III. Obligations of AluTeam
1. Subject to a failure of delivery on part of his suppliers despite a congruent covering transaction or to an exemption according to section VII.-1 b) AluTeam must deliver the goods specified in the written acknowledgement of the order and transfer the property in the goods. AluTeam is not obliged to perform obligations not stated in the written acknowledgment of the order by AluTeam or in these International Conditions of Sale, in particular AluTeam is under no obligation if not explicitly agreed upon in writing to give information regarding the goods, to furnish documents or certificates regarding the goods, to deliver accessories, to install additional safety devices, to carry out assemblies or to advise the customerr.
2. AluTeam’s obligations under the contract made with the customer are owed only to the customer. Third parties not involved in the formation of the contract, in particular the customer‘s clients, are not entitled to request delivery to be made to them or to assert any other claim arising from the customer’s contract with AluTeam. The customer‘s entitlement to take delivery continues to exist even if he assigns rights to third parties.
3. Taking account of the tolerances customary in trade, AluTeam undertakes to deliver to the customer goods of the agreed kind and quantity which meet the common standards applicable in Germany and ensures that at the time of delivery the goods are free from rights or claims of private third parties which could prevent its use within the European Union. If the goods cannot be delivered in the condition offered at the time of the formation of the contract because technical improvements to goods of series production were made, AluTeam is entitled to deliver the goods with the technical improvements. AluTeam is entitled to make part deliveries and to invoice them separately.
4. If further specification is required in relation to the goods to be delivered, AluTeam will carry this out having regard to his own interests and to the iden-tifiable and legitimate interests of the customer. A request to the customer to specify the goods, or to participate in the specification, is not required. AluTeam does not undertake to inform the customer of the specification he has made or to give the customer the option of a differing specification.
5. If no other delivery term or Incoterm-clause has been agreed, delivery has to be made CPT Incoterms 2010. Under no circumstances, not even when other clauses of the Incoterms are agreed, is AluTeam obliged to examine the goods with respect to their conformity with the contract on the occasion of delivery, or to check the operational safety of the means of transport and the transportation safe loading.
6. Compliance with agreed delivery time periods or delivery dates is subject to the customer‘s procuring any required documents, releases, permits, appro-vals, licences or any other authorizations or consents in sufficient time, ope-ning letters of credit and/or making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time and sub-ject to no delay caused by pre-shipment inspections mandated by non-German authorities. Moreover, agreed delivery time-periods begin on the date of the written acknowledgement of the order by AluTeam. After informing the custo-mer, AluTeam is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
7. Without prejudice to his continuing legal rights, AluTeam is entitled to fulfil his obligations after the delivery time periods or delivery dates agreed upon, if the customer is informed that AluTeam will exceed the delivery time limit and of the time period for late performance. Subject to aforesaid conditions, AluTeam is en-titled to make repeated attempts at late performance. The customer can object to late performance within reasonable time, if the late performance is unreasonable. An objection is only effective, if it is received by AluTeam before commencing late performance. AluTeam will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that AluTeam is liable for this under the provisions laid down in section VII.
8. Risks as to price and performance even in relation to goods which are not clearly identifiable to the contract and without it being necessary for AluTeam to give notice to the customer about the goods being placed at disposal, pass to the customer in accordance with the agreed Incoterm-clause, albeit irrespective there of with readiness for delivery by AluTeam according to the originally ag-reed delivery time periods or delivery dates, if these are postponed on customer’s request, or as soon as the title to the goods has passed to the customer..
9. Irrespective of the Incoterm-clause agreed upon, AluTeam is neither obliged to clear the goods for export nor to take care of customs advance declara-tions. However, AluTeam will apply for necessary export licences and operate customs formalities necessary for the export if the customer has requested AluTeam to do so and has furnished AluTeam with the data essential for the ex-port in a written notice dealing with this purpose exclusively. If the goods are not cleared for export without any intentional or grossly negligent fault on the part of AluTeam, AluTeam is entitled to avoid the contract in whole or in part without compensation. The agreement of other clauses of the Incoterms or of clauses such as „delivery free.....“ or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
10. Unless expressly agreed in written form something different, AluTeam is irrespective of the Incoterm-clause agreed upon not obliged to obtain proves of delivery, documents, certificates, licences or other authorizations necessary for the export, transit or import, or to achieve security clearance of the goods required for the carriage or otherwise or to render assistance to the customer in obtaining them. The agreement of other clauses of the In-coterms or of clauses such as „delivery free.....“ or similar ones merely involve a varia¬tion of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
11. AluTeam is in no case liable to perform duties associated with the making available of the goods on the market outside Germany, to bear levies, duties and charges accruing outside Germany, to comply with weight and measuring systems, packaging, labelling or marking requirements or registration or cer-tification obligations applicable outside Germany or to comply with any other legal provisions applicable to the goods outside Germany. The customer will arrange for translations in any language other than German of instructions, safety information, performance declarations or other written materials about the goods required by law or called for otherwise at his risk and expense.
12. Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, AluTeam is entitled to suspend the performance of his obligations as long as, in the opinion of AluTeam, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to sus-pend arises if the customer insufficiently performs his obligations to enable payment to AluTeam or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance AluTeam is entitled at his own discretion to make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by a major German commercial bank. AluTeam is not required to continue with performance of his obligations, if an assurance given by the customer to avoid the suspension does not pro-vide adequate security or could be challenged pursuant to an applicable law.
13. Except as provided in section III.-7., AluTeam is only obliged to inform the customer of possible disruption in performance, once the commence-ment of the disruption is definitely certain for AluTeam.
