Aluform System GmbH & Co. KG Dresdener Straße 15 02994 Bernsdorf Deutschland +49 (0) 35723 99-0 info@aluform.de

Delivery and Payment Terms and Conditions

Aluform System GmbH & Co.KG Version

Dated: January 2006

I. Applicability

  1. These General Terms and Conditions of Delivery apply to all deliveries of goods and services - including future deliveries -and their processing. We do not recognise contradictory delivery conditions of the Buyer, or such that deviate from the conditions in this contract, and expressly reject such terms. They are only binding for us if we expressly agree to them in writing. Deviating purchasing conditions of the Customer shall not become part of the contract even if an order is accepted. Delivery of products or acceptance of payments in whole or in part without express contradiction cannot be construed as acceptance of the Buyer’s conditions under any circumstances.
  2. Verbal agreements, subsidiary agreements, changes and other agreements shall not become binding without written confirmation.
  3. Failure to reply on the part of the Seller shall not be considered agreement under any circumstances.

II. Price

  1. Unless otherwise specified in the contract confirmation, our prices are “ex works” and do not include packaging and VAT.
  2. Price changes are permitted if more than six weeks pass between conclusion of the contract and the agreed delivery date. If the wages, material costs or cost prices increase before completion of delivery, we are entitled to raise the price appropriately in accordance with the cost increases. The Customer is only entitled to withdraw from the contract if the price increase significantly exceeds the general increases in the costs of living between conclusion of the contract and delivery dates.
  3. Orders for which no expressly fixed prices have been agreed are invoiced at the prices valid on the day of delivery. If no price was agreed, we shall determine the compensation at our discretion.

III. Terms of payment

  1. Payments may only be made in euros, plus the legal value added tax.
  2. Unless otherwise agreed, they must be made within 8 days of the invoice date with a 2 % discount on the pure value of the goods, or without reduction 30 days after the invoice date. However, the discount shall only be granted if we receive the amount due within 8 days, and if no other payments for deliveries of the Customer due at the time of payment are unpaid.
  3. If the Customer fails to comply with the payment terms, they shall pass on to us payments they receive for claims as¬signed to us without delay.
  4. The Customer may not sell goods to which we retain full or partial title without our approval and must surrender it if we request them to do so. A demand by us to surrender the items shall not be considered a withdrawal from the contract.
  5. If payment is not made by the deadline, standard bank interest rates shall be charged.
  6. After an appropriate period of grace expires without results, we are entitled to withdraw from the contract or to claim damages for failure to fulfil the contract. Claims for additional damages as a result of the delay can still be made.

IV. Delivery periods

  1. Our delivery periods and delivery dates are subject to correct and punctual delivery by our suppliers.
  2. The delivery dates refer to the time of delivery "ex works": They are approximate. They shall be extended appropriately if the Customer does not fulfil their obligations or if we are prevented from meeting the delivery deadlines due to unfore¬seeable circumstances which could not be prevented in spite of reasonable care. This shall also apply if our suppliers are affected by such circumstances. We cannot be held liable for the abovementioned circumstances, even if they occur during an existing delay. We shall inform the Customer of the beginning and end of such hindrances as soon as possible in important cases.
  3. Even if dates have been agreed, we shall only be considered in arrears after a written reminder in which an appropriate period is set.
  4. Claims for damages due to failure to perform or delayed performance are hereby excluded unless the delay is intentional or grossly negligent.

V. Transfer of risk

  1. Our plant or warehouse shall be the places of fulfilment. As soon as the goods leave our plant or warehouse, or are made available to the Customer, the risk of deterioration or loss of the gods is transferred to the Customer.
  2. If goods are returned, the Customer bears the risk until the goods arrive at the delivery plant.
  3. In the event of transport damage or delivery of incorrect goods as a result of mistakes at the transport company, the Customer must inform the transport company immediately and have the necessary measures taken.

VI. Acceptance

  1. If acceptance by special conditions is agreed, the acceptance procedure shall be performed at the delivery plant at the expense of the Customer.
  2. The Customer is obliged to accept the delivered item within 14 days of its availability, unless they are temporarily prevented from performing the acceptance procedure through no fault of their own. If the Customer delays acceptance of the purchased items more than 14 days from the receipt of the notification of availability, either intentionally or through gross negligence, we are entitled to withdraw from the contract and claim damages after setting a period of grace of a further 14 days. No period of grace must be set if the Customer seriously or finally rejects the acceptance.

VII. Excess or short delivery / Tolerances

  1. Production or shipping-related deviations in weight and quantity of up to 5% are permitted with respect to the total order quantity and in relation to each partial delivery.
  2. DIN tolerances apply for complaints related to DIN-normed goods.
  3. The quantity/weights specified by the delivery plant are decisive.
  4. We reserve the right to slight deviations or slightly faded colours.
  5. We reserve the right to make changes in design and form due to technological improvements or legal requirements during the delivery period, provided the delivered item is not significantly changed and the changes are reasonable for the Customer.
  6. Samples on which a delivery is based are only an approximate basis for the delivery.

VllI. Retention of title

  1. We retain the title to goods we deliver and any products (goods subject to retention of title) resulting from processing thereof until all current and future claims arising to us from the business relationship from the Customer have been fulfilled - including any current account balance claims. All deliveries shall be considered a connected delivery transaction.
  2. Customers perform any processing work on our behalf without any obligations arising to us from this. If the Customer processes goods subject to retention of title with other goods, we are entitled to joint ownership of the new products in the ratio of the value of the processed goods subject to retention of title to the other goods at the time of processing. The Customer hereby already cedes their share of any joint title arising from combination and mixing of the delivered goods with other goods to us.
  3. The Customer may not pledge the goods or surrender them as collateral.
  4. The Customer must store objects subject to our ownership for us with the diligence of a reasonable business person. The Customer hereby permits us to inspect the premises in which the goods subject to retention of title are stored. Should the Customer act in violation of the contract, in particular by falling into payment arrears, we are entitled to take back the de¬livered item after issuing a reminder, and the Customer is obliged to surrender the items. In such cases, we are entitled to use the goods, whereby the amount earned from their use shall be offset against the purchase price, less the costs incurred by such use.
  5. The Customer may only sell the goods subject to retention of title and the products resulting from the processing, combination and mixing thereof in proper business transactions either in return for cash payment or specification of a payment target subject to retention of title. The Customer must inform us in writing without delay of access by third parties to the goods subject to retention of title or assigned claims, enclosing the documents required for intervention. The Customer shall bear the costs of the intervention.
  6. The Customer hereby assigns the receivables and rights from onward selling or other legal grounds related to the goods subject to retention of title as a surety in the value of the goods subject to the retention of title sold onward or the return on sales if this is less than the value of the goods. If the Customer sells the goods subject to retention of title together with other goods, the Customer shall assign the purchase price receivable for the goods subject to retention of title in full, or, in the event of prior processing with goods which do not belong to us, to the value of the goods subject to retention of title which were processed. We hereby accept this assignment. The Customer will reveal all receivables accruing to them from third parties to us and describe them precisely, if the receivables are based on material we provided. For this purpose, they shall submit to us all documents required to collect the receivables and inform the debtors (third parties) of the assignment.
  7. As long as the Customer fulfils their obligations, the assignment shall be treated as a silent assignment and the Customer is entitled to collect the receivable. Our authorisation to collect receivables ourselves is unaffected by this, however we undertake not to collect receivables as long as the Customer fulfils their payment obligations properly and is not in pay¬ment arrears.
  8. At our request, the Customer is obliged to inform third party buyers of the assignment and to provide us with the informa¬tion and documents required to assert our rights.

IX. Warranty / Liability / Statute of limitations

  1. Complaints regarding the weight, quantity and other obvious faults must be made without delay, but 2 weeks after receipt of the goods at the latest. We must be notified of concealed faults in writing immediately after they are discovered. If the Customer does not notify us of faults in good time, and does not provide samples of the faulty material immediately on demand, all fault claims shall become void.
  2. Professional processing of a fault claim is not commensurate with a waiver of compliance with this provision. All warranty claims, including those due to concealed faults, shall expire 6 months after delivery at the latest.
  3. In the event of legitimate complaints, the Customer is entitled to a method of redress of our choice, either free additional delivery, replacement delivery or credit in return for sending the goods subject to complaint. If we refuse to deliver replacements or to rectify the fault, or if we do not implement these solutions within an appropriate period, or if the goods delivered as replacements or repaired goods are faulty again, the Customer can demand a reduction of the purchase price or cancellation of the contract.
  4. Additional claims of the Customer arising from legislature and the contract, in particular damage unrelated to the deliv¬ered item itself shall not be accepted, with the exception of claims arising from intent or gross negligence.
  5. Replacement of the entirety of the remaining partial delivery may not be demanded as a result of a faulty partial delivery.
  6. We can refuse to rectify faults if the Customer has not fulfilled their obligation to an appropriate extent.
  7. We accept liability only on the basis of written assurance for technical advice on application and processing methods of our products and all other related information provided by us or parties acting on our behalf, where the Customer has given the information required for proper advice.
  8. The Customer is responsible for testing whether the ordered or proposed goods are suitable for the purpose planned by the Customer. We accept no responsibility for suitability.
  9. Guaranteed properties must be expressly designated as such individually in writing. We accept liability for missing guar¬anteed properties to no more than the extent detailed in Paragraphs 2 and 3. We are only liable for damages if the as¬surance was provided to protect the Customer from the damages which occurred.

X. Additional obligations and advice

  1. Additional contractual obligations and advice in relation to the delivered object are provided with due care and to the best of our knowledge in accordance with the state-of-the-art and the use conditions stated to us by the Customer; the abovementioned conditions apply accordingly for warranty and liability, including failure to perform.
  2. Mere recommendations are non-binding.

XI. Offsetting, withholding and assignment

  1. The Customer is only entitled to offset against our payment claims or withhold payments if we have expressly recognised the counter-claims in writing or if they were upheld by a court of law.
  2. The Customer may only assign claims arising from this contract to third parties with our prior written approval.

XII. Credit basis

If, after conclusion of the contract, we become aware of circumstances which give reason to assume that the asset status of the Customer has deteriorated – e.g. the Customer does not pay due invoices on time – we are entitled to either withdraw from outstanding delivery obligations or to make them in return for payment in advance or the provision of corresponding collateral.

XIII. Cancellation costs

If the Customer cancels a granted order without just cause, we can claim 10 % of the sales price for the costs arising from processing the order and for loss of profits, without affecting our right to claim higher actual damages. The Cus-tomer reserves the right to prove lesser damage.

XIV. Place of performance, court of jurisdiction and applicable law

  1. The place of performance for the delivery, unless otherwise agreed, is Bernsdorf.
  2. The court of jurisdiction is the court competent at the seller’s headquarters. However, we are also entitled to instigate legal proceedings at the headquarters of the Customer.
  3. The laws of the Federal Republic of Germany apply. If these provisions do not provide appropriate rules, the legal rules and standard commercial conditions shall apply. Laws on international purchases of movable goods and on conclusion of international purchase agreements for movable goods cannot be applied.

XV. Privacy

The Buyer is hereby notified that their private personal data covered by the Data Privacy Act shall be processed as part of the standard commercial processing of the order. The Buyer hereby grants permission for this, unless it is revoked in writing within 6 days of the receipt of order confirmation.

XVI. Severability clause

  1. Should one of the above clauses be or become wholly or partially invalid, a provision which is closest to the economic effect of the clause to be replaced shall apply.
  2. The invalidity of one clause shall not cause the remainder of the contract to become invalid.