General terms and conditions
1. General information
1.1. The following general terms and conditions apply to any contracts placed with us (Abele Ingenieure GmbH) – even if the client reserves his own terms and conditions. If the contract is confirmed by the client on conditions deviating from our general terms and conditions, only our general terms and conditions will apply, even if we do not expressly object. Any deviations from our general terms and conditions are only valid if we accept them expressly and in writing.
1.2. These general terms and conditions will also apply to any future business between the contractual parties without a renewed notification of our general terms and conditions.
1.3. Supplementary agreements and amendments to the contract as well as modifications and additions to these general terms and conditions must be made in writing, unless both parties agree to a verbal agreement and expressly waiver the written form by verbal agreement.
2. The contract
2.1. We distinguish between a so-called project planning contract and an implementation contract. A project planning contract serves to answer the basic question of the project’s viability within specified parameters (e.g. size, transport, revolution speed, motion sequences, financial feasibility). The implementation contract refers to the complete construction planning of the respective project including the necessary documentation, apart from structural calculations.
2.2. For a project planning contract, the client must request a quote for the desired project verbally or in writing. In our quote we will define the scope of the contract and the price for this scope either in the form of a fixed price or at cost, based on an hourly rate. When the client accepts the quote verbally or in writing, the contract is formally concluded. If the quote is accepted verbally, we will provide a written confirmation to the client.
2.3. The implementation contract is usually based on the project planning contract. The contract is concluded when we have confirmed the written order of the client. The contractual object and scope are defined in the order confirmation or in an enclosed contract specification. If the client requests that changes be made to the agreed contractual object or scope, these changes must be advised immediately and will be confirmed by us in writing unless agreed otherwise. Any additional work required due to these changes will need to be compensated for by the client at cost, based on an hourly rate, even in the case of a fixed price.
3. Cooperation duties and client obligations
3.1. The client is obliged to provide the relevant data for the construction at every phase of the project (e.g. size, revolution speed, transport-related restrictions etc.). This also applies to requested changes.
3.2. Contracts for structural calculations will be awarded by the client.
3.3. The client is obliged to produce all official permits required for the construction and implementation in due time. Any delays will be entirely at the expense of the client – whether due to permits not being produced in time or complications or non-feasibility due to permits not having been granted.
3.4. The client is obliged to produce the TÜV approval and TÜV licence. This also applies if the project is to be taken abroad.
3.5. Assembly, maintenance and repair provisions must be strictly adhered to at all times. In the case of a re-sale, the client is obliged to pass on all provisions in their entirety to the buyer and to oblige the buyer to comply with the present contractual relationship.
3.6. If the client violates any cooperation duties or obligations, we reserve the right to assert claims for damages.
4. Compensation
4.1. The fees provided in our quotes define fixed prices in the context of an agreed completion date, unless compensation at cost has been explicitly agreed upon. In such a case, compensation will follow the hourly rate defined in the quote.
4.2. All prices quoted are in euros plus applicable value added tax.
4.3. Payments must be made in monthly instalments according to the progress made. The instalments are calculated as a ratio of the time and the fixed price.
5. Payments
5.1. All payments must be made within 30 days of the invoice date without a discount unless a different payment term is laid down in the invoice. If the payment is received within 14 days of the invoice date and/or if the client has provided us with a direct-debit mandate, we grant a 2% discount on the agreed net invoice amount.
5.2. If the client is an entrepreneur (in the sense of the German Commercial Code) and the payment term as outlined in section 5.1. is exceeded, he is considered in default of payment, even without being sent an explicit reminder. If these conditions are not present, a reminder is needed.
5.3. If a default of payment occurs, we are entitled to charge interest based on the respective standard overdraft facility rates used by banks, yet at least 5% interest above the respective base interest rate according to §247 BGB (German Civil Code).
5.4. If the client is an entrepreneur (in the sense of the German Commercial Code) a right of offsetting or retention can only be applied to receivables which are uncontested or legally binding.
6. Impossibility of fulfilment and delay
6.1. If delivery deadlines agreed upon with the client cannot be complied with in part or in total, we are entitled to demand a suitable extension. Force majeure, natural disasters, strikes, lockouts, third-party attacks on the established and operating business as well as authority measures release us from our obligation to deliver for the duration of the disturbance and for the scope of the disturbance’s effect. In the case of force majeure, natural disasters, attacks on the established and operating business and authority measures rendering the fulfilment of service provision impossible, we are entitled to withdraw from the contract in part or in full.
6.2. We are also entitled to withdraw from the contract if maintaining the contract is unreasonable for reasons lying within the client’s scope of responsibility, such as in cases in which we are dependent on data material which the client is obliged to provide (see section 3.1.). This also applies to cases of a positive breach of contract.
6.3. The client’s right to assert claims of damage in the case of a service delay or because the delivery of the service for which we are responsible is rendered impossible or if a positive breach of contract occurs on our part, is limited to the following cases:
a) minor negligent breach of material contractual duties
b) grossly negligent breach of contractual duties
c) intentional breach of contractual duties
In cases a) and b) our liability is also limited to the scope of the business liability insurance. The sum insured is 5 million euros for personal injury and material damage. This does not apply if the insurer can plead exemption from the liability to indemnify.
7. Warranty
7.1. We guarantee that our construction planning, including documentation, complies with state-of-the-art science and technology and that no material defects exist, according to § 633 section 2 BGB (German Civil Code).
7.2. In the case of a justified notification of defect with a reasonable deadline for rectification, we will rework the construction and revise the documentation accordingly. If the rectification fails twice within a reasonable rectification period, the client can choose to either demand the reduction of the compensation or cancel the contract. The client’s right to apply measures of his own is excluded according to 637 BGB (German Civil Code).
7.3. The client is obliged to notify us of any defects within 14 days, and in writing. In all other aspects legal warranty regulations apply.
8. Liability
8.1. If the client is an entrepreneur (in the sense of the German Commercial Code), and no matter the legal basis, we are liable for damages only:
a) if the assured quality is absent or in the case of intent
b) in the case of gross negligence. This does not apply in the case of slight negligence of ordinary vicarious agents regarding duties non-essential to the fulfilment of the contract.
c) in the case of slight negligence regarding the violation of essential duties, should the contractual purpose thereby be jeopardized. This also applies to indirect and/or consequential losses. However, we are not liable for damages which were/are unforeseeable or damages which lie in the client’s sphere of responsibility or risk (e.g. damages arising from the non-adherence to assembly, maintenance and repair provisions).
8.2. If our client is not an entrepreneur (in the sense of the German Commercial Code),
a) we assume full liability for damages arising from intentional or gross negligent breaches of contract made by ourselves, a legal representative of ours or a vicarious agent of ours and if the assured quality is absent.
b) we assume liability for breaches of contract caused by simple negligence, yet only if the breach relates to a duty essential to the fulfilment of the contract.
8.3. The liability amount for sections 8.1. a) and b) and 8.2. b) is limited to the scope of the business liability insurance. The sum insured is 5 million euros for personal injury and material damage. This does not apply if the insurer can plead exemption from the liability to indemnify.
8.4. The client is obliged to notify us in writing of any special risks, atypical damage possibilities and unusual amounts of damage prior to the contract conclusion. Beyond this, liability for any consequential damages, lack of economic success, indirect damage or damage from third-party claims is excluded.
8.5. Liability according to the German Product Liability Act remains unaffected.
8.6. The right to object on grounds of contributory negligence remains.
9. Liquidated damages
9.1. If the client cancels the contract before the service provision has begun, we are entitled to 5% of the overall contract sum as damages. The client retains the express right to provide proof of lower damage costs.
10. Place of fulfilment, applicable law and place of jurisdiction
10.1. The place of jurisdiction is Augsburg.
10.2. German law is applied.
10.3. The place of jurisdiction is also Augsburg if the client is an entrepreneur, a legal entity under public law or a special fund under public law.
11. Severability clause
11.1. Should individual provisions in these general terms and conditions prove to be legally void in whole or in part, the validity of all other provisions remains unaffected.
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