ALNO AG | Terms and Conditions of Sale

Terms of sale and delivery for ALNO AG, 88629 Pfullendorf, Germany (version of 01.12.2007)

Only valid for the ALNO commercial partner and not for their end customers

I. General

Deliveries by ALNO are made exclusively on the basis of the following terms and conditions. We do not accept contrary terms or terms on the part of the purchaser that deviate from our terms of sale unless these have been explicitly agreed to by us in writing. Our terms of sale apply even if we deliver to the purchaser without reservation and are aware of contrary terms or terms on the part of the purchaser that deviate from our terms of sale.
Our terms of sale also apply to all future business transactions with the purchaser.

A contract of sale with the purchaser is not validly materialised until the order is acknowledged by ALNO in writing or delivery takes place. Supplementary agreements and/or changes to the contract are not valid unless made in written form. This also applies to the waiver of the requirement for written notifications. Written form must comply with the legal requirements of § 126 of the German Civil Code (BGB).

The purchaser may assign claims against ALNO only with the prior written consent of ALNO. Purchase price claims and other monetary claims are freely transferable.

II. Quotation

Quotations from ALNO are always without obligation.

If an order received by ALNO is not confirmed in writing or fulfilled within three weeks of its receipt, then no contract of sale exists, and the purchaser is no longer bound by the order.

III. Prices

All prices are subject to confirmation. They are understood to be ex works with the relevant value-added tax to be added. This will be invoiced separately.
IV. Dispatch

Dispatch is either by road, rail or post at ALNO’s option.

If dispatch is delayed for a reason attributable to the purchaser or if the agreed shipment date is postponed at the purchaser’s request, the risk of accidental loss or accidental deterioration of the sale item shall pass to the purchaser from the date of advice of readiness for dispatch for the duration of the delay. ALNO is obligated at the request and expense of the purchaser to secure the insurance coverages required by the purchaser.

Unless different terms of dispatch are contractually stipulated, shipping of the goods to the purchaser will be insured by ALNO against damage in transit.

For settlement of transport damages, it is necessary that the purchaser (recipient) arrange for a stock inspection together with an authorized agent of ALNO or the transportation company without delay. The purchaser (recipient) is responsible for investigating the relevant terms of the transportation company.

The shipping risk for return of the purchased item is carried by the purchaser if the return does not occur due to legal or contractual obligations on the part of ALNO.

V. Delivery

The time of delivery is based on the information from ALNO in the order confirmation and begins as soon as a final agreement regarding the content and scope of the order between the purchaser and ALNO is present in written form.

The time of delivery is met:

a. in the case of a delivery date without installation, if the goods have left the factory or warehouse on time. If shipping or pickup is delayed on grounds for which ALNO is not responsible, then the term is considered satisfied if the notification of readiness to ship occurred within the agreed term;

If meeting of the delivery term is not possible due to circumstances not foreseeable by ALNO, such as, for example, natural disasters, war, civil unrest, intervention of authorities, energy shortages or legal labour dispute measures at ALNO or its suppliers, then an appropriate extension of the delivery term enters into force. Should the hindering circumstances last longer than six weeks, then ALNO and the purchaser have the right of withdrawal.

If ALNO is responsible for failure to satisfy the agreed delivery term for reasons other than those cited under (3), then the purchaser has the right to withdraw from the contract after setting an appropriate extension of time of not less than four weeks.

If the purchaser is in default of acceptance or fails in the obligation to cooperate, then ALNO has the right to demand compensation for any additional effort or expenses in the case of fault on the part of the purchaser.

VI. Payment terms

All payments are subject to the payment terms stipulated in writing.+nbsp; Unless otherwise agreed, all payments are due no later than immediately after receipt of the invoice/delivery, cash-based and without discount at any point of payment for ALNO. At the discretion of ALNO, they may also be credited against other unsettled claims.

Cheques and, by prior agreement, bills can be accepted as payment. Discount and collection charges as well as interest are to be reimbursed to ALNO without delay.

The purchaser may only offset claims that are undisputed or legally enforceable. He may only exercise a right of retention on account of claims that are undisputed or judged valid under law and which are based on this contractual relationship.

If the purchaser suspends payments, is over-indebted or files for composition or insolvency proceedings, or if due bills or cheques are not honoured, the whole debt including claims based on bills shall become due immediately. The same applies in the case of a significant worsening of the business conditions of the purchaser. ALNO has the right in these cases to demand pre-payments or sufficient security or to withdraw from the contract if the purchaser is in default of payment and makes no payment despite the setting of a reasonable grace period, combined with a rejection warning.

In the event that the purchaser declines to meet the terms of the purchase contract from the outset and provides neither advance payment nor security, ALNO has the right to demand 20% of the purchase price as flat-rate compensation for damages without proof thereof, unless the purchaser can document that lesser damage has been suffered by ALNO. Payments with the effect of satisfying obligations can be made only directly to ALNO. Representatives, field personnel and drivers are not authorized for collection.

VII. Retention of title

The goods remain the property of ALNO until payment of the basic purchase price as well as all other remaining obligations of the purchaser deriving from the business relationship (extended ownership and current account reservation).

The purchaser is entitled to resell or rent the reserved goods in the course of its ordinary business. It hereby already assigns as security to ALNO all its future claims until discharge of all claims arising from such sale and/or rental without subsequent declarations in this respect being required. ALNO already accepts this assignment. If the conditional goods are sold or rented together with other objects without an individual price having been agreed for the conditional goods, then the purchaser assigns to ALNO with priority over other claims that portion of the total price claim or rent revenue corresponding to the value of the conditional goods invoiced by ALNO. ALNO already accepts this assignment as well. Until revocation the purchaser is authorised to collect the assigned claims arising from resale but is not authorised otherwise to dispose of them, for example by assignment. However, the authorization of the purchaser for collection does not affect the ability of ALNO to collect the outstanding receivables itself. ALNO shall undertake not to collect the debts as long as the purchaser meets his obligations of payment from the revenues received, does not default payment and in particular does not file for bankruptcy or stop payment. However, if this is the case ALNO can demand that the purchaser give ALNO details of the assigned claims and the debtors, provide all information necessary for collection, hand over the relevant documents and notify the customer of assignment. All costs of collection and intervention of third parties will be borne by the purchaser.

Pledging or transfer by way of security of the conditional goods or the assigned claims is not permitted, nor is factoring.

If the purchaser is in breach of contract, especially in default of payment, then ALNO has the right, after setting an appropriate grace period, to demand the return of the goods for which ownership has been reserved. The purchaser is obligated to give possession of the goods to ALNO. For this purpose, the purchaser shall give ALNO or authorized agents thereof access to all business premises during the business hours of the purchaser. The demand of surrender or taking possession of the goods in no way constitutes a withdrawal from the contract. ALNO has the right to use the conditional goods with the due and proper care of a businessman and to credit revenue derived therefrom against the unsatisfied claims. At the same time ALNO continues to have the right to exercise further rights deriving from the reservation of ownership.

The reservation of ownership also remains in force if individual claims to which ALNO is entitled are recorded in a running invoice, the balance determined and accepted by the purchaser.+nbsp; ALNO is entitled to reserve ownership not only for the accepted and abstract final balance, but also for the causal balance.

If the real value of the security exceeds the receivables deriving from the ongoing business relationship and due to ALNO from the purchaser by more than 20%, then ALNO is obliged upon request to release specified securities held up to that extent.

In the event of seizures or other third-party interventions, the purchaser must notify ALNO in writing without delay so that ALNO may file a complaint in accordance with § 771 of the German Civil Code (ZPO). Insofar as the third party is not able to reimburse ALNO for the judicial and extra-judicial costs of an action in accordance with § 771 ZPO, the purchaser is liable to ALNO for the losses incurred.

VIII. Defects, product safety and warranty claims

If the purchaser is under an obligation of ensuring product safety and monitoring (e.g. in accordance with the German law on technical equipment and consumer products), it shall inform ALNO without delay about all proposed measures and " insofar as legally permissible and reasonable" shall agree all necessary measures with ALNO in advance. This applies in particular to the obligation to inform the appropriate authority in accordance with section 5 subsection 2 of the Act; ALNO shall be informed at least at the same time as the corresponding notification. ALNO’s warranty for defects in the goods supplied shall be as follows. Minor deviations are not considered hereunder.
The purchaser’s warranty claims shall become statute-barred two years from passing of risk.

IX. Liability

ALNO shall be liable towards the purchaser for damage arising only in the case of intent or gross negligence on its part. Furthermore ALNO shall be liable up to the amount of the typically foreseeable loss for losses caused by ALNO or its agents in breach of an essential contractual obligation. Essential contractual obligations are all duties protecting the purchaser’s essential legal positions under the contract, which the terms and purpose of the contract are intended to provide; duties serving the proper performance of the contract and on the fulfilment of which the purchase may regularly rely shall likewise be deemed essential duties.

Liability save as provided herein shall be excluded. This shall apply to all compensation claims irrespective of ground in law, including in particular with regard to claims for culpa in contrahendo, claims for breach of other main and secondary obligations or for tort.

The above limitation of liability shall not apply, however, in case of mandatory liability for injury to life, limb or health, in accordance with the provisions of product liability law or if ALNO has warranted the quality of the goods, or the attainment of a result or has assumed a purchase risk.

X. Liability of the purchaser
If a claim is made against ALNO due to non-compliance with provisions of turnover tax law by the purchaser, the purchaser shall reimburse all financial detriment and/or losses thus arising.

XI. Data protection
Due to the establishing of business relations between ALNO and the purchaser and delivery of goods, ALNO will store and process the data necessary for business transactions in electronic form. ALNO shall comply with the relevant legal requirements (the German Data Protection Act).

XII. Place of performance, place of jurisdiction and choice of law

The place of performance is Pfullendorf, Germany.

The place of jurisdiction for all disputes including actions for recovery of possession and summary actions based on cheques and bills of exchange or other disputes arising from this legal relationship shall be the courts competent for Pfullendorf.

German law shall apply excluding the UN Convention on Contracts for the International Sale of Goods.

XIII. Binding nature of the contract
Should individual provisions of this contract prove invalid, then the validity of the remaining provisions as well as of the contract itself remain unaffected.