Terms & Conditions
General Terms and Conditions of AP&S International GmbH, Donaueschingen
(1) Our Terms and Conditions of Sale and Delivery (hereinafter: GTC) shall apply exclusively. Terms and conditions of the customer deviating from our GTC shall not be valid.
(2) If the Purchaser is an entrepreneur, these Terms and Conditions shall apply for the entire duration of current and future business relations with the Purchaser, even if they are not expressly referred to in a subsequent transaction.
II. scope of contract
(1) Our written order confirmation shall be decisive for the scope of delivery; in the event of an offer on our part, this shall be decisive, however, in the event of a time commitment of our offer, this shall only apply if the offer is accepted within the time limit; if the time limit is exceeded, we shall no longer be bound by the offer.
The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding. We reserve the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
Subsidiary agreements and amendments must be made in writing.
III. price and payment
In the absence of a special agreement, the prices shall apply ex works (EXW ICC Incoterms 2020), including loading at the factory, but excluding packaging. Value added tax at the respective statutory rate shall be added to the prices. At the written request of the purchaser, we shall insure the consignment at the purchaser's expense against theft, breakage, transport, fire and water damage and other insurable risks.
In the absence of a special agreement, payment shall be made in cash, free to our payment office, strictly net within 30 days of the invoice date. In the event of default in payment, we shall be entitled to charge interest on arrears at the usual bank rate, unless we can prove a higher loss of interest or the customer can prove a lower loss of interest. Our right to charge interest on arrears in the amount of the
The right to claim the statutory default interest rate shall remain unaffected in any case.
The minimum order value is € 150,- net, plus VAT. For orders below this value we charge a minimum quantity surcharge of € 50,-.
4. offsetting on the basis of any counterclaims of the customer disputed by us, with the exception of legally established claims, is not permitted.
Our prices are based on the cost factors valid at the time of conclusion of the contract. In the event of significant material, wage or other cost increases occurring up to the time of delivery - but not within 4 months of conclusion of the contract - we reserve the right to adjust our prices accordingly.
(6) If, in individual cases, we accept bills of exchange or checks on the basis of an express agreement, this shall only be on account of payment. We do not assume any guarantee for timely presentation. In the case of payment by bill of exchange, the date on which the bill of exchange is honored shall be deemed to be the date of receipt of payment. All discount and ancillary charges shall be borne by the customer.
IV. Delivery time
(1) The delivery period shall commence upon receipt of the order confirmation by the Purchaser, but not before the Purchaser has fulfilled its contractual obligations, in particular the provision of any documents, approvals, releases to be procured by it and the receipt of any agreed advance payment.
The delivery period shall be deemed to have been met if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
The delivery period shall be extended appropriately in the event of force majeure, in particular in the event of measures within the scope of labor disputes, in this case again in the event of strike and lockout, as well as in the event of the occurrence of other unforeseen obstacles which are beyond our control, insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item. This shall also apply if these circumstances occur at our suppliers. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. We shall inform the customer immediately of the beginning and end of such hindrances.
If shipment is delayed for reasons for which the Purchaser is responsible, in particular due to an order of the Purchaser, the costs incurred for storage shall be charged to the Purchaser, starting one month after notification of readiness for shipment, but in the case of storage at the Supplier's works at least 1/2 per cent of the invoice amount for each month. However, we shall be entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable period of grace and to supply the Purchaser within a reasonably extended period of time.
V. Transfer of risk and acceptance
(1) The risk shall pass to the customer at the latest upon dispatch of the delivery parts, even if partial deliveries are made or we have assumed other services, e.g. the shipping costs or delivery and installation.
2. if the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for shipment; however, we shall be obligated, at the request and expense of the customer, to effect the insurances requested by the customer.
3. delivered items are to be accepted by the purchaser, even if they have significant defects, without prejudice to the rights under section VII.
Partial deliveries are permissible unless the partial delivery is objectively worthless for the customer.
VI. retention of title
(1) We reserve title to the delivery item until all of our claims - including claims under bills of exchange - against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all of our claims have been included in a current account and the balance has been struck and accepted. In the event that the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the delivery item. The taking back as well as the seizure of the object by us shall only constitute a withdrawal from the contract if we expressly declare this in writing, unless the regulations on consumer loan agreements apply. In the event of seizure or other interventions by third parties, the customer must notify us immediately in writing.
The customer shall be entitled to resell the delivery item in the ordinary course of business. However, he hereby assigns to us all claims accruing to him from the resale against the purchaser or against third parties, irrespective of whether the goods subject to retention of title are resold without or after processing. The customer shall be authorized to collect these claims even after the assignment. Our right to collect the claims ourselves shall remain unaffected; however, we undertake not to collect the claims as long as the customer duly meets his payment obligations. We may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment. If the delivery item is resold together with other goods not belonging to us, the customer's claim against the purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer.
3. the processing or transformation of reserved goods shall always be carried out by the customer on our behalf. If the reserved goods are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved goods to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods subject to retention of title.
We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 10%.
VII Liability for material defects
We are liable for defects as follows:
Our liability for material defects shall only extend to the defects existing at the time of the transfer of risk. No warranty shall be assumed for damage caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling (including modifications and maintenance), unsuitable operating materials, replacement materials, defective construction work, unsuitable foundation soil, chemical, electrochemical or electrical influences, unless they are attributable to a fault on our part. If and to the extent that the customer's complaints prove to be unjustified, in particular if there is damage for which we are not liable in accordance with the preceding sentence, the customer shall bear all costs incurred by us as a result.
2. if the purchaser is an entrepreneur, he must notify us of defects in writing in accordance with the following regulations, otherwise our performance shall be deemed to have been approved:
a. Obvious defects must be reported to us immediately upon delivery or, if installation or assembly by us, or if trial operation has been agreed, upon completion of installation, assembly or trial operation, but no later than within 6 months (in the case of multi-shift operation within 3 months),
b. defects that are not obvious must be reported to us immediately upon their discovery.
(3) In the event of a defect for which we are responsible, we shall be obligated to remedy the defect or to make a replacement delivery (hereinafter: subsequent performance) at our discretion, insofar as the provisions of the law governing contracts for work and services apply, insofar as the provisions of the law governing contracts of sale apply, at the discretion of the purchaser. We shall be entitled to refuse the type of subsequent performance chosen by the customer if it is only possible at disproportionate cost. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs. This shall not apply insofar as these costs are increased by the fact that the delivery item was taken to a place other than the place of performance; these shall be borne by the customer.
(4) If the remedy of the defect repeatedly fails, or if we are not prepared or not in a position to remedy the defect or deliver a replacement, or if this is delayed beyond a reasonable period, the customer shall be entitled to withdraw from the contract or to reduce the remuneration accordingly. If the provisions of the law on contracts for work and services apply, the Customer shall furthermore be entitled in urgent cases, in particular if its operational safety is at risk or if it is threatened with disproportionately large damage for other reasons, to remedy the defect itself or have it remedied by third parties (hereinafter: self-performance) and to demand reimbursement of its necessary expenses from us. The purchaser's obligation to inform us immediately of the planned self-performance shall remain unaffected.
5. claims for damages due to defectiveness are excluded insofar as
a. we have not assumed a guarantee for the quality of the item or there is a breach of material contractual obligations,
b. the damage is not due to at least gross negligence on the part of one of our employees or vicarious agents, or
c. the damage is not based on at least negligent injury to life, body or health. In the case of the aforementioned item a. and - insofar as the damage is based on the conduct of a vicarious agent - item b., our liability shall be limited to the amount of the typically foreseeable damage. Any liability under the Product Liability Act shall remain unaffected in any case.
(6) The limitation period for claims for defects of the Purchaser shall be two years if the provisions on the sale of consumer goods apply, otherwise one year from the statutory commencement of the limitation period.
VIII Liability for defects of title, in particular patents
Our liability for defects of title of the delivery item, in particular due to the infringement of copyrights, trademarks, patents or other industrial property rights, is excluded insofar as the delivery item is based on a design, in particular the design of the purchaser. In all other respects, Clause VII, Paragraph 5 shall apply mutatis mutandis to the exclusion or limitation of our liability. Insofar as liability exists under this provision, it shall consist in our obligation to indemnify the Purchaser against claims of third parties based on the infringement of copyrights, trademarks, patents or other industrial property rights. An additional prerequisite for this indemnification claim is that
a. the Purchaser enables us, within the legal framework, to exert the greatest possible influence on the dispute with the alleged owner of the asserted IPR, in particular in the context of a legal dispute with the latter (including our right to conclude a court settlement), and supports us in this dispute - to the extent reasonable -, in particular by promptly providing us with the information required in the context of this dispute and not accessible to us, in return for reimbursement by us of its necessary expenses,
b. that the alleged infringement of rights is based exclusively on the infringement of our contractual obligations, in particular on the construction of the delivery item, in particular not on a use of the delivery item not attributable to us, in particular on the connection or use in connection with other products.
2. we have the right to release ourselves from the obligations assumed in para.1 by either:
a. procure the necessary licenses with respect to the intellectual property rights allegedly infringed; or
b. provide the Purchaser with a modified delivery item or parts thereof which, in the event of replacement with the infringing delivery item or its part, eliminate the allegation of infringement with respect to the delivery item.
IX. Limitation of liability for other breaches of duty
Insofar as claims for damages due to impossibility of performance, positive breach of contract, culpa in contrahendo and tort are at issue, the provisions on the exclusion or limits of our liability pursuant to Section VII. para. 5. above shall apply accordingly.
X. Discontinuation / adjustment of the performance obligations
Without prejudice to the exclusion or limits of our liability pursuant to the foregoing clauses IV. Para. 4, VII. para. 5, VIII. Para. 1. sentence 2 and IX. above, we shall have the right to refuse performance pursuant to § 275 Para. 2 BGB (German Civil Code) due to so-called factual impossibility or the right to demand an adjustment of the contract or to withdraw from the contract due to a disturbance of the basis of the contract pursuant to § 313 BGB (German Civil Code), in particular in the case of circumstances which are not merely temporary pursuant to IV. Para. 3, to demand an adjustment of the contract or to withdraw from the contract.
XI. Choice of law and place of jurisdiction
All legal relations between us and the purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of the Vienna UN Convention on Contracts for the International Sale of Goods of 11.04.1980. The local and international place of jurisdiction for all disputes arising from the contractual relationship, including bill of exchange and check litigation, shall be our headquarters or the headquarters of our branch office responsible for the delivery. We are also entitled to take legal action at the headquarters of the customer.