General Terms and Conditions of Business for ALCAR LEICHTMETALLRĂ„DER GMBH
I. Scope of the General Terms and Conditions of Business
These standards terms and conditions pertaining to the sale of export goods shall be considered the only valid terms and conditions, provided that they are not amended by an express written agreement reached between the parties. The offer, the acceptance of the offer, the order confirmation or the sale of any product shall be subject to these terms and conditions. Any terms and conditions or conditions amending any agreement stipulated by the buyer shall be objected to; these shall enter into effect vis-Ă -vis the seller upon written consent by the seller. These terms and conditions shall form the basis for any future individual transactions between the buyer and the seller and preclude the validity of any other agreement. And errors reproduced in sales brochures, price lists, offer documents or other documents of the seller may be corrected by the seller without the seller being held liable for any damage incurred as a result of said errors.
These General Terms and Conditions of Business shall only apply to merchants.
II. Placing orders and offer documents
1. Orders placed by the buyer shall only be deemed accepted by the seller if written acceptance is issued by the seller or an agent/representative of the seller 21 days from the receipt of the order.
2. Quantity, quality and description, as well as any specifications of the product shall correspond to the offer submitted by the seller (if accepted by the buyer) or to the order placed by the buyer (if accepted by the seller). The technical properties of the products, including but not limited to the scope of the type approval and the permitted scope of use, shall be based on the technical certificates commissioned by the seller, which the seller shall provide to the buyer upon request via letter, fax, Internet or CD. Any deviations from the technical properties described in the certificates shall only be deemed agreed if agreed on in writing or confirmed by the seller in writing.
3. All sales documents, specifications and pricelists shall be treated with confidentiality and may not be made available to third parties.
4. The ordering party shall bear responsibility for the correctness of the order; the ordering party shall bear responsibility for providing the seller with all information on the ordered products within an appropriate period of time permitting the order to be carried out in accordance with the agreement.
5. Should the products be produced or otherwise processed or finished by the seller and should the buyer submit specifications to this effect, the buyer shall indemnify the seller for any loss, damage, costs or other expenditure incurred by the supplier that the suppler is to pay or is willing to pay, if the contractual processing or finishing of the product on the basis of the specifications of the ordering party constitutes an infringement of any patent, copyright, trademark or other property rights held by a third party.
6. The seller shall reserve the right to amend the product descriptions with regard to its specifications to the extent that applicable legal provisions are taken into account, inasmuch as any such amendment does not constitute a deterioration in the quality and functionality of the ordered product.
III. Purchase Price
1. The purchase price shall be the sellerâ€™s price quoted, or, if no price has been quoted, the price listed in the current price lists of the seller valid at the time of the order.
2. The seller shall reserve the right, after notifying the buyer in a timely manner before deliver of the product, raise the price of the product as is necessary to reflect general price developments beyond the control of the seller (including, but not limited to, fluctuations in exchange rates, currency regulations, customs amendments, a significant rise in the price of materials or production costs) or due to changes imposed by suppliers.
3. Unless otherwise quoted in any offer or price list, and unless otherwise agreed in writing between the seller and the buyer, all prices shall apply on an â€śex worksâ€ť basis. If the seller agrees to deliver the product to other locations, the buyer shall bear the costs for transport, packaging and insurance. Prices are exclusive of any applicable value added tax payable to the seller in accordance with the amount as stipulated by law.
1. Payments shall be made by the buyer within twenty-one (21) days from the date of invoice.
2. Payment may only be made by bank transfer; payments made by bill of exchange or by check shall not be recognised as an appropriate means of payment. The contracting parties may agree that the buyer shall open a documentary letter of credit at the buyerâ€™s bank or at a bank acceptable to the seller. In such as case it shall be stipulated that the opening of the documentary letter of credit shall be in accordance with the Uniform Customs and Practice for Documentary Letters of Credit as published by the ICC in its most recently amended form at the time of the opening of the documentary letter of credit.
V. Delivery Times, Delays
1. Compliance with the agreed on delivery times presumes that the buyer has submitted all required documents and releases in a timely manner, and has complied with the agreed conditions of payment. Should these prerequisites not be met in due time, the delivery times shall be extended appropriately; this provision shall not apply should the seller be responsible for the delay.
2. The delivery time shall be extended as appropriate should failure to comply with the delivery times be due to vis major, e.g. mobilisation, war, uprisings or similar events, e.g. strikes or lockouts. The seller shall not be held responsible for the above-mentioned circumstances should they occur during an already existing delay.
3. Partial deliveries shall be permissible within the agreed on delivery time, inasmuch as no disadvantages arise with regard to use.
4. The seller shall be deemed to responsible for a delay if performance is due and an express written reminder has been issued, provided that a specific calendar period has been agreed on for performance.
5. The seller shall be held liable in accordance with prevailing legal provisions provided that the underlying agreement represents a transaction for delivery by a fixed date within the meaning of sec. 286 para 2 subsection 4 of the Civil Code or sec. 376 of the Commercial Code. The seller shall also be held liable in accordance with prevailing legal provisions provided that the buyer is entitled to assert a claim that he has no more interest in the continued performance of the contract as a consequence of a delivery delay caused by the seller.
6. The seller shall be held liable in accordance with prevailing legal provisions, provided that the delivery delay comes as a result of a wilful or grossly negligent violation of obligations on the part of the seller. Provided that the delivery delay is not due to a wilful violation of obligations by the seller, liability for damages shall be limited to predictable, typically incurred damage.
7. The seller shall beheld liable in accordance with prevailing legal provisions, provided that the delivery delay caused by the seller is due to the culpable infringement of a significant contractual obligation; in such a case liability for damages shall be limited to predictable, typically incurred damage.
8. Additionally, the buyer â€“ provided that he proves that damage has been incurred as a result â€“ is entitled to demand compensation for each full week of the delay in the amount of 2%, but not more than a total of 10% of the price for the part of delivery that could not be put to expedient use due to the delay.
9. The buyer may rescind the agreement within the framework of prevailing legal provisions only if the seller is responsible for the delay.
10. Upon request of the seller, the buyer shall undertake to declare within an appropriate period of time his intention to rescind the agreement, demand damages in lieu of performance or adhere to the agreement.
VI. Avoidance Costs
Should the buyer rescind an order on no justifiable grounds, the seller is entitled to demand 5% of the sale price for the costs incurred during the processing of the order and for lost profit, irrespective of his right to claim higher actual damage. The buyer shall reserve the right to demonstrate that damage has either not been incurred or has been incurred to a lesser degree.
The products shall be delivered in such a way that the buyer can collect the products at any time at the sellerâ€™s place of business, as soon as the seller has notified the buyer that the products can be collected, or should another location of delivery be agreed, by delivery of the products to that location.
VIII. Delay in Acceptance
Should the Buyer be in delay of acceptance by the due date on the part of the buyer shall not release him from his obligation to pay the purchase price. In such cases the seller shall store the product at the risk and cost of the buyer. Upon the buyerâ€™s request the seller shall insure the products at the buyerâ€™s expense.
IX. Transfer of Risk
Risk of damage to or loss of the products shall pass to the buyer as follows
:1. At the time of delivery if the products are to be delivered elsewhere than at the sellerâ€™s premises ex works, or, at the time when the seller offers the delivery of the products if the buyer wrongfully fails to take delivery of the products.
2. At the time when the seller notifies the buyer that the products are available for collection if the products are to be delivered at the sellerâ€™s premises ex works (Incoterms 2000).
The seller shall be held liable for material defects as follows:
1. All parts or performance exhibiting a material defect within the statute of limitations shall, at the discretion of the seller, be subject to improvement free of charge, redelivered or rendered anew provided that the cause of the material defect was present at the time of the transfer of risk.
2. The seller shall always be granted the opportunity for subsequent performance within an appropriate period of time. Should this opportunity be denied, the seller shall be exempt from his liability for the material defects. Should subsequent performance fail, the buyer â€“ irrespective of any other claims for damages â€“ shall reserve the right to rescind the agreement or diminish compensation.
3. Claims regarding material defects shall be time barred after a period of 12 months starting from the transfer of risk.
4. The buyer shall be obliged to inspect the products immediately upon receiving them within the meaning of secs. 377 and 378 of the Commercial Code and notify the seller of any material defects immediately in writing.
5. Claims of defects shall not be deemed to exist in the case of an insignificant deviation of the agreed on characteristics, insignificant limitation of usability, natural wear and tear or damage incurred after the transfer of risk as a result of improper or negligent use, inordinate loads or unsuitable equipment. Should the buyer or third parties make improper alterations or repairs to the product, no claims of material defects may be asserted for these or any resulting consequences.
6. Claims asserted on the part of the buyer due to necessary costs incurred due to subsequent performance, including, but not limited to transport, travel, work and material costs shall be barred, if higher expenses are incurred as the product in question is to be transported to a location other than that of delivery.
7. Additionally, section XIII (Liability) shall also apply to claims for damages. Further claims or claims other than the claims stipulated here asserted by the buyer against the seller and his vicarious agents for material defects shall be barred.
XI. Reserved Title
1. Irrespective of delivery and the transfer of risk or other provisions of these terms of delivery, ownership of the product shall not be transferred to the buyer as long as the purchase price has not been paid in full.
2. The seller shall reserve the right to demand the return of the product, to sell it elsewhere or to dispose of it in any other manner as long as the purchase price has not been paid in full. Until the purchase price has been paid in full the buyer shall be obligated to hold the product in trust for the seller and to hold the product separate from his property and the property of third parties and to store, secure and insure the reserved property properly and label it as the property of the seller. Until the purchase price has been paid in full, the buyer may use the product in the course of customary business operations or resell it; however, the buyer shall be obliged to hold any fee (including any insurance payments) for the seller and keep the monies separate from his assets and the assets of third parties. Should the product be subject to further processing and should the further processing involve parts for which the buyer of the reserved property holds no ownership, the buyer of the reserved property shall acquire corresponding partial ownership. The same shall apply to cases where the products of the seller are blended with those of another. In the case of the attachment of property by court authorities or any other intervention on the part of third parties, the buyer shall notify the seller immediately so that the seller may exercise his rights in a civil suit pursuant to Sec. 771 of the Code of Civil Procedure. The buyer shall be held liable for the damage incurred should he fail to comply with this provision.
3. Upon the buyerâ€™s request the seller shall undertake to release the securities he is entitled to immediately as soon as the realisable value of the securities exceeds the amounts payable to the seller. The seller shall exercise his discretion in deciding which security interests to release.
XII. Impossibility, Adaptation of the Agreement
1. The buyer shall be entitled to demand damages should delivery be impossible, unless the seller cannot be held responsible for the impossibility. However, the claim for damages asserted by the buyer shall be limited to 10% of the value of the part of the delivery that cannot be put to effective use due to impossibility. This limitation shall not apply to cases of wilful intent or gross negligence or in the case of liability due to bodily harm. Any alteration of the burden of proof to the detriment of the buyer shall not be valid in conjunction with this provision. The right of the buyer to rescind the agreement shall be remain intact, even if an extension of delivery time had been agreed on with the buyer. Section V (Delivery Times, Delays) shall apply in the case of temporary impossibility.
2. The agreement shall be amended within the scope of good faith as appropriate provided that unpredictable events within the meaning of Section V, subsection 2 of these terms and conditions significantly change the economic significance or the contents of the delivery, or if these entail significant repercussions for the sellerâ€™s business. Should this not be economically feasible, the seller shall reserve the right to rescind the agreement. Should he intend to exercise this right, he shall be obliged to notify the buyer immediately upon the realisation of the consequence of the events.
1. The seller shall beheld liable in accordance with prevailing legal provisions provided that the ordering party asserts claims for damages based on wilfulness or gross negligence of the seller or based on the wilfulness or gross negligence of agents or vicarious agents of the seller. Liability for damages shall be limited to predictable, typically occurring damage provided that the seller cannot be accused of wilful breach of performance.
2. The seller shall beheld liable in accordance with prevailing legal provisions provided that he culpably violates his contractual obligations; in such a case liability for damages shall be limited to predictable, typically occurring damage.
3. The sellerâ€™s liability for providing compensation for predictable, typically occurring damage shall be limited provided that the buyer is entitled to assert claims for damages in lieu of performance.
4. Liability stemming from the culpable injury to life, limb and health shall remain intact; this shall also apply to imperative liability pursuant to product liability law.
5. Additional liability for damages as outlined in subsections 1-4 shall be â€“ irrespective of the legal nature of the asserted claim â€“ barred. This applies in particular to claims for damages due to fault at the time of the conclusion of the agreement, other violations of obligations or due to tortuous claims for damages for property damage pursuant to sec. 823 of the Civil Code.
6. This shall also apply to personal liability for damages of employees, staff, agents or vicarious agents provided that the liability for damages vis-Ă -vis the seller is barred or limited.
XIV. Additional Provisions
1. The seller shall be entitled to alter or improve the product without having to notify the buyer in advance, provided that the alterations or improvements constitute neither a lasting limitation nor impairment to the form or function of the product.
2. These terms and conditions shall take the place of all other agreements previously concluded by the contracting parties either orally or in writing which shall become invalid upon the signing of this document.
3. These terms and conditions shall not be made available to third parties without the written consent of the contracting parties. Each contracting party shall individually bear the costs for upholding this agreement.
XV. Choice of Law, Jurisdiction
1. This agreement shall be subject to German law to the exclusion of the Vienna Convention on the Sale of Goods, provided also that German law refers to this law. Both parties hereby declare themselves be in agreement with the exclusive jurisdiction of the court of law of the registered office of the seller.
2. The seller shall reserve the right to file suit with the court of law having jurisdiction over the buyer or with any other court of law that may have jurisdiction under national or international law.