We confirm your order subject to the exclusive application of our general terms and conditions of sale as following.
§ 1 Scope and Exklusive Validity of these Terms and Conditions
(1) These terms and conditions set forth below shall govern all deliveries and services rendered by Alna-Holding AG (we/us) and the customer exclusively. They shall also apply exclusively, without a separate agreement to this effect being necessary, to all future transactions with the customer and shall also apply if we perform delivery despite our knowledge of differing or contrary terms. Differing or contrary terms of the customer shall not apply except if expressly agreed upon in writing.
(2) Alna-Holding AG only indents with merchandts within the meaning of sec. 314 BGB (German Civil Code), governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code). These terms and conditions of sale shall only apply vis á vis merchants and corporations in the above mentioned meaning. The customer garanties that he is part of the above mentioned definition.
§ 2 Offer/ Acceptance/Place of Performance
(1) Any offers submitted by Alna-Holding AG shall be non-binding.
(2) Orders submitted by the customer are binding. The contract is concluded once Alna-Holding AG has submitted an order confirmation to customer in the form of sec. 126 b BGB (letter, fax or e-mail). Insofar as the order constitutes an offer by the customer within the meaning of sec. 145 BGB we are entitled to accept the offer within two weeks after we received the order. If the customer waives to receive a written confirmation, the contract is binding with the order confirmation by phone. First orders with new customers get an written order confirmation.
(3) The place of Performance shall be from headquarters of Alna-Holding AG based in Hamburg. If the customer orders shipment of products the shipment will be ex warehouse.
§ 3 Prices/ Payment
(1) Prices are ex warehouse Euro (German currency), exclusive of the respective statutory VAT and exclusive of costs for packaging and shipping, except as otherwise expressly agreed upon. The stipulated prices are the prices from the latest price list of Alna-Holding AG.
(2) Prices of products which are not on the latest price list of Alna-Holding AG are not fixed because of price fluctuations. If the increase in market prices after conclusion is unsuitable for Alna-Holding AG the price for the customer can be changed at the appropriate rate. The customer can withdraw from the contract, if the increased price is more than 5 percent higher than the agreed price.
(3) The payment price is due and payable net within 30 days from the date of the invoice. From the due date interest in the amount of 8% above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
§ 4 Exclusion of Offset/ Retainer
The customer shall be entitled to offset only insofar as the customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The customer is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
§ 5 Delivery/ Performance/ Part Delivery/
(1) Representations as to deadlines for delivery of products or services are approximate only, unless we have given an express binding commitment in writing or the form of sec. 126 b BGB. Deadlines for deliveries and services shall begin to run when the order confirmation is given but not before all technical issues and essential details relating to the order have been resolved. Delivery dates shall be deemed to have been met, if on or before this date the products or the deliverables of the services have left our warehouse or are ready for dispatch and the customer has been notified accordingly.
(2) Delivery is conditioned upon timely and proper performance of all duties of the customer, including the fulfillment of the duties of cooperation. Defences based on non-performance of the contract are reserved.
(3) In case of default in acceptance or other breach of duties to cooperate by the customer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default or breach of duty to cooperate.
(4) As far as it is deemed acceptable to the customer we are authorized to part deliveries. Every part delivery can be invoiced directly. In case of part deliveries Alna-Holding AG cost of shipment and packing are only invoiced once.
(5) The customer is liable for all im- and export licenses which are required by law.
§ 6 Shipment/ Passing of Risk,
(1) Title and risk of loss or damage to the products and/or deliverables services, as well as the obligation to bear any costs relating thereto, shall pass to the customer upon notification that the merchandise is ready for shipment or if the carrier has picked up the goods.
(2) If the customer demands by way of derogation from § 3 (2) shipment of the products it shall be at the customer´s risk of loss or damage and expense upon dispatch or pick up by carrier, unless otherwise agreed by written agreement.
§ 7 Reservation of Property Rights
(1) We retain title to the goods and all material until receipt of complete payments due under all agreements between us and the customer. In case of breach of contract by the customer including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The customer shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the customer shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the customers request.
§ 8 Incoming Goods Control /Limited Warranty
The following limitations of liability are subject to the restrictions in § 9. Mandatory liability shall not be limited.
(1) Precondition for any warranty claim of the customer is his full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). The customer is obliged to inspect incoming goods, especially the chemical constitution. The Limitation period starts with goods receipt.
(2) For the notification of unobvious defects the parties stipulate a Limitation periode of one year.
(3) In case of non-conformity of the products we are entitled to alternative performance in the form of remedy of the defect or delivery of conforming goods. If such alternative performance has failed or is refused because it would be unacceptable for us, the customer is entitled to reduce the price or to withdraw from the contract. This claim to withdraw is limited to the defective products and should not entitle him to reject the remainder of the contractual quantity unless customer can prove that it would be unreasonable for customer to accept only a part of the products under these circumstances.
(4) The warranty period for any defect is 12 months of the passage of risk, starting at awareness of all circumstances of all facts necessary for the claim.
(5) The limited waranty in section (2, 3) and (3) apply only under the liability of the stipulation of sec. § 9 of these terms.
§ 9 Liability
(1) In case of intent, fraud or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.
§ 10 Applicable law, Language, Jurisdiction
(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
(2) This agreement is in the German language, which language will controll in all aspects. The translation given by Alna- Medicalsystem GmbH will not given any force or effect to interpret this agreement. The customer admits that it is his liability to get legal and translation advice by competent specialists if he does not speak German fluently.
(3) Exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg.