conditions of sale
§ 1 1 Scope, Form
- These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers ("Buyer"). The GCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The GCS apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
- Our GCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTC.
- Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
- Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- References to the applicability of statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
- Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
- The order of the goods by the buyer is considered a binding contract offer. If we are unable to meet delivery deadlines for reasons for which we are not responsible (non-availability of performance), we will inform the Buyer of this without delay and
- at the same time the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
- The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the purchaser is required. If we are in default of delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
- The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
- Insofar as the order does not state otherwise, we are entitled to accept this contractual offer within 10 working days of its receipt by us.
Special conditions online store
- The products offered in the online store represent legally non-binding offers and serve as an invitation to submit an offer (invitatio ad offerendum).
- An electronic order process is provided in the online store for submitting an offer to conclude a contract. After going through the order process, the customer makes a legally binding offer to conclude a purchase contract for the goods contained in the shopping cart by clicking on the button "Order now with costs". The customer will be informed immediately by e-mail about the receipt of the order (order confirmation). This order confirmation also contains the General Terms and Conditions of Sale and further information.
- The purchase contract is not already concluded with the receipt of the order confirmation - this merely documents the receipt of the customer's order by us - but only with the sending of a confirmation of the contract by e-mail by us (order confirmation) or the delivery of the goods. We are entitled to accept the contractual offer contained in the order within 3 working days or to refuse acceptance of the order without giving reasons. In the latter case, a contract with us is not concluded. This order confirmation also contains the General Terms and Conditions of Sale and Customer Information.
- In cases where a contractual partner of ALUCA sells ALUCA's products in the vicinity of the Purchaser's registered office (invoice address), the order will be confirmed and executed by the ALUCA partner. The purchaser will receive the order confirmation as well as the general terms and conditions or GTC directly from the ALUCA partner. The purchase contract is thus concluded between the purchaser and the ALUCA partner.
§ 3 Delivery period and delay in delivery
- The delivery period is agreed individually or stated by us upon acceptance of the order. All dates stated in offers and order confirmations are non-binding, anticipated delivery dates ex works and are also subject to the express reservation of self-delivery. ALUCA shall be entitled to withdraw from the contract to the extent that ALUCA does not receive the delivery item despite the prior conclusion of a corresponding purchase contract; ALUCA's liability due to intent or negligence shall remain unaffected in accordance with § 8 of these conditions. ALUCA will inform the Purchaser without delay of the non-timely availability of the delivery item and, if ALUCA wishes to withdraw, will exercise the right of withdrawal without delay.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
- Delivery is made ex warehouse (INCOTERMS 2020: FCA) where is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass as soon as the goods are delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
- If the purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 50.00 per calendar day, starting 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 a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The purchaser shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover of the goods. The risk of accidental loss and accidental deterioration of the goods shall pass to the entrepreneur upon handover, in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. It is equal to the handover if the customer is in default of acceptance.
Special Conditions Onlinestore
- Delivery for an order in the online store is made to the delivery address specified by the customer in the order process. The customer ensures that the goods can be received and unloaded at the delivery address. Delivery can also be made to an ALUCA partner or to installation partners selected by the customer. We ship the goods only to selected countries.
§ 5 Prices and terms of payment
- Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
- In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) shall be deemed to have been agreed, which shall be determined individually between the parties. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
- The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
- Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
- The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been established by a final court decision or is undisputed. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
- If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
Special conditions online store
- All payment obligations resulting from the conclusion of a contract via the online store are owed in euros. All prices are net prices and are subject to the applicable statutory value added tax. All prices shown are non-deductible prices.
- Unless otherwise shown, delivery and shipping costs are not included in the prices of the online store. The delivery and shipping costs incurred are shown as a flat shipping rate, which is also displayed in the electronic order process. Costs for packaging are already included in the respective shipping flat rate displayed.
- In the case of payment by invoice, we expect to ship the goods approximately 14 working days after sending the order confirmation, unless otherwise noted about the expected delivery date of the goods in the order confirmation.
- In the case of payment in advance, by credit card or with payment providers such as PayPal or sofortueberweisung.de, we expect to ship approximately 14 working days after receipt of payment (receipt of payment in our account), unless otherwise noted in the order confirmation about the expected delivery date of the goods.
§ 6 Retention of title
- Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
- In case of breach of contract by the buyer, in particular in case of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
- Until revoked in accordance with (c) below, the Buyer shall be authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
- The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
- The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser stated in paragraph 2 shall also apply in respect of the assigned claims.
- The purchaser shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the purchaser's authorization to further sell and process the goods subject to retention of title.
- If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the Buyer
§ 7 Claims for defects of the buyer
- The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier's recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
- The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been made public by us (in particular in catalogs or on our Internet homepage) shall be deemed to be an agreement on the quality of the goods.
- Insofar as the condition has not been agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- The buyer's claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects must be notified in writing within 1 working day of delivery and defects not apparent upon inspection within the same period of time from discovery. We refer to our guidelines for the acceptance of goods. If the purchaser fails to make the proper inspection and/or notification of defects, our liability for the defect not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
- If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
- We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due.
- The purchaser shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.
- We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the purchaser.
- In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
- If the supplementary performance has failed or a reasonable period to be set by the purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
- Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
- Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
- We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in own affairs) only
- for damages resulting from injury to life, body or health,
- for damages resulting from a not insignificant breach of a material contractual obligation (an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
- The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act. Supplementary reference is made to the ALUCA warranty conditions, which are available on the ALUCA homepage.
- Due to a breach of duty that does not consist of a defect, the purchaser may only withdraw or terminate the contract 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. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation
- Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
- The statutory provisions of § 438 para. 1 No. 2 BGB (German Civil Code) as well as the special statutory provisions on limitation (in particular § 438 para. 1 No. 1, 2, para. 3, §§ 444, 445b BGB) shall remain unaffected.
- The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Data protection and personal data
- The AVB between ALUCA and its customers are subject to the data protection regulations in force at the time.
- The Parties shall cooperate fully to enable the other Party to comply with its obligations under relevant laws and regulations concerning the protection of personal data.
- In fulfilling its obligations under the Contract, ALUCA shall comply with all relevant laws and regulations regarding the protection of personal data relating to the Buyer.
- ALUCA will process personal data of the Purchaser only on behalf of the Purchaser to the extent necessary to fulfill its contractual obligations.
- ALUCA shall take appropriate technical and organizational measures to protect the Buyer's personal data against unauthorized or unlawful processing.
- If required, the ALUCA Data Processing Information will be attached as an appendix to these Terms and Conditions of Sale by ALUCA and signed by the Buyer.
§ 11 Compliance with the law
- Buyer shall comply with all applicable laws, rules and regulations, including any applicable export controls, sanctions, embargoes or other restrictions with respect to goods supplied by ALUCA under these GTC. Buyer warrants that goods supplied by ALUCA will not be re-exported, sold, transferred or used in violation of the foregoing laws, rules and regulations. Buyer indemnifies ALUCA and its affiliates against any claims, losses, damages, costs, penalties and/or fines that ALUCA will incur as a result of breach of the above warranty and we will defend any claims made against ALUCA for this reason.
§ 12 Choice of law and place of jurisdiction
- The law of the Federal Republic of Germany shall apply to these GCS and the contractual relationship between us and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- If the buyer is a merchant iSd. Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 74538 Rosengarten/Germany. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
HRB 781985, Local court Stuttgart
Status 2022 /01