General Terms of Business
All delivery and performance contracts of ALUKON KG – named ALUKON in the following – are based on the following terms of delivery and payment. The terms of delivery and payment are printed on the reverse of all ALUKON forms. Therefore, the customer has at any time the possibility to take note of them. With commencement of the business relations the terms of delivery and payment are therefore valid without contradiction by virtue of tacit consent. If there are some provisions in the terms of delivery and payment of the customer which are contradictory to the terms of payment and delivery of ALUKON, they are not valid unless they have been confirmed expressly and in writing as object of contract.
1. Conclusion and object of contract
The delivery and performance contract can only be considered as concluded when a written order confirmation of ALUKON has been established. The content of the order confirmation is decisive. Subsequent modifications are only recognized as object of contract when they are expressly confirmed in written by ALUKON.
2. Prices, freight and packaging
The ALUKON prices valid on the date of the order confirmation are definitive. These prices are quoted provided that the facts underlying the order confirmation stay unchanged. The prices of ALUKON are quoted ex works in EURO plus VAT valid at the moment of delivery if applicable. Packaging, postage, insurance and other delivery costs are excluded. They are charged in addition. Deviations thereof need the express and written approval by ALUKON. If the transport is made at the charge of the customer, the risk is transferred to him at the moment when the goods leave the works. If goods are taken back because of reasons not caused by ALUKON, the risk is with the customer until the goods reach ALUKON. If some modifications are carried out requested by the customer after the written order confirmation has been issued, a new written order confirmation by ALUKON is necessary. All modifications are charged to the customer. Construction plans, tools, samples and similar preparatory works requested by the customer are also invoiced even if an order is not placed. In so far the determination of the reimbursement due is incumbent on ALUKON. At least the locally customary reimbursement is due.
3. Defective material / date of delivery
Deviations of +/- 10 % of the ordered quantity are to be allowed for. In line with the deviation the payment due increases / decreases. ALUKON is entitled to make partial deliveries. The delivery dates indicated by ALUKON refer to the date of dispatch of the goods. They are considered as met when the goods leave the mill or when the customer is informed about the readiness to deliver at this time. Delivery deadlines and delivery dates are only binding when they have been confirmed in writing as firm to the customer. If an act of the customer is necessary to produce the article or to perform the delivery, the delivery deadlines are considered as fixed only with the complete performance of this act. When the firm delivery date is exceeded, the customer has to grant a reasonable extension. If firm delivery deadlines including reasonable extension are not met, ALUKON is exclusively responsible for the invoice value of the quantity which was not delivered at due date, to the maximum amount of the negative interest.
Force majeure, breakdowns or similar, unforeseeable circumstances for which ALUKON is not responsible release ALUKON from meeting the delivery deadline for the duration of the breakdowns. In these cases, in particular the customer is not entitled to cancel the contract and/or to claim damages.
The customer has to check without delay after receipt if the goods are without defects. These must be indicated to ALUKON immediately in writing, at least within one week after receipt of the goods. If the goods are not checked, if defects are not indicated, not indicated in time or not indicated in due form, any warranty relating to the faults will not be applicable. It is agreed that the warranty period expires after one year. This concerns also the responsibility for hidden defects. Slight defects which lessen neither the value nor the suitability or the usability of the product, are considerably excluded from the warranty. In thus case of a fault under warranty, the customer has in principle only a claim to rework. ALUKON is entitled to carry out the rework according to own choice. In doing so ALUKON is entitled to carry out a new delivery instead of the rework. If the rework misses, ALUKON is entitled to carry out a repeated rework. Also in this case, ALUKON is entitled to make the decision between rework and new delivery. The customer is only entitled to cancel the contract and/or to claim damages, when the rework has missed several times – at least two times. There is only a damage claim if ALUKON can be held responsible for gross negligence or intent. The damage claim is limited in every case to the negative interest. Damages for subsequent defects are excluded as far as those are not to be put down to gross negligence or intent.
5. Taking back of goods
Goods are only taken back when this has been accepted by express and previous consent by ALUKON. For returned goods ALUKON is not responsible, 15 % of the item value is brought into deduction off the credit note. Items made to order and finished products are generally excluded from being taken back.
6. Breach of duty
The responsibility of ALUKON for breach of duty is limited to gross negligence or intent. ALUKON is a priori not responsible for breaches of duty which are to be put down to plans, setting copies or samples which have been checked and authorized by the customer as production documentation. ALUKON is a priori not responsible for contractive design and the accuracy of reproduced models. ALUKON is only obliged to point out to the customer without delay the impossibility of the technical realization of models – as far as this is recognizable. The responsibility for the infringement of the industrial property right of third parties is particularly excluded when works are carried out according to instructions of the customer. ALUKON is not responsible to see to it that industrial property rights of third parties are not infringed.
7. Terms of payment
All ALUKON invoices are payable without delay and without any deduction. The customer is not entitled to hold back or to offset payments, not either because of complaints, unless it concerns an undisputed or legally effective determined debt. In case of a period allowed for payment has been granted and this date has been exceeded, ALUKON in entitled to demand interests on arrears to the amount of in each case 8 % exceeding the base interest rate according to § 247 BGB. At any time, a proof of a higher damage incurred by default is admissible.
In case direct debit system for payment has been agreed between ALUKON and the customer, this will be carried out via SEPA Direct Debit B2B. Pre-Notification concerning date and amount of settlement is provided by the relevant invoice, at the latest one bank working day before debiting.
Bills of exchange are only accepted with expressly written consent, checks are only accepted on account of performance and always with the reservation of being credited. If the customer is in payment default with ALUKON, ALUKON is free to discontinue the performance of the contract without renewing the request for performance of the contract of the other party. Is the payment claim at risk, ALUKON is entitled to demand payment in advance or sufficient insurance. If the customer refuses to pay in advance or sufficient insurance cannot be supplied, ALUKON is entitled to discontinue the performance of the contract, to withdraw from the contract and to claim damages. As a rule incoming payments are always credited against charges, interests and at last against the principal claim. If there are several claims, payments are credited against the oldest claim of these claims. If dates of payment for older invoices have been already exceeded, it is not possible to deduct any cash discount from more recent invoices.
8. Reservation of ownership / proprietary rights
The delivered goods will remain the property of ALUKON until integral settlement of all existing debts against the customer at the date of invoice has been effected. Should the goods under reservation of ownership be transformed or processed, ALUKON is entitled to claim (co)-property amounting to the value of the condition of the goods under reservation before same have been transformed or processed of the emerging object. The sale of the goods under reservation of ownership is only authorized in orderly business of the customer. If the customer resells the goods under reservation of ownership, he cedes at the time of the sale the debt against the buyer to ALUKON. The customer has to oblige the buyer to pay directly to ALUKON within the context of the obligation to pay resulting from the resale. Exceptions need the previous and written agreement between ALUKON and the customer. Moreover all dispositions of the goods under reservation of ownership are inadmissible, particularly transfer of property by way of security or pledge is not allowed. If a compulsory execution against the property of the customer is made and if the goods under reservation of ownership are affected, this must be indicated to ALUKON immediately in writing and by indicating all necessary data (reference code of enforceable legal document, reference number of the executing protocol and name of the bailiff), if necessary by enclosing the minutes of the execution. Articles which were placed at the customer’s disposal by ALUKON and which are not parts of the product as such (e.g. models, construction plans, tools, etc.) stay in the property of ALUKON.
9. Place of performance and jurisdiction
For all contracting parties Konradsreuth is the place of performance. Exclusive jurisdiction is Hof/Saale for all cases of dispute arising from the agreements of the parties. For all deliveries into export countries only the right of the Federal Republic of Germany is exclusively valid.
10. Final terms
The nullity of individual terms does not affect the effectiveness of the rest of the terms. The null term is to be replaced by an effective term which meets the original intended subject matter and economic object as close as possible. All declarations which touch the effectiveness of the contractual relationship must be in written form. An alteration of the demand for written form must also be in writing.
ALUKON KG, Konradsreuth the 23.09.2013