GTCs
General Terms and Conditions
of the company ASAP Technical Service GmbH
(as at: September 2014)
§ 1 Scope
By placing the order, the customer agrees to our terms and conditions. Conflicting or deviating terms and conditions of the customer shall only be binding for our company if we have expressly acknowledged them in writing.
Our terms and conditions shall also apply if we carry out our delivery/service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
These General Terms and Conditions shall apply to all our deliveries and services and to all obligations resulting from an obligatory relationship with the customer.
§ 2 Rights of use
The form of the right of use results from the concrete agreement made in each case.
Insofar as the results were not developed by us, we regularly only broker a contract with the third-party provider.
The customer therefore recognizes the supplied terms of use of the third-party provider, to which we expressly refer; these are decisive for the scope of the granting of rights by the third-party provider.
With respect to companies and legal entities under public law, our terms of business shall also apply to all future business relationships.
Regardless of the scope of the transfer of rights to the customer, we are in any case permitted to use ideas, concepts, acquired know-how, etc. for further developments and services for other customers as well.
§ 3 Retention of title
In the case of any current account balance, we shall retain title until the balance has been settled; in the case of the acceptance of bills of exchange or checks until they have been honored.
He hereby assigns to us his claim from the resale with all ancillary rights up to the amount of the claim of the final gross invoice amount; in the case of current account agreements of the customer with the third party, this shall apply accordingly to the balance claim from the current account.
The customer remains authorized to collect the assigned claim even after the assignment.
Our authority to collect the claim ourselves remains unaffected by this.
However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, does not file a petition for the opening of a bankruptcy proceeding. and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
If this is the case, the customer undertakes to notify us of the assigned claims and their debtors and to provide all information required for collection, to hand over the relevant documents and to notify the debtors (third parties) of the assignment.
If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final gross invoice amount) to the other processed items at the time of processing.
In all other respects, the same shall apply to the item created by processing as to the goods delivered subject to retention of title.
If, in the case of delivery of goods abroad, certain measures are required in the importing country for the retention of title to become effective, the customer shall point this out and carry out such measures at its own expense.
If the law of the importing state does not permit retention of title but allows us to reserve other rights to the goods, we may exercise all rights of this kind.
If an equivalent security of the claims is not achieved by this means, the customer shall be obliged to provide us with other securities in the delivered goods or other securities at his expense.
The customer may neither pledge nor assign by way of security the goods subject to retention of title and must notify us immediately of any pledges made at the instigation of third parties.
We undertake to release securities to which we are entitled at the customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%.
We shall be responsible for selecting the securities to be released.
§ 4 Offer/Changes
A contract with us shall only be deemed to have been concluded when the customer sends us the signed order confirmation/service provider agreement or other processing in text form.
Amendments, collateral and supplements as well as any agreements on quality or the assumption of guarantees require an express agreement in order to be effective; this must be in writing in order to be effective.
§ 5 Order execution
Warranty declarations must be made in writing in order to be effective. No guarantee and warranty assumption, otherwise only in case of confirmation.
Unless otherwise stipulated by law, we owe advice only insofar as this was assumed by us as a main contractual obligation.
We shall not be obliged to check data, information or other services provided by the customer for completeness and correctness, unless there is reason to do so, taking into account the respective circumstances of the individual case, or the obligation to check has been expressly assumed as a contractual obligation.
Notwithstanding our continuing responsibility for the performance of services owed under the contract, we shall be entitled without restriction to involve third parties in the performance of the contract.
Insofar as employees whose deployment was contractually agreed are prevented by reasons for which we are not responsible, we may replace them with other suitable employees.
§ 6 Deadlines and dates
If no binding deadlines and dates have been agreed with us, we shall only be in default if the customer has previously set us a reasonable grace period for the performance of the owed delivery without result.
In any case, deadlines shall only run from the complete performance of all acts of cooperation owed by the customer. Subsequent requests for changes or delayed cooperation on the part of the customer shall extend the delivery times accordingly.
If the performance owed by us is delayed due to unforeseeable circumstances for which we are not responsible (e.g. industrial disputes, operational disruptions, transport obstacles, shortage of raw materials, official measures - in each case also at our upstream suppliers - as well as untimely self-delivery), we shall be entitled to withdraw from the contract in whole or in part or, at our discretion, to postpone the delivery by the duration of the hindrance.
Claims for damages on the part of the customer are excluded.
If the customer fails to meet his obligations to cooperate, cooperate or provide in whole or in part, the performance dates affected thereby shall lose their binding force, and in particular we shall not be in default.
After an unsuccessful reminder, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses.
If the customer fails to fulfill its cooperation, cooperation or provision obligations even within a reasonable period of grace following the further reminder, we shall also be entitled to terminate the contract without notice.
In this case, we shall be entitled to claims for compensation and remuneration at least in an amount resulting from § 645 of the German Civil Code (BGB); further claims on our part shall remain unaffected. We shall have the same right in the event that, as a result of the delay that has occurred, we are no longer able to complete the project within a reasonable period of time or only at considerably higher costs, for example due to other obligations.
If we are in default for reasons for which we are responsible, or if our obligation to perform is excluded for reasons for which we are responsible due to impossibility pursuant to Section 275 (1) of the German Civil Code (BGB), or if we can refuse performance pursuant to Section 275 (2) and (3) of the German Civil Code (BGB), we shall be liable exclusively in accordance with the statutory provisions, subject to the liability limitations of Section 12 of these Terms and Conditions, which shall remain unaffected.
§ 7 Customer's duty to inform
The customer shall immediately remedy or have remedied any defects or malfunctions of components provided by us.
§ 8 Acceptance
Acceptance shall be deemed to have been granted if - the customer refuses to declare acceptance in breach of the above §8.1 or refuses to cooperate in a joint acceptance test despite being requested to do so in due time; or - the customer does not declare acceptance in writing without undue delay after a joint acceptance test has been carried out, although he has been requested to do so by us with a period of seven working days, unless the customer specifies in writing within this period the defects on the basis of which he refuses acceptance, in which case we shall again draw the customer's attention to the intended significance of his conduct at the beginning of the period.
In the case of self-contained partial services, we shall be entitled to partial acceptance.
Our service shall be deemed to have been performed as soon as the components are ready for installation and the work instruction has been carried out.
§ 9 Prices and payments
Unless otherwise agreed, we shall be entitled to reimbursement of expenses in addition to the agreed remuneration. We reserve the right to pass on any costs for accommodation, rental equipment, etc.
If remuneration is agreed on the basis of hourly or daily rates, our price lists current at the time of performance shall apply unless otherwise agreed in the individual case.
There shall be no price increase for services rendered within four months of the conclusion of the contract.
Our invoices are payable without discount and free of charges within 15 working days of the invoice date.
If checks are accepted on the basis of express agreements in individual cases, this shall only be on account of payment and also without discount.
Any discount charges shall be borne by the customer; we shall only recognize payments by check as fulfillment when the respective amounts have been credited to our account without reservation.
We reserve the right to demand reasonable down payments and advances.
If we are entitled to more than one claim against the customer, we shall determine to which debt the payment shall be credited.
The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us in writing.
The same shall apply to the assertion of rights of retention.
If, after conclusion of the contract, we become aware of circumstances according to which our claims against the customer appear to be endangered by the customer's lack of ability to pay, we shall be entitled to make outstanding deliveries only against advance payment or provision of security and to withdraw from the contract after fruitless expiry of a period set for this purpose; § 6 of these terms and conditions shall apply accordingly.
In the event of default in payment, the customer shall owe default interest at the statutory rate, unless we can prove higher damages to the customer.
§ 10 Transfer of risk
The risk of accidental loss or accidental deterioration of the delivery of parts shall also pass to the customer upon dispatch if we have assumed the shipping costs or other additional services or if a partial delivery is made.
Reference is made to § 6 of these terms and conditions.
§ 11 Claims for defects
The customer shall be obliged to inspect the service for obvious defects which are readily apparent to an average customer. Obvious defects, such as the absence of documentation material, as well as damage that is readily apparent, must be reported to us in writing within one week of receipt of the delivery. Defects which only become apparent later before expiry of the limitation periods for claims for defects must be notified to us in writing within one week of their discovery by the customer. In the event of a breach of the obligation to examine and give notice of defects by the customer, the object of performance shall be deemed to have been approved in view of the defect in question.
Claims for defects must be asserted by the customer in writing, naming all detected defects and stating the circumstances under which they became apparent.
If subsequent performance fails, is refused by us or is unreasonable for the customer, the customer shall be entitled exclusively to the other statutory claims for defects (rescission, reduction, self-execution, damages or reimbursement of futile expenses).
Claims for damages shall exist exclusively in accordance with § 12 of these Terms and Conditions.
§ 12 Liability and withdrawal
We shall be liable for damages exclusively in accordance with the following provisions:
On the merits, we are liable
' for intentional or grossly negligent acts
' for any culpable breach of essential contractual obligations.
Insofar as we are liable in cases of simple negligence, our liability to pay compensation shall be limited in amount to compensation for the foreseeable damage typical of the contract.
Insofar as we are liable in cases of simple negligence, however, the following shall apply in any case with reference to § 12:
For pecuniary loss, a maximum limit of €5,000 per claim; for property damage, a limit of €15,000 per claim applies in cases of simple negligence.
Liability for personal injury and product liability shall remain unaffected for liability regulations named in § 12.
Insofar as our liability for damages is excluded or limited in accordance with the above regulations, this shall also extend to the personal liability of our executive bodies, employees and other staff, representatives and vicarious agents and shall also apply to all claims for culpa in contrahendo, breach of ancillary obligations and claims arising from tort (§§ 823 et seq. BGB), but not for claims pursuant to §§ 1, 4 ProdHaftG.
The right of the customer to withdraw from the contract due to a breach of duty for which we are not responsible and which does not consist of a defect in a purchased item or a work is excluded.
§ 13 Limitation
Other contractual claims of the customer, if he is a businessman, due to breach of duty are subject to a limitation period of one year from the statutory commencement of the limitation period.
The statutory limitation periods in the following cases remain unaffected by the above provisions:
' for damages arising from injury to life, limb or health;
' for other damages based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents;
' for the customer's right to withdraw from the contract in the event of a breach of duty for which we are responsible and which does not consist of a defect in the purchased item or the work;
' for claims based on fraudulent concealment of a defect and from a guarantee of quality within the meaning of § 444 or § 639 of the German Civil Code;
' for claims for reimbursement of expenses pursuant to § 478 para. 2 BGB.
The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective goods.
§ 14 Force majeure
If a delivery/service is not possible due to force majeure, in particular due to a shortage of raw materials, energy and labor, labor disputes, serious transport disruptions, operational disruptions for which we are not responsible or which are unforeseeable, official measures for which we are not responsible or other events for which we are not responsible, we shall not be obliged to perform/deliver for as long as the impediment to performance persists.
If the obstacles according to § 14 last for more than 4 months, we have the right to withdraw from the contract if the fulfillment of the contract is no longer of interest to us as a result of the obstacle. At the Buyer's request, we shall declare after the expiry of the period whether we will withdraw from the contract or fulfill our performance obligations within a reasonable period of time.
§ 15 Place of performance, place of jurisdiction and applicable law
The exclusive place of jurisdiction for all claims against merchants and legal entities under public law arising from the business relationship shall be in accordance with § 15 para.1.
However, we shall also be entitled to sue the customer before any other court having jurisdiction by law. German law shall apply exclusively to all business and the entire legal relationship between the customer and us; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
§ 16 Prohibition of assignment, set-off and rights of retention
The assignment of claims to which the customer is entitled against us from the business relationship is excluded.
The customer is only authorized to offset and to assert §§ 273, 320 BGB (German Civil Code) if his counterclaims are either undisputed or legally established.
§ 17 Deterioration of the customer's assets
Facts that call into question the customer's ability to pay are, in particular, sustained seizures or other enforcement measures and the filing of an application to open insolvency proceedings.
§ 18 Final provisions
The invalid provisions shall be replaced by provisions that come as close as possible to the economic purpose of the contract, with due regard for the interests of both parties.
in technical services.
Zertifizierungen
- TISAX: ID: S313ZC
- ISO 9001
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