General Terms and Conditions

1. Terms of use

1.1. The subject of the following terms of delivery and payment are services and goods deliveries of the company ABACUSSPIELE Verlags GmbH & Co. KG, hereinafter referred to as ABACUSSPIELE.
1.2. The deliveries, services and offers of ABACUSSPIELE are made solely on the basis of these delivery and payment terms, no matter whether the order and/or the contract are placed in writing, by telephone or by email.

1.3. In placing an order, the customer accepts these terms of delivery and payment. These terms shall apply also to all future business relations, even if they are not expressly agreed upon again.

1.4. Deviating conditions stated on the customer’s order forms are not acknowledged, not even if the order and unconditional delivery are accepted; rather, they are hereby categorically opted out.

1.5. Deviations from these terms of delivery and payment shall be valid only if ABACUSSPIELE confirms these in writing to the user.

 

2. Offer, order placement, and conclusion of contract

2.1. All offers by ABACUSSPIELE are understood to be non-binding and subject to change.

2.2. Upon placing an order for a product, the customer makes a binding declaration of his intent to purchase the merchandise ordered. To be legally valid, all orders require confirmation by the customer in written or text form (e.g., telefax or email) or by telephone. Unless otherwise specified, the customer is bound to orders for 30 days. The same applies to additions, amendments or subsidiary agreements.

2.3. The customer’s order is deemed to be accepted if ABACUSSPIELE does not reject it within a period of three weeks from the date of the order.

2.4. A contract is concluded with the confirmation of the order in written or text form (e.g., telefax or email) or by telephone or with the delivery by ABACUSSPIELE.

2.5. Prices, measurements, weights, colours, delivery dates or other performance specifications are binding only if ABACUSSPIELE has expressly confirmed them in writing.

2.6. All oral secondary and auxiliary agreements – especially those made by telephone – need a written confirmation by ABACUSSPIELE in order to become valid.

2.7. Silence on the part of ABACUSSPIELE regarding subsequent changes and additions requested by the customer means refusal of said alterations, unless they are considered automatically with the service performance by ABACUSSPIELE.

2.8. ABACUSSPIELE becomes the contracting partner in a purchase agreement only if it is not expressly stated within the ordering process that no offers are appointed to a third party. Even if not expressly mentioned by ABACUSSPIELE, the conclusion of the contract is subject to the proviso that ABACUSSPIELE receives correct and timely deliveries from its suppliers. The customer will immediately be notified if a specific good or service is unavailable, and will be refunded payments already made.

 

3. Prices and terms of payment

3.1 Unless otherwise specified, the prices quoted are as from the ABACUSSPIELE warehouse, including normal packaging. Delivery and shipping costs accrue in addition and are shown separately within the scope of the concrete offer.

3.2. All prices are subject to change and do not apply to subsequent deliveries. The net prices stated by ABACUSSPIELE in the order confirmation, plus the legally applicable value-added tax on the date of delivery, are binding.

3.3. ABACUSSPIELE explicitly reserves the right to make price changes. Price and delivery agreements – even confirmed ones – can be reassessed in the case of an error or an alteration of the purchase or availability base. Contracts that have already been concluded are exempt from the provision of an adjustment or change of prices.

3.4. Upon the publication of new prices, all previous prices become invalid.

 

4. Delivery time, partial delivery, transfer of risk

4.1. The delivery periods and dates commence with the conclusion of the contract. They are generally non-binding, unless agreed upon otherwise in writing. Firm deals shall not be concluded.

4.2. ABACUSSPIELE is entitled at any time to execute complete or partial deliveries. Partial deliveries do not constitute a shortfall and can be charged by ABACUSSPIELE immediately.

4.3. Even in cases where binding delivery terms have been made, ABACUSSPIELE cannot be held liable for delays in delivery and performance due to force majeure or other events that are unforeseeable and that ABACUSSPIELE or its suppliers are not responsible for, which make the delivery service considerably more difficult or even impossible for ABACUSSPIELE (this particularly includes strikes, lockouts, official directives, etc., even if they occur at the suppliers of ABACUSSPIELE or their sub-suppliers). Such events give ABACUSSPIELE the right to extend the delivery time by the period of delay plus an appropriate lead time or, by reason of the part of the contract that has not been performed yet, completely or partially rescind the contract. The customer cannot claim any damages from this. Any advance payments that the customer might have made are to be refunded by ABACUSSPIELE. ABACUSSPIELE can claim the aforementioned circumstances only if the customer is notified without delay.

4.4. If the impediment lasts longer than 3 months and an appropriate extension period has been set in writing, the customer is then entitled to rescind the part of the contract that has not been fulfilled. If the delivery time is extended or ABACUSSPIELE is released from its obligation, the customer may not derive any compensation claims from this. Any advance payments that the customer might have made are to be refunded by ABACUSSPIELE. ABACUSSPIELE can claim the aforementioned circumstances only if the customer is notified without delay.

 

5. Shipping / Transfer of risk

5.1. Shipment is carried out from the warehouse of ABACUSSPIELE to the address given by the customer. Consequences of faulty or incomplete address data of the customer shall be borne by the customer.

5.2. ABACUSSPIELE is free of its obligation as soon as the delivery has been handed over to the company or person responsible for the transport or merchandise has left the warehouse for the purposes of shipment. Upon the delivery of the purchase to destination, or upon the delivery of the goods to the forwarding agent, the carrier, or any other person charged with the execution of the shipment, the risk of accidental loss or accidental deterioration of the goods shall pass on to the customer; this occurs namely when partial deliveries take place and/or ABACUSSPIELE has assumed additional services, such as transport costs or delivery.

5.3. ABACUSSPIELE determines the carrier under exclusion of liability for the choice of the cheapest and fastest method of shipment.

5.4. If the shipment becomes impossible without ABACUSSPIELE being at fault, the risk will be transferred to the customer upon notice of the readiness for shipment.

5.5. If the customer is in default of acceptance or if delivery is delayed for other reasons for which the customer is responsible, the risk shall pass to the customer upon receipt of the notification that the goods are ready for dispatch. In this case, the purchase price is due with the date of the notification of the readiness for delivery. The storage costs of ABACUSSPIELE or a third party shall be borne by the customer. The assertion of any claim for compensation above and beyond this against the customer remains unaffected.

 

6. Shipping costs

6.1. Shipping costs are generally to be borne by the customer and depend on the extent of the supply. Backlog merchandise and subsequent deliveries are shipped free of charge; shipments via freight forwarders are delivered free to the customer’s door. ABACUSSPIELE chooses the packaging to the best of its judgement. For deliveries to other countries, the actual shipping costs are billed to the customer.

6.2. ABACUSSPIELE will obtain transport insurance solely upon the special written instructions from, and for the account of, the customer.

 

7. Payments

7.1 If not agreed upon otherwise, particularly in the goods invoices, the customer has to pay the purchase price without deductions within 7 workdays after date of invoice.

7.2. After expiration of this deadline, the customer will be in default of payment. ABACUSSPIELE is entitled to rescind the contract or terminate it without notice if the customer defaults in his or her contractual or payment duties.

7.3. A warranty holdback is excluded. Payments are to be transferred to the bank accounts of ABACUSSPIELE indicated on the invoice, free of any charges and transaction fees.

7.4. Payment is not deemed to have been made until ABACUSSPIELE is able to finally access the equivalent value of the claims.

7.5. In case of payment by cheque, payment is not deemed to have been made until the cheque has been cleared. ABACUSSPIELE has no obligation for timely presentation of cheques.

7.6. Cheques are accepted only in fulfilment of the invoice, but in no case instead of fulfilment; costs for cash and discounts will be charged separately.

7.7. Notwithstanding any deviating stipulations on the part of the customer, ABACUSSPIELE is authorized to first offset payments against monies previously due by the customer; ABACUSSPIELE will inform the customer about the way of crediting used. If costs and interests have already accrued, ABACUSSPIELE is entitled to assign the payment first to the costs, then to the interest, and then to the principle debt.

7.8. If the customer is in arrears with payments, ABACUSSPIELE is authorized – from the relevant point in time – to charge interest at the level of the interest rate for open current account overdrafts as charged by commercial banks plus the statutory turnover tax and possible overdue fees. The interest rate shall be lower if the customer proves a lesser burden.

7.9. If any circumstances become known to ABACUSSPIELE that call the customer’s creditworthiness into question – especially if a cheque cannot be redeemed, payments have ceased, the customer is in full or partial default of payment for more than 8 days, or an application for the opening of insolvency concerning the assets of the customer has been made – ABACUSSPIELE is authorized to demand full payment of the outstanding debt even if ABACUSSPIELE has already accepted cheques. In this case, ABACUSSPIELE is also entitled to retain all deliveries and services and/or to demand advance payments or security and to assert all property rights.

7.10. In addition, ABACUSSPIELE has the right to demand 5% as delay interest above the legal base interest rate as compensation for delayed payment from consumers within the meaning of § 13 BGB (German Civil Code). The assertion of higher damages incurred by ABACUSSPIELE remains unaffected. In case of the assertion of a higher damage, the customer is entitled to provide proof that ABACUSSPIELE has suffered no damage or a lower damage.

7.11. In case of legal transactions that do not involve a consumer within the meaning of § 13 BGB (German Civil Code), ABACUSSPIELE also has the right to demand 8% as delay interest above the legal base interest rate as compensation for delayed payment. The assertion of higher damages incurred by ABACUSSPIELE remains unaffected. In case of the assertion of a higher damage, the customer is entitled to provide proof that ABACUSSPIELE has suffered no damage or a lower damage.

7.12. Even if claims or complaints have been put forward, the customer is entitled to offset or reduce payment only if the counterclaims have been made legally final and binding or are undisputed. The customer is entitled to retention only due to counterclaims from the same contractual relationship.

 

8. Reservation of proprietary rights and right of retention

8.1 Until fulfilment of all demands (including all demands relating to the current account balance) accruing to ABACUSSPIELE against the customer either now or in the future on any legal grounds, ABACUSSPIELE is granted the following securities that are released on request at the discretion of ABACUSSPIELE, as far as their value sustainably exceeds the claims by more than 20%:
– ABACUSSPIELE reserves the right to suspend the delivery completely or temporarily and to require the return of the goods at any time if the fulfilment of the payment claim is endangered or the contracting partner breaches one of his or her obligations.
– The goods remain the property of ABACUSSPIELE until the customer has paid in full. The customer is obliged to handle the goods with due care. As far as service and inspection work is required, the customer has to carry out such work at his or her own expense and in due time.
– Processing or reforming will always be carried out for ABACUSSPIELE. If the (co-)ownership of ABACUSSPIELE expires as a result of conjunction, the customer’s (co-)ownership of the standardized item will be transferred to ABACUSSPIELE according to the value (invoice values). The customer shall keep the (joint) property of ABACUSSPIELE free of charge. Goods for which ABACUSSPIELE is entitled to (co-)ownership will be referred to as reserved goods hereinafter.
– The customer is entitled to process and resell the reserved goods in the course of proper business transactions, as long as he or she is not in default.
– Pledges, assignments as security, leasing or the transport of the reserved goods to other countries are prohibited.
– By way of security, any claims that would result from a breach of these regulations or on other legal grounds (insurance claims, unauthorized action) with respect to the reserved goods (including all balance demands from the current account) are assigned to ABACUSSPIELE by the customer in advance to the full extent.

8.2. If the reserved goods are accessed by a third party, the customer has to point out that ABACUSSPIELE is the owner and to immediately inform ABACUSSPIELE in writing. If the third party is unable to reimburse the judicial and extra-judicial costs of a litigation action pursuant to § 771 ZPO (Code of Civil Procedure), the customer is liable for the loss resulting from this.

8.3. In case the customer breaches the contract (especially in the event of a delay in payment), ABACUSSPIELE has the right to take back the reserved goods or, if needed, demand the assignment of the customer’s claim for return against third parties. The withdrawal and the pledging of the reserved goods by ABACUSSPIELE do not constitute a rescinding of the contract.

8.4. In case the customer breaches the contract, ABACUSSPIELE has the right to collect the reserved goods and, for this purpose, to enter the premises where the reserved goods are stored or used, even without prior notification of the withdrawal or exercising the rights pursuant to § 326 BGB (German Civil Code). The customer waives the rights to which he or she would be entitled under the rules of unlawful interference with possession, and grants ABACUSSPIELE access to the premises where the reserved goods are kept.

8.5. ABACUSSPIELE reserves the right to withhold the delivery pursuant to current contracts until outstanding debts from former deliveries have been paid.

 

9. Place of performance, court of jurisdiction

9.1. The place of performance for all claims arising from the contractual relationship between the customer and ABACUSSPIELE is the place where the registered office of ABACUSSPIELE is located; this applies also to processes involving bills of exchange and cheques.

9.2. In the event that the customer is a merchant within the meaning of the HGB (German Commercial Code), the town of Langen shall be the sole court of jurisdiction; this applies also to processes involving bills of exchange and cheques.

 

10. Applicable law, written form, validity, miscella

10.1. The laws of the Federal Republic of Germany shall apply. The application of the uniform international sales law (UN Sales Convention) is excluded.

10.2. Changes and amendments to these terms and conditions require written form to be effective. This applies in particular to this clause.

10.3. Should one or more provisions be invalid, the effectiveness of the other provisions shall remain unaffected. An invalid clause has to be amended or replaced by a provision in a way that the replacement comes as close as possible to the purpose of the original provision.

(As of June 01, 2015)