ALLIGATOR Ventilfabrik GmbH • Richard-Steiff-Straße 4 • D-89537 Giengen / Brenz
Phone +49 (0)7322 130-1 • Fax +49 (0)7322 130-359 • info@alligator-ventilfabrik.de

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General terms of sale of ALLIGATOR Ventilfabrik GmbH

I. General terms

  1. Only the following terms of sale, in the version valid at the time the delivery or service is provided, apply to our deliveries and services and all current and future business relationships with companies within the meaning of section 14 BGB (German Civil Code).
  2. Deviating, contradicting or supplementary General terms and conditions shall not form part of the contract, unless their application is expressly acknowledged by us in writing. Verbal agreements made by our representatives and staff as well as other agreements, including amendments of these terms of sale are only effective following prior written acknowledgement.

II. Conclusion of agreement and performance description

  1. Our offers are always subject to change without prior notice. They can be accepted within 14 days. A contract is concluded when we confirm the order in writing.
  2. On placement of the order the contract partner firmly declares its intention of wanting to purchase the goods ordered. We are entitled to accept the offer to conclude an agreement, inherent in the order placement, within two weeks after receipt of the order. Acceptance is acknowledged in writing.
  3. The sending of catalogues, brochures, price lists and newsletters is not to be considered an offer. Verbal commitments made by us prior to the conclusion of a contract are non-binding. To be effective, amendments and changes to the contract must take the written form. The use of telecommunications, in particular fax or e-mail, will suffice to satisfy the written form requirement.
  4. The contract is concluded under the suspensive condition of us being correctly and timely supplied by our suppliers. We shall immediately inform the contract partner if a service is not available and reimburse the corresponding counterperformance immediately in the event that the contract partner withdraws from the contract.
  5. With regard to on-call orders we are entitled to procure the material for the entire delivery and to immediately manufacture the entire delivery. Alteration requests by the contract partner can therefore not be taken into consideration once the contract has been concluded.
  6. The consignment will be insured against theft, breakage, transport-, fire- and water-related damage and other insurable risks only on the express request and at the expense of the other contracting party.

III.Tools/equipment/documents

  1. If tools or equipment are produced by us or under our direction, we will invoice prorated tool costs for this. These tools or this equipment will remain our exclusive property in respect of our intellectual property involved.
  2. We reserve the proprietary rights or copyrights in respect of all offers and estimates submitted by us and to drawings, images, calculations, brochures, catalogues, models, tools and other documents and resources made available to the other contracting party. Without our express consent, the other contracting party may not make these objects available to third parties, either as they stand or in respect of their content; nor may they without such consent publish them, use them themselves or have third parties use them on their behalf, or reproduce them. It must if requested and required by us return these objects in their entirety to us and destroy any copies of them which may have been made, if such copies are no longer required by it in the proper course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of standard data backup procedures.

IV. Prices

  1. The purchase price listed in our offers is valid for a period of 30 days from the date the offer is established. The decisive criterion in respect of the purchase price is the price listed in euro plus the respective amount of value-added tax.
  2. If not stated otherwise, our prices are always ex works excluding packaging, freight and customs. In addition, other deliveries and services, such as amendments initiated by the contract partner, are invoiced separately.
  3. If wage, material or energy costs alter significantly, every contractual party is entitled to demand an appropriate adjustment of the price, taking into consideration the change in circumstances.

V. Delivery and transfer of risk

  1. Insofar as nothing to the contrary has been agreed, we deliver ex works.
  2. The delivery dates provided by us are approximate dates and are not legally binding. Firm dates must be confirmed by us in writing. A term of delivery is considered met if the object of delivery has left our store by the time this term expires or if the contract partner has received notification of readiness for dispatch within this period. A term of delivery does not commence unless all execution details have been clarified and all other conditions to be met by the contract partner have been fulfilled.
  3. Partial deliveries and services are permitted, to the extend common in trade. Partial deliveries and services are not permitted only if they are unacceptable to the contract partner.
  4. If a non-binding delivery date is exceeded by more than six weeks, the contract partner is entitled to request in writing that we provide delivery within an appropriate period. If the delivery is not provided within the period of grace, the contract partner can withdraw from the agreement by means of a written declaration. The contract partner can only demand payment of damages caused by the delay or compensation for non-fulfilment, if the delay is due to a deliberate or grossly negligent breach of duty.
  5. The fulfilment of our obligation to deliver requires the timely and proper fulfilment of the contractual duties of the contract partner, in particular the obligation to pay.
  6. If the delivery is delayed on request of the contract partner, the contract partner must pay the resultant costs.
  7. Delays in delivery and performance due to force majeure or other unforeseeable events, which considerably hamper delivery or render delivery impossible and are not due to us, entitle us to defer delivery by the period of the interference plus an appropriate start-up time or to withdraw from the agreement either completely or in part, if it has not been fulfilled.
  8. Over- or short deliveries, where the quantity delivered either exceeds or falls short of the quantity ordered by up to 5%, are allowed. The price will in such cases depend on the quantity of goods actually delivered. Quantity variances of up to 2% are considered permissible discrepancies in weight. They do not affect the agreed prices and do not constitute a defect.
  9. Risk is transferred at the latest at the point of handover of the delivery item (where the start of the loading procedure will be authoritative) to the hauler, freight forwarder or other third party commissioned with the execution of the dispatch to the other contracting party. This also applies to part-deliveries or other services (e.g. despatch or installation) which have been undertaken by us. Should despatch or handover be delayed due to circumstances brought about by the other contracting party, the risk will be transferred to the latter on the day on which the delivery item is ready for despatch and we have notified the other contracting party of this.
  10. The other contracting party will bear the costs of warehousing after the point of transfer of risk. In the case of storage by us, the warehousing costs will amount to 0.25% per expired week of the net invoice amount for the delivery item to be stored. Both contracting parties reserve the right to assert claims and furnish evidence for additional or lower warehousing costs.

VI. Payments

  1. Payments are due on the agreed dates or within 30 days from the invoice date, without deductions.
  2. The contract partner is immediately in default on expiry of the payment period, without requiring a separate reminder. In the default period the debt shall attract interest at a rate of 9% above the basic interest rate, while we reserve the right to prove higher damages caused by the default and to demand this. This does not affect any further claims resulting from the default.
  3. In the event of default we can discontinue the fulfilment of our contractual obligations until receipt of payment, following written notification of the contract partner.
  4. If, after concluding the contract, circumstances which cause the creditworthiness of the contract partner to be reduced, we are entitled to refuse the provision of our services and to provide the contract partner with an appropriate period during which it must match payment with delivery or provide securities. If the contract partner refuses to do this or if the period expires without any effect, we are entitled to withdraw from the contract and claim damages due to non-fulfilment.
  5. The contract partner is not entitled to retain the purchase price due to counterclaims not arising from this contractual relationship. The contract partner may only offset payments in the event of undisputed or legally validated claims.

VII. Retention of title

  1. We retain ownership in the goods until all claims from the current business relationship are fully met. If the account is still open the retained property serves to secure our demand for payment.
  2. The processing of goods that are subject to the retention of title is effected on our behalf and on commission by us without having to enter into any commitments. If the goods are processed with an item that is not our property, we acquire co-ownership of the new item at a ratio of the value of the item supplied by us to the other processed items. Processed goods or co-ownership shares in these are considered goods that are subject to the retention of title. If the goods supplied by us are mixed or combined with other items, the contract partner shall already assign its ownership or co-ownership shares in the mixed or new items; we shall accept this assignment.
  3. The other contracting party is entitled to sell the merchandise on in the course of ordinary business. Pledging and assignment as security is inadmissible. The contract partner shall already now assign all claims to the amount of the invoice total to us that arise through the disposal of the goods to a third party. We shall accept the assignment. Following the assignment, the contract partner is still entitled to collect the debt. However, we reserve the right to collect the debt ourselves as soon as the contract partner does not properly meet its payment obligations and defaults. In this case we shall revoke the authority of the contract partner to collect the debt. The contract partner must, following our first written request, provide us with the name of the debtors of the assigned debts and advise the debtors of the assignment.
  4. Should third parties gain access to the item subject to retention of title, particularly as a result of pledging, the other contracting party must inform them without delay that the item in question is our property and inform us of the situation so that we may enforce our proprietary rights.

VIII. Liability for defects

  1. In the absence of any other regulation in these General Terms and Conditions or some other agreement, we will be liable for defects pursuant to the statutory provisions.
  2. The composition of the delivery items is described by the explicitly agreed features. A warranty for defects for a specific use or for suitability in a specific case will be offered only if this has been expressly agreed in writing. We reserve the right to the extent that may reasonably be accepted by the other contracting party to customary commercial or technically unavoidable deviations from those previously stated in terms of shape, colour, weight, mass and the like.
  3. If the goods are defective, we will initially provide either an amendment or a replacement, subject to our sole discretion. The expenses for amendment shall be borne by the contract partner if the costs increase due to the fact that the deliveries or services are made to a site other than the branch of the contract partner, unless this was agreed in the contract. If three attempts at amendment fail, the contract partner can either demand a reduction in payment of a rescission of the agreement. If the infringement of the contract is only minor, in particular in the event of only minor defects, the contract partner may, however, not rescind from the agreement.
  4. The contract partner must provide written notification of obvious defects immediately and within a week after receipt of the goods at their destination, at the latest, and of hidden defects immediately, however, again, at the latest within a week after detection. If not, the assertion of claims for defects is excluded. Timely sending of the notification is sufficient to keep within the term. The contract partners have the full burden of proof in respect of all qualifying conditions, in particular with regard to the defect itself, the time of detection of the defect and the timeliness of the notice of defects.
  5. The period of warranty is 1 year from the point of delivery of the merchandise. This period does not apply to claims for compensation on the part of the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty of the seller or its vicarious agents, each of which will be time-barred in accordance with the statutory provisions.
  6. We do not grant guarantees.
  7. Processing must be discontinued immediately on detection of defects.
  8. Any delivery of used items agreed on an individual basis with the other contracting party will take place under the exclusion of any form of warranty for material defects.

IX. Restriction of liability and trademark infringements

  1. If no infringement of essential contractual obligations has taken place, our liability in the event of slightly negligent breaches of duty will be limited to the average direct damage that is foreseeable in respect of the type of merchandise involved and typical for this kind of contract. This applies also to slightly negligent breaches of duty on the part of our legal representatives or vicarious agents.
  2. If the even that a third party asserts a claim as the delivered object infringes upon a legal trademark of a third party, the contract partner shall be liable for the infringement of the trademark insofar as we produced the delivered objects in accordance with drawings, models or other descriptions or information supplied by the contract partner. In this case the contract partner undertakes to exempt us from third-party claims and all resultant costs and expenses on first request. In addition, the contract partner undertakes to inform us immediately of any possible or claimed trademark infringements.
  3. In the event of liability for simple negligence, the obligation on our part to pay compensation for material damages and resulting further pecuniary losses will be limited to a sum of €5,000,000.00 per claim on the existing business and product liability insurance; this will also apply in cases of infringement of essential contractual obligations.
  4. The aforementioned limitations of liability do not apply to liability for intentional actions, for guaranteed product characteristics, in respect of injuries to life, limb or health or pursuant to the German Product Liability Act (Produkthaftungsgesetz).

X. Duty of confidentiality and data protection

  1. The contract partner undertakes to treat all commercial and technical information gained during the business relationship that is not publicly known as business secrets.
  2. Drawings, models, templates, samples, patterns and similar may not be made available to unauthorised third parties. Reproduction is only permitted within the context of operational needs and copyright provisions.
  3. We are entitled within the meaning of data protection legislation to process data concerning the other contracting party received in connection with the business relationship, regardless of whether the data originate from the contracting party itself or from third parties. This information replaces the communication pursuant to the German Federal Data Protection Act that personal data concerning the other contracting party are stored in computerised form and processed.

XI.Trade mark rights

  1. In the event that the delivery item is in breach of third party commercial trademark rights or copyrights, we will have the choice at our own expense between exchanging the delivery item or altering it in such a way that an infringement of the rights of third parties is no longer taking place and the delivery item continues to fulfil the contractually agreed functions or granting to the other contracting party a right of use through the conclusion of a licensing agreement. Should we not succeed in doing this within an appropriate period of time, the other contracting party will be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for compensation on the part of the other contracting party are subject to the restrictions according to section IX. these General Terms and Conditions.
  2. In the event of breaches of the law by products made by other manufacturers and supplied by us, we will have the choice between enforcing claims against the manufacturer and upstream supplier on the account of the other contracting party or assigning such claims to the other contracting party. Any warranty claims against us in such cases will be admissible in accordance with this section XI only if the legal enforcement of the above-mentioned claims against the manufacturer and upstream supplier has been unsuccessful or, for example due to insolvency, has no chance of success.

XII. Foreign customers

  1. In the case of supplies of goods and services to foreign buyers, all legal costs, both judicial and extrajudicial, in the event of a default on payment by the customer will be borne by the other contracting party.

XIII. Other provisions

  1. Place of performance and jurisdiction is our company headquarters in Giengen an der Brenz. Irrespective of this, we are also entitled to bring action against the contract partner at any other permissible place of jurisdiction.
  2. Only German legislation under exclusion of international civil law applies to the contractual relationship. The provisions of the UN CISG do not apply.
  3. The language of the contract is German.
  4. Order confirmations and Invoices are available per post or via E-Mail.
  5. We shall be entitled to assign our receivables from deliveries and services.
  6. If individual provisions of the agreement with the contract partner including these terms of sale are or become totally or partially ineffective, this shall not affect the validity of the remaining provisions. In this case the contracting parties undertake to replace the ineffective provision by a provision, the economic success of which comes as close as possible to that of the ineffective provision.

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ALLIGATOR Ventilfabrik GmbH
Richard-Steiff-Straße 4
D-89537 Giengen /Brenz 


Ph. +49 (0)7322 130-1
Fax +49 (0)7322 130-359
info@alligator-ventilfabrik.de 


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