General terms and conditions of Andres Industries AG
§ 1 General – Scope of application
(1) Our terms of sale apply exclusively; we do not recognize conflicting terms or terms of the customer that differ, unless we expressly consent in writing to their validity. Our terms of sale also apply in cases where we unconditionally perform the delivery to the customer even though we are aware of conflicting terms or terms of the customer that differ from ours.
(2) All agreements that are made between us and the customer for the purpose of performing this contract are recorded in writing in this contract.
(3) Our terms of sale apply only with respect to businesses in the sense of § 310 Par. 1 German Civil Code (BGB).
§ 2 Offer – Offer documents
(1) If the order qualifies as an offer pursuant to 145 BGB, then we may accept it within two weeks.
(2) All property rights and copyrights are reserved on pictures, drawings, calculations and any other documents. This also applies to such written documents as are marked "confidential". The customer must obtain our express written approval before passing them on to third parties.
§ 3 Prices – Terms of payment
(1) Except where otherwise provided in the order confirmation, our prices are ex works, excluding packaging, which will be charged separately.
(2) Statutory sales tax is not included in our prices; it will be listed separately on the invoice at the statutory rate in force on day the invoice is issued.
(3) Discounts may be granted only if a special written agreement has been reached.
(4) If nothing else is stated on the order confirmation, payment of the net purchase price (without discount) is due within 30 days from the invoice date. Concerning the consequences of default in payment, legal stipulations apply.
(5) The customer is entitled to offsetting rights only if the customer's counterclaims have been found to be legally binding, are uncontested or have been recognized by us. Moreover the customer is only entitled to exercise a right of retention to the extent that the customer's counterclaim is based on the same contractual relationship.
§ 4 Self-supply reservation
The conclusion of the contract is subject to the correct and timely supply to us, ourselves, by our suppliers. This applies only in the case that a failure to deliver is not caused by us, particularly if a matching covering transaction has been concluded with our supplier. We will notify the customer that the goods are unavailable and any compensation already paid shall be promptly reimbursed.
§ 5 Delivery time
(1) The delivery time we specify shall commence only after all technical issues have been resolved.
(2) Our delivery obligations shall be met as long as the customer continues to fulfill its obligations properly and on time. The right to object based on non-fulfillment of the contract is reserved.
(3) If the customer is in default of acceptance or culpably breaches any other obligations to cooperate, we shall be entitled to the right to compensation for any damages thus far suffered, including any additional expenses. Further claims or rights are reserved.
(4) Provided the conditions of Par. (3) are fulfilled, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the time at which the customer finds itself in default of acceptance or debtor's delay.
(5) We are liable in accordance with legal provisions insofar as the sales contract in question is a transaction on fixed terms in the sense of § 286 Par. 2 No. 4 German Civil Code (BGB) or § 376 German Commercial Code (HGB). We are liable in accordance with legal provisions provided the customer, as consequence of a delay in delivery for which we are responsible, is entitled to claim that its interest in the further fulfillment of the contract has ceased.
(6) We are further liable in accordance with legal provisions provided the delay in delivery is due to intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Provided the delay in delivery is based on a grossly negligent breach of contract for which we are responsible, our liability for compensation shall be limited to the foreseeable damage that would typically occur.
(7) We are liable in accordance with legal provisions even in cases where the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for compensation shall be limited to the foreseeable damage that would typically occur.
(8) Otherwise, in the case of delay in delivery, we are liable for each completed week of delay within the limits of lump-sum compensation for delay to the amount of 3% of the value of the delivery, but to a maximum of not more than 15% of the value of the delivery.
(9) Further legal claims and rights of the customer remain reserved.
§ 6 Transfer of risk – Package costs
(1) Except where otherwise provided in the order confirmation, delivery is agreed to be ex works.
(2) Separate arrangements apply for taking back packaging.
(3) If the customer wishes, we shall arrange for insurance coverage for the transport of the delivery; any costs arising in this regard shall be borne by the customer.
§ 7 Liability for defects
(1) Claims of the customer for defects presuppose that the customer has duly met its responsibilities to check the delivery and to provide notification of defects pursuant to § 377 German Commercial Code (HGB).
(2) Provided the purchased item is defective, the customer is entitled to subsequent performance. In cases where the defect is to be rectified or the delivery replaced, we are obligated to bear all expenditures that are necessary for the purpose of subsequent performance, including transport, travel, work and material costs in particular, provided these do not increase due to the fact that the purchased item was brought to a location other than the place of performance.
(3) In the event that subsequent performance fails, the customer may opt to rescind the contract or demand a reduction in price.
(4) We are liable in accordance with legal provisions provided the customer asserts compensation claims for damage that is based on intention or gross negligence, including intention or gross negligence of our representatives or vicarious agents. Provided no intentional violation of the contract is attributed to us, liability for compensation shall be limited to the foreseeable damage that would typically occur.
(5) We are liable in accordance with legal provisions provided we are culpable of breaching a material contractual obligation; in this case, too, however, the liability for compensation shall be limited to the foreseeable damage that would typically occur.
(6) Liability due to culpable injury to life, limb or health shall remain unaffected; this also applies to compulsory liability pursuant to the Product Liability Act.
(7) Liability is ruled out unless otherwise stipulated above.
(8) The statute of limitations for defects expires after 12 months from the transfer of risk.
(9) The statute of limitations in the event of delivery recourse pursuant to §§ 478, 479 German Civil Code (BGB) remains unaffected; it is five years, commencing at the time of delivery of the defective item.
§ 8 Joint and several liability
(1) Liability for damage compensation that goes beyond that which is envisaged in this § 6 – regardless of the legal nature of the claim being asserted – is ruled out. This applies in particular to damage compensation claims arising from culpa in contrahendo, due to any other violations of obligations, or due to claims in tort for indemnification of material damages pursuant to §823 German Civil Code (BGB).
(2) The limitation in Par. (1) shall also apply if, in lieu of a claim for damage compensation, the customer demands the reimbursement of futile expenses instead of performance.
(3) Provided the liability for damage compensation vis-a-vis us is ruled out or limited, the same also applies with respect to the personal damage compensation liability of our salaried employees, employees, members of staff, representatives and vicarious agents.
§ 9 Reservation of proprietary rights
(1) We retain proprietary rights to the purchased item until the receipt of all payments stipulated in the delivery contract. Should the customer breach the contract, particularly in the case of default in payment, we are entitled to repossess the purchased item. The repossession of the purchased item by us constitutes a rescission of the contract. After repossession of the purchased item, we are entitled to its utilization; proceeds of this utilization will be credited against the customer's financial obligations – after deduction of appropriate utilization costs.
(2) The customer is obligated to treat the purchased item with care; in particular, the customer is obligated to insure the purchased item at own expense sufficiently at replacement value against fire, water, and theft damage. Should maintenance and inspection work become necessary, the customer must perform this at own cost and in a timely manner.
(3) In case of seizure or other third-party interventions, the customer must inform us immediately in writing so that we can contest such actions as per § 771 German Code of Civil Procedure (ZPO). Insofar as the third party is not in a condition to reimburse to us in accordance with § 771 German Code of Civil Procedure (ZPO) the legal and extrajudicial costs of legal action, the customer shall be held liable for losses we incur.
(4) The customer is entitled to re-sell the purchase item in an orderly business transaction; the customer shall, however, already assign to us all accounts receivable to the value of the final amount of the invoice (including sales tax) of our account receivable which the customer accrues from the re-sale vis-à-vis its customers or third parties – this applies regardless of whether the purchase item has been re-sold without or after further processing. The customer remains entitled to collect this receivable even after assignment. Our own entitlement to collect the receivables ourselves remains unaffected by this. We undertake, however, not to collect the accounts receivable as long as the customer complies with its payment obligations from the collected proceeds, does not default in payment and, in particular, no petition for the institution of insolvency or composition proceedings is filed or cessations of payment exist. Should this be the case, however, we can then demand that the customer reveals to us the assigned receivables and their relevant debtors, furnishes us with all necessary information for collection, surrenders all associated documents, and notifies the debtors (third parties) of the assignment.
(5) We are always the beneficiary of all processing or transformations of the purchase item by the customer. Should the purchase item be processed together with other objects that do not belong to us, we shall acquire joint ownership of the new object at a ratio of the value of the purchase item (final invoice amount, including sales tax) to the other processed objects at the time of processing. Beyond that, the same applies to the object produced through this processing as for the purchase item supplied subject to reservation.
(6) Should the purchase item be commingled inseparably with other objects that do not belong to us, we shall acquire joint ownership of the new object at a ratio of the value of the purchase item (final invoice amount, including sales tax) to the other commingled objects at the time they are commingled. If it is commingled in a way that the item of the customer is to be deemed as the primary item, it shall be deemed as agreed that the customer assigns to us proportional co-ownership. The sole or co-ownership produced this way shall be preserved by the customer for us.
(7) To secure our claims against the customer, the customer shall also assign to us all claims against a third party that accrue to the customer through the connection of the purchase item with property.
(8) We shall undertake, by request of the customer, to release the securities to which we are entitled, insofar as the realizable value of our securities exceeds the value of the debts to be secured by more than 10%; the choice of the securities to be released is ours.
§ 10 Legal Venue – Place of Performance
(1) Insofar as the customer is a merchant, the legal venue shall be the location of our registered office; we are also entitled, however, to sue the customer at its local court as well.
(2) The laws of the Federal Republic of Germany shall apply; application of the UN CISG is excluded.
(3) Unless the order confirmation states otherwise, the location of our registered office is the place of performance.
(4) The necessary data of the customer, in particular name and address, shall be collected, processed and used for the purpose of fulfilling the contract.
(5) Should one or more of these conditions be or become invalid, the validity of the rest of the conditions shall remain unaffected.
Berlin, March 2008