General Terms and Conditions

 

§ 1
General Information

  1. These General Terms and Conditions shall apply exclusively to all our, including future, deliveries, services or offers. Any deviating terms and conditions on the part of the purchaser or ancillary agreements shall only become effective if we have acknowledged them in writing. These General Terms and Conditions shall apply even if we provide delivery without reservation in the knowledge of deviating terms and conditions on part of the purchaser.
  2. These General Terms and Conditions shall apply only vis-à-vis entrepreneurs according to Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

 

§ 2
Offers and Purchase Orders

  1. Offers shall be nonbinding. Proper merchandise availability shall be reserved if we are not liable for the non-delivery, in particular if we have entered into a congruent hedging transaction. The agreement shall be concluded only with written confirmation of the order and – if no order confirmation has been dispatched – in any case with delivery.
  2. If the purchaser’s purchase order is to be qualified as an offer in accordance with Section 145 of the German Civil Code (BGB), we may accept such within two weeks after receipt.

 

§ 3
Prices, Terms of Payment

  1. Prices shall apply ex-factory unless otherwise indicated in the order confirmation.
  2. Prices shall also include our standard packaging. The purchaser shall be responsible for any and all additional expenses, in particular additional packaging, freight charges and transport insurance, unless otherwise agreed.
  3. The legally valid VAT is not included in the prices; it shall be shown separately on the invoice in the statutory amount on the day of invoicing.
  4. Payment shall be made without deduction within 30 days upon receipt of the invoice. Receipt of the payment shall determine the timeliness of the payment. In case of default of payment, we can exercise the rights provided by law.
  5. The purchaser shall be entitled to rights to setoff and retention only if the purchaser’s counterclaims are subject of declaratory judgement, undisputed or acknowledged by us. Furthermore, the purchaser may only exercise a right of retention insofar as the purchaser’s counterclaim is based on the same contractual relationship.

 

§ 4
Delivery, Passing of risk, Force majeure

  1. Deliveries shall be EXW (Incoterm 2010) unless otherwise agreed in the individual agreement.
  2. Technical modifications as well as changes in form, color or weight shall remain reserved within a reasonable scope. We reserve the right to provide surplus or short deliveries of up to 10 % of the ordered quantity or partial deliveries.
  3. We shall be entitled to suspend delivery in the case of delay of payment as well as justified concern about a substantial degradation in assets that puts our claim at risk or inability to pay on the part of the purchaser.
  4. If the purchaser is in default of acceptance or culpably violates other duties to cooperate, then we shall be entitled to require compensation of any additional expenditures (e.g. storage costs). Furthermore, in the case of culpable default of acceptance or culpable violation of other duties to cooperate, insofar as a violation of duty according to Section 280 para. 1 of the German Civil Code (BGB) is to be seen therein, we may require compensation of the damage incurred as a result. Other claims shall remain reserved.
  5. Any event of force majeure or any other hindrance to performance for which we may not be held responsible in accordance with Section 276 of the German Civil Code (BGB) shall relieve us from fulfillment of the assumed contractual obligations for the duration of these events. We shall be obliged to immediately inform the purchaser if such an event occurs; at the same time we shall be obliged to communicate how long such event will presumably last. If such event permanently prevents our performance, then we or the purchaser may withdraw from the agreement. This shall also apply if such an event persists for more than three months. The consideration is immediately returned in this case.

 

§ 5
Retention of title, Collateral rights, Insurance obligation

  1. We reserve the right to ownership of the goods until satisfaction of any and all claims arising out of the business relationship with the purchaser.
  2. The purchaser shall be obliged to handle the goods subject to retention of title (“Conditional Commodity”) with care and to store it in such a way that its quality does not deteriorate and the packaging is not impaired. In particular, the purchaser shall be obliged to sufficiently insure same for the replacement value at the purchaser’s own expense against damage caused by fire, water or theft. The purchaser shall already now assign to us the claims against the insurance company to which the purchaser is entitled in the event of a claim and be obliged to notify the insurance company of such assignment.
  3. Pledge or assignment of the conditional commodity as security shall be prohibited. The purchaser shall be entitled to resell the conditional commodity in the normal course of business; however, the purchaser hereby assigns to us any and all claims in the amount of the final invoice amount (including VAT) for our claim, which accrue to the purchaser from the latter’s customers or third parties from resale, independently of whether the conditional commodity has been resold without or after processing. The purchaser shall remain authorized to collect the claim even after such assignment. Our right to collect the claim shall remain unaffected. However, we shall be obliged to refrain from collection of the claim as long as the purchaser meets the purchaser’s payment obligations arising out of the collected proceeds, is not in default of payment and in particular no request for institution of insolvency proceedings has been submitted and there is no suspension of payment. However, if this is the case, then we may require that the purchaser discloses the assigned claims and their debtors, provide any and all information required for collection, surrender the pertinent documents, while notifying the respective debtors (third parties) of the assignment.
  4. In the event that the purchaser engages in behavior contrary to the terms of the agreement, in particular in the case of default of payment, we shall be entitled to repossess the conditional commodity without withdrawing from the agreement in advance. Given these prerequisites, the purchaser shall already now permit us to enter the purchaser’s business premises during normal business hours and to repossess the conditional commodity. We shall be entitled to exploit the conditional commodity following repossession of the same while the proceeds of any exploitation shall be set off with the purchaser’s liabilities less reasonable exploitation costs. In addition, we shall be entitled to withdraw from the agreement after expiry of a grace period.
  5. The purchaser shall be obliged to immediately notify us in writing in the event of attachment or any other interference by third parties so that we may file a complaint in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court and out of court costs of a complaint in accordance with Section 771 ZPO, then the purchaser shall be liable for the loss.
  6. Processing or reorganization of the conditional commodity by the purchaser shall always be performed for us. If the conditional commodity is processed with items that do not belong to us, then we shall acquire co-ownership of the new item in proportion to the value of the conditional commodity (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects the same shall apply for the item created through processing as in the case of the conditional commodity.
  7. If the conditional commodity is inseparably commixed with items that do not belong to us, then we shall acquire co-ownership of the new item in proportion to the value of the conditional commodity (final invoice amount including VAT) to the other commixed items at the time of commixture. If commixture takes place in such way that the item belonging to the purchaser is to be regarded as the principal item, then it shall be agreed that the purchaser assigns to us proportionate co-ownership. The purchaser shall safeguard the sole possession or joint possession thus created for us.
  8. The purchaser shall also assign to us in order to secure our claims against the purchaser the claims which accrue from combination of the conditional commodity to real property against a third party.
  9. At the purchaser’s request, we shall be obliged to release a corresponding share of the collateral to which the purchaser is entitled if the realizable value of all the collaterals exceeds the securable claims by more than 10 %. We shall be entitled to select the releasable collateral.

 

§ 6
Warranty

  1. Unless agreed otherwise, deliveries shall be made in accordance with our standard specifications. The purchaser shall be responsible for examining the suitability of the products for the respective intended purpose. We shall not be liable for any intended use deviating from our indications and further processing as well as the existence of any possible industrial property rights to this end.
  2. The purchaser’s defect rights presuppose that the purchaser has properly complied with the purchaser’s obligations to inspect and report in accordance with Section 377 of the German Commercial Code (HGB). As a rule, the purchaser shall be obliged to report obvious defects without undue delay, within five day as of receipt of the goods at the latest, and hidden defects without undue delay, within two days as of their discovery at the latest. After receipt of such notification of defects, we shall have the right to inspect the defective goods by ourselves. 
  3. If a defect is present in the purchased goods and has been reported in time, then we shall have the option of eliminating the defect or delivery of a new item free of defects. When it comes to the removal of defects, we shall be responsible for all of the expenditures required in order to remove the defect, in particular transport, labor and material costs. This shall not apply to such additional expenditures that result from the fact that the purchase item has been brought to a location other than the purchaser’s commercial address and the shipment does not correspond to the purchase item’s intended use.
  4. If subsequent performance ultimately fails or if we refuse to provide such, then the purchaser shall have the option of rescission or requiring a reduction. No right of rescission shall be obtained in the case of only slight defects.
  5. In regenerates, ground products or waste the characteristics typically deviating from corresponding new goods do not constitute a defect. The purchaser is not entitled to defect rights on that basis.
  6. The period of limitation for defect rights shall amount to one year as of delivery. Section 7 of these General Terms and Conditions remains unaffected.

 

§ 7
Liability

  1. In accordance with statutory provisions, we shall be liable without restriction for intent and gross negligence. In the case of violation of a substantial contractual obligation, we shall also be liable for ordinary negligence. However, our liability for ordinary negligence shall be limited to the typically occurring damage foreseeable upon conclusion of the contract. Substantial shall be all contractual obligations whose fulfillment makes proper execution of the agreement at all possible and compliance with which the contracting party may routinely rely on. The above provisions shall also apply in the case of culpability on the part of our legal representatives or vicarious agents.
  2. The above limitations of liability shall not apply to physical injury and damage to health as well as loss of life. Claims arising out of product liability shall also not be affected by the above limitations of liability. Furthermore, the above limitations of liability shall not apply in the case of fraudulent concealment of a defect and insofar as we have assumed a guarantee for the quality of the purchase item.
  3. Insofar as liability is excluded or limited, then this shall also apply with regard to personal liability on the part of our staff, employees, coworkers, representatives and vicarious agents.

 

§ 8
Data protection

  1. We collect, store, process and use personal data relating to the individual contracts with the customers insofar as it is necessary for performance of the contract entered into with the purchaser and as long as we are obliged to store such data according to legal regulations. For execution of pre-contractual measures and performance of the contract entered into with the purchaser collection, procession and use of the following data are necessary in accordance with Art. 6 para. 1 lit. b) General Data Protection Regulation (GDPR): firm, VAT ID, name of contact person, business address, e-mail-address and phone number of contact person.
  2. Within the frame of what is permitted by law, we are authorized to transfer these personal data to third companies such as shipping companies insofar as this is necessary for execution of pre-contractual measures and performance of the contract in accordance with Art. 6 para. 1 lit. b) GDPR or for compliance with a legal obligation in accordance with Art. 6 para. 1 lit. c) GDPR.
  3. Further processing or other use of personal data in excess of the above mentioned activities is carried out only if a legal regulation requires or permits so or the purchaser has given explicit consent to such.
  4. The personal data are deleted by us with expiry of the legal storage periods as of conclusion of contract at the latest.
  5. Given the legal prerequisites, you have the right to request from us information, rectification, blocking, restriction of processing and/or deletion or transfer to a third party with regard to your personal data. If you have given consent to the use of your personal data you have the right to recall such consent at any time with effect for the future. Furthermore, you have the right to complain to a supervisory authority.
  6. More detailed information concerning the handling of personal data and your rights are available in our data protection declaration which is available on our website www.ambofluor.de.

 

§ 9
Final provisions

  1. Insofar as the purchaser is a merchant, our principal place of business shall be the exclusive place of jurisdiction. However, we shall be entitled to bring action against the purchaser at every other legal place of jurisdiction.
  2. Insofar as the purchaser is a merchant, our principal place of business shall be the place of performance unless stated otherwise in the order confirmation.
  3. Should any of the provisions of these General Terms and Conditions be invalid either in part or as a whole, then the validity of the remaining provisions shall not be affected.
  4. The law prevailing in the Federal Republic of Germany shall apply exclusively with the exception of its international private law; the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
  5. The German version of these General Terms and Conditions shall be relevant. Versions in other languages are only translations.

 

Version: April 2019

 

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