1.1. These general terms and conditions are applicable if the parties refer hereto in their contract, subject to the modifications that the parties may expressly agree to in writing.
1.2. In the event of any conflict between those terms and conditions and the terms of the framework contract (notably, the Distribution Agreement), the terms of the framework contract shall prevail.
2. Formation of the contract
2.1. The contract is deemed formed when, either in the purchase order or separately, AMB sends a written acceptance within the time limit fixed by the buyer.
2.2. If, in formulating a firm offer, AMB fixes a time limit for acceptance, the contract is deemed formed when the buyer sends a written acceptance before the expiration of the time limit.
3. Descriptive Documents and After-Sales Service
3.1. The weights, dimensions, capacities, prices, performance and other data provided in the catalogues, prospectuses, circulars, advertisements, prints and price lists are not binding unless the contract expressly refers to them.
3.2. AMB must provide, at no cost to the buyer, no later than the beginning of the warranty period, its documentation regarding instructions and after-sales service for the products.
4.1. Unless otherwise stipulated;
a) the prices indicated in the price lists and catalogues refer to “unpackaged products”;
b) the prices in the firm offers and/or the framework contract include the packaging or the protection necessary to avoid deterioration in normal transport conditions without taking into account a particular destination.
5. Transfer of Risks
5.1. The products are deemed to be Ex Works warehouse (Incoterm CCI 2010), unless otherwise expressly agreed by the parties: the risks pass from AMB to the buyer at the time when the products are placed at the disposal of the buyer at AMB’s warehouse in accordance with the contract, it being understood that AMB must notify the buyer in writing of the shipping date from which the buyer may take delivery of the products from the warehouse. AMB’s notice must be given sufficiently in advance to allow the buyer to take the normal necessary measures in this regard.
6. Time Limit for Delivery
6.1. Unless otherwise stipulated, the time limits for delivery begin to run on the later of the following dates:
a) the date of the formation of the contract;
b) the date on which AMB receives the advances or the payment.
6.2. After the expiration of the time limit established in the contract, AMB has a grace period of one month starting from the expiration of the contractual time limit.
6.3. If the delivery is delayed by one of the circumstances enumerated in article 12 or by an act or an omission of the buyer, AMB is granted an extension of the time limit for delivery which takes appropriate account of the circumstances.
6.4. If, after the expiration of the grace period stipulated in paragraph 6.2, the products are still not delivered, the buyer has the right to, by simple letter, be released from the contract regarding all products that have not yet been delivered.
6.5. If the buyer does not take the products at the place and on the date specified in the contract and provided that its delay is not due to an act or an omission of AMB, the buyer is nevertheless held to make the payments stipulated in the contract as if the products had been delivered. In this case, if the products were identified, AMB must provide for storage at the buyer’s expense and risk. AMB also has the right to reimbursement for all reasonable expenses that it incurred in the performance of the contract and which will not be included in the payments received, but to the exclusion of any other recourse against the buyer because of its delay.
7.1. The payments are made pursuant to the terms and conditions established by the parties and, if applicable, by the distribution agreement
consented to by the parties. In the absence of other express or implied provisions in this regard, the amount of the balance owing must be paid,
in the case of a sale Ex Works warehouse (Incoterm CCI 2010), when products are placed at the disposal of the buyer, and in the case of other
sales, when the products are shipped to the buyer.
7.2. If the buyer is in arrears in its payments and if the delay is not attributable to an act or an omission of AMB, AMB may:
a) suspend the performance of its own obligations until the arrears are paid; and
b) require, by timely written notice to the buyer, default interest from the due date at the rate of twenty-four (24) percent per year of delay, unless
the parties have provided otherwise.
7.3. If at the expiration of one month following the due date the buyer does not pay the amount due, AMB has the right, without notice and to the
exclusion of any other recourse against the buyer with regard to its delay, to be released from the contract and to require the buyer to settle any
amounts owing for the products delivered and to the reimbursement of all reasonable expenses that it incurred in the performance of the contract.
8. The Right of the Buyer to Reject the Products
Within 48 hours after receipt of the products, the buyer has the right to reject non-conforming products, except if it concerns products that suffered a defect after the transfer of risks and it being understood that before the buyer may exercise this right, AMB has the possibility to cure the defect at its own expense within a reasonable time.
9.1. AMB undertakes to cure any defect resulting from faulty design, materials or workmanship, subject to the provisions stipulated hereinafter.
9.2. This undertaking only applies to defects that appear during the period (the “warranty period”) which begins at the moment of the transfer of risks and which runs until the expiration of the warranty period, which, unless indicated otherwise, is twelve months.
9.3. For certain items that are listed exhaustively, the framework contract may stipulate different respective warranty periods, if applicable.
9.4. The parties recognize that AMB does not assume any responsibility other than that resulting from its gross fault as defined in paragraph 9.10
9.5. In order to invoke the benefit of this article, the buyer must notify AMB, without delay and in writing, of the defects that appeared during the warranty period. Once notified, AMB has the choice to:
a) have the products or the defective parts sent to it in order to carry out repairs;
b) replace the defective products;
c) replace or repair the defective parts in order to allow the buyer to carry out the necessary repairs at AMB’s expense.
9.6. If AMB has the products or defective pieces returned to it, for repair or replacement, the buyer accepts, unless otherwise stipulated, the cost and risk of their transport. The return of the repaired products or parts or the replaced products or parts is made, unless otherwise stipulated, at AMB’s expense and risk.
9.7. The products or the parts replaced in accordance with this article are placed at the disposal of AMB.
9.8. During the warranty period, AMB’s obligation only covers defects that occur within the conditions of use stipulated in the contract and during normal use. The obligation does not apply, in particular, in cases of improper use, poor maintenance or poor repairs by a person other than AMB or its agent, or in cases where modifications are made without the written consent of AMB, or for normal deterioration.
9.9. Upon the transfer of risks and even for defects arising from a cause prior to this transfer, AMB assumes no responsibility beyond the obligations stipulated in this provision. It is expressly agreed that AMB will not indemnify the buyer for accidents to persons, damages to property distinct from the object of the contract or lost profits, unless it results from circumstances in which AMB commits a gross fault.
9.10. “Gross fault” means an act or omission by AMB that indicates a lack of precaution, which given the gravity of the consequences a diligent professional in the same circumstances would normally have foreseen, or that indicates a willful disregard of these consequences and not just any lack of care or skill.
10. Transfer of Title
10.1 The transfer of title may not occur before the moment when the buyer pays the purchase price in full.
11. Intellectual Property
11.1 AMB brands as well as all the trademarks, AMB figurative, trade names, service marks, illustrations, logos, registered or unregistered designs, copyrights and patents, on all packaging, accessories, registered or not, are and remain the exclusive property of AMB, with the exception of the Products for which a license has been exclusively given to a third party.
11.2 Reproduction in whole or in part, modification, use of intellectual property, for whatever reason or on any medium whatsoever, is strictly forbidden without the express written prior consent of AMB.
11.3 The products are manufactured in accordance with standard commercial use. The Purchaser agrees and states that it shall inform its customers of the conditions of use of products for each sale.
12. Grounds for Exemption from Liability
12.1. Any circumstances beyond the control of the parties which occur after the conclusion of the contract and which prevent the fulfillment of the contract are considered grounds for exemption from liability. Circumstances are beyond the control of the parties, within the meaning of this clause, if they do not result from the fault of the party who invokes them.
12.2. The party who invokes the circumstances mentioned above must promptly notify the other party in writing of their occurrence as well as their termination.
12.3. If, following the circumstances defined in paragraph 12.1, fulfillment of the contract within a reasonable time becomes impossible, each
party has the right to be released from the contract by simple written notification. When the circumstances mentioned in paragraph 12.1 allow it and to the extent that it may be fair, there will be, if applicable, restitution by way of reimbursements.
12.4 The buyer agrees to be solely responsible for the placement of the Products on the market. Consequently, AMB may not be held responsible for any non-conformity or non-compliance with federal, state, territorial or local regulations regarding, inter alia, matters of health,
safety and the environment. As a result, the buyer is solely responsible for any consequences related to non-compliance with federal, state, territorial and local regulations.
13. Competent Court and Applicable Law
13.1. Any dispute arising out of or related to the contract and that the parties could not resolve amicably shall be decided by the competent court sitting in the jurisdiction where AMB has its head office, unless otherwise stipulated by the parties.
13.2. The applicable law to the contract shall be the one applicable within the territory where the head office of AMB is located. In the event that the Belgian law is applicable, the Belgian Act of July 27, 1961 on the unilateral termination of exclusive Distribution Agreement of indefinite duration must be discarded.