The following terms of delivery and payment shall apply exclusively to business transactions with us:
Conclusion of contract
Our offers are subject to change. All delivery contracts and other agreements shall only become valid upon our written confirmation. The content of the confirmation is exclusively authoritative. Verbal subsidiary agreements do not bind us. Amendments or supplements to the agreements made, including these terms and conditions of delivery and payment, which are made before or at the time of conclusion of the contract, require our written confirmation to become effective. All agreements and offers are exclusively based on these terms of delivery and payment; they are deemed to be accepted by placing the order or accepting the delivery. Deviating terms and conditions of the customer which we do not expressly acknowledge shall not be binding on us, even if we do not object to them in individual cases. We expressly reserve the right to make customary changes to all items offered by us. This also applies if the information in our price lists, brochures etc. is deviated from. Such changes neither entitle the buyer to withdraw from the purchase contract nor to demand a price reduction or compensation. We reserve the right of ownership and copyright to cost estimates, drawings, drafts and other documents. They may only be made accessible to third parties with our consent. Drawings and other documents in connection with offers must be returned on request. Equipment, e.g. tools and moulds, made by us or under our direction for the manufacture of goods shall remain our exclusive property in view of our design services. In the case of items manufactured according to the customer's specifications, the customer shall guarantee that the industrial property rights of third parties are not infringed. If we are prohibited from manufacturing and supplying such objects by asserting such industrial property rights, we shall be entitled, without being obliged to examine the legal situation, to cease any further activity in this respect and to demand compensation for the damage incurred. The customer shall immediately indemnify us against all claims of third parties in connection therewith. Our office and field staff are not entitled to deviate from or supplement the contents of the order confirmation and these terms and conditions by promises made before, during or after conclusion of the contract. This does not apply to promises made by our executive bodies and authorised signatories.
Delivery, delivery time
Delivery periods and delivery dates are always approximate. They refer to the time of dispatch and are complied with upon notification of readiness for dispatch. Delivery periods shall not commence until agreement has been reached on all details of the order, including the technical design of the delivery item. If the customer requests a change after the order has been confirmed and if this request is accepted by us, the delivery period shall not commence until the change has been confirmed. If a down payment has been agreed, the delivery period shall not commence until the down payment has been made. Cases of force majeure and other events over which we have no control and which make delivery considerably more difficult or impossible for us, e.g. operational or traffic disruptions, difficulties in the procurement of raw materials or energy, industrial disputes, official measures, armed conflicts, delays in or in connection with transport as well as non-delivery, incorrect delivery or late delivery by our suppliers, irrespective of the reason, shall release us from our obligations under the delivery contract. Obstacles of a temporary nature, however, only for the duration of the obstruction plus a reasonable start-up period. If the customer cannot reasonably be expected to accept deliveries as a result of the delay, he can withdraw from the delivery contract by immediately declaring this to us. If we are in default of delivery or if it becomes impossible for us to deliver, irrespective of the reason, the customer shall not be entitled to any claims for damages whatsoever (in particular under Sections 325, 326 of the German Civil Code (BGB)) unless we have caused the default or the impossibility through gross negligence (i.e. at least gross negligence).
Our prices apply to the scope of services and deliveries listed in our order confirmations. Additional and special services will be charged separately. Our prices are quoted in EURO. The prices are ex works plus value added tax. Incidental costs, such as expenses for packaging, dispatch, transport, shall be borne by the customer. If, after conclusion of the delivery contract, extraordinary, substantial increases in the costs of raw materials, energy or freight occur at our premises or those of our suppliers, and if these lead to a substantial increase in our purchase prices and cost prices, we shall be entitled to demand negotiations on a price adjustment from the buyer without delay. If no agreement is reached thereafter, both parties shall be released from the delivery or acceptance obligation for the part of the delivery contract not yet executed by delivery. Unless otherwise agreed, our invoiced amounts are due for payment within 30 days of the invoice date. Cheques shall only be deemed payable after they have been cashed. Minimum order quantity is a goods value of 30.00 euros.
If the customer is in default of payment, he shall pay interest on our claim during the default at 8% above the respective base interest rate as defined by the Discount Rate Transition Act. We reserve the right to claim further damage caused by default. The customer reserves the right to prove a lesser damage caused by default. If, after conclusion of the contract, circumstances become known which are likely to reduce the creditworthiness of the customer, we shall be entitled to carry out pending deliveries from this business or from other business only against advance payment or provision of security and, if advance payment or provision of security is not made after a reasonable period of grace, to withdraw from the contract or to demand damages for non-performance. The customer reserves the right to prove that the damage caused by the delay is lower.
Transfer of risk and shipment
All risks shall pass to the customer in all cases - e.g. also in the case of FOB and CIF transactions - when the goods are handed over to the forwarder or carrier (start of the loading process), but at the latest when they leave our works. If the shipment is delayed for reasons attributable to the customer, the transfer of risk shall take place upon notification of readiness for shipment. Storage costs after the transfer of risk shall be borne by the buyer. Mode of dispatch and packaging are at our discretion. The packaging will be charged at cost price and will not be taken back. The consignment shall only be insured against transport damage and other risks at the express request and expense of the customer.
Retention of title
The delivered goods remain our property until they have been paid for in full. In the case of a current account, the reserved property shall be deemed security for our balance claim. Our rights arising from the retention of title and the following special forms shall apply until complete release from contingent liabilities which we have entered into in the interest of the customer. The following extensions apply to the retention of title:
The processing or transformation of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 of the German Civil Code (BGB) without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of this provision. In the event of processing or transformation with other items not belonging to us by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the sum of the invoice values of the other items used. The new item shall be stored for us free of charge.
Prohibition of assignment/factoring
An assignment of the buyer's claims against his customers from the resale of goods of the buyer delivered under extended reservation of title is excluded, in particular within the scope of genuine factoring. If the goods subject to retention of title are mixed or combined with other items and if our ownership of the goods subject to retention of title expires as a result, the ownership or co-ownership rights of the purchaser in the mixed stock or the uniform item shall pass to us in the ratio of the invoice value of our goods subject to retention of title to the sum of the invoice values of the other mixed or combined items. The customer shall store them for us free of charge. The purchaser's claim from a resale of the reserved goods is already now assigned to us as security for our claims. If our goods subject to retention of title are sold together with goods subject to retention of title of third parties, the claim to which the customer is entitled from the resale of the goods subject to retention of title shall be deemed to have been assigned to us in the amount of a partial sum, measured according to the invoice value for our goods subject to retention of title plus 10 %. If the reserved goods are used by the customer to fulfil a contract for work and services or a contract for work and materials, the claim arising from the contract for work and services or the contract for work and materials shall be deemed assigned to us to the same extent. In the event of installation in a third-party property, the purchaser's claim against a third party for the registration of a security mortgage in the amount of our claim shall also pass to us. The customer is generally authorised to collect the claim from a disposal of the reserved goods. Our right of collection shall remain unaffected. We shall not collect the claim as long as the customer fulfils his payment obligations. At our request, the customer shall inform us of the debtors of the assigned claims and notify the debtors of the assignment, without prejudice to our own right of notification. If the value of the securities existing for us exceeds our claims by more than 20 % in total, we are obliged to release securities of our choice to this extent at the request of the ordering party. The customer must inform us immediately of any seizure of the goods subject to retention of title or any other impairment of our rights by third parties and inform the third parties of our rights. The pledging or transfer by way of security of our reserved goods is not permitted.
The delivered goods, even if samples have been sent, must be carefully inspected immediately after arrival at the customer's premises. They shall be deemed to have been approved if we have not received a written notification of defects within 10 working days of receipt of the goods. Notices of defects without exact designation of the lot number and the identification details of the respective affected items of a lot shall be invalid. In the event of defects or the absence of a warranted quality of the delivered goods, we shall be obliged, at our discretion, to rescind the contract, reduce the purchase price, rectify the defect or deliver a replacement; if the rectification or replacement fails, the customer may, at his discretion, demand rescission of the contract or a reduction in the purchase price to the exclusion of all other claims, irrespective of their nature and irrespective of their legal basis. All other claims to which the customer may be entitled on account of or in connection with defects or the absence of warranted characteristics of the delivered goods, irrespective of the legal grounds, in particular claims for damages due to non-fulfilment, claims arising from positive breach of contract, claims arising from culpa in contrahendo and claims arising from tort (namely product liability) are excluded; this does not apply to claims for compensation for damages which may be based on gross negligence (i.e. intent or gross negligence) on our part.
Other claims for damages
Also outside the area of warranty as well as liability due to impossibility or delay, any liability on our part for damages, irrespective of the legal grounds, in particular also due to the breach of duties during contract negotiations, due to positive breach of contract and due to tort (above all product liability) is excluded, unless gross negligence (i.e. at least gross negligence) is present on our part.
Items in mint condition may only be returned with our consent and always free of freight and packaging charges. As a contribution to the costs of preparing the goods for storage, etc., 40%, but at least 30.00 euros, will be deducted from the credit note. The credit note can only be offset against goods.
The place of jurisdiction for all disputes arising from any transaction between us and the customer to which these terms and conditions of delivery and payment apply shall be, at our discretion, the place of our registered office or the registered office of the customer. For legal actions against us, the place of our registered office shall be the exclusive place of jurisdiction. The relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany. The Uniform Laws on the International Sale of Goods and on the Formation of Contracts for the International Sale of Goods of 17.07.1973 shall not apply. If individual provisions of these Terms and Conditions of Delivery and Payment are or become invalid, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, the corresponding provision of dispositive law shall apply. If the customer is not a merchant and also not a legal entity under public law and not a special fund under public law, or is approximately a merchant but the transaction does not belong to the operation of its commercial business, only the provisions in the section Retention of Title of these Terms and Conditions of Delivery and Payment shall apply.
(Excerpt from the Data Protection Act) in accordance with § 26 BDSG, we inform you that we use an EDP system for our bookkeeping and in this context also store your company's data. This data only originates from our mutual business relations and is therefore permissibly stored in accordance with § 23 BDSG.
APS Tech Group GmbH
Max Eyth Street 46