Date: 1. März 2009
The General Terms and Conditions of Delivery and Payment shall apply to contracts concluded between alpha metall GmbH (hereinafter alpha metall) and companies (§ 14 BGB (German Civil Code)), body corporates or public separate property, unless any other provisions are expressly agreed in writing on conclusion of this contract. Any contradictory conditions in the General Terms and Conditions of Delivery and Payment are hereby expressly rejected.
I. Conclusion of Contract
Our offers are non-binding and are without obligation. A contract shall be deemed to have been concluded upon written order confirmation. Should no written confirmation be made, the contract shall be formed at the latest on delivery of the goods. The Purchaser shall be notified of this circumstance as soon as the supply plant provides corresponding information if alpha metall is not in a position to accept a tender.
II. Delivery, Acceptance and Collection Periods
1. If no other agreement has been made delivery is ex works, EXW (Incoterms 2000). If a Purchaser delays acceptance, alpha metall shall be entitled to invoice additional expenditure at a flat rate of 5% of the agreed net invoice amount unless said Purchaser proves that the actual additional expenditure is lower. alpha metall shall be entitled to make partial deliveries which may be separately invoiced provided that this is reasonable for the Purchaser.
2. Delivery and/or performance periods shall be expressly agreed in a contract. alpha metall shall be entitled to provide the service immediately and is obliged to provide it up to four months subsequent to conclusion of a contract if no delivery or performance period was agreed. Should alpha metall fail to perform as obliged in due time, the Purchaser shall grant an adequate additional period. If alpha metall, by their own fault, allows the extended period to pass, the Purchaser may terminate this contract on the exclusion of any other claims subject to any rights under Provision VII of these General Terms and Conditions of Delivery and Payment.
3. In the event of force majeure or any other intervening circumstances which are not caused by alpha metall, in particular difficulties with supplies brought in, strikes, lockouts, shutdown, etc., delivery and performance periods shall be extended for the duration of the interruption and a reasonable wind-up stage insofar as such intervening circumstances have a significant effect on delivery or performance. If delivery or performance finally becomes impossible or unreasonable alpha metall may terminate the contract.
4. The following shall apply in the event that a fixed date of delivery or a specific, binding period for delivery has been unconditionally agreed:
4.1. The delivery period shall commence to run on the day after the effective conclusion of a contract, but not before all of the execution details and any advance performance by the Purchaser have been completely clarified, e.g. submission of documents, of authorisations and of releases and not before any advance payments agreed have been received. 4.2. The delivery period shall have been maintained in the case of EX WORKS (obligation to collect) if the Purchaser is notified that delivery items are ready for despatch prior to expiry of said delivery period. In the case of an obligation to deliver, the delivery period shall have been maintained when the goods arrive at the premises of the Purchaser; in the case of an obligation to send, the handing over of the goods to the carrier shall be decisive.
5. Should alpha metall have offered to deliver and have agreed to a request by the Purchaser to postpone delivery, alpha metall shall be entitled to add 5 % to the respectively agreed net price.
1. Prices shall be those indicated in the written offer submitted by alpha metall or those indicated in the written order confirmation; should no written agreement have been concluded prices shall be the alpha metall prices valid on the date of delivery for delivery ex works/warehouse. In the event of an increase in the price of aluminium raw materials on the London Metal Exchange (of more than 5%), alpha metall shall retain the right to raise prices agreed by the same percentage as the price increase subsequent to a period of four weeks after conclusion of a contract.
2. For consignments of up to 2,500 kg delivered ex works/warehouse, prices are understood plus freight/forwarding costs and packing and plus currently valid Value Added Tax and any other statutory levies. alpha metall shall be entitled to apply customary underdelivery and overdelivery rates of 10% for each unit of quantity of the quantity ordered.
IV. Conditions of Payment
1. Unless otherwise agreed payment shall be made within 30 days of the date of an invoice. alpha metall shall grant a cash discount of 2 % for payment within eight days of the invoice date.
2. If the Purchaser exceeds an agreed due date for payment, interest shall be charged at a rate of 5 % above the applicable base interest rate without any previous reminder unless the Purchaser establishes that alpha metall has incurred a far lower interest loss or alpha metall establishes that a higher interest loss was incurred. If the Purchaser is a contractor in terms of § 14 BGB (German Civil Code), interest may be charged at a rate of 8 % above the applicable base interest rate.
3. alpha metall shall be entitled to deliver against advance payment only if circumstances indicate that the financial situation of the Purchaser has deteriorated significantly subsequent to conclusion of a contract, in particular if the Purchaser defaults on payments due to alpha metall and it appears that alpha metall's claim for payment may be at risk. In this case alpha metall shall be entitled to postpone any further performance until the Purchaser pays in cash all of the payments due from the applicable contractual relationship or from business agreements relating to said contractual relationship or preliminary orders, or makes sufficient security available.
4. alpha metall shall be entitled to set off all of the amounts owing from the Purchaser which result from a current business relationship. This shall also apply when cash payment has been agreed by one party and payment by bills of exchange or other payments have been agreed in fulfilment by the other party. These agreements shall apply to the balance only where applicable. If payments are due on different dates alpha metall receivables shall accordingly become eligible for setoff at the latest when alpha metall payables become due and shall be settled on the value date.
V. Reservation of Ownership
1. alpha metall shall retain ownership of products supplied (hereinafter called goods subject to retention of title) until such time as all of the payments due to alpha metall resulting from this contractual relationship and any other payments due from the current business relationship with the Purchaser have been settled.
2. The Purchaser may install and convert goods subject to retention of title within the scope of his regular business dealings. Any combining, blending, processing of goods subject to retention of title or alteration to such goods shall, however, be conducted exclusively for alpha metall. alpha metall shall acquire a proportion of joint ownership of the finished goods or of the new object equivalent to the ratio between the value of the goods subject to retention of title and the value of the finished goods or the new object.
3. The Purchaser shall be entitled to resell the goods subject to retention of title or items jointly owned by alpha metall in regular business transactions subject to reservation of ownership. The Purchaser shall assign to alpha metall as security any future payments due from the resale of goods subject to retention of title to the respective invoice amount of the goods subject to retention of title up to the full settlement of all of the payments due under Item V.1. alpha metall shall accept this assignment. If alpha metall is merely a joint owner of the items sold, claims to the amount of the selling value of the respective proportion of ownership are to be assigned; assignment shall be given priority over remaining payments due. alpha metall shall be entitled to request from the Purchaser the name and address of respective buyers as well as the nature and extent of current claims of said buyers. alpha metall may at any time disclose this assignment in order to secure payment obligations insofar as this is essential within the framework of the regular realisation of a security. The Purchaser may not assign a pledge or security on goods subject to retention of title.
4. The Purchaser shall refer to the ownership status of alpha metall and notify alpha metall immediately when third parties access goods subject to retention of title. The Purchaser shall bear all the costs relating to interpleading proceedings and other preventive measures relating to said access by third parties.
5. In the event of any violation of contract by the Purchaser, in particular a default in payment, or in the event of circumstances which indicate that payment will not be made, alpha metall may revoke the entitlement of the customer to resell goods should goods subject to retention of title be at risk. alpha metall shall also be entitled to withdraw from the contract after granting the Purchaser an adequate extension period to restore the goods to the condition specified in the contract. alpha metall shall also retain these rights when the secured claims are barred by limitation. If alpha metall takes back or pledges goods subject to retention of title this shall not be considered to be withdrawal from the contract provided that the German Consumer Credit Act does not apply. alpha metall shall be entitled to realise goods subject to retention of title subsequent to the expiry of a deadline set, upon the threat of realisation and to satisfy payments due by the Purchaser by settling these claims from the sale of said goods.
6. At the request of the Purchaser alpha metall shall release securities insofar as the value of said securities exceeds claims to be secured by more than 10%.
7. Insofar as alpha metall is entitled to exercise reservation of ownership, the Purchaser shall grant alpha metall irrevocable, unrestricted access to his business premises or his plant site in order to enable alpha metall to collect the goods subject to retention of title during business hours.
VI. Liability for Defects
1. The rights of the Purchaser relating to alpha metall's liability for defects to goods supplied shall be subject to a period of limitation of one year following delivery of said goods. This shall not apply for liability in tort or for any fraudulent concealment of defects. Regulations pertaining to § 438 Paragraph 1 No. 2 BGB shall not be affected.
2. The Purchaser shall immediately examine goods supplied for any defects and shall submit a written complaint to alpha metall. alpha metall shall also be notified in writing of any hidden defects as soon as such defects become apparent. alpha metall shall rectify at their own option and expense and within an adequate period any defects which occurred verifiably prior to the passing of risk, solely by way of supplementary performance (replacement delivery or rectification of faults) at the premises of the Purchaser or the premises of alpha metall. Ownership of replaced parts shall be passed to alpha metall. Should replacement delivery or the rectification of defects not be carried out successfully, or alpha metall refuse to make a replacement delivery or rectify defects, or a replacement delivery or rectification of defects not be carried out within an adequate period, the Purchaser, at his own option, may request a reduction in price or withdraw from the contract. A replacement delivery or the rectification of defects shall only be considered to have failed after an unsuccessful second attempt.
3. A defect in terms of § 434 BGB shall only have occurred if deviations from the agreed quality do not merely constitute insignificant deviations or slight impairments to use when risk is passed.
1. In the event of a breach of duty in terms of § 280 BGB or in the event of a tortuous act, alpha metall, their directors, vicarious agents and sub-contractors shall only be liable in the case of wilful acts or gross negligence. In the case of indirect damage, consequential damage or loss of profits this shall apply only in cases of wilful acts or gross negligence by organs or executives of alpha metall. The Purchaser is entitled to withdraw from the agreement only if he is entitled to do so by law and only if an adequate period stipulated by the Purchaser has expired. This shall not apply in the event of injuries to life, body and health and to infringements of essential contractual obligations.
2. Statutory liability under product liability law shall be maintained to the extent provided for under such law.
3. Liability shall always be limited to such typical damage whose occurrence alpha metall could reasonably foresee on conclusion of the contract under circumstances which were known at the time.
VIII. Industrial property rights and copyrights, defects of title
1. alpha metall is and remains owner and initiator of drawings, drafts, samples and dies, which have been prepared as per order given.
alpha metall here exclusively grants the customer valuable rights of use, who eliminate the circulation and valorization through third persons and also publishing to the customer.
2. alpha metall is obliged to effect the delivery free of industrial property rights and copyrights of third persons (in the following: property rights) only in the country of the place of delivery . As far as a third person raises entitled demands against the customer because of violation of property rights caused by deliveries which are effected by us and used according to the contract, we are liable against the customer within the time limit which is appointed in number VII 1. as follows:a) We will effect either a right of use or deliver a replacement according to our choice and at our expense for the relevant deliveries in order to avoid a violation of the property right. If this is not possible for us on reasonable conditions the customer has the legal right to withdraw or the right to reduce the price.
b) Our obligation of performance of recovery of damages complies with number IX.
c) Our above-mentioned obligations only exist as long as the customer advises us immediately by letter about the claimed demands of the third person, a violation is not accepted and all defensive measures and comparing negotiations remain reserved for us. If the customer ceases the usage of the delivery because of mitigation or because of other important reasons, the customer is obliged to make the third person aware of the fact that with the cessation of usage an acknowledgement of a violation of property rights is not associated.
3. Claims of the customer are excluded as far as he has to represent the violation of property rights.
4. Claims of the customer are also excluded as far as the violation of property rights is caused by special inputs of the customer, by a utilization which is not foreseeable by us or is caused by changing the delivery through the customer or by fielding the delivery together with products which have not been delivered by us.
5. Presence of other defects of title the terms mentioned in number VII are valid correspondingly.
6. Advanced or other as in this number regulated claims of the customer against us and our vicarious agent because of a defect in title are excluded.
1. The Purchaser shall only be entitled to set off a claim or to exercise a right of retention, including § 369 HGB (German Commercial Code), if the respective claim is undisputed or has been legally determined in a court of law.
2. Amendments and supplements to this contract and to these general terms and conditions of business and delivery shall enter into effect only upon written confirmation by both parties to the contract. This shall also apply to effectiveness of requirement for a written form itself in individual cases.
3. Should one of the aforesaid provisions be ineffective or become ineffective, the effectiveness of the remaining contract and provisions shall remain unaffected. The parties to the contract shall replace an ineffective provision with a provision which permissibly best complies with the economic purpose of such a replaced provision.
4. The laws of the Federal Republic of Germany shall apply. The regulations of the UN Convention on Contracts for the International Sale of Goods shall be excluded.
5. The place of performance for both parties shall be the commercial domicile of alpha metall. Insofar as legally permissible the place of jurisdiction for disputes arising from this contractual relationship shall be the respective full jurisdiction court in the Higher Regional Court District of Koblenz.