General Terms and Conditions
Work and Purchase Contract
- The following terms and conditions are part of all offers, declarations of acceptance and other declarations of ALFOTEC GmbH – hereinafter referred to as user – and are the basis of all deliveries and services of the user including consulting and information. They shall be deemed accepted at the latest upon receipt of the goods or services of the user.
- Any conflicting general terms and conditions of the contracting party are excluded, even if the user of these general terms and conditions does not expressly object to them.
- These general terms and conditions shall also apply to supplementary orders, follow-up orders and order extensions. They shall be deemed accepted at the latest at the time of the respective acceptance of delivery or service.
II. Content of the contract
- The content and scope of the deliveries and services shall be determined by the written contract or, if no written contract has been concluded, by the user’s offer confirmed by the contracting party or by a declaration of acceptance of the contract by the user.
- Pre-contractual notices, in particular descriptions and cost estimates, shall not become part of the contract unless expressly agreed. Information, data and pictures in catalogues, brochures, leaflets, application-technical notes and an Internet presence contain non-binding product information and no quality description. Advice given by the user’s personnel or representatives commissioned by the user is not binding. Nevertheless, it is based on the current state of knowledge and experience of the user and is given to the best of our knowledge.
- The user reserves the right to make technical changes during the execution of the order, as far as they result from the progress of technical development or prove to be relevant in individual cases in the interest of the performance of the system, the changes are reasonable for the contractual partner under consideration of its interests and the performance is equivalent overall.
- The user is entitled to make partial deliveries to the contractual partner.
- The prices quoted by the user are exclusive of statutory value added tax, unless the value added tax has been expressly indicated. In case of a purchase contract, the prices are ex works or ex warehouse of the user. Unless otherwise agreed, packaging and assembly are not included in the price. If the statutory value added tax should increase after conclusion of the contract, the user shall be entitled to charge the statutory value added tax valid at the time of delivery or performance.
- If the user does not provide its deliveries and services until more than four months after conclusion of the contract, it may – unless otherwise agreed – increase the agreed prices if the delivery or service is made more expensive due to new public charges, additional fees, freight charges or their increase or other legal measures or a change in the cost factors of the user such as wage and material costs. If the price increase exceeds the agreed prices by more than 10% due to the aforementioned circumstances, the contractual partner may withdraw from or terminate the contract.
IV. Delivery times, place of performance, dispatch, transfer of risk
- If no execution or delivery periods have been agreed, the execution or delivery shall commence no later than within six weeks after conclusion of the contract. However, execution or delivery shall not commence – even in the event of an agreed execution and delivery period – before all details of execution have been clarified and the contractual partner has fulfilled all necessary obligations to cooperate and contractual advance performance obligations.
- In the event of force majeure and other unforeseeable, exceptional and involuntary circumstances, in particular difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of means of transport, official interventions and energy supply difficulties – even if they occur at the user’s suppliers – the execution or delivery or an agreed deadline for this purpose shall be extended by the duration of the hindrance as well as a reasonable start-up period if the user is prevented from fulfilling its obligations in good time. If the delay in execution and delivery due to the above-mentioned circumstances lasts longer than two weeks, the contractual partner is entitled to withdraw from the contract. If the time of execution or performance is extended due to the aforementioned circumstances, the contractual partner cannot derive any claims for damages from this. The user may only invoke the above-mentioned circumstances if it notifies the contractual partner thereof.
- If the user culpably fails to meet deadlines for execution and delivery, the contractual partner shall be obliged to set the user a reasonable extension of at least two weeks in writing.
- The place of performance for the conclusion of a sales contract is the user’s branch office.
- Unless otherwise agreed, the contractual partner shall bear the costs of shipping the object of purchase from the location of the user’s branch; shipping shall be at the discretion of the user without obligation to select the most cost-effective shipping method. If the contractual partner is an entrepreneur, the risk of loss or damage to the object of purchase shall pass to the contractual partner as soon as it leaves the factory or warehouse of the user – if carriage paid delivery has been agreed. At the request of the contractual partner, the object of purchase will be insured at its expense against breakage, transport and fire damage.
- If the service or delivery is delayed at the request of the contractual partner or for reasons for which it is responsible, the risk of performance shall pass to the contractual partner for the period of the delay. The costs incurred by the delay for provision, storage and necessary travel of the user’s vicarious agents shall be borne by the contractual partner.
V. Construction and maintenance of facilities
Unless otherwise agreed in writing, the following provisions shall apply to any type of installation, assembly or maintenance.
- The contracting party shall take over at its own expense and provide in due time:
- The contracting party shall take over at its own expense and provide in due time: Auxiliary team such as hired laborers and, if necessary, also bricklayers, carpenters, locksmiths, crane operators, other skilled workers with the tools required by them in the necessary number, all earthwork, bedding, chiseling, scaffolding, plastering and painting work and other ancillary work outside the industry, including the building materials, operating power and water required for this purpose, including the necessary connections up to the point of use, heating and general lighting, at the assembly site for storing machine parts, equipment, materials, tools, etc. sufficiently large, suitable, dry and lockable rooms and appropriate work and recreation rooms for the assembly personnel, including appropriate sanitary facilities. In addition, the contractual partner must take the same measures to protect the user and the possessions of the user’s assembly personnel on the construction site as it would take to protect its own possessions. The contractual partner shall also provide protective clothing and protective devices which are necessary as a result of special circumstances at the assembly site and which are not customary in the industry for the user.
- In good time before the start of the assembly work, the contractual partner must provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being asked.
- The contractual partner undertakes to certify the work carried out by the erectors and their assembly personnel on a daily or weekly basis, at the user’s discretion. Furthermore, it shall confirm the completion of the installation or assembly on forms provided by the user.
- The contractual partner shall bear the costs of the proper environmentally friendly disposal of installed parts and components that have to be removed or replaced.
- Fees charged by the network operator, the police, the fire brigade or a third party on the basis of the agreed deliveries and services shall be borne by the contractual partner.
- Repeated checks and factory services may be required to diagnose and correct (intermittent) faults that may occur at times. In this respect, the contractual partner shall bear the costs of repeated assignments of the user as well.
- The contractual partner shall be liable for damage to the assembly and work services as well as any delay in completion on the part of the user prior to acceptance thereof if the contractual partner has created a hazardous situation – in particular due to the simultaneous activity of several contractors on one construction site – and the user was unable to prevent the occurrence of the damage or the delay by taking reasonable measures.
- Independently usable parts of the user’s service are to be accepted separately by the contractual partner at its request.
- If the contractual partner demands a change in the agreed work result or a change that is necessary to achieve the agreed work result, the contractual partner must compensate the user for any additional expenditure caused thereby. This remuneration obligation also exists if the user has taken over the planning of the system, the price agreement with the contractual partner has been made on the basis of a bill of quantities drawn up by the user, and the user has not expressly assumed the risk that the bill of quantities may turn out to be incomplete and/or incorrect after the conclusion of the contract. This shall not affect the contractual partner’s claims for damages due to pre-contractual breaches of duty by the user.
- If the user has taken over the installation, assembly or maintenance against individual invoicing, the following terms and conditions shall be deemed agreed in addition to the provisions under A.
- The contractual partner shall pay the rates agreed with the user (price list) for working time and surcharges for overtime, night work, work on Sundays and public holidays, for work under difficult circumstances as well as for planning, monitoring and documentation. The obligation to pay remuneration shall apply accordingly to the consumption of material including offcuts as well as to the installation and connection of the equipment.
- Preparation, travel and run times and feedback are considered working time, whereby the actual expenditure, in particular wage and vehicle costs, is calculated for arrivals and departures.
- Repeated checks and factory services may be required to diagnose and rectify (intermittent) faults that occur at times. In this respect, the contractual partner shall bear the costs even of repeated assignments of the user.
VI. Terms of payment
- Unless otherwise agreed, the user’s invoices are due 10 days after the invoice is issued.
- Payments may only be made to the user, not to representatives.
- Unless otherwise agreed, the following advance payments are due for work and assembly services: 33% at the time of placing the order, 33% at the start of assembly and 34% at the handover of the plant.
- In case of partial services, the user has the right to request corresponding partial payments.
- All claims of the user shall become due immediately if the terms of payment are not observed or the user becomes aware of circumstances which are suitable to reduce the creditworthiness of its contractual partner.
- If the contractual partner withdraws from the contract or terminates the contract (cancellation) without any breach of duty on the part of the user, or if the user declares the withdrawal or termination of the contract for reasons for which the contractual partner is responsible, the contractual partner undertakes to pay the remuneration for the services already provided as well as the lost profit together with the pro rata general business costs in relation to the services not yet provided at a flat rate of 30% of the remuneration agreed for the services not yet provided, unless the user can prove a higher economic disadvantage. The contractual partner shall be entitled to prove that remuneration, profit and business costs have not been incurred or have not been incurred or lost to this extent.
VII. Retention of title
All goods shall remain the property of the user until the consideration has been paid in full (reserved goods). If the contract is part of the operation of a merchant’s trade, sentence 1 shall also apply to future or conditional claims from contracts concluded at the same time or later. The contractual partner shall be obliged to refrain from any impairment of the ownership of the reserved goods that goes beyond their proper use and, in the event of third-party access, to inform the user immediately. The contractual partner shall bear the costs of preventing access by third parties. If the value of the reserved goods exceeds the claims of the user by more than 20%, the user shall release securities of his choice at the request of the contractual partner.
VIII. Claims and rights due to defects
- If the subject matter of the contract has defects, the contractual partner may initially demand subsequent performance (repair or replacement) within a reasonable period of time, whereby the user has the right to choose between repair or replacement. The contractual partner shall grant the user the necessary time and opportunity to do so. If the subsequent performance also remains unsuccessful, is impossible or involves disproportionate costs, the contractual partner is only entitled to withdraw from the contract (withdrawal) or to reduce the remuneration (reduction). Even in the event of delayed, refused or repeatedly failed repair, the contractual partner is only entitled to withdraw from the contract (withdrawal) or to reduce the remuneration (reduction). If the contractual partner is an entrepreneur, there shall be no claims for defects in the event of only insignificant deviation from the agreed quality or only insignificant impairment of the usability of the subject matter of the contract. If a construction work is the subject of liability for defects, withdrawal from the contract is excluded.
- In case of a purchase contract, if the contractual partner is an entrepreneur and the object of the contract has defects, the user shall not be obliged to reimburse the necessary expenses for the removal of the defective object of the contract and the installation or attachment of the object of the contract which has been repaired or replaced without defects (in particular transport, travel, labor and material costs) due to the special interests and requirements of the entrepreneurial business transactions or the habits and customs applicable in commercial transactions.
- If it is a purchase contract, the period of limitation for subsequent performance, withdrawal or reduction is two years for new items and one year for used items. The period begins with the delivery of the purchased goods. If the contractual partner is an entrepreneur, the period of limitation for new purchased goods is one year; for used goods, subsequent performance, withdrawal and reduction are excluded.
- If it is a contract for work and services, the period of limitation for subsequent performance, withdrawal and reduction is one year. The period begins with the acceptance of the work or, in the absence of acceptance, with the commissioning of the work.
- The periods of limitation for subsequent performance, withdrawal and reduction mentioned in the above clauses a) and b) shall not apply insofar as longer periods are prescribed by law, in particular for defects in a building and for goods which were used for a building in accordance with their normal use and which caused the defectiveness of the building.
- If there are indications that defects have arisen as a result of improper use of system components, incorrect assembly or incorrect commissioning by the contractual partner or third parties, natural wear and tear or extraordinary external influences, the contractual partner shall be obliged to inform the user. In this respect, the contractual partner must declare its intention to the user in writing. The same applies to defects resulting from maintenance not or not properly carried out by the contractual partner. If the contractual partner violates the above obligations, the user may reject the claims for defects asserted by the contractual partner.
- If, following a notification of defect by the contractual partner, it turns out that the notified defect is not one that is covered by the contractually agreed or statutory warranty and if this was negligently misjudged by the contractual partner, the contractual partner must reimburse the user for the costs incurred in examining the notification of defect (travel to and from the site, hourly wage, material, etc.).
- The user draws attention to the fact that an absolutely error-free creation of software, in particular of complex software systems, is not possible or not possible with reasonable expenditure according to the current state of the art. The object of the user’s liability for defects is therefore a program which is suitable for the usual use or the use assumed under the contract in accordance with the program description. Furthermore, the user warrants that the program carrier has no material or manufacturing defects when it is handed over to the contractual partner.
- The user assumes no liability that the individual program functions meet the requirements of the contractual partner or that they work together in the selection made by the contractual partner. In this respect, the contractual partner shall also bear responsibility for the selection, installation and use as well as the results intended thereby. If programs are used for the contractual partner’s own hardware, the user’s liability for defects shall only extend to the delivered software and not to its interaction with the hardware and software provided by the contractual partner.
- The user assumes no liability for risks, malfunctions, damages, costs and data protection sanctions resulting from disturbances or failures of a network provided by the contractual partner.
- The user shall also not be liable for defects in products/services provided by the contractual partner.
- The liability of the user for material damage and financial loss in cases of slightly negligent damage caused by a legal representative or a vicarious agent of the user is limited to the typical and foreseeable damage in comparable transactions of this type and to the maximum amounts specified in Section IX. 3. below. Liability for other cases of culpable causation of material and financial damage, in particular for gross negligence, remains unaffected.
- The liability of the user’s employees for material and financial damages in cases of slightly negligent damage is also limited to the typical and foreseeable damage in comparable transactions of this type as well as the maximum amounts specified in Section IX. 3 below. Liability for other cases of culpable causation of material and financial damage, in particular for gross negligence, remains unaffected.
- The maximum amounts of liability are:
- 3.000.000 € for material damage due to business and product liability
- 1.000.000 € for financial losses due to public liability
- 50.000 € for active damage in the sense of loading and unloading damage, damage to third-party cargo and damage to third-party equipment
- 1.000.000 € for other active damage
- 1.000.000 € for damage to rented property in buildings and rooms rented for business and business trips, including fire and explosion damage, as well as damage to buildings and rooms rented for other operational purposes due to fire, explosion, tap water and waste water
- 150.000 € for damage to rented property in buildings and rooms rented for other purposes due to other causes
- 50.000 € for damage to movable property rented for business purposes due to fire, explosion, tap water and sewage
- 50.000 € for damages due to the loss of property of employees and visitors and due to the loss of keys and code cards
- 1.000.000 € for data protection risks
- 1.000.000 € for an internet liability, of which 250.000 € for the violation of rights to a name.
- The liability for damages resulting from injury to life, body or health (personal injury) remains unaffected. The limitations of liability of the above IX. 1. to 3. do not apply in this respect.
- Liability for the breach of obligations, the observance of which is of particular importance for the achievement of the purpose of the contract (essential contractual obligations), and liability under the Product Liability Act shall also remain unaffected. The limitations of liability of the above IX. 1. to 3. do not apply in this respect.
X. Assertion of claims for damages
- Claims for damages must be asserted against the user in text form within a period of 3 months after the contractual partner entitled to claim, its legal representatives or vicarious agents have become aware of the damaging event. If the amount of the damage cannot yet be determined within this period, it is sufficient, but also necessary, that the damage as such is asserted in text form. Claims for damages which are not asserted within this period are excluded.
- The contractual partner is also obliged to immediately give the user the opportunity to make all necessary determinations as to the cause of the damage, the course of the damage and the amount of the damage either itself or through representatives. The user shall not be obliged to reimburse for any claims expenses incurred as a result of the fact that the contractual partner does not or does not immediately comply with its aforementioned obligations.
XI. Applicable law, place of performance and jurisdiction
- The legal relations between the user and the contractual partner shall be governed by the law of the Federal Republic of Germany. If the contractual partner lives abroad or has its headquarters there, the application of national law of the country of the contractual partner or of international law is excluded.
- The exclusive place of jurisdiction for contracts between the user and merchants, legal entities under public law or special funds under public law is the court responsible for the user’s headquarters.
- The offers and planning documents of the user are protected by copyright and may not be reproduced or passed on without the user’s written consent. In the event of infringement, the contractual partner is obliged to pay damages.
- The programs provided by the user for use are protected by copyright. The contractual partner undertakes to use these programs exclusively for itself and only within the scope of its commercial activities. By accepting the programs, it undertakes not to reproduce them or have them reproduced without the consent of the user, nor to make copies or have copies made of the program descriptions and not to make the programs or copies available to any unauthorized third party. In the event of infringement, the contractual partner shall be obliged to pay damages.
- In the case of transmissions via the public telephone network or other transmission media, the user shall not offer a higher level of security for the establishment of the connection and the transmission of the messages than that inherent in that transmission service.
- The user is entitled to use other reliable companies to fulfil its obligations.
- The user shall not be obliged to procure spare parts if this is only associated with an unreasonable economic effort or if procurement is actually impossible.
- The user is neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board. This does not affect the possibility of dispute resolution by a consumer arbitration board in the context of a specific dispute with the simultaneous consent of the user and the contractual partner.
- Oral agreements made before or at the time of the conclusion of the contract as well as subsequent amendments, subsidiary agreements, the agreement of properties and deviating agreements require the written confirmation of the user and the contractual partner to be effective. This shall also apply to a change of this clause.
- Should one of the above provisions be legally ineffective, the validity of the remaining provisions shall not be affected. In the event of the legal invalidity of a clause, the contractual partner shall be obliged to agree on a new provision with the user which comes closest to the purpose of the invalid provision.
Status: March 2020