Terms of use

General Terms and Conditions of Sale of the Alumax Europe GmbH

§ 1 General / scope

These general terms and conditions of sale (in the following: terms and conditions) shall apply to all of our business relations with our customers (hereinafter: “buyer“). The terms and conditions apply only if the buyer is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a public law special fund.
The terms and conditions shall in particular apply to contracts concerning the sale and/or the delivery of movable objects (hereinafter also: “goods“) irrespective of whether we produce the goods ourselves or purchase these from components suppliers (§§ 433, 651 BGB). The terms and conditions shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of movable objects with the same buyer without us having to refer to these again in each individual case. We will inform the buyer about changes of these terms and conditions in each case immediately.
Our terms and conditions shall apply exclusively. Deviating, contrary or supplementary General Business Terms of the Buyer shall only then and insofar become a part of the contract to the extent that we have explicitly approved their validity. This approval requirement shall apply in any case, for example also if, with the knowledge of the General Business Terms of the buyer, we carry out the delivery to him without reservation. Deviating terms and conditions of purchase are all explicitly rejected.
Individual agreements reached in an individual case with the Buyer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these terms and conditions. A written contract or our written confirmation shall be decisive for the contents of such agreements.
Legally relevant declarations and notifications, which are to be submitted towards us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.
References to the validity of statutory regulations shall only have clarifying significance.Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these terms and conditions.

§ 2 Offer and acceptance

Our offers are without obligation and non-binding. This shall also apply if we have handed over catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in an electronic form – to the Buyer, to which we reserve property rights and copyrights. These documents may not be made available to third parties unless we give you our express written permission to do so. If we do not accept the buyer’s offer within the time limit stated under § 2 sec. 2, these documents must be returned to us immediately.
The order of the goods by the buyer is deemed as a binding contractual offer. Insofar as not otherwise derived from the order we are entitled to accept this contractual offer within two weeks after its receipt by us.
The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

§ 3 Delivery deadline and delay in delivery

The delivery deadline is individually stipulated or disclosed by with accepting the order.
Insofar as we cannot observe binding delivery deadlines (impossibility of performance) for reasons for which we are not responsible (force majeure such as strikes, transport disruptions due to extreme weather conditions and government intervention) we shall inform the Buyer hereof immediately and at the same time inform it of the expected, new delivery deadline. If the service is not available within the new delivery deadline either we shall be entitled to cancel the contract in full or in part; we will reimburse an already provided consideration of the Buyer immediately. Deemed as case of non-availability of the service within this meaning is in particular the late self-delivery by our components suppliers, if we have concluded a congruent hedging transaction. Our statutory rights to cancellation and termination and the statutory regulations concerning the processing of the contract with an exclusion of the service obligation (e.g. impossibility of service and/or subsequent performance or if these are deemed unreasonable) remain unaffected. The rights of the Buyer to cancellation and termination according to § 8 of the terms and conditions also remain unaffected.
The occurrence of our delay in delivery is determined according to the statutory regulations. In this case however a reminder by the Buyer is necessary. If we are in default of delivery, the buyer can demand compensation for the delay. The damage flat rate compensation is for each full calendar week of delay 0.5% of the net price (delivery value), up to a max. of 5% of the net price

of the delayed goods. We reserve the right to prove that the buyer has no damage or only a much smaller damage than the above flat rate compensation.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

The delivery is carried out ex warehouse or ex works where the place of performance is also respectively located. Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves.
The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer by no later than when the goods are handed over. With a contract of sale involving the carriage of goods the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall however pass with the delivery of the goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment already. Insofar as an acceptance has been agreed this shall be decisive for the passing of risk. Incidentally, the statutory regulations of the law governing contracts for work and services shall also apply accordingly to an agreed acceptance. It is deemed equivalent to the handover or acceptance if the Buyer is in default with the acceptance.
If the Buyer is in default of acceptance, if it fails to provide an act of assistance or if our delivery is delayed for other reasons for which the Buyer is responsible then we are entitled to request compensation for the thus arising damages including additional expenses (e.g. storage costs). For this we shall charge a flat rate compensation in the amount of 0,5 % of the agreed net price per week up to a max. of 5 % of the agreed net price, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is however to be offset against further monetary claims. The Buyer reserves the right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.

§ 5 Retention of title

We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract and a current business relationship (secured claims).
The buyer is obliged to treat the goods carefully. The buyer is obliged to notify us of any damage or destruction of the goods.

The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if and insofar as there are any accesses of third parties to the goods which belong to us. Any change in possession of the goods shall also be notified to us by the buyer immediately.
In case of conduct of the Buyer which is in breach of the contract, in particular with non-payment of the due purchase price we are entitled to cancel the contract and to request that that the goods are handed over. If the Buyer does not pay the purchase price due, we may assert these rights only if we have first set the Buyer an appropriate deadline for payment without result or if setting a time limit may be dispensed with according to the provisions of law.
The Buyer is authorised to resell and/or to process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall additionally apply:

a) Retention of title extends to the full value of the products created by processing, mixing or combining our goods, in which context we shall be deemed the manufacturer. If in the case of processing, mixing or combining with third party goods the retention of title still applies, we shall acquire joint ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects the same rules shall apply to the product created as to the goods delivered subject to retention of title.

b) The Buyer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share, to us as collateral according to the afore-mentioned paragraph. We hereby accept the assignment. The obligations of the Buyer stated in sec. 2, 3 and 4 shall also apply in view of the assigned claims.

c) The Buyer shall remain authorised to collect the claim in addition to us. However, we are obliged not to collect the claim as long as the Buyer meets its payment obligations towards us, is not in default of payment, no application has been filed for the opening of insolvency proceedings and there is no other deficiency to its ability to pay. However, if this is the case we can request that the Buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

d) If the realisable value of the collateral items exceeds our claims by more than 20 % we shall upon request of the Buyer release collateral items at our choice.

§ 6 Prices and payment

Unless otherwise agreed in a particular case our prices current at the time of conclusion of contract shall be valid on the basis ex warehouse, plus the applicable rate of value added tax. If the prices agreed to are based on the list prices and delivery is not to be made until more than four months after the conclusion of the contract, the Vendor’s list prices valid at the time of delivery apply (in each case minus an agreed percentage or fixed discount).
In case of sale by delivery to a place other than the place of performance (§ 4 sec. 1), the costs of transport from warehouse and of any transport insurance requested by the buyer shall be borne by the buyer. Unless otherwise agreed, any customs, charges, taxes and other public duties shall be borne by the buyer. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable and becomes the Buyer’s property, except for EURO-pallets and swap pallets.
The purchase price is due immediately upon delivery or receipt of goods. The payment of the purchase-price shall be made exclusively on the account stated by us. The deduction of any discount is only permissible in the event of a special agreement in writing.
With expiration of the above-mentioned term of payment the buyer will be in default. During the default period an interest of 8% above the base rate of interest p.a. has to be paid on the purchase-price. We reserve the enforcement of further default damage.
The buyer only holds rights to offset our claim or can enforce a lien if his counter-claim is undisputed or has been legally established in a final form. In case of defects to the delivery the counter-claims of the buyer, especially those out of § 7 sec. 6 of these terms and conditions remain unaffected.
If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the Buyer to pay (e.g. by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (§ 321 BGB). In case of contracts concerning the production of unreasonable objects (individual productions) we can declare the cancellation immediately; the statutory regulations concerning the lack of necessity to set a deadline remain unaffected.
If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in wage costs, material costs and distribution costs for deliveries occurring 3 months or later after the conclusion of the contract.

§ 7 Warranty

The statutory regulations shall apply to the rights of the Buyer in case of defects of quality and title (including false and shortfall in delivery) insofar as not otherwise determined below.
As result of their chemical properties many of our products are subject to a limited shelf-life and storability. The expected shelf-life is specified on the respective product packaging or in the product description. The limited shelf-life is part of the agreement on characteristics and can therefore represent no defect. Our warranty is based mainly on the agreements made to the characteristics of the goods. All product descriptions that are the subject of the individual contract shall be deemed the agreement concerning the characteristics of the goods, irrespective of whether the product description originates from the Buyer, from the manufacturer or from us. If no characteristics were agreed the presence or absence of a defect shall be determined based on the statutory regulations. We are not liable for public declarations by the manufacturer or a third party (e.g. assertion in advertising).
Claims by the Buyer on the grounds of defects shall be dependent upon the Buyer having complied with its obligations regarding the inspection of goods and notification of defects. If a defect is determined during the inspection or subsequently then this is to be reported to us immediately in writing. The report is deemed as immediately if it is made within three working days whereby the timely despatch of the report is sufficient in order to safeguard the deadline. The report must be given in writing. Irrespective of this obligation for inspection and reporting of complaints the Buyer must report obvious defects (including false and shortfall in delivery) within three working days from delivery whereby the timely despatch of the report is also sufficient here in order to safeguard the deadline. If the Buyer fails to carry out the proper reporting of defects our liability for the defect which was not reported is excluded.
If the delivered object is faulty we can initially choose whether we shall provide subsequent performance by remedying the defect (subsequent improvement) or by delivery of a faultless object (substitute delivery). We are entitled to make remedial performance conditional upon the buyer paying the purchase price due. The Buyer is however entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.
The Buyer must give us the time and opportunity which are necessary for the owed subsequent performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of the substitute delivery the Buyer must return the faulty object to us according to the statutory regulations. The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Buyer is unjustified we can request reimbursement of the costs incurred hereby from the Buyer.

If the subsequent performance has failed or a reasonable deadline which is to be set by the Buyer for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory regulations the Buyer can cancel the purchase contract or reduce the purchase price. However, no right to cancellation exists with an insignificant defect. There shall, however, be no right of rescission if the defect is negligible.
Claims of the Buyer for damages or reimbursement of fruitless expenses shall only exist according to § 8 and are incidentally excluded.
Guarantees are not granted to the buyer by these terms and conditions.

§ 8 Liability

Insofar as not otherwise derived from these terms and conditions we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.
We shall be liable for damages – no matter for what legal grounds – in case of wilful intent and gross negligence.

In case of simple negligence we shall only be liable

a) for damages from the injury to life, the body or the health,

b) for damages from the breach of an essential contractual duty (obligation, the satisfaction of which only enables the proper execution of the contract at all and with which the contractual partner relies and may as a rule rely on its compliance); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.

The aforementioned exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other agents.
The Buyer can only cancel or terminate the contract owing to the breach of a duty, which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 651, 649 BGB) is excluded. Incidentally the statutory pre-requisites and legal consequences shall apply.
The above limitation of liability does not apply to the claims of the buyer from product liability.

§ 9 Limitation

The time limit for claims arising from defects of quality and title in variation of the statutory provision is one year from delivery. If acceptance has been agreed, the limitation period begins with the acceptance. However statutory special regulations for damage claims (§ 8 sec. 1 and 2) shall be unaffected. In these cases solely the legal provisions on limitation apply.
The afore-mentioned statutes-of-limitations of the law governing purchases shall also apply to contractual and non-contractual claims for damages of the Buyer which are due to a defect to the goods, unless the application of the regular legal statute-of-limitations (§§ 195, 199 BGB) would lead to a shorter statute-of-limitations in an individual case. The statutes-of limitations of the Product Liability Law shall remain unaffected in any case.

§ 10 Governing law and jurisdiction

For these terms and conditions and all legal relationships between us and the buyer the law ofthe Federal Republic of Germany shall apply in exclusion of references to other jurisdictions as well as the exclusion of all international and supranational (contractual) legal regulations, in particular the UN Convention on the International Sale of Goods.
If the buyer is a merchant as defined by the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a public separate asset, the place of jurisdiction for all disputes, which arise during the fulfilment of this contractual relationship, including international disputes, is in Kiel, Germany.
Any provisions in the contract with the buyer including these terms and conditions that are or become invalid in whole or in part shall have no effect on the validity of the remaining provisions. The ineffective or partly ineffective provision is to be replaced by a provision which conforms as closely as possible to the economic purpose of the ineffective provision.

Neumünster, 10^th of October 2017

Alumax Europe GmbH