Terms of Delivery and Payment
1. General Information
1.1 The following terms and conditions shall apply exclusively to all
deliveries made and services provided by the ABS GmbH (“ABS”)
throughout the duration of the business relationship, i.e. in the case
of future contracts no separate exclusive agreement is required; insofar
as no other written agreement has been concluded between the parties.
Contrary acknowledgements on the part of the contracting party
(“Customer” or “Ordering Party”) referring to his own terms and
conditions are rejected herewith.
1.2 Details concerning the individual services provided by ABS can be
found in separate agreements or service specifications separately
closed and agreed upon between the Customer and ABS.
2. Quotes, Contracts
2.1 All quotes submitted by ABS are subject to change. All special services and deliveries supplied to the purpose of providing a quote, e.g. travel, taking measurements on site etc., shall be invoiced to the customer regardless of whether they are provided in the envisaged form or not or whether changes are made thereto.
2.2 The contract only becomes legally binding when confirmed in writing,
by telex or by telefax on the part of ABS. This applies likewise to
orders accepted by representatives and to telephone and fax orders as
well as to any changes made to the orders by the Customer.
2.3 Should ABS be contracted with the maintenance, repair or processing
of parts delivered to the customer a list containing the exact
descriptions and, where applicable, the dimensions of the individual
parts must be included. Where such a list is not supplied the
information provided by ABS in the order confirmation shall be redeemed
verification of the delivery of the parts.
2.4 Parts and materials replaced by ABS pass into the property of ABS without compensation unless otherwise agreed.
3. Terms of Delivery
3.1 Unless otherwise agreed, delivery is taken and/or performance is accepted on the premises of ABS. Should delivery not be taken and/or performance not be accepted by the Customer himself/herself but by an agent the latter must provide proof of his/her identity. ABS is entitled but not committed to checking these credentials.
3.2 Should the Customer request delivery this is done at the Customer’s
risk and expense. Transport insurance is only taken out upon the
Customer’s request and at his own expense.
3.3 Partial delivery and partial performance are allowed.
3.4 Delivery dates quoted by ABS are only binding where explicitly agreed in writing.
3.5 Should delivery or performance be delayed on the part of ABS the
Customer must set an appropriate final deadline. Should ABS not deliver
or perform within the specified extension period the Customer is
entitled to rescind the contract.
3.6 ABS shall not be held responsible for delays in delivery or
performance as a result of force majeure or other unforeseen events
which are no fault of ABS and not only temporarily essentially
complicate or make impossible the delivery or performance – even if they
affect ABS’s suppliers or other sub-suppliers – even in the case of a
binding delivery date. In this event, ABS shall be entitled to either
postpone the delivery and/or the performance by the period of the
complication or to rescind the contract. Claims for damages – regardless
of the legal grounds - are ruled out in the case of force majeure or
other unforeseen events which are no fault of ABS.
4. Pricing, Terms of Payment
4.1 All prices quoted are ex works ABS and exclude postage, freight and packaging charges unless explicitly agreed otherwise, such as ex works at the manufacturer's premises. The Customer shall bear all value added tax charges where applicable. Should the packaging material be supplied by ABS the cost price shall be charged.
4.2 All invoices are payable net immediately upon receipt of the
invoice. Unless otherwise agreed deductions are not permissible.
4.3 Set-off and retention are permissible only in the event of an
undisputed or legally established counterclaim on the part of the
Customer.
4.4 If the Customer is in arrears on payments or if there are justified
doubts as to the Customer’s ability to pay or his creditworthiness, ABS
shall be entitled – notwithstanding its other rights – to demand advance
payments for deliveries not yet made and to claim all receivables from
the business relationship due immediately. ABS’ duty to deliver shall be
suspended as long as the Customer is in arrears with a due payment. In
the event of a delayed payment, ABS shall also be entitled to demand
default interest in the amount of 8 percentage points above the
respective base interest rate insofar as this relates to fee claims.
5. Passing of Risk
The risk shall pass to the Customer following inspection or, if no
inspection is planned, upon acceptance of the goods at the premises of
ABS or in the case of delivery as soon as the shipment has been handed
over to the person executing the transport or has left the premises of
ABS for the purpose of shipment. If shipment is delayed at the
Customer’s request the risk passes to the Customer upon notification
that the goods are ready for shipment.
6. Default of Acceptance
6.1 The Customer shall be considered to have defaulted on the acceptance if he/she does not collect the goods or initiate the shipment thereof within seven days of being notified that the goods are finished or are ready to be collected. If in default of acceptance the risk of accidental deterioration or accidental loss shall pass to the Customer.
6.2 If the Customer defaults on acceptance ABS shall also be entitled to
demand compensation for ensuing damages. Two weeks after receiving
notification that the goods are ready ABS also reserves the right to
store the goods elsewhere or sell them otherwise at the Customer’s
expense.
7. Insurance
ABS shall not provide additional insurance coverage for contractual
objects handed over by the customer. The risk and insurance coverage for
the contractual object during the repair period shall be borne by the
Customer.
8. Materials/Objects of the Customer
8.1 If additional objects are handed over to ABS together with the contractual object ABS shall only be liable for damage to such objects in accordance with No. 12 of these General Terms and Conditions.
8.2 The Customer shall grant ABS a right of lien on all objects ABS has
contributed with respect to claims resulting from the underlying
contract.
8.3 Should software be included in the delivery package the Ordering
Party is granted a non-exclusive right to use the supplied software and
its respective documentation. The software is entrusted to the Ordering
Party for use with the specified delivery item. Using the software on
more than one system is prohibited.
The Ordering Party may only duplicate, modify or translate the software
or change the object code to source code within the legally permissible
limits (§§ 69 a ff. UrhG) [Urheberrechtsgesetz = German Copyright Act].
The Ordering Party pledges not to remove any information provided by the
manufacturer – in particular, copyright notices – or to change such
without obtaining explicit prior consent from the supplier. All other
rights pertaining to the software and the documentation, including
copies, remain the property of ABS, respectively of the software
supplier. Granting sub-licenses is not permissible.
9. Retention of Title
9.1 ABS reserves the rights to all the objects supplied (goods in which title is retained) until the Customer has settled all claims resulting from the business relationship with ABS. Retention also includes all new products created by processing the goods in which title is retained. The processing is done for ABS as manufacturer. If the goods are processed, linked to or combined with items not belonging to ABS, ABS shall acquire proportional co-ownership rights corresponding to the relation of the invoice value of the goods in which title is retained to the invoice value of the other materials.
9.2 As long as the Customer is willing and able to meet his/her
obligations toward ABS accordingly, the Customer may dispose of the
goods owned or co-owned by ABS during the ordinary course of business.
The following shall apply:
a) If the Customer defers the purchase price for his/her customers
he/she shall retain title in the modified goods vis-à-vis such
customers. The Customer shall not be entitled to dispose of the goods in
which title is retained without such retention.
b) The Customer hereby assigns to ABS all claims from the sale of the
goods in which title is retained, including bills of exchange and
checks, to secure ABS’ claims resulting from the business relationship.
In the case of a sale of goods which are co-owned by ABS, the assignment
shall be limited to the portion of the claim that corresponds to ABS’
co-ownership share. Where processing is carried out within the framework
of a service contract, the wages claim is hereby assigned to ABS to the
amount corresponding to the proportion of the Customer’s invoice
related to the goods in which title is retained. The Customer is only
authorized to resell or otherwise use the goods in which title is
retained if it has been previously ascertained that the resulting claims
will pass to ABS.
c) If the assigned claim is included in a running account, the Customer
hereby assigns to ABS a part of the balance corresponding to the amount
of the claim (including the respective portion of the final balance)
from the current account. If intermediate balances are drawn and it has
been agreed to carry them forward, then the claim to which ABS is
entitled according to the intermediate balance pursuant to the above
regulation shall be treated as if it had been assigned to ABS in the
following balance.
d) The Customer is entitled to collect the claims assigned to ABS until ABS revokes its permission.
9.3 As long as ABS retains title the Customer shall treat the goods in
which title is retained, in as far as they are at the Customer’s
disposal, with care and shall safeguard them. The customer shall also
carry out the usual inspection, maintenance and conservation work at
his/her own expense. For the duration of the retention of title the
Customer may neither pledge the goods in which title is retained nor
transfer them by way of security. The Customer shall immediately notify
ABS in writing or by fax of any access by third parties to the goods in
which title is retained, such as by way of attachment or seizure, as
well as of any damage or destruction hereto. The Customer shall bear all
expenses required to terminate the access and to reacquire the goods in
which title is retained, insofar as they cannot be confiscated by third
parties.
9.4 If the Customer violates either his/her duty to handle the goods in
which title is retained with care or his/her other obligations to
exercise due diligence, or if payments of secured claims are in arrears,
ABS shall be entitled to repossess the goods in which title is
retained. The repossession of the goods shall only be considered an
annulment of the contract if ABS makes an appropriate statement in
writing. After repossessing the goods in which title is retained ABS
shall be entitled to utilize them, whereby the Customer’s liability
account shall be credited with the returns accordingly minus a
reasonable sum to cover the costs of utilization. This shall apply
mutatis mutandis to all other cases of breach of contract on the part of
the Customer.
9.5 If the realizable value of the securities exceeds the claim to be
secured by more than 20 %, ABS shall release securities at the
Customer’s request and according to the Customer’s wishes.
9.6 If according to the statutory provisions applicable in the country
of the Customer's legal seat retention of title is not permissible or
only permissible to a limited extent, ABS’ rights as set out above shall
be limited to that which is legally permissible.
9.7 ABS reserves title of ownership and copyrights with regard to
samples, cost estimates, drawings and other similar information of a
corporeal and incorporeal nature – also in electronic form; this
information may not be made accessible to third parties. ABS pledges to
only make information and documents classed by the Ordering Party as
being confidential available to third parties subject to prior consent
of the Ordering Party.
10. Claims for Defects
10.1 When purchasing goods, claims for defects in accordance with No. 11 of these General Terms and Conditions only apply if the Customer has fulfilled his/her inspection, notification and rejection obligations according to § 377 Handelsgesetzbuch (German Commercial Code).
10.2 Any liability for material defects is ruled out in the case of the sale of second-hand goods.
10.3 In the case of the sale of newly manufactured goods and in the
event that the Customer takes recourse against ABS following a
successful purchase price reduction or return by a consumer § 478
Bürgerliches Gesetzbuch (Civil Code) shall apply with the proviso that
in the event of a purchase price reduction by the consumer ABS shall
only accept that portion of the reduction that was effected between the
Customer and the consumer or other intermediate dealer.
11. The Customer’s Rights in the Event of a Defect
11.1 The Customer may assert the following rights only if ABS was notified in writing of the defect within the limitation period and the goods were made immediately available to ABS upon request.
11.2 In the event of a justified and timely notice of defect ABS may
either choose to remedy the defect or to make a new delivery. In the
event of a remedy ABS shall decide whether to carry out a repair or
exchange the defective parts.
11.3 ABS is entitled to several attempts to remedy a defect. If ABS does
not correct the defect within a reasonable time period or if the remedy
fails, the Customer may choose to rescind the contract or reduce the
payment sum (abatement).
11.4 In the event that an unjustified notice of defect leads to an
extensive examination process, the Customer may be charged for the costs
of such an examination.
11.5 The limitation period for notices of defect shall be one year
commencing with the passing of the risk as defined in No. 5 of these
General Terms and Conditions.
11.6 All claims for defects are ruled out if the goods are used contrary
to the operating instructions or directions of ABS, or are otherwise
improperly installed, used or stored, or not utilized in accordance with
the contract, or if maintenance work, repairs, changes or modifications
to the goods or parts thereof are carried out by the Customer or third
parties without ABS’ consent, unless the Customer proves that these
circumstances are not responsible for causing the defect.
12. Liability
12.1 Regardless of the nature of the breach of duty, including unlawful acts, claims for damages are herewith excluded except in the case of willful misconduct or gross negligence.
12.2 In cases where essential contractual obligations are violated
(cardinal obligations), ABS shall be liable for negligence, but only up
to the value of the foreseeable damage typical for such type of
contract. Claims for lost profits, saved expenses, claims for damages by
third parties or other indirect consequential damage cannot be made in
this case.
12.3 The restrictions and exclusions of liability in paragraphs 1 and 2
shall not apply to claims for damages relating to injury to life, body
or health.
12.4 To the extent to which liability on the part of ABS is excluded
or limited, this shall also apply to the employees, workers,
representatives and vicarious agents of ABS.
13. Miscellaneous
13.1 Unless other agreements are made in writing, these Terms and Conditions reflect the entirety of the agreements between ABS and the Customer. No subsidiary oral agreements exist. Changes and amendments to or cancellations of these Terms and Conditions must be made in writing. This also applies to a waiver of the written form requirement.
13.2 The laws of the Federal Republic of Germany shall apply to the
legal relationship between ABS and the Customer – both with respect to
the conclusion and the execution of the contract. IPR regulations and
the UN Convention on Contracts for the International Sale of Goods shall
be excluded.
13.3 The courts in Geldern shall have jurisdiction over disputes
resulting from this contract. However, ABS reserves the right to
alternatively call upon the court with general jurisdiction at the
Customer’s legal seat.
13.4 Should a provision of these General Terms and Conditions be
ineffective, the validity of the remaining provisions shall remain
unaffected thereof.
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ABS Safety GmbH
Gewerbering 3
47623 Kevelaer
Germany
Tel: 0049 (0) 2832-97281-0
Fax: 0049 (0) 2832-97281-29
eMail:
web: www.absturzsicherung.de
