We deliver basically only to the following sale and delivery conditions. If in exceptional cases other conditions
– in particular purchasing conditions of the recipient – are to be valid, then this requires our previous, explicit written confirmation.
§ 1 – OFFER AND ACCEPTANCE
a) Our offers are without engagement. Orders are first binding for us when and to the extent that we have confirmed them in writing or started their execution. Changes, supplements and verbal subsidiary agreements are also only valid with a written confirmation.
b) Supplementary remarks describing the goods such as “about the same”, “as previously supplied”, “as in the past” or similar remarks in our offers only relate to the quantity or to the quality of the goods, not however to the price. We shall understand such remarks in orders we receive from our purchasers correspondingly and if necessary a confirmation is meant as this.
c) Quantity volumes are approximations. Deviations of 10 % +/- are as per agreement. Such volume deviations increase or reduce the agreed purchase price accordingly.
§ 2 – PURCHASE PRICE AND PAYMENT
a) Our prices are always subject to addition of VAT, in particular in consideration of the delivery location in question. The price calculation is made on the basis of the volume or weight determined by us or by our suppliers. It can however made on the basis of the volumes or weights determined by the recipient if this determination is carried out using calibrated instruments and the goods have been transported at our risk.
b) The purchaser may only set off counterclaims against our payment price which are undisputed or legally enforceable. Merchants may withhold the purchase price due to material defects until we have decided if the claim is justified; moreover only if the buyer provides sufficient security. Noncommercial customers are not entitled to withhold the purchase price in connection with complaints relating to orders other than the order on which the claim for payment of the purchase price is based.
c) In the event that the purchaser is in arrears with respect to payment of an invoice representing an amount of significance to the business relationship, all claims for payment accruing from business transacted to the date in question shall fall due immediately – without regard for pending bills of exchange accepted for payment against such claims. We shall then exercise the right to demand cash payment in advance of any future deliveries. If the delay in payment is not rectified within a reasonable period of time, we shall be entitled to cancel the contract or demand damages for non-performance. This applies in particular to subsequent transactions for which orders have been placed and confirmed but not yet executed. Should we become privy to information indicating that the purchaser is no longer credit-worthy, we shall be entitled to demand cash payment in advance of delivery goods, despite the existence of other agreements, and to demand payment of
all outstanding obligations.
d) The purchase price is payable in advance, unless otherwise agreed in writing. Furthermore orders of goods less than € 150, – net will be charged with an administrative charge of € 25, -. For orders of ALWA POR slabs whose volume is less than 2 liters, a minimum quantity surcharge of € 25, – per slab will be charged.
e) We reserve the right to charge interest on overdue accounts from the date payment is due at a rate 2 % above the applicable German Bundesbank discount rate in effect at a given time.
f) Cheques and bills of exchange are accepted for deposit only and represent fulfilment of payment obligations only when honoured. Bank fees will be charged to the purchaser.
§ 3 – DELIVERY
a) The agreed delivery periods and dates are always considered to be approximate unless a fixed date has been specifically agreed in writing.
b) For deliveries which do not come from our premises (drop shipment business), delivery dates and periods are considered to have been fulfilled if the goods leave the supplying location in time for them to reach their destination on time allowing for the usual shipping period.
c) Occurrences of force majored – including public legal restrictions, strikes and lockouts – entitle us to withdraw from contracts. In such cases, no damages for breach of duty may be claimed. This also applies when, through no fault of our own, goods from our suppliers are late in arriving. We are obliged to inform the purchaser about such events without delay. The purchaser shall then have the right to cancel the contract in question.
d) Should we fail to deliver within the specified period, the purchaser shall be entitled to specify a reasonable grace period for delivery and shall be entitled to cancel the contract in the event that delivery is not effected within this period. The purchaser shall be entitled to claim damages for non-performance upon expiration of the grace period only if the delay is attributable to deliberate intent or gross negligence on the part of our legal representative or a person/organization engaged
to provide services on our behalf.
§ 4 – DISPATCH AND ACCEPTANCE
a) The transport risk from the site of delivery is always for the account of the purchaser. This also applies in cases where freight is prepaid or free domicile, except when we effect transport with our own vehicles from our own plant or warehouse facility.
b) By collection from the site of delivery, the purchaser or his agent must load the vehicle and adhere to the legal requirements particularly those concerning the transport of hazardous goods.
c) Unloading and storing the goods is always the responsibility of the purchaser.
d) For deliveries in tankers and mounted tanks, the purchaser is responsible for ensuring that his tanks or other storage containers are in technically perfect condition and is also responsible for the filling connections to his own storage system and, if necessary, ensuring that the recipient fulfils this obligation. Our obligations are limited to the operation of the delivery vehicle’s own equipment.
e) Insofar as our employees provide additional assistance, in unloading or discharging, and at this cause disadvantage, then these persons are deemed to be acting at the sole risk of the purchaser and not on our behalf.
f) The above provisions also apply to deliveries affected by third-party forwarders, to the extent that vendor liability could be derived from their actions. Third-party liability remains unaffected.
§ 5 – PACKAGING
a) Insofar as our deliveries are carried out in loan packaging, these are to be returned to us by the purchaser not more than 30 days at the latest after their arrival at the purchaser. The returned containers must be empty and in excellent condition and returned at the purchaser’s cost and risk or, if applicable, be returned free our vehicle against confirmation of receipt.
b) If the purchaser does not fulfil the obligation according to a) in due time we are authorised to charge a suitable fee for the time exceeding 30 days. After then setting a deadline for return with no result we are further authorised to demand the replacement price of the container – crediting the aforementioned fee.
c) Fixed labels and markings on packaging may not be removed. Loan packaging may not be exchanged or refilled. The purchaser is held liable for deterioration of value due to substitution or loss. The judgement here is based on our findings upon the arrival of such loan packaging at our premises. Use of loan packaging as a storage container or passing it on to third parties is inadmissible unless this has been previously agreed in writing.
d) In case of delivery in tank wagons, the purchaser, on his own responsibility, must ensure that they are emptied and retuned to us or to the given address in proper condition without delay. In cases of standstill times at his premises for which the purchaser is responsible, the hiring fee for the tank wagons during this idle time goes to the purchaser’s account.
§ 6 – RETENTION OF TITLE
a) The title to the goods (conditional goods) is first transferred to the purchaser upon full payment of the purchase price and all other debts including future debts arising from the business connection with us. This also applies if payments are made against specially designated debts. If an invoice is still outstanding the retained title shall serve as a security for the balance due to us. Rights of ownership are transferred to the purchaser no later than the date on which we no longer have justifiable claims against the purchaser.
b) As long as the purchaser correctly performs his obligations towards us he is authorised to further use conditional goods in normal business practice.
c) If the purchaser fails to fulfil his payment obligations, even after being given more time, we are authorised to claim repossession of the conditional goods without granting further payment time and without notice of cancellation. Our demand for return of goods implies cancellation of the contract only if we make a corresponding written declaration.
d) Processing or conversion of the conditional goods is carried out on our behalf without putting us under any obligation. We are considered the manufacturer in the sense of § 950 BGB (German Civil Code) and acquire ownership of the intermediate and end products in proportion to the invoice value of our conditional goods to the invoice values of the third party goods; to this extent, the purchaser holds in safe custody, on our behalf and free of charge. The same applies to combination or mixing of conditional goods with third party goods in the sense of §§ 947, 948 BGB.
e) As security for all our claims, the purchaser hereby assigns to us any claims arising from resale of the conditional goods to third parties. If the purchaser sells goods of which we only have partial ownership according to letter d), he assigns to us his claims against third parties in the corresponding partial sum. If the purchaser uses the conditional goods within the scope of a contract of work (or similar agreement), the purchaser assigns the corresponding claim to us.
f) In the normal course of business, the purchaser is entitled to collect claims arising from the further use of conditional goods. If facts come to our knowledge which indicate a significant deterioration in the purchaser’s financial situation, then, upon request from us, the purchaser must inform his customers of the assignment, refrain from disposing of the debts in any way, give us all the necessary information about his inventory of goods which are our property and the claims assigned to us, and shall provide us with the necessary documents to enforce the assigned claims. We must be informed immediately about any third party seizure of the conditional goods or the assigned claims.
g) If the value of our securities exceeds the total claim against the purchaser by more than 10 %, then, at the request of the purchaser, we are obliged to release excess securities of our choice.
§ 7 – WARRANTY RIGHTS, OBLIGATIONS OF PURCHASER WITH RESPECT TO INSPECTION AND COMPLAINTS
1. For substantive deficiencies including the absence of warranted quality, we shall be liable to commercial customers and legal entities under public law in accordance with the applicable provisions of law for cancellation, reduction of price or replacement at our discretion, provided the following conditions are met in addition to compliance with applicable law:
a)Immediately upon delivery, the purchaser shall inspect goods and packaging in accordance with customary commercial practice. If the goods are delivered in multiple shipping units, the purchaser must also check the labels on each shipping unit for conformity with his order. If the goods are delivered in tank vehicles or tanks which are not to remain in the purchaser’s possession, the purchaser must check the accompanying shipping documents required by law for conformity with his order. He shall also be required to sample the goods in order to verify conformity with order specifications before they are removed from the transport tanks/vehicles.
b) Following inspection in accordance with item a), the purchaser shall immediately notify the vendor of any deficiencies detected; otherwise, deficiencies are to be reported in writing within 6 months.
c) Should the purchaser fail to perform a required inspection or to report detected or detectable deviancies immediately, he thereby loses his warranty rights with respect to the detected or detectable deficiencies in question. The same applies to an inadvertently wrong delivery, including a deviation so significant that approval/acceptance of the goods by the purchaser can be effectively ruled out.
d) In the case of concealed deficiencies, the purchaser must file complaint immediately. If not, the goods shall be regarded as accepted. Complaints regarding concealed deficiencies are ruled out categorically after eight weeks from the data of receipt of the goods. The right to demand replacement for misbeliever remains unaffected by this provision.
2. For substantive deficiencies including the absence of warranted quality, we shall be liable to noncommercial customers in accordance with the applicable provisions of law for cancellation, reduction of price or replacement at our discretion, provided the following conditions are met in addition to compliance with applicable law:
a) The non-commercial purchaser has the same obligations to inspect and verify as the commercial customer. In contrast to the commercial customer, however, the inspection and verification requirements are not based upon customary commercial practice but upon the knowledge which could reasonably be expected of the customer, given his occupational status.
§ 8 – LIABILITY IN CASE OF CONSEQUENTIAL DAMAGES AND OTHER LOSSES
1.For losses affecting legally recognised assets of the purchaser, to include his material assets, as a result of deficiencies in the purchased object, inadvertently wrong delivery or packaging, we assume liability subject to the following provisions:
a) With respect to damages which could have been avoided by compliance on the part of the purchaser with inspection obligations, any and all liability toward commercial customers and legal entities is excluded, unless said damages are attributable to malicious intent or gross negligence on the part of our legal representatives. Under the same circumstances, any and all liability toward non-commercial customers is similarly excluded, unless the damages in question are attributable to malicious intent or gross negligence on our part.
b) To the extent damages are incurred despite the purchaser’s compliance with inspection obligations, we shall be liable toward both, commercial and non-commercial purchasers only for damages resulting from deliberate or grossly negligent breach of contract.
2. For damages other than those described above, we shall be held liable – regardless of the basis for liability – only in cases where said damages are the result of malicious intent or gross negligence on our part or on the part of persons/organisations engaged to provide services on our behalf.
3. We shall not be liable for unsuitability of specific goods for the purposes intended by the purchaser. With respect to consultation, information or recommendations provided by us with respect to matters of application and use, we shall be liable for the negligent provision of incorrect advice, information or recommendations only if provided in writing.
4. All claims filed under this § 8 become null and void six months after the date of the actions resulting in the damages in question. This does not apply to claims caused by criminal behaviour.
§ 9 – FINAL PROVISIONS
a) The legal venue for cases involving commercial customers is the place of jurisdiction of the main offices of the vendor. In disputes involving non-commercial customers, the legal venue is the place of jurisdiction of the place of residence or business of the defendant.
b) In case any part of the above clauses should be or become ineffective, such provisions are to be replaced by provisions which come as close as possible to the original commercial purpose of the contract – taking appropriate account of the interests of both parties.