Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery

Status: June 2020

1. area of application

 

These General Terms and Conditions apply to all sales and deliveries of ALA Germany GmbH (hereinafter also referred to as "ALA Germany"). They shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same customer, without the need for an express reference to these General Terms and Conditions in each individual case. For cost estimates and offers as well as all contracts concluded by ALA Germany these General Terms and Conditions shall apply exclusively. Conflicting or deviating terms and conditions of the customer are hereby rejected. They only become part of the contract if ALA Germany explicitly agrees to them in each individual case. These GTC shall also apply if ALA Germany performs services for the client without reservation in knowledge of conflicting or deviating terms and conditions of the client. Individual agreements made with the client in individual cases always have priority over these General Terms and Conditions. For the content of such agreements a written contract or the written confirmation of ALA Germany is decisive.

 

2. orders, offer, conclusion of contract

 

The offers of ALA Germany are non-binding and without obligation. All offers of ALA Germany refer only to sales and deliveries to customers for civil use. The customer shall separately inform ALA Germany if and as far as his inquiries concern sales and deliveries for military use. Offers of ALA Germany are only binding in exceptional cases and in individual cases, if they are made in writing and expressly designated as binding by ALA Germany. ALA Germany is only bound to binding offers until the date specified in the offer, but not longer than four weeks after the offer has been sent. Contracts are only concluded by written agreement, an order confirmation or by the beginning of the execution of the order by ALA Germany. ALA Germany keeps the client bound to an application until a point in time of two weeks after receipt of order by ALA Germany.

 

3. prices

 

The prices stated in the order confirmation of ALA Germany are decisive. ALA Germany reserves the right to increase the price appropriately, if after conclusion of the contract cost increases occur, especially due to price increases of suppliers or exchange rate fluctuations. Upon client's request, ALA Germany shall explain the reasons for the price adjustment, name the relevant cost elements and show their price-forming weighting in detail. The legal rights of the customer shall remain unaffected. All agreed prices are exclusive of the respective statutory VAT and other taxes and duties. The deduction of a discount requires special written agreement. Other ancillary services, any bank charges or costs that may be incurred, in particular freight, tolls, environment and handling fees will be invoiced to the customer in accordance with individual agreements.

 

4. delivery and transfer of risk

 

Delivery is EXW ALA Germany Neumarkt (Incoterms 2020). The client shall arrange loading, freight and insurance of the products from the warehouse ALA Germany to the place of destination. On request of the customer the goods will be shipped to another destination against additional payment (sale by delivery to a place other than the place of destination). Unless otherwise agreed, ALA Germany is entitled in this case to determine the type of shipment (especially transport company, route, packaging). Delivery dates and delivery periods are not binding. The client is obliged to provide ALA Germany with all information and documents necessary for execution and delivery in due time and to pay any agreed down payments as agreed. Agreed deadlines begin with the date of the order confirmation. In case of additional or extension orders placed later, the deadlines shall be extended accordingly. In the event of delays due to export controls, delivery dates and delivery periods may be postponed in accordance with the period of the control. Delivery and service dates shall be extended appropriately for ALA Germany in case of disturbances due to force majeure and other obstacles for which ALA Germany is not responsible, such as disturbances in the context of self-supply by suppliers, strikes, lockouts, operational disturbances, delay due to export controls, etc. up to a maximum of 4 months. The legal rights of the customer remain unaffected. ALA Germany reserves the right to withdraw from the contract in whole or in part for the reasons mentioned above - as far as not yet fulfilled. If the client is in delay with the acceptance of the deliveries or services offered by ALA Germany or if he fails to cooperate, he shall be obliged to compensate for the additional expenses or damage caused by the delay or failure to cooperate. The above provisions shall apply accordingly in case ALA Germany does not receive deliveries from its suppliers in due time, as far as ALA Germany has concluded a congruent hedging transaction. If the client is in default of acceptance or violates other obligations to cooperate, ALA Germany shall be entitled, without prejudice to its other rights, to store the products appropriately at the client's risk and expense. In case of storage by ALA Germany, the storage costs amount to 0.25% of the net purchase price of the delivery items to be stored per week elapsed. We reserve the right to assert and prove further or lower storage costs. ALA Germany is also entitled to set the client a reasonable grace period for acceptance. A grace period of one week shall be deemed reasonable. After fruitless expiration of the grace period ALA Germany shall be entitled to withdraw from the contract and/or to claim damages from the client. The compensation for damages shall amount to a flat rate of 15% of the agreed net purchase price, unless the client proves that less or no damage has been caused. Irrespective of the lump sum compensation ALA Germany is entitled to claim compensation for the actual damage. ALA Germany may make partial deliveries for justified reasons and to a reasonable extent.

 

5. terms of payment

 

The purchase price is due and payable within the agreed conditions according to ALA Germany's order confirmation. A payment term granted to the client requires a sufficiently available credit limit for each individual order. If the order exceeds the available credit limit, ALA Germany reserves the right to request advance payment of the order value. In case of a subsequent change in creditworthiness, ALA Germany shall be entitled to deviate from the granted payment terms, to demand advance payment or security and to withdraw from the contract in case of non-performance. If the client is in default of payment or if there are reasonable doubts about his solvency, ALA Germany is authorized to make all claims against the client from the business relationship immediately due, to withhold still outstanding deliveries/services completely or partially or to withdraw from the existing contracts completely or partially. ALA Germany reserves the right to use payments for the settlement of the oldest due claim plus the interest on arrears and costs accrued thereon, in the order costs, interest, claim. The client shall only be entitled to rights of set-off, retention and refusal of performance if his counterclaims are legally binding, undisputed or acknowledged. Furthermore, the customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

 

6. liability for defects

 

Claims of the customer due to defects of the object of purchase as well as other claims for damages shall be governed by the statutory provisions, unless otherwise regulated below. In all cases, the statutory special regulations for final delivery of the goods to a consumer (supplier recourse §§ 478, 479 BGB) remain unaffected. Warranty claims of the customer presuppose that the customer has duly fulfilled his obligations to examine and give notice of defects in accordance with § 377 HGB. Notification shall be deemed to be without delay within the meaning of § 377 HGB if it is made within one week. The notification according to § 377 HGB must be made in writing. If there is a defect in the purchased item, the customer shall be entitled, at his discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In case of removal of defects or replacement, ALA Germany is obliged to bear all expenses necessary for the purpose of subsequent performance, especially transport, travel, labor and material costs, as far as these are not increased by the fact that the purchased item was brought to a place other than the place of performance. If the supplementary performance fails, the customer is entitled to demand rescission or reduction of the purchase price at his discretion. Claims of the customer due to a defect of the object of purchase shall become statute-barred one year after the handover or delivery of the object of purchase. The above limitations of warranty do not apply to damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty by ALA Germany or one of its legal representatives or one of its agents. The aforementioned limitations of warranty shall also not apply to other damages which are based on an intentional or grossly negligent breach of duty by ALA Germany, one of its legal representatives or one of its vicarious agents or if the other damage is caused by the absence of a guaranteed quality or by fraudulent concealment of a defect.

 

7. other liability

 

Any claims for damages of the customer, which arise for whatever legal reason, directly or indirectly in connection with the purchased goods and their delivery, are excluded unless otherwise regulated in the following. In particular, ALA Germany is not liable for the consequences of improper modification, use or treatment of the object of purchase. The liability is in any case limited to the replacement of the contract-typical, foreseeable damage. Claims for damages of the client, which are based on contractual penalty claims of contractual partners of the client, are in no case foreseeable or typical for the contract in the above sense for ALA Germany. As far as the damage is covered by an insurance taken out by the client for the respective damage, ALA Germany shall only be liable for any disadvantages of the client connected with it, e.g. higher insurance premiums or interest disadvantages until the damage is settled by the insurance. The above exclusions and limitations of liability shall not apply in case of breach of a material contractual obligation (cardinal obligation) by ALA Germany. Cardinal obligations are obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely, i.e. rights and obligations which the contract must grant according to its content and purpose. The above exclusions and limitations of liability shall also not apply in the event of liability for damages resulting from injury to life, body or health due to an intentional or negligent breach of duty by ALA Germany or one of its legal representatives or vicarious agents. The above exclusions and limitations of liability shall also not apply to other damages which are based on an intentional or grossly negligent breach of duty by ALA Germany or one of its legal representatives or one of its vicarious agents, or if the other damage is caused by the absence of a guaranteed quality or by fraudulent concealment of a defect.

 

8. release

 

The client shall indemnify ALA Germany against any liability, damages, claims, lawsuits and costs arising out of or in connection with the client's designated subcontractor, product design, packaging design or the container selected or specified by the client in which the products are shipped. If the customer sells the products, he shall indemnify ALA Germany in the internal relationship from product liability claims of third parties, as far as the customer is responsible for the defect causing the liability.

 

9. reservation of proprietary rights

 

The delivered products shall remain the property of ALA Germany until full payment of all claims of ALA Germany arising from the business relationship with the client. In case of a current account, the reserved property is valid as security for the balance claim to which ALA Germany is entitled. The client is only allowed to sell the products under retention of title ("reserved products") in the ordinary course of business. The client shall not be entitled to pledge the products subject to retention of title, to transfer them as security or to make any other disposition endangering the property of ALA Germany. The client assigns already now the claim from the resale to ALA Germany; ALA Germany accepts this assignment already now. If the client sells the products subject to retention of title after processing or transformation or after combination with other goods or together with other goods, the assignment of claims is only agreed in the amount of the part which corresponds to the price agreed between ALA Germany and the client plus a safety margin of 10% of this price. The customer is revocably authorized to collect the claims assigned to ALA Germany in trust for ALA Germany in his own name. ALA Germany may revoke this authorization as well as the authorization for resale, if the client is in default with essential obligations such as payment to ALA Germany; in case of revocation ALA Germany shall be entitled to collect the receivables itself. Any processing or transformation of the reserved products by the client is always done for ALA Germany. If the products subject to retention of title are processed with other items, ALA Germany acquires co-ownership of the new item in proportion of the value of the products subject to retention of title to the other processed items at the time of processing. For the new object resulting from processing the same applies as for the products delivered under reservation. If the products subject to retention of title are combined with other objects, ALA Germany shall acquire co-ownership of the new object in proportion of the value of the products subject to retention of title to the other objects at the time of combination. If the connection is made in such a way that the client's item is to be regarded as the main item, it is agreed that the client transfers proportional co-ownership to ALA Germany. The customer shall keep the resulting co-ownership in safekeeping for ALA Germany. The client shall provide ALA Germany at any time with all requested information about the products subject to retention of title or about claims which have been assigned to ALA Germany in this respect. The client has to inform ALA Germany immediately about access or claims of third parties to the products subject to retention of title and has to hand over the necessary documents to ALA Germany. At the same time the client shall inform the third party about the reservation of title of ALA Germany. The costs of defending such accesses and claims shall be borne by the client. The client is obliged to handle the products subject to retention of title with care for the duration of the retention of title. If the realizable value of the securities exceeds the total claims of ALA Germany to be secured by more than 10%, the client is entitled to demand release to that extent. If the client is in default with essential obligations such as payment to ALA Germany and if ALA Germany withdraws from the contract, ALA Germany may, without prejudice to other rights, demand the return of the reserved products and use them otherwise for the purpose of satisfying due claims against the client. In this case the client shall grant ALA Germany or the representative of ALA Germany immediate access to the reserved products and hand them over. In case of deliveries to other legal systems, where the above mentioned retention of title does not have the same security effect as in Germany, the client shall do everything to immediately provide ALA Germany with appropriate security rights. The customer shall cooperate in all measures such as registration, publication, etc., which are necessary and beneficial for the effectiveness and enforceability of such security rights. Upon request of ALA Germany, the client shall insure the reserved products adequately, provide ALA Germany with the corresponding proof of insurance and assign the claims from the insurance contract to ALA Germany.

 

10. export/export

 

All goods delivered by ALA Germany under this agreement are subject to any required export license with respect to the respective country of destination. Changes with respect to the country of destination may be prohibited or may require an appropriate export license under applicable export control regulations. Customer shall be liable for any change in the country of destination and shall be responsible for obtaining the appropriate permits and shall indemnify ALA Germany against all claims in connection with the change in the country of destination. All products and know-how are supplied by ALA Germany in compliance with the currently valid AWG/AWV/EG-Dual-Use Regulation as well as the US export regulations and are intended for use and to remain in the country of delivery agreed with the client. If the customer intends to re-export contractual products, he is obliged to comply with US American, European and national export regulations. The re-export of contractual products - individually or in system-integrated form - contrary to these regulations is prohibited. The customer must inform himself independently about the currently valid provisions and regulations (Bundesausfuhramt, 65760 Eschborn/Taunus or US Department of Commerce, Office of Export Administration, Washington D. C. 20230). Irrespective of whether the customer states the final destination of the contractual products delivered, it is the customer's own responsibility to obtain any necessary approval from the relevant foreign trade authorities before exporting such products. ALA Germany has no obligation to provide information. Any further delivery of contractual products by the customer to third parties, with or without the knowledge of ALA Germany, shall at the same time require the transfer of the export license conditions. The client shall be fully liable in case of non-compliance with the relevant provisions. Without prior official approval, the customer is not allowed to export contractual products directly or indirectly to countries that are subject to a US embargo or to natural or legal persons of these countries as well as to natural or legal persons that are listed on US, European or national prohibition lists (e.g: "Entity List", "Denied Persons List", "Specifically Designated Nationals and Blocked Persons"). Furthermore, it is prohibited to supply contract products to natural or legal persons that are in any way connected with the support, development, production or use of chemical, biological or nuclear weapons of mass destruction.

 

11. data protection

 

The customer is informed in accordance with § 33 para. 1 of the German Federal Data Protection Act (BDSG) that ALA Germany stores customer data in machine-readable form and processes them within the scope of the purpose of the existing contractual relationship with the customer and for marketing purposes. ALA Germany reserves the right to obtain information regarding the creditworthiness of the client from credit agencies or credit insurances for the purpose of credit assessment of the client and to report the data to them - limited to the case of non-contractual processing, e.g. requested dunning notice for undisputed claims, issued enforcement order, enforcement measures. Data will only be transferred if this is necessary to protect the legitimate interests of ALA Germany. Balance sheet data will be treated confidentially and used exclusively for the purpose of credit assessment. Data will not be passed on to third parties. In any case ALA Germany will observe the relevant data protection regulations. The client expressly gives his consent to the aforementioned use of data.

 

12. purchase tax / import sales tax / confirmation of receipt

 

When purchasing the products, a customer whose registered office is outside of Germany must observe the regulations of the purchase tax/import turnover tax of the relevant economic area, in particular to disclose the turnover tax identification number without being asked and to willingly provide any necessary information. In the event of non-compliance, the customer shall reimburse the expenses/damage incurred as a result. The customer is obliged to cooperate in the preparation of proofs required by tax law and shall immediately issue the corresponding proofs and make them available to ALA Germany. This applies in particular to the confirmation of receipt within the meaning of § 17a paragraph 2 sentence 1 number 2 UStDV (Umsatzsteuerdurchführungsverordnung).

 

13 General provisions / Final provisions

The law of the Federal Republic of Germany shall apply exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Only the German version of these terms and conditions is binding. Exclusive place of jurisdiction for all disputes arising from the contractual relationship is - as far as legally permissible - Neumarkt. However, ALA Germany is entitled to sue the customer at any other legal place of jurisdiction. Legally relevant declarations and notifications to be made by the client to ALA Germany after conclusion of the contract must be in writing to be effective. References to the legal regulations have only clarifying meaning. Even without such clarification, the legal regulations shall therefore apply, unless they are expressly excluded in these General Terms and Conditions. If one or more clauses of these terms and conditions are ineffective, this does not affect the effectiveness of the remaining clauses. The parties hereby agree that in place of the invalid clause, a clause shall be deemed to have been agreed upon which corresponds as closely as possible to the meaning and purpose of the invalid clause.

Please note: This translation is not binding. Only the German version of these conditions is binding for us. Errors excepted.

ALA Germany GmbH
Deininger Weg 94
92318 Neumarkt
Germany

Tel: +49 9181 29720-0
Fax: +49 9181 29720-130
E-Mail: salesde@ &nsp;alacorporation.com

CEO: Wilhelm F. (Bill) Holler
Registered at: Nürnberg - Germany
Reg. No. HRB 17680
VAT ID: DE81 309 8419
Tax ID:
201/121/51657

Cage Code: C6488
D-U-N-S® No: 328789644
Oasis-No.: 6126149108

AEO-Certified: 
DE AEOF 120272
US: DEINDGMB9231NEU
Japan: A000075QDE00