General Terms and Conditions of Purchase of ALUCA GmbH
§ 1 Scope of application, form
(1) These General Terms and Conditions of Purchase (“Terms and Conditions”) apply to all business relationships with ALUCA business partners and suppliers (“Vendors”). These Terms shall only apply if the Vendor is an entrepreneur (§ 14 BGB, (German Civil Code)), a legal entity under public law or a special fund under public law.
(2) These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Vendor manufactures the Goods themselves or purchases them from suppliers (§§ 433, 650 BGB, (German Civil Code)). Unless otherwise agreed, these Terms and Conditions in the wording valid at the time of placing the Buyer’s order or in the wording as it was last notified in text form shall also apply as a framework agreement for similar future contracts, without having to refer to them again in each individual case.
(3) These Terms and Conditions apply exclusively. Deviating, conflicting or supplementary Terms and Conditions of the Vendor shall only become part of the contract if and insofar as ALUCA expressly consented to their validity in writing. The above requirement of consent shall apply in any case, for example, even if the Vendor’s deliveries have been accepted without reservation in full knowledge of the Vendor’s Terms and Conditions.
(4) Individual agreements made in individual cases with the Vendor (including additional agreements, supplements, and amendments) shall, in any case, take precedence over these Terms and Conditions. If not proven to the contrary, the content of such agreements shall be governed by a written contract or ALUCA written confirmation.
(5) Legally relevant declarations and notifications of the Vendor concerning the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal requirements concerning the form and further proof, in particular in cases of doubt as to the legitimacy of the declaring party, remain unaffected.
(6) References to the validity of legal regulations have only a clarifying meaning. Even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these Terms and Conditions.
§ 2 Contract conclusion
(1) ALUCA order shall be deemed binding at the earliest upon written submission or confirmation. The Vendor shall notify ALUCA of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order, including order documents, in order for ALUCA to correct or complete them before order acceptance; otherwise the contract shall be deemed not to have been concluded.
(2) The Vendor is obliged to confirm ALUCA order in writing within a period of 5 working days or, in particular, to execute it unconditionally by dispatching the Goods (acceptance).
A delayed acceptance is considered a new offer and requires ALUCA further acceptance.
§ 3 Delivery time and delay in delivery
(1) The delivery time given by ALUCA in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it amounts to 10 working days from the conclusion of the contract. The Vendor is obliged to inform ALUCA immediately in writing if it is probable that they will not be able to meet the agreed delivery times, for whatever reason.
(2) If the Vendor does not provide their service or does not provide it within the agreed delivery period or if they are in default, ALUCA rights – in particular to withdrawal and damages – shall be determined in accordance with the statutory provisions. The provisions in paragraph 3 herein remain unaffected.
(3) If the Vendor is in default, ALUCA may – in addition to other statutory claims – demand lump-sum compensation for ALUCA damage caused by the default, amounting to 1% of the net price per full calendar week but not more than a total of 5% of the net price of the goods delivered late. ALUCA reserves the right to prove that a higher damage was incurred.
The Vendor reserves the right to prove that no damage at all or only considerably less damage was incurred.
§ 4 Performance, delivery, transfer of risk, default of acceptance
(1) Without ALUCA prior written consent, the Vendor shall not be entitled to allow the performance due by it to be performed by third parties (e.g. subcontractors). The Vendor bears the performance risk for its services, unless otherwise agreed in individual cases (e.g. limitation of stock).
(2) Within Germany, the delivery takes place as “free domicile” to the place indicated in the order. If the destination is not specified and nothing else has been agreed, the delivery shall be made to ALUCA seat in 74538 Rosengarten/Germany. The respective destination shall also be the place of performance for delivery and any subsequent performance (obligation to fulfil).
(3) The delivery must be accompanied by a delivery note stating the date (of issue and of dispatch), the contents of the delivery (article number and quantity), and ALUCA order identification data (date and number). If the delivery note is missing or incomplete, ALUCA is not responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content shall be sent to ALUCA separately from the delivery note.
(4) The risk of accidental loss and worsening of the Goods shall be transferred to ALUCA upon delivery at the place of performance. If acceptance is agreed, it is tantamount to transfer of risk. In the case of acceptance the statutory provisions of the law on contracts for work and services shall also apply in all other respects. If ALUCA is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(5) The statutory provisions shall apply to ALUCA default of acceptance. However, the Vendor must also expressly offer its services to ALUCA if a specific or determinable calendar period has been agreed for an action or collaboration on ALUCA part (e.g. provision of material). If ALUCA is in default of acceptance, the Vendor may demand reimbursement of its additional expenses in accordance with the statutory provisions (§ 304 BGB, (German Civil Code)). If the contract concerns specific items to be manufactured by the Vendor (one-off production), the Vendor shall only have further rights if ALUCA has undertaken to collaborate and is responsible for the failure to do so.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices are exclusive of statutory value added tax, which must be specified separately.
(2) Unless otherwise agreed in individual cases, the price shall include all services and auxiliary services of the Vendor (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including acceptance if any) and receipt of a proper invoice. If ALUCA makes the payment within 14 calendar days, the Vendor shall grant ALUCA a discount of 3% on the net amount of the invoice. In the case of bank transfers, payment is deemed to have been made on time if ALUCA transfer order is received by ALUCA bank before the expiry of the payment deadline; ALUCA is not responsible for delays caused by the banks involved in the payment process.
(4) ALUCA does not owe any interest due. The statutory provisions shall apply to default in payment.
(5) ALUCA has the right to set-off and retention as well as to plea contract non-performance to the extent permitted by law. In particular, ALUCA is entitled to withhold due payments as long as ALUCA is still entitled to claims against the Vendor because of incomplete or defective services.
(6) The Vendor has a right to set-off or retention only based on legally established or undisputed counterclaims.
§ 6 Confidentiality and retention of title
(1) ALUCA reserves ownership rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents shall be used exclusively for the purpose of contractual performance and shall be returned to ALUCA after completion of the contract. The documents must be kept secret from third parties even after termination of the contract. The obligation to secrecy shall not expire until and to the extent that the knowledge contained in the documents becomes generally known.
(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples, and other objects which ALUCA provides to the Vendor for manufacture. Such objects shall – as long as they are not processed – be kept separately at the Vendor’s expense and insured to an appropriate extent against destruction and loss.
(3) Any processing, mixing or combining (further processing) of provided objects by the Vendor shall be carried out on ALUCA behalf. The same applies to further processing of Goods delivered by ALUCA, so that ALUCA is deemed to be the manufacturer and acquire ownership of the product in accordance with the statutory provisions at the latest upon further processing.
(4) The transfer of ownership of the Goods to ALUCA must take place unconditionally and regardless of the payment of the price. However, if, in an individual case, ALUCA accepts an offer by the Vendor to transfer ownership conditional on payment of the purchase price, the Vendor’s retention of title shall expire at the latest upon payment of the purchase price for the delivered Goods. In the ordinary course of business, ALUCA shall also remain authorised to resell the Goods prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title, and the retention of title extended to further processing.
§ 7 Defective delivery
(1) Statutory provisions shall apply to ALUCA rights in the event of material defects and defects of title of the goods (including incorrect and incomplete delivery as well as improper assembly and defective assembly, operating or maintenance instructions) and in the event of other breaches of duty by the Vendor, unless otherwise specified below.
(2) According to the statutory provisions, the Vendor shall be liable in particular for ensuring that the Goods have the agreed quality upon transfer of risk to ALUCA. Any product descriptions which – in particular by designation or reference in ALUCA order – are the subject matter of the respective contract or which were included in the contract in the same way as these Terms and Conditions shall in any case be deemed to be agreements on quality. It is irrelevant whether the product description comes from ALUCA, the Vendor or the manufacturer.
(3) Contrary to § 442 paragraph 1 S. 2 BGB (German Civil Code), ALUCA shall also be entitled to assert claims for defects without restriction if the defect remained unknown to ALUCA at the time of conclusion of the contract due to gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: ALUCA obligation to inspect is limited to defects which become apparent during ALUCA incoming goods inspection, an external inspection, including the delivery documents (e.g. transport damage, wrong and incomplete delivery) or are recognised during ALUCA quality control by random sampling. If acceptance has been agreed, there is no obligation to inspect. In other cases, the extent to which an investigation is feasible in the ordinary course of business is decisive, taking into account the circumstances of the individual case. ALUCA obligation to give notice of defects discovered later shall remain unaffected. Irrespective of ALUCA obligation to inspect, ALUCA complaints (notice of defects) shall in any case be deemed immediate and timely if it is dispatched within 5 working days from discovery or, in the case of obvious defects, from delivery.
(5) Supplementary performance shall also include removal of the defective Goods and their reinstallation if the Goods have been installed in another item or attached to another item in accordance with their type and intended use; ALUCA statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Vendor shall bear the expenses necessary for inspection and supplementary performance even if it turns out that no defect actually existed. ALUCA liabilities for damages in the event of an unjustified demand to remedy defects shall remain unaffected; in this respect, however, ALUCA shall only be liable if ALUCA has recognised or in gross negligence failed to recognise that no defect existed.
(6) Irrespective of ALUCA statutory rights and the provisions in paragraph 5, the following shall apply: If the Vendor does not fulfil his obligation of supplementary performance – at ALUCA discretion by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) – within a reasonable period set by ALUCA, ALUCA shall be entitled to remedy the defect ourselves and demand reimbursement from the Vendor of the expenses required for this or a corresponding advance payment. If supplementary performance by the Vendor has failed or is, in ALUCA opinion, unreasonable (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline shall be set; ALUCA shall inform the Vendor of such circumstances immediately and, if possible, in advance.
(7) Otherwise, in the event of a material defect or defect of title, ALUCA shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. In addition, ALUCA is entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
§ 8 Supplier recourse
(1) ALUCA has the right to legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB, (German Civil Code)) without restriction, in addition to the claims based on defects. In particular, ALUCA shall be entitled to demand from the Vendor exactly the type of supplementary performance (rectification of defects or replacement delivery) which ALUCA owe to ALUCA customer in the individual case. ALUCA legal right to choose (§ 439 section 1 BGB, (German Civil Code)) is not restricted by this.
(2) Before ALUCA acknowledges or fulfil a claim for defects asserted by ALUCA customer (including reimbursement of expenses pursuant to §§ 445a paragraph 1, 439 paragraph 2 and 3 BGB, (German Civil Code)), ALUCA shall notify the Vendor and request a written statement briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period and no amicable solution is reached, the claim for defects effectively allowed by ALUCA shall be deemed to be owed to ALUCA customer. In this case, the Vendor shall be responsible for providing proof to the contrary.
(3) ALUCA claims arising from supplier recourse shall also apply if the defective goods have been further processed by ALUCA or another entrepreneur, e.g. by installation in another product.
§ 9 Producer liability
(1) If the Vendor is responsible for product damage, it shall indemnify ALUCA from claims of third parties to the extent that the cause lies within its sphere of control and organisation and it alone is liable in the external relationship.
(2) Within the scope of its obligation to indemnify, the Vendor shall reimburse expenses pursuant to §§ 683, 670 BGB, (German Civil Code) which arise from or in connection with claims asserted against third parties, including recall actions carried out by ALUCA. As far as possible and reasonable, ALUCA shall inform the Vendor of the content and scope of recall measures and give it the opportunity to comment. Further legal claims remain unaffected.
(3) The Vendor shall take out and maintain product liability insurance with lump-sum coverage of at least EUR 10 million per personal injury/property damage.
§ 10 Statute of limitations
(1) Mutual claims of the contracting parties fall under the statute of limitations in accordance with the statutory provisions, insofar as nothing to the contrary is stipulated below.
(2) Contrary to § 438 paragraph 1 No. 3 BGB (German Civil Code), the general limitation period for warranty claims is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem by third parties (§ 438 paragraph 1 No. 1 BGB, (German Civil Code)) remains unaffected. Claims arising from defects of title shall not fall under the statute of limitations under any circumstances as long as the third party can still assert the right against ALUCA – in particular in the absence of a statute of limitations.
(3) Limitation periods resulting from the sales law including the above extension shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as ALUCA is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB, (German Civil Code)) shall apply unless application of the limitation periods resulting from the sales law in individual cases leads to a longer limitation period.
§ 11 Data protection and personal data
(1) These Terms and Conditions, valid for ALUCA and its customers, are subject to the applicable data protection regulations.
(2) The Parties shall cooperate fully to enable the other Party to fulfil its obligations under the relevant laws and regulations on the protection of personal data.
(3) In fulfilling its obligations under the contract, ALUCA shall comply with all relevant laws and regulations on the protection of personal data in relation to the Supplier.
(4) ALUCA shall only process the Supplier’s personal data on the Supplier’s behalf to the extent necessary to fulfil its contractual obligations.
(5) ALUCA shall take appropriate technical and organisational measures to protect the Supplier’s personal data from unauthorised or unlawful processing.
(6) If necessary, ALUCA data processing information shall be attached to these Terms and Conditions by ALUCA and signed by the Supplier.
§ 12 Compliance with the law
The Supplier warrants to comply with all applicable laws, regulations, and requirements, including any applicable import/export controls, sanctions, embargoes or other restrictions in respect of Goods delivered to ALUCA under these Terms and Conditions. The Supplier shall indemnify ALUCA and its affiliated companies against all claims, losses, damages, costs, penalties, and/or fines incurred by ALUCA as a result of breach of the above warranty.
§ 13 Choice of law and place of jurisdiction
(1) These Terms and Conditions and the contractual relationship between ALUCA and the Vendor shall be governed by the laws of the Federal Republic of Germany with the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Vendor is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be ALUCA registered office in 74538 Rosengarten/Germany. The same applies if the Vendor is an entrepreneur within the meaning of § 14 BGB, (German Civil Code). In all cases, however, ALUCA shall also be entitled to take legal action at the place of performance of the delivery obligation in accordance with these Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Vendor. Prevailing statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
HRB 781985, Amtsgericht Stuttgart