GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF DARREN THROWER t/a AQUA MARINE LIGHTING, CAMINO DE GENOVA 53, PUERTA 10, BAJOS A, PALMA DE MALLORCA, 07014, SPAIN.
REGISTERED NUMBER: ESX4335032S
ARTICLE 1: APPLICABILITY
a. These terms and conditions apply to all offers, sales and deliveries by the sole trader Darren Thrower hereinafter named AML (Aqua Marine Lighting), to a third party, to all activities executed by AML by order of a third party, and to all agreements in the broadest sense of the word entered into by AML with a third party.
b. These terms and conditions apply in and outside Spain, regardless of the place of residence or registered office of the parties involved in any agreement, and regardless of the place where the agreement has come about or should have been implemented.
c.1. A number of provisions are added in the appendix with regard to warranty. To the extent these provisions depart from what has been included in this regard in the common section, the deviating provisions of the appendix shall prevail.
c.2. Several provisions of the appendix include distinctions when compared to what has been generally determined in the communal section. These distinctions should be read inter alia as examples, but they are not limited thereto, which do not preclude the additional effect of the matters argued by AML in the communal section. Nor do they limit the rights of AML where these are not described in these terms and conditions.
d. If the other party applies other general terms and conditions such as purchase conditions, these will not bind AML these will not apply and are hereby expressly rejected by AML By way of the applicability and non-voidability of these general terms and conditions the other party expressly waives its own general terms and conditions, for example purchasing conditions.
e. Any deviation from these terms and conditions used or allowed by AML at any time to the benefit of the other party can never be construed as the latter’s right to appeal to it later or to claim the application of such deviation for them as an established fact.
ARTICLE 2: OFFERS
a. All offers and quotations are non-committal, unless explicitly stated otherwise. They have been made to the best of AML’s knowledge and are based on data that may have been provided on the request for an offer. If the offer does not set out the validity period, the offer will be valid for 4 (four) weeks calculated from the day of the date of the offer. If no date has been included in the offer, the aforesaid validity period will be linked to the date of dispatch of the offer.
b. The specifications provided by AML on websites, in images, multimedia, catalogues, brochures or drawings or in any other way with respect to size, capacity, performance, colour, material structure, finish or results and the like should be regarded as having been provided as estimates and as having been provided noncommittally. AML is not held to comply with these specifications and therefore does not accept any liability for any incorrectness in this data.
ARTICLE 3.1: ORDERS/AGREEMENTS
a. An order is understood to mean: every agreement with AML, regardless of whether it undertakes to deliver goods, execute activities or make staff, material or space available or carry out any other performance whatsoever, in the broadest sense.
b. All agreements entered into with AML will only become binding upon a written confirmation by AML or due to AML having commenced the execution of the order. Any supplements or changes to the afore-mentioned agreements will only become binding for AML after and in so far as these have been accepted and confirmed in writing by AML. The other party will be deemed to have accepted changes or supplements to agreements entered into with AML, if the other party has not objected in writing against these changes and/or supplements within 8 (eight) days after it has or could have taken cognizance of these changes and/or supplements. The other party is deemed to have knowledge of the said changes and/or supplements and to have accepted these at the moment at which AML has commenced the activities to which these changes and/or supplements are related. Only those explicitly authorised to enter into agreements on behalf of AML are allowed to do so.
c. Unless explicitly agreed on otherwise in writing, AML is entitled at all times to have part of the order or the entire order executed by a third party, on the understanding that these terms and conditions also apply in the favour of this third party, provided that AML authorises such third party in writing – even afterwards, if necessary – to appeal to these terms and conditions without this authorisation causing any obligations for AML.
d. AML will be entitled to dispose of and/or encumber the agreements concluded with the other party without thereby requiring permission from the other party. The other party is not permitted to conduct such an act.
e. When AML agrees with the other party that it will affix its products in/to and/or attach these to materials on request of and delivered by and/or on behalf of the other party, the other party must ensure the timely delivery of such undamaged materials to the delivery address agreed with AML. If the other party fails to do so, for whatsoever reason, and AML is therefore unable to deliver its goods and services within the period scheduled for this, AML will be entitled to charge the costs incurred by it through this, including its own costs, to the other party, which the other party will be obliged to pay to AML.
ARTICLE 3.2: GOOD FAITH, PUBLIC ORDER AND GOOD MORALS
a. When conducting business with the other party, AML wishes not to be become involved in any way in money laundering, corruption, terrorism and/or in transactions that are subject to embargos of Spanish law, the European Union and/or other friendly nations; neither directly nor indirectly. By the formation of agreements between AML and the other party, during which the other party could, at that time or prior to such, have taken note of these general conditions, the other party expressly notifies AML that the aforementioned circumstances are not in existence and that it is also not involved in such, neither directly nor indirectly. The other party also notifies in the aforementioned manner that the performance and/or goods delivered by AML shall not be used by the other party and/or on its behalf in aforementioned circumstances, neither directly nor indirectly.
b. If at any time the other party becomes aware, or has a reasonable suspicion, that it is or is becoming involved in the circumstances as referred to in this article under a., the other party is obliged to notify AML of this immediately. If at any time AML becomes aware, or has a strong suspicion, that in respect of any agreement between it and the other party it is becoming, or threatens to become, involved in circumstances as set out under a., AML is entitled to terminate and/or suspend the agreements entered into with the other party either wholly or in part and to cancel any agreements still to be entered into. AML is also entitled to sanction the right to cancellation, termination and/or suspension in a manner as referred to in clause 10.b.
c. AML is entitled to report the knowledge it obtains and/or has obtained in respect of the aforementioned circumstances or in the event of a reasonable suspicion of such circumstances to the competent authorities and to provide those with all the relevant information, including the - 4 - information it has obtained under a previously agreed duty of confidentiality. In that event, AML cannot be held liable in any way by and/or on behalf of the other party; neither directly nor indirectly.
ARTICLE 3.3: DISTANCE CONTRACTS
Where orders/contracts are at a distance are concluded under the legislation prevailing at that time and the other party justifiably invokes this, AML will respect the content of the relevant legislation in this respect. This means that provisions in these terms and conditions which, due to their general nature, are at any time conflicting with the relevant law, will then be subordinate to that law.
ARTICLE 3.4: ADDITIONAL FOR THE PURPOSE OF TRAINING/COURSES
ARTICLE 4: LIABILITY
a. Except for the provisions of Article 9 of these terms and conditions, AML is not liable for any damage caused either directly or indirectly by the items delivered, including extra work not being in compliance with the agreement, unless this is due to AML’s intent or gross negligence. Consequently, AML also does not accept any liability in, for example but not limited to: the event of serious calamities, such as, but not limited to, fire, water damage and any outside contingency, such as war and earthquakes, transmission of viruses and diseases.
b. AML will not be liable in any manner whatsoever for the manner of use of the goods delivered and any consequences ensuing therefrom; neither to the delivery itself, nor to other goods/items, persons and/or livestock, either directly or indirectly.
c. "The Buyer shall inspect all goods upon receipt and shall notify the Seller in writing of any defects, discrepancies, or non-conformities within 4 (four) days of delivery. Failure to provide such notice within the specified period shall constitute acceptance of the goods as delivered. The Seller shall not be liable under any circumstances for any labour costs, installation or removal expenses, or other consequential or incidental charges incurred by the Buyer or any third party arising from any defect, error, or non-conformity in the goods supplied. It is the sole responsibility of the Buyer to inspect and verify all goods prior to installation, modification, or onward sale."
d. "Any issues arising from the onward sale of goods that were not reported as defective, non-conforming, or erroneous within the specified 4 (four) day period shall be the sole responsibility of the Buyer. AML shall not be liable for any disputes, claims, or liabilities arising between the Buyer and its clients in relation to such goods."
e. The other party indemnifies AML in this matter for all claims by third parties.
f. When AML agrees with the other party that it will affix its products in/to and/or attach these to materials on request of and delivered by and/or on behalf of the other party, AML will not be liable in any manner whatsoever for any damage to those materials and/or the improper functioning of those materials, unless this is the result of proven intent or gross negligence.
g. AML does not accept any liability whatsoever for any damage as a result of the use of its website and/or the use of the information and/or functionalities set out/placed thereon. With regard to the account generated by the other party, the other party will be personally responsible for creating a safe password and for keeping the other party's user name and password safe. The actions that take place through the account of the other party, will be at the other party's own expense and risk.
h. Insofar as the other party or any third party engaged by it is involved in the execution of the transaction between AML and the other party on the basis of cooperation and/or providing assistance, AML will not be liable in any manner whatsoever or in any form whatsoever for any damage caused on the part of the other party and/or any third party engaged by it; nor vis-à-vis the underlying client of the other party.
i. If AML should be liable for any other reason for any damage under the agreement, the damages payable will not exceed the invoice amount (exclusive of value added tax) with regard to the respective goods and/or services, with a maximum of EURO 1.000,00 (in words: one thousand euros).
j. All products that are defective, incorrectly supplied, or subject to cancellation must be returned to the Seller’s premises (AML office) at the Buyer’s expense, unless otherwise agreed in writing. Returned goods must be in their original, unused, and re-sellable condition, including all original packaging and documentation.
k. In the case of cancelled orders, if the returned products are not in perfect and re-sellable condition, no refund or credit will be issued. All returned items are subject to inspection and approval by the Seller prior to any refund or credit being processed.
l. Custom-made, special-order, or non-stock items are non-returnable and non-refundable under any circumstances, unless they are found to be defective and such defect is reported within the specified inspection period.
m. The Seller shall not be liable under any circumstances for any labour costs, installation or removal expenses, or other consequential or incidental charges incurred by the Buyer or any third party arising from any defect, error, or non-conformity in the goods supplied. It is the sole responsibility of the Buyer to inspect and verify all goods prior to installation, modification, or onward sale.
ARTICLE 5: PERIOD AND LOCATION OF DELIVERY
a. The periods of delivery mentioned in the offers, confirmations and contracts are to the best of AML’s knowledge and will be complied with as much as possible, but they are not binding for AML.
b. If these periods are exceeded due to whatever cause, the other party will not be entitled to damages, dissolution of the agreement or non-compliance with any obligation arising for them from the respective agreement or from any other agreement whether or not connected with this agreement.
c. If the delivery period is exceeded by a wide margin, at the discretion of AML, AML will enter into further consultation with the other party.
d. Delivery is ex the business of AML or another location to be determined by AML.
e. If goods sold or services offered by AML are not accepted after they have been offered to the other party, at the discretion of AML they will be available to the other party for a period of three weeks. Throughout this period, the goods are stored for the other party’s account. After the period mentioned above, the total amount that would be payable for purchase or compliance, increased with the costs and interest, could be claimed from the other party, even without delivery of the said goods or services. The payment will then be deemed made as damages to AML.
f. If the other party does not comply with any obligation arising from this agreement or any other agreement connected with the order or does not do so in time, AML, upon informing the other party in writing that he is default, without judicial intervention, will be entitled to suspend the execution, without AML being held to pay any damages.
ARTICLE 6: TRANSPORT AND TRANSPORT RISK
a. The choice of the means of transport is for AML to decide.
b. The transport of the goods ordered with AML is for the other party’s account unless it has been expressly agreed otherwise in writing. This also applies to returns.
c.1. As from the moment of dispatch, all goods ordered/purchased from AML, including any goods to be returned by the other party, travel at the other party’s risk. Also if costs of carriage to the delivery address have been agreed on, the other party will be liable for any damage sustained during transport.
c.2. All the correspondence and documents to be send by and/or on the part of AML with the other party and/or with third parties on behalf of the other party, are from the moment of dispatch at the risk of the other party, irrespective of the delivery conditions relating to the goods and/or services to be delivered by AML as agreed with the other party. The other party must ascertain that the correspondence derives from AML. AML cannot be held liable in any way by, and/or on the part of, the other party for damage and/or changes to and/or corruption of the content of the correspondence sent by or on the part of AML. Nor can AML be held liable in any way by or on behalf of the other party in connection with improper use of personal data by the carrier, the fact that it has become clear that the carrier secured these data insufficiently and/or did not destroy these data on time.
6 - d. The goods will be delivered only to the ground floor. If goods are to be delivered at another location than at ground-floor level, the additional costs and risks are to be borne entirely by the other party. If the other party is not present at the time of delivery, or appears unable to take delivery of the goods, or otherwise fails to take delivery of the goods, AML has the right to convert the delivery into an obligation from the other party to collect at the address indicated by the carrier, after the latter has informed the other party of this by leaving a written notice. e. At arrival or receipt of the goods, the other party has to check the condition of the goods. If it then becomes apparent that the goods or materials have sustained damage, they have to take all measures to obtain damages from the carrier. By signing the receipt provided by or on behalf of AML, the other party declares he has received the goods in good condition.
ARTICLE 7: PRICES AND COSTS
a. AML fixes a price or fee for every order individually. This price or fee is exclusively intended as the amount to be paid for the performance to be executed by AML, including the normal costs involved. The prices mentioned in the offer are based on the cost price factors, such as, but not limited to; rates, wages, taxes, rights, expenses, cargo et cetera then known. In the event of an increase of any of these factors, AML will be entitled to change the offered (selling) price accordingly.
b. Therefore, the price or fee does not include any levies imposed by the government, and/or other authorities, including fines, insurance premiums etc.
c. AML is entitled to demand down payments, or a deposit or security (in the form of a bank guarantee) in advance.
d. AML reserves the right to charge shipping costs, as well as travel and accommodation costs.
ARTICLE 8: TERMS AND CONDITIONS OF PAYMENT
a. Unless explicitly agreed on otherwise (in writing), payment of invoices sent by AML must be made within 4 (four) days upon invoice date, without deduction of discounts and without any form of compensation.
b. All payments, without deduction or settlement of debt, are to be made at the offices of AML or into a bank or giro account to be designated by AML.
c. Discounts can only be granted upon mutual consultation between AML and the other party. Unless explicitly agreed on otherwise in writing, these are one-off discounts. With subsequent transactions no appeal can be made to previous discounts.
d. Any appeal to these conditions does not suspend the other party's payment obligation towards AML.
ARTICLE 9: COMPLAINTS
a. Any complaints about the delivery of goods, incorrect products supplied, the services provided and invoice amounts, must be submitted to AML in writing within 4 (four) days upon receipt of the products, services or the respective invoices, with the facts to which the complaints are related carefully stated. The other party’s right to complain lapses with respect to the goods and/or services used, edited and/or processed by or on behalf of the other party. This applies equally to opened goods or goods of which the packaging is damaged. Repair or replace the product or the defective part thereof does not include any costs for removal or reinstallation, such as labour costs, shipping costs to return the product, or any damages that may occur during the return.
b. If the complaints submitted do not comply with the provisions above, they can no longer be received, and the other party will be deemed to have approved the delivered goods and/or performed services. It is the other party’s obligation to return to AML the incorrect or faulty good(s) delivered carriage paid, at the discretion of AML.
c. AML will only be held to take cognizance of complaints submitted, if at the moment at which the complaints are submitted the other party involved has integrally complied with all his existing obligations towards AML, regardless of what these obligations consist of and from whatever agreement they arise.
d. All products that are defective, incorrectly supplied, or subject to cancellation must be returned to the Seller’s premises (AML office) at the Buyer’s expense, unless otherwise agreed in writing. Returned goods must be in their original, unused, and re-sellable condition, including all original packaging and documentation.
e. In the case of cancelled orders, if the returned products are not in perfect and re-sellable condition, no refund or credit will be issued. All returned items are subject to inspection and approval by the Seller prior to any refund or credit being processed.
f. Custom-made, special-order, or non-stock items are non-returnable and non-refundable under any circumstances, unless they are found to be defective and such defect is reported within the specified inspection period.
g. The Seller shall not be liable under any circumstances for any labour costs, installation or removal expenses, or other consequential or incidental charges incurred by the Buyer or any third party arising from any defect, error, or non-conformity in the goods supplied. It is the sole responsibility of the Buyer to inspect and verify all goods prior to installation, modification, or onward sale.
ARTICLE 10: CANCELLATION/DISSOLUTION AND SUSPENSION
a. If the other party is or remains in default in any way with respect to complying with its obligations regarding deliveries or activities executed or to be executed by AML previously, or pursuant to other obligations, AML has the right to suspend its obligations towards the other party or to cancel/dissolve the underlying agreements in whole or in part, without being held liable by the other party in any way and without prejudice to the rights to which AML is entitled. AML will also have this right, if the other party is declared bankrupt, has petitioned for suspension of payment, the Debt Rescheduling Private Individuals Act declared applicable, other forms of debt supervision or winding-up of the company or business activities occurs, or if – to the standards of AML – these circumstances threaten to occur. All claims AML has on the other party will then be immediately due and payable.
b. If the other party wishes to terminate/cancel the contract(s) that it has entered into with AML, then AML is also entitled to demand fulfilment of the contract(s) entered into; or, at the discretion of AML, the other party will owe termination costs of 100% of the agreed market value or transaction value and, on cancellation, will owe cancellation fees of at least 30% of the market value or the transaction value, all of which also at the sole discretion of AML.
c. AML will be entitled to refuse the assignment provided by and/or on behalf of the other party, to stop the execution thereof, to suspend or to dissolve the agreement with the preservation all other rights accruing to AML, if AML considers this appropriate for itself at any time, without the possibility of being held liable by and/or on behalf of the other party. Appropriate moments are, for example but not limited to, Assignments: that are in breach of any legislation and regulations, in conflict with accepted moral principles, incite hatred, discrimination, racism, are offensive by their nature, the manner of the supply of data entails a (digital) business risk unacceptable to AML.
ARTICLE 11: COMPENSATION IN THE CASE OF NON-PAYMENT OR LATE PAYMENT
If payment of the invoices sent by AML has not taken place within 4 (four) days upon invoice date, the other party will be deemed to be legally in default and AML will have the right to charge to the other party interest on the full payable amount as from the expiry date equal to the statutory interest rate with a minimum of 1,5% per month or a part of this, without prejudice to the other rights to which AML is entitled, including the right to recover all costs under the claim, both court costs and extrajudicial collection costs, the latter of which are fixed in advance at 15% of the amount to be claimed, with a minimum of EURO 250 (in words: two hundred and fifty euros), all of the above without notice of default. NB: There where the legislator has established by law the extrajudicial collection costs to be passed on to the other party, the other party is held to pay extrajudicial collection costs pursuant to the respective provisions of the law.
ARTICLE 12: RETENTION OF TITLE
a. As long as the other party has not made full payment to AML for goods, parts and installations delivered to him by AML and/or activities executed for him by AML, these goods and/or materials, which are for the other party’s account and risk, will remain the undisputed property of AML.
b. If the other party does not comply with any obligation from the agreement with respect to the goods sold and/or activities executed, AML, without any notice of default being required, has the right to take the goods or materials back, in which case the agreement will be dissolved without any judicial intervention, without prejudice to the right of AML to claim compensation at law or extra judicially for any damage suffered or yet to be suffered by AML, including loss suffered, lost profit, interest, transport costs etc.
c. AML reserves the right to actually retain goods, tools, materials, vehicles, money, negotiable instruments, (financial) documents et cetera which it has obtained from the other party under whatever title, until the other party has fully complied with its financial and other obligations towards AML.
d. For transactions with a other party established in a country where prolonged retention of title applies, AML has the right to declare the prolonged retention of title as it applies in the respective country applicable at any moment of its choosing.
ARTICLE 13: FORCE MAJEURE
a. In the event of force majeure AML is no longer held to comply with its obligations towards the other party. Force majeure includes such events and situations which have a clearly identifiable and direct influence on the company AML, such as, but not limited to, serious interruptions of its production process, war (also outside the Netherlands), riot, epidemic, pandemic, fire, traffic disruption, strike, exclusion, loss or damage during transport, accident or sickness among its staff, import restrictions or other limitations imposed by governments etc. AML will be discharged from its obligations, regardless of whether force majeure occurred in its own company or elsewhere, such as in the companies of suppliers, carriers, wholesalers etc..
b. In the event of impediments to executing the agreement due to force majeure, AML will be entitled, without judicial intervention, to suspend the execution of the agreement for a period not exceeding six months, or to dissolve the agreement in whole or in part, at the discretion of AML. The other party will receive a written notice of such decision made by AML.
ARTICLE 14: INTELLECTUAL PROPERTY RIGHTS, DESIGN PROTECTION
a. The Intellectual property rights of all products manufactured by AML (for the benefit of the other party), services provided etc. belong to AML. Use or alternative use of these rights, designs and/or ideas of AML is strictly prohibited, unless AML has granted explicit approval in writing and all conditions stipulated by AML in this respect have been fully complied with.
b. If the other party does not comply with the provisions as set out under 14a, AML will be entitled, without any further notice of default and/or judicial intervention being required, to claim a fine of at least EURO 11.500,00 (in words: eleven thousand five hundred euros) per day or a part thereof as long as this non-compliance continues.
ARTICLE 15: WARRANTIES
a. AML will exclusively grant a warranty in accordance with the provisions of the warranty clauses of the manufacturer, if and insofar such provisions have been delivered together with the products. In such cases, the warranty will only take effect after the other party has informed AML of his request in writing by registered letter.
b. If a warranty is provided by AML, but if no warranty clause has been provided, the warranty term will not exceed 6 (six) months after delivery of the respective goods. The other party will also need to inform AML of his request in writing by registered letter.
c. The warranty includes repair or replacement of the goods delivered or full or partial credit of the disputed goods, this at the discretion of AML Outside contingency can never lead to AML being held to provide any warranty.
d. The goods accepted for repair, whether under warranty or not, will in all cases remain at the risk of the other party with AML or with a third party engaged by AML for this purpose.
ARTICLE 16: CONSIGNMENTS ON APPROVAL
Only upon prior written confirmation by AML to the other party, the goods delivered by or on behalf of AML can be considered consignments on approval for shows, exhibitions, trade fairs and/or other purposes to be indicated by AML. These general terms and conditions also fully apply to goods on approval and on consignment.
ARTICLE 17: APPLICABLE LAW AND COMPETENT COURT
a. All offers, assignments and contracts to be entered into with AML are governed by Spanish law. Nevertheless, AML is at liberty to be able and entitled to rely at any time on the applicable law of the country in which the other party is established. In such a case, contrary to the provisions set out under Spanish law.
b, the dispute will be submitted to the court that is competent rationale material in the other party’s jurisdiction. If the nature of the transaction(s) so warrants, AML is able and entitled to rely at any time on the Vienna Sales Convention. It is not necessary for AML to notify the other party of its choice in advance. b. All disputes will be submitted to the Spanish courts judicial authority, at the discretion of AML.
2. In derogation from 17.a. and b., all transactions/agreements with an other party established outside of Spain will be expressly governed by Spanish law and all disputes will be subject to the judgment of the Spanish Court with subject matter jurisdiction. In the event that other party is summoned by a third party at another court and / or under another jurisdiction, other party hereby waives the right to summon AML in indemnification before that court and to that law, so that the jurisdiction of the court and law chosen by AML in any case will have the upper hand. e. Any article or sub-article of the present general terms and conditions becoming void, or not applied by AML, this shall not affect the validity of other articles.
ARTICLE 18: LOCATION AND AMENDMENTS OF THESE GENERAL TERMS AND CONDITIONS
AML is entitled to amend these General Terms and Conditions. The General Terms and Conditions as amended by AML apply vis-à-vis the other party with effect from 30 (thirty) days after the other party has been informed of the amendment in writing, unless the other party informs AML in writing within this period to object to the amendment. In the latter case the unaltered General Terms and Conditions between Parties will remain in effect until the completion of the assignment or the termination of the agreement, but not for longer than 6 (six) months after the end of the aforesaid period of 30 (thirty) days. If the agreement continues thereafter, the amended General Terms and Conditions will apply thereto from that time.
11 - APPENDIX: WARRANTY
a.1. AML refers to what it has set out in articles 1.c.1 and 1.c.2 in the main part of these terms and conditions regarding the applicability of the provisions included in this appendix. a.2. These general warranty terms apply to products introduced to the market by AML as its own products and not purchased from third-party suppliers and in those cases when it has expressly declared these general warranty terms applicable in the agreement by means of a letter of warranty. Therefore, other than the reference to its general terms and conditions of sale, delivery and payment and/or standard submission of these terms and conditions at the coming into effect of the agreement.
b.1. The guarantee that this appendix relates to concerns the functionality of the lighting products introduced to the market by AML in its own name.
b.2. When AML delivers goods with an applicable manufacturer's warranty, it will provide cooperation in the form of an obligation to use best endeavours, within the criteria set out by the manufacturer, to the other party in support of the warranty request.
c.1. Unless expressly agreed otherwise in writing, the duration of the guarantee granted by AML for the products referred to under b.1. will be 1 (one) year with normal use consecutive to the date of delivery of the items concerned, where applicable, as set out on the invoice from AML. The guarantee will automatically expire at the end of the agreed guarantee period. Should AML decide to still provide assistance whether or not by telephone to the other party consecutively after the expiry of the guarantee period referred to, in the event of similar complaints for any reason whatsoever, the other party cannot derive any rights therefrom.
c.2. When there is no delivery date set out on the invoice, the invoice date will apply as the commencement date of the warranty period, unless an earlier delivery date can be demonstrable by means of a certificate of posting, in which case the delivery date stated thereon will apply as the commencement date of the warranty.
c.3. With regard to objects/items delivered by AML under warranty and not processed by the other party, AML will exclusively accept reliance on the warranty by the other party if the claim has been made within the warranty period, unless expressly agreed otherwise with AML in writing.
d.1. Warranty requests from an end-user must be made and settled at all times through the other party where the products concerned delivered by AML, as referred to in art.
a.2, were purchased. If the end-user has purchased the products concerned directly from AML, the end-user can submit the request directly to AML.
d.2. Warranty applications with regard to the objects/items delivered by AML must be reported in writing within the warranty period. In the event of an indirect delivery, the end-user must report this in writing via the supplier of the end-user within the warranty period.
e.1. The other party cannot derive any rights with regard to the granting or non-granting or the acceptance and the manner of settlement of a warranty application or from the approval of a warranty application by AML.
f.1. Reliance by and/or on the part of the other party on a warranty granted by AML will not interrupt the agreed warranty period. No rights can be derived from a warranty granted by AML by and/or on the part of the other party for future purchases, comparable or otherwise, even if a warranty has been and/or is granted to third parties.
g.1. When there is a warranty granted by AML and the other party relies on that warranty, it can only be determined by AML after final establishing of the nature of the complaint whether the complaint falls under the applicability of the warranty for the item/part delivered.
h.1. AML will be entitled to charge the other party, prior to the provision of a warranty to be issued, in addition to any travel and accommodation costs incurred, the additional investigation/handling costs with a minimum of Euro 100,00 (one hundred Euro) per case (or product), which it incurs or has incurred related to the unjustified reliance by the other party on a warranty to be provided by AML.
i.1. The warranty to be provided by AML other than on-site will take place on the basis of a “carry in” warranty, i.e. the other party must bear the costs of the transport vice versa. The other party will bear the risk and the costs of the transport. The other party will be responsible for ensuring adequate packaging.
i.2. The goods offered by the other party to AML under the guarantee and which AML therefore has in its possession will remain there at all times at the expense and risk of the other party.
j.1. When providing a guarantee, AML will be free to opt for repair/remedy of the delivery under its guarantee, whether or not with new or used original product parts, with replacement product parts when original product parts are no longer available, or full or partial crediting of the product part originally delivered under the guarantee. AML will record the extent of the crediting.
k.1. By means of providing one of the goods and/or services referred to above under j.1., AML will be fully discharged from its warranty obligations.
l.1. In the event of justified reliance on the guarantee, AML will never be liable for any damage suffered and/or still to be suffered by and/or on behalf of the other party; neither in a direct or indirect sense, nor to the materials, accessories and the environment to which, in which and/or on which the product covered by the applicable guarantee has been attached and/or placed or affixed, or otherwise.
m.1. The right to the warranty granted by AML will lapse if, in the opinion of AML, this is based on a spurious application or a suspicion thereof; for example, but not limited to, if: - Something has been changed, crossed out, removed or made illegible on the invoice. - If the other party fails to cooperate or insufficiently cooperates during the inspection by and/or on behalf of AML with regard to whether or not reliance on the guarantee is justified, as well as if the other party fails to cooperate or insufficiently cooperates with regard to the settlement of the guarantee claim by and/or on behalf of AML. All this will be at the discretion of AML. - The reliance relates to the consequences/characteristics of the products delivered by AML, or to the consequences of products/materials/substrates on which or in which the products of AML are applied or incorporated. - The reliance on the warranty involves consequences due to improper use of the product and/or the materials delivered by AML to the other party - The reliance on the warranty is the result of external circumstances, such as for example, but not limited thereto, fire, water damage sunlight influences, extreme weather conditions, storm, high water, extreme frost, snow, high temperatures and suchlike, earthquakes, war damage, attacks, sabotage and other external calamities as well as the impact of chemical substances. - There is use of the products delivered by AML under the guarantee in an environment that does not or temporarily does not meet or has not met the suitability criteria. - When the products of AML are not installed and/or used in the prescribed manner. - There are consequences caused by the work of the other party and/or third parties. - There are consequences due to characteristics of the materials/products/substrates to be processed with the products, which appear to have an impact on the functioning of the products delivered by AML. There is a late warranty request and this has resulted in a deteriorated initial situation for the provision of warranty. - Work has been executed in the interim by and/or on behalf of the other party on the products delivered by and/or on behalf of AML under warranty and/or parts have been replaced by it or on its behalf, which may have had a negative impact on the quality and functioning of these products; which will be at the discretion of AML - There is improper use of the products, which have a negative impact on the quality and/or the proper functioning of the products, which will be at the discretion of AML - The other party is in any manner whatsoever in breach of contract and/or in default vis-à-vis AML - The products of AML are not incorporated by a specialist acknowledged by AML. - The complaint relates to tolerances that are product-specific. - There is the usual wear and tear, usual deterioration of colour.
n.1. AML will not be liable in any manner whatsoever for any form of damage suffered by the other party directly and/or indirectly, including prior damage and damage after expiry, as a result of justifiable reliance on the warranty and the warranty provision executed by AML.
o.1.AML will be entitled, at its sole discretion, when dealing with the warranty and/or resolving the complaint concerned, to choose to have the warranty implemented by itself and/or by a third party engaged by it. p.1. The other party cannot influence the manner and type of warranty to be granted/granted by AML.
q.1. AML has the right, if the other party does not take back or does not wish to take back the objects/items sent by it and/or on its behalf to AML for the purpose of warranty provision after the expiry of 14 days after the refusal or notification thereof, to dispose of these objects/items, to destroy these or have these destroyed at the expense of the other party. AML will be entitled to charge the costs thereof, including personal expenses and with a minimum of Euro 75,00 (seventy five) to the other party.
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