General Trading Conditions (09. May 2018 version)
1. General terms and conditions
1.1 All of our (Apprich SECUR ® Ltd, hereinafter referred to as Apprich) deliveries and services shall be handled exclusively on the basis of the general terms and conditions, unless exceptionally permitted different conditions have been agreed on in written form. This is explicitly true for the differing terms and conditions of our contract partners (hereinafter rederred to as buyer). In case of an ongoing business relationship the same terms and conditions continue to apply, even if express reference has not been made any more.
1.2 For deliveries and services to contracting partners abroad, it is explicitly agreed that any legal costs incurred by us due to delay of payment – judicial and extrajudicial – shall be borne by the buyer.
For deliveries and services to contracting partners abroad, it is furthermore explicitly agreed that any of our contracting partners strictly comply with the legal terms of the national and international export control regulations of the United Nations.
The contracting partners agree to comply with all of the terms and regulations of combating terrorism, and all of the export control regulations by the United Nations and the European Union, as well as complying with the actual embargo regulations.
1.3. Offers are always non-binding; the conclusion of contracts and any other agreements become binding after our written confirmation. The buyer is fully responsible for the completeness, correctness and punctuality of the provided or compiled execution documents.
2. Volume of the deliveries or services
2.1. The object and volume of the deliveries or services shall only be determined by mutual written statements in particular by the written contract or, in the case of not finalising a contract, by the written confirmation of the order by Apprich.
2.2. Apprich reserves the right to make slight adjustments to the order as required for technical or other plausible reasons, as long as these do not change the object of the delivery or service considerably and are reasonable for the purchaser.
2.3. Protective devices shall be provided as required by law or as expressly agreed on.
2.4. The purchaser shall be responsible for obtaining in his own name and at his own expense any official permits and other permits required for the possession, the handling or the resale of the deliveries and services provided by Apprich.
2.5. Unless otherwise agreed, the place of fulfilment for the delivery shall be our registered offices or our subcontractor. Every delivery shall be carried out at the purchaser’s own ex-pense and risk. Unless a specific shipment has been agreed on, we shall decide on the mode of shipment.
2.6. Unless otherwise agreed, the agreed delivery dates shall refer to the goods being at our disposal for handover or shipment at our registered offices. In this respect, our obligation to deliver shall rest as long as all the pertinent documentation concerning the part of the delivery as well as all the necessary or appropriate documentation or information required for the execution of the order have not been handed over to us.
The observance of the delivery date presupposes the timely receipt of all documents to be delivered by the purchaser, such as the required permits, releases, the timely clarification and approval of the plans, the observance of the agreed payment terms and other obligations. If these conditions are not fulfilled on time, the term is extended appropriately.
2.7. In the event of and for the duration of any shortage of raw materials or energy, strikes, lockouts, traffic disturbances and official court orders as well as non-observance of delivery deadlines and delays from pre-suppliers, interruption of operations, any event of force majeure and any other circumstances not to be represented by us or any of our subcontractors, as far as these conditions impair our ability of delivery, we shall be released from our obliga-tion to deliver. In the aforementioned cases we are furthermore entitled to resign from the contract without liability for damages – without prejudice to section 5 of these Terms and Conditions – if it becomes impossible or unreasonable for us to fulfil the assignment or the end of such an impediment is unforeseeable.
We are further entitled to resign from the contract if an unexpected and unusual (20% and more) rise in raw material and energy costs takes place affecting the contract price after the confirmation of the order. In return the purchaser is entitled to resign from the contract if an unexpected and unusual (20% and more) reduction in raw material and energy costs takes place affecting the contract price after the confirmation of the order.
2.8. Our obligation to deliver shall rest for as long as the purchaser is in arrears with payments due to us. If facts or circumstances become known to us which justify doubts about the solvency of the purchaser (e.g. non-payment of overdue and reminded invoices) and after being requested to provide surety the purchaser is not prepared to do so, we shall be entitled at any time to resign from the contract in part or in full – subject to section 5 of these Terms and Conditions – without liability for damages.
2.9. The purchaser is entitled to resign from the contract on grounds of late delivery or to claim for damages in accordance with section 5 if Apprich is late delivering and has not ful-filled the delivery within a reasonable deadline extension stipulated by the purchaser in writing including a penalty for denial of service.
Within a reasonable deadline requested by us, the purchaser is obliged to inform us of whether he will resign from the contract due to the delay of the delivery and/or whether he will claim for damages instead of the service being carried out in accordance with section 5 or whether he insists on the delivery taking place.
2.10. The purchaser has to forthwith examine or inspect on delivery as to whether the product is in perfect conditions and intact and to reprimand any visible defects immediately.
In the case that the product has not been inspected within the agreed delivery date or within the delivery deadline, on expiry of the fifth working day after the delivery date or at the end of the deadline, it shall be considered as approved and accepted.
2.11. Contract penalties shall only be affective against us if they were established in a special agreement.
2.12. If the shipment or the delivery is delayed at the purchaser’s request, a storage fee shall be calculated commencing one month after the date of the goods being ready for shipment, at the rate of 0.5 per cent of the invoice amount per month or part thereof chargeable to the purchaser; the storage fee is limited to 5 per cent, unless higher costs are proved to the purchaser.
3. Prices and terms of payment
3.1. Unless otherwise expressly defined, the agreed price shall be the net price for the production and handing over of the subject matter of the contract. It does not include the legally stipulated value added tax as prescribed in each case which is to be added on to the agreed price, and it does not allow any deductions, discounts etc which have not been expressly agreed on beforehand.
3.2. Aberrant from §286 III S, 1 German Civil Code, it is agreed that the purchaser shall become overdue immediately as the invoice becomes due and the purchaser does not pay after one reminder. The reminder will be considered on a par with commencement of legal action as well as with the delivery of a reminder in the dunning procedure. If a maturity date has been agreed on the calendar and the purchaser fails to pay by the agreed date, then the purchaser will be immediately in arrears without receiving a reminder.
3.3. All invoices due to us shall be paid by bank transfer. All invoices due to us become payable immediately the moment the purchaser fails to pay any one invoice on its maturity date. The same applies if he suspends his payments, he is heavily indebted, insolvency proceeding are filed against him or the filing of such insolvency proceedings are refused due to lack of sufficient assets or circumstances become known which justify reasonable doubts about the creditworthiness of the purchaser.
Without prejudice to other claims, in case of default we shall calculate interest customary in banking, at least however, interest at the rate of 9 percent points above the respective prime interest rate of the German Central Bank.
3.4. If the purchaser is in default we shall have the choice of carrying out further deliveries or services dependent on pre-payments or securities, to claim for damages for late payment or to resign from the contract. This shall not apply if the purchaser has made a justified complaint about the delivery. In addition, we can return accepted bills of exchange before maturity and demand immediate cash payment.
3.5. With respect to several orders being placed the payments effected will be allocated to either one or another invoice unless otherwise agreed, §366 German Civil Code applies. The purchaser is not entitled to suspend his payments or to refuse payments due. The retention right pertaining to non-conformity of the product as regulated in section 6 of these Terms and Conditions remains unaffected. He will be entitled to set off payments against counterclaims only if they are undisputed, have been approved, or are legally binding.
3.6. Forwarding expenses and packing charges as well as any expenditures for assurances, authorizations, examination or any other ancillary services required and rendered with the purchaser’s approval or in his best interests shall be calculated in addition at our customary list prices and hourly rates. This applies in particular to specific work agreed on or to special technical work required in order to fulfil the contract and to other items outside of our range of products.
3.7. The purchaser is entitled to set off against Apprich claims only if the counterclaim of the purchaser is indisputable or legally enforceable; he is entitled to enforce his retention rights only against claims from the respective contract for work.
4.1. We reserve the right of ownership on all goods delivered by us, until all our invoices have been paid in full by the purchaser without taking into consideration any legal reason whatsoever and the time of origin within the business relationship with the purchaser, until any open posts on the purchaser’s current account have been balanced out, in the case of having accepted bills of exchange or cheques up to their discharge or encashment.
The purchaser is entitled to process the goods delivered by us in his regular business operations and/or to resell these. The authorization for resale becomes non-effective if the purchaser has agreed on a ban of assignment with his buyers.
The purchaser is obliged to treat the goods subject to reservation of title carefully. In the case of non-compliance we are entitled to request an immediate release of the goods.
4.2. As long as the reservation of title is in force, the handling or processing of the goods subject to reservation of title will be carried for us. We are entitled to the ownership or co-ownership of the new originated product or goods, §§947, 950 German Civil Code.
In the case of the goods subject to reservation of title being connected or mixed with other materials or items, then we are entitled to the co-ownership of the newly originated goods in relation to value of the goods subject to reservation of title at the time of its connection or mixture, §948 German Civil Code.
The new product resulting from such a connection or mixture will be considered as a product subject to reservation of title for the purposes of these conditions.
The purchaser herewith assigns all his proceeds including ancillary rights arising from the resale of the goods subject to reservation of title to us, in the case of processing, connection or mixture of the said goods up to the value of the product delivered by us.
4.3. At our request the purchaser has, as soon as he is in delay to inform his debtors of the assignment and to give us the necessary information and the respective documents.
If the value of goods subject to reservation of title or of the sureties given to us exceeds 20% of the monies owed to us by the purchaser, then we shall be obliged to release or transfer back these amounts at the purchaser’s request.
4.4. The purchaser is not entitled to pledge the goods subject to reservation of title or to transfer the title for the purpose of securing a debt and must inform us immediately of any pledges processed by third parties.
4.5. The exercise of our reserved title, a withdrawal nor a pledge on the object of delivery shall be deemed a rescission of the contract. In the case of a withdrawal we are entitled to use the objects after giving previous warning and an adequate deadline we reserve the right to seek settlement of our claims in the best way possible. The proceeds of the sale shall be accredited to our claims after deduction of the expenses incurred for the sale.
5. Impracticality; contract adaption
5.1. The purchaser is entitled to claim for damages if a delivery is impossible to be carried out, in the case that this impossibility is our responsibility. However, the purchaser’s claim for damages shall be limited to 5% of the value of that part of the delivery that cannot be disposed of properly due to the impossibility, unless, the purchaser proves a higher loss resulting. This amount shall be accredited based on claims for damages as defined in section 6 or section 7. Further claims for damages by the purchaser are excluded subject to the provisions in section 6 and section 7. The purchaser’s right of resignation of the contract remains unaffected.
5.2. In the case that unforeseen eventualities considerably change the economic significance or the contents of the delivery for the purposes of section 2.8 or have a considerable effect on our company operations, the contract shall be appropriately adapted in good faith by mutual agreement. In the case that this is not economically justifiable, we shall be entitled to rescind the contract. If we want to make use of this right to rescind, we have to inform the purchaser immediately on us becoming aware of the consequences of the incident, even in the case that an extension of the delivery date had previously been agreed with the purchaser.
5.3. Apprich Secur GmbH obligation to fulfill this agreement is subject to the proviso that the fulfillment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos or other sanctions. We retain title of ownership to the delivered merchandise until the purchase price has been paid in full.
6. Defect of quality / liability
6.1. Apprich guarantees its deliveries and services remain in perfect conditions for as the legal guarantee term applies. Under observance of the given service intervals (after 9 months as well as after 18 months) the guarantee term for rebuilding expires at the end of 24 months from release / acceptance by the purchaser. If the purchaser does not observe the service intervals then the guarantee is reduced to the 12 legal months. This does not include the claims for damages resulting from loss of life, physical injury or the detrimental effects on health or the violation of key contractual obligations or liability for the other damages based on an international or negligent violation of obligations by Apprich. Glass and wear parts are generally excluded from the guarantee.
6.2. Claims under guarantee do not apply if the damage is based on disregard of operating instructions, servicing specifications and installation directions, incorrect or improper usage, faulty or negligent treatment in particular by disregarding stipulated inspection appointments, the installation spare parts other than those stipulated by the supplier and natural wear and tear as well as the purchaser or any third party interfering with the object of delivery or if the purchaser does not allow the partners or workshops authorized by the suppliers to carry out inspections and repairs.
6.3. All those parts or services showing a defect of quality within the limitation period are to be amended, redelivered or supplied at our own discretion free of charge, provided that it was already caused at the time of passing of risk.
If after their installation spare deliveries or subsequent performances fail or require a disproportionate expenditure, only a discount on the purchase price shall apply.
6.4. The purchaser has to reprimand defects of quality immediately in writing.
In the case of defects of quality the purchaser can withhold payments in an appropriate relation to the existing defects of quality. The purchaser is entitled to withhold payments only if a justified defect of quality has been verified. If the reprimand is not justifiable, we are entitled to have any expenditures incurred reimbursed by the purchaser.
6.5. At first we must always be given an opportunity to rectify within an adequate deadline.
6.6. Excluding wrong deliveries, divergences, changes or tolerance shall not be considered as divergences of the agreed or usual specifications, as long as they fulfil the applicable standards an regulations.
Hence, models are to be deemed as non-binding prototypes. Minor deviations do not entitle to reclamations.
Claims on defect of quality will not be admitted if the delivered goods are suited for the appropriate usage according to the contract and have the specifications usual for the same type of good and fulfil the expectancy of the buyer.
6.7. The purchaser has to examine the received goods immediately after arrival for defects, guaranteed specifications, wrong deliveries, and incorrect or surplus quantities. He has to inform us in writing of any evident defect of the delivery immediately, at the latest within seven days after receipt of the delivery, hidden defects at the latest within seven days after their discovery.
Otherwise the delivery shall be deemed as approved. Any reprimand and assertion of justified claims must in any case be made prior to processing, connecting or mixing and within the guarantee period.
The purchaser has to give us the opportunity to immediately check the complaint matter, es-pecially by giving us access to inspect the damaged goods and its packaging ourselves. If he refuses this, we are released from the liability for defect of quality. Only in urgent cases, danger of the operational safety and for the avoidance of disproportionately larger damages, whereby we must be informed immediately, or if we are in default to rectify the defect, the purchaser has the right remove or to have the defect removed by any third party or to request a reimbursement of costs incurred from us. The assumption of costs of commissioned consultants requires a written arrangement in each case.
6.8. The purchaser’s is not entitled to claim expenditures required for the purpose of the rectified performance, in particular carriage, road costs, labour cost and cost of materials, as far as the expenditures are increased because the object of the delivery has been forwarded af-terwards to another place than the purchaser’s establishment, unless the transfer would correspond to its designated use.
The purchaser shall only be entitled to legal contribution claims against us in this respect only if the purchaser has not agreed to any conditions other than the legally effective claims for defect of quality. The circumference of the contributions claim by the buyer against us applies according to section 5.
6.9. Further claims by the purchaser, in particular for compensation instead of the service and for substitution of any other immediate or indirect damage including lateral damage or secondary damage, regardless of whatever legal reasons are excluded. This does not apply, if
a) we have intentionally concealed a legal defect or defect of quality or we have accepted a guarantee for the specification of the product,
b) the damage is based on malicious intent or gross negligence by us, our legal representatives or fulfilment assistants or negligent breach of contractually significant obligations by these persons or
c) a culpable breach of obligation by us, our legal representatives or fulfilment assistants leads to a bodily injury or health damage.
In the case of slight negligence our obligation to indemnify is limited according to the amount of the predictable damage typical for contract.
6.10. The provisions pursuant to Paragraph 9 apply accordingly to direct claims of the purchaser against our legal representatives or fulfilment assistants.
7. Other compensations for damages
7.1. Claims for damages and expenditures by the purchaser (hereinafter: compensation for damages), for whatever legal reasons, in particular due to breach of obligations and unauthorised action, as well as from the electronical and other access of the provided and imported data disposal by purchaser, are excluded.
7.2. This does not apply, as far as mandatory liability is enforced due to breach of significant contractual obligations, e.g. according to product liability laws, in the case of intent, gross negligence, damages to life, body or health. Nevertheless, the claim for damages due to breach of significant contractual obligations is limited to the predictable damage typical for the contract, unless there has been intention or gross negligence or damages to life, body or health. A change of the burden of proof to the purchaser’s disadvantage is not connected to the preceding regulations.
8.1. The parties hereto commit themselves to keep confidential any non-overt business and technical details, which become known to them through business connections and treat them as trade secrets.
8.2. Drawings, prototypes, templates, samples and similar objects may not be given or be made easily accessible to unauthorized third parties. The reproduction of such objects is only permitted within the scope of the operational requirements and of copyright regulations.
9. Industrial property rights and copyrights; legal defects
9.1. Unless otherwise agreed, we are obliged to delivery merely in the land of the place of delivery free of industrial property rights and copyrights by third parties (hereinafter: property rights). Provided that a third party files a justifiable claim against the buyer due to a breach of property rights committed by a contractual delivery carried out by us, we shall be liable to-wards the purchaser within the time limit provision in section 6 clause 1 as follows:
a) we shall obtain at our discretion and at our own expense the usufructuary rights for the concerning deliveries, change them to ensure that the copyright is not infringed, or to replace them. If this is not possible for us at acceptable conditions, the buyer is entitled to legal rights of withdrawal or reduction.
b) Our obligation of substitution of damages is subject to the provisions in section 5.
c) Our aforementioned obligations are only effective as long as the purchaser informs us about the claims by the third parties immediately in writing, does not accept the damages and we reserve all the rights to all preventive measures and comparative negotiations. If the purchaser suspends the use of the delivery for mitigation of damages or other significant reasons, he is obliged to point out to the third party that the suspension of usage is not an acknowledgement of a breach of property rights.
9.2. Claims by the purchaser are excluded, as far as he has to represent the breach of property rights.
9.3. Claims of the purchaser are further excluded, as far as the breach of property rights is caused by special requirement by the purchaser, by an application unforeseeable by us or by the fact that the delivery is changed by the purchaser or is used in connection with products not delivered by us.
9.4. In any case of breach of property rights, the purchaser’s claims are subject to the provi-sions in section 5.
9.5. In the case of other legal defaults the provisions in section 5 apply accordingly.
9.6. Further or other claims by the purchaser against us and our fulfilment assistants not regulated in this section 9 are excluded.
10. Advisory service
Technical advice is not an object of the supply agreement; it is only binding in the written form. It does not absolve the purchaser of the responsibility to use our products in a competent and appropriate manner.
11. General regulations
11.1. Should any regulation of these conditions and other agreement be or become ineffective, the rest of the agreement shall remain unaffected and valid. The parties hereto shall replace it with a corresponding effective regulation equivalent to the intended economic result.
11.2. Unless otherwise agreed this agreement shall be governed exclusively by the Laws of the Federal Republic of Germany.
11.3. The written form may not be replaced by the electronic form.
11.4. For any present and future claims raising from the business relationship with other businesspeople including receivable bills of exchange and cheques the exclusive place of jurisdiction shall be Apprich’s registered office in Ludwigsfelde.
The same place of jurisdiction applies if the purchaser has no residential place of general jurisdiction, moves his residence or usual place of residence after completion of the contract or his residence or usual place of residence is not known at the time of commencement of action.