and timely delivery to us from our own suppliers. The delivery period shall be prolonged – including in the event of delivery delays – for a reasonable period in the event of unforeseen impeding circumstances which, despite exercising reasonable diligence, ALUCA GmbH is unable to prevent, such as stoppages, intervention by public authorities, power supply problems, delays in the delivery of essential materials. The same shall apply in the case of strikes and lockouts. Should such hindrances arise, we shall notify the affected purchaser immediately. If contractual changes are made at a later time which may influence the delivery period, this shall be prolonged for a reasonable period of time unless other special agreements have been made. Contractual penalties for default or other claims for compensation owing to delayed delivery are excluded. If a specific period of acceptance has not been agreed for later call off sales, the call off shall be issued by the purchaser in good time to enable ALUCA GmbH to make delivery within a reasonable period.

§ 6 Shipment and passage of risk

The shipment risk for all goods deliveries shall pass in all cases on delivery of the goods to the ALUCA GmbH shipping agent, at the latest however on leaving the works; the risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser regardless of whether shipment is made from the place of performance or who bears the shipping costs. If the goods are ready for shipment and if shipment or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer after notification of readiness for dispatch has been made. The weights and volumes determined by ALUCA GmbH at its works shall be authoritative for charging purposes. Damages and losses which occur during transport shall be payable by the purchaser. In order to ensure compensation claims arising on rail transport, the recipient shall obtain written confirmation of the damages from the rail carrier on the consignment note prior to acceptance.

§ 7 Obstacles to delivery

If ALUCA GmbH is prevented from fulfilling its obligations by the occurrence of unforeseeable extraordinary circumstances which, despite exercising reasonable diligence, it is not able to prevent – such as stoppages, intervention by public authorities, power supply problems, delays in the delivery of essential materials – the delivery period shall be extended by a reasonable period if it is no longer possible to provide the supplies or services. If the circumstances referred to mean that it is no longer possible to provide the supplies or services, ALUCA GmbH shall be released from the duty to supply and any ensuing customer claims for compensation and rights of rescission shall lapse.

§ 8 Warranty

If the entire shipment of goods is defective or if goods lack warranted characteristics or become defective during the warranty period, ALUCA GmbH shall – at its discretion and to the exclusion of other warranty claims of the customer – make substitute delivery or subsequent improvements. Such defects shall be determined immediately – obvious defects shall be notified within 14 days of receipt of the goods at the latest. Hidden defects shall be notified in writing immediately upon their discovery. If we fail to meet a reasonable period of grace granted to us without providing substitute performance or remedying a defect, or if subsequent improvements prove abortive, the customer shall, excluding all other claims, be entitled to withdraw. Claims for compensation based on impossibility of performance, default, positive breach of obligations, culpa in contrahendo and tortious acts are excluded, unless they are the result of intent or gross negligence on the part of ALUCA GmbH. In such cases the customer shall, excluding all other claims, be entitled to withdraw. The customer shall not be entitled to refuse or withhold performance on the basis of any counterclaims or offset against counterclaims unless such counterclaims are recognised by us or by declaratory judgement in a court of law. The warranty period is 12 months subsequent to the passage of risk. This period is a period of limitation and applies to claims for compensation of subsequent defect-related damages provided that no claims based on tortious acts are made.

§ 9 Packaging

Packaging is charged on shipment at cost and is not taken back.

§ 10 Payment terms

Our invoices are payable at no discount within 8 days of invoicing. The customer shall be deemed to have defaulted on payment on the due date for net payment without the need to issue a reminder. In the event of default in payment, we shall charge €5 for a second reminder and €10 for all further reminders. Bills of exchange and cheques shall only be accepted on account of payment; the customer shall bear any discounting and collection costs. Interest of 3% above the discount rate of the Deutsche Bundesbank (German Federal Reserve Bank) shall be charged on all due claims. If payment is deferred, the same shall apply to the period of such deferment. We reserve the right to assert further claims for damages arising from delay in the event of default by the customer. If the customer is in arrears with payments arising from existing contracts by more than 15 days or if the customer has discontinued payments or has experienced a serious deterioration in financial circumstances, our claims derived from all existing contracts with the customer shall be due for settlement immediately; deferments or other postponements in payment – including accepted bills of exchange – shall terminate; we shall be entitled to demand advance payment of the price or the furnishing of security for goods which have not yet been shipped.

§ 11 Retention of title

The delivered goods shall remain our property pending full settlement of all claims arising from the business relationship between ALUCA GmbH and the customer. Payment shall only be deemed to have been made upon receipt of the proceeds by ALUCA GmbH. The customer shall be entitled to resell the retained goods in the normal course of business but shall not be entitled to pledge the goods or transfer or assign the same for security. If the retained goods are resold on credit, the customer shall secure the rights of the owner of the retained goods. The customer's claims arising from the resale of the retained goods shall be herewith transferred to ALUCA GmbH which hereby accepts such assignment. The customer shall make the information about the assigned claims required for collection purposes available on request and shall notify the debtors about such assignment. If the goods are resold or joined with other items, ALUCA GmbH shall acquire co-title to the new item in the proportion of the value of the joined, mixed or blended retained goods to the value of the new item. The customer shall assume responsibility for storing the new item at no charge, including the co-owned portion of the same, on behalf of ALUCA GmbH. Despite this retention of title, the customer shall continue to bear the risk of loss and deterioration in the goods. In the event of the customer's default on payment or financial collapse ALUCA GmbH retains the right to repossess the retained goods immediately.

§ 12 Place of performance and legal venue

The place of performance for deliveries and payables is Schwäbisch Hall. The legal venue for both contracting parties shall also be Schwäbisch Hall.

§ 13 Applicable law

All our supplies and services shall be subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sales of Goods.

Schwäbisch Hall, July 2004