General Terms of Delivery as of February 2013.
§ 1 Validity
(1) All the deliveries, services, and offers by alwitra are provided exclusively on the basis of these General Terms of Delivery. These are part of all the contracts which alwitra will conclude with their contract partners (hereinafter also “Principals”) as to any deliveries or services offered by them. These terms will also remain in effect for any future deliveries, services, or offers provided for the Principal, even if not agreed upon separately again.
(2) Terms and conditions of the Principal or of any third parties will not be applied, even if alwitra does not object their validity separately in the individual case. Even if alwitra refers to a letter containing the terms and conditions of the Principal or of any third party or re-ferring to such terms and conditions, such reference will not imply any consent with the validity of those terms and conditions.
(3) Any declarations and statements relevant in law (e. g., setting of deadlines, notice of de-fects, declaration of withdrawal or reduction) which are to be made by the purchaser to-wards alwitra after the conclusion of a contract require written form or electronic form in order to come into effect.
(4) Our General Terms of Delivery will only be valid for companies in the sense of § 14 sec. 1 of the German Civil Code BGB.
§ 2 Offer and contract conclusion
(1) All the offers are provided subject to confirmation and are non-binding, unless explicitly marked as binding or containing a specific term of acceptance. Orders can be accepted by alwitra within 14 days upon reception.
(2) The legal relationships between alwitra and the Principal are exclusively defined by the conclusion of the purchase contract in written form, including these General Terms of De-livery. The contract will reflect all the agreements between the parties with respect to the object of the contract. Any oral commitments made by alwitra prior to the conclusion of the contract are not legally binding. Oral agreements between the parties will be substi-tuted by the contract in written form, unless their binding validity will explicitly result from the respective agreements.
(3) Amendments and modifications of the stipulated agreements, including these General Terms of Delivery, require written or electronic form in order to become effective. With the exception of Managing Directors or authorized signatories, alwitra’s employees are not entitled to conclude any oral agreements differing therefrom. The written form is suffi-ciently maintained by a transmission via telefax, the electronic form by email. Apart from that, the transmission by telecommunication will not be sufficient.
(4) Information given by alwitra with respect to the object of delivery or service (e. g., weights, sizes, practical value, load-bearing capacity, tolerances, and technical data), as well as any representations thereof (e. g., drawings and images) are only approximately significant, unless the applicability for the purpose provided by the contract will require an exact correspondence. They are not considered as guaranteed quality features, but as descriptions or characterizations of the delivery or of the service instead. Any deviations which are customary in the trade, are caused by legal regulations, or which represent technical improvements, as well as the exchange of components by parts of equal quality are permitted, unless affecting the applicability for the purpose provided by the contract.
(5) alwitra reserves the ownership or the copyright of all the offers and estimates made or given by them, as well as of all the drawings, images, calculations, brochures, catalogues, models, tools, and other documents and auxiliary means made available to the Principal. The Principal is not entitled to make these objects or their contents available to any third parties without written consent by alwitra, nor to publish them, to use them themselves or let them be used by third parties, or to copy them. Upon request by alwitra, they will return these objects completely to the former and destroy any copies which may have been made, as soon as the objects will not be required any longer for the due course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
(1) Prices are valid for the service and delivery determined within the order confirmations. Additional or special services will be invoiced separately. Prices are calculated in EUROS ex works, plus: packaging, value-added tax, customs charges in the case of export ship-ments, fees, and other public charges.
(2) Insofar as the prices agreed upon are based on the catalogue prices by alwitra and the delivery will take place more than four months after the conclusion of the contract, the valid prices will be the catalogue prices by alwitra in effect at the time of delivery (minus a per cent or firm discount agreed upon).
(3) Invoices are payable without any deduction immediately upon their reception, unless oth-erwise agreed upon in written form. The invoices are payable by bank direct debit. When placing their order, the Principal will grant to alwitra a debit order. Cheques will only be accepted as payment upon their encashment. If the Principal does not perform at maturi-ty, the due sum will be subject to an interest rate of 8 % above the annual basic interest rate as from the date of maturity. Any claims on higher interest rates and further damage caused by the default remain unaffected.
(4) Any offsetting against counterclaims of the Principal or the retention of payments on the grounds of such claims is only permitted insofar as the counterclaims are undisputed or determined without further legal recourse.
(5) alwitra will be entitled to carry out deliveries or services which are still due only against advance payment or securities, if after the conclusion of the contract they receive infor-mation about circumstances which might essentially reduce the creditworthiness of the Principal and which will put at risk the payment of the outstanding debt by the Principal to alwitra on the grounds of the respective contractual relationship (including other individual orders covered by the same framework agreement).
(6) Any discounts or freight reimbursements granted to the Principal by alwitra will be discon-tinued in the case of litigations with the Principal before a court, extrajudicial settlement proceedings, insolvency proceedings, or delayed payment by the Principal.
§ 4 Delivery and time of delivery
(1) At the option of alwitra, deliveries will be made ex works Trier or ex works Hermeskeil.
(2) At all times, periods and dates for deliveries and services held out in prospect by alwitra will only be considered as approximate, unless a specific period or date has been explicitly confirmed or agreed upon. Insofar as shipping has been agreed upon, the periods and dates of delivery will refer to the time of transfer to the Principal, the shipping company, the carrier, or any other third party engaged to take care of the transport.
(3) Without prejudice to their rights on the grounds of default caused by the Principal, alwitra is entitled to ask for an extension of the periods of delivery and service or a postponement of delivery and service dates, by the period during which the Principal does not perform their contractual obligations towards alwitra.
(4) alwitra will not be liable for any impossibility or delay of delivery caused by force majeure or other events unpredictable at the time of conclusion of the contract for which alwitra is not responsible (e. g., breakdowns of any type, difficulties in providing material or energy, transport delays, strikes, lawful lock-outs, shortages of manpower, energy, or raw materi-al, difficulties in providing necessary permits by authorities, regulatory actions, or deliver-ies by suppliers which are overdue, incorrect, or not in time). Insofar as such events es-sentially impede the delivery or make the delivery impossible for alwitra, and if such hold-ups are not of a temporary nature, alwitra will be entitled to withdraw from the contract. In the case of hold-ups of temporary nature, the periods of delivery or service will be ex-tended, or the dates of delivery or service will be postponed by the period of the hold-up, plus an appropriate start-up time. Insofar as the Principal cannot be expected to accept the delivery or service due to the delay, they will be entitled to withdraw from the contract by immediate written notice to alwitra.
(5) alwitra is entitled to partial deliveries if
• the partial delivery is applicable by the Principal in the framework of the purpose determined within the contract,
• the delivery of the remaining merchandise which has been ordered is guaranteed, and
• no considerable extra effort and expenses will result therefrom for the Principal (unless alwitra will declare to bear such expenses).
The transfer of an object of delivery or service to several shipping companies / carriers due to its type or amount does not represent a partial delivery. The delivery of one of several different objects of purchase or service included within one order of the Principal does neither represent a partial delivery.
(6) If alwitra is in default with respect to a delivery or service, or if a delivery or service be-comes impossible for alwitra for whatever reason, alwitra’s liability for damages will be restricted according to § 8 of these General Terms of Delivery.
(7) If the Principal is in default of acceptance, refrains from a duty to collaborate, or is re-sponsible for the delay of delivery by alwitra for any other reasons, alwitra will be entitled to claim the resulting damages including extra expenses (e. g., storage costs). alwitra will calculate a lump-sum compensation to the amount of 0.5 % of the order sum per calendar week, beginning with the period of delivery or – in the absence of a period of delivery – the notice that the order is ready for dispatch; the limit of 15 % of the net contract amount will not be exceeded. Evidence of a higher damage as well as any legal claims of alwitra (in particular reimbursement of extra expenses, appropriate compensation, termination) remains unaffected; the lump-sum will however be offset against any further monetary claims. The Principal remains entitled to prove that alwitra has not suffered any damage or only an essentially lower damage than the above stated lump-sum.
(8) The return of merchandise will only be accepted free of transport charges if previously agreed upon in written form by alwitra. In this case, the Principal will bear the risk of transport until the merchandise will be transferred back to alwitra, at alwitra’s option at their works in Trier or Hermeskeil. The return of packaging is also agreed upon separate-ly.
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
(1) Place of performance for all obligations resulting from the contractual relationship is, at alwitra’s option, their works in Trier or Hermeskeil, depending on the works from which the delivery will be provided and unless agreed upon differently. If alwitra is also obliged to make the installation, place of performance will be the place where the installation will take place.
(2) The type of shipping and the packaging are at the dutiful discretion of alwitra.
(3) The risk will be transferred to the Principal at the latest at the time of transfer of the object of delivery (the significant time being the beginning of the loading process) to the Princi-pal, shipping company, carrier, or other third party engaged to take care of the shipping. This will also hold in the case of partial deliveries or if alwitra has taken over any further services (e. g., shipping or installation). If the shipping or the transfer is delayed on the grounds of reasons for which the Principal is responsible, the risk will be transferred to the Principal on the day when the object of delivery will be ready for dispatch and a re-spective notice will have been given to the Principal by alwitra.
(4) Storage costs after the transfer of risks are to be borne by the Principal. In the case of storage by alwitra, storage costs amount to 0.25 % of the sum invoiced for the objects to be stored, per calendar week expired. The claim and evidence of any further or lower storage costs remains reserved. Storage costs are to be offset against the compensation pursuant to § 4 sec. 7.
(5) The shipping will only be insured by alwitra against theft, breakage, damage due to transport, fire, and water, or any other insurable damage, if such is expressly desired by the Principal, and at the expense of the latter.
(6) Insofar as acceptance will be required, the object of purchase is considered as accepted if
• the delivery and the installation – insofar as alwitra is also obliged to take care of the installation – are concluded,
• alwitra has given notice to the Principal about such fact, adverting them to the as-sumed acceptance according to this § 5 (6), and has asked them to declare ac-ceptance,
• 12 working days have passed since the delivery or installation, or if the Principal has started to use the object of purchase (e. g., has taken into operation the delivered system), and in such case [six] working days have passed since the delivery or instal-lation, and if
• the Principal has restrained from acceptance within this period for another reason than due to a defect of which they have given notice to alwitra and which makes im-possible the use of the object of purchase or essentially impairs such use.
§ 6 Warranty, material defects
(1) The warranty period is one year upon delivery or, insofar as acceptance is required, upon acceptance. If the merchandise is a building or an object which has been used for a building according to its usual application and has caused the building’s defectiveness (building material), the statute of limitation will be 5 years upon delivery pursuant to the legal regulations (§ 438 sec. 1 no. 2 of the German Civil Code BGB). Specific legal regu-lations with respect to claims for surrender in rem by third parties (§ 438 sec. 1 no. 1 BGB), for the case of wilful deceit by the seller (§ 438 sec. 3 BGB), and with respect to claims in connection with the recourse of suppliers in the case of delivery to the end con-sumer (§ 479 BGB), will also remain unaffected.
(2) The delivered objects are to be thoroughly examined immediately upon delivery to the Principal or to a third party determined by the former. They will be considered as accept-ed unless alwitra will have received, pursuant to § 2 (3) phrase 1, a written notice of de-fects with respect to obvious defects or other defects realized during an immediate and thorough examination, within seven workdays upon delivery of the object of delivery or otherwise within seven workdays upon realisation of the defect, or at each earlier time when the defect will have become obvious to the Principal during the normal use of the object of delivery without a thorough examination. Upon alwitra’s request, the faulty object of delivery must be sent back to alwitra free of transport charge. In the case of a justified notice of defects, alwitra will reimburse the costs for the cheapest type of transport; this will not hold if the costs increase because the object of delivery is located at a different place than the place of its intended use.
(3) In the case of material defects of the delivered objects, alwitra is, at their option to be selected within an appropriate period, obliged and entitled to amendment first or re-placement. In the case of failure, i. e. if an amendment or replacement are impossible, unacceptable, or are refused or inappropriately delayed, the Principal is entitled to with-draw from the contract or to reduce the purchase price adequately.
(4) If a defect is caused by alwitra, the Principal may claim damages on the conditions de-termined in § 8.
(5) In the case of defects of components produced by other companies, which alwitra is not able to remedy due to license or actual reasons, alwitra will at their option assert their warranty claims against the producers and suppliers for account of the Principal, or assign such claims to the Principal. On the usual conditions and according to these Terms of Delivery, any warranty claims against alwitra may only be put forward in such cases if the enforcement of the aforementioned claims against the producer and supplier before a court have not been successful, or appear to have no prospect of success, for example because of insolvency. During the lawsuit, the limitation of the respective warranty claims of the Principal against alwitra will be stayed until the lawsuit is over.
(6) The warranty will be cancelled if the Principal modifies the object of delivery or has the latter modified by third parties without consent of alwitra, which has made the elimination of defects impossible or impaired such elimination unacceptably. In any case, the Princi-pal will bear the extra costs of the defect elimination resulting from such modification.
(7) A delivery of used objects agreed upon with the Principal in the individual case will ex-clude any warranty for material defects.
§ 7 Intellectual property rights
(1) Pursuant to this § 7, alwitra will guarantee that the object of delivery is free from any in-dustrial property rights or copyrights of third parties. Each party to the contract will imme-diately inform the other party in written form or by email if any claims are put forward against them on the grounds of a violation of such rights.
(2) If the object of delivery violates an industrial property right or copyright of any third party, alwitra will at their option and at their expenses modify or exchange the object of delivery in such a way that no rights of third parties will be violated any longer and the object of delivery will still fulfil the functions stipulated within the contract. Otherwise, alwitra will provide to the Principal the right of use by concluding a license agreement. If alwitra does not succeed in doing so within an appropriate period, the Principal will be entitled to with-draw from the contract or to reduce the purchase price adequately. Any possible claims on damages of the Principal are subject to the restrictions of § 8 of these General Terms of Delivery.
(3) In the case of a violation of law by products of other companies delivered by alwitra, al-witra will at their option assert their claims against the producers and presuppliers for ac-count of the Principal or assign such claims to the Principal. Claims against alwitra may only be asserted in these cases according to this § 7 if the enforcement of the aforemen-tioned claims against the producers and presuppliers before a court have not been suc-cessful, or appear to have no prospect of success, for example because of insolvency.
§ 8 Liability for damages on the grounds of fault
(1) alwitra’s liability for damages for whatever legal reason, in particular on the grounds of impossibility, default, defective or wrong delivery, violation of the contract, violation of ob-ligations during contract negotiations, and tortious acts, is restricted pursuant to this § 8 insofar as it comes down to a fault in the respective case.
(2) alwitra will not be liable in cases of ordinary negligence of their organs, legal representa-tives, employees, or other vicarious agents, insofar as no essential contractual obligations are violated. Essential contractual obligations are the obligation to deliver and install the object of delivery free from essential defects, as well as duties to consult, protect, and exercise proper care, which are intended to enable the Principal to use the object of de-livery according to the contract, or have the purpose of protecting health and life of the Principal’s employees or the Principal’s property against considerable damage.
(3) Insofar as alwitra will be liable for damages on the merits according to § 8 (2), this liability will be restricted to damage which alwitra has foreseen at the time of conclusion of the contract as a possible consequence of a violation of the contract, or which they should have had to foresee if due diligence was applied. Besides, indirect or consequential damage resulting from defects of the object of delivery will only be remedied insofar as such damage is to be expected typically if the object of delivery is used as intended.
(4) The aforementioned disclaimers and restrictions of liability will also be valid to an equal extent in favour of the organs, legal representatives, employees, and other vicarious agents of alwitra.
(5) Insofar as alwitra provides technical information or consultation and this information or consultation is not part of the scope of performance stipulated within the contract and owed by them under the contract, they will do so free of charge and to the exclusion of any liability.
(6) The restrictions of this § 8 will not apply to alwitra’s liability on the grounds of wilful be-haviour, guaranteed quality features, the violation of life, limb, or health, or the German Product Liability Law.
§ 9 Retention of title
(1) The retention of title agreed upon in the following serves for the securitisation of all the existing current and future claims of alwitra against the Principal on the grounds of the re-lationships of delivery existing between the parties to the contract (including balance claims on current accounts restricted to this relationship of delivery).
(2) The merchandise delivered to the Principal by alwitra will remain in the ownership of al-witra until the complete payment of all the secured claims. Pursuant to this clause, the merchandise will be called merchandise subject to retention of title hereinafter.
(3) The Principal will store the merchandise subject to retention of title free of charge for al-witra.
(4) The Principal is entitled to process and sell the merchandise subject to retention of title in the due course of business until an event of enforcement may occur (section 9). Pledges and assignments as security are not permitted.
(5) If the merchandise subject to retention of title is processed by the Principal, it is agreed upon that the processing will take place in the name and for account of alwitra as pro-ducer, and that alwitra will acquire direct ownership or – if the processing comprises ma-terials of several owners or the value of the processed object is higher than the value of the merchandise subject to retention of title – co-ownership (part ownership) of the creat-ed new object, at the ratio of the value of the merchandise subject to retention of title and the value of the created new object. For the case that no such acquisition of ownership should occur for alwitra, the Principal will already now transfer their future ownership or – at the abovementioned ratio – co-ownership of the created new object as security to al-witra. If the merchandise subject to retention of title will be combined with other objects to form a homogeneous object, or will be mixed inseparably with another object, and if one of the other objects is to be considered the main object, alwitra will transfer to the Princi-pal, insofar as they own the main object, the co-ownership of the homogeneous object proportionally, at the ratio mentioned in phrase 1.
(6) In the case of a resale of the merchandise subject to retention of title, the Principal will already now assign to alwitra as security the claim against the purchaser resulting there-from – in the case of a co-ownership of alwitra of the merchandise subject to retention of title, in proportion to the co-ownership share; alwitra will accept this assignment. The same holds for any further claims substituting the merchandise subject to retention of title or otherwise resulting with respect to the merchandise subject to retention of title, for ex-ample insurance claims or claims on the grounds of unlawful acts in the case of loss or destruction. alwitra will authorize the Principal revocably to collect the claims assigned to alwitra in their own name. alwitra may only revoke this authority in the case of enforce-ment.
(7) If any third parties seize the merchandise subject to retention of title, in particular by gar-nishment, the Principal will immediately indicate the ownership of alwitra and will inform alwitra of such seizure, in order to enable alwitra to enforce their ownership rights. Insofar as the third party is unable to reimburse alwitra for the judicial or extrajudicial costs result-ing therefrom, the Principal will be liable towards alwitra.
(8) At their option, alwitra will release the merchandise subject to retention of title as well as the objects or claims substituting such merchandise upon request, insofar as their value exceeds the amount of the secured claims by more than 50 %.
(9) If alwitra withdraws from the contract on the grounds of a behaviour of the Principal in violation of the contract – in particular in the case of default in payment – (case of en-forcement), they are entitled to request the surrender of the merchandise subject to re-tention of title.
§ 10 Closing provisions
(1) In the case of any possible litigation in connection with the business dealings between alwitra and the Principal, at the option of alwitra the place of jurisdiction will be Trier or the place of business of the Principal. In the case of actions against alwitra, the exclusive place of jurisdiction will be Trier. Obligatory statutory regulations with respect to exclusive places of jurisdiction remain unaffected by this provision.
(2) The relations between alwitra and the Principal are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the Inter-national Sale of Goods as of 11 April 1980 does not hold here.
(3) Insofar as the contract or these General Terms of Delivery contain any regulatory gaps, in order to fill in such gaps, those legally effective regulations will be considered as agreed upon which the parties to the contract would have agreed upon according to the economic purposes of the contract and the purpose of these General Terms of Delivery, if they had known the regulatory gap.
The Principal will take note that alwitra will store data from the contractual relationship ac-cording to § 28 of the Federal Data Protection Act for purposes of data processing, and will reserve the right to transfer such data to third parties (e. g., insurance companies) if neces-sary for the performance of the contract.