General Terms and Conditions abass GmbH
abass GmbH
Moselstraße 11
63225 Langen
Telephone: +49 6103/4045 660
Telefax: +49 6103/4045 666
E-Mail: helpdesk@abass.de
Version: 12. February 2022
1. Scope of application, offer and conclusion of the contract, scope of performance
1.1 These General Terms and Conditions (T&Cs) shall have exclusive application vi-à-vis business owners, legal entities under public law or separate funds under public law within the meaning of section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
Any differing, conflicting or supplementary General Terms and Conditions of the other Contracting Party shall only become part of the contract if ABASS GmbH has expressly agreed to them in text form. This requirement for agreement shall apply in all cases, for instance even if ABASS GmbH executes delivery to the other Contracting Party without reservation, in knowledge of the other Contracting Party’s T&Cs. These General Terms and Conditions shall also govern future business dealings with the other Contracting Party insofar as they involve legal transactions of a similar nature.
1.2 The statements made in text form shall be authoritative as far as the scope of the goods and services is concerned,. Protective equipment shall also be supplied where this is stipulated by law or has been expressly agreed.
1.3 ABASS GMBH reserves full and unrestricted ownership rights and exploitation rights under copyright to cost estimates, drawings and other documents; they may only be made accessible to third parties with the prior consent of ABASS GMBH. Drawings and other documents that accompany offers must be returned without delay on request if the relevant order has not been placed with ABASS GMBH. Sentences 1 and 2 shall apply accordingly to the Buyer’s documents; however, these may be made accessible to third parties whom ABASS GMBH has legitimately entrusted with the supply of goods or services.
1.4 These General Terms and Conditions shall also govern any augmentations, extensions and modifications of the system as well as other services provided by ABASS GMBH in connection with the system.
1.5 Our offers and the details provided in contract documents are always subject to alteration and without obligation. Orders shall only be deemed accepted or placed if they have been acknowledged in text form by ABASS GMBH or if we execute the order straight away through the prompt provision of services. Any technical data and other data supplied merely serve to identify the subject matter of the contract and should not be understood as the warranty of a certain feature.
1.6 Individual agreements with the Buyer made in a certain case (including side agreements, additions and modifications) shall in all cases have precedence over these terms and conditions of sale. The content of such agreements shall be as stated in a contract or in our acknowledgement in text form, subject to evidence to the contrary.
2. Prices, terms of payment
2.1 Prices are quoted ex works for delivery without installation or assembly and are exclusive of packaging, shipping and transport costs. For direct deliveries we levy a flat delivery charge of € 10.00.
2.2 All payments shall be remitted without any deductions and free of transaction charges into the account of ABASS GMBH plus value added tax at the applicable rate. ABASS GMBH shall be entitled to request 30 % of the order amount after our order acknowledgement and after the start of the setup work or when the goods are ready for dispatch. The remaining 40 % shall be paid immediately on the Buyer’s receipt of the invoice.
2.3 If it is not possible to complete the entire scope of the goods and services by a certain date, economically independent order parts will gradually be created. ABASS GmbH may issue partial invoices on a pro rata basis for project levels created, applying the agreed prices. These shall be settled taking account of any down payments already made.
2.4 The Buyer may only set off a counterclaim if such a claim is not disputed by ABASS GMBH or has been established through a final court judgment. The Buyer shall only have a right of retention if its counterclaim is based on the same contractual relationship.
2.5 If ABASS GMBH has assumed responsibility for installation or assembly and nothing else has been agreed, the Buyer, in addition to paying the agreed price, shall bear all necessary incidental expenses such as travel expenses, the cost of transporting tools and personal luggage as well as accommodation allowances.
2.6 For handling delivery orders only, without assembly and with a net invoice value of up to € 50.00 ABASS GMBH will charge a handling fee of € 5.00 plus value added tax.
2.7 If the Buyer is in default of payment, ABASS GMBH shall have the right to charge default interest at a rate of 8 % above the applicable base rate. The same applies in the case of delayed acceptance where ABASS GMBH is not at fault.
3. Reservation of title
3.1 ABASS GMBH reserves title to the items delivered until all its claims against the Buyer under their business relationship, including claims arising in the future, have been settled, also under concurrent or future contracts. The same shall apply if individual claims or all claims of ABASS GMBH have been included in a current invoice and the balance has been determined and recognised. However, if the total value of all collateral exceeds the sum of all secured claims by more than 10 %, ABASS GMBH shall, at the Buyer’s request, release a corresponding part of the collateral rights.
3.2 For the duration of the reservation of title the Buyer shall not be allowed to pledge the goods or transfer them by way of security, and their resale in ordinary business dealings shall be permitted only on condition that the Buyer receives payment from its customer or stipulates that title shall not pass to the customer until the latter has fulfilled its payment obligations.
3.3 In the event of the seizure or confiscation of the goods or any other dispositions or interventions by third parties the Buyer must notify ABASS GMBH without delay.
3.4 In the event of a culpable breach by the Buyer of fundamental contractual obligations, especially in the case of default of payment, ABASS GMBH, after issuing a reminder, shall have the right to take back the goods supplied; the Buyer shall be obliged to surrender the goods. The recovery of the goods or the assertion of the reservation of title shall not imply the rescission of the contract unless ABASS GMBH has explicitly stated that this is the case.
3.5 Any access by third parties to the goods supplied under reservation of title or to claims assigned to ABASS GMBH shall be reported without delay for purposes of intervention. In the case of default of payment ABASS GMBH, without prejudice to its other claim for damages, may assert its reservation of title, demand that the Buyer surrenders the delivered goods and, after setting a reasonable deadline, sell the delivered goods on the open market on the best possible terms, setting off the proceeds against the agreed price.
3.6 If the Buyer should sell goods under reservation of title, the Buyer hereby assigns to ABASS GMBH by way of security its future claims against its customers arising from the resale, together with all subsidiary rights – including any outstanding balances – without any special declarations being required at a later date. ABASS GMBH accepts the assignment. If the goods under reservation of title are resold together with other items, without an individual price having been agreed for the goods under reservation of title, the Buyer assigns to ABASS GMBH the part of the total price that corresponds to the price billed by ABASS GMBH for the goods under reservation of title, this claim having priority over the other claims.
3.7 If a legitimate interest can be credibly demonstrated, the Buyer shall provide ABASS GMBH with the necessary information and hand over the necessary documents so that the latter can assert its rights against the customer.
3.8 Until further notice the Buyer is authorised to collect the assigned claims from the resale. If there is an important reason, especially in the case of default of payment, cessation of payment, the opening of insolvency proceedings, the protest of a bill of exchange or in similar situations that would suggest that the Buyer is insolvent, ABASS GMBH shall have the right to revoke the Buyer*s authorisation to collect the assigned claims. In addition, ABASS GMBH, after first threatening to disclose the assignment of collateral or the realisation of the assigned claims and observing a suitable period of notice, may disclose the assignment by way of security, realise the assigned claims and demand that the Buyer discloses its assignment by way of security to the customer.
3.9 The Buyer is permitted to process and remodel the goods under reservation of title or to combine them with other items. The processing, remodelling or combination shall be carried out on behalf of ABASS GMBH. The Buyer shall store the new item for ABASS GMBH with the care of a prudent businessperson. The processed, remodelled or combined item shall be deemed goods under reservation of title.
3.10 On the processing, remodelling or combination with other items not belonging to ABASS GMBH, ABASS GMBH shall be entitled to co-ownership of the new item corresponding to the share resulting from the relationship between the value of the processed, remodelled or combined goods under reservation of title and the value of the other processed goods at the time of processing, remodelling or combination. In cases where the Buyer acquires sole ownership of the new item, ABASS GMBH and the Buyer agree that the Buyer shall grant ABASS GMBH co-ownership of the new item created through the processing, remodelling or combination in the same ratio as that between the value of the processed, remodelled or combined goods under reservation of title and that of the other processed, remodelled or combined goods at the time of processing, remodelling or combination.
3.11 In the event of the sale of the new item the Buyer hereby assigns to ABASS GMBH by way of security its claims from the resale against the Buyer’s customer together with all subsidiary rights, without any further declarations being required. However, the assignment shall only be valid for an amount equivalent to the value of the processed, remodelled or combined goods under reservation of title billed by ABASS GMBH. The part of the claim assigned to ABASS GMBH shall be satisfied before the other part of the claim.
3.12 If the Buyer joins the goods under reservation of title with land or movable items (chattels), the Buyer shall also assign to ABASS GMBH by way of security the claim to which it is entitled as reimbursement for the joining, without any further declarations being required, together with all subsidiary rights to an amount equivalent to the value of the joined goods under reservation of title and the value of the other joined goods at the time of joining.
3.13 The Buyer must treat the purchased item with care as long as title has not yet passed to the Buyer.
4. Rights to programs
4.1 The Buyer is granted the right to use the programs provided with the systems without any separate contract and without any separate charge, together with the agreed features for the operation of the system. All other rights to the programs shall remain with ABASS GMBH.
4.2 The Buyer shall not therefore be given the right to duplicate the programs in text form, to modify them or to make them accessible to unauthorised third parties without the prior agreement of ABASS GMBH.
4.3 On every resale of the system only the aforementioned rights of the Buyer with regard to the programs shall pass to the relevant purchaser; all other rights to the programs shall always remain with ABASS GMBH.
4.4 On the acquisition of software products ABASS GMBH shall expressly refer to the currently applicable licence agreement.
5. Assembly / setup / administration of the system
The following provisions apply to installation and assembly of all kinds unless otherwise agreed in text form:
5.1 The Buyer shall provide the following facilities at its own expense and in good time:
5.1.1 operating power and water, including the necessary connections, up to the point of use, heating and general lighting,
5.1.2 at the place of assembly sufficiently large, suitable, dry and lockable rooms for the storage of the machine parts, equipment, materials, tools etc. and adequate workrooms and common rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; otherwise, the Buyer shall take the same measures at the building site that it would take for the protection of its own property and assembly personnel;
5.2 Before the start of the assembly work:
5.2.1 the Buyer shall, of its own accord, provide the necessary information concerning the location of concealed cables and pipes for electricity, gas and water or similar installations as well as the necessary static details,
5.2.2 the delivery parts needed in order to start the work must be available on site and all masonry, carpentry and other preliminary work prior to the start of the construction must have progressed far enough for the installation or assembly work to begin immediately on the arrival of the installation or assembly personnel and for it to be carried out without interruption. In particular, the access roads and the installation or assembly site must be levelled and cleared at floor height , the foundation masonry must be bonded and dry, and the foundation walls aligned and backfilled; in the case of interior installations the plastering of walls and ceilings must be completely finished, with doors and windows also in place.
5.3 If installation, assembly or initial operation are delayed for any reason, particularly on the building site, without ABASS GMBH being at fault (creditor default), the Buyer shall bear a reasonable proportion of the costs for wating time and any additional journeys of the installation or assembly personnel that may be necessary.
5.4 The Buyer must certify the working time of the installation or assembly personnel each week to the best of its knowledge. The Buyer shall furthermore be obliged to immediately hand over confirmation in text form to the installation or assembly personnel certifying the end of the installation or assembly.
5.5 The Buyer must pay a setup price for the setup of the system, which in relation to construction work, explanation of the basic functions of the systems and terminal equipment and the connection of the system and the devices shall be billed at a flat rate and for the creation of the cable network according to time and effort at the prices customary at ABASS GMBH.
5.6 In the case of programmable systems the Buyer must provide ABASS GMBH with definite information concerning the user data in good time prior to the delivery of the system, according to the agreed scope of the service, as the start-up deadline cannot otherwise be guaranteed. If the Buyer subsequently alters this data or the scope of the service, the additional work thus involved shall be billed separately at the applicable list prices. In the case of systems already in operation changes to the scope of the service and changes to the user data shall also be billed at the applicable list prices.
5.7 Service/assembly and tele support orders shall be billed separately at a flat rate per order on the basis of ABASS GMBH’s applicable prices. These flat rates shall depend on the service category agreed in each case. The same applies to billing for units of work and hourly rates.
5.8 If ABASS GMBH has taken on the task of installation or assembly against individual billing, the following shall apply in addition:
5.8.1 The Buyer shall pay ABASS GMBH the rates agreed on placing the order for working time and bonuses for overtime, night work, work on Sundays and public holidays, for work in difficult conditions as well as planning and monitoring work.
5.8.2 Furthermore, travelling expenses and accommodation allowances for the work as well as days of rest and public holidays shall also be paid for separately.
6. Deadline for the delivery of goods and services/default
6.1 The statements made in text form by both Parties shall be authoritative as regards the deadlines for the delivery of goods and services. Compliance with deadlines requires the timely receipt of all documents, approvals and releases to be supplied by the Buyer, the timely clarification and approval of the plans, adherence to the agreed terms of payment and compliance with other obligations. If these conditions are not met in good time, the agreed deadlines shall be extended by a reasonable period.
6.2 Deadlines shall be deemed complied with:
6.2.1 when the consignment is ready for operation and has been shipped or collected within the agreed delivery period or by the agreed performance deadline in the case of deliveries without installation or assembly. If delivery is delayed for reasons that are the Buyer’s fault, the deadline shall be deemed complied with if notice is given within the agreed time limit that the goods are ready for dispatch;
6.2.2 In the case of delivery with installation and assembly, as soon as this has been carried out within the agreed time limit.
6.3 If failure to comply with deadlines for goods and services is demonstrably due to force majeure, in particular mobilisation, war, civil unrest, terror, strikes, lockouts or the occurrence of unforeseen impediments, the deadline shall be extended by a reasonable period.
6.4 If ABASS GMBH is then in default, the Buyer may claim compensation of 0.5 % for each full week of the delay, insofar as the Buyer can credibly demonstrate that it has suffered a loss as a result, but such compensation shall be limited to a maximum of 5 % of the price for the part of the goods and services that could not be put into useful service as a result of the delay.
6.5 Claims for damages by the Buyer due to late delivery and in lieu of performance, in excess of the limits set out in paragraph 6.4, shall be excluded in all cases of delayed delivery, even after the expiry of any deadline set by ABASS GMBH. This shall not apply where liability is mandatory in cases of intent, gross negligence or injury to life, limb or health; this does not imply a reversal of the burden of proof to the Buyer’s detriment. The Buyer may only rescind the contract within the framework of the statutory provisions where the delay in delivery has been caused by ABASS GMBH.
6.6 If the dispatch or delivery of the goods is delayed at the Buyer’s request, ABASS GMBH shall have the right to charge the Buyer for the monthly costs incurred for the storage of the goods, at least 0.5 % of the invoice amount, unless it can be demonstrably shown that only a significantly lesser loss or no loss at all has been sustained. ABASS GmbH shall have such a claim from the first month after notification has been given that the goods are ready for dispatch and it shall be limited to a maximum of 5 % of the invoice amount.
7. Passage of risk /taking receipt of the goods/ part deliveries
7.1 Even if freight-paid delivery has been agreed, the risk shall pass to the Buyer:
7.1.1 when the consignment is ready for operation and has been dispatched or collected in the case of delivery without installation or assembly. The goods shall be packed with the utmost care. The goods shall be shipped using the best method in the estimation of ABASS GMBH. ABASS GMBH shall insure the consignment against the usual transport risks on the Buyer’s request and at the Buyer’s expense. The risk of the accidental destruction or accidental deterioration of the goods shall pass to the Buyer when they leave the works/warehouse at the latest;
7.1.2 on the date of acceptance at the Buyer’s own establishment in the case of delivery with installation or assembly, insofar as a trial run has been agreed, after a fault-free trial run. The condition for this is that the trial run or acceptance at the Buyer’s own establishment immediately follows the installation or assembly of the goods so that they are ready for operation. If the Buyer does not accept the offer of a trial run at its own establishment, the risk for the time of the delay shall pass to the Buyer 14 days after this offer has been made.
7.1.3 If the dispatch or delivery of the goods or the start or progress of installation or assembly is delayed on the Buyer’s request or for a reason for which the Buyer is responsible, the risk shall pass to the Buyer for the time of the delay. However, ABASS GMBH shall be obliged to take out any insurance requested by the Buyer on the Buyer’s request and at the Buyer’s expense.
7.2 The Buyer shall take receipt of goods delivered even if they have negligible flaws.
7.3 Part-deliveries are permitted.
8. Liability for material defects
8.1 Those parts or services that become unusable or whose usefulness has been significantly impaired within 12 months of the date of the passage of risk – irrespective of their time of operation – as the result of an occurrence prior to the passage of risk, particularly due to faulty design, poor material or defective execution shall be repaired, redelivered or replaced free of charge at the choice of ABASS GmbH. If such defects are found, they must be reported to ABASS GMBH without delay in text form.
8.2 If a complaint is lodged, the Buyer’s payments may be withheld in reasonable proportion to the defects that have occurred. However, if the contract is concluded in operation of a commercial enterprise of the Buyer, the Buyer may only withhold payments if a complaint has been made whose justification is beyond all doubt.
8.3 ABASS GMBH shall always be given the opportunity to cure any breach of contract within a reasonable time. If the attempt to cure the breach fails, the Buyer– without prejudice to any claims for damages – may rescind the contract or reduce the remuneration.
If the contract is rescinded, the customer must destroy the original data carriers and all copies of the software products, including any modified copies along with all written material.
If the goods are replaced in an effort to cure the breach, these shall be taken back at the expense of ABASS GMBH.
8.4 Claims due to material defects shall be come statute-barred within 12 months. This shall not be the case where the law specifies longer time limits in accordance with section 438 (1) (2) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), (buildings and things that have been used for a building) and also section 479 (1) (recourse claims) and section 634a (1) (2) (building defects).
8.5 Liability for material defects does not extend to natural wear and wear nor damage occurring after the passage of risk as a result of incorrect or careless handling, excessive strain, unsuitable operating materials, defective building work, unsuitable building land or chemical or electro-chemical or electronic influences that are not provided for under the contract.
Furthermore, there shall be no liability for material defects with regard to programs or program parts that have been modified or extended by the Buyer itself, unless the Buyer proves that such modifications or extensions are not the cause of the defect.
8.6 In order to exercise its rights under guarantee the Buyer shall duly comply with its obligations to examine the goods and give notice of any defects in accordance with section 377 of the German Commercial Code (Handelsgesetzbuch, HGB). ABASS GmbH must report any visible defects within two weeks of delivery and hidden defects immediately after discovery. This shall be done in a comprehensible form supplying suitable information for the removal of the defect. The Buyer shall cooperate in the removal of the defect by providing as much support as is reasonable.
8.7 Any claims of the Buyer resulting from the expenditure necessary to cure the breach of contract, especially transport costs, travel expenses and the costs of labour and materials, shall be excluded if additional expense is incurred because the delivered goods are later taken to a place away other than the Buyer’s place of business, unless the goods are moved in accordance with their intended purpose.
8.8 The provisions concerning guarantee periods in the foregoing paragraphs shall not apply where longer periods are prescribed by mandatory law.
8.9 Any further claims of the Buyer against ABASS GMBH and its agents shall be excluded, especially claims to compensation for damage that has not been sustained by the delivered goods themselves. This shall not apply in cases where mandatory liability is imposed by law such as in the case of personal injury or damage to privately used items under the Product Liability Act, in cases of intent, gross negligence or where warranted features are missing.
8.10 The foregoing provisions shall apply accordingly to the Buyer’s claims to repair, replacement or damages occurring as a result of the suggestions or consultations provided under the contract or through the breach of secondary contractual obligations.
9. Terms and conditions for repairs where there is no liability for material defects
If no cost estimate is explicitly requested, repairs shall be carried out at ABASS GMBH’s applicable rates on the date when the order is placed. If repairs are not carried out on the basis of a cost estimate, ABASS GMBH will invoice the handling costs incurred. If customer service work is carried out on the Buyer’s premises or on the premises of third parties, the time for travelling to and from the site as well as the travel costs shall be borne by the Buyer. The cost of sending in and sending back equipment to be repaired as well as the packaging costs shall be borne by the Buyer. Complaints due to faulty repairs must be filed in text form without delay.
10. Basic price for setup time/ km / accommodation allowances
For each order the applicable amount according to the prices of ABASS GMBH shall apply.
Normal working hours: Mon.-Fri.: 08:00 am – 06:00 pm
Helpdesk: Mon.-Fri.: 07:00 am – 04:00 pm
Hotline: 24hrs / 7 days
Emergencies: 2 hours reaction time, 24hrs / 7 days
11. Delayed acceptance by the Buyer
If the Buyer refuses to accept all or part of the agreed services or if the order is not executed for reasons due to the Buyer, ABASS GMBH, without prejudice to its claims to payment, may claim damages of 10 % of the order value or of the corresponding part of the order for expenditure already incurred in connection with the order and the costs of removing facilities already installed, unless it can be demonstrated that only a significantly lesser loss or no loss at all has been sustained. ABASS GMBH reserves the right to claim damages in excess of this.
12. Liability
12.1 The Buyer’s claims for damages and the reimbursement of the expenses, for whatever legal reason, particularly due to a breach of obligations in contract and in tort, shall be excluded.
12.2 The aforementioned provisions shall not apply if mandatory liability is prescribed by law, such as under the Product Liability Act, in cases of intent and gross negligence, due to injury to life, limb or health or due to the breach of fundamental contractual obligations. Damages due to the breach of fundamental contractual obligations, however, shall be limited to the typical foreseeable damage for the type of contract, unless in cases of intent or gross negligence or liability due to injury to life, limb or health. These provisions do not imply a reversal of the burden of proof to the Buyer’s detriment. A fundamental contractual obligation is where an obligation is breached on whose fulfilment the Buyer has relied or has the right to rely.
13. Liability of ABASS GMBH due to the violation of third-party property rights
13.1 If a third party asserts claims against the Buyer due to the violation of industrial property rights or copyrights by the products supplied by ABASS GMBH and the use of the products is thus impaired or prohibited, ABASS GMBH may choose to either modify or replace the products at its own expense, so that they no longer violate the property right but nevertheless essentially conform to the agreed specifications, or to indemnify the Buyer against the licence fees payable to third parties for the use of the products. If this is not possible for ABASS GMBH on reasonable terms, it shall take back the product and refund the price paid. ABASS GMBH may claim reasonable compensation from the Buyer for the use of the product.
13.2 The precondition for liability on the part of ABASS GMBH is that the Buyer immediately notifies ABASS GMBH in text form of claims made by third parties due to a violation of property rights, refuses to recognise the alleged violation and conducts all disputes, including any extra-judicial arrangements, only in agreement with ABASS GMBH. If the Buyer discontinues the use of the product for reasons of damage mitigation or for other important reasons, the Buyer shall be obliged to point out to third parties that the discontinued use does not represent an acknowledgement of a violation of property rights.
13.3 Where the Buyer itself is responsible for the violation of property rights, claims against ABASS GMBH shall be excluded. The same applies where the violation of property rights is due to special requirements of the Buyer or an application not foreseeable by ABASS GMBH or has been caused due to the fact that the Buyer has modified the product or used the product together with products not supplied by ABASS GMBH.
13.4 Any further claims of the Buyer due to a violation of third-party property rights shall be excluded. However, this shall not affect the Buyer’s right to rescind the contract. Nor does it affect the provisions in clause. 8.9.
14. Miscellaneous
14.1 The sole place of jurisdiction if the Buyer is a businessperson (Kaufmann) within the meaning of the German Commercial Code (HGB) shall be the place where ABASS GMBH has its principal place of business for all litigation directly or indirectly arising from the contractual relationship.
14.2 The law of the Federal Republic of Germany shall have sole application to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
14.3 All agreements made between the Parties for the purpose of performing this contract are set out herein.
14.4 Even where individual points of this contract should be legally void, its remaining parts shall remain binding. The invalid clauses shall be replaced by ones that, in economic terms, come closest to the content of the invalid clauses.