1. Scope and Type of Supplies and Services
1.1 The written confirmation constitutes the basis of the contract and is decisive for content and scope of supply and performance. If the contract is concluded without those mutual declarations, then either the written confirmation of the order from ABASS GmbH or, if this is not effected, the written order of the customer is the standard.
1.2 Protective devices shall be provided as required by law or as expressively agreed on.
1.3 Additionally to these general terms and conditions, the regulations for the guaranty of accounts payable of the General Terms of the Association of German Electrical Engineers apply.
1.4 ABASS GmbH reserves the unrestricted right to ownership and copyright of any tenders, drawings and other documents; they may only be made accessible to third parties after prior approval by ABASS GmbH. Drawings and other documents appertaining to offers have to be given back instantaneously by request, or if the order is not placed. Sentences 1 and 2 shall apply mutatis mutandis to documents of the purchaser; these may, however, be made admissible to such third parties who are allowably entrusted with deliveries by ABASS GmbH.
1.5 These conditions and terms of sale and delivery also apply to any possible increases, improvements or modifications of the system or other services connected with ABASS GmbH. Any additional cost resulting therefrom shall be charged according to Pos. 2.
1.6 An order shall be considered granted as soon as the confirmation letter is received, or if it was previously concluded verbally, by telephone or by telegraph. The written acceptance of a contractual offer after preceding negotiations shall also be seen as a letter of confirmation.
1.7 Between businessmen, the failure to reply to a letter of confirmation is deemed to be seen as a consent to the determined contract terms within the letter of confirmation. This applies even if the content of the letter of confirmation deviates from the oral agreements; unless, however, the addresser cannot expect the recipient to accept the varying content due to the fact that it differs widely from the previously agreed content.
1.8 Any possible objection to a confirmation shall take place immediately. Hence, it is of the utmost importance to check the letter of confirmation. In case two conflicting letters of confirmation are crossing, neither side needs to object.
2. Prices / Terms of Payment
2.1 The prices are valid without installation or mounting, ex works, excluding costs of package, shipping and transport.
In case of direct delivery, we charge a shipping and handling flat rate of 10,00Euros.
2.2 All payments shall be made without any deduction free to the ABASS GmbH pay office plus sale taxes in the respective, applicable statutory rate. ABASS GmbH shall be entitled to demand 30 % of the total order value after the completion of the order confirmation and after the beginning of the installation work, and respectively of the creation of the delivery readiness. The remaining 40 % shall be paid immediately after the invoice has been received by the purchaser.
2.3 Economically independent parts of the order shall be gradually established if the entire scope of supply and services cannot be completed by a specific date. In accordance with established project stages, partial invoices equivalent to the agreed prices may be issued, taking into account the already paid deposits.
2.4 Any offsetting against debts which have not been acknowledged in writing or have not become legally binding will be excluded by ABASS GmbH.
2.5 Drafts and cheques are accepted by ABASS GmbH only for the purpose of fulfillment; and upon prior written agreement bills of exchange are also accepted.
2.6 If ABASS GmbH handles the set-up or assembly and nothing to the contrary has been agreed, the purchaser shall, in addition to the agreed remuneration, pay all necessary ancillary expenses, the costs of transporting tools and personal luggage, as well as out-of-pocket expenses.
2.7 For the processing of mere supply contracts without set-up with an invoice amount of 50,00€, ABASS GmbH shall charge a processing fee of 5,00€ plus value-added tax.
2.8 If the purchaser defaults on payment, ABASS GmbH shall be entitled to charge interest on default amounting to 5 % over the applicable in each case as from the date concerned. The same shall apply for the delay in completion due to reasons beyond the control of ABASS GmbH.
3. Reservation of Title
3.1 ABASS GmbH retains the ownership of the items supplied until the complete settlement of all existing and future claims arising from the business connection, including claims arising in the future from contracts concluded at the same time or subsequently. This also applies if some or all outstanding receivables for the account of ABASS GmbH have been included in one collective invoice and the balance has been established and recognized. Inasmuch as the value of collateral rights exceeds the amount of all collateralized claims by more than 20%, then on demand by the customer ABASS GmbH is obligated to release a corresponding portion of said collateral.
3.2 During the course of the existence of the right of ownership with ABASS GmbH, the purchaser is prohibited from hypothecation or transfer of the goods by way of security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment or sets a proviso that the ownership of goods is not transferred before any obligations have been met.
3.3 The purchaser shall notify ABASS GmbH without delay in the event of pledges, seizures or other dispositions or interferences by third parties with regard to our ownership of the reserved goods.
3.4 In the event of culpable offence of his contractual obligations on the part of the purchaser, in particular delay of payment, ABASS GmbH is entitled to take back the supplied goods after providing a reminder, and the client is obliged to return them. If the reservation of titles is withdrawn or enforced or if the goods that are subject to reservation of titles are seized, ABASS GmbH does not withdraw from the contract unless this has been explicitly declared by us.
3.5 The purchaser is obliged to inform ABASS GmbH without delay, in writing, of any pledges or other third party attachments to the goods delivered under retention of title. Any costs accruing to ABASS GmbH as the result of an intervention, regardless of the nature of the costs, shall be borne by the purchaser. In default, ABASS GmbH is entitled to invoke its retention of ownership irrespective of any other claims, may demand the return of the delivery item, and ABASS GmbH may notify the purchaser that the article will be offered for sale on the free market for the best possible price.
3.6 If the purchaser sells the goods for which ABASS GmbH is subject to reservation of title, he hereby assigns all his future claims under the resale including any ancillary rights against his customers without the need for subsequent special statements. If the goods that are subject to reservation of title should be resold together with other items without an individual price having been specified for the reserved goods, then the purchaser assigns to ABASS GmbH with precedence, that part of the total price claim, which corresponds to the price charged by ABASS GmbH for the reserved goods.
3.7 In the event of a substantiated legitimate interest, the purchaser shall provide ABASS GmbH with the information required for enforcing his rights towards his customer and hand over any required documents.
3.8 The purchaser is authorized to collect assigned claims arising from the resale until such authorization is revoked. In the event of an important reason, in particular delay in payment, suspension of payment, and opening of insolvency proceedings or protest of a bill of exchange, or of comparable well-founded evidence suggesting that the purchaser is insolvent; ABASS GmbH is entitled to revoke the authorization for collection by the buyer. Furthermore, ABASS GmbH may disclose the assignment of securities after prior notification and subject to compliance with an appropriate period, use the assigned demands and demand disclosure of the assigned securities by the buyer towards the purchaser.
3.9 The purchaser is permitted to further process, restructure or combine with other objects the goods subject to retention of title. The processing, restructuring or combination is undertaken for ABASS GmbH. It is the duty of the purchaser to store and control the resultant product with appropriate care for ABASS GmbH. The processed, transformed or combined product shall be regarded as reserved goods.
3.10 In the event of any processing, transformation or combination with other items not belonging to ABASS GmbH, we shall be entitled to co-ownership of the new object to the amount of the proportion resulting from the ratio of the value of the processed, converted or combined retained-title merchandise to the value of the new object. Insofar as the purchaser gains sole ownership of the new object, then it is hereby agreed that the purchaser shall grant ABASS GmbH joint ownership of the new object to the amount of the proportion resulting from the ratio of the value of the processed, converted or combined retained-title merchandise to the value of the new object.
3.11 In the event of selling the new object, the purchaser hereby assigns to ABASS GmbH by way of security his claim against the customer arising from its resale together with all ancillary rights, without the need for any further special declarations. The assignment applies however only to the amount corresponding to the value as invoiced by the supplier of the processed, converted or combined retained-titles merchandise. The portion of the claim assigned to ABASS GmbH shall have priority of satisfaction.
3.12 If the goods subject to retention of title are amalgamated with real estate or movable items, the purchaser also assigns to ABASS GmbH, without the requirement of further particular explanations, his claim entitlement for remuneration of the connection as security, including all ancillary rights, at the amount of the ratio of the value of the retained goods to the remaining connected goods at the time of the connection.
4. Rights on Programs
4.1 The purchaser shall be entitled to use the programs with the agreed features supplied with the systems without a separate contract and without additional charges for the operation of the systems, all other rights to the programs remain with ABASS GmbH.
4.2 Without a written agreement by ABASS GmbH, the purchaser does not have the right to duplicate, change, provide or transfer the program to non-authorized third parties.
4.3 With every resale of the system, only the aforementioned rights of the purchaser shall be transferred to the respective buyer; all other rights to the system remain with ABASS GmbH.
4.4 When purchasing a software product, ABASS GmbH expressly refers to the respective license agreement.
5. Assembly, Installation and Administration of Systems
Unless otherwise agreed in writing, the following regulations shall apply for installation and mounting.
5.1 The purchaser may bear the costs for or provide the following on time:
5.1.1 Operating power and water including the necessary connections to the point of application, heating and general lighting,
5.1.2 at the place of assembly, enough suitable, dry and lockable space of appropriate size for stocking machine parts, equipment, materials, tools, etc. as well as appropriate work and recreation rooms for the assembly staff, to include sanitary installations appropriate to the conditions; the purchaser shall also take the same measures to protect our property and assembly staff on the construction site that they would take to protect its own possessions.
5.2 Prior to the assembly work:
5.2.1 the purchaser shall unsolicited provide the required information about the position of subsurface energy, gas, water conduits or similar installations as well as required static data,
5.2.2 the provisions and items required for commencing the work shall be at the place of installation or mounting and all masonry, carpentry and other preparatory work must be at such a stage as to permit the personnel of ABASS GmbH to start the assembly or installation immediately upon their arrival and proceed without interruption. Access areas to and on the set-up and assembly site shall be leveled and cleared. The base foundation must be absolutely dry and free of dust, walls set up and filled, inside walls and ceiling completely finished with doors and windows in place.
5.3 If the assembly, installation or commissioning is delayed due to circumstances, especially on site, for which ABASS GmbH is not responsible (creditor’s default), the purchaser shall, to a reasonable extent, bear the costs for waiting times and other necessary costs of the assembly staff.
5.4 The purchaser must certify the installation or assembly personnel work time weekly according to the best of its knowledge. Furthermore, the purchaser is obliged to issue the assembly personnel with written confirmation of the completion of the assembly or erection work without undue delay.
5.5 ABASS GmbH is not liable for the work of the installation or assembly personnel or of other agents employed in the execution that does not apply to the delivered goods and the installation thereof or for work that has been ordered by the purchaser.
5.6 For the installation of the system, the purchaser has to pay a lump-sum set-up charge with regard to configuration, introduction of basic functions of the systems or terminal equipment, connection of the system and the devices; and with regard to the creation of the cable network, they must pay for the expenses involved according to the usual prices of ABASS GmbH.
5.7 In the case of programmable systems, the purchaser is obliged to bindingly notify ABASS GmbH about the user data in accordance with the scope of services prior to delivery, since otherwise the commission date cannot be guaranteed. In the event that the purchaser adjusts this data subsequently or the scope of services, the additional expenses thereto shall be invoiced in accordance to the applicable list prices. Similarly, modifications of scope or changes to the user data of systems currently in operation shall be charged at the valid list prices of ABASS GmbH.
5.8 In case of service-, assembly- and remote service contracts, a lump-sum according to the respective price list of ABASS GmbH shall be charged separately. The lump-sum amount depends on the agreed service category. The same applies to the calculation of working units and hourly rates.
5.9 If ABASS GmbH has accepted the installation or assembly against individual invoicing, the following provisions shall apply:
5.9.1 The purchaser is to reimburse ABASS GmbH for the costs agreed on the placement of the order for working hours and additional compensation for overtime, work during nights and Sundays as well as holidays, for works under aggravating conditions as well as hours for planning and supervision.
5.9.2 Furthermore, travel costs and allowance for work performed on non-working days and public holidays shall be remunerated separately.
6. Terms of Delivery and Service / Delay
6.1 The written declarations made by each party to the contract are decisive in respect of the period for deliveries and performances. Compliance with the delivery periods shall require the on-time receipt of all documents to be supplied by the purchaser, the required permits and releases, clarifications and approvals of plans as well as the compliance with the agreed terms of payment and other obligations by the purchaser. If these pre-requirements are not fulfilled in a timely manner, the deadlines shall be extended correspondingly.
6.2 Deadlines shall be deemed as observed:
6.2.1 upon delivery without installation or assembly: if the consignment ready for service has been dispatched or picked up within the agreed delivery or service period. In the event that the delivery is delayed, for reasons for which the purchaser is responsible, the period shall be deemed complied with upon notifications of the readiness for dispatch within the agreed time;
6.2.2 in the event of delivery including installation or assembly, as soon as this has taken place within the agreed time.
6.3 If the non-compliance of the deadlines for delivery and service is due to force majeure, e.g. mobilization, war, riot, terror, lockout or the occurrence of unforeseeable hindrances, the deadlines shall be extended by a period of time considered reasonable.
6.4 Should ABASS GmbH fail to meet the deadline, the purchaser who can establish credibly that he suffered a loss from such delay may charge compensation for each full week of the default of 0,5% each, a maximum total however of 5% of the price for the part of the deliveries and services which could not be put to appropriate use on account of the delay.
6.5 Claims for compensation on the part of the purchaser on the ground of delayed delivery and claims for compensation in performance, exceeding limits stipulated in clause 6.4, shall be excludedin all instances of delayed delivery even after expiry of any deadline specified by ABASS GmbH.This does not apply in the case of intention, gross negligence or due to bodily injury, damage of health or in the case of loss of life is mandatory liability; a change of the burden of proof to the disadvantage of the client is not associated in this case. The purchaser may only rescind the contract within the framework of the legal provisions, if and insofar as the delay was imputable by ABASS GmbH.
6.6 If the dispatch or delivery is delayed at the purchaser’s request, ABASS GmbH is entitled to charge the purchaser for the warehouse costs at ½ % of the contract value, per month or part thereof, beginning one month after notification of readiness for dispatch. This storage charge is limited to a total of 5% of the invoice amount, unless higher costs are proven.
7. Transfer of Risk, Acceptance, Partial Deliveries
7.1 The risk shall pass to the purchaser, even when carriage freight paid delivery has been agreed on:
7.1.1 upon delivery without installation or assembly, when the consignment ready for service has been dispatched or picked up. The goods shall be packed with the utmost care. Shipment proceeds according to the best judgment of ABASS GmbH. If requested by the purchaser, ABASS GmbH will insure the dispatch at the purchaser’s expense against damage caused by transport;
7.1.2 for deliveries with assembly or installation on the day of acceptance in the purchaser’s operation or in as far as agreed, after perfect trial operation. It is assumed that the test operation or acceptance in the purchaser’s own place of business immediately follows the operationally ready assembly or installation. If the customer declines the offer of test operation or taking over in his own facilities, the risk shall transfer to the purchaser for the period of the delay when 14 days have lapsed since this offer.
7.1.3 If the dispatch, delivery or beginning or execution of assembly or installation is delayed at the request of the purchaser or due to other reasons for which he is accountable, the risk shall transfer to the purchaser for the period of that delay; however, ABASS GmbH is obligated to arrange for any insurance the purchaser may request at his expenses.
7.2 The purchaser is obliged to accept the delivered goods, even if they exhibit minor defects.
7.3 Partial deliveries shall be permissible.
8. Liability for Deficiencies
8.1 ABASS GmbH shall, at their opinion and expense, repair, replace or newly provide any parts or services which are subject to any defect of quality within the warranty of a 12 months period from the day of the transfer of risk – regardless of the period of operation – due to a circumstance which existed prior to the transfer of risk, especially because of faulty design or defective, bad material or defective execution. ABASS GmbH has to be informed immediately once the existence of such defects has been established.
8.2 When asserting a notice of defect, the purchaser may withhold payments to an extent which is in reasonable proportion to the occurred defects of quality. If, however, the contract concerns the company of the commerce of the purchaser, he may only be entitled to hold back payments if a notice of defect is brought forward which leaves no doubt about it being justified.
8.3 The purchaser shall grant ABASS GmbH sufficient time and opportunity as appears reasonable to rectify defects. If the purchaser refuses to do so, ABASS GmbH shall no longer be liable for the defect.
8.4 Warranty claims expire within 12 months. This does not apply as long as the (German) law according to § 438 Para. 1 No. 2 (building structures and components for structures) and § 479 Para. 1 (claims of recourse) and § 634 a Para. 1 No. 2 (construction defects) German Civil Code (BGB) prescribe longer periods.
8.5 Warranty of quality does not apply to natural wear and tear or to damages occurring after transfer of risk and result from inappropriate or negligent handling and excessive strain, unsustainable equipment, defective workmanship, inappropriate foundation soil and such chemical, electrochemical or electric influences, which are not preconditioned according to the agreement.
8.6 In the case of repair in connection with subsequent improvements, the limitation period for warranty claims shall be 6 months, in case of replacement deliveries and services the limitation period for warranty claims shall be 12 months. It shall last at least up to the expiry of the original warranty period for objects or services provided. The period of liability for defects of the object of delivery shall be extended by the duration of business interruption due to repair work occurring due to any necessary rectification, deliveries of spare parts or placement for those items that cannot be operated purposefully due to the interruption.
8.7 Claims of the purchaser pertaining additional expenses required for subsequent fulfillment, in particular transportation-, traveling-, labor- and material costs, shall be excluded as far as the expenses increase because the object of delivery was later transferred to a location other than the purchaser’s business location, unless the transfer complies with the intended use.
8.8 The provisions regarding warranty periods under 8.1 to 8.7 shall not apply if the law prescribes longer terms.
8.9 Further claims of the purchaser against ABASS GmbH and its assistants are excluded, in particular any claim to a compensation of damages not originating from the delivered object itself. This shall not apply insofar as there is a legal liability, e.g. in case of personal injury or damages to privately used items according to the product liability law or in the case of intention, deliberate or gross negligence or absence of assured characteristics.
8.10 The aforementioned provisions shall apply analogously to those claims of the purchaser concerning rectification of defects, improvement, compensation delivery or compensation which have originated from proposal or consultation in the context of the contract or from breach of a secondary contractual duty.
9. Repairs Beyond Liability for Defects
If no cost estimate is expressively requested, the repair is made at the rates of ABASS GmbH applicable on the date of placing the order. If a repair based on a cost estimate is not performed, ABASS GmbH shall charge the costs incurred for processing. If the customer service is accomplished on the premises of the purchaser or third parties, the time spent traveling to and from those premises and the traveling expenses shall be borne by the purchaser. The purchaser must bear the costs of the outward and return shipments of the equipment for repair. Objections due to repair defaults shall be given without delay in written form.
10. Basic Price Set-Up Time / km / Daily Allowance
For each order, the respective prices apply, in accordance with the prices of ABASS GmbH.
Normal working hours: Mon.-Fri.: 08:00 am – 06:00 pm
Helpdesk: Mon.-Fri.: 06:00 am – 06:00 pm
Hotline: 24hrs / 7 days
Emergencies: 2 hours response time, 24hrs / 7 days
11. Delay of Acceptance by Purchaser
If the purchaser refuses to accept the delivery of the agreed performance in full or in part or if the purchaser is responsible for the order not being carried out, ABASS GmbH shall have the right to charge for its expense and costs in connection with any work already completed and shall, in addition, have the right to claim compensation equivalent to 20% of the order value for the removal of any already installed equipment. ABASS GmbH may instead exercise the statutory claim to the performance of the contract if the purchaser buys, rents or receives a system, system components or products from a third party in lieu of the not accepted, not installed or not advanced system supplied by us.
12.1 Compensation claims and claims of compensation of expenses (hereinafter referred to as compensation claims) of the purchaser are excluded, irrespective of the legal grounds, in particular due to infringements of obligations arising from the contractual relationship and due to tortuous action.
12.2 The above shall not apply in case of mandatory liability, e.g. under the German Product Liability Act, in cases of intent, gross negligence, in the event of impairment of life, body or health or in cases of the violation of fundamental contractual obligations. However, damage compensation due to the violation of major contractual obligations is limited to typical, predictable damages, assuming there is no premeditation or gross negligence, or injury to the life, body or health. This does not lead to a change in the burden of proof to the purchaser’s disadvantage.
12.3 As far as the purchaser is entitled to compensation claims according to the provisions of this section, these expire subject to the limitation period valid for the material defect claims according to section 8.4.
13. Liability of Infringement of the Protective Rights of Third Parties
13.1 If a third party submits claims against the purchaser on the ground of infringement of industrial property rights or copyright by products supplied by ABASS GmbH, leading to an impairment or prohibition of the use of the products, ABASS GmbH shall either modify the supplied products or/and services or replace them in such a way that the intellectual protective rights are no longer violated, but nevertheless essentially correspond with the agreed specification, or indemnify the customer for license fee payable to third party. If it is not possible for ABASS GmbH to take these actions on any appropriate terms, it shall take the product back and refund remuneration already paid. ABASS GmbH shall be entitled to require reasonable compensation from the purchaser for the value constituted by the use of the products.
13.2 The condition for the liability of ABASS GmbH is subject to the purchaser notifying us immediately in writing of any claims asserted by third parties due to a violation of industrial property rights, not acknowledging any validity in the alleged violation, and not conducting any discussions nor any extra-judicial settlements except in close agreement with ABASS GmbH. Should the purchaser terminate the usage of a product to limit damage or for any other reason, he is obliged to notify the third party that the discontinuation of usage does not constitute any acknowledgement of the infringement of property rights.
13.3 If the infringement is the fault of the purchaser, then claims against ABASS GmbH are excluded. The same shall apply if the violation of property rights is caused by specified requirements of the purchaser, by an application not foreseeable by ABASS GmbH, by the fact that the product was changed by the purchaser or was used together with products not delivered by ABASS GmbH.
13.4 Any other or additional claims of the purchaser as a result of the breach of the property rights of third parties are excluded. The right of the purchaser to withdraw from the contract and the regulations under item 8.9 shall remain unaffected.
14. Data Privacy Protection
14.1 The personal data provided to abass GmbH in connection with the execution and completion of a contract are processed in strict compliance with the applicable provisions of data protection by abass GmbH or affiliated companies; the addresses of each recipient of data will be provided upon request.
14.2 abass GmbH uses and process personal data only for the purpose of contractual services and in accordance with the regulations of the relevant German Data Protection Act.
15.1 If the purchaser is a business person as defined in the German Commercial Code (HGB), the exclusive place of jurisdiction for all disputes arising directly or indirectly is the location of ABASS GmbH.
15.2 German law shall apply exclusively.
15.3 Amendments and addenda of all contractual agreements are to be made in writing. This also applies to an agreement on revocation of the requirement of the written form.
15.4 In the event of single sections of the contract not being legally effective, the residual sections of the contract shall remain binding and effective. The void provision shall be replaced by a new valid stipulation, which comes closest to the economical spirit and purpose of the invalid provision.