General Business Terms

General Business Terms
(Conditions of sale)
of the
Wandres GmbH micro-cleaning

Section 1: Validity of conditions

  1. Wandres’ deliveries, services and quotations are based solely on these business terms. The conditions shall therefore apply to all future business relations even if this is not expressly agreed again between the parties. Acceptance of goods or services shall be regarded as an acceptance of these conditions. These conditions take precedence over any general business conditions or purchase specifications of the purchaser.
  2. Exceptions to these conditions apply only where they have been confirmed in writing by Wandres, or where a separate contract between Wandres and the purchaser has been agreed. No substitution shall be permitted.

Section 2: Quotations and completion of contract

  1. Quotations given by Wandres are subject to alterations and are non-binding unless otherwise specified. This applies to the prices given as well as to any special offers mentioned in brochures, advertisements etc. Quotations that have been especially prepared for a specific application are valid for 90 days. The purchaser is bound by any order placed with Wandres for 90 days.
  2. Declarations of acceptances and orders of any kind must be confirmed by Wandres in writing or by fax to be legally effective. In the case of addends, amendments or supplementary agreements no substitution is permitted.
  3. Technical drawings, illustrations, dimensions, weights or any other technical details are only binding where this has been explicitly agreed in writing. Technical drawings, estimates, plans and other documents may not be given to third parties. Wandres reserves ownership and copyright on these objects. Wandres undertakes to make information and documents which the purchaser declares confidential available to third parties only with the purchaser’s consent.

Section 3: Price and payment

  1. Where no special agreement has been reached, prices apply “ex works“, excluding packaging. VAT is not included.
  2. If not specified otherwise, payment must be made in full at Wandres payment offices within 10 days of the date of the invoice. Within this period of time, a discount of 2% may be deducted. For amounts exceeding 20,000 euro, payments must be effected as follows:
    The first invoice amounting to 35% will be issued after Wandres has sent the order acknowledgement to the purchaser.
    The second invoice amounting to 55% will be issued after the purchaser’s acceptance of goods at Wandres’ premises. If such an acceptance procedure does not take place, the second invoice will be issued at the passing of the risk as described in Section 5, sub-section 1 of these General Business Terms.
    The third invoice amounting to 10% will be issued 10 days after the end of the period of time which Wandres grants the purchaser for technical checking of the goods.
  3. The purchaser may not withhold payments or set off any possible counterclaims that are disputed by Wandres.
  4. If the purchaser is in arrears, Wandres is entitled to charge interests on the amount due. Interests will be charged at a rate 8 percentage points above the interest rate charged by the European Central Bank as global damage compensation. A lesser compensation may be agreed upon if the purchaser can prove that the damage caused is less than represented by the above global compensation provision. Wandres, in turn, may prove that the damage caused is higher than the above provision.
    Should the purchaser fail to settle within 30 days of the due date, Wandres is entitled to regard all outstanding amounts – including such which arise from other legal relationships - as being due. This also applies to payments where Wandres had originally extended the payment period and to discountable bills of exchange. Wandres may also withdraw from the contract and demand payments in advance for future deliveries.
  5. The basis of the contract will always be the unlimited creditworthiness of the purchaser. Should the purchaser’s financial situation deteriorate, especially where insolvency proceedings have been applied for or where bill or cheque protests exists or an oath of disclosure, Wandres may withdraw from the contract or insist on prepayment.
  6. Wandres will only accept bills and cheques on condition that they are fully discountable. Discount fees and taxes for bills of exchange must be paid by the purchaser without deductions within 10 days of the invoice date.Wandres will not assume any liability for the punctual presentation, protest, notification or rejection should the bill not be cashed. Amounts outstanding that are attested to by a bill of exchange or related to bills of exchange are automatically due at once if the bill is not discountable due to reasons that originate with the purchaser.

Section 4: Delivery and time of delivery

  1. Binding delivery dates must be agreed in writing.
  2. The term of delivery starts with the sending of the order acknowledgement. It does not start, however, until all the documents – approvals, authorisations – that the purchaser has to present, have been received. It also does not start before the first prepayments have been effected. The terms of delivery have been met where the material has left the plant at the end of the agreed period or if the purchaser has been informed that the material is ready for shipment.
  3. Wandres is not liable for any delays in deliveries or services for reasons of force majeure or circumstances beyond its control such as strikes, lockouts, official orders etc. This also applies to any such events occurring at the sites of Wandres’ suppliers or sub-suppliers. In any of the above situations, Wandres will not be liable even if the agreed delivery dates have been binding. Wandres will then be entitled to postpone the delivery or the rendering of the service for the duration of the impediments, adding a reasonable time for fulfilment.
  4. The purchaser is not entitled to any compensation claims if delivery is delayed through no fault of Wandres or if Wandres has been freed from its obligation. Wandres may only fall back upon the above if it notifies the purchaser immediately. The above regulation also applies if Wandres has already fallen behind in its delivery.
    Export or import restrictions due to national or international legal instruments that hamper Wandres in its delivery or render delivery impossible are seen as force majeure irrespective of their coming into being before or after the signing of the contract. The above does not apply if the restrictions have been known to Wandres.
    If Wandres can justify not meeting the agreed delivery dates and obligations or if it is in arrears and if this has caused damages to the purchaser, the purchaser is entitled to receive indemnification amounting to 0.5% for each full week. Overall indemnification claims, however, are limited to 5% of the value of the affected goods and services. Wandres may prove that the damage caused to the purchaser is less than the above rates.
    Any additional claims are excluded, provided that the delay has not been caused by culpable negligence or intentional default through Wandres.
  5. All compensation claims resulting from the above delays may only be raised by the purchaser if Wandres has been informed of the damages in writing no later than 4 weeks after discovery of the damage.
  6. If the shipping date is postponed upon the purchaser’s request, Wandres will charge storage fees one month after having informed the purchaser that the goods are ready for shipment. These storage fees amount to a minimum of 0.5% of the invoiced amount per month. Overall storage fees are limited to 10% of the invoiced amount. The purchaser may prove that Wandres had no or very little storage costs. Wandres may prove that storage fees were higher. After an appropriate period of time, however, Wandres is entitled to dispose of the good as it sees fit and/or deliver them to the purchaser after having set an appropriate timelimit.
  7. Wandres is entitled to make partial deliveries or render partial services at any time.
  8. Delivery dates will only be observed if the purchaser fulfils its obligations under the contract.

Section 5: Passing of risk

  1. The risk passes to the purchaser as soon as the goods leave Wandres’ plants, or have been handed over to the person in charge of the delivery, whichever comes first. This also applies if the term “carriage paid” has been agreed in exceptional cases. If shipment is postponed at the purchaser’s request, the risk shall pass to the purchaser as soon as Wandres informs the purchaser that the goods are ready for shipment.
  2. Wandres will insure the goods against shipping damages at the purchaser’s request. The  insurance costs must be borne by the purchaser.
  3. Delivered goods – even if they have minor defects – must be accepted by the purchaser irrespective of the purchaser’s rights granted in these business terms.

Section 6: Guarantee

  1. Wandres will only be liable for material defects (including product features that are missing but had been agreed) as follows:
    • All parts that prove to be unusable or whose functionality is severely limited within a period of 1 year after delivery and where defects date back to the period of the passing of the risk must – at Wandres’ choice – be either repaired or replaced free of charge.
    • The purchaser must inform Wandres immediately in writing if such defects are detected. Replaced parts will become Wandres property.
    • If shipment, installation or commissioning of the goods is delayed for reasons that are beyond Wandres’ control, liability for these goods shall expire no later than 12 months after the passing of the risk.
    • The purchaser is entitled to either cancel the contract or ask for an appropriate reduction in price if Wandres is not willing or not able to correct the defects or to deliver replacements. The purchaser is also entitled to the above if such correction of defects or delivery of replacements takes more time than is appropriate and if the delay is caused by reasons Wandres should have foreseen. This rule also applies if the correction of defects or the delivery of replacements is not successful for whatever reason.
    • If large parts of the product stem from third parties, the purchaser first has to file its judicial claims to the supplier of these parts. Wandres will cede its liability claims against the parts suppliers to the purchaser for this purpose. During the claiming period against third parties, the purchaser’s guarantee claim towards Wandres is restrained. The purchaser will have to bear Wandres’ additional costs for correcting the defects, if the purchaser has specified the supplier of the foreign products that are defective or caused the defects.
    • No guarantee will be granted for defects arising from the following:
    • Disregard of our operating instructions, inadequate or unsuitable usage, incorrect installation or commissioning by the purchaser or a third party, natural wear and tear, consumption of parts subject to wear and tear, incorrect or negligent handling, unsuitable means of production, exchanged materials, incorrect construction work, unsuitable building ground, chemical, electro-chemical or electrical influences that Wandres is not responsible for, poor maintenance, especially failure to carry out maintenance work as described in the operating instructions or respective brochures, alteration of the delivered goods by the purchaser, especially the exchange of parts or the use of consumables that do not correspond to the original specifications.
    • The purchaser must give Wandres the appropriate time and opportunity to make all the amendments and compensation deliveries that Wandres deems necessary, otherwise Wandres will no longer be liable for any faults.
    • The purchaser is only entitled to remedy the faults himself or have them remedies by third parties if the operating safety is at risk, if Wandres has fallen behind in rectifying the faults or if imminent disproportionate damage has to be averted. In the latter case, the purchaser must notify Wandres immediately. In all the above cases, the purchaser is entitled to claim reimbursement for the costs incurred.
    • Provided that the claims turn out to be justified, Wandres shall bear the costs arising from repair work or spare part deliveries.
    • If the buying party requests special features that deviate from the standard versions and if the purchaser has not checked the products on their technical functionality at Wandres‚ premises, the purchaser must reimburse Wandres for the costs incurred.
    • The replaced part or the rectification has a one-year guarantee. The guarantee period starts with the delivery of the spare part or the conclusion of the rectification work. The liability period for the defects of the goods will be prolonged for the period of time that is necessary to rectify these defects.
    • Wandres will not be liable for any adverse consequences that result from inappropriate alterations or maintenance work that the purchaser or a third party undertakes without the prior permission of Wandres.
  2. The guarantee period will start with the delivery date.
  3. The purchaser must inform Wandres of any defects immediately, but no later than one week after having received the delivered goods. This has to be done in writing. The purchaser must immediately notify Wandres of any hidden defects that have not been detected within this period despite a thorough examination and that are discovered later. Again, this has to be done in writing.
  4. Wandres will only assume liability for faults of second-hand goods if this has been agreed in writing with the purchaser. This will not apply if Wandres maliciously conceals a defect or if a guarantee on the features of the goods has been given.
  5. For legal defects Wandres will be liable as follows:
    • If using the delivered goods leads to an infringement of commercial property rights or copyrights within Germany, Wandres will provide for the purchaser’s right to continue using the goods or else will change the character of the delivered goods in a reasonable way for the purchaser so that the infringement is eliminated. Wandres will assume the costs for the above actions.
    • If the above may not be put into practice within a reasonable period of time or within an appropriate cost frame, the purchaser may withdraw from the contract. In the above case, Wandres, too, may withdraw from the contract.
    • Wandres will furthermore free the purchaser from any claims (whether undisputed or legally valid) coming from the holder of the property rights in question. Wandres is only required to do this if
      - the purchaser immediately informs Wandres of any infringements of property rights or copyrights
      - the purchaser assists Wandres in combating the claims and/or allows Wandres to carry out the modification work as described in Section 6, Sub-section 5 a of Wandres business terms.
      - Wandres has the right to carry out all kinds of action to ward off danger including extra-legal agreements
      - the legal fault has not been instigated by the purchaser and
      - if the breach of the law has not been caused by the fact that the purchaser has altered the delivered goods of his own accord or has used it in a way not stipulated in the contract.
    • The above stipulations refer exclusively to the guarantee of the described product. All other legally permissible guarantee claims are excluded.

Section 7: Spare parts

Wandres will deliver spare parts for the delivered machine for a period of 10 years starting with the delivery date. Wandres will charge the prices that are valid at the date the order is placed. Wandres is not required to keep these spare parts in stock.

Section 8: Impossibility and inability

  1. The purchaser may withdraw from the contract if is definitely becomes impossible for Wandres to make the delivery before the passing of the risk. The same is true if Wandres is unable to deliver.
  2. If the purchaser is responsible for a case of impossibility or if impossibility occurs during a delay in accepting the goods, the purchaser’s counter-performance obligation remains unaffected.

Section 9: Reservation of property rights

Now and in the future, Wandres will have the following securities against the purchaser until all amounts payable including the amounts due on the current account have been settled. Wandres can release these securities on demand as it pleases if the value of the securities permanently exceeds 20% of the total amounts payable by the purchaser:

  • The goods will remain Wandres’ property. The goods are always processed or transformed by Wandres without any kind of obligation for Wandres. If Wandres’ ownership is terminated by the goods being joined to other materials, Wandres will receive part of the proprietary rights of the newly created goods that correspond to the value (invoice value) of the party delivery by Wandres. The purchaser will keep Wandres’ property free of charge. The above also applies for Wandres’ co-ownerships.
  • The purchaser will cede the entirety of all claims resulting from reselling the goods or any other commercial actions including claims regarding the balance of the current account to Wandres. Wandres will accept the cession. Wandres entitles the purchaser to collect the claims it has ceded under the purchaser’s own name. Wandres may only revoke this right if the purchaser fails to meet its financial obligation on a regular basis. If the purchaser is in arrears, Wandres may make the cession of this right public.
  • The purchaser may neither mortgage the goods nor may it transfer the ownership as security on a debt. The purchaser must notify Wandres immediately should a third party mortgage or confiscate the goods or become in charge of the goods in any other way.
  • Wandres is entitled to take back the goods if the purchaser acts contrary to the stipulations in the contract, especially if the purchaser is in arrears. Wandres may only do so if it has reminded the purchaser beforehand. The purchaser then has to hand over the goods.
  • It will not be considered a withdrawal from the contract if Wandres executes its right of reservation of property rights as well as its right to mortgage the goods.
  • Wandres is entitled to insure the goods at the purchaser’s expense if the purchaser has not insured the goods himself or is unable to provide proof of insurance.

Section 10: Design modifications

Wandres will reserve the right to carry out design modifications at any time. Wandres has no obligation, however, to carry out these modifications to products that have already been delivered.

Section 11: Limits on liability

  1. All compensation claims are excluded irrespective of whether they originate from not meeting an obligation or from unauthorised (but legally allowed) acts. This applies as long as the claims have not arisen due to an act of culpable negligence or intention by Wandres. In the latter case, Wandres will be liable up to the amount of the foreseeable damage.
  2. If there is a breach of contract regarding an essential obligation, Wandres will be liable for any kind of negligence. Liability, however, is limited up to the amount representing the foreseeable damage.
  3. Claims relating to missed benefits, saved expenditures, third party indemnity claims or any other indirect or consecutive damages may not be raised unless a particular product feature guaranteed by Wandres aims at protecting the purchaser against any of the aforementioned damages.
  4. The limits and the exclusion of liability as described in paragraph 1 and 2 do not apply for claims arising from malicious behaviour by Wandres, if guaranteed features are missing, for claims arising from the product liability law or for damages caused by impairing human life, limb or health.
  5. If Wandres’ liability has been excluded or limited, this exclusion or limit will also apply to Wandres’ employees, workers, representatives or performance partners.

Section 12: Secrecy

  1. Unless explicitly agreed otherwise in writing, all information passed to Wandres during the ordering process is to be kept confidential.
  2. Wandres gives an assurance that it will treat all trade secrets and other internal information of the purchaser with confidentiality.

Section 13: Cession of rights

The purchaser may only cede its rights arising from its contractual relations with Wandres with Wandres’ consent.

Section 14: Use of software

  1. If software programmes are included in the delivery, the purchaser may use the software only in relation with the delivered goods. The software programmes may not be used on more than one system.
  2. The purchaser may only copy, re-edit, translate or transfer the software from the object code to the source code as laid down in Sections 69 in the Urhebergesetz (primary German law on intellectual property). The purchaser is required not to remove or change the manufacturer’s information - especially copyright information – on the product without Wandres’ consent.
  3. All other rights regarding software programmes and documentation – including copies – will remain with Wandres an/or the software supplier. Sub-licences are not allowed.

Section 15: Applicable law, court of jurisdiction, place of fulfilment

  1. Provided that the purchaser is a businessman, a legal entity or public special funds, 79256 Buchenbach in Germany is the place where the contract is to be fulfilled. It is also the only court of jurisdiction for deliveries and payments as well as for any disagreements arising between the parties.
  2. All relations between the contract parties will exclusively follow the law of the Federal Republic of Germany. The 1980 United Nations Convention on Contracts for the International Sale of Goods is excluded.

Section 16: Exemption clause

If some regulations laid down in these General Business Terms are not legally effective or not feasible or if they lose their effectiveness or feasibility later, the validity of the rest of the regulations laid down in these General Business Terms will not be affected. The same will apply if it becomes obvious that some matters have not been regulated by these General Business Terms. The ineffective or impracticable regulations or any regulatory gap shall be replaced by a regulation that will be as close as legally possible to the wish of the parties involved or that is in keeping with the purpose of the business terms regarding this particular issue. This also applies if the ineffectiveness of a regulation is based on a stipulated extent of performance or period of time. In this case, an extent of performance or a period of time shall prevail that is as close as legally possible to the intention of the parties.

Buchenbach, April 2003

Dipl.-Ing. Claus G. Wandres