General terms and conditions of Andres Industries AG
§ 1 General – Scope
(1) Our conditions of sale apply exclusively; We do not recognize any customer conditions that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our conditions of sale also apply if we carry out the delivery to the customer without reservation despite being aware of the customer's conditions that conflict with or deviate from our conditions of sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our terms and conditions of sale only apply to entrepreneurs within the meaning of Section 310 Paragraph 1 BGB.
§ 2 Offer – Offer documents
(1) If the order qualifies as an offer in accordance with Section 145 of the German Civil Code (BGB), we can accept this within 2 weeks.
(2) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents that are designated as “confidential”. Before passing it on to third parties, the customer requires our express written consent.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices apply “ex works”, excluding packaging; this will be invoiced separately.
(2) Statutory sales tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of cash discounts requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deductions) is due for payment within 30 days of the invoice date. The legal rules regarding the consequences of late payment apply.
(5) The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. He is also authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 4 Reservation of self-delivery
The contract is concluded subject to timely and correct delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, especially if a congruent cover transaction has been concluded with our supplier. We will inform the customer about the unavailability of the goods and immediately refund any consideration already provided.
§ 5 Delivery time
(1) The start of the delivery time specified by us requires that all technical questions have been clarified.
(2) Compliance with our delivery obligation also requires the timely and proper fulfillment of the customer's obligation. The exception of the unfulfilled contract remains reserved.
(3) If the customer defaults on acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for any damage we incur, including any additional expenses. Further claims or rights remain reserved.
(4) If the requirements of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which the customer is in default of acceptance or debtor.
(5) We are liable in accordance with the statutory provisions if the underlying purchase contract is a fixed-term transaction within the meaning of Section 286 Paragraph 2 No. 4 BGB or Section 376 HGB. We are also liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in further fulfillment of the contract has ceased.
(6) We are also liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; Any negligence on the part of our representatives or vicarious agents is to be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage.
(7) We are also liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is based on the culpable violation of an essential contractual obligation; In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
(8) Furthermore, in the event of a delay in delivery, we are liable for a flat-rate compensation for delay of 3% of the delivery value for each complete week of delay, but not more than 15% of the delivery value.
(9) Further legal claims and rights of the customer remain reserved.
§ 6 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery is agreed “ex works”.
(2) Separate agreements apply to the return of packaging.
(3) If the customer requests it, we will cover the delivery with transport insurance; The customer bears the costs incurred in this regard.
§ 7 Liability for defects
(1) The customer's claims for defects require that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).
(2) If there is a defect in the purchased item, the customer is entitled to subsequent performance. In the event of remedying the defect or delivering a replacement, we are obliged to bear all expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs, unless these are increased by the fact that the purchased item is sent to a location other than the place of performance was spent.
(3) If supplementary performance fails, the customer is entitled, at his discretion, to demand withdrawal or a reduction in price.
(4) We are liable in accordance with the statutory provisions if the customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are accused of an intentional breach of contract, liability for damages is limited to foreseeable, typically occurring damage.
(5) We are liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; Even in this case, liability for damages is limited to the foreseeable, typically occurring damage.
(6) Liability for culpable injury to life, body or health remains unaffected; This also applies to mandatory liability under the Product Liability Act.
(7) Unless otherwise stipulated above, liability is excluded.
(8) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
(9) The limitation period in the event of a delivery recourse according to §§478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
§ 8 Joint liability
(1) Any further liability for damages than provided for in §6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages due to negligence when concluding the contract, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with Section 823 of the German Civil Code (BGB).
(2) The limitation according to paragraph (1) also applies if the customer demands reimbursement of useless expenses instead of a claim for compensation for damages.
(3) If liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, employees, employees, representatives and vicarious agents.
§ 9 Securing retention of title
(1) We reserve ownership of the purchased item until all payments from the delivery contract have been received. If the customer behaves in breach of contract, particularly in the event of late payment, we are entitled to take back the purchased item. If we take back the purchased item, this constitutes a withdrawal from the contract. After taking back the purchased item, we are authorized to sell it; the proceeds from the sale are to be offset against the customer's liabilities - less appropriate realization costs.
(2) The customer is obliged to treat the purchased item with care; In particular, he is obliged to adequately insure them at their new value against fire, water and theft damage at his own expense. If maintenance and inspection work is necessary, the customer must carry this out in a timely manner at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with Section 771 ZPO. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 ZPO, the customer is liable for the loss incurred by us.
(4) The customer is entitled to resell the purchased item in the ordinary course of business; However, he now assigns to us all claims in the amount of the final invoice amount (including sales tax) of our claim that arise from the resale against his customers or third parties, regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, does not default on payment and, in particular, no application has been made to open composition or insolvency proceedings or payments have been suspended. However, if this is the case, we can demand that the customer inform us of the assigned claims and their debtors, provide all the information required for collection, hand over the associated documents and inform the debtors (third parties) of the assignment.
(5) The processing or transformation of the purchased item by the customer is always carried out on our behalf. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including sales tax) to the other processed items at the time of processing. The same applies to the item resulting from processing as to the purchased item delivered under reservation.
(6) If the purchased item is inseparably mixed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including sales tax) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer's item is seen as the main item, it is agreed that the customer transfers proportional co-ownership to us. The customer keeps the resulting sole ownership or co-ownership for us.
(7) The customer also assigns to us the claims to secure our claims against him, which arise from the connection of the purchased item with a property against a third party.
§ 10 Place of jurisdiction – place of performance
(1) If the customer is a merchant, our place of business is the place of jurisdiction; However, we are also entitled to sue the customer at his place of residence.
(2) The law of the Federal Republic of Germany applies; the validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) Unless the order confirmation states otherwise, our place of business is the place of performance.
(4) The necessary data of the customer, in particular name and address, are collected, processed and used for the purpose of fulfilling the contractual relationship.
(5) Should one or more of these conditions be or become ineffective, the effectiveness of the remaining conditions will not be affected.
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