to the AEB
General Terms and Conditions - ABS Apparate- und Behälterbau GmbH
The following terms and conditions of business and delivery shall apply exclusively to all our offers, sales, deliveries and services. Our terms and conditions of business and delivery shall also be effective if we - within the scope of an ongoing business regulation - do not expressly refer to them in subsequent contracts. If services are rendered, then the VOB (German Construction Contract Procedures) shall apply in its currently valid version, unless otherwise agreed individually or the VOB is excluded due to the performance in question. Any deviating terms and conditions of the customer shall only be binding on us if we have expressly agreed to them in writing, waiving our terms and conditions. In particular, our silence with regard to such deviating provisions shall not be deemed to be acceptance or consent. Such deviating conditions or counter-confirmations of the customer are hereby expressly contradicted.
2. subject matter of the contract
The subject matter of the contract is, in addition to the delivery of goods in stock from the current delivery program, also the design, manufacture, delivery and assembly of individual services. All declarations and agreements require our written confirmation to be effective.
3 Conclusion of Contract, Scope of Delivery, Assurance
Verbal offers and verbal orders as well as any verbal promises made by representatives or sellers require our written confirmation to be effective. All offers are subject to change. However, in the event of immediate delivery by us, the written order confirmation may be replaced by our invoice.
The scope of performance shall be based on our written confirmation. A reference to standards, similar technical rules, other technical specifications, descriptions of the delivery item, offers and brochures is only a description of performance. It does not receive any assurance of properties.
Certain properties of the subject matter of the contract shall only be deemed warranted by us if we have expressly confirmed this in writing.
Obvious errors and mistakes in offers, order confirmations or invoices may be corrected by us. We must reject any legal claims based on erroneous information that is in obvious contradiction to our other sales documents.
All our prices, including catalog prices, are subject to change and are ex works, excluding postage, packaging and other shipping charges.
For catalog goods, the prices of the current catalog apply in each case. All previous prices are invalid. The prices refer to the respective pictured article according to the description without decoration. For orders under € 130.00 value of goods, we charge a handling fee of € 8.00. Transport and packaging costs are shown separately in invoices.
5. delivery time
Scheduled delivery dates and deadlines will be met to the best of our ability. Delivery dates and deadlines are only binding if they have been additionally confirmed by us in writing.
If we are in default of delivery, the customer may set us a reasonable grace period and, after its expiry without notice, withdraw from the contract in whole or in part. Claims for damages due to delayed delivery or due to non-performance are excluded in case of slight negligence by us or our vicarious agents.
The liability from § 287 BGB is excluded. We shall not be in default as long as the customer is in default with the fulfillment of obligations towards us, also from other contracts. This applies in particular to the provision of documents or material.
6. reservation of self-delivery, force majeure and other impediments
If we do not receive deliveries from our (upstream) suppliers, do not receive them correctly or do not receive them on time - for which we are not responsible - or if events of force majeure occur, we shall be entitled to postpone the deliveries for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Force majeure shall be deemed to include strikes, lock-outs and operational hindrances for which we are not responsible, e.g. due to fire, water and machine damage.
If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded by more than 6 weeks due to the aforementioned events, the customer shall also be entitled to withdraw from the contract due to the part that has not yet been fulfilled without incurring any claims for damages against us.
Partial deliveries are permissible to a reasonable extent.
7. transfer of risk and acceptance
With the handover of the goods to be delivered to the forwarding agent or carrier, but at the latest when the goods leave the factory, all risk shall pass to the customer. Any liability for the transport of the goods is excluded, unless this is otherwise regulated by virtue of individual agreement.
Transport shall always be at the risk of the customer, even if the goods are to be delivered by us carriage paid on the basis of a special agreement. The ordered goods are to be accepted immediately. In the case of delivery accepted by us, the choice of the means of transport and the transport route shall be made at our discretion, if and insofar as no special instruction of the customer exists. The delivery is free curbside, without unloading and moving.
If the customer does not accept deliveries on time or if the shipment is delayed due to circumstances for which he is responsible, we shall be entitled to demand payment of the purchase price after setting and expiry of a grace period of 3 working days. Instead, we may also withdraw from the contract after expiry of the grace period or refuse performance and claim damages for non-performance.
8. notices of defects, warranty, limitation of liability
The customer or the recipient designated by him shall inspect the goods immediately upon receipt. Defects, including the absence of warranted characteristics, must be notified in writing without delay, but no later than within a preclusive period of 2 weeks after receipt of the goods. After expiration of the 2-week period, claims for defects that were recognizable upon careful inspection can no longer be asserted. Other defects must be notified immediately after their discovery.
Decisive for the contractual condition of the goods is the time of handover of the goods to the forwarder or carrier, at the latest the time of leaving the factory.
In the event of justified notices of defect, we shall be obligated, at our discretion, either to deliver defect-free goods or to remedy the defect free of charge.
If we fail to meet our obligation to repair or replace defect-free goods, the customer may withdraw from the contract after granting us a reasonable grace period.
In principle, several attempts at rectification are permissible, unless the customer claims that this is unreasonable for him or if rectification or replacement is impossible.
We do not recognize claims that go beyond this; in particular, we do not list any compensation for installation and removal of the spare parts, for operational disruptions and the like.
All warranty claims not expressly conceded as well as claims for damages of any kind regardless of the legal ground, in particular also claims for compensation of damages not directly occurring on the delivery item, are excluded.
If the customer does not give us the opportunity to convince ourselves of the defect, in particular if he does not immediately make available the rejected goods or samples thereof upon request, old claims for defects shall lapse.
We do not accept any liability for damage resulting from unsuitable or improper use of the goods.
Insofar as the above clauses or mandatory statutory provisions do not contain any provisions to the contrary, any claim by the customer for damages, irrespective of the legal grounds (e.g. for non-performance, impossibility, positive breach of claim and breach of obligations during contract negotiations, tort, compensation among joint and several debtors, failure or poor performance of rectification, etc.) shall be excluded, insofar as we, our executives and vicarious agents are not guilty of intent or gross negligence.
Anything to the contrary shall only apply if there is a matter requiring coverage and our liability insurance, which is based on the General Liability Conditions (AHB), releases us from liability - up to a maximum of the sum insured. We will inform the customer of the amount of coverage of the liability insurance upon request.
Insofar as we are liable for damages incurred in the area of slight negligence on the basis of mandatory statutory provisions, our liability for damages shall be limited to the amount covered by our liability insurance.
Our general liability exclusion shall also apply if the delivered goods cannot be used for the intended purpose by the customer as a result of omitted or faulty execution of suggestions, advice, as far as other contractual ancillary obligations - in particular instructions for use of the goods - prior to or after conclusion of the contract.
This does not apply to damages resulting from injury to life, body or health if we are responsible for the breach of duty.
In all other respects, we are available to the customer to provide information and advice to the best of our knowledge. However, we will only agree a consulting contract in writing and for a special fee.
10. retention of title
The delivered goods shall remain our property (reserved goods) until all claims arising from the business relationship with the customer have been satisfied in full. In the case of a current account, the reserved property shall be deemed to be security for our balance claim. This shall also apply if payments are made for specially designated claims. If contingent liabilities are entered into by us in connection with a delivery (e.g. bill of exchange/check procedure), the retention of title shall expire only after final expiration of all obligations entered into.
The pledging or transfer by way of security of goods subject to retention of title to third parties is excluded. In the event of pledging or other impairments of our rights by third parties, the customer must expressly refer to the reservation of title and expressly notify us.
If the delivered goods are not connected to a piece of real estate, the treatment and processing of goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of this provision. If the customer processes or combines the goods subject to retention of title with other items, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other items used (including the goods subject to retention of title). If our ownership expires due to combination of processing in cases other than § 946 of the German Civil Code (BGB), the customer shall already now transfer to us the ownership rights to which he is entitled in the new stock or the new item to the extent of the invoice value of the reserved goods. He shall store them for us free of charge. The co-ownership rights existing hereunder shall be deemed to be reserved goods within the meaning of this section.
The customer shall only be entitled to resell or otherwise dispose of the goods subject to retention of title as long as the resale takes place in the course of his normal business and as long as he is not in default vis-à-vis us. The customer hereby assigns to us all claims arising from the resale, including any securities, in the amount of our purchase price claim. In the event that the goods subject to retention of title are sold together with other materials not belonging to us, the assignment of the claim from the resale shall apply in the amount of the value of the goods subject to retention of title. In the event that the customer sells the goods subject to retention of title which have been processed together with other goods not belonging to us, the assignment shall be in the amount of the value of our co-ownership share.
The customer is entitled to collect claims from the resale until our timely revocation. At our request, he shall be obliged to inform his customers of the assignment in our favor and to provide us with the information and documents required for collection. In addition, we ourselves shall be entitled to disclose the assignment to the customer's purchaser at the customer's expense.
If the customer defaults on payment or otherwise fails to meet its obligations under the retention of title, we may demand return of the delivered goods from the customer.
The assertion of the reservation of title shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing.
If the value of the securities existing for us in accordance with the above provisions exceeds the claims by more than 10% in total, we shall be obliged to release securities of our choice at the customer's request.
Insofar as the customer makes manufacturing, quality specifications or provides materials, it shall bear the responsibility for freedom from defects; this shall also apply to contract work. The materials and technical documents are to be delivered free of charge and in perfect condition in due time. Delivered pieces that do not correspond to the specified values can be rejected. Additional costs and damages incurred by us due to the fact that the material or documents are not in perfect condition will be charged additionally. If additional processing steps are required, it will be assumed that the material provided was not faultless. If pieces become unusable during processing through no fault of our own, we shall be reimbursed for the costs incurred. If the material becomes unusable through our fault, we shall undertake to repeat the processing free of charge on the old piece or on a corresponding new piece supplied free of charge; if it is not possible to remedy the defect or to provide a replacement, we shall only bear the costs incurred by us until the defect has been established. Claims for damages and replacement of the material provided, on whatever legal grounds, are excluded. Chips and other waste shall become our property.
We accept no liability for items, services, drawings or documentation provided by the customer, irrespective of whether these have met with our approval and/or have been connected with or used for our deliveries, or for any resulting personal injury, property damage or financial loss.
Unless otherwise agreed, all our invoices are due and payable within 30 days from the date of invoice without deduction, whereby corresponding other statutory due date provisions, except those of the VOB, are hereby expressly waived. In the case of larger orders, we shall be entitled to agree on partial payments. After the due date of the invoice, interest on arrears will be charged at least in the amount of the statutory regulations. Further claims arising from default shall not be affected by this.
We accept bills of exchange and checks only on account of payment, to the exclusion of our liability for the timeliness and regularity of presentation and protest. Maximum term for bills of exchange is 90 days after invoice date. Discount, bill charges and similar details shall be borne by the customer.
If a customer has given us a direct debit authorization, our retention of title shall expire only after a right of revocation of the direct debit no longer exists.
The customer shall only have a right of retention or set-off with regard to counterclaims that are not disputed or have been legally established.
13 Termination, withdrawal
The contract may be terminated prematurely by us for good cause. Important reasons for premature termination include in particular:
- Cessation of your payments / over-indebtedness
- Application for the initiation of composition or insolvency proceedings or bankruptcy proceedings against the customer's assets, and
- Voluntary liquidation.
In the event of premature termination of the contract, the deliveries/services provided by us up to the date of termination shall be invoiced. For the part not performed, we shall receive compensation for unavoidable, necessary costs. We reserve the right to claim further damages.
The cancellation of orders is only permissible with our consent and against compensation for the damage incurred by us. In the event of cancellation of an order, we reserve the right to charge cancellation costs for the material processed and otherwise no longer usable as well as for construction work already performed. We reserve the right to claim further damages.
Our obligation to deliver presupposes unconditional creditworthiness on the part of the purchaser. If justified doubts arise in this respect after acceptance of the order, we shall be entitled to withdraw from the order or to demand security or advance payment. If the debtor defaults on an invoice or if circumstances become known which make our claim appear to be at risk, the entire claims, including current bills of exchange, shall become due for payment immediately.
14 Place of performance, place of jurisdiction, applicable law
The place of performance for all contractual obligations is the registered office of our company. If the customer is a registered merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the registered office of our company. However, we are also entitled to sue the customer at his general place of jurisdiction.
The law of the Federal Republic of Germany shall apply. The uniform laws on the international sale of movable goods and the connection of such sales contracts (Hague Sales Convention) shall not apply.
15. partial ineffectiveness
The amendment, omission or invalidity of individual terms and conditions shall not affect the remaining terms and conditions. The invalid provision shall be replaced without further ado by a provision which, within the scope of what is legally possible, comes as close as possible to what was intended in economic terms according to the meaning and purpose of the invalid clause.
16. data storage
In compliance with data protection regulations, personal and company-related customer data is stored by us and processed in electronic data processing systems.
General Terms and Conditions of Purchase - ABS Apparate- und Behälterbau GmbH
Unless otherwise agreed in writing, these Terms and Conditions of Purchase shall apply exclusively to the contractual relationship between the supplier and us as the purchaser. They shall also apply in particular to subsequent contracts, even if no express reference is made to them.
Conflicting, expanding or limited terms and conditions of the supplier shall not be accepted unless we expressly confirm their acceptance in writing. This also applies to terms and conditions contained in order confirmations, invoices or other written documents without the need for an express objection. The acceptance of services does not imply any acknowledgement of the supplier's terms and conditions. If the latter does not agree with the above handling, he shall expressly point this out in a special letter.
In this case, we reserve the right to withdraw the order without any claims of any kind being asserted against us. Should the Terms and Conditions of Purchase not become part of the contract, the statutory provisions shall apply.
II. supply contract
The delivery contract shall be concluded by written order and confirmation of acceptance (by the supplier). The same shall apply to changes or extensions to the order. If the supplier does not accept the order within 14 days of receipt, the customer shall be entitled to revoke the order without the supplier being entitled to any claims for damages.
The Purchaser may - until complete fulfillment of the contract - request changes to the order with regard to design, execution or delivery time within the scope of reasonableness.
The Supplier may only subcontract with the prior written consent of the Purchaser. If the Supplier ceases to make payments and/or if bankruptcy proceedings or judicial or extrajudicial composition proceedings are applied for or instituted in respect of the Supplier's assets, the Purchaser may rescind the contract in respect of the part not performed, without prejudice to any other rights. With regard to the surrender of tools and other production equipment which the Purchaser has made available to the Supplier or has received from the Supplier by way of purchase or in any other way as property, the provisions of Clause X, Paragraph 1 shall apply.
III. delivery dates/contractual penalty
Agreed dates are binding. In the case of delivery "free works", the decisive factor for compliance with the delivery date shall be the handover of the contractually agreed delivery item to the Purchaser, in other cases the notification of timely provision.
If a contractual penalty has been agreed for missed deadlines for which the Supplier is responsible, the Purchaser reserves the right to claim damages in excess thereof against evidence. The right to demand payment of an agreed contractual penalty shall not be forfeited by the fact that the contractual penalty was not expressly reserved upon acceptance of the delayed delivery.
IV. Delivery/Transfer of risk
Delivery is free to the place of use agreed in the order or to the specified shipping address.
The risk shall pass upon receipt of the delivery and its acknowledgement by the Purchaser.
The Purchaser shall notify the Supplier of any defects in the delivery as soon as they are discovered in the ordinary course of business after inspection and detection. In this respect, the supplier waives the objection of delayed notifications of defects. Unless otherwise expressly agreed in writing, partial performance shall not be permitted. In the event of partial performance, the Purchaser shall be entitled - after setting a reasonable deadline for complete performance of the contract - to cancel (terminate) the remaining quantity or to withdraw from the contract.
Force majeure, labor disputes, official measures or other unavoidable events shall release the Purchaser from its obligation to accept the delivery item for the duration of the disruption.
If the scope of the order includes the installation or assembly of the delivery item as an ancillary service, formal acceptance is required. Acceptance can only take place after successful completion of the test phase in accordance with separate conditions of the Purchaser. If no such conditions have been agreed, the delivery item shall be deemed to have been accepted with the Supplier's declaration of readiness for operation to be signed by the Purchaser.
Payments by the Purchaser do not mean that the delivery item has been accepted by the Purchaser. In order to carry out an acceptance of the delivery item on the Supplier's premises, the Supplier agrees to the Purchaser entering these premises.
At the request of the Purchaser, the Supplier shall provide information on the composition of the delivery item or, without being requested to do so, shall hand this information over to the Purchaser in full upon handover of the delivery item, insofar as this is necessary for the fulfillment of official requirements in Germany and abroad.
If the Purchaser requests initial or reference samples, the Supplier may only commence production of the delivery item after the Purchaser has given its corresponding written approval. The same shall apply if the Purchaser requests samples of tools or other production equipment manufactured and used by the Supplier. In this case, too, the Supplier may not start manufacturing the delivery item until the Purchaser has approved the tools or manufacturing equipment in writing after inspection.
Payment shall be made in principle only after receipt of the delivery item in accordance with the contract and receipt of the proper and verifiable invoice in duplicate by the Purchaser. Each invoice must contain the order number or commission number of the purchaser. If these are not noted on the invoice, we will return the invoice.
Deliveries made before the agreed delivery date shall only be deemed to have been received at the time of the agreed delivery date. Unless otherwise agreed, payment for deliveries without installation, assembly and acceptance - subject to the conditions set out in para. 1 - shall be made within 14 days with a 2% discount or up to 30 days net cash after receipt of the invoice. Payment for delivery items which the Supplier is to install or assemble and which the Purchaser is to accept after readiness for operation shall be due within 14 days with a 2% discount or 30 days after acceptance, provided that the conditions set forth in para. 1 are met.
Payment is made by bank transfer or check.
The Supplier shall only be entitled to assign its claims to third parties with the written consent of the Purchaser.
The Purchaser shall be entitled to offset claims of the Supplier at any time. In addition, he shall also be entitled to set off claims due to a company in which he holds at least 50% of the shares.
The Supplier's warranty obligation shall commence at the time of acceptance of the delivery item by the Purchaser.
Unless otherwise agreed, the warranty period shall be governed by the statutory provisions. The purchaser is entitled to first demand free rectification of defects or delivery of defect-free delivery items.
The customer's notice of defect interrupts the warranty period with regard to the defective delivery part, after whose repair/replacement the warranty period for this part starts anew.
The warranty period shall apply irrespective of the operational service life of the delivery item.
The supplier shall also be liable within the scope of his warranty if he himself is not the manufacturer of the delivery item or parts thereof.
The Contractor shall be entitled to remedy the defect himself or have it remedied by a third party if it cannot be delayed. All costs incurred by the Purchaser in this connection shall be borne by the Supplier. If the Purchaser has the defect remedied by a third party, the Supplier shall indemnify the Purchaser against any claims of the third party arising therefrom.
All costs incurred in connection with the warranty obligation, in particular for dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, inspections and technical acceptances as well as any other consequential damage caused by defects shall be borne by the Contractor.
The Supplier warrants that the delivered goods comply with the specifications, technical descriptions and certificates of the Purchaser.
The supplier shall be solely responsible for compliance with and observance of all currently valid laws, ordinances, regulations, standards, etc., which are affected by contractual services assumed by him.
The Supplier shall prove to the Purchaser the suitability of the goods for the intended purpose and the absence of defects by appropriate certificates upon request.
Insofar as the quality and suitability of the goods do not correspond to the specifications, technical descriptions and certificates and the Purchaser is exposed to warranty claims and claims for damages by third parties for this reason, the Supplier shall indemnify the Purchaser against such claims by third parties and shall bear the damage incurred by the Purchaser.
The Supplier shall ensure the quality of the goods by suitable inspections and tests before delivery to the Purchaser. In this respect, the Purchaser shall be released from the obligation to inspect incoming goods and from the immediate obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB). The benefits to the Purchaser in terms of value for money resulting from this shall be taken into account by the parties in the price negotiations. In the case of the delivery of safety-relevant parts, the parties shall conclude quality assurance agreements in individual cases.
IX. Property rights
The Supplier shall be liable for claims arising from the infringement of industrial property rights and applications for industrial property rights ("Industrial Property Rights") in the contractual use of the delivery items.
The Supplier shall indemnify the Purchaser against all claims arising from the use of such industrial property rights insofar as the Supplier has not manufactured the delivery item in accordance with the Purchaser's specified descriptions and the Purchaser could not have known during the development of these delivery items that industrial property rights would be infringed thereby.
At the request of the Purchaser, the Supplier shall name all industrial property rights known to it or which become known to it and which it uses in connection with the delivery items to be delivered or delivered.
X. Production resources
Production equipment such as dies, gauges, molds, models, samples, tools, drawings, other production facilities and the like which the Purchaser has made available to the Supplier shall be returned to the Purchaser upon request. The aforementioned manufacturing equipment shall in any case remain the property of the Purchaser.
The means of production provided to the Supplier or produced according to the Purchaser's instructions may not be reproduced or sold, transferred by way of security, pledged or otherwise passed on or used in any way for third parties without the Purchaser's express written consent. The same shall apply to the delivery items produced with the aid of these means of production.
The supplier undertakes to treat as business secrets all commercial and technical details which are not in the public domain and which become known to him through the business relationship.
The Supplier may only advertise its business relationship with the consent of the Purchaser. Furthermore, the Supplier undertakes to treat this contract and the information and documents obtained within the scope of this contract as confidential and to make them accessible to third parties only to the extent that this is unavoidable for the execution of the contract. Organs and employees as well as contractual partners of the supplier are to be bound to corresponding confidentiality.
XII Severability clause
If a part of the order or these terms and conditions is void or ineffective, the effectiveness of the remaining parts shall not be affected. The contracting parties are obliged to replace the ineffective parts by effective ones, by which the same economic success is achieved. The foregoing shall apply mutatis mutandis if these Terms and Conditions contain one or more omissions. In this case, the contracting parties shall be obliged to replace any gaps with provisions that come as close as possible to the intended economic purpose of the parties.
XIII General Provisions
The place of performance for deliveries shall be the supplying plant in the case of delivery ex works, and our warehouse in the case of all other deliveries. The place of jurisdiction is, as far as permissible according to § 38 of the German Code of Civil Procedure, the registered office of the purchaser. However, we shall also be entitled to sue the supplier at the court of his general place of jurisdiction. The legal relations between us and the Supplier shall be governed by the German law applicable to the legal relations of domestic parties, provided that this does not violate international law. The uniform UN Convention on Contracts for the International Sale of Goods is excluded.