General Terms and Conditions of Sale of ANA

Article 1 General, Scope of Application

  1. The following General Terms and Conditions of Sale (“GTCS”) shall apply upon inclusion to all business relations with:
    a&n&a GmbH & Co. KG, Benzstrasse 12, D – 35799 Merenberg (“ANA” or also “we” or “us”)
  2. These GTCS apply to all our business relationships with our customers (hereinafter referred to as: “Purchaser”). The GTCS shall only apply if the Purchaser is an entrepreneur (Section 14 of the BGB (German Civil Code)), a legal entity under public law or a special fund under public law.
  3. The GTCS shall apply in particular to contracts for the sale and/or delivery of movable items (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from external suppliers (Sections 433, 651 BGB). The GTCS in their respective version shall also apply as a framework agreement to future contracts for the sale and/or delivery of movable goods with the same Purchaser without us having to refer to them again in each individual case; we shall inform the Purchaser immediately of any changes to our GTCS in this case.
  4. Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.
    This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Purchaser without reservation in the knowledge of the Purchaser’s GTCS.
  5. In individual cases, individual agreements made with the Purchaser (including ancillary agreements, supplements and amendments) shall always take precedence over these GTCS. A written contract or our written confirmation shall be authoritative for the content of such agreements.
  6. Legally relevant declarations and notifications by the Purchaser with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further forms of documentary evidence, particularly in cases of doubt about the legitimacy of the declarant, shall remain unaffected.
  7. References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS. ANA is committed to socio-ecological criteria and recognises only the applicable legal regulations in this respect, in particular those of the LkSG (Supply Chain Due Diligence Act), as standard.
  8. Existing certifications from ANA or for goods can be accessed on the Internet at www.ana-aqualine.de… stating the period of validity. The Purchaser shall not be entitled to any further certifications, unless the parties mutually agree otherwise in writing.
  9. If the Purchaser makes use of the right to carry out audits, these shall as a rule be announced, only unannounced if there is an important reason, and always carried out under consideration of ANA’s justified interest in undisturbed operational processes.
  10. We are generally entitled to use subcontractors as vicarious agents. The Purchaser can only
    object to this if the use of the specific subcontractor is unreasonable for him.

Article 2 Conclusion of the Contract

  1. Our offers are marked either as “Non-binding offer” or as “Offer” and are submitted to the Purchaser. An offer marked as “Non-binding offer” is subject to change and non-binding. This shall also apply if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights. If an offer is not marked or otherwise marked, it is deemed to be an “Offer” in case of doubt.
  2. If an offer is marked as “Offer”, it shall be deemed to be
    a binding offer within the meaning of Section 145 clause 1 of the German Civil Code (BGB) . Unless otherwise stated in the offer, we shall be bound by this offer for 5 working days. The contract shall be concluded immediately upon order or other confirmation of the “Offer” or an offer deemed to be an “Offer” pursuant to Article 2 (1) sentence 4 of the GTCS by the Purchaser, but no later than upon delivery of the goods.
  3. If an order is placed by the Purchaser in response to an offer marked as “Non-Binding Offer”, the Purchaser’s order for the goods shall be deemed to be a binding offer to enter into a contract. Unless otherwise stated in the order, the respective TWE group company is entitled to accept this contractual offer within 7 working days after its receipt there. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
  4. Subject to a binding stipulation of delivery/release quantities that has been agreed in writing in an individual contract and expressly designated as such, we shall not be obliged to submit offers or accept orders. In principle, we do not assume an unrestricted delivery obligation.

Article 3 Delivery Period and Delay in Delivery; Force Majeure

  1. The delivery period is agreed individually or is stated by us when the order is accepted.
  2. If we are unable to comply with binding delivery periods for reasons for which we are not responsible (impossibility of performance), we shall inform the Purchaser of this immediately and at the same time inform the Purchaser of the expected new delivery period. If performance is also not possible within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; in this case we shall reimburse any service in return (consideration) that has already been provided by the Purchaser without delay. A case of nonavailability of the service in this sense is deemed to be in particular the nontimely self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our suppliers are at fault or we are not obliged to procure in the individual case as well as in cases of force majeure (see following paragraph).
  3. Force majeure includes unforeseeable events for which we are not responsible, and in particular cases of war, the threat of war, civil unrest, political instability, terrorist attacks on a large scale, epidemics, epidemics, pandemics or natural disasters, work disruptions and interruptions, considerable economic difficulties (price inflation) in the procurement of raw materials or energy and other means of production, delays in transport, strikes, lockouts, energy shortages (in particular due to a gas shortage) and government prohibitions (e.g. failure to issue necessary permits or approvals). If events of force majeure are only of temporary duration, the delivery times shall be extended accordingly. Insofar as such events make delivery significantly more difficult or impossible for ANA and the impediment is not only of a temporary duration, ANA shall be entitled to demand adjustments to the contract (including price adjustments) or to withdraw from the contract in whole or in part; in the latter case, any payment already made or other consideration already provided shall be refunded to the Purchaser without delay. In particular, ANA shall also be entitled to reduce agreed delivery quantities to a reasonable extent and until the end of the event.
  4. The rights of the Purchaser pursuant to Article 8 of these GTCS and our statutory rights in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

Article 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

  1. Unless otherwise agreed in the respective contract pursuant to Article 2, delivery shall be EXW Benzstrasse 12, D – 35799 Merenberg (INCOTERMS 2020), which is also the place of performance. At the request and expense of the Purchaser, the goods shall be shipped to another destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
  2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, is already transferred upon delivery of the goods to the forwarding agent, carrier or the other person or institution that is designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the case of agreed acceptance. If the Purchaser is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
    If the Purchaser is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
    In this case, we charge a lump-sum compensation of 1% of the respective delivery value per week, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification of the readiness of the goods for dispatch, but not exceeding a total of 5% of the delivery value.
    The opportunity to submit proof of a higher level of damages and our statutory claims (in particular reimbursement for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the all-inclusive lump sum shall be set off against any further monetary claims. The Purchaser shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the above lump sum.

Article 5 Prices and Terms of Payment

  1. Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, namely EXW Benzstrasse 12, D – 35799 Merenberg (INCOTERMS 2020), plus statutory VAT. If delivery is made later than four months after conclusion of the contract or within the framework of continuing obligations, the prices shall be determined according to our prices valid at the time of delivery, unless otherwise agreed. Our right to demand price adjustment shall remain unaffected if circumstances which have become the basis of the contract have changed seriously and the parties would not have concluded the contract or would have concluded it with different content if they had foreseen the change and we cannot reasonably be expected to adhere to the unchanged contract. This may include, in particular, the identification of a gas shortage, an energy shortage, significant increases in logistics costs or similar events.
  2. In the case of sale by delivery to a place other than the place of performance (Article 4, para. 1), the Purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Purchaser. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the Purchaser, with the exception of Euro pallets.
  3. Unless a different payment term has been agreed, the purchase price shall be due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, we are entitled at any time – even within the framework of an ongoing business relationship – to carry out a delivery in whole or in part only in return for advance payment. We shall declare any such reservation at the latest together with the order confirmation. Discounts, rebates or other reductions are only deductible after separate written agreement.
  4. Upon the expiry of the above payment deadline, the Purchaser shall be in default. During the period of default, the purchase price shall bear interest at the statutory default interest rate that is applicable at the time. We reserve the right to assert claims for further damages caused by delay. Our claim to the commercial maturity interest (Section 353 of the German Commercial Code (HGB)) against merchants remains unaffected.
  5. The Purchaser shall only have rights of set-off or retention to the extent that its claim is legally established or undisputed. In the event of defects in the delivery, the reciprocal rights of the Purchaser, in particular those in accordance with Article 7, para. 6 sentence 2 of these General Terms and Conditions of Sale, shall remain unaffected.
  6. We are entitled to execute or provide outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, we become aware of circumstances which are likely to significantly reduce the creditworthiness of the Purchaser and which jeopardise the payment of our outstanding claims by the Purchaser from the respective contractual relationship (including from other individual orders to which the same framework agreement applies). In these cases, we are also entitled to withdraw from the contract. In the case of contracts for the manufacture of unacceptable items (custom-made products), we may declare withdrawal from the contract immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.

Article 6 Retention of Title

  1. We reserve the ownership of the goods sold until the full payment of all our present and future claims associated with the purchase contract and an ongoing business relationship (secured claims).
  2. The goods which are subject to the retention of title may neither be pledged to third parties nor transferred by way of security before the full payment of the secured claims. The Purchaser shall notify us in writing without delay if and to the extent that third parties have access to the goods belonging to us.
  3. In the event of conduct by the Purchaser in breach of the contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously set the Purchaser a reasonable deadline for payment without success or if such setting of a deadline is not required according to the statutory provisions.
  4. Until revoked in accordance with point 3 below, the Purchaser is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
    1. The retention of title shall extend to the full value of the products that are created from the processing, mixing or combination of our goods, whereby we shall be considered to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains unchanged, we shall acquire co-ownership in the same ratio as the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under the reservation of title.
    2. The Purchaser hereby assigns to us by way of security all claims against third parties arising from the re-sale of the goods or product, in total or to the level of any co-ownership share, in accordance with the preceding paragraph. We hereby accept the assignment. The obligations of the Purchaser referred to in paragraph 2 also apply in respect of the assigned claims.
    3. The Purchaser shall remain authorised to collect the claim in addition to ourselves. We undertake not to collect the claim as long as the Purchaser meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the Purchaser informs us of the assigned claims and their debtors, provides us with all of the details necessary for collection, surrenders the associated documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Purchaser’s authority to continue selling and processing the goods which are subject to the retention of title.
    4. If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Purchaser’s request.

Section 7 Warranty Claims of the Purchaser

  1. The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title (including incorrect and short delivery, as well as improper assembly or incorrect assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions shall remain unaffected in the case of the final delivery of the goods to a consumer, even if the consumer has processed them further (supplier recourse according to Sections 478, 445a, 445b of the BGB (German Civil Code)). Claims from supplier recourse shall be excluded if the defective goods have been further processed by the Purchaser or another commercial enterprise, e.g. by incorporation into another product.
  2. The basis of our liability for defects, if any, is solely the agreement reached on the quality of the goods (subjective requirements). If subjective requirements are present, they are complete and conclusive. The product descriptions designated as such (including those of the manufacturer) which were provided to the Purchaser prior to his order or which were included in the contract in the same way as these GTCS shall be deemed to be an agreement on the quality of the goods. Information provided by ANA on the goods (in particular weights, dimensions, utility values, resilience, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately relevant, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or technical specifications or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
  3. Insofar as the quality was not agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (Section 434 (2) No. 2 and No. 3 as well as 3) of the German Civil Code (in the version of 01.01.2022)). However, we do not accept liability for public statement by the manufacturer or other third parties (e.g. advertising statements). As far as defects of title are concerned, the assertion of claims for damages and/or claims for indemnification shall in any case require fault on our part.
  4. The Purchaser shall inspect the goods immediately after delivery by the respective group company, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the respective group company without delay. Should the Purchaser fail to give such notification, the goods shall be deemed approved unless the defect was not discernible during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the goods shall be deemed to have been approved, even in view of this defect. The timely dispatch of the notification shall be sufficient to preserve the rights of the Purchaser. If the respective group company has fraudulently concealed the defect, it cannot invoke this Article 7 (4). We always keep up to two retained samples per production batch.
  5. If the delivered item is defective, the Purchaser may initially demand, at his discretion, the rectification of the defect (subsequent improvement) or the delivery of a defect-free item (replacement delivery) as subsequent performance. If the Purchaser does not declare which of the two rights he chooses, we may set a reasonable deadline for him to do so. If the Purchaser does not make the choice within the time limit, the right of choice shall pass to us upon expiry of the time limit.
  6. We are entitled to make the subsequent performance that is owed dependent on the Purchaser paying the due purchase price. However, the Purchaser is entitled to retain a part of the purchase price which is appropriate in relation to the extent of the defect.
  7. The Purchaser must provide us with the time and opportunity required for the subsequent performance owed –
    in particular to surrender to us the goods to which the complaint relates for inspection purposes. In the case of a replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory provisions. The subsequent performance shall not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
  8. We shall bear or reimburse the expenses required for the purposes of inspection and subsequent performance, in particular transport, travel, labour and material costs, as well as removal and installation costs, if any, in accordance with the statutory provisions if a defect actually exists. Otherwise we may demand compensation from the Purchaser for the costs arising from the unjustified demand for the repair of defects (in particular testing and transport costs), unless the absence of defects was not apparent to the Purchaser.
  9. If the supplementary performance has failed or a reasonable deadline to be set by the Purchaser for the supplementary performance has expired unsuccessfully or is not required according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
  10. Even in the case of defects, the Purchaser’s claims for damages or compensation for futile expenditure shall only apply in accordance with Article 8 and shall otherwise be excluded.

Article 8 Other Liability

  1. Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in accordance with the relevant statutory provisions in the event of an infringement of contractual and non-contractual obligations.
  2. We shall be liable for the payment of compensation for damages – for whatever legal reason – within the scope of liability for culpable intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. due care in own affairs),
    1. for damage resulting from injury to life, body or health,
    2. for damages arising from the not inconsiderable breach of a material contractual obligation (obligation whose fulfilment is essential to the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
  3. The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the qualityof the goods. The same applies to claims of the Purchaser under the Product Liability Act.
  4. Due to a breach of duty which does not consist of a defect, the Purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination by the Purchaser (in particular in accordance with Sections 651, 649 BGB) is excluded. In all other respects the legal requirements and legal consequences shall apply.

Article 9 Limitation Period

  1. Notwithstanding Section 438, para. 1, no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from the time of delivery. Insofar as acceptance has been agreed, the limitation period shall begin upon acceptance. This period shall not apply to claims for damages of the Purchaser arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by ANA or its vicarious agents as well as from the Product Liability Act, each of which shall become time-barred in accordance with the statutory provisions.
  2. If, however, the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 para. 1 no. 2 BGB). Special statutory provisions on the limitation period shall also remain unaffected, in particular those for claims in rem for restitution by third parties (Section 438 para. 1 no. 1 BGB), in the event of fraudulent intent (Section 438 para. 3 BGB) and for claims in supplier recourse (Sections 444, 445b BGB).
  3. The above limitation periods under sales law shall also apply to contractual and non-contractual claims for damages of the Purchaser which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages on the part of the Purchaser pursuant to Article 8 para. 2 sentence 1 and sentence 2 a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

Article 10 Confidentiality

  1. The Purchaser is obliged to keep the terms and conditions of the order as well as all information and documents provided for this purpose and within the scope of the business relationship (with the exception of publicly accessible information) secret for a period of 3 years after conclusion of the contract and to use them exclusively for the purpose of executing the contract.
  2. Without our prior written consent, the Purchaser may not refer to or advertise the business relationship with us in any advertising material, brochures, websites, etc.

Article 11 Choice of Law and Place of Jurisdiction

  1. The law of the Federal Republic of Germany shall apply to these GTCS and all legal relationships between us and the Purchaser to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the retention of title pursuant to Article 6 shall be governed by the law of the respective place of storage of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective thereafter.
  2. If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Limburg a. d. Lahn, Hessen, Germany, unless there is a legally binding, exclusive place of jurisdiction. However, we are also entitled to bring an action at the general place of jurisdiction of the Purchaser.

Article 12 Information on Online Dispute Settlement/ Consumer Dispute Settlement Act

  1. The EU Commission has created an internet platform for the online settlement of disputes (so-called “ODR platform”). The ODR platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts. You can access the ODR platform at the following link: http://ec.europa.eu/consum-ers/odr
  2. The group companies will not participate in a dispute resolution procedure before a consumer arbitration board within the meaning of the VSBG (Consumer Dispute Resolution Act) and are not obliged to do so.