GSC | Alpha Grad Gmbh

GENERAL TERMS AND CONDITIONS OF SALE

Effective from 01.01.2020

These General Terms and Conditions of Sale (the General Terms) apply to all agreements concluded between Alpha Grad GmbH (the Seller) and the buyer (the Buyer; the Seller and Buyer jointly as Parties and individually a Party) for the sale of products (the Products) to the Buyer, including any individual agreements for the sale of Products (each a Sales Agreement) and (if concluded between the Parties) the frame agreement for the sale of Products (the Frame Agreement).

In case of conflict of provisions, the documents will be interpreted in the following precedence: (i) the Sales Agreement (including the Order Confirmation), (ii) the Frame Agreement, (iii) the General Terms.

LEGAL FRAMEWORK

The Parties may from time to time agree to the sale and purchase of specific quantities of Products on the terms and conditions contained in this Agreement and such other terms and conditions as are agreed in the relevant Sales Agreement.

For ordering Products, the following procedures will be applied:

The Buyer shall submit to the Seller’s e-mail address either (i) a purchase order (Purchase Order), if the Seller has provided a price list for the requested Products, or (ii) an inquiry (Inquiry), if the requested Products are not included in a price list. In both cases the Buyer shall specify the Product codes, volumes and delivery clause (if different from the delivery clause agreed in the Frame Agreement, if applicable).

On the basis of the Inquiry the Seller will provide the Buyer with an offer (Offer), specifying the Product codes, volumes, prices and (if indicated by the supplier) the estimated delivery date to the Seller’s warehouse. The Offer is valid for a period of 30 calendar days, unless specified otherwise on the Offer or until Product availability and/or pricing significantly changes in the Seller’s supplier network.

If the Buyer agrees to the terms set out in the Offer the Buyer undertakes to notify the Seller thereof during the validity period of the Offer. Upon receipt from the Buyer of the consent to the Offer, the Seller will send the Buyer the order confirmation (Order Confirmation), which contains the Product codes, volumes and prices confirmed by the Buyer. If the Buyer does not notify the Seller of consenting to the Offer during the validity period of the Offer, no consequences arise from the Offer.

If the Buyer has submitted a Purchase Order, and the respective Products indicated in the price list are available, the Seller shall confirm the order by sending the Buyer an Order Confirmation. If the availability or pricing of Products has changed compared to the price lists made available to the Buyer, the Seller will share the updated price lists (if available) and/or make an Offer for the Products. Regardless of the existence of price lists for certain Products, the Buyer can always request an Offer from the Seller.

A sales agreement (Sales Agreement) for the sale of Products set out in the Order Confirmation is deemed concluded from the moment the Seller sends the Order Confirmation to the Buyer on the terms and conditions as set out in the Sales Agreement, the Frame Agreement (if concluded) and these General Terms.

The Order Confirmation is based on the latest information available to the Seller from its supplier network as at the time of sending the Order Confirmation. As the Seller is not the manufacturer of the Products and cannot control the manufacturing, delivery and pricing procedures of the Products, the Seller shall not be liable for any unexpected events outside the Seller’s control that may affect product availability, pricing and delivery term. Should any such circumstances occur, the Seller shall promptly notify the Buyer thereof and propose alternative solutions. If no agreement in the amended terms can be reached or no alternatives are available, both Parties have the right to unilaterally withdraw from the Sales Agreement without incurring any liability.

PRODUCTS AND VOLUMES

To prevent any mistake which may happen in the Offers, the Buyer undertakes to verify before consenting to an Offer that the Product codes included in the Inquiry correspond to the Product codes provided in the Offer.

The sale and use of certain Products may be subject to national and international regulatory restrictions. The Seller hereby expressly disclaims any the Buyer holds the sole responsibility for the use of the Products in terms of ensuring all regulatory compliance of any kind, including, but not limited to Product use and handling.

The Buyer shall comply with the assembly and maintenance instructions and requirements related to the Products as well as any other guides, instructions or manuals regarding the Products or other local norms and best practices. The Seller is not responsible for defects which are attributable to the non-compliance with such assembly and maintenance instructions and requirements.

If the Buyer has undertaken a volume commitment (Volume Commitment) under the Frame Agreement, the Buyer will be under an obligation to purchase Products from the Seller in a value that is equal to or larger than the Volume Commitment agreed in the Frame Agreement for a specific period of time. If upon expiry of such period of time the aggregate value of Sales Agreements remains below the Volume Commitment, the Seller has the right to claim that the Buyer compensates the difference between the aggregate value of Sales Agreements and the Volume Commitment.

The Seller may establish a minimum required value for an order of Products (Minimum Order Value) by notifying the Buyer thereof. The Seller has the right to increase, decrease of waive the Minimum Order Value at any time by notice to the Buyer.

Delivery

The Seller shall deliver the Products to the Buyer in accordance with the delivery clause agreed in the Order Confirmation or (if applicable) the Frame Agreement. Delivery of the Products from the Seller’s warehouse to the Buyer’s appointed location (if requested by the Buyer) will take place at the cost of the Buyer.

Risk of loss and damage with respect to the Products shall pass to the Buyer in accordance with the Incoterms delivery clause agreed in the Sales Agreement or Frame Agreement (if applicable).

Title to the Products shall transfer to the Buyer at the time when the delivery is completed in accordance with the agreed Incoterms delivery term, but in any event not before the Buyer has paid the Seller the purchase price for the Products in full (including any late payment penalties, if applicable). Retention of title does not affect the Seller’s right to apply all appropriate debt collection measures against the Buyer once the payment has become due.

If available, the estimated time of delivery of Products to the Seller’s warehouse may be set out in the Order Confirmation. The estimated time of delivery may be subject to change and cannot be relied upon as firm or binding. The Seller is not liable for any damages (including contractual penalties from the Buyer’s contract partners) related to (i) any delays in delivery, or (ii) withdrawal from the Sales Agreement in accordance with Section 1.3 of these General Terms.

The Products of a particular Sales Agreement may be delivered in one or more shipments.

If the Buyer does not take delivery of Products on the agreed delivery date, the Seller has the right to warehouse the Products at the Seller’s facilities or with a third party service provider at the cost of the Buyer, or sell the Products to a third party buyer while retaining any prepayments made by the Buyer (if applicable) and claiming compensation from the Buyer for any price differences.

The Buyer is obliged to review the Products immediately after receiving possession of the Products. Unless the Buyer notifies the Seller of the contrary within seven calendar days as of receiving possession of the Products, the Products will be deemed to have been accepted by the Buyer as being of the correct number and type, visibly undamaged and containing no other visibly detectable defects. In case the Buyer does discover any visible defects, the Buyer must notify the Seller thereof by e-mail immediately, specifying in detail the claim(s) of the Buyer (incl. photos of the defects). Any other possible defects of the Products must be notified to the Seller promptly, but not later than three business days of discovering the defect. The Buyer will abstain from installation of the Products before the examination of the Products.

Variation of colour of the Products and other damages, which are functionality-invariant (minor scratches, chipped spots, damaged transportation materials etc.) are not considered a defect within the meaning of these General Terms.

Promptly upon receipt of possession of the Products by the Buyer, but in any event before shipping the Products to a third party, the Buyer undertakes to remove from the packaging materials of Products all labels and references to Alpha Grad GmbH as the Seller.

PRICES AND PAYMENT

The Buyer undertakes to pay to the Seller the price of the Products as agreed in the Sales Agreement on the basis of an invoice presented by the Seller.

The Buyer undertakes to pay the invoice in full by the date provided on the invoice. A payment is considered duly made, when the due amount is credited in full onto the Seller’s bank account indicated on the invoice.

The prices of certain Products may be compiled into a price list that the Seller may share with the Buyer from time to time. Price lists may be amended regularly by the respective suppliers and manufacturers in the Seller’s network. In case of any changes to the price lists the Seller will notify the Buyer thereof.

All Product prices are indicated as exclusive of any value added tax, sales tax or other applicable taxes, which will be added in accordance with applicable laws.

In the event of any delay in payments, the Seller is entitled to claim interest on late payments of 0.2% of the delayed amount per each day in delay, unless otherwise agreed in the Frame Agreement (if applicable) or any Sales Agreement. All payments made by the Buyer are considered made in the following order: first interest on late payments and then the price of the Products.

The invoice sent by the Seller will be deemed to have been accepted by the Buyer as being correct, unless the Buyer has notified the Seller within a period of three business days from the invoice date of any errors, faults or other irregularities.

The Seller has the right to withhold the delivery of any orders of Products to the Buyer, without incurring any liability, if the Buyer has any outstanding invoices from the Seller (including withhold the delivery of Products under one Sales Agreement, if the payment default is under another Sales Agreement). If the Buyer’s payment default exceeds one month, the Seller has the right to terminate the Sales Agreement.

If the Parties have agreed so in the Frame Agreement, the Buyer will be granted a credit limit in the amount indicated in the Frame Agreement. The credit limit is calculated on the basis of all unpaid invoices for all Sales Agreements at any time. If the credit limit is reached, the Seller will not provide any further Products to the Buyer until the Buyer pays the amount exceeding the credit limit.

COMPLIANCE

The Parties shall comply with all applicable anti-bribery laws, anti-money laundering laws and other rules, regulations, decrees or official governmental orders prohibiting bribery, corruption and money laundering (Anti-Bribery Laws). Each Party will notify the other Party promptly of any breach of Anti-Bribery Laws by the Party (or its affiliate or personnel) that has a direct effect on this Agreement and indemnify the other Party for all documented claims against the other Party resulting from such breach to the extent the breach is ascribable to such Party.

The Parties represent and warrant that in performing this Agreement they will comply with all applicable laws or regulations relating to economic sanctions and any laws, regulations or directives adopted, maintained, or enforced by the European Union, the United Kingdom, the United Nations, or the United States of America directed at prohibiting or restricting dealings or transactions with designated individuals, entities, governments, countries, groups, or territories (Sanctions). The Parties will use reasonable endeavours to ensure that their contractual partners also comply with this clause.

The Parties represent and warrant that they are not listed on any sanctions list (Sanctions List) including but not limited to lists published by the European Union (including the consolidated list of persons, groups and entities subject to EU financial sanctions), the United Kingdom, the United Nations and the Office of Foreign Assets Control of the US Department of Treasury (including the specially designated nationals and blocked persons list) or the US Department of State, and that to the best of their knowledge they are not owned, controlled directly or indirectly by any person on the Sanctioned List.

If (i) a Party should become subject to Sanctions, or (ii) a Party or its personnel or any shareholder is listed in the Sanctions List, the subjected Party shall immediately notify the other Party of the situation, and the other Party shall have the right to immediately terminate the Agreement and any Sales Agreements not yet performed.

WARRANTY

Unless otherwise provided in the Order Confirmation or the Frame Agreement (if applicable), the Seller provides a 12-month warranty from the date of delivery note that the Products are free from any defects in design, materials and workmanship arising under normal use and in accordance with any instructions issued by the Seller or the manufacturer of the Products. The Seller is not liable for defects which are (i) considered normal wear and tear of the Products, (ii) caused due to improper use, handling, assembly or maintenance of the Products, or (iii) discovered or notified to the Seller after expiry of the warranty period.

If the Buyer notices any defects in the Products during the warranty period, the Buyer must notify the Seller thereof without delay, but not later than three business days from discovering the defect and in any event during the warranty period. In the claim, the Buyer must indicate the Product code, quantity of affected Products and a detailed description of the defect (including photos of the defects, if the defect can be photographed). If provided by the Seller, the Buyer must also fulfil a reclamation form.

The Buyer shall return the defective Products to the Seller’s appointed location at the Seller’s expense. The Seller has the right to inspect the Products or have the Products inspected by the manufacturer. The Buyer’s remedies in case of a defective Product are limited to either replacement of the defective Products or repairing them free of charge, the choice being at the Seller’s sole discretion. If the Seller is unable to replace or repair a defective Product in reasonable time not being less than 45 days, and the Buyer does not accept replacement of the defective Products with similar alternative Products, the Buyer may reduce the purchase price for the defective Products in the amount corresponding to the decrease in Product’s value. If the inspection of Products conducted by the manufacturer concludes that the defect was caused due to improper use, handling, assembly or maintenance of the Product or that the defect constitutes normal wear and tear of the Product, the Buyer shall compensate the Seller for the costs related to the warranty claim (including transportation costs and inspection fees, if applicable).

In addition to the Seller’s warranty, the Products may be subject to warranty provided by the manufacturer of such Products. The warranty period and any other warranty terms are determined by the manufacturer of the Products and may be available on the website of the manufacturer.

The Seller shall have no further liability for defective Products than the liability set out in this Section 6.

LIMITATION OF LIABILITY

Neither Party shall be liable for any indirect or consequential loss or damage, loss of profits or loss of business opportunity suffered by the other Party and/or its affiliates (including loss or damage to any other things resulting from the use of any non-conforming Products, and claims made against the Buyer by third parties).

The Seller will not bear any liability for claims that are filed after expiry of the terms for filing claims specified in Section 3.7.

A delay in delivery of the Products for less than 30 days is not deemed to be a material breach of the Sales Agreement is not deemed to be a material breach, unless caused by the Seller’s intent or gross negligence. Provision of defective Products is considered a material breach of the Sales Agreement only if the Seller does not rectify the deficiencies within 90 days.

The Seller’s total and aggregate liability arising under or in connection with any Sales Agreement shall under no circumstances exceed the total purchase price of Products indicated in the Order Confirmation.

The limitations of liability set out in these General Terms shall not apply if the Seller has breached these General Terms by willful misconduct or gross negligence, or in cases of personal injury.

Neither Party shall be liable for any failure to fulfil its obligations under this Agreement where and until such failure is due to any event or circumstance beyond the reasonable control of such Party as long as such Party acted as a reasonable and prudent person (Force Majeure). Force Majeure shall include inter alia the following events and circumstances: act of God, fire, explosion, extraordinary weather conditions (e.g., flood, atmospheric disturbance, lightning, storm, hurricane, typhoon, tornado, earthquake, landslide, soil erosion, washout), epidemics or pandemics, war (whether declared or undeclared), riot, blockade, insurrection, civil disturbances, terrorism, strikes, lockouts or other industrial disturbances, serious accidental damage to or other serious failure of the Product manufacturer’s or supplier’s warehouse or facilities, and acts of governmental authority, including the withdrawal of any necessary licenses or approvals necessary for the performance of the Sales Agreements.

No payment obligation under this Agreement, shall be excused due to Force Majeure.

In the event of Force Majeure, the affected Party shall notify the other Party immediately of the nature and effect of the Force Majeure circumstances, and the Parties shall use reasonable endeavors to reschedule the delivery of any Products that may be affected by the Force Majeure event. If the Buyer is unable to take delivery of the Product on the agreed delivery date due to Force Majeure, the Seller has the right to warehouse the Product until the Buyer’s Force Majeure circumstances expire and claim compensation of the respective storage cost from the Buyer.

CONFIDENTIALITY

Both Parties shall, at all times during the performance of and after completion or termination of any Sales Agreement, keep and shall procure that its respective personnel and affiliates keep as strictly confidential any and all confidential information of the other Party (Confidential Information). Confidential Information shall include: any Offers and/or Order Confirmations made by the Seller, the terms and conditions of any Sales Agreement and these General Terms, the fact that Products are sold by Alpha Grad GmbH as the Seller, the range of Products, prices and delivery terms offered by the Seller.

Confidential Information may not be disclosed to any third party without the prior written consent of the other Party. A Party shall not use Confidential Information for any other purposes than for the purposes of performing the Sales Agreement. Any disclosure of the fact of cooperation with Alpha Grad GmbH (including but not limited to any social media announcements, promotions, use of the Seller’s logos etc.) requires the prior consent of the Seller, reproducible in writing.

Each Party shall return or destroy the other Party’s Confidential Information at the request of the disclosing Party.

Upon breach of the confidentiality obligation set out herein, the breaching Party undertakes to pay the other Party a contractual penalty in the amount of 25,000 euros per each event of breach, as well as compensate any damages exceeding the contractual penalty amount. The penalty must be paid within one week from receiving the respective claim from the other Party.

TERM AND TERMINATION

If the Parties have concluded a Frame Agreement, both Parties have the right to terminate the Frame Agreement at any time by notifying the other Party thereof in a format reproducible in writing.

Termination of the Frame Agreement shall not affect the validity of any Sales Agreements that have come into effect prior to the termination of the Frame Agreement but have not been performed by the date of termination.

FINAL PROVISIONS

The Seller has the right to amend the General Terms at any time by notifying the Buyer thereof. Each Sales Agreement will be applied the version of the General Terms that is in force at the time of making the Offer to the Buyer.

The Buyer undertakes to refrain from soliciting, recruiting or encouraging any personnel of the Seller or its affiliates (whether engaged under an employment agreement or service agreement, and either directly or through a company) to leave their employment with the Seller. This restriction applies to any attempt to hire or engage such employees as an employee, consultant, or independent contractor.

These General Terms, the Frame Agreement (if concluded) and any Sales Agreements concluded hereunder and any rights or claims arising out of or in connection with the foregoing (including any non-contractual claims) shall be governed by the laws of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

Both Parties will use their best efforts to settle all matters in disputes amicably. All disputes or differences of any kind related to these General Terms, the Frame Agreement (if concluded) and any Sales Agreements, which cannot be solved amicably by the Parties within 60 days of a written request to negotiate submitted by a Party, shall be resolved by the courts of the Federal Republic of Germany, with Essen City Court as the court of first instance.