§ 1 – General information
The following installation conditions apply to both commercial business entities and consumers and to all installation and maintenance work carried out by ABS Safety GmbH (hereinafter referred to as the Contractor) and supplement our General Terms and Conditions.
§ 2 – Services and remuneration
(1) The type and scope of the services to be rendered are defined in the respective contract.
(2) These services shall either be invoiced according to fixed prices or on a time and materials basis. In as far as nothing to the contrary has been agreed, the installation work shall be invoiced at the agreed fixed price. Should this work be invoiced on a time and materials basis, the hours worked shall be invoiced according to the Contractor’s current rates which are presently:
(a) Working hour 52 €
(b) Travel to and from the place of performance 350 €
In addition, a lump sum to cover the costs of travel of the installation, resp. maintenance personnel to and from the place of performance shall also be invoiced, subject to the currently valid rate of value added tax. All materials used shall be invoiced according to the Contractor’s current prices. If special tools, gauging or test equipment are provided, the Contractor’s current rates shall apply.
(3) Should the Contractor carry out work at the request of the client that is not included in the lump sum, these services shall be invoiced on a time and materials basis.
(4) An amount to the value of 350 €, subject to the currently valid rate of value added tax, shall be invoiced for any other trip to the place of performance that is required and for which the Contractor is not to blame.
(5) Training in how to use the systems shall take place immediately after the installation has been completed. In as far as an extra trip to the place of performance is required and/or the client desires training to take place at a different point in time, this service shall be invoiced separately.
§ 3 – The client’s duty to cooperate
(1) Before work commences, the client shall hand over all the documents needed to complete the work to the Contractor - free of charge and in a timely fashion. In particular, the former must provide information on the location of any hidden electricity cables, gas or water pipes or similar installations, as well as the required structural load information.
(2) The client must ensure that the work can be commenced on time and carried out without interruption. In particular, the client must ensure that the work on the construction site is accordingly coordinated to avoid delays during installation.
(3) Where work is to be carried out at a height of 2 m or above, equipment to prevent accidents must be provided by the client.
(4) In as far as a mobile elevating work platform and/or scaffolding is required, this is to be provided by the client.
(5) The waterproofing of the structure following installation/the maintenance work shall be done by the client, in as far as this has not been separately commissioned.
§ 4 Special duty to cooperate on the part of the client
(1) General information
Training in how to use the systems shall take place immediately after the installation has been completed. In as far as an extra trip to the place of performance is required and/or the client desires training to take place at a different point in time, this service shall be invoiced separately.
(2) Lifeline systems - final installation and certification
(a) Care must be taken to ensure that all components can be accessed via an unobstructed and safe access route.
(b) In as far as the system is to be installed using single anchorage points, these shall be installed and accordingly waterproofed by the client.
(c) Prior to commencing installation work, the Contractor must be informed in advance of the exact length of the cable, resp. cables that is/are to be installed - including information on the respective cable route.
(d) The client must ensure that all the cables to be installed can be laid without obstruction, in particular, that there are no roof structures, such as domed rooflights, PV systems or similar, blocking the cable route. Care must be taken to rule out the possibility that the cable may touch the structure.
(3) Anchorage point installation
(a) Care must be taken to ensure that all components can be accessed via an unobstructed and safe access route.
(b) If installation is to be done on/in a concrete subsurface, percussion drilling must be possible.
(c) The client is responsible for carrying out and commissioning any indoor painting/filling work that needs to be done. Any wrongly-drilled holes, in particular, those caused by existing reinforcement bars that prevent percussion drilling, shall be closed up and appropriately repaired at the expense of the client.
(4) Where products using weights or ballast materials are used during installation/servicing, these shall be transported to the place of installation/maintenance by the client - including the respective weights, resp. ballast materials.
(5) Where the Contractor is commissioned to install guard rails, these shall be made available by the client at the point of erection.
§ 5 – Deadlines and interruptions
(1) All execution deadlines shall be extended in so far as it is impossible for the Contractor to provide the respective services due to circumstances for which the Contractor is not responsible. The extension of these deadlines shall be calculated according to the duration of the obstruction, whereby an appropriate period for resuming work shall be taken into account.
(2) Where installation work is expected to be interrupted for more than six weeks - but not rendered permanently impossible, all services completed shall be invoiced on a time and materials basis. In the case of a fixed price, the work completed shall be invoiced proportionally according to the degree of completion.
§ 6 – Impossibility of performance
(1) Should it prove impossible to provide the services, the Contractor shall inform the client accordingly and without delay, stating the respective reasons. Should this impossibility of performance not be the fault of the Contractor, the latter is entitled to remuneration for those services already provided.
(2) Services already provided shall be invoiced on a time and materials basis. Additionally, any costs that the Contractor has already incurred and which are included in those parts of the total service contract that have not yet been provided shall be refunded accordingly. Furthermore, the Contractor is entitled to the reimbursement of any profits that he/she may have lost as a result of this situation.
§ 7 – Acceptance
Acceptance of all services provided by the Contractor shall take place immediately after the work has been completed. In as far as the request for a separate acceptance process is made, this shall be remunerated on a time and materials basis.
§ 8 – Transfer of risk
(1) Should the installation be postponed by more than 10 days, for reasons for which the Contractor is not responsible, the risk for any deliveries already made and services already provided shall be transferred to the client for the duration of the delay, resp. interruption.
(2) Should it prove impossible to render the services, the risk of accidental loss of the services already provided shall be transferred to the client upon respective notification, in as far as the Contractor is not responsible for this impossibility of performance.
(3) Should the completed, or partially completed, services be damaged or destroyed prior to acceptance due to circumstances for which the Contractor is not responsible, the Contractor shall enjoy the rights set down in § 4 para. 2 above with respect to those services already provided.
(4) Where the services have been provided in full, the risk shall be transferred to the client upon acceptance, or upon an action that replaces acceptance according to § 5 above.
§ 9 – Warranty and liability
(1) The Contractor guarantees that the services provided possess the contractually agreed characteristics at the time of acceptance, that they are in accordance with the accepted rules of technology, and that they do not have any faults that nullify or reduce the value or suitability for the customary or contractually stipulated use.
(2) If a defect proves attributable to the performance specifications or directives of the client, to materials or components supplied or prescribed by the latter, or to the quality of prior work carried out by a different company, the Contractor is released from the warranty for that defect.
(3) The warranty period for construction work is two years, for supplied parts one year. This period commences with the acceptance of the entirety of the services provided. In the case of partial performance, the period commences upon acceptance of the respective partial service. Liability for defects does not apply to natural fatigue or to damages which are caused after the transfer of risk due to incorrect or careless handling, excessive strain, unsuitable equipment, improper installation or an unsuitable building site and which were not anticipated in the contract.
(4) 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.
(5) 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 the type of contract concerned. In such cases, claims cannot be asserted pertaining to the loss of profits, expenditure saved, compensation claims made by third parties or any other indirect or consequential damages.
(6) The liability restrictions and exclusions described in paragraphs 4 and 5 above shall not apply to damage caused through the loss of life, personal injury or damage to health.
(7) In as far as liability on the part of ABS is excluded or restricted, this shall also apply to the employees, workers, representatives and vicarious agents of ABS.
§ 10 – Payments
(1) Upon the request of the Contractor, appropriate advance payments shall be made, together with the corresponding amount of value added tax. Materials and components which are specially supplied as part of the requested services also constitute services provided, if the client has chosen to have the ownership of these items transferred over to him, or where appropriate securities have been provided. Advance payments must be made immediately after receipt of the respective itemised list. Should the client fail to pay despite being reminded to do so, the Contractor is entitled to withdraw from the contract and to invoice all services so far provided in accordance with § 4 above.
(2) The final payment must be made net within 30 days of receiving the final invoice.
(3) Should the client be late in paying - or where there are grounds for doubting the client’s creditworthiness or ability to pay, the Contractor 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 client 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, in as far as this concerns claims for payment.
§ 11 – Miscellaneous
(1) Payments made by the client to the installation staff shall not have a debt-discharging effect vis-à-vis the Contractor.
(2) The Contractor shall not accept any warranty or liability for work carried out at the request of the client that amends or modifies or is not covered by the installation contract, in as far as this work has not been explicitly agreed upon in advance.
(3) In as far as no other written agreements have been closed, these Conditions reflect the entirety of the agreements closed between ABS und the client. No additional oral agreements have been concluded. Changes and amendments to or the annulment of these Conditions must be made in writing. This also applies to any waiver of the written form requirement.
(4) German law shall apply to all the legal relationships between ABS and the client - both when concluding and executing the contract - under exclusion of the provisions of the IPR and the UN Sales Convention.
(5) The place of jurisdiction for all disputes resulting from this contract is Geldern, Germany. However, ABS reserves the right to refer to the court of law with general jurisdiction over the area where the client’s registered office is located.
(6) Should any of the provisions of these General Installation and Maintenance Conditions be invalid, this shall not affect the validity of the remaining provisions thereof.