General Terms and Conditions for Deliveries of
api GmbH
1. Application
Deliveries, services, quotations and sales are made exclusively on the basis of the following terms and conditions. They are a component of all concluded contracts and shall also apply to all future business relationships, even if they are not expressly agreed again. These General Terms and Conditions are recognised by the customer when the order is placed, but at the latest when the delivery or service is accepted. Conflicting terms and conditions or deviating counter-confirmations are only recognised if api expressly confirms them in writing.
2. Offers
Written and verbal offers from API are subject to change and non-binding, even if they are not labelled as such. Employees of API are not authorised to make binding offers.
3. Prices
All verbal or written published prices are non-binding. Errors and short-notice price changes reserved. All prices are net and subject to postage, packaging and insurance. In the event of default by the customer with more than one single demand, all outstanding demands against the customer shall immediately become due.
4. Transfer of risk
Despatch/collection is at the customer’s risk. As soon as the goods have left API's warehouse, risk shall transfer to the customer. API shall insure the goods for shipping corresponding to the value of the goods unless the customer expressly contradicts this.
5. Delivery
All delivery deadlines require written confirmation. All deliveries are subject to our own correct and timely deliveries. Partial deliveries are permitted. API shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible, such as strikes, works disruptions, official orders, material procurement difficulties, etc., even if they occur at API's suppliers, also in the case of bindingly agreed deadlines and dates. Acceptance of the ordered and delivered goods is a cardinal duty of the purchaser. If the purchaser refuses or omits acceptance, the purchaser shall be in default. After an attempted and also failed delivery attempt, API reserves the right to demand up to 30% of the order value as compensation. This is without prejudice to the possibility of proving higher damages.
6. Payment conditions
api reserves the right to audit the customer by obtaining information about its economic circumstances. In the case of payment by cash or cheque, the customer shall obtain a receipt from the carrier for payment upon delivery and shall keep this receipt. Upon
request, the receipt must be presented to API or a legible copy provided; in the case of omission the customer shall bear the burden of proof for the payment. API is not liable for the prompt submission of cheques. In case of default by the customer, API reserves the right to demand interest at a rate of 3% above the respective discount rate of the German Bundesbank. API can claim further damaged due to default. In case of default, API reserves the right to dunning fees of up to EUR 10 and to forward the demand to a debt collection agency for collection. The customer shall bear the costs incurred for the involvement of the debt collection agency. The customer only reserves the right to retain or offset partial amounts if the counter claims are legally upheld or have been acknowledged by API. If a significant deterioration in the customer's financial circumstances occurs after conclusion of the contract, or if API learns of insufficient liquidity on the part of the customer, API reserves the right to demand a corresponding security deposit. If this is not complied with, API reserves the right to withdraw from the contract. An upcoming delivery may be delayed until the security deposit has been provided.
7. Retention of title
API shall retain title to the goods until all demands from API against the customer deriving from the business relationship, including future demands from simultaneously or subsequently concluded contracts are settled. This shall also apply if individual or all demands from the vendor have been included in a current invoice and the balance is collected and acknowledged. The customer shall only be entitled to resell the goods subject to retention of title in the ordinary course of business if he hereby assigns to API all claims arising from the resale against customers or third parties. If conditional goods are sold unprocessed or after processing or in combination with items that are the exclusive property of the customer, the customer hereby assigns to API the claims arising from the resale in full. If conditional goods are sold by the customer - after processing/combination - together with goods not belonging to the vendor, the customer hereby assigns the claims arising from the resale in the amount of the value of the conditional goods with all ancillary rights and priority over the rest. API accepts the assignment. The customer is authorised to collect these claims, even after assignment. API's power to collect the debts itself shall remain unaffected hereby; however API shall not collect the debts as long as the purchaser fulfils its payment and other obligations properly. API may demand that the customer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. The customer shall undertake any treatment or processing of the reserved goods on behalf of API without API incurring any obligations as a result. If the conditional goods are processed, combined, mixed or blended with other goods not belonging to API, API shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the conditional goods to the other processed goods at the time of processing/combining/mixing. If the customer acquires sole ownership of the new item, the contractual parties agree that the customer shall grant API co-ownership of the new item in proportion to the value of the processed/combined/mixed reserved goods and shall store these for API free of charge. If, in connection with the payment of the purchase price by the purchaser, API becomes liable under a bill of exchange, the retention of title and the underlying claim arising from the delivery of goods shall not expire before the bill of exchange has been honoured by the customer as drawee. If the value of the existing security deposits exceeds the claims being secured by more than 20%, API shall return security deposits to this extent at the customer's request.
8. Complaints, guarantee
Within the framework of the statutory warranty provisions, API guarantees that at transfer of risk all goods supplied by it are free from material and manufacturer defects, with the following caveat: upon receipt, the customer shall inspect all deliveries from API for freedom from defects and correctness. Short or incorrect deliveries and obvious defects must be reported in writing by the customer within 14 days of receipt of the delivery. The merchant's duty to report defects without undue delay, as per sections 377, 378 HGB, shall remain unaffected. This shall also apply to merchants in the event of identifiable incorrect deliveries by API, if products particularly at risk of rapid depreciation (e.g. memory components) are the subject of the delivery. In these cases, the goods must be returned to API immediately by return order. Transport damage must be reported immediately to the carrier; in this case and in the event of deviations in delivery quantities from the delivery note, the packaging must be retained until further notice in order to secure any claims by the customer. API reserves the right to make corrections, also repeatedly, and to supply replacements. If corrections or replacement delivery fails, the customer may reduce the purchase price or cancel the contract. Defects caused by incorrect handling or intervention by the customer or other third parties are excluded from this guarantee. In the case of complaint, the customer shall precisely describe the defect. The removal of markings, stickers and other labels needed for identification from the goods shall lead to the loss of claims under guarantees.
9. Manufacturer's warranty
API is not bond by the customer to accept goods affected by a manufacturer's warranty for forwarding to the manufacturer. If the goods are accepted as a gesture of goodwill in such cases, API shall only be liable to the customer for intent and gross negligence. API may return goods accepted in this way to the customer at any time without giving reasons, without API being directly or indirectly liable to the customer under the manufacturer's warranty promise.
10. Place of performance, place of jurisdiction
Place of performance is Baesweiler, place of jurisdiction is Aachen. The provisions of the UN Convention on the International Sale of Good shall not apply. German law shall exclusively apply, also to deliveries abroad.
11. Concluding conditions / saving clause
In case a term of these Terms and Conditions or any other term as part of other agreements is void or will become void this will not affect the efficiency of all other terms or agreements. The invalid conditions shall be replaced by a reasonable condition that comes closest to the invalid clause within the framework of the statutorily permitted possibilities.
Separate conditions for software as delivered object
1. If the delivery object is software, API shall transfer the rights of use in accordance with the manufacturer's licence conditions with the spatial, temporal and material content granted by the manufacturer for the specific software product. If the delivery object is the distribution right of software, API is exclusively obliged to transfer the distribution right in accordance with the manufacturer's licence conditions with the spatial, temporal and material content granted to it by the manufacturer for the specific software product.
2. API is not a vicarious agent of the manufacturer of the software product. Accordingly, API shall not be liable for faults by the manufacturer or its vicarious agents. The liability of API for its own faults shall remain unaffected within the framework of concluded agreements.
Content granted by the manufacturer for the actual software product. If the delivery object is the distribution right of software, API is exclusively obliged to transfer the distribution right in accordance with the manufacturer's licence conditions with the spatial, temporal and material content granted to it by the manufacturer for the specific software product. 2. API is not a vicarious agent of the manufacturer of the software product. Accordingly, API shall not be liable for faults by the manufacturer or its vicarious agents. The liability of API for its own faults shall remain unaffected within the framework of concluded agreements.
