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.
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.
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 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.
13.1 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.
ABS Safety GmbH
Tel.: +49 2832 97281-0
Fax: +49 2832 97281-285