§ Art. 1 Definitions
(1) In these Terms and Conditions, the term “enterprise” shall be used in the meaning of Art. 14 of the German Civil Code (Bürgerliches Gesetzbuch).
(2) ALFIX GmbH has its registered office in Großschirma, Germany.
§ Art. 2 Scope
(1) These General Terms and Conditions shall apply to all contracts, deliveries, and other services, including but not limited to consulting services, providing information, etc., concluded with and rendered to enterprises, legal entities under public law or public-law special funds. In particular, they shall apply to contracts for the sale and/or delivery of moveables (also called “merchandise” hereafter), regardless of whether we manufacture the merchandise ourselves or purchase it from suppliers (§§ Art. 433, 651 of the German Civil Code). As a framework agreement they shall apply in the respective version also for future contracts with the same customer regarding the sale and/or delivery of moveables, without the need of specific reference to these Terms and Conditions each time. In this case, we shall notify the buyer immediately of any changes to these Terms and Conditions.
Our Terms and Conditions shall apply exclusively. Any customer’s terms and conditions that deviate from our Terms and Conditions shall not be valid.
(2) These Terms and Conditions shall apply exclusively with regard to enterprises as defined in Art. 14, 310 Para. 1 of the German Civil Code.
The following shall apply to online orders:
§ Art. 3. Registration as a Customer
(1) In addition to direct orders, you may create a user account and thereby register as a customer in our trade system. Only enterprises are eligible for registration.
The data you need to enter in order to create a user account must be true and complete. You will be responsible for making any subsequent changes to your personal data.
(2) The password you choose must be kept confidential at all times and must not be disclosed to any third parties.
(3) By registering you generally consent to the application of these Terms and Conditions in the respectively applicable version. The registration will not entail any additional obligations for you. In particular, you will not be obliged to buy any of the goods we offer.
§ Art. 4 Contract Formation
(1) Our offers shall be without engagement and subject to change. This shall apply also if we have provided the customer with catalogues, technical documentations (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – including documents in electronic form – to which we reserve ownership and copyrights.
Likewise, the presentation of our merchandise in the online catalogue alone does not constitute a binding offer to conclude a contract.
The following shall apply to any other orders:
(2) By clicking the “Order ” button at the end of the ordering process you submit a binding offer to conclude a contract. You will first receive an automated email to confirm receipt of your order. No contract purchase shall be concluded until we expressly accept your offer in a further email. For this purpose we reserve an acceptance period of 14 days.
The following shall apply to any other orders:
(3). Any order made by the customer shall constitute a binding offer. We may accept the offer, at our discretion, within 14 days by sending a written order confirmation or by shipping the ordered merchandise.
(4) Our sales staff are not authorised to make any additional oral agreements or warranties beyond the contents of the written contract or of the order confirmation.
(5) As a rule, we shall not be obliged to accept your offer and we therefore reserve the right to refuse it.
§ Art. 5 Prices / Delivery Periods/ Delivery / Payments
(1) Prices shall be exclusive of packaging and value added tax and for deliveries from our registered office or from the place specified in the order by truck or rail. Deliveries shall be made from our registered office or from the place we specified in the order at the customer’s cost and risk.
(2) Any discounts agreed any any sales bonuses and freight compensations shall become invalid if the customer is in arrears with the payment for any invoices we issued or if the customer’s assets are subject to insolvency proceedings.
(3) The merchandise and services shall become due upon expiry of the delivery period agreed between you and us. If no such agreement has been made, we shall be entitled to unilaterally determine the delivery period at our reasonable discretion in the order confirmation in accordance with legal requirements (see Art. 315 of the German Civil Code).
(4) Unless specifically agreed, the setting of a delivery date shall not mean that this date is the type of due date that entitles the customer to withdraw from the contract without setting a grace period, see Art. 323 Para. 2 No. 2 of the German Civil Code.
(5) We do not engage in transactions with fixed due dates.
The following shall apply to online orders:
(6) If we charge any shipping costs, these costs shall always be displayed separately before you submit your online order and shall be stated separately in the invoice. No additional hidden shipping costs shall accrue to you.
(7) We shall not be obliged to take out a transport insurance policy. Partial deliveries shall be permissible and shall be invoiced separately. The shipment route and means of transport shall be at our discretion. If a handover procedure has been agreed, this procedure shall mark the transfer of risk. For any handover procedure agreed, the legal requirements of the German law regarding contracts for work and services shall apply accordingly. If the customer is in arrears with acceptance, this shall be tantamount to a handover.
(8) In case of purchase to destination, the risk of accidental loss of the merchandise shall pass to the customer upon handing of the merchandise over to the forwarder, carrier, or any other person designated for making the delivery.
(9) If we are unable to observe any binding delivery periods for reasons not attributable to us (non-availability of the merchandise or services), we shall notify the customer immediately und inform them about the expected new delivery period. If the merchandise or services are not available within this new delivery period either, we shall have the right to withdraw from the contract as a whole or in parts; we shall refund any consideration already paid by the customer without undue delay. In this context, merchandise or services shall be deemed unavailable in particular if our supplier fails to deliver to us in time, provided we have concluded a contract for congruent hedging (kongruentes Deckungsgeschäft), if neither we nor our supplier can be held responsible or if we are not obliged to procure the merchandise or services in the individual case. The customer’s rights under Art. 6 and 8 of these Terms and Conditions und our statutory rights, especially if any duty to perform is excluded on our part (e.g. due to the performance and/or subsequent performance being impossible or unreasonable) shall not be affected.
§ Art. 6 Set-off
(1) No set-off by the customer shall be permissible, unless the claims asserted for set-off have been established by a final decision, are undisputed, ready for decision or acknowledged. In all other cases, set-off shall be excluded.
(2) Likewise, the customer shall have a right of retention only for counter-claims that have been established by a final decision, are undisputed, ready for decision or acknowledged. Furthermore, the customer waives the assertion of any right of retention from previous or other transactions in the course of the present business relationship.
§ Art. 7 Liability / Warranty
(1) If the item delivered by us has a defect at the time of handover, we shall be entitled to first remedy the defect by rework or replacement. We shall be entitled to make our subsequent performance dependent on payment of the purchase price due by the customer. However, the customer shall be entitled to retain part of the purchase price in a reasonable proportion with regard to the defect. If subsequent performance fails or is impossible, the customer shall be entitled to withdraw from the contract, to reduce the purchase price or, if the defect is attributable to us, to claim damages under the provisions of Art. 6 to 8 of these Terms and Conditions.
(2) If the defect is not attributable to us, the customer’s claim for damages shall be limited, according to Art. 280 of the German Civil Code, to compensation for the damage to the sold item itself or to such damages for which we expressly accepted a warranty obligation in writing.
(3) If we are in slightly negligent breach of any other material obligation (Kardinalpflicht) or if we are in arrears with delivery of the merchandise, our liability shall be limited to the foreseeable, typical, and direct average damage. Material contractual obligations shall be deemed to be obligations, the performance of which enables proper performance of the contract in the first place and on the performance of which the contractual partner regularly relies and may rely. In case of a slightly negligent breach of a non-material contractual obligation we shall not accept any liability.
(4) In the event of delivery disruption due to force majeure or unforeseeable circumstances (interruption of operations, strike or the like) we shall be entitled to postpone the delivery date by a reasonable period of time. We shall not come into default during such an extended delivery period. The customer’s rights under Art. 6 and 8 of these Terms and Conditions und our statutory rights, especially in the event that any duty to perform is excluded on our part (e.g. due to the performance and/or subsequent performance being impossible or unreasonable) shall not be affected.
(5) We shall not be obliged to inspect any merchandise that we merely sell as a trader (i.e. that we do not manufacture ourselves), except to the extent of checks for any externally visible transport damage. Therefore we shall not be at fault in the meaning of Art. 276 of the German Civil Code if the merchandise sold has any defects (other than externally visible transport damage) that can only be detected by an examination. In case of drop-shipments, delivery of a defective item shall generally not constitute fault in the meaning of Art. 276 of the German Civil Code.
(6) The above liability restrictions shall apply to both our vicarious agents and performing agents.
The above liability restrictions shall not apply in the case of deliberate or grossly negligent actions, in the event that we accept a claim under a warranty, in the event of damage to the customer’s life, body or health and in case of any claims covered by the German Product Liability Act. Furthermore, the special statutory regulations for final delivery of merchandise to a consumer (claim for damages from supplier under §§ Art. 478, 479 of the German Civil Code) shall not be affected. The buyer may withdraw from or terminate the contract for breach of an obligation other than a defect only if the breach of obligation is attributable to us. Any unconditional right of the customer to terminate the contract (especially under §§ Art. 651, 649 of the German Civil Code) shall be excluded.
§ Art. 8 Notification of Non-Conformity and Inspection Duties
(1) The customer shall inspect the delivered merchandise immediately after handover and notify us in writing if it is defective in the meaning of Art. 434, 435 of the German Civil Code. This shall not apply in the case of hidden defects. The customer shall have the same duties of inspection and notification of non-conformity with regard to any quantity deviations. If the customer fails to perform their duty of inspection and notification of non-conformity, they may no longer derive any rights from the defects or the quantity deviation.
(2) The customer shall bear the burden of proof for the defect, for the time of detecting the defect and for the timeliness of the defect notification.
(3) If a hidden defect is detected later, the customer shall be obliged to notify us thereof promptly after detecting the defect. If the customer fails to do so, the legal consequences of Paragraph (1) shall apply.
(4) The customer shall also be obliged to notify us in writing of any breach of contract we may cause immediately after becoming aware of the breach, unless we have, or must have, positive knowledge thereof. If the customer fails to fulfil this duty to object, they cannot derive any rights from this breach of contract.
§ Art. 9 Warranty Periods
((1) Any claims from defects in delivered merchandise shall become time-barred after one year, derogating from Art. 438 Para. 1 No. 3 of the German Civil Code /Art. 634a Para. 1 No. 1 of the German Civil Code.
(2) However, if the merchandise is a building or an item that has been used in accordance with its usual manner of use und has caused the defects in the building (construction material), the limitation period shall be 5 years from the time of delivery in accordance with the statutory regulation (Art. 438 Para. 1 No. 2 of the German Civil Code). Likewise, the special statutory regulations for third-party claims for in-rem restitution (Art. 438 Para. 1 No. 1 of the German Civil Code), in the event of fraudulent intent (Art. 438 Para. 3 BGB of the German Civil Code) and for claims arising from final delivery of merchandise to a consumer (Art. 479 of the German Civil Code) shall not be affected.
(3) The above periods of limitation shall also apply to the customer’s contractual and non-contractual claims arising from a defect in the merchandise, unless application of the regular statutory limitation period (Art. 195, 199 of the German Civil Code) would lead to a shorter limitation period in the respective case. The limitation periods under the German Product Liability Act shall remain unaffected under any circumstances.
(4) Otherwise the statutory periods of limitation shall apply exclusively to all customer claims for damages under Art. 6.
§ Art. 10 Reservation of Title
(1) All merchandise delivered shall remain our property (goods subject to reservation)until all claims have been settled, in particular the respective balance claim to which we are entitled from the business relationship with the customer. This shall apply also to any future and contingent claims and also when payments are made towards specifically designated claims.
(2) Goods subject to reservation shall be handled and processed for us as manufacturers as specified in Art. 950 of the German Civil Code, without incurring any obligation on our part. The processed and handled merchandise shall be considered subject to reservation in the meaning of Paragraph 1. If the goods subject to reservation are processed, combined and commingled with other merchandise by the customer, we shall be entitled to co-ownership in the new items in proportion of the invoice value of the goods subject to reservation compared to the invoice value of the other goods used. If our ownership expires as a result of combining or commingling, the customer shall assign to us now their property rights in the new items in proportion to the invoice value of the goods subject to reservation and shall store them for us free of charge. Our co-ownership rights shall be deemed to be goods subject to reservation as defined in Paragraph (1).
(3) The customer may sell goods subject to reservation only in the usual course of business at their regular terms and conditions of business and only as long as the customer is not in arrears with payments due to us, with the proviso, however, that the claims from the resale shall pass to us in accordance with Paragraphs 4 and 5. The customer shall not be entitled to any other disposal of the goods subject to reservation.
(4) The customer hereby assigns the claims from the resale of the goods subject to reservation now and we accept this assignment. These claims shall serve to secure our claims from the business relationship in the same proportion as the goods subject to reservation. If the goods subject to reservation are sold by the customer together with other goods not purchased from us, the receivables from the resale shall be assigned to us in the proportion of the goods subject to reservation to the invoice value of the other goods. If goods in which we have co-ownership rights under Paragraph 2 are resold, a part corresponding to our co-ownership share shall be assigned to us.
(5) The customer shall be entitled to collect receivables from the resale. This collection authorisation shall expire if we revoke it, but at the latest in the event of late payment, failure to honour a bill of exchange or a cheque, or if a petition for initiating insolvency proceedings is filed. We shall make use of our right to revoke only if we become aware of any circumstances that result in a deterioration of the customer’s financial situation that puts our claim for payment at risk. The customer shall be obliged at our request to notify their purchasers of the assignment to us immediately and provide us with the information and documents required to collect the receivables assigned.
(6) The customer shall notify us immediately of any seizure or any other impairments by third parties. The customer shall bear all expenses required to suspend the intervention and to recover the object of purchase, unless they can be recovered from third parties.
(7) If the customers falls in arrears with payments, fails to honour a bill of exchange when due, or a cheque issued by the customer is not honoured, we shall be entitled to take the goods subject to reservation back and to enter the customer’s premises or warehouse for this purpose. The same applies if any other circumstances occur that indicate a substantial deterioration of the customer’s financial situation after concluding the contract and that put our claims for payment at risk. Taking back the goods does not constitute a withdrawal from the contract. We may also prohibit the resale, processing and removal of the goods subject to reservation.
(8) The customer shall be obliged to store and label the goods subject to reservation separately and to treat them with care.
§ Art. 11 Place of Fulfilment
Our registered office shall be the place of fulfilment for all services from the purchase contract. If we specify another place of delivery, this place shall be the place of fulfilment.
§ Art. 12 Place of Jurisdiction
If the customer is a merchant within the meaning of the of the German Civil Code (Kaufmann), the place of jurisdiction for all claims arising from this contractual relationship shall be the court having local competence for our registered office. However, we shall be entitled to sue the customer at their general place of jurisdiction. This place of jurisdiction shall apply also in case of cross-border deliveries and service provisions, unless applicable law specifies another exclusive place of jurisdiction.
§ Art. 13 Applicable Law
The legal relations between us and the customer shall be exclusively subject to German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
§ Art. 14 Severability
(1) If a provision should be or become invalid, this shall not affect the validity of the remaining provisions of these Terms and Conditions. If a provision is invalid, a valid provision that comes closest to the economic intent of the invalid provision shall be deemed agreed. The same shall apply to any contract gaps.
Otherwise, the relevant statutory provisions shall apply.
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