General Terms and Conditions of APO GmbH Massenkleinteilbeschichtung
Section 1 General, scope of application
- These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter referred to as “Customer”): The GTC only apply if the purchaser is an entrepreneur (Section 14 German Civil Code [BGB]), a legal entity under public law or a special fund under public law.
- The GTC apply in particular to contracts for the processing (in particular coating), sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). The GTC in their respective version shall also apply as a framework agreement for future contracts with the same purchaser for the sale and/or delivery of movable goods, without us having to refer to them again in each individual case.
- Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the purchaser shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent shall apply in each case, for example even if we carry out delivery to the purchaser without reservation in full knowledge of the purchaser’s general terms and conditions.
- Individual agreements made with the purchaser in individual cases (including collateral agreements, additions and amendments) shall in each case take precedence over these GTC. A written contract or our written confirmation is authoritative for the content of agreements of this type.
- Legally relevant declarations and notifications to be submitted to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) require text form to be effective.
- References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTC.
Section 2 Conclusion of contract
(1) Our offers are subject to confirmation and are non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation, other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights.
(2) The order by the customer as well as the delivery of goods for processing by the customer shall be deemed as a binding contractual offer. Acceptance can be declared either in writing (e.g. through order confirmation) or implied by performance of the works. If goods are delivered without a prior offer by us or without our offer number being stated, so that we are unable to allocate them internally, we shall base our order confirmation on the price valid under the existing agreement and, in the absence of an existing agreement, on the usual price.
(3) Indicative prices communicated by us shall not constitute an offer and shall only become the basis of the contract if agreed.
(4) Specifications of the coating, packaging, mode of dispatch, etc., which formed the basis of a previous initial sample order, shall be stored in our system and used as the basis for all further deliveries. If the customer wishes to deviate from the requirements of the initial sample order, he must expressly indicate this to us in the order. Additional expenses caused by omitted advance information shall be borne by the customer himself or shall be charged separately to the customer, unless the customer is not responsible for the omission.
Section 3 Delivery
(1) The customer must deliver the items to be processed by the agreed date during operating hours (Monday to Friday, 7.00 a.m. to 4.00 p.m.). Any failure to deliver on time shall be at his expense. A delivery note must be enclosed with the delivery.
(2) Our delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. 4 weeks from the conclusion of the contract. Unless additionally agreed otherwise, the delivery period begins with delivery by the customer of the material to be processed and clarification of all technical questions.
(3) If we are unable to meet binding delivery periods due to unforeseen circumstances affecting us or our suppliers and subcontractors and which are outside our sphere of influence and for which we are not responsible, such as force majeure, strike, shortage of raw materials or energy supply failure (non-availability of performance), we shall promptly inform the customer thereof and at the same time inform the customer of the expected new delivery period. The delivery period shall also be extended if the circumstances described arise during a delay in performance that has already occurred. If the delivery date is postponed in accordance with the aforementioned, the customer shall be entitled to withdraw from the contract after expiry of a reasonable grace period, Section 323 (2) BGB shall remain unaffected. If delivery becomes impossible for us due to these circumstances, we shall be released from our obligation to perform.
(4) The occurrence of our delay in delivery shall be determined pursuant to the statutory provisions. A reminder from the customer is required in all cases.
(5) The rights of the customer according to Section 8 of these GTC and our legal rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
Section 4 Place of performance, transfer of risk, acceptance, default of acceptance
(1) Delivery after performance of the works shall be ex warehouse, which shall also be the place of performance for the works and any subsequent performance. The goods may be shipped to another destination at the customer’s request and expense. Unless otherwise agreed, in this case we shall be entitled to determine the mode of dispatch (in particular the transport company, dispatch route, packaging) ourselves.
(2) The risk of accidental destruction and accidental deterioration of the goods shall pass to the customer upon leaving our works, at the latest upon handover to the customer. In the case of dispatch, however, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon handover of the goods to the forwarding agent, to the carrier or to any other person or institution designated to carry out the dispatch. If acceptance has been agreed, this shall be authoritative for the transfer of risk. Default of acceptance by the customer shall be equivalent to handover or acceptance.
(3) If the customer is in default of acceptance, if he fails to cooperate or if our delivery or acceptance is delayed for other reasons for which the customer is responsible, we shall be entitled to withdraw from the contract by setting a 14-day grace period in writing and to claim compensation for damages instead of performance plus the additional expenses incurred by us (e.g. storage costs).
(4) Goods reported ready for dispatch must be retrieved by the customer within the agreed period, in the absence of such within five working days of notification. If no retrieval occurs, we shall be entitled to store the goods at our discretion at the expense and risk of the customer and to invoice them as delivered ex works.
Section 5 Remuneration and terms of payment
(1) Unless otherwise agreed in the individual case, services shall be performed on the basis of our list prices valid at the time the contract is concluded. Unless otherwise agreed, the list prices as well as the remuneration agreed with the customer shall be understood as net without discount or other deductions, ex works excluding packaging, freight and insurance and plus the statutory value-added tax. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(2) The list prices as well as the prices agreed with the customer shall apply only to goods which are suitable for coating, i.e. that have a surface and design suitable for coating. If additional costs arise as a result of the removal of paints, oil, grease, tar or other residues, these will be charged separately at normal rates according to cost.
(3) In the case of processing larger quantities of material or any special materials required for coating, we shall be entitled to demand advance payments in a reasonable amount.
(4) If more than four months pass between conclusion of the contract and performance of the works and if the cost factors (coating material, energy, wages and salaries, etc.) relevant for price formation have increased at the time of carrying out the works, we shall be entitled to increase the price commensurately. If the increased price is 20% or more above the agreed price, the customer has the right to withdraw from the contract, provided that he exercises this right promptly after notification of the increased price.
(4) Remuneration is otherwise due and payable within 14 days of invoicing and delivery or acceptance of the processed goods. However, we are entitled at any time, also during an ongoing business relationship, to carry out processing in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.
(5) The customer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the remuneration at the statutory default interest rate applicable in each case. We reserve the right to assert further claims for damages caused by default. Our claim against merchants to commercial maturity interest (Section 353 German Commercial Code [HGB]) remains unaffected.
(6) The customer shall be entitled to set-off or to a right of retention only to the extent that his claim is legally established or undisputed. In the event of processing defects, the customer’s reciprocal rights shall remain unaffected, in particular in accordance with Section 8 (6) of these GTC.
(7) If it becomes apparent after conclusion of the contract that our claim to remuneration is at risk due to the customer’s inability to pay (e.g. due to filing for insolvency proceedings), we shall be entitled in accordance with the statutory provisions to refuse performance and – after setting a deadline, if applicable – to withdraw from the contract (Section 321 BGB).
Section 6 Right of lien
(1) We shall be entitled to a statutory lien on the goods coated by us. Irrespective of this, the customer grants a contractual lien on the goods handed over to us for the purpose of coating, which serves to secure our claims from the order. Unless otherwise agreed, the lien shall also apply to claims arising from orders executed previously, provided that they are in an internally coherent and uniform relationship with the subject matter of the order. If the coated goods are delivered to the customer prior to full payment, it is hereby agreed with the customer that title of such goods in the value of our claims shall be transferred to us to secure our claims and that the transfer of possession shall be substituted by the customer keeping the goods in safe custody for us. The same shall apply mutatis mutandis with regard to the customer’s expectant right to goods delivered to us for the purpose of coating which have previously been delivered to the customer by a third party under reservation of title. We are entitled to induce the discontinuation of the reservation of title. The customer’s claims to retransfer of ownership against a third party to whom he had previously assigned the goods handed over for coating as security are hereby assigned to us. We hereby accept the assignment.
(2) The customer may neither pledge nor assign goods to which we have a lien or which are in our ownership by way of security. However, he may resell or process the goods in the ordinary course of business unless he has in advance effectively assigned the claim against his contractual partner to a third party. Any processing of the goods assigned to us by way of security by the customer into a new movable object shall be carried out on our behalf with effect for us without us incurring any liabilities as a result thereof. We hereby grant the customer co-ownership of the new object in proportion of the value of the new object less the value of our performance to the value of the new object. The purchaser shall store the new object with due commercial care and free of charge.
Section 7 Retention of title
(1) Insofar as we acquire ownership rights to the goods delivered to us through processing or modification, the following retention of title shall apply. We reserve title to the goods until full payment of all our current and future claims from the contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security prior to full payment of the secured claims. The customer must notify us promptly in writing if an application is filed to open insolvency proceedings or if the goods belonging to us are accessed by third parties (e.g. seizures).
(3) In the event of the customer acting in breach of contract, in particular not paying the due remuneration, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the customer does not pay the remuneration due, we may assert these rights only if we have previously and unsuccessfully set a reasonable deadline for the customer to make payment or if such setting of a deadline is superfluous according to the statutory provisions.
(4) The customer shall be entitled, until revoked in accordance with (c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following additional provisions shall apply.
(a) Retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of such third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Incidentally, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We hereby accept the assignment. The obligations of the customer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
(c) In addition to ourselves, the customer shall remain authorised to collect the claim. We undertake not to collect the claim as long as the customer fulfils his payment obligations to us, there is no defect in his ability to pay and we do not exercise the retention of title by exercising a right pursuant to paragraph 3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case we shall also be entitled to revoke the customer’s authority to further sell and process the goods subject to retention of title.
(d) If the achievable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
Section 8 Claims for defects
(1) In the event of material defects and defects of title, the statutory provisions shall apply to the customer’s rights unless otherwise specified below.
(2) The basis of our liability for defects is first and foremost the agreement regarding the quality of the goods. If the quality has not been agreed, it is to be determined according to the legal stipulations whether a defect is present or not.
(3) The prerequisite for professional coating is that the goods entrusted to us for processing conform with the requirements specified in the order confirmation and – even without a separate specification – are suitable for surface coating.
(4) Furthermore, the customer shall only be entitled to the warranty claims listed in the following clauses if he inspects the goods processed by us for defects promptly upon receipt and notifies us immediately in writing of any defects found. The duty to inspect shall also apply if initial samples or outturn samples or other goods coated on a trial basis have been sent. Defects discovered later must also be reported promptly in writing. If a notice is not lodged in due form or time, the goods shall be deemed to have been approved.
(5) Colour specifications, e.g. according to RAL, or levelling and gloss level specifications are always approximate provisions, even if they have been confirmed by us. Deviations in colour, gloss and levelling within tolerances customary in the industry do not entitle the customer to give notice of defects; this also applies to deliveries according to samples.
(6) We shall be entitled to make the subsequent performance owed dependent on the customer paying the due remuneration. However, the customer shall be entitled to retain a part of the remuneration which is appropriate in proportion to the defect.
(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes.
(8) If there is in fact a defect, we shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular for transport, travel, labour and material costs. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect, unless the lack of defectiveness was not detectable by the customer.
(9) Claims of the customer for damages or reimbursement of fruitless expenses shall even in the case of defects only exist pursuant to Section 8 and shall otherwise be excluded.
Section 9 Other liability
(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages within the scope of fault-based liability– regardless of legal grounds – in the event of wilful intent and gross negligence. We shall be liable in the event of ordinary negligence subject to a milder standard of liability pursuant to statutory provisions (e.g. for diligence in our own affairs), only
- a) for damages resulting from injury to life, body or health,
- b) for damages arising from the not inconsiderable breach of an essential contractual obligation (an obligation that must be fulfilled to enable proper execution of the contract and the observance of which the contractual partner routinely relies on and may rely on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or for the benefit of persons whose culpable acts or omissions are attributable to us according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw or terminate the contract due to a breach of duty other than a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to Section 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
Section 10 Statute of limitations
(1) Notwithstanding Section 634a (1) (1) BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from acceptance.
(2) The above limitation periods of the law governing contracts for work shall also apply to contractual and non-contractual claims for damages by the purchaser based on a defect in the processed goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the customer pursuant to Section 8 (2) sentence 1 and 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
Section 11 Data protection
Section 12 Final provisions
(1) The contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany.
(2) Exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in 52477 Alsdorf, Germany. In all cases, however, we shall also be entitled to take legal action at the place of performance in accordance with these GTC or an overriding individual agreement or at the place of general jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdictions, shall remain unaffected.
(3) Should one of the aforementioned provisions be void, ineffective or unenforceable, the validity of the remaining provisions shall remain unaffected. The same shall apply if any other contractual agreement is or becomes void, ineffective or unenforceable. In place of a void, invalid or unenforceable other contractual agreement, a provision shall be deemed to have been agreed which comes as close as possible to the economic and legal success of the void, invalid or unenforceable provision.