Terms of delivery and payment
1. General information
1.1 For all articles and services supplied by ABS GmbH (“ABS”), the following conditions shall exclusively apply for the duration of the business relationship, whereby these shall also automatically apply to future transactions without the need to explicitly express this in a further agreement, in as far as no other written agreement has been concluded between the parties. Confirmations to the contrary on the part of the client (“Customer” or “Ordering Party”) that refer to his/her own general terms and conditions are hereby expressly contradicted in advance.
1.2 Separate agreements and statements of work independently concluded between the Customer and ABS provide details as to the individual services to be supplied by ABS.
2. Quotes, orders
2.1 All quotes provided by ABS are subject to change. Special goods and services provided to the purpose of submitting a cost estimate, e.g. travel, taking measurements etc., shall be invoiced to the Customer - even in cases where the planned services are not actually provided or provided in an amended form.
2.2 A legally-binding contract shall only come into being when the order is confirmed by ABS in writing, by e-mail or by telefax. This shall also apply to orders accepted by our representatives as well as to orders placed by telephone or fax and to changes to the order made by the Customer.
2.3 In cases where ABS is awarded a contract with a view to carrying out maintenance, repairs or work on components supplied by the Customer, these contracts must include a list with the exact descriptions of these components and, where appropriate, the dimensions of the individual components. Should such a list be missing, the information provided by ABS in their order confirmation shall be regarded as adequate proof of the delivery of the respective components.
2.4 All parts and materials replaced by ABS shall become the property of ABS, without compensation, in the absence of any other agreement.
3. Terms of delivery
3.1 In as far as no other agreement has been concluded, delivery and acceptance shall take place on ABS’ factory premises. Should delivery or acceptance not take place in the presence of the Customer but in the presence of an authorised representative, the latter must prove his/her identity through appropriate documentation. ABS is entitled, but not under obligation, to check such proof of identity.
3.2 Should a shipment be initiated upon the request of the Customer, this shall take place at the expense and risk of the Customer. Transport insurance shall only be taken out upon the request and for the account of the Customer.
3.3 Partial deliveries and partial performance are permissible.
3.4 Delivery dates stated by ABS are only binding where expressly agreed in writing.
3.5 Should ABS be late in delivering, resp. performing, the Customer shall grant ABS an appropriate grace period. Should ABS fail to deliver or perform within this grace period, the Customer is entitled to repudiate the contract.
3.6 ABS shall not be liable for adhering to binding delivery dates in cases where delays in delivery or performance are due to force majeure or any other unforeseeable event for which ABS is not responsible and which impedes delivery or performance or renders such impossible not just on a temporary basis - even when such an event is caused by the suppliers of ABS or their sub-suppliers. In such cases, ABS is entitled to postpone the delivery date, resp. performance, in accordance with the duration of such hindrance or to withdraw from the contract. Claims for damages, irrespective of the legal grounds, are excluded in the case of force majeure and any other unforeseeable event for which ABS is not responsible.
4. Pricing, terms of payment
4.1 All prices apply ex works (ABS) and exclude postage, shipping charges and packaging in as far as no other arrangement has been expressly agreed, e.g. ex works of the manufacturer. Value added tax shall be borne by the Customer, in as far as such tax is applicable. Should ABS supply the packaging, this shall be invoiced at cost price.
4.2 We shall only be bound to the prices listed in our quotation for a maximum period of 12 months commencing on the date on which the quotation was issued.
4.3 All invoices shall be paid immediately upon receipt without deduction. Deductions are not permitted, unless otherwise agreed.
4.4 The offsetting or withholding of amounts is only permissible where counter-claims on the part of the Customer are uncontested or have been recognised by declaratory judgement.
4.5 Should the Customer be late in paying - or where there are grounds for doubting the Customer’s creditworthiness or ability to pay, ABS is entitled to demand advance payment for deliveries that have not yet been completed and to immediately declare all claims resulting from the business relationship as due regardless of any other rights that may exist. ABS’s obligation to deliver shall be suspended as long as the Customer is in default with a payment due. In the case of default, ABS is also entitled to demand default interest to the amount of 8 percent of the respective base rate of interest where claims for payment are concerned.
5. Transfer of risk
The risk is transferred to the Customer upon acceptance or, should an official acceptance not be planned, with the handover of the goods on ABS’s premises. Where goods are shipped, the risk is transferred as soon as the consignment is handed over to the person carrying out the transport or when this consignment leaves the premises of ABS for the purpose of shipment. Should shipment be delayed upon the request of the Customer, the risk shall be transferred to the Customer as soon as he/she is notified that the goods are available for shipment.
6. Default of acceptance
6.1 The Customer shall be regarded as being in default of acceptance should he/she fail to collect the goods or initiate their shipment within 7 days of being informed that the goods have been completed, resp. made available. Once the Customer is in default of acceptance, the risk of accidental deterioration or destruction is automatically transferred to the Customer.
6.2 Should the Customer be in default of acceptance, ABS is also entitled to demand compensation for any damages caused to ABS. Two weeks after the Customer has been notified that the goods are available for collection, ABS reserves the right to store the goods elsewhere at the expense of the Customer, resp. to sell these otherwise.
ABS shall not specifically insure items handed over by the Customer that fall within the contract. The risk of insurance cover for the items that fall within the contract shall be borne by the Customer for the duration of the repair work.
8. Materials/items belonging to the Customer
8.1 Should further items be entrusted to ABS in addition to the items covered by the contract, ABS shall only be liable for any damage caused to these items according to Item 12 of these General Terms and Conditions.
8.2 The Customer shall grant ABS a lien on all items provided by the former for all claims resulting from the underlying contract.
8.3 In as far as software is included in the scope of delivery, the Ordering Party shall be granted a non-exclusive right to use the software supplied, including all the respective documentation. The software shall be handed over for usage on the respective delivery item as intended. Usage of the software on more than one system is prohibited.
The Ordering Party may only duplicate, edit or translate the software, or convert the object code of the software to source code, to the extent legally permitted (§§ 69 a ff. UrhG [Federal Copyright Act]). The Ordering Party is under obligation not to remove any information provided by the manufacturer - in particular, copyright notes - or to change this information without the prior explicit consent of the supplier. All other rights pertaining to the software and the documentation thereof, including copies, shall remain with ABS, resp. the software supplier. It is not permissible to grant sub-licences.
9. Retention of title
9.1 ABS reserves the ownership of all items supplied by themselves (reserved goods) until the Customer has settled all claims resulting from the business relationship with ABS. This reservation extends to any new products created through the processing of the reserved goods, whereby this processing shall be carried out on behalf of ABS who is the manufacturer of the goods. When objects not belonging to ABS are processed, combined or mixed with ABS products, ABS shall acquire co-ownership according to the proportion of the invoice value of the reserved goods in comparison with the invoice value of the other materials included.
9.2 In as far as the Customer is prepared and in a position to duly fulfil his/her obligations vis-à-vis ABS, the former may dispose of the goods belonging, resp. co-belonging to ABS, in the ordinary course of business. The following shall apply in particular:
1) Should the Customer allow his/her customers deferred payment of the purchase price, the former shall accordingly reserve the ownership of the modified goods vis-à-vis the latter. The Customer is not empowered to dispose of the reserved goods without such reservation.
b) All receivables resulting from the sale of reserved goods shall be immediately assigned by the Customer to ABS, including bills of exchange and cheques to cover claims on the part of ABS resulting from the business relationship. When goods of which ABS is co-owner are sold, this assigned amount shall be restricted to the amount of the receivables corresponding to ABS’s co-ownership share. When processing is carried out within the scope of a service contract, the remuneration for work rendered is immediately assigned to ABS according to share of the Customer’s invoice applying to the processing of the reserved goods. The Customer shall only be empowered to resell or otherwise use the reserved goods when it has been verified that any claims resulting from such action are transferred to ABS.
c) If an assigned receivable is included in a current account, the Customer immediately assigns to ABS that part of the current account balance which is equivalent to the amount of such receivable (including the respective share of the closing balance). In the case where an interim balance is drawn up and it has been agreed that this may be carried forward, the amount of the receivable to which ABS is entitled according to the above provision contained in this interim balance shall be regarded as having already been assigned to ABS in the next balance.
d) The Customer is empowered to collect any claims assigned to ABS until this ruling is revoked by ABS.
9.3 For as long as ABS retains ownership, the Customer shall treat and store the reserved goods with care, in as far as he/she is in a position to dispose of such goods, and shall carry out any required or customary inspection, maintenance and preservation work at his/her own expense. For the duration of the retention of title, the Customer may neither pledge nor assign the reserved goods by way of security. ABS must be informed in writing or via telefax without delay of any access to the reserved goods obtained by a third party, for example, through the pledging or confiscation of these goods, as well as any damage caused to or the destruction of such goods. The Customer shall bear any costs that may be necessary to remedy such access or replace the reserved goods in as far as these cannot be collected from this third party.
9.4 Should the duty to handle the reserved goods with care or any other obligation to exercise diligence be breached on the part of the Customer, or where the latter defaults on the payment of a guaranteed claim, ABS is entitled to repossess the reserved goods. Such repossession shall only then represent a withdrawal from the contract, if ABS declares this accordingly in writing. Following a repossession, ABS is entitled to utilise the goods whereby the respective proceeds shall be set against the Customer’s liabilities under deduction of appropriate utilisation costs. This shall apply accordingly in all other cases of conduct on the part of the Customer that does not conform with the contract.
9.5 Should the achievable value of the securities exceed the total amount of claims to be secured by over 20 %, ABS shall release securities at the request of the Customer according to the Customer’s wishes.
9.6 In the case that it is not allowed, or only partially allowed, to retain the right of ownership according to the legal provisions that apply in the Customer’s country of residence, ABS’s rights as described above shall be limited to that which is legally permissible.
9.7 ABS reserves all ownership and copyright rights to samples, quotations, drawings and similar information that are of a tangible or intangible nature - including information in electronic form; the above may not be made available to third parties. ABS undertakes to only make information described as confidential by the Ordering Party available to third parties with the consent of the Ordering Party.
10. Claims for defects
10.1 When purchasing goods, the right to claim for a defect as set down in Item 11 of these General Terms and Conditions only exists where the Customer has properly complied with his/her duty to examine the goods and given notice of a defect in accordance with Section 377 HGB [German Commercial Code].
10.2 When used goods are sold, all liability for material defects shall be excluded.
10.3 In the case of recourse on the part of the Customer vis-à-vis ABS where a consumer has successfully reduced the purchase price of or returned newly-produced goods, Section 478 BGB [German Civil Code] shall only apply to the extent that in cases where the consumer has reduced the price, only the reduction amount used in the relationship between the Customer and the consumer - or any further intermediary - shall be accepted by ABS.
11. Rights of the Customer in the case of a defect
11.1 The Customer may only assert the following rights, where ABS has been informed of the defect in writing within the limitation period and where the goods were immediately made available when requested to do so.
11.2 In the case of a justifiable and timely complaint, ABS can choose whether to remedy the defect through reworking or replacing the goods. In the case of reworking, ABS shall decide whether to repair or replace the defective parts.
11.3 ABS is entitled to rework the goods numerous times. Should ABS not remedy the defect within an appropriate period, or should the reworking fail, the Customer can choose whether to withdraw from the contract or lower the remuneration to a suitable level (reduction).
11.4 Should a complaint prove to be unjustified after having been the cause of extensive re-examination, the cost of such a re-examination may be invoiced to the Customer.
11.5 The limitation period for claims for defects is one year following the transfer of risk according to Item 5 of these General Terms and Conditions.
11.6 All claims for defects are excluded where the goods are incorrectly installed, used or stored contrary to the information provided in the user manuals, the instructions provided by ABS or otherwise, or where these are not used as determined in the contract or where the goods or components thereof are subject to maintenance, repairs, changes or modifications carried out by the Customer or third parties without the consent of ABS unless the Customer can prove that these circumstances are not the cause of the defects on which the complaint is based.
11.7 In as far as the Customer is justified in returning the goods to ABS, the Customer must enclose a duly completed return slip with the shipment. Should the shipment not include a return slip, ABS is entitled to refuse to refund the purchase price. In the case that ABS offers the Customer the option of returning the goods on a goodwill basis, the respective shipment must also include a duly completed return slip. Failing this, ABS is entitled to refuse acceptance of the returned goods.
12.1 Claims for damages are excluded - irrespective of the nature of the breach of duty and including unauthorised actions - in as far as these do not involve intent or gross negligence.
12.2 Should one of the essential contractual obligations (cardinal duties) be breached, ABS shall be liable for negligence which, however, shall be limited to the foreseeable damage typical for this type of contract. In such a case, claims for lost profits, expenditure saved from the compensation claims of third parties or any other indirect or consequential damages may not be demanded.
12.3 The liability restrictions and exclusions described in paragraphs 1 and 2 above shall not apply to damage caused through the loss of life, personal injury or damage to health.
12.4 In as far as liability of the part of ABS is excluded or restricted, this shall also apply to the employees, workers, representatives and vicarious agents of ABS.
13.1 In as far as no other written agreements have been closed, these General Terms and Conditions reflect the entirety of the agreements closed between ABS und the Customer. No additional oral agreements have been concluded. Changes and amendments to or the annulment of these General Terms and Conditions must be made in writing. This also applies to any waiver of the written form requirement.
13.2 German law shall apply to all the legal relationships between ABS and the Customer - both when concluding and executing the contract - under exclusion of the provisions of the IPR and the UN Sales Convention.
13.3 Place of jurisdiction for all disputes resulting from this contract is Geldern, Germany. However, ABS reserves the right to go to the court of law with general jurisdiction over the area where the Customer’s registered office is located.
13.4 Should any of the provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions thereof.
ABS Safety GmbH
Tel.: +49 2832 97281-0
Fax: +49 2832 97281-285