1 Validity, performance, applicable law
1.1 These Terms and Conditions shall apply to companies if the transaction is part of the running of their commercial activities, to legal entities under public law or to special funds under public law.
1.2 The exclusive place of performance for all rights and obligations arising from this Contract for both Parties is the registered office of AN Collection GmbH, hereinafter AN Collection.
1.3 The place of jurisdiction for any and all disputes is the competent local or district court for the registered office of AN Collection. The law of the Federal Republic
of Germany shall apply.
2 Offer and conclusion of the Contract, prices
2.1 The prices of AN Collection are listed in euros. Value-added tax is stated separately in the applicable statutory amount. Weight information serves solely to determine freight charges. Costs for packaging, assembly, direct delivery and freight costs below the paid freight levels shall be billed separately and are not subject to the discount and bonus terms.
2.2 A contract shall be deemed to have been concluded in a legally binding manner once a written order confirmation has been provided by AN Collection. In the interests of legal certainty, subsequent amendments to the concluded Contract must be confirmed in writing.
AN Collection shall be entitled to bill the Purchaser for any extra costs incurred due to amendments to the concluded Contract.
2.3 AN Collection hereby expressly rejects any terms and conditions of purchase of the Purchaser that deviate from AN Collection’s Terms and Conditions.
This shall also apply in the event that the Purchaser specifies a particular form
in which such rejection must be made or has excluded such rejection of its own terms and conditions.
3 Delivery time
3.1 AN Collection shall only be deemed to be in default of delivery if the promised delivery time has been exceeded by more than four weeks and the Purchaser has sent a reminder to AN Collection upon the expiry of this extension period, setting a further grace period of at least two weeks. Forward transactions shall then only be deemed to have been agreed if AN Collection has expressly confirmed the delivery deadline in writing, adding the word “fix”.
3.2 AN Collection shall inform the Purchaser in writing of the likely delivery deadline once the customer has given the go-ahead for production. The likely delivery deadline provided in this regard shall have no binding effect for AN Collection.
3.3 Furthermore, AN Collection shall not be considered to be in default of delivery if it is prevented from fulfilling its delivery obligation due to unforeseeable circumstances, regardless of whether such circumstances occur in the factory or with sub-suppliers, or due to circumstances not attributable to AN Collection, including strikes, lockouts, business interruptions, accidents or other events resulting in cessation of work, in whole or in part, which cause a partial or complete stoppage of work. The same shall apply to any delays in deliveries by upstream suppliers, insufficient power supply and in any and all cases of force majeure.
3.4 AN Collection shall be entitled to make partial deliveries and perform partial services to a reasonable extent.
3.5 If AN Collection is nevertheless liable to the Purchaser or third parties due to default of delivery, the amount of liability shall be limited to a maximum of five percent (5%) of the net product value. The Purchaser shall bear the sole burden of proof for proving the amount of damages incurred as a result of said default.
4 Packaging, shipping, transfer of risk, acceptance
4.1 If acceptance or delivery is delayed for reasons attributable to the Purchaser, the risk shall be transferred to the Purchaser upon readiness for dispatch. AN Collection shall be entitled to bill the Purchaser for the goods ordered upon notification of readiness for dispatch.
4.2 Products shall be packaged at the discretion of AN Collection. AN Collection shall not provide compensation for damages which occur during transport. AN Collection shall bill for packaging at cost price. Packaging may not be returned to AN Collection.
4.3 In general, the Parties shall agree an obligation to dispatch what is owed unless otherwise agreed in writing. If and insofar as the Purchaser does not issue any other instructions, the shipping method shall be at the discretion of AN Collection without AN Collection being subject to any obligation to commission low-priced shipping or transport for the goods purchased.
4.4 The risk shall be transferred to the Purchaser upon handover of the goods to the shipping agent; however, not later than at such time as the goods leave AN Collection’s warehouse, regardless of which Party bears the shipping costs.
4.5 AN Collection shall be released from any obligation to conclude a transport insurance policy for the Purchaser. The Purchaser shall bear the risk of any underinsurance of the goods being transported.
5.1 Unless otherwise agreed, AN Collection’s invoices shall be payable in full within 30 days as of the invoice date.
5.2 The Purchaser shall only be entitled to a discount if this has been expressly agreed. Even if discount conditions are printed on AN Collection’s invoice, these shall not be deemed to have been agreed if the Purchaser has failed to comply with the respective payment deadlines or invoices previously billed to the Purchaser have not yet been paid, in whole or in part, beyond the discount periods.
5.3 AN Collection expressly reserves the right to accept bills of exchange or checks. They are generally only accepted as payment. Discount charges shall be borne by the Purchaser and shall be reimbursed to AN Collection immediately in cash.
5.4 The Purchaser shall dispense with asserting any right of retention from previous or other transactions that are part of the ongoing business relationship.
Set-off with counterclaims shall generally not be acceptable. This shall only
be permitted if and insofar as AN Collection acknowledges the counterclaim and is legally required to pay by virtue of a court decision.
5.5 Any and all claims by AN Collection, including those for which AN Collection has accepted bills of exchange, shall be payable immediately in the event of failure to comply with the payment terms or if AN Collection becomes aware of any circumstances once the respective Contract has been concluded that are liable to reduce the Purchaser’s creditworthiness. Furthermore, in such cases, AN Collection shall be entitled to only execute outstanding deliveries in exchange for advance payment if and insofar as the Purchaser has not already provided security in an appropriate amount upon request by AN Collection. AN Collection shall be entitled to withdraw from the Contract upon the expiry of a reasonable grace period. AN Collection may then prohibit the resale of the goods delivered subject to retention of title and may request their return or transfer of direct ownership at the Purchaser’s expense.
6 Retention of title
6.1 The goods shall be delivered subject to a retention of title pursuant to Section 449 of the German Civil Code (Bürgerliches Gesetzbuch [BGB]) with the following additional provisions. The goods shall remain the property of AN Collection until such time as payment of all debts owed by the Purchaser arising from the business relationship, including any future debts, has been rendered. The Purchaser’s acquisition of ownership of the retained goods is prohibited in the event that the retained goods are processed to form a new item. Any processing shall be done by the Purchaser on behalf of AN Collection.
6.2 With respect to the processing of other goods not belonging to AN Collection by the Purchaser, AN Collection shall always hold partial ownership of the new item proportionate to the value of the retained goods to the other processed goods at such time as the agreement is concluded if and insofar as a retention of title is also asserted by third parties with respect to the retained goods. The same shall apply to the new item resulting from processing as applies to the retained goods. These shall be deemed retained goods in the context of this provision.
6.3 The Purchaser’s claims arising from the resale of the retained goods shall hereby be ceded to AN Collection, regardless of whether the retained goods are sold on without or after processing and whether they were sold on to one or more consumers. Such ceded claims shall serve as security for AN Collection up to the amount of the existing claims; for multiple suppliers in relation to the respective outstanding claims pertaining to the retained goods.
6.4 The Purchaser shall only be entitled and authorized to sell on and resell the retained goods if and insofar as the resale purchase price claim is passed on to AN Collection pursuant to Section 5 above. The Purchaser shall not be entitled to dispose over the retained goods in any other way.
6.5 The Purchaser shall be entitled to collect the receivables resulting from resale despite this assignment.
However, AN Collection’s collection authority shall take precedence over any such authority of the Purchaser in this respect.
6.6 AN Collection’s retention of title shall be subject to the proviso that ownership of the retained goods shall readily transfer to the Purchaser upon payment in full of all claims by AN Collection arising from the business relationship.
6.7 AN Collection undertakes to release any security owing to AN Collection at its own discretion, in whole or in part, pursuant to the above provisions if its value exceeds the claims to be secured by 50%.
7 Liability for defects
7.1 The Purchaser shall only be entitled to warranty rights if it has duly fulfilled its statutory obligations to inspect the goods and provide notification of defects pursuant to Sections 377 and 438 of the German Commercial Code (Handelsgesetzbuch [HGB]).
7.2 In the event of transport damages, in particular obvious external damages to the packaging and the item being transported, the Purchaser or its designated recipient shall undertake to obtain a corresponding written statement from the transport company. In this case, the transport company may not merely provide a signed receipt.
7.3 Other defective deliveries, including deliveries deviating from the order, must be notified within eight (8) days where there are obvious external defects or deviations.
Where the defects or deviations are not readily apparent, notification must be given within eight (8) days as of discovery of such defects or deviations; however, immediately upon assembly of the delivered goods. The deadline for notification shall be determined by the time of delivery/assembly and the date on which the notification of defects has been received. The defect or deviation from the order must be precisely described.
7.4 If the Purchaser sells the goods and subsequently asserts a claim for defects against AN Collection, the deadline for notification of defects stipulated in Section 7.1 above shall apply, even if the Purchaser itself did not inspect the goods and the defect was noticeable upon customary inspection.
7.5 Excluded from liability for defects is any deviation in the color of the delivered goods if and insofar as the color was chosen by AN Collection in accordance with the contractual provisions pursuant to the RAL, NCS or SIKKENS system. The same shall apply for subsequent or replacement deliveries, even if said subsequent or replacement delivery is not due to the color.
Deviations in color for specially mixed colors shall generally be excluded from liability for defects.
7.6 No claims for defects may be asserted if the Purchaser has failed to mention key information regarding the expected usage of the item or if the defect is attributable to the fact that installation instructions were disregarded, the item ordered was improperly used or handled or was used in an extreme or unforeseeable manner, if the defect is attributable to natural wear and tear or if the Purchaser or a third party has undertaken repairs or if the defect is attributable to natural wear and tear or if the Purchaser or a third party has undertaken repairs or modifies the delivered item to the exclusion of AN Collection. Claims for defects
over and above this shall principally be excluded if the Purchaser or a third party modifies the delivered item to the exclusion of AN Collection.
7.7 Contrary to the statutory provisions, the Purchaser shall bear the burden of proof for demonstrating that the defect to the delivered item was already present at the time that the item was delivered. This shall not apply in the case of malicious deceit or intent, nor in the event that a defect is present that could not have been caused by any intervention by the Purchaser or third party. The burden of proof in this regard shall lie with the Purchaser. In the event of justified claims asserted within the deadline, AN Collection shall be entitled to render supplementary performance, remedy the defect or provide a replacement delivery at its discretion. The Purchaser shall only be entitled to withdraw from the Contract or to a price reduction if said supplementary performance, remedy of defects or replacement delivery provided by AN Collection has failed at least twice. For the purposes of clarification, we would point out that assembly errors are not considered material defects if and insofar as said assembly was not carried out by AN Collection. In the event of the rectification of a defect on a replacement delivery, AN Collection shall bear the expenses required in this respect. This shall not apply if said expenses increase because the item sold has been transported to another destination than the Purchaser’s residence or commercial establishment or any other destination following delivery. For returns or exchanges of the delivered goods, the Purchaser shall provide said items for transport with proper packaging. Items for which AN Collection has provided a replacement shall become the property of AN Collection.
7.8 Any further liability for damages as stipulated above shall be excluded, regardless of the legal nature of the asserted claim unless this conflicts with mandatory statutory provisions. This shall also apply to claims for damages attributable to negligence at such time as the Contract is concluded, other
breaches of duty or tortious claims for damages in a broader sense. In any case, the Purchaser’s claim for damages against AN Collection shall be limited to €1,000.00 per individual order. The above exclusion of liability shall also apply to personal liability for compensation to employees, representatives or other vicarious agents of AN Collection.
8 Withdrawal, flat compensation charges
8.1 If the Purchaser withdraws from the Contract for reasons not attributable to AN Collection or fails to accept performance by AN Collection despite a deadline being set, AN Collection shall be entitled to withdraw from the Contract. Withdrawal shall enter into effect upon receipt of the declaration of withdrawal by the Purchaser. In this case, AN Collection shall be entitled to claim a flat compensation charge
in the amount of 50% of the order value. The Purchaser reserves the right to prove that a lower amount of damages has been incurred or to assert a higher amount of damages.
8.2 Furthermore, AN Collection shall be entitled to withdraw in the event of force majeure or similar cases, provided the disruption is not attributable to AN Collection and provided that it would be unreasonable for AN Collection to render its services at a later date due to scheduling difficulties or where this may endanger other contracts.
9 Copyright, confidentiality
9.1 Figures from brochures, other advertising documents and drawings by AN Collection are protected by copyright. Any breach of said copyright may be liable to prosecution. Figures and drawings may not be copied, duplicated or used in any other way by the Purchaser for its own purposes, either directly or indirectly, without written permission from AN Collection. Furthermore, the Parties agree to maintain absolute confidentiality with respect to all trade secrets.
10 Other provisions
If any provision(s) of these Terms and Conditions is/are or become(s) invalid, this shall not affect the validity of the remaining provisions.
AN Collection GmbH | Heidegrundweg 104 – 108 | 33689 Bielefeld | T. +49 (0) 5205 7502-14 | www.an-collection.com