Terms & Conditions

General Terms and Conditions of Business of APROtech GmbH
 
  1. General
    To the extent that the other terms and conditions are not expressly agreed to contractually, the following general terms and conditions
    of business shall be agreed to for all, including future orders, deliveries and services (subsequently referred to as: deliveries).
    Contradictory terms and conditions of business of the business partners with regard to differences, supplements, etc. shall herewith
    be expressly contradicted. The business terms and conditions of the contract partners shall be excluded to the extent that they are not
    expressed agreed to in writing.

  2. Scope of the Deliveries 
    a
    .  The agreed to declarations shall apply definitively to the scope of the deliveries. To the extent that no applicable declarations exist,
    the order or the order confirmation of APROtech GmbH shall be considered definitive.

    b. APROtech GmbH reserves the unrestricted rights to ownership and copyrighted patent utilization rights for cost estimates,
    drawings, circuit diagrams, samples, software source code and other documents. These may only be made accessible to third
    parties after prior written consent of APROtech GmbH.
    Drawings, circuit diagrams, samples, software source code and additional documents belonging to offers shall be immediately
    returned on request to the extent that APROtech GmbH is not awarded the order. To the extent that documents are handed over to
    APROtech GmbH, it shall have the right to make these documents accessible to third parties to the extent that it transfers services
    and deliveries in this connection to third parties.

    c. APROtech GmbH shall be authorized to make partial deliveries. APROtech GmbH shall not be obligated to provide advance services.

    d. Cost estimates shall be reimbursed.

  3. Delivery Time, Deadlines

    a
    .  Delivery dates and deadlines shall not be binding for APROtech GmbH unless they have been expressly agreed to contractually as
    binding.
    When delivery deadlines have been expressly agreed to, APROtech GmbH shall have the right to correspondingly extend the
    delivery time afterwards in case of a hindrance due to an act of God, and should the service become impossible due to this or be
    significantly hampered, APROtech shall have the right to withdraw from the contract either completely or partially. In particular,
    an act of God shall be considered strikes, lockouts, other unforeseeable business disturbances as well as all breakdowns and/or
    delays related to the self-delivery of APROtech GmbH which were unforeseeable for APROtech GmbH at the time the contract was
    concluded.
    As soon as such delays become apparent, APROtech GmbH shall be obligated to inform the contract partner appropriately.
    Adherence to an agreed to delivery deadline shall be dependant on the condition that all documents to be supplied by the contract
    partner, required authorizations, releases, etc. are available, that timely clarification and authorization of the plans have ensued,
    and that the agreed to conditions of payment and other obligations have been adhered to by the contract partner.
    In cases in which payments due for earlier deliveries or services have not been made by the contract partner, APROtech GmbH shall
    be authorized to exercise the right of retention due it even when a delivery date was contractually agreed to.

    b.  In case of an acceptance delay by the contract partner, APROtech GmbH shall have the right to otherwise dispose of the goods
    without prior announcement and within an appropriate time deadline defined by APROtech GmbH to deliver equivalent goods
    under the agreed to conditions.

    c. The delivery deadline shall be considered as met when:

    For delivery without setup or assembly: When the ready-to-run shipment has been delivered for shipment or pickup within the
    agreed to delivery or service deadline.

    For delivery with setup or assembly: So soon as this has been accomplished within the agreed to deadline.
    In case of failure to meet the delivery date due to the fault of APROtech GmbH, compensation claims for the late delivery shall be
    limited to a total of 10% of the price for the portion of the delivery which could not be put into useful operation due to the delay.
    Further claims, in particular also contract penalties, shall be excluded. This shall not apply to the extent that APROtech GmbH can
    be accused of intent or gross negligence.

     d.  If the shipment or delivery of the goods is delayed at the request of or due to the fault of the contract partner, APROtech GmbH shall
    be authorized to charge a storage fee of 0.5% of the amount of the invoice for each month or part thereof beginning 1 month after
    announcement of readiness for shipment. The total storage fee shall be limited to 10% of the amount of the invoice unless APROtech
    GmbH documents actual higher costs. This shall also apply to a delay in acceptance by the contract partner.

  4. Price and Conditions of Payment
    The prices of APROtech GmbH are net prices, ex works (i.e., without transportation and packaging costs). All costs for shipment ex
    works, packaging, transportation insurance, etc. shall be invoiced separately. The same shall apply to setup and/or assembly (e.g., travel
    costs). The added value tax shall be calculated separately. APROtech GmbH shall have the right to charge reminder costs at the rate of
    at least Euro 15.00 per reminder. An offset by the contract partner shall only be permitted with uncontested or legally valid claims. The
    same shall apply to the retention of goods.
    APROtech GmbH shall be authorized to deduct payments from other obligations as per the „BGB“ (German Civil Code) even when the
    customer has contradictory regulations. We shall inform the customer of this.
    As per § 367 „BGB“ the deduction shall be made first from the costs, then from the interest and last from the primary debt. In this
    connection, first from the older and then only afterwards from the later debt.
    Payment shall not be considered as made until we have access to the money. In connection with payments by check, not until the check
    has been cashed.
    During the delay the entrepreneur shall charge interest on the money debt at the rate of 8% above the basic interest rate. APROtech
    GmbH reserves the right to prove and charge higher delay damage compensation to the entrepreneur.
    In the following cases APROtech GmbH shall be able to cause the total remaining debt of the orderer to come due as well as demand
    the required conditions and a security deposit:
    When circumstances become known that question the creditworthiness of the customer, in particular when a check submitted by us
    is not cashed, when a draft is not cashed, when payments are stopped, when an affidavit concerning the capital is submitted or an
    arrest order is issued to enforce this. The customer shall have the right to deduct payments only when his counterclaims were legally
    determined or were recognized by us.
    The customer shall only be able to utilize the right of retention of goods when his counterclaim is based on the same contract
    relationship.

  5. Shipping Cost
    Freight Costs (DE):

    Net value of the goods < EUR 2,000
    Net value of the goods EUR 2,000 - 4,999
    Net value of the goods EUR 5,000 - 9,999
    Net value of the goods >= EUR 10,000

    1.3% net value of the goods, min. EUR 6.00
    1.1% net value of the goods, min. EUR 26.00
    0.9% net value of the goods, min. EUR 55.00
    0.7% net value of the goods, min. EUR 90.00

    Freight Costs (EU):

    Net value of the goods < EUR 2,000
    Net value of the goods EUR 2,000 - 4,999
    Net value of the goods EUR 5,000 - 9,999
    Net value of the goods >= EUR 10,000

    2.8% net value of the goods, min. EUR 26.00
    1.8% net value of the goods, min. EUR 56.00
    1.2% net value of the goods, min. EUR 90.00
    0.9% net value of the goods, min. EUR 120.00

    Freight Costs
    (non-EU):
    Costs will be charged seperately.  
    Freight Costs Forwarder:  The costs will be charged depending on the volumes of goods.
  6. Transfer of Risk
    Risk shall pass to the purchaser/orderer even when free delivery was expressly agreed to as soon as APROtech GmbH has delivered the
    item to the shipping agent, carrier or the person or facility responsible for executing the shipment or the collector. When delivery with
    setup or assembly has been agreed to, the risk shall pass on the day of acceptance at the contract partner‘s company. To the extent that
    a trial run has been agreed to, after execution of the trial run.
    In this connection it shall be assumed that the trial run or the acceptance at the own company shall follow the ready-to-run setup or
    assembly without delay.
    When the orderer does not accept the offer of APROtech GmbH to perform a trial run and acceptance at the own company, the risk shall
    pass to the orderer after the expiration of 14 days after the sending of this offer. This rule shall also apply to any shipments concerning
    substitute deliveries or after reworking by APROtech GmbH.
    In connection with any return shipments by the purchaser/orderer to APROtech GmbH the purchaser shall carry the risk up until the
    handover at the business premises of APROtech GmbH.
    Any return shipments shall always be free of freight charges for APROtech GmbH.

  7. Title Retention
    All deliveries/services shall exclusively take place under the retention of title. Delivered goods shall remain the property of APROtech
    GmbH until the fulfillment of all obligations against the purchaser/orderer resulting from the mutual business relations.
    Attachment or security transfer of title shall be prohibited prior to full payment. This shall also always apply to resale. The reseller shall
    be allowed to resell revocably during the normal course of business under the condition that the reseller receives payment from his 
    customer. All claims from the resale to which the reseller is entitled shall already be ceded by the contract partner of APROtech GmbH
    to secure the value of the open claims to which APROtech GmbH is entitled.
    The contract partner shall be authorized and obligated to collect the ceded claims.
    APROtech GmbH shall have the right to announce the ceding at all times to the customers of the contract partner. To the extent that the
    value of all security interests to which the deliverer is entitled as per the above rule exceeds the amount of all secured claims by more
    than 20%, APROtech GmbH shall release an appropriate portion of the security interests at the request of the contract partner.
    To the extent that the contract partner processes, joins or mixes goods, APROtech GmbH shall become the co-owner of the new item
    in the ratio of the goods delivered by APROtech GmbH to the goods not delivered by APROtech GmbH. The newly created goods shall
    be considered as conditional goods of APROtech GmbH.
    The contract partner shall be obligated to correctly store the delivery item, save it free of charge and insure it against fire, water damage
    and theft. The contract partner shall be obligated to inform APROtech GmbH immediately of an endangerment to the property due to
    threatened or already occurred attachment, retention, foreclosure measures, etc. and, in case of foreclosure, immediately point out the
    property of APROtech GmbH. The contract partner shall be liable for the damage resulting from acts of omission and any intervention
    costs. The costs for prevention of attachment shall be charged to the contract partner.

  8. Damage Compensation Claims
    To the extent that something else is not expressly agreed to or an exclusion of liability is legally impermissible, all liability of APROtech
    GmbH, in particular damage and expense compensation claims of the contract partner, shall be excluded except in cases of intent or
    gross negligence or harm to life, health or limb. Exclusion of liability shall also apply in particular to faults during contract conclusion,
    non or poor fulfillment and to the liability for secondary damages or indirect damages.

  9. Period of Limitation
    The period of limitation for claims against APROtech GmbH shall be – to the extent legally permitted – only 12 months for periods of
    limitation longer than one year. For shorter periods of limitation the respective legal period shall remain.

  10. Warranty
    a. A warranty exceeding the legal warranty regulations shall only be issued for especially designated goods or for express promises in
    writing.

    b. Deficiencies, lack of promised properties, transportation damages, missing quantities and wrong deliveries, etc. shall be reported to
    APROtech GmbH in writing without delay after receipt of the delivery and any handling/processing shall be immediately stopped.
    It shall apply to general merchants that, in accordance with § 377 ff. „HGB“ (German Commercial Code), the goods shall be checked
    by the seller immediately after delivery and hidden deficiencies reported in writing. The goods check shall take place within a
    period of two weeks at the latest.
    When a timely report fails to be made, the delivery shall be considered authorized.
    Any transportation damages shall be reported without delay to APROtech GmbH and the carrier.

    c. In case of deficiency complaints which were made in a timely manner and were justified, APROtech GmbH shall have the choice
    of reworking or delivering deficiency-free replacement or providing a deficiency-free service. The right of the contract partner to
    reduction if the later fulfillment should fail shall remain intact.

    d. If the customer receives deficient assembly guidelines, APROtech GmbH shall only be obligated to deliver deficiency-free assembly
    guidelines and this only when the deficiency of the assembly guidelines would conflict with correct assembly.

    e. The warranty and/or guarantee obligation shall be excluded for:
    Damages and losses which are caused by mistakes during installation to the extent that these are not performed by APROtech
    GmbH, or by fire, lightning strike, an act of God, etc.
     
    Incorrectly performed repair attempts as well as other manipulations by customers or other persons not authorized by
    APROtech GmbH for this purpose.
     
    Damages due to non-adherence to operating instructions or further instructions of the personnel of APROtech GmbH.
     
    Transportation damages.
     
    Damages due to the use of unsuitable or lesser-value replacement parts.
     
    Damages due to wear, moisture, highly heated rooms, other weather and temperature influences.
     
    Wear and tear parts, ink ribbons, etc.
     
    For only insignificant deviation from the property agreed to, for only insignificant impairment of the usefulness or for slight
    deviations in design from the information in catalogs, advertising materials, samples, etc.
     
    Insufficient maintenance of the goods by the contract partner.

    f. Any warranty for used goods which are delivered by APROtech GmbH shall be excluded.
    These goods shall be sold as seen.

    g. APROtech GmbH shall be authorized to invoice the contract partner for the costs and expenses incurred by APROtech GmbH
    should the complaint be unjustified.
     
    h. The following shall apply to the software in addition to the other general terms and conditions:
    To the extent that software is the subject of the contract, the respective licensing conditions of the software manufacturer shall
    apply in addition and, if appropriate, restrictively even when these conditions were not known to the purchaser in advance. If the
    purchaser was unaware of the licensing conditions, he shall be permitted to return the supplied software unused, in its original
    packaging and with license seal intact within one week after delivery.
    APROtech GmbH shall assume the software warranty for the purchaser which the software manufacturer would have provided in
    his licensing conditions. APROtech GmbH shall not be liable for the suitability for the operations of the purchaser of software which
    was not developed by APROtech GmbH.
    APROtech GmbH shall not promise that the software developed by APROtech GmbH will run correctly and without interruption
    and that the functions contained in the software will be executed for all combinations selected by the purchaser and will
    correspond to the requirements of the purchaser.
    In connection with software errors which do not only affect the contractual utilization insignificantly, APROtech GmbH shall reserve
    the right
    to the extent that APROtech GmbH is in a position to correct the error – to correct the error based on its significance by
    installing another software version, by giving information on the correction or by eliminating the effects of the error.

    i. Claims of the orderer against APROtech GmbH for required expenses due to subsequent fulfillment, in particular transportation
    costs, shall be excluded to the extent that the expenses increase since the object of the delivery was subsequently brought to a
    location other than the agreed to delivery address of the orderer.
     
    j. To the extent that claims against APROtech GmbH are made, the settlement negotiations shall be considered concluded when
    APROtech GmbH does not react to a letter of the contract partner for longer than 8 weeks.
     
    k. Deficiency claims against APROtech GmbH shall become invalid after twelve months to the extent that longer periods are legally
    prescribed. When the periods of limitation are shorter, the shorter period of limitation shall remain valid. Shortening of the period
    of limitation shall not apply when this is legally excluded, in particular also not when a deficiency is fraudulently concealed.
    The legal regulations concerning expiration delay, delay and new beginning of the periods shall remain intact.

  11. Impossibility/Contract Adjustment
    Should it become impossible for APROtech GmbH to provide the delivery or service which it is responsible for, the general principles of
    law shall apply with the following provision: If the impossibility is the fault of APROtech GmbH, the contract partner shall be authorized
    to request damage compensation, but restricted to 10% of the value of the particular portion of the delivery or service which could not
    be put into useful operation due to the impossibility. Damage compensation claims of more than the stated amount of 10% shall be
    excluded.
    This shall not apply to the extent that liability is mandatory due to intent or gross negligence or the harming of life, limb or health.
    The right of the orderer/purchaser to withdraw from the contract shall remain intact.
    To the extent that unforeseen events significantly change the economic significance or the content of the delivery or service or affect
    APROtech GmbH business operations, the contract shall be appropriately adjusted by APROtech GmbH to the extent that this is done
    in good faith. To the extent that this is not economically advisable, APROtech GmbH shall have the right to withdraw from the contract.
    If APROtech GmbH wants to utilize its right to withdraw, it shall inform the orderer without delay as to the recognition of the extent of
    the event, namely also then when an extension of the delivery time was first agreed to with the orderer.

  12. Commissioning of Systems
    When APROtech GmbH must commission control systems, the orderer shall make available the required resources (media) in the
    required scope. Commissioning shall be registered with APROtech GmbH with a suitable period. Employees of the orderer who are
    familiar with the system shall be present during commissioning. The orderer shall ensure the accessibility of the devices to be commis
    -
    sioned. If the device assembly and installation is not included in the scope of the contract of APROtech GmbH, the orderer shall ensure
    the assembly and cabling of field devices as well as the connection of the devices in the switching cabinet.

  13. Court of Jurisdiction, Place of Fulfillment
    a. When the contract partner is a merchant, the general place of jurisdiction shall be the company premises of APROtech GmbH for
    all disagreements resulting indirectly or directly from the contractual relationship.

    b. German material law shall apply to the contractual relationships under exclusion of the Convention of the United Nations on
    contracts for the International Sale of Goods (CISG).

    c. Place of fulfillment for deliveries and services of APROtech GmbH shall be the company premises of APROtech GmbH.

  14. Other
    Should one of more of the regulations of a contract including these general terms and conditions of business become invalid, this shall
    not affect the validity of the other regulations. In such a case the parties shall replace invalid regulations with such valid regulations that
    most closely approxi mate the economic purpose of the invalid regulation.
    This shall apply correspondingly to any gaps in the contract. Contract changes and contract supplements shall be made in writing.
    The contract partner shall carry the responsibility for any necessary official authorizations, in particular export authorizations.