Our General Terms and Conditions
General Terms and Conditions
APM Gehäusetechnik GmbH
APM Gehäusetechnik conducts business in the areas of delivering goods and manufacturing services, with emphasis on customized fabrication. Any purchase order acceptance and order fulfillment, for present as well as future terms of contract, are subject to these terms and conditions. Contradictory terms issued by the client will not become integral to the contract.
I. Purchase Order, Procurement Risks, Order Acceptance and Order Confirmation
The client is bound by the purchase order for three weeks. Orders will not be legally valid without our written confirmation. In the event of a dispute, the nature of services and order modalities, which are confirmed in writing, will determine the contents of the contract (especially output and execution). If purchase orders are placed verbally, partially in writing or are otherwise incomplete, we will have the right to refuse confirmation or ensure completion or correction of the order for a period of three weeks from the original order date. In those cases, purchase order confirmation will be given after verbal consultation with the client. The contents of such a purchase order will then be determined by the written order confirmation, unless same confirmation has been opposed in writing within two business days.
Incorrect or missing Information on the purchase order will be the responsibility of the client. We will not assume any risk of procurement and reserve the right to void the contract should the item to be delivered not be available within the specified time period. Should there be a claim that we neglected our duties in connection with he procurement of supplies, the burden of proof will rest with the client.
II. Term of Delivery
1. The delivery term starts with the dispatch of the order confirmation, but not before the receipt of the necessary documentation (usually to be provided by the client), permits, clearances, release of materials as well as the receipt of a previously agreed upon down payment.
2. The term of delivery will be met if, by the date of its expiration, readiness for dispatch has been communicated or the object to be delivered has left the factory.
3. The term of delivery will be extended in the event of sanctions due to labor disputes, especially strike and lock outs as well as in the event of
unforeseeable obstacles that are outside of our control, i.e. operational malfunctions, delays in the delivery of essential supplies, should such obstacles
have a proven impact on the delivery of the ordered items. This also applies, if the above conditions should arise for our suppliers and sub contractors. The term of delivery will be extended according to the duration of such sanctions and obstacles. Further, the previously described circumstances will not be our responsibility if they arise due to a pre-existing delay. In important cases we will communicate to the client beginning and end of such impediments as soon as possible.
4. Partial shipments are allowable within the term of delivery as defined by us, as long as they do not negatively impact use of the product.
III. Delivery Contents and Warranty
1. Delivery contents will be determined by our written order confirmation.
2. During the term of delivery we reserve the right to perform changes in construction, execution or other technical aspects, if these changes are due to technical improvements or changes in law, as long as the product is not changed significantly and the changes do not cause undue difficulty for the client.
3. Declarations made in the context of this contract do not represent a guarantee. Issuing of a guarantee requires our written confirmation.
IV. Cancellation Costs
Should the buyer issue an unwarranted cancellation, we may, without prejudice, exercise the option to demand damages, depending on the development stage or production stage of the order, up to 100% of the purchase price, as reimbursement of the costs incurred during processing of the order and loss of profit. The burden of proof for lesser damages rests with the client.
V. Shipping and Packaging
Packaging becomes the property of the seller and is invoiced by us. Shipping and packaging rates will be billed separately. The selection of the shipping method is done at our discretion.
VI. Terms of Acceptance and Transfer of Risk
1. The client is obligated to accept the delivered goods. Unless otherwise arranged (delivery by us), transfer of goods will be in Mammendorf. If the product is shipped to any destination other than the place of fulfillment, risk is transferred to the buyer as soon as the goods are handed over to the shipping company, carrier, or any other person designated for the transport of the goods. The buyer is entitled to inspect the goods within 14 days of notice of availability or any other form of notification of completion at the point of transfer. The buyer is obliged to accept the goods within the same term of delivery unless temporarily prevented from accepting through no fault of his own.
2. Should the seller be in arrears for more than 14 days from receipt of availability notice with willful intent or gross negligence, we will have the right, after an extension of an additional 7 days, to nullify the contract or demand damages due to default. We are not obligated to grant an extension of term if the buyer issues a final refusal or is plainly unable to pay the purchase price during this time period.
3. Risk is transferred to the buyer with the acceptance of the delivery. If the buyer declares unwillingness to accept the delivery, the risk of accidental loss or accidental deterioration of the goods is transferred to he buyer at the time of refusal.
VII. Returns/Shipping Costs
To initiate returns, please follow these steps:
Notify our staff. We will arrange for pick-up by UPS.
Tel: 08145 9289 - 0
Fax: 08145 9289 - 20
Please have your customer number (KNDR) ready.
VIII. Price Changes
Price changes are permitted if there is a time period of more than four months between finalization of the contract and the scheduled delivery date. If wages, material costs or acquisition prices should rise in the interim, we will have the right to adjust the price according to the cost increases. The buyer is only entitled to a cancellation if the price increase significantly exceeds cost of living amounts for the time period between order and delivery.
If the buyer is a chartered merchant, a legal entity under public law or a special fund under public law, price adjustments are allowable according to the previously listed provisions, if the time period between signing of the contract and scheduled delivery date exceeds six weeks.
IX. Warranty, Statute of Limitations, Recourse
1. We will accept liability for defects in the following articles of sale:
a) During the warranty period following receipt of the product, the buyer is entitled to correction of defects (rework). If a defect which falls under the warranty agreement cannot be corrected in three attempts at rework (failure of the rework), the buyer has the option, in place of rework, to request either nullification of the contract or reduction of the purchase price.
b) The buyer is obligated to notify us, in writing, of defects of quality and title within two weeks following discovery of the defect. The buyer must describe the defects in as much detail as possible.
c) Defects due to normal wear and tear are always excluded from the warranty.
d) Should product defects develop due to the condition of services or items to be provided by the buyer, the buyer will be obligated to take back the items delivered and to compensate us in accordance with the invoice.
e) As soon as a new product becomes a delivery item, the statute of limitations for damage claims, regardless of the legal basis, is one year, unless willful conduct or fraudulent concealment are present. Recovery of damages cannot be claimed until after the failure of three rework attempts.
f) For entrepreneurs, the statute of limitations for claims and rights due to defects - regardless of the legal basis – is 12 months. However, this does not apply to the cases §438 I Nr. 1 BGB, § 438 I Nr. 2 BGB, § 479 I BGB or § 634 a I Nr. 2 BGB, which mandate a statute of limitations of three years. (BGB = Bundesgesetzbuch, German federal law)
g) The above referenced statutes of limitations do not apply in the event of fraudulent concealment of a defect, infringement on life, body, health or liberty, claims under product liability law, grossly negligent breach of duty or violations of essential contractual duties.
2. We will only accept liability for further claims and rights in the case of willful intent or gross negligence. In all other instances, liability is excluded.
3. Recourse entitlement under § 478 BGB (German Federal Law) apply only if the buyer has not entered into any agreements with his customer that go beyond the legal claims for material defects.
X. Reservation of Proprietary Rights
1. We reserve the right of ownership of the product until the buyer has fulfilled all expectations that developed during the business relationship.
2. If the buyer is in violation of the contract, especially delay in payment, we have the right to reclaim all goods without extending a deadline. The buyer will then be obligated to return the goods.
3. The enforcement of our proprietary rights, as well as our seizure of the goods will not count as a nullification of the contract, unless the regulations of consumer credit law apply or if the buyer is a chartered merchant, a legal entity under public law or a special fund under public law, the following additional conditions apply:
4. The buyer has the right to resell the goods within the normal course of business. However, the buyer immediately assigns to us all claims for the agreed upon purchase price (including sales tax) which stem from the buyer’s resale of the goods, independent of whether the goods are resold before or after processing. The buyer has the right to collect on any demands after the assignment of payment demands. Independent of this, we retain the authority to collect on any receivables but we commit to not collect on the receivables as long as the buyer correctly fulfills his payment obligations and is not in arrears. If the buyer is in arrears, we may demand that the buyer make public the transferred demands and the identity of the debtors, supply all information necessary for collection proceedings, furnish all documentation and inform the debtors (third parties) of the assignment of accounts receivable. .
5. The processing or modification of the delivered product by the buyer is always done on the behalf of APM Gehäusetechnik GmbH. If the delivered products are processed with objects not belonging to us, we will acquire joint ownership of the new product in the same ratio as the value of the delivered goods to other processed objects at the time of processing.
6. If the delivered products are inseparably mingled with objects not belonging to us, we will acquire joint ownership of the new product in the ratio of the value of the delivered product to the other, intermingled objects. The buyer retains joint ownership on our behalf.
7. The buyer may neither pawn the delivered products nor assign them as collateral. In the event of seizure, impoundment or confiscation or other such actions by a third party, the buyer must immediately inform us and provide us with all information and documentation necessary to assert our rights. Enforcement officers and other third parties are to be made aware of our property.
8. We promise to release the securities due us at the request of the buyer, as long as the value of our securities exceeds the demands to be secured by more than 20%, if they have not already been settled.
We will be liable for the actions of our fulfillment agents in case of malicious intent or gross negligence according to current law. Otherwise, we are only liable under German product liability law in the case of injury to life, body or health or due to violation of essential contractual obligations. Damage claims due to the violation of essential contractual obligations are limited to common contractual, foreseeable damages. We will never be liable for damages caused by the delivered products to the legal property of the buyer, i.e. damage to other items. The conditions in S. 2 and 3 do not apply in the case of malicious intent, gross negligence or liability due to injury to life, body or health.
XII. Terms of Payment
1. The purchase price or contracted price as well as any compensation for additional services are due upon delivery of the products. Rebates and discounts will only be given if they were previously affirmed in writing, at the signing of the purchase contract. The buyer will, automatically and without notice, be considered in default if we have not received payment within 7 days of the due date. In the presence of product defects, the buyer does not have the right to retain payment if this is not in acceptable proportion to the defects and the anticipated costs of rework (especially of removal of defects).
2. Checks. Drafts and letters of credit will only be considered as payment once they have been cashed. Payment by letter of credit or draft has to be pre-approved by us in writing. When accepting letters of credit or drafts, all applicable bank fees must be paid immediately by the buyer, in cash.
3. We will charge late payment interest at the annual rate of 8% above the current basic interest rate of the German central bank (Deutsche Bundesbank). Interest rates can be adjusted up or down, provided we can prove that we have been debited with a higher interest rate or the buyer can prove debit with a lower rate, as the case may be.
4. If the buyer is a registered merchant, a legal person under public law or a federal special fund under public law, retention of payments due to any counterclaims not recognized by us is not permitted, nor can any such counter claims be offset.
XIII. Place of Fulfillment and Jurisdiction
1. Place of fulfillment is Mammendorf.
2. If the buyer is a registered merchant, a legal person under public law or a federal special fund under public law, for any disputes arising from the contractual relationship, suit must be brought in the court serving the district in which our corporate office is seated. We also have the right to bring suit at the buyer’s principal place of business.
3. As long as it is legally possible, the application of German law shall be agreed upon. Application of UN trade law (CISG) is to be expressly excluded.
XIV. Miscellaneous Terms
1. Transfer of the buyer’s rights and responsibilities as specified in the contract can only be facilitated with our express, written confirmation.
2. If one of the above clauses should become invalid, the validity of the other conditions remains unchanged. In case of invalidity of one of the terms, those provisions shall be applied which come closest to the economic intent of the parties.
APM Gehäusetechnik GmbH
Mammendorf, April 2009