Terms and Conditions
For application to:
- all natural or legal persons or partnerships acting within the legal capacity who or which in transacting business act under their professional status as commercial or self – employed entity (entrepreneurs);
- All transactions with legal persons under public law or special fund under public law.
- All deliveries and services are subject to these terms and conditions as well as any separate contractual agreements. Any references made by the Buyer to its own Terms and Conditions of Purchase are hereby excluded even in the event of an acceptance of an order. Any variations to these Terms shall be subject to the express written confirmation by Abacus Resale GmbH (hereinafter referred to as Abacus Resale). In the absence of a separate agreement a contract shall materialise by way of the written order confirmation by Abacus Resale.
- Abacus Resale unrestrictedly reserves all intellectual or industrial ownership rights and copyrights pertaining to all technical and commercial documentation provided by Abacus Resale. These include plans, samples, drawings, cost estimates and similar information of a tangible or intangible nature – also in electronic format. These may not be made available to third parties. Abacus Resale undertakes to obtain the prior consent of the Buyer before making any information and documentation which the Buyer has described as confidential accessible to third parties.
- Data included in product catalogues, price lists, drawings, dimension and weight tables shall not be binding on Abacus Resale unless specific reference is made to them by Abacus Resale. Such product details shall be deemed only as approximations for purposes of information and shall not be deemed to constitute guaranteed data unless they have expressly been designated as binding.
II. PRICES & PAYMENT, COLLATERAL, SET-OFF AND RIGHT TO REFUSE PERFORMANCE
- All prices are given in Euro and are subject to the German VAT rate which is valid at the time of invoicing. Unless otherwise agreed, the prices shall be understood to be EX-Works (Incoterms 2010), including loading at the works, but excluding packaging, re-loading and/or unloading, freight/postage, insurance, customs and other expenses.
Should Abacus Resale be also be assigned with the assembly, installation, monitoring and putting into operation of the delivery item, then Abacus Resale shall provide the appropriate technicians and/or service engineers and charge the current rate.
The Buyer shall refrain from returning the packaging and dispose of these in accordance with the legal regulations.
- Unless otherwise agreed our terms of payment are: Prepayment of 100% upon receipt of order confirmation or invoice. Payments shall be made without any deduction and free of bank charges. A payment is accepted as being received when the full amount invoiced has been credited irrevocably to our account so that Abacus Resale has access to it (receipt of payment).
- The Buyer shall only be entitled to retain payments or to set off counterclaims if these are undisputed or have been legally asserted by a court ruling.
- The Buyer shall be in default when a reminder is sent due to the payment not being received by the due date. No later, however, than 30 days after the issuing of an invoice or other payment request by Abacus Resale. During the default of payment, Abacus Resale is entitled to charge both a default interest in the amount of 8% p.a. above the base lending rate (European Central Bank) for overdraft facilities as from the date that the payment was due as well as a processing fee for each reminder. Abacus Resale reserves the right to claim damages caused by default in excess of this and also to assert further statutory rights.
If Abacus Resale has well-founded doubts about the Buyer’s solvency, particularly if the latter is behind with its payments, Abacus Resale shall be entitled to demand that the Buyer make advance payments or provide collateral for the carrying out of any outstanding/future deliveries. Should the Buyer not provide the advance payment(s) and/or the securities – even after a reasonable extension of time, Abacus Resale shall be entitled to withdraw from the contract and to demand compensation. Abacus Resale may revoke payment terms previously agreed upon.
III. DELIVERY TIMES, DELAY AND FORCE MAJEURE
- The time of delivery shall be derived from the agreements between the contractual parties. The compliance with the delivery period by Abacus Resale presumes that all commercial and technical issues have been cleared by the contracting parties and shall be subject to the Buyer’s fulfilment of its contractual obligations, such as the provision of all documents, materials, licences, permits, authorisations, approvals, releases and securities and also making the agreed payments to Abacus Resale. If this is not the case, the delivery time shall be extended by a reasonable extent. This is not applicable if Abacus Resale is responsible for the delay.
- Abacus Resale’s compliance with the agreed delivery time is subject to it obtaining a correct and punctual delivery from its suppliers. Abacus Resale shall notify the Buyer of any anticipated delay(s) in delivery as soon as possible.
- In accordance with the agreed trade terms (INCOTERMS), delivery times shall be deemed to have been observed when the delivery item has left the Abacus Resale’s warehouse or notification has been given that the delivery items are ready for dispatch. Insofar as the goods/services must be accepted by the Buyer – except with justified refusal of acceptance – the acceptance date shall be decisive, alternatively the notification that the item is ready for acceptance.
- Should dispatch and/or acceptance of the delivery item be delayed for reasons within the control of the Buyer, then Abacus Resale shall have the right to charge the Buyer for costs incurred due to the delay, starting one month after notification of readiness for dispatch or acceptance has been given. In particular, Abacus Resale shall be entitled to store the delivered item with third parties at the risk and cost of the Buyer.
- Delivery times shall be reasonably extended if delivery is delayed due to reasons of force majeure, labour disputes or any other events or circumstances beyond the reasonable control of the Seller. Abacus Resale shall inform the Buyer of such occurrences (beginning and end) as soon as possible. If the events causing the delay of delivery persist for more than three months, both parties shall have the right to withdraw from the contract. Abacus Resale shall not be liable to the Buyer for damages resulting from the withdrawal from the contract.
- The Buyer shall be entitled to rescind from the contract without notice if it finally deemed impossible for Abacus Resale to perform its contractual obligations in full before the passing of the risk. In addition, the Buyer may rescind from the contract should it become impossible to execute a part of the delivery of an order and if the Buyer has a justified interest in rejecting a partial delivery. If this does not apply, then the Buyer shall pay the contractual price attributable to the partial delivery. Furthermore Section VII.2 of these Terms shall apply.
Should the impossibility or the inability to perform arise during a delay in acceptance or if the Buyer is exclusively or predominately responsible for these circumstances, then the Buyer remains liable to pay a consideration. In such cases the Buyer has no claim to compensation.
- If the Buyer suffers an undisputed loss due to a delay in delivery for reasons within Abacus Resale’s control, the Buyer shall be entitled to claim liquidated damages of 0,5% for each full week of delay. In total however, a maximum of 5% of the value of that part of the of the total delivery which owing to the delay, could not be used in time or as stipulated in accordance with the contract shall not be exceed.
If, under consideration of the legal exceptions, the Buyer sets Abacus Resale an appropriate period of grace after the contractual delivery term has expired without the deadline being met, the Buyer shall be entitled to rescind from the contract within the statutory regulations applicable. All further claims resulting from the default shall be defined exclusively in accordance with Section VII.2 of these Terms.
IV. PASSING OF RISK AND ACCEPTANCE
- The goods or services shall be supplied in accordance with the terms of trade determined in an individual contract. These terms shall be construed in accordance with the INCOTERMS, as valid at the time of conclusion of the agreement.
- The risk shall pass onto the Buyer when the items leave the works or are handed over to the carrier or freight forwarder. This also applies if part-deliveries take place or if Abacus Resale has assumed responsibility for other services (e.g. dispatch costs, delivery and installation). In such cases, Abacus Resale shall assign the Buyer all compensation claims on the transport company. Insofar as acceptance has taken place this shall be decisive for the passing of risk. Acceptance shall be deemed effected without delay on the acceptance date, alternatively following Abacus Resale’s notification of readiness for dispatch. A minor defect shall not entitle the Buyer to refuse acceptance of the goods/services.
- In the event that dispatch or acceptance are delayed or omitted for reasons which cannot be attributed to Abacus Resale, the risk shall be deemed to have passed to the Buyer on the date of Abacus Resale’s notification of readiness for dispatch. Upon the Buyer’s request and at the Buyer’s cost, Abacus Resale shall provide for the necessary insurance cover.
- Partial deliveries shall be permitted, provided that the Buyer is not unreasonably disadvantaged as a result thereof.
V. RESERVATION OF TITLE
- Abacus Resale reserves the rights of property of the delivered items until all contractual payments – also of any ancillary payments owed – have been received in full.
- Abacus Resale shall be entitled to insure the delivered items against theft, breakage, fire, water and other damages at the Buyer’s expense insofar as the Buyer does not hold and provide proof of an adequate insurance covering the reinstatement value.
- The Buyer may neither sell nor pledge the delivery item, nor assign it as security. In the event of the pledging or confiscation, attachment or garnishment orders or other dispositions by third parties as well as the initiation of bankruptcy or composition proceedings on the Buyer’s property, the Buyer is to notify Abacus Resale immediately.
- If the Buyer is in breach of contract, particularly in the event of default in payment, Abacus Resale shall be entitled – following the submission of an appropriate reminder to the Buyer – to repossess the items supplied. The Buyer shall be under the obligation to return the item(s) to Abacus Resale. Repossession costs shall be borne by the Buyer.
- Due to the retention of title, Abacus Resale can only demand that the Buyer return the items supplied if Abacus Resale has rescinded from the contract.
- An application for initiation of insolvency proceedings against the Buyer, shall entitle Abacus Resale to withdraw from the contract and to demand the immediate return of the items supplied.
- The Buyer is entitled to resell the delivery items in the course of orderly business transactions under the condition that the Buyer fulfils its obligations to Abacus Resale and at this stage assigns to us all claims arising from the resale to its purchasers or third parties in the amount of the final invoice amount (including Value Added Tax) owed to Abacus Resale. The Buyer is entitled to collect this claim even after its assignment. This shall not affect Abacus Resale’s entitlement to collect claims.
However, Abacus Resale undertakes not to collect the claims as long as the Buyer fulfils its payment obligation(s) and is not in default of payment, and no petition has been filed for the opening of bankruptcy proceedings with regards to the Buyer’s assets. Should this occur, Abacus Resale may demand that the Buyer make the outstanding debts and their debtors known and that Abacus Resale is provided with all the necessary details and documentation. The debtors shall be informed of such an assignment of claims either by the Buyer or by Abacus Resale.
- Processing or alteration of the items subject to retention of title shall be conducted by the Buyer on behalf of Abacus Resale. If the items delivered by Abacus Resale are processed, combined or mixed with other items not belonging to us, then Abacus Resale shall acquire co-ownership of the new item in proportion to the ratio of the value of the items subject to retention of title at the time of processing.
VI. CLAIMS IN RESPECT OF DEFECTS
Abacus Resale shall provide warranty for defects in workmanship and material as well as legal deficiencies for the items supplied under the exclusion of further claims – subject to Section VII of these Terms.
DEFECTS IN QUALITY (WORKMANSHIP AND MATERIAL)
- All parts which prove defective as a result of circumstance(s) occurring before the passing of risk, shall be repaired, replaced or refunded at the sole discretion of Abacus Resale. Furthermore Abacus Resale shall be entitled to refuse the option of supplementary performance chosen by the Buyer, specifically where this involves a disproportionate amount of costs. However, this provision shall apply only on condition that the Buyer notifies Abacus Resale of the defect(s) immediately in writing. Replaced items or parts shall become the property of Abacus Resale. This is not applicable if the items require separate disposal e.g. due to chemical, biological or nuclear contamination. In such cases the Buyer must ensure proper disposal at its expense.
- In order for Abacus Resale to undertake the repairs and replacements which appear necessary at the discretion of Abacus Resale, the Buyer shall – after consulting with Abacus Resale – provide the necessary time and opportunity for Abacus Resale to carry out the repair/replacement. Failing this, Abacus Resale shall be released from any liability for the ensuing consequences. Only in urgent cases in which operational safety is endangered and/or to prevent dispro-portionately greater damages (in which case the Buyer shall notify the seller immediately) shall the Buyer be entitled to correct these defects itself or to arrange for correction by a third party and to demand the reimbursement of the costs relevant and reasonable from Abacus Resale.
- Insofar as no other agreement is expressly made, all improvements and replacement deliveries required in connection with this contract, shall be performed in Herford, Germany.
- Insofar as the Buyer’s complaint proves to be justified, the costs incurred directly through the repair and/or replacement shall be borne by Abacus Resale. These costs shall include the replacement(s) and the dispatch thereof insofar as no disproportionate burden is incurred to Abacus Resale. Further costs such as t the dismantling, re-assembly and re-testing as well as the provision of the necessary fitters and assistants – including the travelling expenses – shall not be carried by Abacus Resale. Any additional costs incurred because the delivered item is subsequently transferred to a location other than the place of delivery shall be borne by the Buyer.
If the examination of the notification on defects establishes that no material defect exists we are entitled to invoice the Buyer with a standard operating/-processing fee. The Buyer shall be entitled to prove that the actual costs incurred were lower than the invoice amount
- Within the framework of the statutory regulations the Buyer shall be entitled to rescind from the contract if Abacus Resale – taking into account the statutory exceptions – should fail to observe a reasonable time period for the subsequent repair or replacement delivery necessary to rectify a quality defect. A claim for subsequent performance can be excluded by Abacus Resale if replacement items cannot be procured despite making reasonable efforts, or can only be procured at excessive expense.
In the event of an insignificant fault, the Buyer shall not be entitled to a cancellation of the contract, but only to a reduction of the purchase price. The right to a reduction of the contract price is otherwise excluded.
In the event of a withdrawal, Abacus Resale has the right to charge the Buyer a compensation for the benefits derived from use. The benefit of use for the period until withdrawal shall be calculated based on the purchase price and the average total operating life of the product on the pro-rata basis, unless the possibility of use was limited or eliminated by the defect.
All further claims shall be determined according to Section VII.2 of these Terms and Conditions.
- Abacus Resale shall not be liable for any defects caused by the following cases:
- Unsuitable or improper use or storage,
- incorrect assembly/installation/putting into operation by the Buyer or third party,
- normal wear and tear,
- incorrect or negligent handling of the items delivered, in particular the non-observance of operating instructions,
- improper maintenance,
- unsuitable operating materials and substitutes,
- defective construction work, unsuitable foundations,
- chemical, electrochemical or electrical influences insofar as Abacus Resale is not responsible for them. And also extreme temperature and climatic influences beyond the responsibility of Abacus Resale.
- Abacus Resale shall assume no liability for the consequences resulting from an improper repair or improvement carried out by the Buyer or a third party. The same shall apply for any alterations made to the delivered item if these are carried out without Abacus Resale’s prior written consent.
DEFECTS IN TITLE
- Should the use of the delivered item lead to the violation of industrial property rights or copyrights within Germany, Abacus Resale shall, at its expense provide the Buyer with the basic right to continue usage of the delivered item or modify the delivery item – in a manner acceptable for the Buyer – so that the proprietary rights are no longer breached.
If this is not possible under economically reasonable conditions or within an acceptable period of time, then the Buyer shall have the right to rescind from the contract. Under the stated preconditions, Abacus Resale shall also have a right to rescind from the contract.Furthermore Abacus Resale shall indemnify the Buyer against undisputed or legally determined claims by the owner(s) of the industrial property rights concerned.
- The obligations on the part of Abacus Resale stated in Section VI.7 are subject to Section VII.2 conclusively in the event of an infringement of industrial property rights or copyrights. They shall only apply if
- the Buyer notifies Abacus Resale immediately of any claim made on account of an alleged infringement of industrial property rights or copyrights,
- the Buyer supports Abacus Resale to a reasonable extent in defence against the claims asserted and/or allows Abacus Resale to execute the measures for modifications in accordance with Section VI.11.,
- Abacus Resale retains the right to execute all measures required for warding off the claims, including out-of-court settlement
- the legal defect(s) is not due to an instruction given the Buyer and
- if the infringement did not arise due to the Buyer having carried out unauthorised modifications of the delivered item having used them in a manner that is not compliant with the contract.
- The Buyer assumes the sole responsibility for the documents which it is required to provide, such as drawings, templates, samples and suchlike. The Buyer shall guarantee that any documents of implementation submitted by him do not infringe the patent rights of third parties. Abacus Resale shall be under no obligation to the Buyer to review whether any industrial property rights of third parties might be violated by the submittal of offers based on the supplied documents of implementation. Should Abacus Resale nevertheless be held liable owing to specific circumstances substantiating the claim, the Buyer shall indemnify and hold Abacus Resale harmless against all liabilities, damages and claims arising therefrom.
- If the Buyer cannot use the item of delivery in accordance with the contract due to negligence or fault on the part of Abacus Resale owing to the omission or faulty execution of proposals and advice given before or after the conclusion of the contract or through the infringement of other contractual ancillary obligations – in particular instructions on the proper operation and maintenance of the delivered item – then the provisions of Sections VI. and VII.2 apply accordingly. Further claims on part of the Buyer are excluded herewith.
- Abacus Resale shall therefore not be liable for any damages not incurred to the delivery item itself – on whatever legal grounds. Exceptions are limited to cases of
b. gross negligence on the part of the owner/of its management or managing employee(s),
c. culpable injury to life, body and health,
d. defects fraudulently concealed or if the absence of such was expressly guaranteed by Abacus Resale,
e. defects in the delivery item, to the extent that liability is assumed under the Product Liability Act personal injury or material damage to privately used items.
In the case of a negligent breach of one of its essential contractual obligations, Abacus Resale shall also be liable for gross negligence by its non-executive employees and in case of minor negligence, the latter being limited to reasonably foreseeable damage of the kind which is typical to the contract. All further claims shall be excluded.
VIII. STATUTE OF LIMITATIONS
All claims of the Buyer – on whatever legal grounds – shall be subject to the statute of limitations of 12 months. The German statutory limitations shall apply to any claims for damages according to Section VII.2. a-e. These periods shall also apply to defects relating to civil structures or for delivered items which were utilised for a building structure in accordance with their customary manner, and have caused defects in the structure concerned.
IX. EXPORT CONTROL
- The Buyer pledges to comply with all Export Administration Regulations (EAR) and embargo regulations. Should the item(s) of delivery shall be destined to a country or a natural or juristical person underlying export restraints or embargos, the Buyer shall inform Abacus Resale immediately. Accordingly, this is also applicable, should the Buyer subsequently become aware of same.
The Buyer shall be responsible for procurement of the required export licences unless Abacus Resale has expressly agreed to carry out this procurement. Either way, the delivery items will only be shipped once the appropriate permits have been granted. Should the permit not be granted within a reasonable time limit, both parties shall be entitled to rescind from the contract.
X. USE OF SOFTWARE
In so far as the scope of delivery shall include software the Buyer shall be granted a non-exclusive and non-transferable right to use the software delivered including its documentation; it shall be transferred exclusively for use on the delivery item intended for this purpose. It is not permitted to utilise the software on more than one system.
The Buyer shall only be entitled to duplicate, revise, translate or convert the software from the object code into the source code to the legal permissible extent (§§ 69 a ff. German Copyright Law). The Buyer undertakes neither to remove nor change any supplier data – including but not limited to references to copyright -without the express prior consent of the Abacus Resale.
All other rights to the software and associated documentation, including any copies, shall remain with Abacus Resale or the supplier of the software. The Buyer is not entitled to grant sub-licenses to third parties.
XI. APPLICABLE LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE, INCOTERMS
- All legal relationships between the Buyer and Abacus Resale shall be in accordance with the law of the Federal Republic of Germany. The application of the UN Sales Law (CISG) is excluded.
- The sole place of jurisdiction shall be the court having jurisdiction at the place of Abacus Resale’s registered office; however, Abacus Resale shall also be entitled to assert claims before the court having jurisdiction over the location of the Buyer’s principal registered office.
- Unless otherwise stated on the order confirmation or the invoice, the registered seat of the Abacus Resale shall be the place of performance.
- This contract shall be subject to the INCOTERMS 2010. Insofar as nothing else may be derived from the order confirmation the delivery shall be agreed “FCA“ Herford, Germany or alternatively Bobenheim-Roxheim, Germany.
Abacus Resale GmbH,
Telephone +49 (0)62639 99 6555
Telefax +49 (0)6239 997 4363