Terms and Conditions of Sale and Delivery

By June 2020

1. Scope of application 

These Standard Terms and Conditions apply for all sales and deliveries by ALA Germany GmbH (hereinafter referred to as "ALA Germany"). They shall also apply, as amended, as a master agreement for future contracts on the sale and/or delivery of moveable property with the same customer without the need for any express reference to these Standard Terms and Conditions in each specific case. Quotes, offers and any and all agreements concluded by ALA Germany shall be governed exclusively by these Standard Terms and Conditions. Any conflicting or differing terms and conditions of the customer are hereby contested. These shall be incorporated into the relevant agreement only if ALA Germany expressly consents thereto in a specific case. These Standard Terms and Conditions shall also apply if ALA Germany performs services for the customer without reservation in knowledge of conflicting terms and conditions or terms and conditions that differ from those set forth herein. Individual agreements reached in a specific case with the customer shall always have priority over these Standard Terms and Conditions. The contents of such agreements shall be governed by a written agreement or written confirmation by ALA Germany.

2. Orders, offer, conclusion of agreements

ALA Germany's offers are non-binding. Any and all offers by ALA Germany relate only to sales and deliveries to customers for civil use. The customer shall notify ALA Germany separately if and to the extent that its enquiries concern sales and deliveries for the military sector. ALA Germany's offers shall be binding as an exception and in a specific case only if they are rendered in writing and are expressly designated by ALA Germany as binding. ALA Germany shall be bound by binding offers only until the date specified in the offer and no longer, however, than until the expiry of four weeks following sending of the offer. Agreements shall be formed only by way of written agreement, confirmation of a contract or commencement of performance of the order by ALA Germany. ALA Germany shall deem the customer bound by an application for a period of two weeks following receipt of an order by ALA Germany.

3. Pricing

Decisive are the prices shown in the order confirmation of ALA Germany. ALA Germany reserves the right to reasonably increase the prices appropriately, if cost increases occur following the conclusion of the agreement, in particular due to price increases of suppliers or exchange rate fluctuations. ALA Germany shall, upon request, provide the customer with proof thereof. The customer's legal rights remain unaffected thereof. All prices agreed do not include the respective statutory value added tax and other taxes and duties. Any deduction of cash discounts shall require a separate written agreement. Other fringe benefits, if applicable bank charges or costs, in particular freight, toll, environmental and management packages are to billed to the customer in accordance with individual agreements.

4. Delivery and passing of risk

Delivery shall be rendered EXW ALA Germany (Incoterms 2020). The customer shall arrange loading, freight and insurance of the products from ALA Germany's warehouse to the customer. At the customer's request, the goods shall be shipped to another destination against an additional fee (sale to destination at purchaser’s instructions). Unless agreed otherwise, ALA Germany may in this case itself determine the nature of shipment (in particular, transport company, shipping route, packaging). Delivery dates and deadlines are not binding. The customer agrees to provide ALA Germany with all information and documentation necessary for performance and delivery and has paid any advance payments agreed in accordance with the relevant agreement. Any agreed deadlines shall commence upon the date on which the order is confirmed. Such deadlines shall be extended accordingly should additional or supplementary orders be issued. In the event of force majeure or stoppages suffered by ALA Germany or its suppliers that provisionally prevent ALA Germany from delivering the purchased goods on the agreed date or by the agreed deadline without any fault on the part of ALA Germany, the delivery dates and delivery deadlines shall be reasonably extended for the duration of the hindrance plus a reasonable new start-up period, up to a maximum, however, total of four months. The customer's legal rights remain unaffected thereof. Should the hindrance last more than four months, both contracting parties may rescind the agreement, although the customer may rescind the agreement only after a reasonable grace period for delivery has been set. If the customer delays the acceptance of the goods or services offered by ALA Germany or fails assistance incumbent on him, he is obliged to compensate the additional expenses or damages caused by the delay or omitted cooperation by him. Other rights of rescission shall remain unaffected thereby. The foregoing provisions shall apply mutatis mutandis in the event of late delivery to ALA Germany by its suppliers, provided there has been matching hedging (kongruentes Deckungsgeschäft) by ALA Germany. Should the customer default in taking acceptance or breach other duties of co-operation, ALA Germany may – notwithstanding its other rights – appropriately store the products at the risk and expense of the customer. If ALA Germany stores the products, the storage costs shall be 0.25% of the net purchase price of the goods to be stored for each full week. The right to assert and prove additional or lower storage costs is reserved. Moreover, ALA Germany may set the customer a reasonable grace period to take acceptance. "Reasonable" shall mean a grace period of one week. Following fruitless expiry of the grace period, ALA Germany may rescind the agreement and/or demand compensatory damages from the customer. The flat compensatory damages shall be 15% of the agreed net purchase price, unless the customer proves that lesser or no damage was incurred. Notwithstanding the flat compensatory damages, ALA Germany may claim compensation of the actual damage incurred. ALA Germany may render partial deliveries for legitimate cause and to a reasonable extent.

5. Payment terms

The purchase price is due and payable within the agreed terms in accordance with the order confirmation by ALA Germany. A payment term granted to the customer presupposes a sufficient available credit limit for each contract. If the order exceeds your available credit limit, ALA Germany reserves the right to demand the contract value as advance payment. In case of a subsequent change of the creditworthiness, ALA Germany is entitled to deviate from the granted terms of payment, to demand advance payment or security deposit and in case of failure withdraw the contract. Should the customer default in payment and should there be legitimate doubts about its solvency, ALA Germany may immediately call in all receivables from the customer under the business relationship, withhold outstanding goods/services, in whole or in part, or rescind the current agreements, in whole or in part. ALA Germany reserves the right to use payments to settle the oldest due and payable debt plus the default interest and costs accrued thereon in the following sequence: costs, interest, debt. The customer shall have rights of set-off, retention and refusal of performance only if its counterclaims have been upheld in a final and binding judgment, are undisputed or acknowledged. Moreover, the customer may assert rights of retention only to the extent that its counterclaim is based on the same contractual relationship.

6. Liability for defects 

Claims by the customer for defects in the purchased goods and other compensatory damages claims shall be based on the relevant statutory provisions unless provided otherwise below. The special statutory provisions for final delivery of goods to a consumer (recourse to the supplier (Lieferantenregress) §§ 478, 479 of the German Civil Code (BGB)) shall apply in all cases. Defect-related claims by the customer shall require that it has duly met its responsibilities under § 377 of the German Commercial Code (HGB) to inspect the goods and lodge complaints. Notice shall be deemed filed without undue delay within the meaning of § 377 HGB if filed within one week. Any notice under § 377 HGB must be in writing. Should the purchased goods have defects, the customer shall be entitled, at its choice, to subsequent performance in the form of rectification of the defects or to delivery of a new, defect-free item. In the event of defect rectification or substitute delivery, ALA Germany shall bear any and all expenses necessary for purposes of such performance, in particular, transport costs, labor costs and materials costs, provided that these are not increased due to the fact that the purchased goods were transported to a location other than the place of performance. Should the subsequent performance fail, the customer may, at its choice, demand rescission or reduction of the purchase price. Any claims by the customer based on a defect in the purchased goods shall become time-barred after one year following transfer of possession or delivery of the purchased goods. The foregoing warranty limitations shall not apply to damage resulting from injury to life, limb or health due to willful or grossly negligent breach of duty by ALA Germany or its statutory representatives or vicarious agents. The foregoing warranty limitations shall also apply to other damage attributable to a willful or grossly negligent breach of duty by ALA Germany, one of its statutory representatives or vicarious agents or if the other damage was caused by the absence of an assured quality or due to malicious concealment of a defect.

7. Other liability

Any compensatory damages claims on the part of the customer that arise, irrespective of the legal basis therefore, directly or indirectly in conjunction with the purchased goods and delivery thereof shall be excluded unless provided otherwise below. ALA Germany shall not be liable, in particular, for consequences of any improper modification, use or handling of the purchased goods. Liability shall in any event be limited to compensation for the foreseeable damage typical of the agreement. Compensatory damages claims of the customer attributable to claims to contractual penalties on the part of contracting partners of the customer shall in no event be deemed foreseeable and typical of the agreement within the foregoing meaning. Should the damage be covered by an insurance policy taken out by the customer for the relevant situation underlying the damage, ALA Germany shall only be liable for associated adverse effects on the customer, e.g. higher insurance premiums or interest burdens until the damage is settled under the insurance policy. The foregoing exclusions and limitations of liability shall not apply in the event of a breach of a material contractual duty (cardinal duty) by ALA Germany. Cardinal  duties mean obligations whose fulfilment make due and proper performance of the agreement possible at all and upon compliance with which the other contracting party normally relies and may rely, i.e. rights and duties that the contract must specifically grant given its contents and purpose. Nor shall the foregoing exclusions and limitations of liability apply in the event of liability for damage resulting from injury to life, limb or health and based on willful or negligent breach of duty by ALA Germany or one of its statutory representatives or vicarious agents. Nor shall the foregoing exclusions and limitations of liability apply for other damage attributable to willful or grossly negligent breach of duty by ALA Germany or one of its statutory representatives or vicarious agents or if the other damage was caused by the absence of an assured quality or due to malicious concealment of a defect.

8. Indemnity

The customer shall indemnify ALA Germany against any liability, damage, claims, proceedings and costs arising under or in conjunction with the sub-contractors, product designs, packaging design provided by the customer or the container selected or stipulated by the customer in which the products are shipped. Should the customer sell the product, it shall indemnify ALA Germany inter se against third party product liability claims, provided the customer is responsible for the faults triggering the liability.

9. Retention of title

ALA Germany shall retain title in the delivered products until full payment of all receivables of ALA Germany under the business relationship with the customer. In the event of ongoing accounts, the retained title shall serve to secure ALA Germany's balance claim. The customer may sell the products subject to the retention of title ("Retained Products") only during the ordinary course of business. The customer may not pledge the Retained Products, transfer them by way of security or otherwise dispose over them in a manner that puts ALA Germany's title at risk. The customer hereby assigns the receivables from any resale to ALA Germany; ALA Germany hereby accepts such assignment. Should the customer sell the Retained Products following processing or conversion or following combination with other goods or together with other goods, the assignment of receivables shall be deemed agreed only in the amount of the portion equivalent to the price agreed between ALA Germany and the customer plus a safety margin of 10% of such. The customer is revocable authorized to collect the receivables assigned to ALA Germany in its own name in trust for ALA Germany. ALA Germany may revoke this authorization and the right of resale if the customer defaults with regard to material obligations such as payment to ALA Germany; in the event of revocation, ALA Germany may collect the receivables itself. Processing or conversion of the Retained Products by the customer shall always be performed for ALA Germany. Should the Retained Products be processed together with other items, ALA Germany shall acquire joint title in the new item based on the proportion of the value of the Retained Products to the other processed items at the time of processing. Otherwise the same rules that apply for the products delivered subject to the retention of title shall apply for the new item created from the processing. Should the Retained Products be combined with other items, ALA Germany shall acquire joint title in the new item based on the proportion of the value of the Retained Products to other items at the time of the combination. Should the combination take place such that the customer's item must be considered the principal item, it shall be deemed agreed that the customer assigns pro rata joint title to ALA Germany. The customer shall hold the joint title thus created in custody for ALA Germany. The customer shall provide ALA Germany at any time with any and all desired information concerning the Retained Products or claims assigned to ALA Germany on this basis. The customer shall notify ALA Germany immediately and furnish any necessary documents upon third party interventions or claims with regard to the Retained Products. The customer shall at the same time notify the relevant third party of ALA Germany's retention of title. The customer shall bear the costs in mounting a defense against any such interventions and claims. The customer shall handle the Retained Product with care for the term of the retention of title. If the realizable value of the security exceeds the total receivables of ALA Germany to be secured by more than 10%, then the customer may demand release [of the goods] to this extent. Should the customer default in material duties such as payment owed to ALA Germany and should ALA Germany rescind the agreement, ALA Germany may – notwithstanding other rights – demand delivery of the Retained Products and realize them in another manner for purposes of satisfying receivables due from the customer. In this event, the customer shall immediately grant ALA Germany or ALA Germany's appointed representative access to the Retained Products and deliver them. For deliveries to other legal systems in which the foregoing provision on retention of title does not provide security in the same manner as in Germany, the customer shall undertake everything to provide ALA Germany without undue delay with corresponding security rights. The customer shall participate in any and all measures such as registration, publication etc. that are necessary and expedient for the validity and enforceability of such security rights. At ALA Germany's request, the customer shall reasonably insure the Retained Products, furnish ALA Germany with relevant proof of insurance and assign the claims under the insurance policy to ALA Germany.

10. Export 

The export permit required for the respective destination country has been obtained for all goods delivered by ALA Germany under this agreement. Changes to the destination country may be prohibited or require an export permit under the applicable export control provisions. The customer shall be liable for any change in the destination country, shall be responsible for obtaining the relevant permits and shall indemnify ALA Germany against any and all claims in conjunction with a change in the destination country. All products and know-how are provided by ALA Germany in compliance with the currently applicable AWG / AWV / EG Dual-Use Regulation as well as the US Export Regulations and are determined to be used and to remain in the country of delivery as agreed with the customer. If the customer intends to re-export the products supplied by ALA Germany, he is obliged to comply with US, European and national export regulations. The re-export of contractual products - individually or integrated into a system - contrary to these provisions is prohibited. The customer is obliged to inform himself of the provisions and regulations currently in force (Bundesausfuhramt, 65760 Eschborn/Taunus or US-Department of Commerce, Office of Export Administration, Washington D. C. 20230). Regardless of whether the customer states the final destination of the contractual products supplied, it is the customers own responsibility to obtain necessary approvals of the relevant foreign trade authorities before exporting such products. ALA Germany has no obligation to provide information. Any further delivery of contractual products by the customer to a third party, with or without the knowledge of ALA Germany require the simultaneous transfer of the export license conditions. The customer is fully liable for any breach of relevant regulations. Without prior administrative approval the customer is not allowed to supply contractual products directly or indirectly to any country subject to US embargo, or to natural or legal persons of these countries as well as to natural or legal persons on US, European or national Prohibited lists (e.g.: "Entity List", "Denied Persons List", "Specifically Designated Nationals and Blocked Persons"). Furthermore, it is prohibited to supply contract products to natural or legal persons who are in any way connected to the support, development, production or use of chemical, biological or nuclear weapons of mass destruction.

11. Data protection

The customer shall advise pursuant to § 33 (1) of the Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) that ALA Germany stores the customer data in machine-readable form and processes it within the framework of the purpose of the contractual relationship with the Customer and for marketing purposes. ALA Germany reserves the right to check the creditworthiness of the customer with credit reporting agencies or credit insurances and give them the data - limited to the case of non-contractual settlement e.g. submitted court order for undisputed claims, issued enforcement, enforcement actions. The data transmission only takes place if it is necessary to protect the legitimate interest of ALA Germany. Balance sheet data is treated confidentially and used solely for the purpose of credit assessment. A transfer to third parties will not take place. In any case ALA Germany will comply with the relevant data protection regulations. The customer expressly agrees to the aforementioned data use.

12. Transfer Tax/Import VAT/Entry Certificate

A customer based outside of Germany has to observe the provisions of the Transfer Tax / import VAT of the relevant Economic Area, in particular unsolicited to announce the sales tax identification number and provide willingly required information when purchasing products. In case of disregarding these regulations, the customer has to replace the thus incurred expenses / damage. The customer is required to cooperate in the creation of tax law necessary proofs and shall issue the relevant evidence as soon as possible and provide them to ALA Germany. This applies especially to the Entry Certificate as defined in § 17a section 2 sentence 1 number 2 UStDV (Umsatzsteuerdurchführungsverordnung).

13. General provisions / miscellaneous

This agreement shall be governed solely by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. Only the German version of these Standard Terms and Conditions shall be binding. To the extent permitted by law, sole forum for any and all disputes under the contractual relationship is Neumarkt. However, ALA Germany may sue the customer in any other forum prescribed by law. Legal declarations and notices to be rendered by the customer to ALA Germany following conclusion of the agreement shall be valid only if in writing. References to statutory provisions are for clarification only. Therefore the statutory provisions shall apply even without such clarification, unless they were expressly excluded in the Standard Terms and Conditions. Should one or more of these provisions be invalid, the validity of the remaining provisions shall remain unaffected thereby. The parties hereby agree that the invalid provision shall be deemed replaced by a valid provision that most closely reflects the spirit and intent of the invalid provision.

ALA Germany GmbH
Deininger Weg 94
92318 Neumarkt
Germany

Tel: +49 9181 29720-0
Fax: +49 9181 29720-130
E-Mail: salesde@ &nsp;alacorporation.com

CEO: Wilhelm F. Holler
Registered at: Nürnberg - Germany
Reg. No. HRB 17680
VAT ID: DE81 309 8419
Tax ID:
201/121/51657

Cage Code: C6488
D-U-N-S® No: 328789644
Oasis-No.: 6126149108

AEO-Certified: 
DE AEOF 120272
US: DEINDGMB9231NEU
Japan: A000075QDE00