1. Scope of application; deviating terms and conditions; offers; ancillary agreements

1.1 The following terms and conditions apply exclusively to offers and deliveries made by AMB. Upon conclusion of the first contract incorporating the following terms and conditions, the customer acknowledges their validity for the entire duration of the business relationship between the parties. This applies in particular to all subsequent transactions concluded, including those concluded verbally, in particular by telephone.

1.2 The customer’s purchasing and other terms and conditions shall only apply insofar as they comply with the following terms and conditions. Deviating or supplementary terms and conditions of the customer shall not become part of the contract even if AMB carries out the delivery or handover to the customer without reservation in the knowledge of these terms and conditions.

1.3 Offers made by AMB are subject to change. A contract shall only come into effect upon written confirmation by AMB’s head office or management, or upon delivery or handover of the purchased item to the customer.

1.4 There are no verbal side agreements. AMB employees are not authorized to amend or negotiate the following terms and conditions.

2. Performance; Quality Agreement; Reservation of Self-Supply

2.1 AMB shall hand over the purchased item to the customer in the condition specified in the contract and transfer ownership in accordance with the provisions of Section 11.

2.2 Der Zustand eines neuen Kaufgegenstandes ist vertragsgemäß, wenn dieser sich für die gewöhnliche Verwendung eignet bzw. eine Beschaffenheit aufweist, die bei Gegenständen der gleichen Art üblich ist und die der Käufer nach der Art des Kaufgegenstandes erwarten kann. Bei gebrauchten Kaufgegenständen kommt es für die Bestimmung des vertragsgemäßen Zustandes auf die Beschaffenheit des Kaufgegenstandes im Zeitpunkt der Übergabe an den Kunden an. Dies gilt auch dann, wenn der Kaufgegenstand im Zeitpunkt der Übergabe oder des Vertragesschlusses nicht erkennbare und im Kaufvertrag nicht festgehaltene Mängel aufweist.

2.3 Als gebrauchte Kaufgegenstände im Sinne dieser Bedingungen gelten auch Austauschteile und rekonditionierte Teile.

2.4 Ist der Kaufgegenstand nur der Gattung nach bestimmt und wird AMB aus einem zum Zweck der Erfüllung der Leistungsverpflichtung gemäß Ziffer 2.1 abgeschlossenen Deckungsgeschäft nicht bzw. nicht richtig oder nicht rechtzeitig beliefert, entfällt die Leistungsverpflichtung nach Ziffer 2.1 (Vorbehalt der Selbstbelieferung). AMB ist verpflichtet, den Kunden unverzüglich über die Nichtverfügbarkeit des Kaufgegenstandes zu informieren und eine gegebenenfalls bereits erhaltene Vergütung sofort zurückzuerstatten.

2.5 Any agreement on quality that deviates from the above conditions and the assumption of a guarantee for the quality of the purchased item must be made in writing in accordance with Section 12.1 in order to be valid.

2.6 The above conditions do not apply if the customer is a natural person and the conclusion of the contract cannot be attributed to their commercial or self-employed professional activity (consumer within the meaning of § 13 BGB).

3. Performance deadlines; impediments to performance; partial performance

3.1 Compliance with agreed performance deadlines requires that the necessary approvals and documents, releases, services, and other obligations of the customer be provided or fulfilled in a timely manner. If this does not happen, the performance deadline shall be extended by a reasonable period of time. Fixed-date transactions shall not be concluded.

3.2 The performance period shall be deemed to have been met if, upon its expiry, the purchased item has left the factory or AMB has notified the customer that it is ready for shipment.

3.3 If failure to meet agreed performance deadlines is due to force majeure, labor disputes, fire, machine breakdown, unforeseeable obstacles, or other circumstances beyond AMB’s control, the performance deadline shall be extended for the duration of these events. This shall apply accordingly in the event that AMB is in default of performance when one of these events occurs.

3.4 If an impediment to performance pursuant to clause 3.3 sentence 1 lasts for more than 6 weeks, AMB and the customer shall be entitled to withdraw from the contract with regard to the service not rendered; prior to the expiry of this period, withdrawal shall be excluded in the cases specified in clause 3.3 sentence 1. The customer’s right of withdrawal is subject to the condition that he has set AMB a reasonable deadline for performance in writing, with a threat of rejection.

3.5 Claims for damages and reimbursement of expenses by the customer due to delay in performance or exclusion of AMB’s obligation to perform are excluded within the scope of the provision in Section 10, even if they arose prior to withdrawal from the contract.

3.6 AMB is entitled to provide services ahead of schedule and to provide partial services. AMB is entitled to invoice partial services immediately.

4. Acceptance; transfer of risk; transport

4.1 The customer is obligated to accept the purchased item at the agreed place of delivery within eight days of receiving the notification of availability.

4.2 Delivery shall take place at the contractually agreed location or at the AMB branch specified in the contract. If the customer requests delivery to a different location, this shall be at the customer’s own risk and expense, unless otherwise agreed in writing. The same applies to any returns. AMB shall determine the carrier, excluding any liability for choosing the cheapest and fastest shipping method. Shipping instructions from the customer shall only be binding on AMB if they have been confirmed in writing by AMB.

4.3 The risk shall pass to the customer upon delivery of the purchased item to the customer, or at the latest upon delivery of the purchased item to the carrier. This shall also apply if partial deliveries are made or if AMB has assumed additional services, such as transport.

4.4 If the customer defaults on acceptance or if performance is delayed due to other circumstances for which the customer is responsible, the risk shall pass to the customer on the date of notification of readiness for delivery. The customer shall bear the costs of storage at AMB or at third parties. The assertion of further claims for damages against the customer remains unaffected.

4.5 AMB shall only take out transport insurance on behalf of the customer upon specific written instruction.

5. Remuneration; Terms of payment; Purchase price financing

5.1 Unless otherwise specified in writing in the contract or in the confirmation by AMB’s management, contractual claims to which AMB is entitled are due for payment without deduction no later than 10 days after conclusion of the contract or after the agreed partial payment dates. AMB is entitled to hand over the object of purchase only in exchange for payment of the agreed remuneration.

5.2 Payments must be made in cash or free of charges and expenses to the business accounts of AMB specified in the invoice. The date on which the amount owed is received by AMB shall be decisive for the settlement of the claim. The customer may not make any discounts on its own authority.

5.3 Payments shall be offset exclusively in accordance with § 366 BGB (German Civil Code), even if the customer specifies a different repayment provision.

5.4 Bills of exchange and checks are only accepted on account of performance.

5.5 All prices are exclusive of sales tax at the statutory rate on the date of invoicing.

6. Default of payment; purchase price financing; damages caused by default

6.1 If the customer is in default of payment of a claim in whole or in part, AMB shall be entitled, without prejudice to further rights, to
(1) terminate any existing financing and/or deferral agreement extraordinarily and declare all claims arising therefrom immediately due and payable;
(2) withhold services from contracts not yet fulfilled;
(3) assert the rights arising from the agreed retention of title (Section 11);
(4) withdraw from the contract in accordance with Section 7.1.

6.2 If the customer is in default of payment, AMB shall be entitled to charge default interest at a rate of 8 percentage points above the respective base rate, but at least 12% of the amount in arrears. If the customer is a consumer within the meaning of Section 13 of the German Civil Code (BGB), the default interest shall be 5 percentage points above the base rate, but at least 12% of the amount in arrears. The claim to default interest shall be reduced if and to the extent that the customer proves that AMB has incurred no damage or only significantly less damage.

6.3 AMB reserves the right to claim higher damages for delay if and to the extent that these are undisputed or proven.

7. Withdrawal; compensation for use

7.1 AMB is entitled to withdraw from the purchase agreement if
(1) the customer fails to settle a due claim within a reasonable period set by AMB, either in full or in part, or defaults in whole or in part on the settlement of a due claim, or allows bills of exchange or checks to be protested and fails to settle the relevant amount within a reasonable period set by AMB, either in full or in part; or
(2) the customer violates essential contractual provisions—in particular the provision under Section 11.3 of these Terms and Conditions—despite a deadline being set/a warning being issued; or (3) there is a significant deterioration in the customer’s financial circumstances, in particular if seizures or other enforcement measures are initiated against them; or
(4) an application is made to open insolvency proceedings against the customer’s assets, a retention of title pursuant to Section 11.1 exists and the object of purchase has not yet been handed over to the customer; or
(5) ein Antrag auf Eröffnung des Insolvenzverfahrens über das Vermögen des Kunden ab- gewiesen oder das Insolenzverfahren eingestellt oder aufgehoben wird.

7.2 In the event of withdrawal, AMB shall be entitled to compensation for use in the amount of the purchase price or financing installments owed up to the date of return of the device, as well as the down payment made or owed by the customer. The amount of compensation for use shall be at least equal to the market rent payable for the period of transfer. AMB reserves the right to assert further claims for damages or compensation for use. The claim shall be reduced if and to the extent that the customer proves that AMB has incurred no damage or only significantly less damage as a result.

8. Offsetting; Retention

8.1 The customer may only offset claims by AMB if the customer’s claim is undisputed or has been legally established.

8.2 The customer may only assert a right to refuse performance or a right of retention if AMB’s payment claim and the customer’s counterclaim are based on the same contractual relationship.

9. Claims for Defects; Duty to Inspect and Give Notice of Defects; Statute of Limitations

9.1 AMB guarantees, under the following conditions, that the purchased item is free from material defects or defects in title and possesses the quality agreed upon in Section 2. If AMB has assumed a guarantee for certain characteristics or the quality of the purchased item, the following conditions shall only apply if the customer has asserted the claims to which they are entitled under the guarantee against AMB and AMB has not voluntarily or fully fulfilled the customer’s claims.

9.2 The customer’s claims for defects require that the customer provides AMB, upon request, with a written and complete description of the asserted defects and – insofar as they are a merchant within the meaning of the German Commercial Code (HGB) – has complied with their duty to inspect and give notice of defects in accordance with §§ 377, 378 HGB. Outside of commercial transactions, claims for defects are excluded if the customer does not notify AMB in writing of obvious defects within 4 weeks of delivery.

9.3 Claims for defects do not exist if the defect that occurred is causally related to the fact that
(1) previously occurring defects were not reported in due time in accordance with Section 9.2; or
(2) the buyer has not complied with regulations, specifications from AMB, or operating instructions regarding handling, maintenance, care, and conditions of use; or
(3) the purchased item was previously repaired, maintained, or serviced in an operation not recognized by AMB or by the customer themselves; or
(4) spare parts not approved by AMB were installed or attachments were fitted to the purchased item.

9.4 If a material defect or defect in title exists, AMB is entitled, at its discretion, to subsequent performance in the form of remedying the defect or delivering a defect-free item. The customer has no right to a specific type of subsequent performance. If the purchase price has not yet been paid in full or in part, AMB may make subsequent performance dependent on the customer paying a reasonable portion of the purchase price, taking into account the asserted defect.

9.5 The customer is entitled, at their discretion, to reduce the purchase price or withdraw from the contract and demand damages instead of performance in accordance with the provisions in Section 10, if AMB seriously and definitively refuses subsequent performance in accordance with Section 9.4, or if the type of subsequent performance chosen by AMB has failed or is unreasonable for the customer, or if the customer has unsuccessfully set AMB a reasonable deadline for subsequent performance. Subsequent performance shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or the defect or other circumstances dictate otherwise.

9.6 The rights to withdraw from the contract and claim damages instead of performance in accordance with Section 9.5 are excluded if and to the extent that the asserted defect does not or only insignificantly impair the suitability of the purchased item for the contractually assumed use or the use customary for items of the same type.

9.7 If the customer is a consumer within the meaning of § 13 BGB, the statutory provisions shall apply instead of the regulations in Sections 9.2 to 9.6.

9.8 The claims of the customer referred to in Section 9.5 for reduction of the purchase price or withdrawal from the contract shall become time-barred one year after the handover/delivery of the purchased item. The same applies to any existing claim of the customer for subsequent performance; however, Section 9.4 remains unaffected. If the purchased item is new, the limitation period shall commence before the expiry of the one-year period if and as soon as 1,000 operating hours are reached according to any installed hour meter. If the customer is a consumer within the meaning of § 13 BGB, the limitation period for claims for defects for new purchased items shall commence 2 years after handover/delivery; for used purchased items, the regulation in sentence 1 shall apply. The foregoing conditions do not apply if and to the extent that AMB has fraudulently concealed a defect.

9.9 The statute of limitations for claims for defects is suspended as long as negotiations between AMB and the customer regarding claims for defects or the circumstances giving rise to them are ongoing. The suspension begins with the customer’s written notice of defect and ends with AMB’s written rejection of claims for defects, but no later than 2 months after the last written statement made by either party during the negotiations.

9.10 Any further liability for material defects or defects in title is excluded, unless AMB has fraudulently concealed them. For used purchased items, no claims for defects can be asserted with regard to the agreements under Section 2.2, unless the customer is a consumer within the meaning of § 13 BGB or a written commitment for the assumption of claims for defects by AMB exists.

9.11 The assignment of the claims referred to in Sections 9.1 to 9.10 requires the consent of AMB.

10. Liability; Damages and Reimbursement of Expenses

10.1 Claims for damages against AMB – regardless of the legal basis, in particular due to the infringement of third-party industrial property rights and tort – are excluded subject to the following provisions.

10.2 AMB is particularly not liable for damages that are not based on an intentional or negligent act or breach of duty by its legal representatives, employees, or vicarious agents; this also applies to the existence of defects in a purchased item determined only by its type within the meaning of Section 2.3. Sentences 1 and 2 do not apply to claims under the Product Liability Act. AMB is liable in accordance with statutory provisions for damages resulting from injury to life, body, or health caused by an intentional or negligent breach of duty by one or more of its legal representatives, employees, or vicarious agents, as well as for other damages caused by an intentional or grossly negligent breach of duty by one or more of its legal representatives, employees, or vicarious agents.

10.3 AMB owes damages or reimbursement of expenses incurred by the customer in accordance with statutory provisions if damage is based on a guarantee assumed by AMB for the quality of the purchased item or if one or more of AMB’s legal representatives, employees, or vicarious agents have grossly negligently breached a duty that is essential for achieving the purpose of the contract. AMB is liable in the same way if one or more of its legal representatives, employees, or vicarious agents have grossly negligently breached a duty to show consideration for the customer’s rights, legal interests, and interests, and AMB’s performance is no longer acceptable to the customer.

10.4 For breaches of duty within the meaning of Section 10.2, AMB’s liability is unlimited in amount. In the cases mentioned in Section 10.3, the amount of the claim for damages is limited to foreseeable damage. In any case, compensation for consequential damages, such as lost profits, is excluded.

10.5 Claims for damages against AMB become time-barred 6 months after the handover of the purchased item. This does not apply to the claims mentioned in Sections 10.2 and 10.3.

10.6 Insofar as AMB’s liability is excluded or limited, this also applies to the personal liability of AMB’s executives, employees, staff, representatives, and vicarious agents. Section 10.5 applies mutatis mutandis to the statute of limitations for personal claims against AMB’s executives, employees, staff, representatives, and vicarious agents.

11. Retention of Title

11.1 AMB retains title to the purchased item (reserved goods) until full payment. The retention of title also extends to all claims of AMB against the customer that have already arisen at the time of this contract conclusion; it further extends to all claims arising from subsequent transactions, in particular spare parts deliveries and customer services (extended retention of title).

11.2 The customer is obliged to treat the reserved goods with care and, in particular, to take out and maintain machine insurance at their own expense, which also includes fire and theft risks. Maintenance and inspection work according to the service plan issued by AMB must be carried out or arranged by the customer in due time at their own expense by AMB or an operation recognized by AMB or the manufacturer, in accordance with the manufacturer’s specifications.

11.3 The customer is only entitled to resell, pledge, assign as security, rent, or transfer the reserved goods abroad with the prior written consent of AMB.

11.4 In the event that the customer violates the regulations in Section 11.3 despite a deadline being set/warning, or if the reserved goods are embezzled or stolen from the customer or otherwise lost, AMB is entitled to extraordinarily terminate any existing financing and/or deferral agreement and to declare all claims arising therefrom immediately due.

11.5 The customer hereby assigns to AMB all claims and remuneration entitlements (e.g., from tort, insurance claims) to which they are entitled with regard to the reserved goods, up to the invoice value of the reserved goods; AMB accepts the assignment.

11.6 In the event of third-party access to the reserved goods, the customer must point out AMB’s ownership and notify AMB immediately in writing. If the third party is unable to reimburse AMB for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the resulting loss.

11.7 If the reserved goods are inseparably combined with other items not belonging to AMB, AMB acquires co-ownership of the new item in proportion to the value of the reserved goods to the other combined items at the time of combination. If the combination occurs in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to AMB. The customer shall store the sole ownership or co-ownership thus created for AMB. The customer also assigns to AMB as security the claims that arise against a third party through the combination of the reserved goods with a property; AMB accepts the assignment.

11.8 If the realizable value of the securities to which AMB is entitled from the retention of title exceeds AMB’s total claim against the customer by more than 20%, AMB is obliged, at the customer’s request, to release the securities to which AMB is entitled from this agreement, insofar as they are divisible, at its own discretion, up to the stated value limit.

11.9 In the event of a breach of contract by the customer – in particular if one of the cases mentioned in Section 6.1 or 11.3 exists – AMB is entitled to demand the return of the reserved goods without declaring withdrawal or asserting claims for damages instead of performance. AMB is entitled to collect the reserved goods and, for this purpose, to enter the storage or deployment location of the reserved goods if the customer does not comply with the request for return or if this is necessary to prevent the definitive destruction or loss of the goods. The customer waives the rights to which they would be entitled from unlawful interference. The conditions mentioned in sentences 1 to 3 do not apply if the customer is a consumer within the meaning of § 13 BGB.

11.10 If AMB demands the return of the reserved goods, this does not constitute a withdrawal from the purchase contract. In the cases mentioned in Section 11.9, AMB is entitled to realize the reserved goods after prior notice by sale or by purchase at the dealer’s purchase price according to the estimated value of a publicly appointed expert or DEKRA Automobil GmbH or TÜV GmbH. In the case of purchase, AMB is entitled to issue a credit note to the customer for the purchase price. Realization costs shall be borne by the customer. The realization proceeds shall be credited against the customer’s liabilities, taking into account a lump sum for realization costs of 15% of the realization proceeds. The lump sum for realization costs shall be reduced if and to the extent that the customer proves that AMB has incurred no damage or only significantly less damage.

12. Damages; Clause for Non-Acceptance of Goods

12.1 If the customer fails to fulfill their contractual obligation to accept the goods after they become due, AMB is entitled to request final acceptance of the goods with a notice period of 3 weeks and, after this period, to dispose of the goods elsewhere. AMB is subsequently entitled to charge a lump sum for damages of 15% of the net order sum, as a so-called lump sum for realization costs. The lump sum for realization costs shall be reduced if and to the extent that the customer proves that AMB has incurred no damage or only less damage.

13. Written Form; Severability Clause; Applicable Law

13.1 Special agreements and ancillary agreements to the purchase contract require written form to be effective. This written form clause can only be deviated from by written agreement. Amendments and additions to these terms are only effective if confirmed in writing by AMB’s head office/management.

13.2 Should individual contractual provisions be or become wholly or partially ineffective, the remainder of the contract shall remain effective; this also applies if a gap should emerge in the contract. An appropriate provision shall replace a wholly or partially legally ineffective provision or fill a gap, which – as far as legally possible – comes closest to what the contracting parties intended or would have intended according to the meaning and purpose of the contract, had they considered the point.

13.3 The law of the Federal Republic of Germany applies. The application of the uniform international sales law (UNCITRAL Convention) is excluded.

14. Place of Performance; Jurisdiction

14.1 The place of performance for all claims arising from the contract concluded between the customer and AMB is the registered office of AMB’s head office/management in 84069 Schierling.

14.2 The place of jurisdiction is Regensburg: for lawsuits brought by the customer against AMB, this place of jurisdiction is exclusive. AMB is also entitled to sue the customer at the respective location of the device.

Status: October 2018