General Terms and Conditions of Almex GmbH, Hanover (Germany) (hereinafter “ALMEX”)
1 Conclusion of Contract
1.1 These General Terms and Conditions shall apply exclusively to the contract, supplemented by the statutory provisions.
The customer’s general terms and conditions shall apply only insofar as they are consistent with the above provisions or ALMEX expressly agrees to them in writing.
Offers made by ALMEX are subject to change and non-binding.
1.2 Service descriptions in price lists and other general printed materials shall only be binding if they are expressly included in the contract.
1.3 ALMEX reserves the copyright to all documents created or provided to the customer in connection with the performance of the contract. These documents may not be published, made accessible to third parties, or used for any other purpose without ALMEX’s permission.
2 Prices
Unless otherwise agreed, all prices are calculated in accordance with the net price lists valid on the day of delivery, plus the applicable VAT.
3 Shipping and Transfer of Risk
3.1 The customer shall bear the shipping costs (packaging, freight and postage). The customer must provide shipping instructions with the order. Otherwise, ALMEX shall select the appropriate means and/or route of transport at its best discretion, without any entitlement to the most cost-effective shipment.
3.2 ALMEX shall insure the goods against transport damage at the customer’s expense, unless the customer expressly requests shipment without transport insurance when placing the order.
3.3 The risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer when the goods have left the factory or when the goods have been handed over to the person carrying out the transport.
3.4 If shipment or handover of the goods is delayed at the customer’s request or due to the customer’s fault, the risk shall pass to the customer at the time the goods are ready for shipment.
4 Delivery Periods
4.1 Delivery periods stated in the offer or in the customer’s order shall commence on the date of ALMEX’s order confirmation. Delivery periods shall only be binding if they are expressly agreed as binding.
4.2 In all cases of force majeure, strike, lockout, insufficient supply of materials and energy, lack of transport options and other similar events, regardless of whether these circumstances occur at ALMEX or at a supplier, the delivery period shall be extended appropriately. The same shall apply if the quantity and/or specification of the goods to be delivered is changed after conclusion of the contract.
4.3 If ALMEX is responsible for exceeding the agreed delivery period, the customer shall grant a reasonable grace period for subsequent delivery.
4.4 Partial deliveries are permissible insofar as they are reasonable for the customer.
5 Payment
5.1 The date stated on the invoice shall be decisive for the payment period.
5.2 Cash discount deductions may only be made if they are expressly permitted on the invoice. Unjustified cash discount deductions will not be recognized.
5.3 For deliveries up to €250.00, ALMEX may, at its own discretion, ship cash on delivery.
5.4 The customer may only set off counterclaims against the purchase price claim or assert rights of retention on the basis of such counterclaims if these are undisputed or have been finally adjudicated.
5.5 In the event of default in payment, ALMEX shall be entitled to declare all outstanding claims, including those for which bills of exchange have been provided, immediately due and payable, and to perform any outstanding services only against advance payment or adequate security.
6 Retention of Title
6.1 ALMEX retains title to the goods until all claims of ALMEX against the customer arising from the business relationship, including future claims also arising from contracts concluded simultaneously or subsequently, have been settled. This shall also apply if individual or all claims of ALMEX have been included in a current account and the balance has been drawn and acknowledged. In the event of seizure or attachment of the goods or other measures by third parties, the customer must notify ALMEX without delay.
6.2 The customer shall only be entitled to resell the goods subject to retention of title in the ordinary course of business if the customer hereby already assigns to ALMEX all claims arising from the resale against purchasers or third parties. If goods subject to retention of title are sold unprocessed or after processing or combination with items that are exclusively the property of the customer, the customer hereby already assigns to ALMEX the claims arising from the resale in full. If goods subject to retention of title are sold by the customer—after processing/combination—together with goods not belonging to ALMEX, the customer hereby already assigns to ALMEX the claims arising from the resale in the amount of the value of the goods subject to retention of title, together with all ancillary rights and with priority over the remainder. ALMEX accepts the assignment. The customer shall remain authorized to collect these claims even after the assignment. ALMEX’s authority to collect the claims itself shall remain unaffected; however, ALMEX undertakes not to collect the claims as long as the customer duly meets its payment and other obligations. ALMEX may require the customer to disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment. In the event of default in payment, ALMEX reserves the right to take back the goods until payment is made.
6.3 Any treatment or processing of the goods subject to retention of title shall be carried out by the customer for ALMEX, without any obligations arising for ALMEX as a result. In the event of processing, combination, mixing or blending of the goods subject to retention of title with other goods not belonging to ALMEX, ALMEX shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the goods subject to retention of title to the other processed goods at the time of processing, combination, mixing or blending. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant ALMEX co-ownership of the new item in the ratio of the value of the processed and/or combined, mixed or blended goods subject to retention of title, and shall store it for ALMEX free of charge. 6.4 If the customer has provided ALMEX with securities to secure its claim, ALMEX shall be obliged to release such securities at the customer’s request insofar as the value of the securities provided exceeds the claims by more than 20%. The selection of the securities shall be at ALMEX’s discretion.
7 Agreements on Remedying Defects (Warranty for Defects)
7.1 At ALMEX’s request, the customer shall send in the defective goods at ALMEX’s expense.
7.2 At its discretion, ALMEX shall remedy the defects by repair or replacement delivery (subsequent performance).
7.3 The claim for subsequent performance does not extend to damage attributable to normal wear and tear, improper handling, or unusual environmental influences.
If the customer or third parties carry out improper repair work or modifications, no defect claims shall exist for these or the resulting consequences.
7.4 Replaced parts shall become the property of ALMEX.
8 Liability of ALMEX
8.1 The remedy of defects (subsequent performance) shall be governed by Clause 7. Claims for apparent defects shall lapse if the customer does not notify ALMEX in writing within two weeks of delivery.
8.2 Claims for compensation for damages—regardless of the legal basis—against ALMEX (including its vicarious agents) caused by slight negligence shall exist only if a material contractual obligation has been breached.
Such claims are limited to the foreseeable damage typical for the contract at the time the contract was concluded. When concluding the contract, the customer may request extended liability in return for payment of a risk surcharge.
Claims for damages arising from injury to life, body or health, fraudulent intent, non-compliance with an assumed guarantee, as well as claims for property damage under product liability law, shall remain unaffected.
8.3 If the customer is entitled to withdraw from the contract and/or to claim damages in lieu of performance, ALMEX may set the customer a reasonable period to declare whether the customer still requests performance/subsequent performance. After expiry of this declaration period without result, the customer’s claim for performance/subsequent performance shall be excluded.
8.4 The limitation period for claims due to defects (“warranty period”) is twelve months.
Insofar as the law mandatorily provides for longer periods pursuant to Section 438 (1) No. 2 of the German Civil Code (BGB) and Section 634a (1) No. 2 BGB, these periods shall apply.
In cases of intent, fraudulent concealment of defects, or the assumption of a guarantee, the statutory limitation period shall apply.
For claims for damages, the statutory limitation period shall also apply in cases of gross negligence, injury to life, body or health, and property damage under product liability law.
9 Software
9.1 All programs, documentation and other materials delivered to the customer may be used exclusively for the agreed purpose.
9.2 The customer undertakes to keep all confidential programs, documentation and other materials received in the course of the business relationship confidential, to store them in a secure place, and to protect them from access by third parties through appropriate measures.
9.3 The customer shall receive an irrevocable, non-exclusive right of use to the contractual software. With regard to the goods sold with software, the customer is entitled to transfer the rights of use to the software to third parties together with the respective goods. If the contractual software was not developed by ALMEX but by third parties, licensing shall be carried out in accordance with the license terms of such third party.
10 Final Provisions
10.1 If the customer is a registered merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes shall be ALMEX’s registered office (Hanover). ALMEX is also entitled to assert its claims in court at the customer’s place of business.
10.2 German law shall apply to the legal relationship between the customer and ALMEX. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Version dated 2016-10-01
