Terms and Conditions
ABSAUGWERK GmbH§1 Scope
1.1 These General Terms and Conditions of Delivery and Payment apply to all our contracts for deliveries and other services (sales transactions). These terms and conditions do not apply to our purchasing transactions and contracts with consumers. Terms and conditions of the client which we do not recognize in writing are not binding for us, even if we do not expressly object to them.
1.2 These Terms and Conditions in their current version shall also form the basis of all future services and deliveries in accordance with Clause 1.1, even if their inclusion is not expressly agreed again.
1.3 Insofar as “written form” is required in these terms and conditions, written form in accordance with §§ 127, 126 BGB, or electronic form in accordance with §§ 127, 126a BGB, or text form in accordance with §§ 127, 126b BGB are permissible.
§2 Offers and degrees
2.1 Our offers are subject to change. Conclusion of contracts and other agreements shall only become binding upon our written confirmation. We shall not be bound by statements in our offers and/or order confirmations that are based on an obvious error, namely a typing or calculation error. Rather, the obviously intended explanation applies.
2.2 All property rights and copyrights to the offer and the attached documents shall remain with us. They are intended exclusively for the client.
2.3 Subsidiary agreements, reservations, amendments, verbal assurances or additions to the contract must be confirmed by us in writing in order to be valid.
2.4 Our services are based on the service description in our offer, the information in our installation application and the service descriptions set out in the specifications and confirmed by us in writing. The necessary infrastructure and availability of the required interfaces, such as statics, electricity, air, etc., must be provided by the client.
§3 Delivery times and delays, force majeure
3.1 The delivery time stated in the offer or the order confirmation is generally non-binding. We endeavor to adhere to stated delivery times, but cannot guarantee this. Delivery times are only binding if they are expressly designated as binding in the offer or in the order confirmation.
3.2 Delays in delivery caused by the client making requests for changes to the original order shall be borne by the client. This shall also apply if the client does not fulfill its obligation to deliver data in the agreed form, or does not do so on time, or if the delivered data is defective and must be reworked. If production comes to a standstill in these cases, we can demand that the client bears the downtime costs incurred by us due to idle times.
3.3 In the event of force majeure or other unforeseeable, extraordinary circumstances for which we are not responsible – e.g. difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of means of transportation, official interventions, energy supply difficulties, terror, war, embargo, pandemic, etc., even if they occur at upstream suppliers – the delivery period shall be extended to a reasonable extent if we are prevented from fulfilling our obligation on time.
3.4 If delivery or performance becomes impossible or unreasonable due to the aforementioned circumstances, we shall be released from our delivery obligation. If the delay in delivery lasts longer than 3 months, the client is entitled to withdraw from the contract. The client may withdraw earlier if the delay in delivery is unreasonable for him.
3.5 If the delivery time is extended due to force majeure or if we are released from our delivery obligation, the client cannot derive any claims for damages from this. We can only invoke the aforementioned circumstances if we inform the client of this immediately.
§4 Prices and payment, cancellation and processing fees
4.1 The prices quoted by us are net prices. VAT is added to the prices at the applicable statutory rate. The prices are ex works and do not include the costs of freight, unloading, transportation and installation, unless this has been expressly agreed.
4.2 Insofar as no terms of payment, in particular advance payment or cash discount deductions, are agreed in individual cases, the invoices issued by us shall be due for payment without deduction upon receipt of the invoice within the specified payment terms, but within 30 days at the latest.
4.3 If we receive payment from the client late, we shall be entitled to charge annual interest at a rate of 9 percentage points above the prime rate from the due date. If the client defaults on payment, we may charge interest at the respective bank rates for overdrafts, but at least 9 percentage points above the base interest rate. We reserve the right to claim further financing costs and other damages caused by default on the part of the customer.
4.4 In the event of default of payment by the client, we are entitled to withhold delivery. The client is not entitled to withhold or offset payments unless the counterclaims have been recognized by us or have been legally established.
4.5 Cancellation of an order placed with us is only possible for good cause. In the event of cancellation for good cause, the client is obliged to reimburse the expenses for the services already rendered, but at least to pay a processing fee of €200.00.
§5 Retention of title
5.1 All delivered products shall remain our property (reserved goods) until full payment of all claims to which we are entitled from the business relationship with the customer. This also applies to future and conditional claims, and also if payments are made on specially designated claims. This reservation of balance shall finally expire upon settlement of all claims still outstanding at the time of payment and covered by this reservation of balance.
5.2 Processing and treatment of the reserved goods shall be carried out for us as the manufacturer within the meaning of § 950 BGB without any obligation on our part. The treated and processed goods shall be deemed to be reserved goods within the meaning of para. 5.1. If the goods subject to retention of title are processed, combined or mixed with other goods by the customer, 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 goods used. If ownership expires as a result of combining or mixing, the client hereby assigns to us the ownership rights to which it is entitled to the new stock or item to the extent of the invoice value of the reserved goods and shall store them for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of para. 5.1.
5.3 The client is entitled to resell the products in the ordinary course of business as long as he is not in default of payment of the purchase price. He is not authorized to make extraordinary dispositions such as pledges and transfers of ownership by way of security to third parties. In the event of resale, the customer hereby assigns to us by way of security all claims and other claims arising from the resale against its customers, including all current account balance claims, together with all ancillary rights.
5.4 The client is entitled to collect the assigned claims. The direct debit authorization shall expire if the client ceases payments, files for insolvency or if insolvency proceedings are opened, in the event of out-of-court settlement or restructuring proceedings, in the event of restructuring proceedings pursuant to the StaRUG or in the event of other financial collapse. The same shall apply if it becomes apparent that our claim for payment is jeopardized by the client’s inability to pay. In this case, we can demand that the client informs us of the assigned claims and their debtors, provides all information necessary for the collection of the claims, hands over the associated documents and notifies the debtor of the assignment.
5.5 The client is prohibited from disposing of the resale claim without our written consent by way of security or assignment of the claim, including by way of purchase of the claim, unless it is an assignment by way of genuine factoring which is notified to us and in which the factoring proceeds exceed the value of our secured claim.
5.6 The client must inform us immediately of any seizure or other impairment of our reserved goods by third parties. The client shall bear all costs that have to be incurred to cancel the seizure or to return the reserved goods, insofar as they are not borne by third parties
be replaced.
5.7 We undertake to retransfer or release the securities at the client’s request if the value of the security provided to us exceeds the amount of our claim by more than 20% in total.
§6 Transfer of risk and acceptance
6.1 The goods shall be accepted after completion of the service if this has been contractually agreed. This also applies to self-contained partial services.
6.2 The risk shall pass to the client upon acceptance.
6.3 If the client defaults on acceptance, the risk shall pass to the client at the time of default. The same applies if an agreed installation is interrupted for reasons for which the client is responsible and if we have handed over the services provided up to that point to the client by mutual agreement.
6.4 If no acceptance is required or agreed, the risk shall pass to the customer at the latest when the delivery parts are dispatched, even if partial deliveries are made or we have assumed other services, e.g. the shipping costs or delivery and installation.
6.5 At the client’s request, we will insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks at the client’s expense.
§7 Weights, dimensions, deviation
7.1 Depending on the type of goods delivered by us, excess or short deliveries in relation to the agreed quantities and weights are permitted within the scope customary in the trade and industry.
7.2 The DIN tolerances and customary deviations shall apply to the specified dimensions, unless we have agreed deviating quality requirements with the customer.
§8 Liability for material defects and compensation
8.1 We accept no responsibility for the goods being fit for a particular purpose unless we have expressly agreed to such liability.
8.2 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the client arising from injury to life, limb or health, in the case of guarantees or claims under the Product Liability Act or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.
8.3 The liability for material defects does not extend to parts subject to wear and tear or to damage caused by natural wear and tear, moisture, excessive heating of rooms, other temperature or weather influences, improper handling, brute force, overexertion and the use of unsuitable operating materials or lubricants. The maintenance and care instructions must be observed by the client.
8.4 Claims for subsequent performance, compensation, reduction or withdrawal within the meaning of §§ 437, 634 BGB due to obvious defects expire after acceptance, but at the latest if the client does not give notice of them immediately, i.e. within two weeks of delivery.
8.5 We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs to the place to which we have delivered the goods. If the goods are located at a place other than the place of delivery, in particular in cases of resale, we shall not be obliged to bear any resulting additional costs for transport, travel, labor and material costs.
8.6 At our discretion, the goods shall, if possible, be returned at our expense, provided this is technically feasible. If the goods are sent in, the most cost-effective mode of transportation is to be chosen, usually by a forwarding agent and not by air, provided this is not unreasonable for the customer. We may demand subsequent performance without prejudice to our rights under § 275 para. 2 and 3 BGB if this is only possible at disproportionate cost.
8.7 Instead of rectifying the defect, we can also deliver a replacement item at our discretion. If we deliver a replacement item, we can demand the return of the defective item from the customer in accordance with §§ 346 to 348 BGB. If the rectification of defects fails, if we refuse to provide a replacement delivery or if we fail to do so within a reasonable period of time, the client may reduce the remuneration or withdraw from the contract. A rectification shall be deemed to have failed after the third unsuccessful attempt, unless the nature of the item or the defect or other circumstances indicate otherwise.
8.8 Insignificant, reasonable deviations in the dimensions and designs, in particular in the case of repeat orders, shall not entitle the customer to make complaints unless compliance with dimensions and tolerances has been expressly agreed. Technical improvements and necessary technical modifications shall also be deemed to be in accordance with the contract, provided they do not represent a deterioration in value.
8.9 If the customer prescribes the use of a specific material or provides us with the material to be used, or requests a specific type of execution that deviates from the usual production, we shall not be liable for any resulting defects and damage that either arise in our product or lead to defects in the product to be manufactured. We shall not be liable for parts, materials or other equipment manufactured by or on behalf of the client.
8.12 All claims for material defects shall lapse if the client makes changes or interventions to the product himself or through third parties without our written approval. A guarantee shall also lapse if the client uses spare parts that have not been approved by us, unless the client proves that the defect would have been remedied even if an original spare part or a spare part approved by us had been used.
spare part would have occurred.
8.11 All claims for damages by the client arising from breach of duty, delay, impossibility of performance, positive breach of contract, culpa in contrahendo, tort and other legal grounds are excluded, insofar as the damage or consequential damage not caused to the delivery item itself was not caused by intentional or grossly negligent action on our part. The limitation of liability shall apply to the same extent to our vicarious agents and assistants.
8.12 The exclusion of liability pursuant to para. 10.11 shall not apply if material contractual obligations are breached or if the client asserts claims for damages due to the absence of a warranted characteristic. In these cases, however, our liability shall be limited to the damage foreseeable at the time the contract was concluded.
8.13 In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery and Payment if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, if the manufacturer and supplier were unable to fulfill their obligations. Due to insolvency, this is hopeless. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the client against us shall be suspended.
8.14 The above limitations of liability and the one-year warranty period in para. 10.2 if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item. The limitations of liability and the one-year warranty period in 10.2 also do not apply to damages resulting from injury to life, limb and health, in the case of guarantees or claims under the Product Liability Act.
§9 Provision of materials by the client
9.1 If the material to be processed by us is provided by the client, the material residues (waste) resulting from the processing of the material shall become our property without replacement, unless we agree otherwise with the client.
9.2 If materials are provided by the client, we shall not be liable for defects attributable to material faults. If we discover material defects, we will inform the client immediately and discuss the next steps together.
§10 Copyright
10.1 The copyright and ownership of design drawings, 3D data, CAM data, technology data and all copyrightable services that we provide for the client shall remain with us.
10.2 Licenses and rights of use can be acquired by the client by means of a separate contract.
§11 Indemnification obligation of the client
11.1 If the client requests a certain type of execution or a certain specification of the goods, he must check in advance whether this could lead to copyright or patent infringements or other infringements of third-party rights. The client must inform us of the result of the inspection before the contract is concluded. We are not obliged to check without sufficient cause whether the aforementioned instructions of the client infringe the rights of third parties.
11.2 If, after conclusion of the contract, we determine that the type of execution or specification requested does not fulfill rights
third parties, we are entitled to demand that the client remove this obstacle within a reasonable period of time and to suspend the work until then. If the client does not comply with our request despite the setting of a grace period, we are entitled to withdraw from the contract and demand compensation.
11.3 If we are sued by third parties in the cases of para. 13.1, p. 1 due to infringement of their rights, the client must immediately indemnify us against all claims of third parties in this regard. We may demand a reasonable advance on costs from the client for court, legal defense and expert costs as well as other costs necessary for the defense against third-party claims.
11.4 The indemnification and advance payment obligation shall also apply if it later transpires in a legal dispute that there has been no infringement of third-party rights. The client may demand that we assign our claims against third parties for costs and damages to him after full indemnification and fulfillment of our claims.
§12 Prohibition of offsetting, contractual penalty
12.1 The client may only offset against our claims for payment of the agreed remuneration if the client’s counterclaim has either been recognized by us or has been legally established. The client’s rights of retention are also excluded.
12.2 Contractual penalties shall only be accepted by us if they are contractually negotiated and set out in writing. Contractual penalties in the client’s general terms and conditions shall bind us in
no case.
12.3 All contractual penalties include for us the rights according to §§ 339 ff. BGB with the proviso that the party wishing to derive rights from a contractual penalty promise must set out and prove all requirements for this. Any contractual penalty shall be offset against other claims for damages. We reserve the right to prove that no damage or only a lesser damage has been incurred than the contractual penalty and to reduce the contractual penalty accordingly.
12.4 If a contractual penalty is disproportionately high, it can be reduced by judgment in accordance with § 343 BGB.
348 HGB is not applicable.
§13 Out-of-court dispute resolution
13.1 We are not prepared to participate in dispute resolution proceedings before a consumer arbitration board.
We are also not legally obliged to participate in dispute resolution proceedings before a consumer arbitration board.
13.2 EU platform for out-of-court online dispute resolution: http://ec.europa.eu/consumers/odr/
§14 Severability clause
Should one or more of the provisions of this contract be or become invalid outside the main performance obligations, this shall not affect the validity of the remaining provisions of this contract. In such a case, the parties undertake to agree to negotiate a new provision which comes as close as possible to the economic purpose of the invalid provision and which they would have agreed if they had been aware of the invalidity.
§15 Place of jurisdiction, choice of law
15.1 The place of performance and place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office if the client is a registered trader, a legal entity under public law or a special fund under public law.
15.2 The contractual relationship between the parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law.
Contact details
ABSAUGWERK GmbH
Eichlesstraße 16
D-89129 Langenau
Germany
Phone: +49 731 141 108-0
Email: info@absaugwerk.de
www.ABSAUGWERK.de
Status: February 2024
