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1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions shall apply to all business which ABRE GmbH — hereinafter also referred to as ABRE — conducts in the field of distribution of powder coatings in its own name, including the initiation and processing of business.
1.2 These General Terms and Conditions shall also apply to all transactions which ABRE brokers as a commercial agent for producers of powder coatings, unless the producers agree on different terms and conditions with the customer in the individual case. These General Terms and Conditions shall therefore apply, if applicable, with the provison that in the case of brokered transactions, the powder coating producer shall be the contracting party instead of ABRE.
1.3 Any deviating terms and conditions of the customer shall be ineffective, even if ABRE does not expressly object to them. In any case, the customer accepts these General Terms and Conditions by taking delivery of the goods.
1.4 Individual agreements take precedence over these GTC.
2. PRICES, PAYMENT, SET-OFF, RETENTION, INTEREST
2.1 ABRE may reasonably increase the agreed price if, as agreed, delivery is to be made later than four months after ABRE’s offer to enter into the contract and if market prices have increased in the meantime.
2.2 Unless otherwise stated in the order confirmation, the net purchase price is due for payment without deduction within 30 days from the date of invoice. A 2% discount shall be granted for payment within ten days of receipt of the invoice. If the purchaser defaults on payment, ABRE is entitled to charge interest on arrears at a rate of 4% above the respective discount rate of the Deutsche Bundesbank p.a.. If we are able to prove a higher damage caused by default, we are entitled to claim it. The customer is, however, entitled to prove to ABRE that ABRE has suffered no damage or substantially less damage as a result of the delay.
2.3 The Purchaser shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed, or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
3. LIEFERFRISTEN, TEIL‑, MEHR- UND MINDERLIEFERUNGEN
3.1 Compliance with our delivery obligations shall be subject to the timely and proper fulfillment of the Purchaser’s obligations. Events of force majeure shall extend agreed delivery periods or postpone deadlines. Force majeure shall also include, in particular, hindrances caused by strikes or lockouts, including those occurring abroad, to the extent that ABRE procures goods from manufacturers in a strike-stricken foreign country or has to transport the goods through a strike-stricken foreign country. This shall apply mutatis mutandis to delays in delivery as a result of trade policy or sovereign measures, insofar as the manufacture or transport or the handling of the procurement and delivery of goods are affected thereby.
3.2 Partial deliveries and excess or short deliveries of up to 10 percent are permissible. In the case of customer-specific special designs, up to 30 percent excess or short deliveries are permissible.
3.3 If ABRE is in default of delivery, the Customer may, after having granted a reasonable grace period, rescind the contract to the extent that the goods have not been dispatched or have not been notified as ready for dispatch by the expiry of the grace period; in the case of partial deliveries, this shall apply to the entire goods only if the part already delivered is of no interest to the Customer.
3. 4 Claims for damages due to delay, impossibility, or a positive breach of contract for which ABRE is responsible are only given under the following conditions: — ABRE shall be liable to the full amount of damages in case of its own gross negligence and that of executive employees, in addition- ABRE shall be liable on the merits in case of any culpable violation of essential contractual obligations and- ABRE shall be liable outside such obligations on the merits also for gross negligence of simple vicarious agents, unless ABRE can exempt itself from this by virtue of commercial custom,- ABRE shall be liable in the last two groups of cases only to the amount of compensation for the typical foreseeable damage. Any further liability of ABRE is excluded. The limitation of liability shall not apply if ABRE is liable for compelling reasons under the Product Liability Act, nor in the absence of warranted characteristics, if the purpose of the warranty is precisely to protect the Purchaser against damage to the delivery item itself.
3.5 Delivery shall be ex works, subject to the possibility of delivery, subject to self-supply, tel. qual.
4. WARRANTED CHARACTERISTICS, WARRANTY
4.1 ABRE warrants that Customer will consistently receive the quality of goods that Customer has tested. Beyond that, ABRE does not warrant any special properties of the goods.
4.2 The Purchaser’s warranty rights are subject to the condition that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to §§ 377 HGB (German Commercial Code). Insofar as a defect in the purchased item for which ABRE is responsible is given, ABRE shall be entitled, at its discretion, to remedy the defect or to make a replacement delivery.
4.3 If ABRE is not prepared or not in a position to remedy the defect or to make a replacement delivery, in particular if this is delayed beyond a reasonable period of time for reasons for which ABRE is responsible, or if the remedy of the defect or the replacement delivery fails in any other way, the Purchaser shall be entitled, at its option, to withdraw from the contract or to demand a reduction of the purchase price.
5. RESERVATION OF TITLE
5.1 ABRE retains title to all goods delivered until all claims against the customer have been satisfied in full. This shall also apply if the customer makes payments on specifically designated claims. In the event of overcollateralization, the customer may demand that ABRE transfer to it title to goods exceeding 10 percent of the value of the outstanding claims.
5.2 The customer may dispose of goods subject to retention of title or co-owned by ABRE only in the ordinary course of business. The customer is not entitled to transfer ownership by way of security without ABRE’s consent.
5.3 The customer assigns to ABRE in advance a part of the claims it has due to the resale of ABRE’s goods or of items with which ABRE’s goods have been processed or mixed, in the amount corresponding to ABRE’s claim. ABRE accepts the assignment in advance. Section 5.1 above shall apply mutatis mutandis to the overcollateralization.
5.4 The customer may collect claims in the ordinary course of business until objection by ABRE. The assignment of claims assigned to ABRE in whole or in part to third parties is not permitted. This shall also apply to the sale of receivables by way of factoring.
6. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW, PARTIAL INVALIDITY
6.1 The place of performance for the payment of the customer and the place of jurisdiction shall be the registered office of ABRE, thus Schwäbisch Hall.
6.2 The place of jurisdiction shall also be Schwäbisch Hall, Germany, in the event of a check protest for the check action.
6.3 In addition, the law of the Federal Republic of Germany shall apply. If the customer is domiciled abroad, the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
6.4 Should individual provisions of these GTC be or become invalid, the remaining provisions shall nevertheless remain valid. The invalid provisions shall be replaced by the corresponding statutory provisions.