V. Delivery of non-compliant Goods or Goods with Defective Title
1. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
2. To the extent that the written acknowledgement of the order by AluTeam does not contain an explicit statement to the contrary, AluTeam is in particular not liable for the goods being fit for a purpose which is not usual in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer‘s country. In particular, slogan-like definitions, references to generally accepted norms, the use of brands, trade-marks, adverts or prospectus do not in themselves constitute a guarantee. AluTeam shall also not be liable for any non-conformity with the contract that did not exist at the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of AluTeam in writing, AluTeam will be released from his liability.
3. The customer is obliged vis-à-vis AluTeam to examine or to have examined every single delivery comprehensively for any discoverable or typical lack of conformity with the contract and moreover as required by law.
4. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of private third parties at the time risk passes. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in the European Union and prevent the usual use of the goods in the European Union. Regardless of the stipulation established in sentence 1, title to the goods shall be deemed not to be defective to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
5. Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged vis-à-vis AluTeam to give notice to AluTeam of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.-6. Such notice has to be made in writing and directly to AluTeam and to be formulated in such a precise manner as to enable AluTeam to effect remedy measures without need for further inquiries from the customer and to secure claims against AluTeam ’s suppliers and moreover as required by law. AluTeam ’s employees, commercial agents or other sales intermediaries are not authorised to accept notices outside AluTeam ’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences.
6. Following due notice according to section V.-5., the customer can rely on the remedies provided by these International Conditions of Sale. The customer has no other rights or claims whatsoever and no claims of a non-contractual nature due to delivery of non-conforming goods or goods with defective title. In the event of notice not having been properly given, the customer may only rely on remedies if AluTeam has intentionally concealed the lack of conformity with the contract or the deficiency in title. Statements by AluTeam as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by AluTeam of the requirement of proper notice.
7. The customer is not entitled to remedies for delivery of non-conforming goods or goods with a deficiency in title, insofar as the customer is liable visà-vis third parties for conditions of the goods or their fitness for a use which are not subject of the agreement with AluTeam, or if the customer’s claim is based on foreign law.
8. To the extent that the customer in accordance with the terms of these International Conditions of Sale is entitled to remedies because of delivery of non-conforming goods or goods with defective title, he is entitled to demand in accordance with the terms of the UN Sales Convention delivery of substitute goods or repair of AluTeam or to reduce the price for the goods. The delivery of substitute goods or repair does not lead to a recommencement of the limitation period. The reduction of the price for the goods is limited to the damages suffered by the customer. Further claims for performance are not available to the customer. Irrespective of the customer’s remedies, AluTeam is always entitled in accordance with the provision in section III.-7. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer‘s remedies by giving him a credit note of an appropriate amount.
9. In case of unjustified assertion of remedies for delivery of non-conforming goods or goods with a deficiency in title, although the customer is or ought to have been aware that a non-conformity or a deficiency in title does not exist or that the cause for such non-conformity or deficiency in title claimed are not to be attributed to AluTeam, the customer is obliged to reimburse AluTeam for expenses incurred due to the unjustified assertion of claims.
