I. Area of application
1. All contracts concluded with us are subject exclusively to the following general terms and conditions which the customer can also review on our website at www.abus-sc.com. They shall be acknowledged by the customer upon placement of the order, but no later than upon acceptance of the first delivery, and shall be valid for the entire duration of the business relationship as well as to all subsequent orders. Deviating, conflicting or complementary terms and conditions of the customer shall only apply following written consent from us.
2. To become effective, pledges, supplementary agreements, amendments to the contract and declarations by representatives require our written confirmation. It shall not be possible to waive this requirement.
II. Offer
1. All our offers are subject to change and are non-binding. On placing an order, the customer bindingly declares an offer to enter into an agreement. The contract results either from our written acknowledgement in accordance with the contents of this acknowledgement or from the corresponding delivery. We shall be entitled to refuse acceptance of the order, for instance following an assessment of the customer’s creditworthiness. If delivery is made immediately without an acknowledgement, the invoice shall be considered as acknowledgement of the order at the same time.
2. Our customer as the reseller shall be exclusively and solely responsible for the content and nature of his contractual relationship with his customer (end customer), in particular in regards to the selection of products for this end customer and for project planning. Our offers to our customers are subject to change, non-binding, and are based on the information provided. In particular, we do not provide any project planning services. We do not guarantee that the products that we offer our customer and project planning services provided by our customer comply with the content and nature of the customer’s contractual relationship with the end customer. Our customer is solely responsible for correct project planning and product selection within the framework of a functional solution.
3. We reserve the right to change the design and form of the contractual object during the delivery period without prior notice, provided that this does not result in any unreasonable changes to the contractual object and its appearance in commercial terms. Reasonable changes shall include, in particular, technical modifications, improvements and adaptations to state-of-the-art science and technology as well as improvements in design and materials used. All information relating to quantity, dimensions, colour and weight are subject to the tolerances customary in the trade.
4. We reserve the right of ownership and copyright in all pictures, films, illustrations, data sheets, drawings, calculations, information material and other documents. This also applies to any written document marked as “confidential”. Non-exclusive private use, in particular any handover of such documents by the customer to third parties, is subject to our express prior written consent. The customer exclusively shall be liable if the execution of his order results in the violation of rights, particularly industrial property rights, of a third party on the grounds of documents supplied by the customer.
5. The following supplementary provisions apply to the utilisation of pictures, in particular pictures of ABUS SC products, texts, films, illustrations, data sheets and drawings:
5.1. The utilisation of pictures, in particular pictures of ABUS SC products, texts, films, illustrations, data sheets and drawings displayed on the homepage of ABUS SC at
www.abus-sc.com or in another place such as catalogues represents a copyright infringement unless we have given our consent. Any unauthorised use of pictures can be cause for a warning.
5.2. Any case of infringement of paragraph 5.1 shall result in a contractual penalty in the amount of € 5,100.00 for each act of infringement.
III. Delivery, delivery period and delayed delivery
1. Agreed periods of delivery shall begin upon conclusion of the contract. Satisfaction of our delivery commitment is subject to the timely and orderly fulfilment of the customer’s obligations and to his compliance with contractual obligations and any agreed payment obligations that are of essential relevance to the order. The right of defence of non-performance of the contract is reserved.
2. We endeavour to comply with the delivery dates and periods given to the customer. All delivery dates and periods must be confirmed in writing. Subsequent changes and amendment requests by the customer shall extend the delivery period accordingly. We shall not be held responsible for the aforementioned circumstances even if they occur during an ongoing delay in delivery.
3. We shall be liable in line with statutory provisions provided that the underlying sales contract is a firm deal as defined by § 286 Para. 2 No. 1 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in line with statutory provisions if, as a result of delayed delivery for which we are responsible, the customer is entitled to assert that his interest in further performance of the contract has ceased.
4. We shall also be liable in line with statutory provisions if the delay in delivery is based on a wilful or grossly negligent violation of the contract for which we are responsible; any fault of our representatives or auxiliary persons shall be attributable to us. Unless the delay in delivery is based on a wilful violation of the contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
5. We shall also be liable in line with statutory provisions if the delay in delivery for which we are responsible is based on the culpable violation of a key contractual obligation; in this event; however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
6. Furthermore, we shall be liable in the event of delayed delivery for each completed week of delay in the framework of a flat-rate compensation for delay in the amount of 0.5% of the delivery value. However, this compensation shall not exceed 5% of the value of the goods to be delivered.
7. Further statutory claims and rights of the customer shall remain reserved.
8. Any period of grace set by the customer for performance or supplementary performance must not fall short of two weeks.
IV. Delivery subject to adequate supplies, force majeure and other obstacles
1. We shall not assume any procurement risk unless this is expressly agreed. If, for reasons of which we are not responsible, we do not receive delivery or services from our suppliers, if such deliveries or services are not correct or do not reach us in time or if force majeure occurs, we shall notify our customer of this situation in writing and in due time. In this event, we shall be entitled to postpone delivery for the duration of the hindrance or withdraw from the contract in part or in full on the grounds of the not yet performed part of the contract, provided that we have complied with our aforementioned duty to furnish information and have not assumed the procurement risk. Events such as strikes, lockouts, governmental interventions, energy and raw material shortages, transport shortages which do not lie in our control and disruptions to operations for which we are not responsible, caused, for instance, by water, fire, mechanical breakdowns and all other obstacles that – looked at from an objective point of view – have not been brought about through a fault of ours shall be regarded as force majeure.
2. If a delivery date or delivery period has been bindingly agreed and the agreed delivery date or delivery period is not met on the grounds of events referred to under Para. 1, the customer shall be entitled to withdraw from the contract following the fruitless expiry of an appropriate period of grace on the grounds of the still unperformed part of the contract. The customer shall have no further-reaching rights. We shall not be held responsible for the aforementioned circumstances even if they occur during an ongoing delay in delivery.
V. Default in taking delivery by the customer
1. If the customer defaults in taking delivery or breaches other obligations to co-operate, we shall be entitled to demand compensation for any damage that we suffer as a result of such conduct, including possible additional expenses. Further claims are reserved.
2. If the statutory requirements for withdrawal from the sales contract on the part of ABUS SC are met owing to default in taking delivery by the customer and if ABUS SC makes use of its right of withdrawal, ABUS SC shall be entitled to claim flat-rate damages for default in taking delivery from the customer, amounting to 15% of the agreed net invoiced amount. The right to claim damages for a sum which is actually higher is reserved. In this event, the flat-rate damages for delay shall be set off against the more far-reaching damages for delay. The customer shall be entitled to prove that no damage or lesser damage has resulted.
3. As far as the requirements of Para. V. 1 are met, the risk of accidental loss or accidental deterioration of the sales item shall pass to the customer at the point in time when the latter has defaulted in taking delivery or payment of debt.
VI. Passing of risk
1. The risk shall pass to the customer as soon as the ordered goods are handed over to him or to a third party responsible for transportation. If shipment is delayed owing to circumstances for which the customer is responsible, the risk shall pass to the customer from the day when the goods were ready for shipment.
2. Transport packaging as well other packaging in line with the packaging regulations, with the exception of pallets, shall not be taken back. The customer is obliged to arrange the disposal of packaging at his own expense.
VII. Prices – terms of payment
1. Unless stipulated otherwise in our order acknowledgement or another written agreement, our prices are net prices “ex Affing / Mühlhausen”. The prices do not include:
- the relevant statutory VAT;
- a flat-rate shipping charge;
- a flat-rate packaging charge amounting to 0.5% of the merchandise value.
2. We shall charge the prices agreed upon conclusion of the contract, based on the cost factors applicable at this point in time. Should these factors, in particular materials, wages, freight, duties and taxes etc. change between contract conclusion and the agreed time of delivery, we shall be entitled to change our prices accordingly.
3. Unless stipulated otherwise in our order acknowledgement or another written agreement, the net purchase price (without deduction) shall be due for payment within 30 days after the date of invoice and receipt of invoice. The day of payment shall be the day on which we receive the money or credit entry is made into our account.
4. The customer shall only be entitled to offsetting and retention rights if his counterclaims are established by court proceedings, are beyond controversy or recognised by us. The customer may only assert a right of retention on the grounds of counterclaims from the same delivery/service.
5. If the customer is in default of payment or if circumstances are known or become evident which, on the basis of our dutiful commercial discretion, give rise to substantiated doubts about the customer’s creditworthiness – including facts that were already existent upon conclusion of the contract, but of which we were not aware or bound to be aware at that time or that became evident following conclusion of the contract – we shall be entitled without prejudice to further rights to stop processing ongoing orders or ongoing delivery and demand advance payment or the provision of appropriate securities to be approved by us for outstanding deliveries and, following the unsuccessful expiry of an adequate period of grace for the provision of such securities, to withdraw from the contract without prejudice to further statutory rights.
6. The customer is under an obligation to reimburse all damage including lost profits that we suffer owing to his non-performance of the contract / the contracts. If the statutory requirements for withdrawal from the sales contract on the grounds of default payment by the customer are met, and if ABUS SC makes use of its right of withdrawal, ABUS SC shall be entitled to claim flat-rate damages because of default payment from the customer, amounting to 15% of the agreed net invoiced amount. The right to claim damages for a sum which is actually higher is reserved. In this event, the flat-rate damages for delay shall be set off against the more far-reaching damages for delay. The customer shall be entitled to prove that no damage or lesser damage has resulted.
7. The customer undertakes to bear all costs and expenses associated with the collection of our claims, in particular all collection-related expenses or other costs required for the adequate assertion of legal rights.
VIII. Malperformance, liability for defects, breach of duty, notice of defects
1. The customer’s warranty claims are subject to orderly compliance with his examination and notification obligations under § 377 HGB. The goods are to be examined immediately following receipt of the delivery. We are to be notified in writing of any identifiable defects immediately following receipt of the delivery and of any hidden defects immediately following detection thereof. The notice of defects shall contain as detailed a description as possible of the defect.
In case of used goods, particularly so-called B-goods, we shall not be liable for defects with the exception of claims for damages and claims for the reimbursement of expenses pursuant to § 284 BGB. Any notification of material defects must always be made in writing.
2. Should the purchased item be defective, we shall be entitled at our own choice to either subsequent performance through free subsequent improvement or replacement delivery. In the event that a defect is remedied, we shall bear the expenses only up to the amount of the defective product’s purchase price. We shall remedy defects for which the customer is responsible himself and unjustified complaints on behalf and at the expense of the customer provided that the customer is a merchant.
3. If subsequent performance fails or if we refuse subsequent performance, the customer shall be entitled at his own choice to demand either withdrawal from the contract, abatement of the purchase price, compensation for damages or reimbursement of expenses. Following the second unsuccessful attempt, subsequent performance shall be considered as failed unless something else results in particular from the type of the sales item or the defect or from other circumstances.
4. The period of limitation for statutory warranty claims is one (1) year, calculated from the point in time when the risk passes to the customer. Following expiry of this one-year period of limitation, we undertake to accept a warranty obligation vis-à-vis the customer for the 2nd year after the passing of risk, limited at our choice to either product replacement or product repair. Following expiry of this second year, there shall be no further warranty claims.
IX. Extent of liability, exemption from liability and limitation of liability
1. We shall be liable in line with statutory provisions as far as the customer asserts claims for damages on the grounds of breach of duty, breach of key contractual obligations or impossibility for which we are responsible and which are based on wilful misconduct or gross negligence, including the wilful misconduct or gross negligence of our representatives or auxiliary persons. The same applies if, in the event of infringement of other obligations within the meaning of § 241 Para. 2 BGB, our performance can no longer be considered reasonable for the customer. Unless we are accused of wilful breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
2. As far as the customer is entitled to a claim for compensation instead of performance, our liability, including as outlined in paragraph VIII. 3., shall be limited to compensation for the foreseeable, typically occurring damage.
3. The liability for collateral damage and consequential damage caused by a defect shall be ruled out unless we have breached an essential contractual obligation or we, our managerial employees or auxiliary persons are charged with a wilful or grossly negligent breach of duty.
4. Our liability because of culpable damage to a person’s life, body or health shall remain unaffected; this also applies to mandatory liability under the Product Liability Act or other legally mandatory liability obligations.
5. In other cases, we shall not be liable for any claims for damages or reimbursement of expenses under this contractual relationship that are brought against us on the grounds of culpable breach of duty for whatever legal reason, as far as this breach of duty is based on slight negligence.
6. In the event of the aforementioned liability under No. 3 and liability without fault, particularly in cases of initial possibility and defect of title, we shall only be liable for the typical and foreseeable damage.
7. Exemptions from liability or limitations of liability pursuant to the aforementioned paragraphs shall equally apply in favour of managerial and non-managerial employees and other auxiliary persons as well as our subcontractors.
8. A reversal of the burden of proof shall not be associated with the aforementioned provisions.
9. Unless stipulated otherwise above, our liability – without respect to the legal nature of an asserted claim – shall be ruled out.
X. Data protection / data loss
1. The customer is obliged to take appropriate precautions against the loss of data. This comprises, in particular, reasonable and comprehensive data protection based on state-of-the-art technology in order to protect himself against the loss of data.
2. Unless we are accused of wilful breach of contract, the liability for damages including loss of data shall be limited to the foreseeable, typically occurring damage.
XI. Manufacturer recourse
As a reseller, the customer shall receive a flat-rate specialised trade discount on all ordered goods and, in return, waive the rights to which he is entitled under § 478 Para. 2 BGB for the reimbursement of expenses incurred in the relationship with his customer pursuant to § 439 Para. 2 BGB in the course of subsequent performance measures provided to consumers. This discount represents an equivalent compensation within the meaning of § 478 Para. 4 BGB.
XII. Reservation of title
1. We reserve the right of ownership in the sales item until receipt of all payments from the existing current account relationship (business relationship) with the customer; the reservation relates to the acknowledged balance. In the event that the customer acts in a way contrary to the contract, particularly in the event of default in payment, we shall be entitled to take back the sales item. If we take back the sales item, this shall not represent a withdrawal from the contract unless we expressly declare such withdrawal in writing. If we distrain the sales item, this shall always represent a withdrawal from the contract. Having taken back the sales item, we shall be entitled to utilise it, with the utilisation proceeds to be set off against the customer’s accounts payable less appropriate utilisation costs.
2. In the event of enforcement by writ or other third-party intervention, the customer shall notify us in writing without delay so that we can bring a lawsuit pursuant to § 771 ZPO (Code of Civil Procedure). As far as the third party is unable to reimburse to us the court and out-of-court expenses of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us. In addition, the customer shall notify us of all damage caused to the sales item and all changes in ownership of the sales item.
3. The customer shall be entitled to resell the sales item in the regular course of business; however, he shall already assign to us all claims to the sum of the invoice final amount (including VAT) of our receivable to which he becomes entitled out of reselling the sales item to his customers or third parties, irrespective of whether the sales item has been resold without or after further processing. Despite the assignment, the customer shall remain authorised to collect this receivable. Our authority to collect the receivable shall remain unaffected. However, we undertake not to collect the receivable as long as the customer meets his payment obligations arising out of the received proceeds, does not default payment and, in particular, has not filed an application for the opening of insolvency proceedings or ceased payment. If, however, this is the case, we shall be entitled to demand that the customer notifies us of the assigned claims and their debtors, provides us with all the information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
4. The customer shall also assign to us any claims intended to secure our claims against him which result against a third party from the sales item’s conjunction with a piece of land.
5. At the customer’s request, we undertake to release securities to which we are entitled provided that the realisable value of our securities exceeds the receivables to be secured by more than 20%; the responsibility for selecting the securities to be released lies with us.
XIII. Place of performance, place of jurisdiction, applicable law, effectiveness, miscellaneous
1. The place of performance for deliveries and payments shall be the registered office of our company’s branch establishment at 86444 Affing/Mühlhausen, Germany.
2. The applicable law shall be law of the Federal Republic of Germany to the exclusion of reference provisions; applicability of the UN Sales Convention shall be ruled out.
3. The exclusive place of jurisdiction for all disputes arising out of the contractual relationship, including all proceedings relating to cheques, bills of exchange and documentary evidence shall be the registered office of our company’s branch establishment at 86444 Affing/Mühlhausen, Germany, provided that the customer is a merchant within the meaning of the German Commercial Code (HGB) or does not have a domestic place of general jurisdiction. We also reserve the right to bring an action against the customer at the court of jurisdiction competent for his domicile.
4. Should individual provisions of this contract with the customer including these general terms and conditions be or become ineffective in part or in full, this shall not affect the validity of the remaining provisions. The partly or entirely ineffective provision shall be replaced with a provision whose commercial effect comes as close as possible to that of the ineffective provision.
Dated 24.11.2008
