Effective: January 2022
§ 1 VALIDITY
(1) All the deliveries, services, and offers by alwitra shall be provided exclusively on the basis of these General Terms and Conditions of Delivery. These shall be part of all the contracts which alwitra shall conclude with their contract partners (hereinafter also “Principals”) as to any deliveries or services offered by them. These terms shall 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 shall not apply, 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 referring to such terms and conditions, such reference shall 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 defects, declaration of withdrawal or reduction) which are to be made by the Principal towards alwitra after the conclusion of a contract shall require written form or electronic form in order to come into effect.
(4) Our General Terms and Conditions of Delivery shall 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 shall be provided subject to confirmation and shall be non-binding, unless explicitly marked as binding or containing a specific term of acceptance. Orders can be accepted by alwitra within 14 days upon receipt.
(2) The legal relationships between alwitra and the Principal shall be defined exclusively by the conclusion of the purchase contract in written form, including these General Terms and Conditions of Delivery. The contract shall 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 shall not be legally binding. Oral agreements between the parties shall be substituted by the contract in written form, unless their binding validity shall explicitly result from the respective agreements.
(3) Amendments and modifications of the stipulated agreements, including these General Terms and Conditions of Delivery, shall require written or electronic form in order to become effective. With the exception of Managing Directors or authorized signatories, alwitra’s employees shall not be entitled to conclude any oral agreements differing there from. The written form shall be maintained sufficiently by a transmission via telefax message, the electronic form by email. Apart from that, the transmission by telecommunication shall 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) shall only be approximately significant, unless the applicability for the purpose provided by the contract shall require an exact correspondence. They shall not be 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, which are caused by legal regulations, or which represent technical improvements, as well as the exchange of components by parts of equal quality shall be permitted, unless affecting the applicability for the purpose provided by the contract.
(5) alwitra shall reserve 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 shall not be entitled to make these objects or their contents available to any third parties without written consent by alwitra, nor to publish these, to use these themselves or let these be used by any third parties, or to copy these. Upon request by alwitra, they shall return these objects completely to the latter and destroy any copies which may have been made, as soon as the objects shall not be required any longer for the due course of business or if negotiations have not lead to the conclusion of a contract.
§ 3 PRICES AND PAYMENT
(1) Prices shall be valid for the service and delivery determined within the order confirmations. Additional or special services shall be invoiced separately. Prices shall be calculated in EUROS ex works, plus: packaging, value-added tax, customs charges in the case of export shipments, fees, and other public charges.
(2) Insofar as the prices agreed upon shall be based on the catalogue prices by alwitra and the delivery shall take place more than four months after the conclusion of the contract, the valid prices shall be the catalogue prices by alwitra in effect at the time of delivery (minus any per cent or firm discount agreed upon).
(3) Invoices shall be payable without any deduction immediately upon their receipt, unless otherwise agreed upon in written form. Invoices shall be payable by SEPA Business-to-Business Direct Debit Scheme (B2B). Upon order confirmation, the Principal shall grant to alwitra a SEPA B2B Direct Debit mandate, signed by the bank. Cheques shall only be accepted as payment upon their encashment. If the Principal does not perform at maturity, the due sum shall 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 shall remain unaffected.
(4) Any offsetting against counterclaims of the Principal or the retention of payments on the grounds of such claims shall only be permitted insofar as the counterclaims shall be undisputed or determined without further legal recourse. In the case of defects of the delivery, the counterclaims of the Principal shall remain unaffected, especially according to section 6, no. 6, phrase 2 of these General Terms and Conditions of Delivery.
(5) alwitra shall 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 information 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 shall be discontinued in the case of litigations with the Principal before a court, extra judicial settlement proceedings, insolvency proceedings, or delayed payment by the Principal.
§ 4 DELIVERY AND TIME OF DELIVERY
(1) At the option of alwitra, deliveries shall 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 shall 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 shall 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 shall be 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 has not performed their contractual obligations towards alwitra.
(4) alwitra shall 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 material, difficulties in providing necessary permits by authorities, regulatory actions, or deliveries by suppliers which are overdue, incorrect, or not in time). Insofar as such events essentially impede the delivery or make the delivery impossible for alwitra, and if such hold-ups are not of a temporary nature, alwitra shall be entitled to withdraw from the contract. In the case of hold-ups of temporary nature, the periods of delivery or service shall be extended, or the dates of delivery or service shall 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 shall be entitled to withdraw from the contract by immediate written notice to alwitra.
(5) alwitra shall be 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
- if no considerable extra effort and expenses result there from for the Principal (unless alwitra shall 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 shall not represent a partial delivery. The delivery of one of several different objects of purchase or service included within one order of the Principal shall neither represent a partial delivery.
(6) If alwitra is in default with respect to a delivery or service, or if a delivery or service becomes impossible for alwitra for whatever reason, alwitra’s liability for damages shall be restricted according to section 8 of these General Terms and Conditions of Delivery.
(7) If the Principal is in default of acceptance, refrains from a duty to collaborate, or is responsible for the delay of delivery by alwitra for any other reasons, alwitra shall be entitled to claim the resulting damages including extra expenses (e. g., storage costs). alwitra shall 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 shall 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) shall remain unaffected; the lump-sum shall however be offset against any further monetary claims. The Principal shall remain 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 shall only be accepted free of transport charges if previously agreed upon in written form by alwitra. In this case, the Principal shall bear the risk of transport until the merchandise shall be transferred back to alwitra, at alwitra’s option at their works in Trier or Hermeskeil. The return of packaging shall also be agreed upon separately.
§ 5 PLACE OF PERFORMANCE, SHIPPING, PACKAGING, TRANSFER OF RISK, ACCEPTANCE
(1) Place of performance for all obligations resulting from the contractual relationship shall be, at alwitra’s option, their works in Trier or Hermeskeil, depending on the works from which the delivery shall be provided and unless agreed upon differently. If alwitra is also obliged to make the installation, place of performance shall be the place where the installation is supposed to take place.
(2) The type of shipping and the packaging shall be at the dutiful discretion of alwitra.
(3) The risk shall be transferred 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 Principal, shipping company, carrier, or other third party engaged to take care of the shipping. This shall 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 shall be transferred to the Principal on the day when the object of delivery shall be ready for dispatch and a respective notice shall have been given to the Principal by alwitra.
(4) Storage costs after the transfer of risks shall be borne by the Principal. In the case of storage by alwitra, storage costs shall 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 shall remain reserved. Storage costs shall be offset against the compensation pursuant to section 4 no. 7.
(5) The shipping shall only be insured by alwitra against theft, breakage, damage due to transport, fire or 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 is required, the object of purchase shall be considered as accepted if
- the delivery and the installation – insofar as alwitra is also obliged to take care of the installation – have been concluded,
- alwitra has given notice to the Principal about such fact, adverting them to the assumed acceptance according to this section 5 (6), and has asked them to declare acceptance,
- 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 installation, 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 impossible the use of the object of purchase or essentially impairs such use.
§ 6 WARRANTY, MATERIAL DEFECTS
(1) The rights of the Principal in the case of material and legal defects (including wrong or short delivery and unprofessional assembly or insufficient assembly instructions) shall be regulated by the statutory provisions, unless determined differently in the following. The statutory special provisions in the case of final delivery of the unprocessed merchandise to a consumer shall remain unaffected in any case, even if the latter has further processed the merchandise (supplier regress pursuant to § 478 BGB). Any claims on the grounds of supplier regress shall be excluded if the defective merchandise has been further processed by the Principal or by another company, e.g., through integration into another product.
(2) alwitra’s liability for defects shall especially be based on the agreement concluded with respect to the quality of the merchandise. All such product descriptions and producer’s information shall be considered as agreement on the quality of the merchandise, as these are object of the individual contract or have been made public by alwitra at the time of conclusion of the contract (in particular in catalogues or on our website).
(3) Insofar as the quality has not been agreed upon, it shall be assessed according to the statutory provisions whether a defect has occurred or not (§ 434 sec. 1 phrases 2 and 3 BGB). We shall however not be liable for any public statements of the producer or of other third parties (e.g., advertising messages), which the Principal has not indicated to alwitra as having been decisive for their purchase.
(4) alwitra shall principally not be liable for defects that the Principal has known about at the time of conclusion of the contract or has not known due to gross negligence (§ 442 BGB). The delivered objects shall be thoroughly examined immediately upon delivery to the Principal or to a third party determined by the latter. They shall be considered as accepted unless alwitra shall have received, pursuant to section 2 (3) phrase 1, a written notice of defects 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 realization of the defect, or at each earlier time when the defect shall have become obvious to the Principal during the normal use of the object of delivery without a thorough examination. In the case of building material and other merchandise intended for integration or other further processing, the merchandise shall be examined in any case immediately before processing. Upon alwitra’s request, the faulty object of delivery shall be sent back to alwitra free of transport charge. In the case of a justified notice of defects, alwitra shall reimburse the costs for the cheapest type of transport; this shall not hold if the costs have increased because the object of delivery is located at a different place than the place of its intended use.
(5) In the case of material defects of the delivered objects, alwitra shall be obliged and entitled first to supplementary performance, at their option to be selected within an appropriate period, in the form of removal of the defect (amendment) or delivery of an object free from defects (replacement delivery). Supplementary performance shall not include the disassembly of the defective object or the renewed assembly if we have not been obliged to provide assembly in the first place. In the case of failure, i. e. if amendment or replacement delivery have become impossible, unacceptable, or have been refused or inappropriately delayed, the Principal shall be entitled to withdraw from the contract or to reduce the purchase price adequately. If the defect is insignificant, any right to withdraw shall not exist.
(6) alwitra shall be entitled to request that the owed supplementary performance depend on the payment of the due purchase price by the Principal. However, the Principal shall be entitled to withhold a part of the purchase price adequate in relation to the defect.
(7) Any expenses required for the purposes of examination and supplementary performance, in particular transport, travel, labor, and material costs, as well as costs for disassembly and renewed assembly, if applicable, shall be borne or reimbursed by alwitra pursuant to the statutory provisions if a defect actually exists. Otherwise, alwitra shall be entitled to request reimbursement of the costs resulting from unjustified requests for the rectification of defects by the Principal (in particular, inspection and transport costs), unless the Principal has not been able to recognize the lack of defectiveness.
(8) If a defect is caused by alwitra, the Principal may claim damages on the conditions determined in section 8.
(9) 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 shall at their option assert their warranty claims against the producers and suppliers for account of the Principal, or shall assign such claims to the Principal. On the usual conditions and according to these Terms and Conditions 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 shall be suspended until the lawsuit is over.
(10) The warranty shall be canceled 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 Principal shall bear the extra costs of the defect elimination resulting from such modification.
(11) A delivery of used objects agreed upon with the Principal in the individual case shall exclude any warranty for material defects.
(12) Any rights of recourse of the customer / Principal against alwitra pursuant to § 445 a BGB (recourse of the seller) shall only exist insofar as the customer / Principal has not concluded any agreements with their buyer extending beyond the legal claims for defects.
§ 7 INTELLECTUAL PROPERTY RIGHTS
(1) Pursuant to this section 7, alwitra shall guarantee that the object of delivery is free from any industrial property rights or copyrights of any third parties. Each party to the contract shall immediately 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 shall at their option and at their expenses modify or exchange the object of delivery in such a way that no rights of third parties shall be violated any longer and the object of delivery shall still fulfill the functions stipulated within the contract. Otherwise, alwitra shall 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 shall be entitled to withdraw from the contract or to reduce the purchase price adequately. Any possible claims on damages of the Principal shall be subject to the restrictions of section 8 of these General Terms and Conditions of Delivery.
(3) In the case of a violation of law by products of other companies delivered by alwitra, alwitra shall at their option assert their claims against the producers and presuppliers for account of the Principal, or assign such claims to the Principal. Claims against alwitra may only be asserted in these cases according to this section 7 if the enforcement of the aforementioned claims against the producers and presuppliers before a court have not been successful, 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 obligations during contract negotiations, and tortious acts, shall be restricted pursuant to this section 8 insofar as it comes down to a fault in the respective case.
(2) alwitra shall not be liable in cases of ordinary negligence of their bodies, legal representatives, employees, or other vicarious agents, unless any essential contractual obligations have been violated. Essential contractual obligations shall be 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 delivery 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 shall be liable for damages on the merits according to section 8 (2), such liability shall 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 foreseen if due diligence was applied. Besides, indirect or consequential damage resulting from defects of the object of delivery shall only be remedied insofar as such damage shall typically be expected if the object of delivery is used as intended.
(4) The aforementioned disclaimers and restrictions of liability shall also be valid to an equal extent in favor of the bodies, 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 shall do so free of charge and to the exclusion of any liability.
(6) The restrictions of this section 8 shall not apply to alwitra’s liability on the grounds of willful behavior, guaranteed quality features, the violation of life, limb, or health, or the German Product Liability Act.
§ 9 RETENTION OF TITLE
(1) The retention of title agreed upon in the following shall serve for the securitization of all the existing current and future claims of alwitra against the Principal on the grounds of the relationships 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 shall remain in the ownership of alwitra until the complete payment of all the secured receivables. The merchandise, as well as the merchandise subject to retention of title substituting the former pursuant to this clause, shall be called merchandise subject to retention of title hereinafter.
(3) The Principal shall store the merchandise subject to retention of title free of charge for alwitra.
(4) The Principal shall be 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). Any pledges and assignments as security shall not be permitted.
(5) If the merchandise subject to retention of title is processed by the Principal, it shall be agreed upon that the processing shall take place in the name and for account of alwitra as producer, and that alwitra shall acquire direct ownership or – if the processing comprises materials 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 created 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 has occured for alwitra, the Principal shall already now transfer their future ownership or – at the above-mentioned ratio – co-ownership of the created new object as security to alwitra. If the merchandise subject to retention of title is to be combined with other objects in order to form a homogeneous object, or is mixed inseparably with another object, and if one of the other objects is to be considered the main object, alwitra shall transfer to the Principal, 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 shall already now assign to alwitra as security the claim against the Principal 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 shall accept such assignment. The same shall hold 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 example insurance claims or claims on the grounds of unlawful acts in the case of loss or destruction. alwitra shall authorize the Principal revocably to collect the claims assigned to alwitra in their own name. alwitra shall only revoke this authority in the case of enforcement.
(7) If any third parties seize the merchandise subject to retention of title, in particular by attachment, the Principal shall immediately indicate the ownership of alwitra and shall inform alwitra of such seizure, in order to enable alwitra to enforce their ownership rights. Insofar as the third party shall be unable to reimburse alwitra for the judicial or extrajudicial costs resulting there from, the Principal shall be liable towards alwitra.
(8) At their option, alwitra shall release the merchandise subject to retention of title as well as the objects or claims substituting such merchandise upon request, insofar as their value shall exceed the amount of the secured claims by more than 50 %.
(9) If alwitra withdraws from the contract on the grounds of a behavior of the Principal in violation of the contract – in particular in the case of default in payment – (case of enforcement), they shall be entitled to request the surrender of the merchandise subject to retention of title.
§ 10 STATUTE OF LIMITATIONS
(1) The warranty period shall be one year upon delivery or, insofar as acceptance is required, upon acceptance. Any claims on the reimbursement of expenses of the Principal pursuant to § 445a BGB (recourse of the seller) shall also be statute-barred after one year upon the beginning of the statutory limitation period, on the condition that the last contract of the supply chain has not been a purchase of consumer goods. 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 shall be 5 years upon delivery pursuant to the legal regulations (§ 438 sec. 1 no. 2 BGB). Electrical or mechanical components that can be exchanged without interfering with a building (for example drives or switches) do not represent merchandise which has been used for a building according to its usual application and has caused the building’s defectiveness. Specific legal regulations with respect to claims for surrender in rem by third parties (§ 438 sec. 1 no. 1 BGB), for the case of willful 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 consumer (§ 478 BGB), shall also remain unaffected.
(2) The above indicated statutes of limitation of the Sale of Goods Law shall also hold for contractual and non-contractual claims on damages of the Principal that have arisen from a defect of the merchandise, unless the application of the regular statute of limitations results in a shorter limitation in the individual case (§ 195, § 199 BGB). Claims on damages of the Principal pursuant to section 8, point 2, phrase 1, part 2, and phrase 2, as well as pursuant to the Product Liability Act, shall be statute-barred exclusively according to the statutory limitation periods.
(3) The restrictions of this section 10 shall not apply to alwitra’s liability on the grounds of willful behavior, guaranteed quality features, the violation of life, limb, or health, or the German Product Liability Act.
§ 11 FINAL PROVISIONS
(1) In the case of any possible litigation in connection with the business relations between alwitra and the Principal, at the option of alwitra the place of jurisdiction shall either be Trier or the place of business of the Principal. In the case of actions against alwitra, the exclusive place of jurisdiction shall be Trier. Any obligatory statutory regulations with respect to exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between alwitra and the Principal shall exclusively be subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not hold.
(3) Should the contract or these General Terms and Conditions of Delivery contain any regulatory gaps, in order to fill in such gaps, those legally effective regulations shall 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 and Conditions of Delivery, if they had known the regulatory gap.
DATA PROTECTION INFORMATION:
The Principal shall take note and shall agree upon placing an order that alwitra shall process the necessary data resulting from the contractual relationship with respect to art. 6 sec. 1 lit. a, b, f of the GDPR, for purposes of performance of the contract, and shall retain the right to transfer the data to third parties (e.g., insurance companies or logistic service partners) insofar as required for the performance of the contract.
Please find any further information on the processing of personal data pursuant to art. 13 and 14 GDPR, as well as information concerning the rights of the parties concerned pursuant to art. 15 – 21 GDPR on our website: https://go.alwitra.de/datenschutz/ .