Terms & Conditions, alimex Metallhandelsgesellschaft mbH
Terms and Conditions of Sale, Delivery and Payment
All sales and deliveries are subject to the subsequent terms and conditions. If our terms and conditions deviate from those of the Purchaser, then the Purchaser’s terms and conditions do not become a part of the contract, even if we do not explicitly object to them. Verbal ancillary agreements as well as amendments and promises made by sales representatives always require our written confirmation to be valid. Verbal agreements are only valid if they are recorded in writing. This also applies to the requirement of written form itself. These terms and conditions shall also apply to all future business relationships between the parties, even if not explicitly and separately stipulated.
II. Quotes and prices, freight basis
Our quotes are non-binding. Prices are quoted ex works/warehouse. Prices are quoted excluding packaging, freight and VAT, unless otherwise explicitly agreed upon in writing. If fees or other third-party costs included in the agreed price change more than four weeks after entering into the contract, or if new third-party costs arise, then we are entitled to change the price in line with these cost changes.
We reserve the right to a price increase for any undelivered lots if changed raw material prices and/or economic conditions lead to a significant increase in the manufacturing and/or procurement costs of the respective goods in comparison to the point in time when the price was agreed upon. In such cases, the Purchaser is entitled to cancel any affected orders within four weeks after notification of the price rise.
III. Transfer of risk
Risk of destruction or deterioration in the goods shall pass to the Purchaser as soon as we have transferred the goods to the custody of the carrier or made them available to the Purchaser. Risk passes to the Purchaser even if he is late in accepting the goods. Transportation of the goods shall be at the Purchaser‘s risk, even for free shipments or FOB. alimex reserves the right to choose the means of transport in these cases.
Immediately upon delivery, the Purchaser shall inspect the purchased goods for defects or incorrect quantities and immediately report any discovered defects or incorrect quantities to the Seller in writing. The delivery is considered approved if the Purchaser fails to report the defect immediately in writing. If the Purchaser does not give alimex the opportunity to inspect the defect, in particular by not immediately providing either the defective goods or samples, then all potential rights arising from the defect shall be void. If a properly submitted notice of defect is justified, alimex shall have the choice of either the provision of free replacement or one opportunity to rectify the defects. alimex must decide on one of these two options within 10 days after receipt of the notice of defect. Otherwise, the right to choose is passed to the Purchaser. If rectification or replacement fails, the Purchaser shall have the right to choose between rescission of the contract or a proportionate reduction of the agreed price.
For new items, the warranty period is one year.
The Purchaser after discovering a defect is not allowed to make changes to the delivered goods or rectify the defect himself unless alimex is overdue. Otherwise any warranty shall be void.
V. Limitation of Liability
In the event of a breach of contractual and extra-contractual obligations, particularly due to impossibility, delay, faults in conclusion of the contract and unlawful acts, alimex and its managerial employees and other agents shall only be liable for cases of intent and gross negligence, limited to contract-typical damage reasonably foreseeable when the contract was entered into. These limitations do not apply to a culpable breach of substantial contractual obligations, insofar as the fulfilment of the purpose of the contract is endangered, in the case of mandatory liability under the product liability laws, in the event of damage to life, body and health, or if alimex concealed the defect with intent to deceive or guaranteed that the goods would be free from such a defect. The statutory regulations on the onus of proof shall remain unaffected.
VI. Delivery and Acceptance Periods
The delivery periods quoted by alimex are ex works/warehouse. Delayed deliveries as a result of unexpected events (such as difficulties in raw material or component procurement) or force majeure shall not entitle the Purchaser to declare us in default or rescind the contract. The delivery period is extended appropriately to the duration of the impediment. Our obligation to deliver is subject to correct and punctual receipt of goods from our suppliers, unless incorrect or delayed receipt of goods from our suppliers is our fault.
We are entitled to rescind the contract if performance becomes impossible or unreasonable for us. Fixed deadlines require explicit written confirmation. Partial performance and/or calls from call orders must be called in due time by the Purchaser so that proper performance by us is possible. The Purchaser bears any costs associated with special condition purchases. Alimex is entitled to partial deliveries.
VII. Right to Withdraw
Unconditional creditworthiness of the Purchaser is a prerequisite for the obligation to deliver. If, after the contract has been entered into, we receive information that render it reasonable to assume that the amount of credit as specified in the contract is not perfectly safe, or if circumstances arise that make it reasonable to assume this, especially a significant deterioration of the equity position, payment attitudes, business forecasts, insolvency, business liquidation, sale of business, etc., or if the Purchaser impawns supplies, accounts payable or purchased goods or uses such items as a security for other debtors or if he does not pay accounts despite payment reminders, then we are entitled to demand prepayments or securities or rescind the contract or demand damages for non-performance or, as long as other payments must be made in cash, demand payment in cash. Any unpaid accounts are due immediately irrespective of their due date.
VIII. Reservation of Title
Alimex retains the title to the goods until all requirements from the Purchaser from the business relationship, including future demands, even from concurrent contracts or contracts concluded at a later date, are settled. This also applies even if individual or all claims from alimex were incorporated into an ongoing account, the balance of which has been indicated and recognized.
The Purchaser shall only be entitled to resell reserved goods within the framework of regular business activities provided that he herewith and now assigns all rights and receivables as a result of selling the goods to purchasers or third parties to alimex and that these demands do effectively pass to alimex. If reserved goods are resold in unprocessed or processed state or in conjunction with items that are the exclusive property of the Purchaser, the Purchaser immediately assigns to alimex any and all receivables to their full extent arising from the resale. If reserved goods are resold in processed state or in conjunction with items that are not the property of alimex, the Purchaser immediately assigns to alimex any and all receivables arising from the resale to the amount of the value of the reserved goods with all ancillary rights and priority over the rest. alimex herewith accepts said assignment. The Purchaser is entitled on a revocable basis to collect the receivables due. The entitlement of alimex to collect such receivables itself shall remain unaffected; however, alimex undertakes to refrain from collecting such receivables provided that the Purchaser fulfils its payment obligations and other commitments in due form. If necessary, alimex may demand that the Purchaser discloses to it the assigned claims and debtors, provides all details required to enable collection, and hands over the relevant documentation and notifies the debtors of this assignment.
Any processing of reserved goods by the Purchaser for alimex shall not make the latter subject to any obligations. If reserved goods are processed, combined, mixed or mingled with other goods that are not the property of alimex then alimex shall be entitled to co-ownership of the new item according to the proportion of the invoice value of the reserved goods to that of the other processed goods at the time of said processing, combination, mixing or mingling. In the event that the Purchaser acquires sole ownership of the new item, the parties agree that the Purchaser will grant alimex co-ownership of the new item according to the proportion of the processed, combined, mixed or mingled reserved goods contained in the new item, and will store the new item for alimex free of charge.
If the payment of the purchase price by the Purchaser is effected by way of a bill of exchange then the reservation of ownership and the claim relating to the supply of goods on which said reservation of ownership is based will not expire until the bill of exchange has been honoured by the Purchaser as drawee.
If the value of existing securities exceeds the debt to be secured by more than 20 %, alimex on request of the Purchaser is obliged to release securities. Only alimex may decide which securities to release.
Alimex is entitled to demand the return of any goods it owns and particularly to execute its right to a bankruptcy order on recovery of the goods or to assignment of the claim during insolvency proceedings if the fulfilment of the demand by the Purchaser is in jeopardy, especially if insolvency proceedings have been opened against the assets of the Purchaser or if its financial circumstances deteriorate significantly. The assertion of the reservation of title does not count as rescinding the contract.
The Purchaser must immediately inform alimex of seizures or sequestrations of reserved goods or any other decree or intervention of third parties that affects the rights of alimex. The Purchaser shall be obliged to liaise with alimex and do everything that is required to avert the threat. If required for the protection of the reserved goods, the Purchaser on request of alimex has to assign any claims against third parties to alimex. The Purchaser is liable for all damages and costs, including court fees and expenses for solicitors, that are inflicted upon alimex as a result of intervention measures against third parties.
IX. Terms of Payment
The Purchaser must neither withhold a payment nor offset it with counterclaims, unless alimex has accepted the counterclaims or if there is a non-appealable enforceable judgment. Invoices are due within 30 days of the date of the invoice unless otherwise agreed. Interest of 8% on top of the base rate accrues after this date. Bills of exchange shall only be accepted subject to discounting options. Discounting fees and expenses are born by the Purchaser.
X. Place of Performance and Court of Jurisdiction
The place of performance for any obligation arising from contracts with us is Willich. The parties agree – to the extent that legislation permits it – that the sole court of jurisdiction is the place of registration of alimex. alimex is also entitled to sue the other party at the latter’s place of registration. The contractual relationship at issue is exclusively subject to German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
These Terms and Conditions of Sale, Delivery and Payment exist in German and in English. The German version shall prevail in case of differences between the two versions.