General terms and conditions abat AG
§ 1 Scope and service provision
- abat AG, An der Reeperbahn 10, 28217 Bremen ("we") shall be subject to these General Terms and Conditions ("Terms and Conditions") for deliveries and services. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions, unless we have expressly agreed to their validity. Our terms and conditions shall also apply if we carry out the delivery without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our terms and conditions.
- Our terms and conditions shall also apply to all future contracts with the customer within the framework of the existing business relationship.
§ 2 Conclusion and execution of the contract
- Our offers are subject to change and may be revoked by us at any time until written declaration of acceptance by the customer, unless we have expressly designated the offer as binding.
- unless expressly agreed otherwise, the object of delivery or service shall only have the characteristics expressly stipulated in the contract; these shall only constitute warranties if we expressly declare that we wish to assume liability for them irrespective of fault or if they are expressly designated as such by us; warranty declarations must be made in writing to be effective.
- brochures, promotional literature or information on the respective homepage issued by us or the manufacturer of products (including software) shall only form part of the agreed quality of our delivery item if we have expressly agreed this with the customer.
- Unless expressly agreed otherwise with the Customer, the following services shall not be included in our scope of performance:
- the procurement or provision of third-party software including licenses to standard software from third-party manufacturers and
- further and new developments including patches, updates and upgrades of third-party software, software developed by us or interfaces developed by us.
- we may use subcontractors for the performance of services, unless otherwise agreed.
§ 3 Duty of the customer to cooperate
- The customer shall assume as an essential contractual obligation to ensure that all necessary cooperation and provision services are rendered in the necessary quality and on the agreed dates or dates required for the realization of the project without additional costs for us. Insofar as this is necessary for the success of the service, he shall in particular provide his own personnel to a sufficient extent as well as competent contact persons for the entire duration of the project. The customer undertakes in particular to provide The customer undertakes as an essential contractual obligation to ensure that all necessary cooperation and provision services are provided in the necessary quality and by the agreed deadlines or deadlines required for the realization of the project without additional costs for us. Insofar as this is necessary for the success of the service, he shall in particular provide his own personnel to a sufficient extent as well as competent contact persons for the entire duration of the project. In particular, the customer undertakes to provide computer performance, infrastructure and the necessary software systems, unless otherwise contractually agreed.
- If information or documents provided by the client prove to be incorrect, incomplete, ambiguous or objectively not feasible, the client shall make the necessary corrections and/or additions immediately after being notified by us. Defects or malfunctions of components provided by us shall be remedied by the Customer without delay or shall be remedied by third parties.
- If the customer fails to cooperate as required, we shall be entitled to terminate the contract without notice following the unsuccessful expiry of a reasonable period of grace set by us. Irrespective of the assertion of this right of termination, we shall be entitled to compensation for the damage or additional expenses incurred as a result of the failure to cooperate.
§ 4 Rights of use
- In the case of the delivery of results developed within the scope of a customer order (for example interfaces, software, concepts, representations or similar), we grant the customer a simple, i.e. non-exclusive right of use to the results - unless otherwise expressly regulated in the contract. The form of the right of use shall be determined by the specific agreement in each case.
- 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, also for other customers.
§ 5 Free and Open Source Software
We reserve the right to use and implement Free and Open Source Software (FOSS) in our delivery items, for which special license conditions may apply. In this respect, we do not owe the customer that the delivery items are free of third-party rights. We shall inform the customer about the use of FOSS to the extent required by the applicable FOSS license terms.
§ 6 Deadlines and dates
- A schedule as well as milestones in a project serve as orientation in the project's schedule. Deadlines shall only be binding if they are expressly agreed as binding deadlines; this agreement must be in writing to be effective. Insofar as no binding deadlines and dates have been agreed with us, we shall only be in default if the client 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 and, if applicable, from the receipt of an agreed down payment. Subsequent requests for changes or delayed cooperation on the part of the customer shall extend the delivery times appropriately.
- If the delivery 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, epidemics or pandemics), we shall be entitled to withdraw from the contract in whole or in part or, at our discretion, to postpone the delivery for the duration of the hindrance. The customer shall be informed immediately of the non-availability of the services. Claims for damages by the client are excluded.
- If the customer fails to meet his obligations to cooperate, cooperate or provide in whole or in part, the performance dates affected by this shall lose their binding force, and in particular we shall not be in default. After unsuccessful reminder, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery item shall also pass to the customer at the point in time at which the customer is in default of acceptance. If the customer does not fulfill his cooperation, collaboration or provision obligations even within a reasonable grace period 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 § 649 BGB (German Civil Code); 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.
§ 7 Changes in performance
- Changes in performance shall only become part of the contract if they are accepted by us in writing. Insofar as a change request affects in particular the contractually agreed remuneration or deadlines, we may demand an appropriate adjustment of the contractual terms, in particular an increase in remuneration or the postponement of deadlines.
- At our request, the client shall detail his request for change to the extent that the task is detailed in the contract. At the request of the client, we will support the client in the detailing of the change request against remuneration.
§ 8 Acceptance
- Our services are generally services (§§ 611 ff. BGB). Insofar as our services or parts of our services nevertheless require acceptance on the basis of the statutory provisions, the customer shall be obliged to do so. Minor defects which do not seriously impair the suitability of the delivery for the contractually agreed purpose do not entitle the client to refuse acceptance, without prejudice to his right to assert statutory claims for defects.
- Acceptance shall be deemed to have been granted if
- the Customer refuses to declare acceptance in violation of paragraph 1 above or refuses to cooperate in a joint acceptance test despite a timely request to do so; or
- the Principal fails to declare acceptance in writing without undue delay after a joint acceptance test has been carried out, despite being requested to do so by us with a period of seven working days, unless the Principal specifies in writing within this period the defects on the basis of which he refuses acceptance, in which case we shall again draw the Principal'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.
§ 9 Remuneration / Terms of payment
- Unless otherwise agreed, we are entitled to reimbursement of necessary expenses in addition to the fee. The fee for our services is calculated according to the time spent on the activity (time-based fee) or agreed in writing as a fixed price.
- In the case of invoicing according to daily or hourly rates, hours of work that have already begun will be invoiced in full.
- All claims are due upon invoicing and are payable within 14 days after receipt of invoice without deductions. The statutory value added tax shall be added to all price quotations and shown separately in the invoices.
- The client may only offset or assert a right of retention or right to refuse performance if his counterclaim has been legally established or is undisputed. Offsetting or assertion of a right of retention or right to refuse performance on the basis of a counterclaim for compensation of costs of rectification of defects or additional costs of completion arising from the same legal relationship shall always be possible, notwithstanding sentence 1.
- If it becomes apparent that our payment claim is at risk due to the customer's inability to pay, we shall be entitled to demand immediate payment of all claims arising from the business relationship with the customer that are not yet due and to demand advance payment from the customer. A threat to the payment claim shall be deemed to exist in particular if information from a bank or credit agency suggests that the Customer is not creditworthy or if the Customer is in arrears with at least two invoices.
- Details of the method of payment shall be regulated in the contract.
§ 10 Claims for defects
- Since our services are generally services (§§ 611 ff. BGB), the client shall not be entitled to any warranty rights for defects. Should statutory warranty law nevertheless apply in individual cases and we have provided a defective delivery or service, the Client shall give us the opportunity to provide subsequent performance within a reasonable period of time, unless subsequent performance is unreasonable for the Client in the individual case or special circumstances exist that justify immediate withdrawal after weighing the interests of both parties. In any case, we shall have the right to choose between removal of the defect or delivery of a defect-free item.
- The customer is obligated to inspect the delivery item for obvious defects that are readily apparent to an average customer. Obvious defects, such as the absence of components or documentation material, must be notified to us in writing within one week of receipt of the delivery. Defects which only become apparent later before the 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 inspect and give notice of defects by the customer, the delivery item 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. A defect shall not be deemed to exist if a defect claimed by the Customer cannot be reproduced. If the Customer has interfered with delivered components, hardware or software, claims for defects on the part of the Customer shall only exist if the Customer proves that its interference was not the cause of the defect.
- If it turns out that a defect claimed by the Customer does not exist, in particular if a claimed defect cannot be reproduced, we shall be entitled to demand reasonable compensation for our expenses, unless the Customer is only guilty of slight negligence.
- 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 Section 11 of these Terms and Conditions.
- If the defect is only an insignificant deviation from an agreed quality, the customer shall, at our discretion, only be entitled to subsequent performance or to a reasonable reduction in price. If no quality has been agreed, the same shall apply in the event of an only insignificant deviation from the suitability for the otherwise customary use assumed under the contract, which is customary for services of the same type and which the customer can expect in view of the type of service.
- A defect shall not exist if third-party software is defective or subsequently changes due to further developments (including patches, updates or upgrades) and our performance results (e.g. interfaces) do not have the agreed or presumed quality for this reason.
§ 11 Liability of abat AG for damages
We shall be liable for damages exclusively in accordance with the following provisions:
- We are liable on the merits for
- intentional or grossly negligent acts,
- for any culpable breach of essential contractual obligations.
- Insofar as we are liable in cases of simple negligence, the amount of our obligation to pay compensation shall be limited to compensation for the foreseeable damage typical of the contract, up to a maximum of three million euros. Otherwise, liability for property damage and financial loss is excluded. Liability for personal injury and liability under the Product Liability Act shall remain unaffected by the above liability provisions.
- We shall only be liable for the recovery of data if the client has ensured that lost data can be recovered with reasonable effort. The client is therefore obliged to regularly back up data and programs at intervals appropriate to the application.
- Insofar as our liability for damages is excluded or limited in accordance with the above provisions, 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 based on culpa in contrahendo, breach of ancillary obligations and claims in tort (in particular §§ 823 et seq. BGB (German Civil Code) including any recourse claims pursuant to § 840 BGB, § 5 ProdHaftG in conjunction with § 426 BGB). § 426 BGB), but not for claims pursuant to §§ 1, 4 ProdHaftG.
§ 12 Limitation
- The Customer's claims for defects shall become statute-barred after one year from the statutory commencement of the limitation period. Insofar as the law on contracts for work and services applies in accordance with the statutory provisions, the one-year limitation period shall commence upon acceptance. Excluded from this are claims according to §§ 438 para. 1 no. 1, 2; 634a para. 1 no. 2 BGB.
- Other contractual claims of the client, insofar as the client is an entrepreneur, due to breaches of duty shall become statute-barred after one year from the statutory commencement of the limitation period.
- The above provisions shall not affect the statutory limitation periods in the following cases:
- for damages resulting from injury to life, body or healthfor other damages based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents;
- for the right of the customer 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 due to fraudulent concealment of a defect and from a quality guarantee within the meaning of § 444 or § 639 BGB;
- for claims for reimbursement of expenses pursuant to Section 478 (2) BGB.
§ 13 Retention of title
- Until full payment of all claims arising from the respective contract, including all ancillary contracts, deliveries in kind shall remain our property. The inclusion of individual claims in a current invoice as well as the striking of a balance shall not affect the reservation of title; in this case, the reservation shall refer to the acknowledged or actual balance. Payment shall only be deemed to have been made when the equivalent amount has been received in our bank account. The retention of title shall not be revived for delivery items if, after the customer has acquired ownership of these delivery items, new claims arise from the business relationship with him.
- The customer shall keep the goods in safe custody for us with due commercial care and shall insure them adequately against fire, water, theft and other liability risks at his own expense. The customer assigns his claims from the insurance contracts to us; we accept the assignment.
- In the event of seizure or other interventions by third parties, the customer shall notify us immediately in writing.
- The customer shall bear all pre-trial and court costs that have to be incurred to lift an attachment or other seizure of the reserved goods by a third party and to recover them, insofar as they cannot be collected from the third party.
§ 14 Documents provided
Only the client shall be liable for the legality of the use of documents handed over to us by the client. We are not obliged to check the legality of the use. In the event that third parties assert claims for injunctive relief or damages against us due to the use of such documents, the customer shall indemnify us against all claims of third parties.
§ 15 Privacy
We process personal data in accordance with the relevant data protection provisions, in particular the provisions of the EU General Data Protection Regulation (GDPR). Insofar as we process personal data on behalf of the client, we conclude order processing agreements in accordance with Article 28 DSGVO if necessary.
§ 16 Fiduciary duty
The parties undertake to be loyal to each other. In particular, the parties shall refrain from hiring or otherwise employing employees or former employees who are or were active within the scope of the execution of the order before the expiration of twelve months after the termination of the cooperation.
§ 17 Reference naming
We are entitled to publicly name the business relationship with the client as a reference and to display client logos for these purposes (e.g. on our website).
§ 18 Right of retention
Until our claims have been settled in full, we shall have a right of retention to the documents provided to us, the exercise of which, however, shall be contrary to good faith if the retention would cause the customer disproportionately high damage that cannot be justified when both interests are weighed up.
§ 19 Right of withdrawal
We may withdraw from the contract if we are not supplied correctly or on time by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction has been concluded with our supplier. We shall inform the customer immediately of the non-availability of the goods and immediately refund any consideration already received.
§ 20 Export / re-export regulations
- The sale, delivery, transfer, licensing and installation of hardware and software, including the services and contractual work of abat AG are considered high technology and are therefore generally subject to the regulations of the Foreign Trade and Payments Act of the Federal Republic of Germany as well as other comparable regulations of the country of origin U.S.A. and other countries of origin.
- The customer assures that he will observe these regulations on his own responsibility. This also applies to all products that are directly manufactured on the basis of the above-mentioned services of abat AG. abat AG is entitled to refuse the fulfillment of the services if the above-mentioned regulations are thereby violated.
§ 21 Jurisdiction, applicable law and miscellaneous
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be our registered office. The same shall apply if the client does not have a general place of jurisdiction in Germany or relocates his place of residence or habitual abode abroad after conclusion of the contract or if his place of residence or habitual abode is unknown at the time the action is brought.
- The law of the Federal Republic of Germany shall apply.
- Should individual provisions of the contract be or become invalid or void, this shall not affect the validity of the remainder of the contract. The invalid or void provision shall be deemed to be replaced by such provision which comes closest to the economic sense and purpose of the invalid or void provision in a legally effective manner. The above provision shall apply mutatis mutandis in the event of loopholes.
- None of our actions, except for an expressly written waiver, shall constitute a waiver of any right to which we are entitled under the contract, these Terms and Conditions or the law. Any delay in exercising the rights shall also not be deemed a waiver of the right concerned. A one-time waiver of a right shall not be deemed a waiver of that right on any other occasion.