General Terms and Conditions of Sale of Alvier Mechatronics GmbH
§ 1 Scope
(1) These General Terms and Conditions of Sale (hereinafter also “Terms”) apply to all business relationships between Alvier Mechatronics GmbH (hereinafter also “Alvier”) and its customers. They apply in particular to contracts concerning the sale and/or delivery of movable property (hereinafter also “Goods” or “Product”), irrespective of whether Alvier produces the Goods itself or purchases them from suppliers. However, they apply only if the customer is an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal entity under public law, or a public-law special fund.
(2) These Terms, in the then-current version thereof, also apply as a framework agreement to future offers and contracts concerning the sale and, where applicable, the delivery, to be agreed separately, of movable property with the same customer, without there being any need for Alvier to refer hereto again in each individual case; Alvier will notify the customer without delay in the event of any change in the Terms.
(3) These Terms apply on an exclusive basis. Terms and conditions of business of the customer or third parties do not apply, even if Alvier does not object to the application thereof separately in the individual case. Even if Alvier makes reference to a document that contains terms and conditions of business of the customer or a third party or refers thereto, this does not constitute consent to the application of those terms and conditions of business.
§ 2 Offer; entry into contract; written form; representation
(1) All offers from Alvier are non-binding and subject to change unless they are expressly designated as binding or contain a certain time limit for acceptance.
(2) The placement of an order by the customer is deemed to constitute a binding offer to enter into a contract. Unless otherwise specified in the order, Alvier can accept this contract offer within fourteen (14) days after receipt. Acceptance takes place by way of a declaration in text form (e.g., through an order confirmation or notification that a consignment is ready to ship or ready for pickup) or through the shipping of the Goods.
(3) The sole operative factor with regard to the legal relations between Alvier and the customer is the contract entered into in writing, including these Terms. This contract represents the entire agreement between the Parties with respect to the subject matter of the contract. Oral commitments made by Alvier prior to the Parties’ entry into this contract are not legally binding, and oral agreements and/or understandings between the Parties are superseded by the written contract unless it is expressly apparent from them in the individual case that they continue to apply on a binding basis. Alvier assumes no responsibility for a particular quality of the Goods except where such quality has been expressly agreed in writing.
(4) Amendments and addenda to the agreements that have been reached, including these Terms, are not valid unless set forth in written form. With the exception of managing directors or holders of general commercial power of representation (Prokura), employees of Alvier are not entitled to enter into oral agreements or understandings that deviate from the written agreement. To meet the written form requirement, it is sufficient if a matter is communicated by means of telecommunication, particularly by e-mail, insofar as the copy of the signed declaration is transmitted.
§ 3 Prices; payment
(1) Unless otherwise agreed in the individual case, our prices that are current at the time of entry into each contract apply ex warehouse. Additional or special services are charged separately. Prices are to be understood as in euros plus value-added tax at the statutory rate.
(2) In the case of a sales shipment, the customer bears the transportation costs ex warehouse, along with the costs of any transportation insurance the customer may request. If Alvier does not bill the transportation costs actually incurred in the individual case, a flat fee for transportation costs (excluding any transportation insurance) in the amount of fifty (50) euros is deemed to be agreed. The customer must bear any customs duties, fees, taxes, and other public charges.
(3) Unless otherwise agreed in writing, invoiced sums are payable within thirty (30) days from the issuance of the invoice and delivery or acceptance of the Goods, without any deductions. The factor determining the date of the payment is the date of receipt by Alvier. Payment by check is not permitted unless agreed separately in the individual case. The customer is deemed to be in default when the payment deadline expires. The invoiced sum accrues interest at the default interest rate then applicable by law during default. Alvier reserves the right to assert claims for any further damage and/or losses due to default. In dealings with merchants, our claim to the commercial default interest (§ 353 of the German Commercial Code (HGB)) is unaffected.
(4) Offsetting counterclaims of the customer or retention of payments due to such claims is permitted only to the extent that the counterclaims are undisputed or have been established with final, binding legal force. In the case of defects in the delivery, the customer’s counter-rights, particularly those pursuant to § 7 of these Terms, are unaffected.
(5) Alvier is entitled to carry out deliveries or services that are still outstanding only in exchange for advance payment or furnishing of security if, after the Parties’ entry into the contract, Alvier becomes aware of circumstances that are likely to significantly reduce the customer’s credit-worthiness and that jeopardize the payment of Alvier’s open claims by the customer as arising from the contractual relationship in question (including from other individual orders to which the same framework agreement applies).
§ 4 Delivery time limit; delay and default in delivery
(1) Delivery times/deadlines proposed by Alvier for deliveries of the Goods are always deemed to be merely approximate unless a fixed delivery time limit or fixed delivery deadline has been expressly promised or agreed.
(2) Without prejudice to its rights arising from delay and default on the customer’s part, Alvier is permitted to demand that the customer extend the delivery time limits by any period during which the customer is not complying with its contractual obligations toward Alvier.
(3) Alvier is not liable for impossibility of performance or for delays in performance to the extent that these are caused by force majeure or by other events not foreseeable at the time of the Parties’ entry into the contract (e.g., operational disruptions of all kinds, difficulties with procurement of material or energy, transportation delays, strike, lawful lockout, shortage of labor/energy/raw materials, difficulties procuring necessary official permits and/or authorizations, actions taken by government agencies, or failure to deliver/perform correctly, on time, or at all by suppliers/third parties) for which Alvier is not responsible. It is also deemed such an event if Alvier does not receive correct or timely delivery from one of its suppliers, if Alvier is not responsible for this in each case and there was, at the time when the contract was entered into with the customer, a congruent covering transaction in place between Alvier and the supplier in question. Where such events render it significantly more difficult or impossible for Alvier to perform and the impediment is more than merely temporary in duration, Alvier is entitled to rescind the contract. In the case of temporary impediments, the delivery deadlines are automatically extended by the term of the impediment plus a reasonable run-up period. The Parties shall provide each other, without delay, with the necessary information and shall adjust the contractual obligations in good faith according to the changed circumstances. To the extent that the customer cannot reasonably be expected to accept the Goods as a result of the delay, the customer can rescind the contract by way of a written declaration to Alvier without delay.
(4) If Alvier falls into default with a service or if a service becomes impossible for Alvier, regardless of the reason therefor, Alvier’s liability for damages is restricted in accordance with § 7 and 8 of these Terms.
§ 5 Delivery; passage of risk; acceptance; default of acceptance
(1) Deliveries are made ex warehouse, which is also the place of performance for the delivery and any cure that may apply. At the customer’s request and expense, the Goods shall be shipped to another destination (sales shipment). Unless otherwise agreed, Alvier is entitled to determine the nature of the shipment (particularly the transportation company, mode of transportation, packaging) itself. Pallets, containers, and other reusable packaging shall remain the property of Alvier and must be returned to Alvier’s delivery point by the customer without delay, at no cost to Alvier. Single-use packaging shall be charged at cost, with no returns thereof accepted.
(2) The risk of accidental loss or deterioration of the Goods shall pass to the customer no later than upon delivery. In the case of a sales shipment, however, the risk of accidental loss or deterioration of the Goods and the risk of delays shall pass earlier, when the Goods are delivered to the shipper, freight forwarder, or other person, entity, or institution designated to carry out the shipment. Where a formal acceptance procedure has been agreed, this procedure is the factor determining the passage of risk. The Parties will not conduct a formal acceptance procedure for the Goods unless acceptance criteria have been agreed separately. If such a procedure is conducted, the Parties shall draw up and sign a joint record thereof. Where separate acceptance criteria have been agreed in the individual case, the customer is permitted to refuse to accept the Goods – exclusively in the case of significant defects in performance – until such time as defects have been remedied; Alvier is entitled and obligated to remedy defects within a reasonable time limit. Otherwise, the customer is required to declare formal acceptance, where applicable listing possible defects, which Alvier is required to eliminate within a reasonable time limit. If the buyer falls into default of acceptance, this circumstance is deemed equivalent to delivery or formal acceptance, as the case may be.
(3) If the customer is in default of acceptance or fails to take a cooperative action or if the delivery is delayed for other reasons for which the customer is responsible, Alvier is entitled to demand compensation for the damage and/or losses arising therefrom, including additional costs (e.g., storage costs). Alvier shall charge for this lump-sum compensation in the amount of fifty  euros per calendar day, starting with the delivery time limit or – in the absence of a delivery time limit – upon notification that the Goods are ready to ship. Nothing herein shall affect the rights of the Parties to assert claims for damage and/or losses in a higher amount or their statutory claims (especially compensation for additional costs, reasonable compensation, notice of termination). The lump sum must, however, be applied toward any farther-reaching monetary claims. The customer remains entitled to prove that Alvier has sustained no actual damage and/or losses, or that the damage and/or losses actually sustained by it were significantly lower than the foregoing lump sum.
§ 6 Retention of title
(1) Alvier retains title to the Goods sold until such time as all present and future claims of Alvier arising out of the purchase agreement and an ongoing business relationship (secured claims) have been paid in full.
(2) The Goods subject to retention of title must not be pledged to third parties or transferred by way of security before the secured claims have been paid in full. The customer must notify Alvier in writing without delay if a petition for opening of insolvency proceedings has been filed or to the extent that third parties have access (e.g., attachment) to the Goods belonging to us.
(3) In the event of behavior on the customer’s part that is in breach of contract, particularly in the event of non-payment of the purchase price when due, Alvier is entitled to rescind the contract pursuant to the statutory provisions and/or demand that the Goods be surrendered based on the retention of title. The demand for the surrender of the Goods does not also entail a declaration of rescission; instead, Alvier is entitled to merely demand that the Goods be surrendered while reserving the right of rescission. If the customer does not pay the purchase price when due, Alvier is not permitted to assert these rights unless Alvier has set a reasonable time limit for the customer to pay beforehand and this time limit has elapsed without producing the desired effect or there is no need to set such a time limit pursuant to the statutory provisions.
(4) Unless and until this is revoked, the customer is authorized pursuant to § 6 (4) (c) hereof to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition:
(a) The retention of title extends to the products arising from processing, mixing, or combining of our Goods at the full value thereof, with Alvier being deemed the producer. If the Goods are processed, mixed, or combined with goods of third parties and such parties’ title therein remains in effect, Alvier acquires co-ownership proportionate to the invoiced values of the Goods processed, mixed, or combined. In all other respects, the product that arises is subject to the same provisions as the Goods supplied subject to retention of title.
(b) The customer assigns to Alvier by way of security the claims against third parties arising from the resale of the Goods or the product, either in their entirety or in the amount of any co-ownership share accruing to Alvier pursuant to the foregoing paragraph. Alvier accepts such assignment. The obligations of the customer mentioned in paragraph 2 above also apply with regard to the assigned claims.
(c) The customer remains authorized and empowered to collect on the claim alongside Alvier. Alvier agrees not to collect on the claim as long as the customer is complying with its payment obligations toward Alvier, there is no defect in the customer’s ability to perform, and Alvier does not assert the retention of title by exercising a right pursuant to paragraph 3 above. If this is the case, Alvier may demand that the customer notify Alvier of the claims assigned and the debtors therefor, provide all information necessary for collection purposes, surrender the associated documents, and notify the debtors (third parties) of the assignment. In this case, Alvier is moreover entitled to revoke the customer’s authority to resell and process the Goods subject to retention of title.
(d) If the realizable value of the items of security exceeds Alvier’s claims by more than 10%, Alvier shall release items of security of its choice at the customer’s request.
§ 7 Warranty; rights of third parties
(1) Material defects and legal defects are subject to the statutory provisions unless otherwise provided in these Terms.
(2) Unless expressly agreed otherwise, Alvier’s Products are solely obligated to comply with the statutory requirements applicable in the Federal Republic of Germany. The customer alone is responsible for integrating the Products into the technical, structural, and organizational circumstances applicable at the customer’s end (sole system integration responsibility rests with the customer). Alvier and the customer agree that signs of wear that are typical of use and age and damage to the Goods do not constitute material defects.
(3) Unless a formal acceptance procedure has been expressly agreed, the customer is obligated to inspect the Goods delivered without delay after delivery to the customer or the third party designated by the customer and to report any defects without delay. For a report of a defect to be considered to have been made without delay, the report must be sent no later than within seven working days after delivery or – if the matter concerns a defect that was not apparent upon inspection – no later than three working days after the defect is discovered. If, however, this latter defect was recognizable to the customer in the case of normal use of the Goods even before the time of discovery, the earlier time at which this was the case is the factor determining the start of the foregoing time limit for reporting purposes. If the customer fails to inspect the Goods and/or report defects properly and on time, the warranty and other liability for the defect in question are ruled out unless Alvier has maliciously concealed such defect.
(4) At Alvier’s request, Goods regarding which a complaint has been submitted must be returned to Alvier without delay, initially at the customer’s expense. In the event of a justified complaint, Alvier shall reimburse the customer for the costs of the least expensive mode of transportation; this does not apply to the extent that the costs are increased because the Goods are in a place other than the place of use thereof as intended.
(5) To the extent that claims against Alvier accrue to the customer because the Goods are defective, Alvier shall, at its choice, which must be made in its reasonably exercised discretion, either eliminate the defects or supply Goods that are free of defects, at no charge in either case (hereinafter collectively “Cure”). The customer must grant Alvier reasonable time and opportunity to effect the Cure that Alvier deems necessary in its reasonably exercised discretion. Nothing herein shall affect Alvier’s right to refuse to effect a Cure subject to the statutory prerequisites.
(6) If the Cure has failed or a reasonable time limit to be set by the customer for the Cure has elapsed without producing the desired effect or there is no need to set such a time limit pursuant to the statutory provisions, the customer is permitted to rescind the contract or reduce the price. There is no right of rescission in the case of a minor defect, however. The customer’s rights to demand damages and compensation for expenses incurred in vain because the Goods are defective shall be determined according to § 8 hereof.
(7) Claims for defects shall lapse 12 months after the Goods are delivered unless a longer limitation period is specified by non-waivable provisions of law.
§ 8 Liability for damages due to fault
(1) Unless otherwise provided in these Terms, including hereinafter, Alvier is liable pursuant to the statutory provisions in the case of breach of contractual and extracontractual duties.
(2) Alvier is liable for damages – irrespective of the legal grounds therefor – within the scope of liability for fault in case of intent and gross negligence. In the case of ordinary negligence, Alvier is liable, subject to statutory limitations of liability (e.g., standard of care in its own affairs; minor breach of duty) only (i) for damage and/or losses arising from loss of life, bodily injury, or impairment of health, and (ii) for damage and/or losses arising from breach of an essential contractual duty (obligation whose fulfillment renders the proper performance of the contract possible in the first place and in compliance with which the other party to the contract typically trusts and is permitted to trust); in this case, however, Alvier’s liability is limited to compensation for the foreseeable and typically occurring damage and/or losses.
(3) The limitations of liability arising from § 8 (2) hereof also apply in the case of breaches of duty by or for the benefit of persons whose fault is the responsibility of Alvier pursuant to statutory provisions.
(4) To the extent that Alvier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by Alvier, this takes place on a gratuitous basis and to the exclusion of any and all liability.
(5) The limitations pursuant to § 8 do not apply to Alvier’s liability with regard to intentional acts, warranted characteristics, or loss of life, bodily injury, or impairment of health or to Alvier’s liability pursuant to the German Product Liability Act (ProdHaftG).
(6) According to this, Alvier’s liability is ruled out to the extent permissible by law.
§ 9 Warranty; procurement risk
(1) Any provision of warranties or assumption of procurement risk on Alvier’s part must take place expressly and be designated as such.
(2) The customer and Alvier agree that information provided by Alvier in catalogs, printed materials, advertising materials, and other general information does not at any time constitute a warranty or assumption of a procurement risk.
§ 10 Final provisions
(1) The place of performance for deliveries is the location or warehouse from which Alvier delivers.
(2) If the customer is a merchant (Kaufmann) as defined in the German Commercial Code (HGB), a legal entity under public law, or a public-law special fund or does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any and all disputes arising from the business relationship between Alvier and the customer is, at Alvier’s choice, either Bad Dürkheim or the location of the customer’s registered office. Bad Dürkheim is, however, the exclusive place of jurisdiction for actions against Alvier in these cases. Nothing herein shall affect non-waivable statutory provisions on exclusive places of jurisdiction.
(3) Relations between Alvier and the customer are subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(4) To the extent that the provisions of the contract or these General Terms and Conditions of Business contain any gaps, such gaps are deemed to have been filled by the legally valid provisions to which the Parties would have agreed, according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Business, if they had been aware of the gaps in the provisions.
Alvier Mechatronics GmbH
Version 1.0, September 7, 2020