§ 1 Scope of the terms
These terms and conditions of sale and delivery of Allfa – Maschinenhandel, Friedhelm Th. Allkemper e. K., hereinafter called Allfa – Maschinenhandel shall apply, unless otherwise stated in writing to all transactions carried out between Allfa – Maschinenhandel and the customers, in particular to offers, purchase agreements, contracts, sales orders, order confirmations and delivery. They shall likewise apply to all future business relations, even if they are not again expressly agreed.
Our terms apply exclusively: conflicting terms and conditions of our contractors or third parties shall only be valid if we expressly agree in writing to their validity. If our contracting partner does not agree with the procedure, he shall immediately indicate it to us in writing. For such a case, we reserve the right to withdraw our offer without lodging claims of any kind against us. Hereby, we disagree explicit to the standard notice to own general terms and conditions.
§ 2 Conclusion of the contract
The offers of Allfa – Maschinenhandel company shall at all times be subject to change, subject to prior sale, errors and omissions excepted unless they are expressly designated as a binding text offer. An agreement between Allfa - Maschinenhandel and the client shall only effect upon receipt of Allfa - Maschinenhandel written order confirmation.
§ 3 Sale and delivery
1) The objects shall in principle be sold at the location of the machine. (EXW).
2) In case of arrangement of other trade terms the Incoterms shall apply in their respective valid version.
§ 4 Prices
The deliveries shall take place according to the respective valid prices of Allfa – Maschinenhandel. All prices shall be compulsory ex works or ex location of the machine. They shall in principle be presented in Euro, plus costs regarding transport, insurance, installation and instruction, as well as sales tax in its respective amount in the case of domestic transactions.
§ 5 Payment
Payments shall be made without any deduction free payment point of Allfa – Maschinenhandel before the delivery of the machine according to the information on the invoice.
§ 6 Transfer of risk
The risk shall be transferred to the customer after full settlement of the purchase price at the location of the machine.
§ 7 Warranty
Whatever the case might be, Allfa – Maschinenhandel in principle shall not accept a warranty. The sale, as concerning the used machine – bought as seen – and/or – as they are – shall occur without any warranty.
§ 8 Warranty claims – Period of limitation
1) Warranty claims concerning the used machine or other used items shall in substance be excluded.
2) If, exceptionally, the warranty claim is agreed upon and the delivery item is defective, the customer has the following rights:
a) Allfa - Maschinenhandel shall commit to subsequent fulfillment and perform these according to their own choice in the form of defect rectification or delivery of a defect-free item. Replaced parts become the property of Allfa – Maschinenhandel.
b) If the subsequent fulfillment fails, the customer is entitled to withdraw from the contract or to reduce the purchase price. The withdrawal is excluded if the breach of duty of Allfa – Maschinenhandel is only insignificant.
c) ZIn order to carry out all repairs and replacement, which seem necessary, the customer shall give Allfa – Maschinenhandel the necessary time and opportunity. Otherwise, Allfa – Maschinenhandel shall be released from liability of the consequences arising therefrom. The client shall bear due to operational causes for Allfa – Maschinenhandel any additional costs incurred (e.g. overtime premiums, extended journeys, etc.) for the express deployment of a technician or work performed outside of normal working hours at the specific request of the customer.
d) Period of limitation for the warranty claims amounts three months from the date of the conclusion of the contract. The customer shall inform Allfa – Maschinenhandel immediately in writing of any defects by registered mail with delivery confirmation within 5 calendar days.
§ 9 Liability and compensation for damages
1) In case of personal injuiry to life, body or health caused by an intentional or negligent breach of duty of Allfa – Maschinenhandel or one of its legal representatives or vicarious agents, Allfa – Maschinenhandel shall be liable in accordance with the legal provisions.
2) For other damages the following shall apply:
a) For damages arising from the intentional or grossly negligent breach of duty on the part of Allfa – Maschinenhandel or one of its legal representatives or vicarious agents, Allfa – Maschinenhandel shall be liable in accordance with the legal provisions.
b) For damages arising from the breach of important contractual obligations as a result of simple negligence by Allfa – Maschinenhandel, one of its legal representatives or vicarious agents, Allfa – Maschinenhandel's liability shall be limited to the foreseeable looses that are typical of the contract, up to a maximum value of 2.000,00 Euro.
c) Claims for damages arising from the breach of accessory obligations or from the breach of non-essential requirements for simple negligence shall not be accepted.
d) Claims for compensation arising from the delay concerning single negligence shall not be accepted; the client's legal rights at the end of a reasonable period of grace remain unaffected.
3) The exclusions and limitations of liability shall not apply insofar as Allfa – Maschinenhandel has concealed a defect in a deceitful manner or has provided a warranty for the quality of the goods.
4) The customer's claim for the reimbursement of costs instead of the claim for compensation instead of payment shall remain unaffected.
§ 10 Liability for indirect damages
Allfa – Maschinenhandel shall not be liable for indirect damages resulting from a defective delivery, e.g. production stoppage, loss of profits or extra consumption of materials, except in cases of wilful intent or gross negligence.
§ 11 Rescission of the contract
1) If the purchase contract is cancelled (e.g because of the withdrawal of one of the contracting parties), regardless of any other development in accordance with the following clauses, the customer is obliged to return the supplied goods to Allfa – Maschinenhandel in anticipation at his own cost and risk and transport it to the place named by Allfa – Maschinenhandel.
2) Furthermore, Allfa – Maschinenhandel may demand a reasonable remuneration from the customer for deterioration, destruction, or an inability to return the item delivered for another reason that has occurred within the customer's area of risk or responsibility.
3) In addition, Allfa – Maschinenhandel may demand remuneration for the use of the goods delivered if the value of the goods delivered has decreased between the completion of the installation and its direct repossession in full by Allfa – Maschinenhandel. This reduction in value is to be calculated from the difference between the total purchase price in accordance with the contract and the current value as ascertained through the proceeds of resale or, if no resale is possible, through assessment by a certified expert.
§ 12 Assignment
Assignment of the customer's rights arising from the contract is not permitted without the written consent of Allfa – Maschinenhandel.
§ 13 Export control requirements
The delivery items as well as software may be subject to the export control requirements of the Federal Republic of Germany, The European Union, the United States of America, or other countries. The customer is responsible for observing the legal requirements if the delivery item is subsequently exported abroad.
§ 14 Brokering transactions
1) Amount of the agent's commission
The commercial agent's commission for the mediation regarding the sale contract for the mediation object shall remain unchanged in its amount, also when the parties seller/ buyer agree upon different than the initial purchase price requested by the seller for the object of the brokerage agreement.
2) Maturity of the agent's commission
Since the mediation agreement shall concern the mediation regarding the sale contract as a separate legal act and shall not be dependent upon a previous performance (delivery of the mediation's object by the seller to the buyer or the payment of the purchase price by the buyer to the seller), the commission for mediating the purchase agreement for the mediation object shall be due immediately after signing the sale contract between the seller and buyer.
3) Obligation on the part of the intermediary
The service to be performed by the intermediary shall consist exclusively of the mediation regarding the sale contract for the mediation object. The intermediary in principle shall not warrant that the sale contract for the mediation object actually occurs. The intermediary is not required to perform other services of any kind that go beyond the mediation regarding the sale contract for the mediation object.
§ 15 Court of jurisdiction and applicable law
1) For contracts with wholesalers or with legal entities under public law and separate property under public law, Oberhausen/Germany is agreed as the exclusive place of jurisdiction.
2) Insofar as the above conditions contain no definite provision, German law is applicable, with the exclusion of the UN and EU Convention relating to the International Sale of Goods.