General Conditions of Sale
§1 General – Area of Application
- The andres GmbH conditions of sale apply exclusively; we do not recognise conflicting conditions of sale or customer conditions of sale at variance to our conditions of sale, unless we have expressly agreed to their validity in writing. Our conditions of sale apply even when, in full knowledge of conflicting conditions or customer conditions of sale at variance to our own, we carry out delivery to the customer without reservation.
- All agreements made between andres GmbH and the customer for the purpose of expediting this contract are to be set out in writing in this contract.
- Our conditions of sale apply only to businesses as defined in § 310 Sect. 1 of the BGB Civil Code.
- Our conditions of sale also apply to all future business with the customer.
§2 Offer – Offer Documentation
- Our offer is non-binding and subject to alteration.
- If the order is to be qualified as an offer under § 145 of the BGB Civil Code, andres GmbH may accept it within 2 weeks.
- The company andres GmbH retains ownership and copyright of all offers submitted by you and the cost estimates, as well as the drawings, figures, calculations, brochures, catalogues, models, tools and other documents or aids provided to the customer. The customer is not permitted to give third-parties access to these items or their content without express consent from the company andres GmbH. Nor may they make these public, use or duplicate them themselves or through third-parties. Upon request by the company andres GmbH, these items must be returned in full and any copies made must be destroyed by the customer if they are no longer needed in the proper course of business or if negotiations do not lead to a concluded contract.
§3 Prices – Terms of Payment
- Insofar as nothing to the contrary is stated in the order confirmation, our prices apply “ex-works” exclusive of packaging, which will be invoiced separately.
andres GmbH reserves the right to amend its prices accordingly if after concluding a contract costs sink or rise, especially when due to wage negotiation settlements or changes in material prices. andres GmbH shall provide the customer with substantiation of this when requested to do so.
- Statutory value Added Tax is not included in our prices; it shall be listed separately on the invoice and charged at the statutory rate applicable on the date of invoice.
- Discount deductions require special written agreement.
- Insofar as nothing to the contrary is stated in the order confirmation, the net purchase price (without deduction) shall be due for payment within 30 days of the date of invoice. Default in payment will result in legal procedures been applied.
- The customer may invoke off-set rights only if a counterclaim has been established by court of law, is undisputed or acknowledged by us. Apart from which, he is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- Commencement of the delivery period stipulated by andres GmbH is dependant on all technical questions being clarified beforehand.
- Compliance with our obligation to deliver further depends on the customer’s timely and orderly fulfilment of his obligations. The defence of non-fulfilment of the agreement remains reserved.
- Should the customer default in acceptance or culpably breach other obligations to cooperate, we shall be entitled to claim compensation for any damages we may incur thereby, including any additional costs. We reserve the right to pursue further claims or entitlements.
- Should the prerequisites in paragraph (3) exist, liability for the risk of perchance ruin or perchance deterioration of the purchased goods shall then pass to the customer from the point in time at which he has fallen into default of acceptance or of payment.
- By law, we shall be liable when the underlying purchase contract is deemed a fixed contract as defined in § 286 Sect. 2 No. 4 of the BGB Civil Code or in § 376 of the HGB Commercial Code. We shall also legally liable when as a consequence of a delay in delivery for which we are responsible the customer can justifiably claim that further fulfilment of the contract is no longer in his interest.
- By law, we shall also liable when the delay in delivery is due to a breach of contract caused by us intentionally or through gross negligence; any fault on the part of our representatives or agents shall be legally attributed to us. Insofar as the delay in delivery is due to a breach of contract caused by us intentionally or through gross negligence, then our liability for damages shall be limited to the foreseeable loss that may typically be incurred.
- By law, we shall also be liable insofar as the delay in delivery for which we are responsible is due to a culpable breach of a significant contractual commitment; should this be the case, however, our liability for damages shall be limited to the foreseeable loss that may typically be incurred.
- Furthermore, we shall be liable in the case of a delay in delivery to pay for each full week of delay compensation in the form of a fixed sum to the amount of 0.5% of the value of the good to be delivered, up to a maximum of no more than 10% of the value of the delivery.
- Further legal claims and rights of the customer remain reserved.
§5 Transfer of Risk – Packaging Costs
- It is agreed that delivery shall be “ex-works” insofar as the order confirmation contains nothing to the contrary.
- The redemption of packaging materials is subject to separate agreements.
- Should the customer so wish, andres GmbH will cover the delivery with a transport insurance policy; any costs arising thereby shall be borne by the customer.
§6 Liability for Defects
- Customer claims for defects require that he has beforehand properly met the examination and notification of complaint obligations incumbent upon him under § 377 of the HGB Commercial Code.
- Slight variations in the colour of our products shall not alone constitute a defect and shall not provide due reason for complaint.
- Insofar as a defect exists in the item sold, andres GmbH shall be entitled to rectify the defect by either correcting the defect or by delivering a new defect-free item, as it may deem fit. In rectifying the defect we shall bear the necessary, verified expense involved only as far as it does not exceed the purchase price.
- Should we fail to rectify the defect, the customer shall be entitled to either cancel the order or request a reduction, as he may deem fit.
- By law, we shall be liable should the customer assert a claim for compensation for loss or damage caused intentionally or by gross negligence, including that caused intentionally or by gross negligence on the part of our representatives or agents. Where no intentional breach of contract is can be attributed to us, liability for damages shall be limited to the foreseeable loss that may typically be incurred.
- By law, we shall also be liable if we culpably breach any significant contractual obligation; in such as case, too, liability for damages shall be limited to the foreseeable loss that may typically be incurred.
- Insofar as the customer is entitled to claim recompense for damages instead of provision of the service due, our liability shall also be limited within the framework of section (3) to recompense for the foreseeable loss that may typically be incurred.
- Liability for culpable damage to life, body or health remains unaffected; the same also applies to compulsory liability as determined by product liability legislation.
- Unless otherwise regulated in the preceding text, liability is excluded.
- The limitation period for claims against defects shall be 12 months, calculated from the transfer of risks.
- In the event of a delivery recourse in accordance with §§ 478, and 479 of the BGB Civil Code the statutory period of limitation applies; it extends for five years, calculated from the delivery of the defective item.
§7 Property rights
(1) The customer shall be responsible for ensuring that no third-party property rights are infringed in European Union countries, in which the products are procured or kept in connection with the order.
(2) The customer is obligated to indemnify us from any third-party claims made against us due to infringement of the industrial property rights mentioned in paragraph 1. The customer will reimburse all necessary costs incurred in connection with such a claim.
8 Overall Liability
- Further liability for damages than that set out in § 6, is – without regard to the legal nature of any claims asserted – excluded. This shall apply especially to compensation claims for culpa in contrahendo, on account of other breaches of obligation or on account of tortious claims for recompense for damage to property as per § 823 of the BGB Civil Code.
- The limitation under sect. (1) shall also apply should the customer claim the refund of futile expenditure instead of recompense for damages incurred.
- Insofar as andres GmbH’s liability for damages excluded or limited, this shall also apply in respect of the personal liability for damages of our staff, employees, colleagues, representatives and agents.
§ 9 Retention of Titles of Ownership
- andres GmbH firm retains title of ownership over the goods sold until receipt of all outstanding debts that had already arisen from this contract at the time of its conclusion, including all outstanding debts arising from follow-up contracts, repeat orders, and orders for spare parts. In the case of customer behaviour that is in breach of the contract, especially in cases of payment default, we shall be entitled to repossess goods sold. Repossession by us of goods sold shall be deemed to have cancelled the contract. We shall then be entitled to re-sell any such repossessed goods, and the proceeds shall be offset against the customer’s debts following the deduction of appropriate costs incurred thereby.
- The customer is obliged to handle the goods sold with care; in particular he shall undertake to adequately insure them at his own expense against damage by fire, water and theft to cover the cost of their replacement. Where maintenance and inspection are necessary, the client must carry out the same at his own cost and in good time.
- In the case of seizure or other third-party intervention, the customer must inform us of this immediately in writing, so that we can take legal action under § 771 of the ZPO Code of Civil Proceedings. The customer shall be liable for any loss we may incur should the third party not be in a position to reimburse the legal and extrajudicial costs of action under § 771 of the ZPO Code of Civil Proceedings.
- The customer shall be entitled to re-sell the goods sold to him in the regular course of business; however, from this moment forth, the customer hereby assigns and transfers us all claims up to the amount of the final invoice (including VAT), which may result from reselling to a buyer or third party, regardless of whether the goods in question have been resold with or without further reworking or processing. The customer shall remain authorised to collect any such claims even after assignment. Our authority to collect these claims ourselves shall remain unaffected thereby. We do undertake, however, not to collect these claims so long as the customer meets with his payment obligations from the collected proceeds, does not fall into default of payment and in particular so long as no application for the opening of legal composition or insolvency proceedings or bankruptcy have been made.
If that is the case, however, we can then require that the customer reveals to us the transferred claims and the debtors, gives us all the details necessary for collecting such claims, hands over the relevant documents and informs the debtors (third parties) of the assignment undertaken.
- The reworking or alteration of the goods sold carried out by the customer is always undertaken on our behalf. Should the goods sold be reworked with other objects that do not belong to us, then we shall gain joint ownership of the new object in proportion to the value of the goods sold (final invoice amount, including VAT) to that of the other worked objects at the time of reworking. What is more, the same applies for objects arising from re-working as for goods delivered under retention of title.
- Should the goods sold be inseparably joined to, or mixed with, other objects that we do not own, we shall then gain joint ownership of the new object in proportion to the value of the sold goods (Final invoice amount, including VAT) to that of the objects produced by others at the time of joining or mixing. Should the joining be accomplished in such a way that the customer’s object can be regarded as the main item, it shall be considered agreed that the customer has transferred proportional joint ownership to us. The client holds on our behalf the custody of the sole ownership or joint ownership that has thereby arisen.
- The client shall also assign to us the claims as security for our claims against him, which might accrue against a third party through connecting the sold goods with a site or premises.
- We undertake to release at the request of the customer the securities due to us insofar as the realisable value of our securities exceeds the claims that the securities are securing by more than 10%, the choice of securities to be released shall remain in our discretion.
§10 Place of Jurisdiction – Place of Performance
- For commercial business customers, the registered office of andres GmbH is in (Niederkassel-Rheidt) within the jurisdiction of the (District Court of Siegburg, Regional Court of Bonn); however, we reserve the right to bring action against the customer at the court where he is domiciled.
- The laws of the Federal Republic of Germany apply; the application of CISG law is expressly excluded.
- In Insofar as nothing to the contrary is stated in the order confirmation, the place of performance shall be our registered office (Niederkassel-Rheidt).
Stand as per 01/11