General Terms and Conditions, and Terms of Delivery (GTC)

I. Scope
These terms and conditions shall apply to any and all deliveries or services performed by AlexanderSolia GmbH:

1.1 to persons acting in their capacity as business operators or self-employed persons (entrepreneurs) while executing the contract; or

1.2 to legal entities or public trusts.

I. General

1. Any and all deliveries or services performed by AlexanderSolia GmbH shall be subject to and governed by these Terms and Conditions as well as any applicable separate agreements. Deviating Terms and Conditions of the Purchaser, if any, will not be part of the Contract even though the respective purchase order is accepted. Unless otherwise separately agreed, the Contract will be formed through the written confirmation of the purchase order by AlexanderSolia GmbH only. Collateral agreements or amendments to the Contract will be effective subject to the written confirmation by AlexanderSolia GmbH only.

2. AlexanderSolia GmbH reserves any and all property rights or copyrights in samples, cost estimates, drawings or similar material or non-material information, including those provided on electronic media, which must not be disclosed to third parties. AlexanderSolia GmbH undertakes to keep confidential and to disclose to third parties any information rated as confidential by the Purchaser subject to the latter’s consent only.

II. Prices and payment

1. Failing agreement to the contrary, quoted prices shall be for delivery ex works, including loading at the place of shipment, but excluding packaging or unloading. Quoted prices are net, viz. plus statutory VAT at the respective rate.

2. Failing separate agreement, payment shall be made without deduction onto the account of AlexanderSolia GmbH as follows: one third (1/3) upon receipt of the confirmation of purchase order, and one third (1/3) upon notification to the Purchaser that the major components are ready for shipment, and the balance within one (1) month from the passing of risk.

3. The Purchaser shall have a right to withhold payment or to set off counter claims to the extent said counter claims are uncontested or effective only.

4. In principle, cancellations are only permitted for standard unmodified machines in the price list and then only without charge for a period of 8 days, after which a charge of 20 % of the order value is applied. Cancellations of customized versions or special applications are in principle not permitted, however cancellations are permitted prior to commencement of the manufacturing process on payment of an administration charge and thereafter a charge of up to 100 % of the order value is applied.

5. In the case of partial deliveries, the term of payment commences with the delivery of the sub-delivery. Should the buyer be in arrears with the payment of a prior delivery or a partial delivery then we are entitled to withhold deliveries or partial deliveries or withdraw from the contract after the ineffective expiry of a period of grace for payment without being liable for any damages that may occur.

 

III. Period of delivery, delay

1. The period of delivery shall be mutually agreed between the Parties. Compliance with delivery dates or periods by AlexanderSolia GmbH will be subject to the proviso that all commercial or technical issues have been clarified between the Parties and that the Purchaser meets all of its obligations as there may be release of documents, provision of officially required certificates or permits, or making of downpayments, non-performance of said obligations will result in respective delays of delivery dates. This will not apply to any delays for which AlexanderSolia GmbH is to be held responsible.

2. Compliance with delivery dates shall be subject to due and timely self-supply.

3. The period of delivery shall be considered to be kept if the delivery item has been shipped f rom AlexanderSolia GmbH or if readiness for shipment has been notified before the expiration of said period. If the delivery item is subject to acceptance inspection, the date scheduled for acceptance inspection, or the date of the notification of readiness for acceptance inspection shall prevail.

4. If the shipment or acceptance inspection of the delivery item is delayed for reasons for which the Purchaser is to be held responsible any costs incurred through such delay will be charged onto the Purchaser beginning one (1) month from notification of readiness for shipment or for acceptance inspection respectively.

5. If non-compliance with delivery dates is caused by events of Force Majeure or industrial action or other such events outside the reasonable control of AlexanderSolia GmbH then and in such event the period of delivery shall be extended accordingly. AlexanderSolia GmbH will notify the Purchaser of the commencement or lapse of such circumstances as soon as reasonably possible.

6. The Purchaser may terminate the Contract without notification if AlexanderSolia GmbH is finally prevented from performing all of its services before the passing of risk. Moreover, the Purchaser may rescind from the Contract if performance or delivery is partially prevented and if the Purchaser reasonably demonstrates that partial performance or delivery is of no use to it. If this is not so, the Purchaser shall pay the pro-rata price due for said partial performance or delivery. The same shall apply in the event of incapacity of AlexanderSolia GmbH. Incidentally, Section VII.2 shall apply. If performance or delivery is prevented during delay in acceptance inspections, and if the Purchaser is solely or mainly responsible for such circumstances, the Purchaser shall be obliged to pay in return.

7. If AlexanderSolia GmbH is in default and if such default causes loss or damage to the Purchaser the latter shall be entitled to claim compensation at a lump sum rate. Said compensation shall amount to point five percent (0.5 %) for each full week of delay, but no more than five percent (5 %) of the contract price for that part of the delivery that is not supplied and delivered on time, or that cannot be used as agreed. If the Purchaser, in the event of default, grants AlexanderSolia GmbH a certain extension of time, with due consideration of statutory exceptions, and if such granted extension is not complied with, then and in such event the Purchaser shall be entitled to rescind from the Contract as provided for by law. Further claims arising from delay in delivery are exclusively governed by Section VII.2 hereof.

IV. Passing of risk, acceptance

1. The passing of risk onto the Purchaser shall occur upon shipment of the delivery item from the workshop, also in the event of partial shipments or if AlexanderSolia GmbH is to perform other services such as shipping costs, or supply and delivery to or installation on the job-site. If an acceptance inspection is to be performed the latter shall prevail for the passing of risk. It shall be performed at the date scheduled for acceptance without delay, or alternatively upon notification of readiness for acceptance inspection by AlexanderSolia GmbH. The Purchaser shall not refuse to grant acceptance unless the delivery item shows material defects.

2. If shipment or acceptance are delayed or prevented due to circumstances for which AlexanderSolia GmbH is not responsible, the passing of risk upon the Purchaser shall occur upon the notification of readiness for shipment or acceptance inspection. AlexanderSolia GmbH undertakes to take out any insurance required by the Purchaser at the Purchaser’s expense.

3. Partial shipments shall be allowed to the extent appropriate for the Purchaser.

V. Reservation of title

1. AlexanderSolia GmbH will reserve the title in the delivery item until receipt of all payments in full pursuant to the Contract.

2. The Purchaser shall neither sell nor hypothecate or pledge as security the delivery item. The Purchaser shall notify AlexanderSolia GmbH without delay in the event of hypothecation or confiscation.

3. In the event of violation of the Contract on the part of the Purchaser, specifically in the event of default in payment, AlexanderSolia GmbH shall be entitled to withdraw the delivery item after having issued reminders for payment, and the Purchaser shall be obliged to surrender the delivery item. Reservation of title or hypothecation of the delivery item by AlexanderSolia GmbH shall not be deemed rescission from the Contract.

4. Filing of an application to institute bankruptcy proceedings shall entitle AlexanderSolia GmbH to rescind from the Contract, and to request immediate surrender of the delivery item.

VI.    Warranty

AlexanderSolia GmbH will grant a two-year warranty relating to material deficiencies or defects in title, precluding any further claims – subject to provisions stipulated in Section VII – as follows:

Material deficiencies
1. Any components found defective for reasons attributable to periods before the passing of risk shall, at the choice of AlexanderSolia GmbH, be repaired or replaced at no cost. Detection of said defects shall be reported to AlexanderSolia GmbH in writing without delay. Replaced components shall become the property of AlexanderSolia GmbH.

2. The Purchaser shall provide adequate access in terms of place and time for AlexanderSolia GmbH to perform any and all repairs or re-deliveries as required expedient and necessary by AlexanderSolia GmbH, failing this AlexanderSolia GmbH shall be exempted from its liability. The Purchaser may repair or remedy the defect by itself or through third parties, and charge any costs so incurred upon AlexanderSolia GmbH in urgent events of impaired machine safety or reliability, or avert other such major damage only whereby AlexanderSolia GmbH shall be notified accordingly without delay.

3. For any complaint considered justified, AlexanderSolia GmbH will bear the costs incurred for repair or replacement in terms of the replacement part –including freight, dismantling and re-installation costs as well as the labor costs for the provision of fitters or helpers if so reasonably requested in exceptional cases.

4. The Purchaser shall be entitled to rescind from the Contract as provided for by law, and with due consideration of any exceptions provided for by law, if AlexanderSolia GmbH does not repair or remedy a defect within a reasonable period of time allowed for such purpose. The Purchaser’s sole remedy for minor defects, however, shall be a reduction of the contract price. No other reasons for reducing the contract price will be accepted.

5. No liability will be accepted in the following events, specifically: improper use, defective installation or start-up through the Purchaser or third parties, natural wear and tear, improper or negligent treatment, improper maintenance, improper supplies, defective construction work, improper subsoil, chemical, electro-chemical or electrical impact, unless caused by AlexanderSolia GmbH.
6. If the Purchaser or any third party perform improper repairs AlexanderSolia GmbH shall not be held responsible for any consequences arising from such defective repair. The same shall apply to any modifications made on the delivery item without the prior consent of AlexanderSolia GmbH.

Deficiencies in title

7. If any use of the delivery item results in violation of industrial proprietary rights or copyrights at home, AlexanderSolia GmbH will, at its own cost, procure for the Purchaser the right of continued use, or modify the delivery item in a manner acceptable to the Purchaser and such that there will be no violation of any proprietary rights or copyrights. If this is not feasible at reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to rescind from the Contract. In such a situation, AlexanderSolia GmbH may also rescind from the Contract. Moreover, AlexanderSolia GmbH will release the Purchaser from any undisputed or validly ascertained claims lodged by the holder of the respective proprietary rights.

8. The obligations of AlexanderSolia GmbH mentioned in Section VI.7 shall be final subject to an occurrence of proprietary or copyright violation. They shall only apply if:

•  the Purchaser notifies AlexanderSolia GmbH of any claimed proprietary or copyright violations without delay;

•  the Purchaser provides adequate assistance to AlexanderSolia GmbH in the defense of any claims, or allows AlexanderSolia GmbH to implement the respective modification pursuant to Section VI. 7;

• any and all activities of defense remain with AlexanderSolia GmbH, including any out-of-court settlement;

• the respective deficiency in title is not caused by any instruction issued by the Purchaser; and

• the respective infringement has not been caused by the Purchaser having modified the delivery item without obtaining prior consent, or in any non-conforming way.

VII.   Liability

1.       If the delivery item cannot be used by the Purchaser as per agreement because of negligence on the part of AlexanderSolia GmbH arising from omitted or defective implementation of any proposal or arrangements issued or agreed before or after execution of the Contract or because of violation of other such accessory obligations, specifically in terms of instructions for the operation or maintenance of the delivery item, then and in such event the provisions of Sections VI and VII.2 shall apply accordingly and to the exclusion of any further claims by the Purchaser.

2. For damage not caused on the delivery item as such, AlexanderSolia GmbH, for whatever legal reasons, shall accept liability solely for the following reasons:

2.1 intention;

2.2 gross negligence on the part of the Owner / its managing bodies or executives;

2.3 negligent injury of life, health, or bodily injury;

2.4 any defects that have been fraudulently concealed by AlexanderSolia GmbH or the non-occurrence of which the latter has promised; or

2.5 defects of the delivery item insofar as liability is granted for damage to property or bodily injury of privately used objects pursuant to product liability legislation. In the event of negligent violation of material contractual obligations, AlexanderSolia GmbH shall also accept liability for gross negligence of other employees besides executive staff, or for minor negligence, in the latter case limited to typical, reasonably speculative damage. Further claims shall be precluded.

VIII.  Limitation

Any and all claims of the Purchaser, for whatever legal reasons, shall expire by limitation twelve (12) months from the passing of risk. Customary periods of limitation shall apply to events of intentional or fraudulent action, or for claims under product liability legislation. This shall also apply to defects of a building or for delivery items typically used for a building and that have caused the defect in such building.

IX.    Use of software

Where software items are included in the delivery, the Purchaser will be granted a non-exclusive right to use such software items, including any related documentation. Said items are transferred for use on the delivery item they are intended for. Said software shall not be used on more than one (1) system. The Purchaser shall be authorized to copy, revise or convert said software from object code to source code as provided for by law (Sections 69 and following of the German Copyright Statute) only. The Purchaser undertakes not to remove or edit the manufacturer’s details, specifically any copyright notices, without the express prior consent of AlexanderSolia GmbH. Any and all other rights in said software and in related documentation, including any copies thereof, shall remain with AlexanderSolia GmbH or with the software supplier. Granting of sublicenses shall not be authorized.

X.     Applicable law, place of jurisdiction

Any and all legal relationships between AlexanderSolia GmbH and the Purchaser shall be exclusively subject to prevailing German law as applicable among national partners. The place of jurisdiction shall be the Amtsgericht (local court) of Remscheid/Germany or the Landgericht Wuppertal (Wuppertal/Germany regional court). However, AlexanderSolia GmbH shall be authorized to institute legal proceedings at the Purchaser’s principal place of business.

XI. Changes of terms and conditions of delivery

Any deviations from current terms and conditions of delivery shall be subject to written confirmation and approval by AlexanderSolia GmbH.

Please find our general terms and conditions (pdf file) here.

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