AGB

(Stand: 01.05.2018)
General Terms and Conditions of Sale and Delivery for use vis-à-vis entrepreneurs

Alzner Automotive GmbH / Grafenau

§ 1 Validitybold, lb(1)
All deliveries, services and offers of Alzner Automotive GmbH (hereinafter: Seller) shall be made exclusively on the basis of these General Terms and Conditions of Delivery. They are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as “Customer” or “Buyer”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) The terms and conditions of business of clients or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of such terms and conditions.

§ 2 Offer and conclusion of contractbold,
All offers of the Seller shall be deemed non-binding unless they are expressly marked as binding or contain a specific acceptance period. Purchase orders or orders by the Buyer shall be considered as a binding offer of contract, which the Seller may accept within 5 working days after receipt.
(2) The minimum order value is € 250. The seller reserves the right to either defer orders below this limit until the minimum order value is reached or to charge a handling fee of up to € 50.
(3) The legal relationship between the Seller and the Buyer shall be governed solely by the written purchase agreement including these GTC. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) must be in writing to be effective. Transmission by fax or e-mail shall be sufficient to comply with the written form requirement. A written contract between the seller and buyer is authoritative.
(4) The Purchaser acknowledges that only the managing director and the employees of the Seller with power of attorney are authorized to make legally binding declarations on behalf of the Seller.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and other
Evidence, in particular in the case of doubts about the legitimacy of the declarant, remains unaffected.
(6) Information provided by the Seller on the subject matter of the delivery or service (e.g. technical data such as weights, dimensions, utility values, load-bearing capacity and tolerances) as well as our own representations of the same (e.g. drawings and illustrations) shall only be approximately authoritative unless usability for the contractually intended purpose requires exact conformity. They are, just like information on the number of pieces or project duration of the delivered parts, no guaranteed quality features, but descriptions of the delivery or service. Deviations customary in the trade and deviations resulting from legal regulations or representing technical optimizations as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(7) The Seller reserves the physical and intellectual property, inventor’s rights and copyrights to all offers and cost estimates submitted by it as well as drawings, representations, calculations, models, tools and other documents and aids made available to the Buyer. The Buyer may not make these items available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties, or reproduce them without the express consent of the Seller. At the request of the Seller, the Buyer must return these items in full to the Seller and destroy any copies that may have been made if they are no longer required by the Seller in the ordinary course of business or if negotiations do not result in an order. The know-how developed through cooperation with the customer is also understood to be the intellectual property of the seller.

§ 3 Prices and Terms of Paymentbold
,The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EURO ex works plus VAT. the statutory value added tax, in case of export deliveries customs duty as well as fees and other public charges.
(2) Unless otherwise agreed in the offer, the standard packaging of the delivered goods is already included in the purchase price. Special packaging determined according to special requests of the Buyer shall be agreed separately and shall be added to the purchase price unless otherwise agreed.
(3) Invoices for deliveries are payable as follows:
– Tool costs: 10 days after invoice date without deduction
– Series parts: 30 days after invoice date without deduction
The date of receipt by the seller is decisive for the date of payment. Checks are not considered payment until they have been cashed. If the Customer fails to make payment when due, the outstanding amounts shall bear interest from the due date at a rate of 5% p.a.; the right to claim higher interest and further damages in the event of default shall remain unaffected. Payments shall be made free of postage and expenses.
(5) Payments shall always be used to settle the oldest due debt items and here in the order of dunning and legal costs, interest on arrears and lastly the main claim.
(6) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been legally established.
(7) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized. Translated with www.DeepL.com/Translator (free version) Such circumstances shall include, in particular, default of the Buyer with respect to due payment obligations towards the Seller.

§ 4 Place of performance, shipment, packagingbold,
Unless otherwise agreed, deliveries shall be made ex Seller’s works. The place of performance for all obligations arising from the contractual relationship is Grafenau, unless otherwise specified.
(2) The Seller shall be entitled to make partial deliveries if- the partial delivery is usable for the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear these costs).
(3) In the case of goods that are manufactured separately according to the customer’s specifications (so-called custom-made products), the ordered quantities may be exceeded or fallen short of by up to 10 % for production-related reasons.
(4) In the case of goods that have been registered for collection and are not picked up on this date by the buyer’s the buyer on this date, we reserve the right to charge the buyer for any expenses resulting resulting from the blocking of storage space and administrative expenses.

§ 5 Delivery period and delay in delivery,
The special delivery period to be agreed upon shall commence upon conclusion of the contract, but not before the complete provision of the documents, approvals, releases to be procured by the Customer and not before receipt of any agreed down payment. The start of an agreed delivery period requires the agreement of all technical issues between the contracting parties. Precisely adhered to delivery dates presuppose sufficient deadlines and quantities in the planning of the contractual partners that are feasible for the seller. Corresponding written objection of the seller to delivery quantities and delivery times cancels the delivery obligation and requires both parties to agree on a safe arrangement.
(2) Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or a fixed date has been expressly agreed.
Appointment is committed or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Customer – demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards the Seller.
(4) The delivery deadline shall be deemed to have been met if, by the time it expires, the delivery item has left the Seller’s works or the Seller has notified the Buyer that it is ready for dispatch.
(5) Insofar as circumstances of force majeure for which the Seller is not responsible impede, delay or render impossible the execution of accepted deliveries (non-availability of performance), the Seller shall inform the Buyer thereof without undue delay and at the same time notify the Buyer of the expected new delivery period. Furthermore, the Seller shall be entitled to postpone the delivery or remaining delivery or partial delivery by the duration of the impediment or to withdraw from the contract in whole or in part. The seller is not responsible for e.g. failures caused by natural forces of any kind, official interventions, operational disruptions, strike, lockout, work disruptions caused by political or economic conditions, war and mobilization, general lack of necessary raw or operating materials.
A case of non-availability of the performance in this sense shall also be deemed to be a case of non-timely self-delivery to the Seller by suppliers if the Seller has concluded a congruent covering transaction, neither it nor its supplier is at fault or the Seller is not obliged to procure in the individual case.
(6) If the Seller is in default of delivery, the Buyer must first set a reasonable grace period for delivery and wait for its fruitless expiration before asserting further rights.
(7) If the Seller is in default with a delivery or service or if a delivery or service becomes unrealizable for him, regardless of the reason, the Seller’s liability for damages shall be limited in accordance with § 10 of these General Terms and Conditions of Delivery.

§ 6 Transfer of Risk, Acceptance and Default of Acceptance
The risk shall pass to the Customer at the latest upon handover of the delivery item to the forwarding agent, carrier or other third party designated for shipment (whereby the start of the loading process shall be decisive). If the shipment or handover is delayed as a result of a circumstance the cause of which lies with the Buyer, the risk shall pass to the Buyer from the day on which the Seller is ready to ship and has communicated this to the Buyer.
(2) Goods that are reported ready for shipment on an agreed date must be called off without delay; otherwise the Seller shall be entitled to call them off at the cost of
and risk of the purchaser and to be invoiced as delivered. In case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per full expired calendar week. We reserve the right to claim and prove further or lower storage costs.
(3) Delivered items shall be accepted by the Buyer without prejudice to any liability of the Seller for defects, even if they show minor defects.
(4) Deliveries placed on call shall be accepted within two months after order confirmation.

§
7 Retention of title,The retention of title agreed below serves to secure all respectively existing current and future claims of the Seller against the Buyer arising from the supply relationships existing between the contracting parties.
(2) The goods delivered by the Seller to the Buyer shall remain the property of the Seller until full payment of all secured claims. The goods, as well as the goods covered by the retention of title taking their place according to this clause, shall hereinafter be referred to as goods subject to retention of title.
(3) The Buyer shall store the reserved goods for the Seller free of charge.
(4) The Buyer shall be entitled to process and sell the reserved goods in the ordinary course of business until the case of realization (paragraph 8) occurs. Pledges and transfers of ownership by way of security are not permitted.
(5) In the event of resale of the reserved goods, the Buyer hereby assigns to the Seller by way of security the claim against the purchaser arising therefrom. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller in its own name for the Seller’s account. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller in its own name for the Seller’s account.
(6) If third parties access the goods subject to retention of title, in particular by way of seizure, the Buyer shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for this.
(7) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them upon request at its discretion to the extent that their value exceeds the amount of the secured claims by more than 10%.
(8) If the Seller withdraws from the contract in the event of a breach of contract on the part of the Buyer – in particular default of payment – the Seller shall be entitled to demand the return of the reserved goods.

§ 8 Inspection Duties and Obligations of the Buyer in the Event of Defects,
The Buyer shall carefully inspect the delivered items immediately after delivery to him or to the third party designated by him. In case of defects, he must inform the seller immediately. The delivered items shall be deemed to be approved if the Seller has not received a notice of defect with regard to obvious defects or other defects that were recognizable during an immediate, careful inspection within two working days after delivery of the delivery item, or – if the defect was not recognizable during the inspection – within two working days after the discovery of the defect or the point in time at which the defect was recognizable for the Customer during normal use of the delivery item without closer inspection, in the form specified in § 2 paragraph 4 sentence 1.
(2) The aforementioned obligations to inspect the goods and to give notice of defects shall only cease to apply in the event of an express written agreement between the Seller and the Buyer. Even in these cases, however, the purchaser is obliged to inspect the condition of the goods for visible defects within the course of his business before assembling the goods with other components or passing them on to third parties.
(3) At the request of the Seller and at the Seller’s option, the delivery item subject to complaint shall be
(a) to be made available either for on-site pickup or post-processing or post-processing by third parties
b) or to be returned freight prepaid to the seller. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route. This shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

§ 9 Claims for Defects,
The Buyer is aware that the Seller, as a supplier of metal parts, does not manufacture products designed by itself, but products according to customer drawings and specifications. Therefore, the Seller shall not be responsible for the design and accordingly shall not assume any liability for the function of the subject matter of the contract. It only guarantees the delivery of a product according to the customer’s drawing (or checked and approved proposal drawing) and the material used.
The sole purpose of the Seller’s verbal and written advice on manufacturing technology is to explain to the Customer the most cost-effective use of the manufactured products. It does not release the purchaser from his obligation to satisfy himself by his own examination that the products are suitable for the purpose intended by him.
(2) If a separate ppm agreement has been concluded between the contractor and the client
(parts per million), those provisions shall apply in addition to these General Terms and Conditions of Sale and Delivery and shall prevail over them in case of doubt.
(3) In the event of material defects of the delivered items, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. If the repair and/or replacement fails in a total of two cases, the Buyer shall be entitled to demand, at its option, the rescission of the contract or a reduction of the remuneration.
(4) If a defect is due to the fault of the Seller, the Customer may claim damages under the conditions specified in § 10.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against the Seller shall only exist in the event of such defects under the other conditions and in accordance with these General Terms and Conditions of Sale and Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the Buyer’s relevant defect claims against the Seller shall be suspended.
(6) The liability for defects shall not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of the Seller and the rectification of defects becomes impossible or unreasonably difficult as a result. In any case, the Buyer shall bear the additional costs of remedying the defect resulting from the modification.

§ 10 Liability for damages due to fault
The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 10, insofar as fault is relevant in each case.
(2) The Seller shall not be liable in case of simple negligence of its executive bodies, legal representatives, employees or other vicarious agents or in case of simple and gross negligence of its non-executive employees or other vicarious agents. This shall not apply in the event of a breach of material contractual obligations (obligations the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the contractual partner regularly relies and may rely). Material contractual obligations are, for example, the obligation to deliver and install in a timely manner and free of defects, as well as advisory, protective and custodial obligations which are intended to enable the Buyer to use the delivery item in accordance with the contract or which are intended to protect the life or limb of the Buyer’s personnel, third parties or the Buyer’s property from significant damage. Translated with www.DeepL.com/Translator (free version)
(3) Insofar as the Seller is liable on the merits for damages in accordance with § 10 (2), this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen taking into account the circumstances of which it was aware or which it should have been aware if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
(4) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Seller.
(5) Insofar as the Seller 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 the Seller, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 10 shall not apply to the Seller’s liability for intentional or grossly negligent conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 11 Duty to avert and mitigate damages, contributory negligence
(1) In all phases of the execution of the contract, the Purchaser shall be obliged, when asserting claims for material defects or other performance disruptions such as delay, etc., the cause of which it considers to be within the Seller’s scope of performance, to endeavor to minimize the costs incurred for the rectification and other handling of the performance disruption.
(2) If fault on the part of the Purchaser has contributed to the occurrence of damage, the obligation to compensate as well as the extent of the compensation to be paid shall depend on the circumstances, in particular on the extent to which the damage was predominantly caused by one or the other party. This shall also apply if the fault of the Buyer is limited to the fact that he failed to draw the Seller’s attention to the risk of unusually high damage, which the Seller neither knew nor should have known, or that he failed to avert or reduce the damage.
(3) The liability provisions of § 10 of these General Terms and Conditions of Sale and Delivery shall remain unaffected. Reference is made to the provision of § 254 BGB.

§ 12 Limitation
Notwithstanding § 438 para. 1 Nr.3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para.1 Nr.2 BGB). Other special statutory provisions on the statute of limitations (esp. § 438 Abs.1 Nr.1, Abs. 3, §§ 444, 479 BGB).
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the purchaser according to. § 10 Abs. (6) shall, however, become time-barred exclusively in accordance with the statutory limitation periods.

§ 13 Final Provisions
If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Seller’s place of business in Grafenau. However, the Seller shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these Terms and Conditions of Sale and Delivery or a prior individual agreement or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.
(2) The relations between the Seller and the Buyer shall be governed exclusively by 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) shall not apply.
(3) Should individual provisions of these General Terms and Conditions of Sale and Delivery be or become invalid or inapplicable in whole or in part, or should there be a gap in the General Terms and Conditions of Sale and Delivery, the validity of the remaining provisions shall not be affected thereby. If a provision of these General Terms and Conditions of Sale and Delivery proves to be invalid or if a loophole arises, the Seller and the Buyer shall be obliged to enter into contractual negotiations with the aim of replacing the invalid provision or the loophole by a legally valid provision that comes as close as possible in economic terms to what the parties intended or would have intended according to the meaning and purpose of these General Terms and Conditions of Sale and Delivery if they had considered the point.
(4) The Buyer acknowledges that the Seller collects, processes and uses data from the contractual relationship for the purpose of data processing in accordance with the Federal Data Protection Act and reserves the right to transmit the data to third parties (e.g. insurance companies) to the extent necessary for the performance of the contract. The Seller undertakes to delete this data immediately if it is no longer required for the proper performance of the contract.