General Terms and Conditions of Sale of ALUCA GmbH
§ 1 Scope of application, form
(1) These General Terms and Conditions of Sale (“Terms and Conditions”) apply to all ALUCA business relations with ALUCA customers (“Buyers”). These Terms and Conditions shall only apply if the Buyer 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 ALUCA manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 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) ALUCA Terms and Conditions apply exclusively. Deviating, conflicting or supplementary Terms and Conditions of the Buyer shall only become part of the contract if and insofar as ALUCA expressly consented to their validity. The above requirement of consent shall apply in any case, for example even if ALUCA carries out a delivery to the Buyer without reservation in full knowledge of the Buyer’s general terms and conditions.
(4) Individual agreements made in individual cases with the Buyer (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 Buyer concerning the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) 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 offers are subject to change and non-binding. This shall also apply if ALUCA has provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which ALUCA reserves ownership rights and copyrights.
(2) Ordering of the goods by the Buyer is considered as a binding contract offer. Unless otherwise stated in the order, ALUCA shall be entitled to accept this contractual offer within 10 working days of its receipt by ALUCA.
(3) Acceptance can be explained either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.
§ 3 Delivery deadline and delay in delivery
(1) The delivery period shall be agreed individually or specified by ALUCA upon acceptance of the order. All dates stated in offers and order confirmations are non-binding, expected delivery dates are ex works and also subject to the express reservation of self-delivery. ALUCA shall be entitled to withdraw from the contract if ALUCA does not receive the delivery item despite the prior conclusion of a corresponding purchase contract; ALUCA liability for intent or negligence in accordance with § 8 of these Terms and Conditions shall remain unaffected. ALUCA shall immediately inform the Buyer of the untimely availability of the delivery item and, if ALUCA intends to withdraw from the contract, shall immediately exercise the right of withdrawal.
(2) If ALUCA is unable to meet delivery deadlines for reasons for which ALUCA is not responsible (impossibility of performance), ALUCA shall inform the Buyer thereof without delay and at the same time inform it of the expected new delivery period. If the performance is also not available within the new delivery period, ALUCA shall be entitled to withdraw from the contract in whole or in part; ALUCA shall immediately reimburse any consideration already rendered by the Buyer. In particular, the non-timely self-delivery by ALUCA supplier shall be deemed as impossibility of performance. If ALUCA has concluded a congruent hedging transaction, neither ALUCA nor ALUCA supplier are at fault nor are ALUCA obliged to procure in individual cases.
(3) ALUCA delay in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder by the Buyer is necessary. If ALUCA is in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. For each full calendar week of delay, the lump-sum compensation shall amount to 0.5% of the net price (delivery value) but not more than a total of 5% of the delivery value of the Goods delivered late. ALUCA reserves the right to prove that no damage at all or only considerably less damage was incurred by the Buyer than the lump-sum compensation.
(4) The Buyer’s rights pursuant to § 8 of these Terms and Conditions and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is executed ex warehouse (INCOTERMS 2010: EXW), which shall also be the place of performance for delivery and any subsequent performance. At the request and expense of the Buyer, the Goods shall be shipped to another destination (mail order purchase). Unless otherwise agreed, ALUCA shall be entitled to determine the type of dispatch (in particular: transport company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and worsening of the goods shall pass to the Buyer at the latest when the Goods are handed over. In the case of mail order purchase, however, the risk of accidental loss and accidental worsening of the goods as well as the risk of delay shall pass upon delivery of the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment. If acceptance is agreed, it is tantamount to transfer of risk. In the case of agreed acceptance, the statutory provisions of the law on contracts for work and services shall also apply in all other respects. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or delays ALUCA delivery due to other reasons for which it is responsible, ALUCA shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this, ALUCA charges a lump-sum compensation in the amount of 50,00 EUR per calendar day, beginning with the delivery date or – in the absence of a delivery date – with the notification that the Goods are ready for dispatch.
(4) The proof of higher damages and ALUCA statutory claims (in particular reimbursement of additional expenses, appropriate compensation or termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims. The Buyer has the right to prove that ALUCA has incurred no damage at all or only considerably less damage than the above lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, ALUCA prices valid at the time of conclusion of the contract apply, ex warehouse, plus statutory value-added tax.
(2) In the case of mail order purchase (§ 4 section 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by it. Unless ALUCA includes actual transport costs incurred in the individual case on the invoice, a flat-rate transport charge (excluding transport insurance) shall be deemed as agreed, determined individually between the parties. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.
(3) The purchase price is due and payable within 14 days of the issue of invoice and delivery or acceptance of the goods. However, also within the framework of an ongoing business relationship, ALUCA is entitled at any time to make a delivery in whole or in part only against advance payment. ALUCA thereby declare a relevant reservation at the latest with the order confirmation.
(4) The Buyer is in default upon expiry of the aforementioned payment period. Statutory interest shall be charged to the purchase price during the period of default at the rate applicable at the time. ALUCA reserves the right to assert further claims for damages caused by default. ALUCA claims against merchants to commercial default interest (§ 353 HGB (German Commercial Code) remains unaffected.
(5) The Buyer shall only be entitled to set-off or retention rights to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 section 6 sentence 2 of these Terms and Conditions.
(6) If it becomes apparent after conclusion of the contract (e.g. by filing for the opening of insolvency proceedings) that ALUCA claim to the purchase price is at risk due to the Buyer’s lack of solvency, ALUCA shall be entitled to refuse performance in accordance with the statutory provisions and – possibly after setting a deadline – to withdraw from the contract (§ 321 BGB (German Civil Code)). In the case of contracts for the manufacture of specific items (one-off production), ALUCA can declare ALUCA withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) ALUCA reserves title to the sold Goods until complete payment of all ALUCA present and future claims resulting from the purchase contract and ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties nor transferred as security until the claims have been paid in full. The Buyer must notify ALUCA immediately in writing if a request is submitted to open insolvency proceedings against it or if the Goods belonging to ALUCA is seized by third parties (e.g. pledge).
(3) In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, ALUCA shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand return of the Goods on the basis of retention of title. A demand to surrender the Goods does not equal a declaration of withdrawal from the contract; ALUCA is entitled to merely demand surrender of the Goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the due purchase price, ALUCA may only assert these rights if ALUCA has previously unsuccessfully set the Buyer a reasonable deadline for payment or if such setting of a deadline is dispensable under the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer has the right to resell and/or process the Goods subject to retention of title in the ordinary course of its business. In this case, the following provisions shall apply additionally:
- (a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of ALUCA Goods, whereby ALUCA shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of third parties, ALUCA shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. The same shall apply to the resulting product as to the Goods delivered under retention of title.
- (b) The Buyer hereby assigns to ALUCA as security all claims against third parties arising from the resale of the Goods or the product in the amount of ALUCA potential co-ownership share in accordance with the above paragraph. ALUCA accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply with regard to the assigned claims.
- (c) The Buyer remains authorised to collect debts alongside ALUCA. ALUCA undertakes not to collect the debt as long as the Buyer meets its payment obligations towards us, there is no defect in its solvency, and ALUCA does not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, ALUCA may demand that the Buyer informs ALUCA of the assigned claims and debtors, provides all information necessary for their collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. In this case, ALUCA shall also be entitled to revoke the Buyer’s authority to further sell and process the goods subject to retention of title.
- (d) If the realisable value of the securities exceeds ALUCA claims by more than 10%, ALUCA shall release securities of ALUCA choice at the Buyer’s request.
§ 7 Warranty claims of the Buyer
(1) Unless otherwise specified below, statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and incomplete delivery as well as improper assembly or defective assembly instructions). In all cases, the statutory special provisions shall remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse pursuant to §§ 478 BGB (German Civil Code)). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
(2) The main basis of ALUCA liability for defects is the agreement reached on the quality of the goods. All product descriptions which are the subject of an individual contract or which have been made public by ALUCA (in particular in catalogues or on ALUCA website) shall be deemed an agreement on the quality of the goods.
(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 section 1 S. 2 and 3 BGB (German Civil Code)). However, ALUCA accepts no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer’s claims for defects presuppose that it has fulfilled its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB (German Commercial Code)). If a defect becomes apparent upon delivery, inspection or at any later point in time, ALUCA must be notified thereof in writing without delay. In any case, obvious defects are to be reported in writing within 1 working day of delivery and defects not recognisable during the inspection are to be reported in writing within the same period of time after discovery. ALUCA refers to ALUCA guidelines for the acceptance of goods. If the Buyer fails to properly inspect the goods and/or to notify ALUCA of any defects, ALUCA liability for a defect not reported, or not reported in a timely manner, or not properly reported, shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, ALUCA can first choose whether ALUCA provides supplementary performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). ALUCA right to refuse supplementary performance under the statutory conditions shall remain unaffected.
(6) ALUCA shall be entitled to make the due supplementary performance dependent on the Buyer paying the due purchase price. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(7) The Buyer must give us the time and opportunity necessary for due supplementary performance, in particular, hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to ALUCA in accordance with the statutory provisions. Supplementary performance does not include removal of the defective item or its reinstallation if ALUCA was not originally obliged to install it.
(8) ALUCA shall bear or reimburse the expenses necessary for the purpose of inspection and supplementary performance, in particular, transport, travel, labour and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, ALUCA shall be entitled to demand reimbursement from the Buyer for the costs incurred as a result of the unjustified demand to remedy the defect (in particular testing and transport costs), unless the Buyer was not able to recognize the lack of a defect.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remedy the defect itself and to demand compensation from ALUCA for the objectively necessary expenses. ALUCA must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if ALUCA would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable period to be set by the Buyer for supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(11) Claims of the Buyer for damages or reimbursement of expenses incurred in vain shall only exist in accordance with § 8 even in the case of defects and are otherwise excluded.
§ 8 Other liability
(1) If nothing to the contrary arises from these Terms and Conditions, including the following provisions, ALUCA shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) ALUCA shall be liable for damages – irrespective of the legal basis – within the framework of fault-based liability in cases of intent and gross negligence. In the event of ordinary negligence, ALUCA shall be liable, subject to a milder degree of liability in accordance with statutory provisions (e.g. for care in ALUCA own affairs), only:
- a) for damages resulting from injury to life, limb or health,
- b) for damages arising from a not inconsiderable breach of an essential contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, ALUCA liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 above shall also apply in the event of breaches of duty by or for the benefit of persons whose fault ALUCA is responsible for in accordance with statutory provisions. They shall not apply if ALUCA has fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act. Reference is also made to the ALUCA Guarantee Conditions, which are available on the ALUCA website.
(4) The Buyer may only withdraw or terminate the contract if ALUCA is responsible for the breach of duty which does not consist of a defect. A free right of termination of the Buyer (especially according to §§ 651, 649 BGB (German Civil Code)) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 9 Statute of limitations
(1) Contrary to § 438 paragraph 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) This does not affect the statutory provisions of § 438 section 1 No. 2 BGB (German Civil Code)) or the special statutory provisions on limitation (in particular § 438 section 1 No. 1, 2, section 3, §§ 444, 445b BGB (German Civil Code)).
(3) The aforementioned limitation periods resulting from the sales law also apply to contractual and noncontractual claims for damages of the Buyer which are based on a defect of the goods, unless application of the regular statutory limitation period (§§ 195, 199 BGB (German Civil Code)) would lead to a shorter limitation period in individual cases. The Buyer’s claims for damages according to § 8 section 2 sentence 1 and sentence 2(a) as well as being based on the product liability law, fall under the statute of limitations exclusively after the legal limitation periods.
§ 10 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 Buyer.
(4) ALUCA shall only process the Buyer’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 Buyer’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 Buyer.
§ 11 Compliance with the law
The Buyer 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 by ALUCA under these Terms and Conditions. The Buyer warrants that goods delivered by ALUCA will not be re-exported, sold, transferred or used in violation of the foregoing laws, rules, and regulations. The Buyer 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 and against all claims against ALUCA for this reason.
§ 12 Choice of law and place of jurisdiction
(1) These Terms and Conditions and the contractual relationship between ALUCA and the Buyer 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 Buyer 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 direct and indirect disputes arising from the contractual relationship shall be ALUCA registered office in 74538 Rosengarten/Germany. The same applies if the Buyer 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 Buyer. Prevailing statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
HRB 571025, Amtsgericht Stuttgart