1. Scope of Application
All current and future deliveries, services, and offers of Apfel shall be governed exclusively by these General Terms and Conditions (GTC). Deviating general terms and conditions of the contractual partner (“CP”) shall not become part of the contract, even if Apfel has not expressly objected to them at the time of contract conclusion. For storage towers LTL and LTK, the service contracts and service terms of Apfel shall apply in addition. 2. Offers and Conclusion of Contract
Offers made by Apfel are non-binding. Contracts shall only come into effect upon written order confirmation by Apfel.
Drawings, illustrations, dimensions, weights, or other performance data are only binding if expressly agreed upon. Apfel reserves the right to make design and form modifications as well as other deviations from the product description, provided these are reasonable for the CP and do not fundamentally alter the goods.
3. Transfer of Risk and Delivery Conditions
Unless the CP issues other instructions, Apfel shall be entitled to select the type of shipment and the transport company at its own discretion, without assuming liability, at the expense and risk of the CP. Upon delivery of the goods to the carrier, the risk of accidental loss or deterioration shall pass to the CP. The same applies if transportation is carried out by Apfel. Shipments will only be insured against transport damage upon request of the CP and at the CP’s expense. The CP must inspect the goods immediately upon delivery and, in case of suspected transport damage, prepare a written damage report without delay.
In the event that collection by the CP has been agreed, the risk shall pass to the CP upon notification of readiness for collection and availability of the goods by Apfel.
4. Delivery Conditions
Apfel shall be entitled to make partial deliveries, provided that the partial delivery is usable by the CP within the scope of the contractual purpose, that delivery of the remaining ordered goods is ensured, and that this does not result in significant additional effort or costs for the CP. Apfel reserves the right to deliver up to 10% more or less than the ordered quantity.
Delivery dates or deadlines are non-binding unless expressly confirmed in writing by Apfel. Even in the case of written confirmation of delivery dates or deadlines, Apfel shall only be in default after the CP has issued a reminder and set a reasonable grace period. Changes to delivery dates due to subsequent change requests by the CP or delays for which Apfel is not responsible remain reserved.
If delivery by Apfel is impossible due to unavailability of the goods, Apfel shall have the right to withdraw from the contract, provided Apfel has immediately informed the CP of the unavailability and refunded any payments already received.
If the CP is in default of acceptance, Apfel shall be entitled to store the goods at the CP’s risk. The CP shall bear the storage costs, even if storage takes place on Apfel’s premises.
5. Terms of Payment
The prices and payment terms stated in the order confirmation shall apply. Unless expressly agreed otherwise, all prices are exclusive of statutory value-added tax, EXW Dossenheim (Incoterms 2010), without deduction. Packaging, freight and forwarding costs, handling charges, shipping expenses, assembly, and travel costs are not included. 6. Warranty for Material Defects
The limitation period for asserting claims for material defects shall be one year from delivery. If Apfel has fraudulently concealed a defect or is liable in accordance with Section 7, paragraph 1, the statutory limitation period shall apply.
If the goods are operated, maintained, or modified improperly by the CP, claims for defects shall be excluded unless the defect was not caused thereby. The CP is obliged to notify Apfel in writing of any defects in due time in accordance with Section 377 of the German Commercial Code (HGB).
If a defect exists, Apfel shall have the right, at its own discretion, to remedy the defect or to deliver replacement goods (subsequent performance). If Apfel refuses subsequent performance, or if it is delayed beyond a reasonable period for reasons attributable to Apfel, or if subsequent performance ultimately fails, the CP shall have the right, at its discretion, to withdraw from the contract or to demand a reasonable reduction of the purchase price (abatement). Further defect claims of the CP, regardless of the legal basis, are excluded subject to any limited claims for damages under Section 7.
If Apfel delivers modifications or customized solutions according to the CP’s specifications, the CP shall be responsible for carrying out the required safety inspections (TÜV, CE, etc.) of specifications that deviate from the standard series.
7. Limitations of Liability
Apfel shall be liable for any damage, regardless of the legal basis, only if Apfel culpably breaches an essential contractual obligation (cardinal obligation) in a manner that endangers the contractual purpose, or if the damage is due to gross negligence or intent by Apfel, or arises from the assumption of a guarantee. Furthermore, Apfel’s liability under the German Product Liability Act, for injury to life, body, or health, for fraudulent concealment of a defect, and for the assumption of a guarantee regarding the condition of a product remains unaffected by the following limitations of liability.
If Apfel culpably breaches an essential contractual obligation (cardinal obligation) but not through gross negligence or intent, Apfel’s liability shall be limited to such typical damages or such typical extent of damage that could reasonably have been foreseen by Apfel at the time of contract conclusion. The same applies in the case of grossly negligent breaches of non-essential obligations by employees or agents who are not corporate bodies or senior executives of Apfel, as well as in cases of assumption of a guarantee, unless an explicit guarantee for the condition of a product has been assumed. In these cases, Apfel’s liability for purely financial losses shall be limited to 15% of the value of the goods concerned.
Claims for damages by the CP in cases of limited liability pursuant to the above paragraph shall become time-barred no later than one year from the date on which the CP becomes aware of the damage, or regardless of such knowledge, no later than three years from the occurrence of the damaging event. For claims relating to defects in goods, the limitation period specified in Section 6 shall apply.
8. Retention of Title
Until full payment of the invoice amount and all other outstanding claims existing at the time of payment, the delivered goods shall remain the property of Apfel (“goods subject to retention of title”). The CP shall not be entitled to pledge or assign as security the goods subject to retention of title before ownership passes to it. The CP shall store the goods subject to retention of title with the care of a prudent merchant for Apfel and insure them at its own expense against fire, water, theft, and other liability risks. Upon conclusion of the purchase contract, the CP hereby assigns its claims from the insurance policy to Apfel. Apfel hereby accepts this assignment.
If the CP processes, mixes, or transforms the goods subject to retention of title, this shall be done for Apfel as manufacturer within the meaning of § 950 of the German Civil Code (BGB), and Apfel shall acquire ownership or co-ownership of the intermediate or final products. In the event of processing, mixing, or combining the goods subject to retention of title with other goods not belonging to Apfel, Apfel shall acquire co-ownership of the new goods in proportion to the invoice value of the goods subject to retention of title to the other goods processed at the time of processing, combination, or mixing. The CP shall store the new goods owned or co-owned by Apfel for Apfel.
The CP is revocably entitled to resell the goods subject to retention of title or goods owned or co-owned by Apfel in the ordinary course of business, under retention of title. To secure Apfel’s claims, the CP hereby assigns to Apfel all claims arising from the resale against its customers or third parties in the amount of Apfel’s invoice value (including VAT); Apfel hereby accepts this assignment. If Apfel only has co-ownership of the goods, claims shall be assigned in the amount of the market value of Apfel’s share and shall take precedence over all other claims. Apfel authorizes the CP, subject to revocation, to collect the assigned claims in its own name for Apfel’s account, as long as the CP meets its payment obligations, is not in default, and no application for insolvency proceedings or suspension of payments exists.
In these cases, Apfel shall be entitled, even without prior withdrawal from the contract, which can only occur by express declaration and does not require a prior grace period, to take possession of the goods subject to retention of title and to enter the CP’s premises for this purpose. Proceeds collected on behalf of Apfel must be immediately transferred to Apfel. The CP is not permitted to include the claims in a current account relationship with its customer.
The CP is further obliged to provide Apfel with information at any time regarding its debtors and the amount of claims transferred to Apfel. Upon Apfel’s request, the CP shall notify its customer of the assignment and assist in all measures necessary to secure Apfel’s rights. Apfel is entitled to inform the third party of the assignment itself and to issue corresponding instructions.
If third parties access the goods subject to retention of title, intermediate or final products, or claims assigned to Apfel through seizure or other measures, the CP shall notify Apfel immediately in writing and provide all documents necessary to defend against such actions. If the third party is unable to reimburse Apfel for judicial and extrajudicial costs incurred, the CP shall be liable for Apfel’s resulting loss. If the realizable value of the securities exceeds Apfel’s claims by more than 10%, Apfel shall, at the CP’s request, release securities of its choice.
9. Miscellaneous Provisions
The intellectual property in all deliveries and services shall remain exclusively with Apfel. The CP agrees that images of delivered goods may be used by Apfel for advertising purposes and that the CP may be named as a reference by Apfel.
The CP may only offset counterclaims if they are undisputed or legally established. The place of performance shall be the registered office of Apfel. The exclusive place of jurisdiction shall be Heidelberg; however, Apfel shall also be entitled to bring action against the CP at its general place of jurisdiction. German law shall apply, to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
If one or more provisions of these GTC should be invalid, the validity of the remaining provisions shall remain unaffected.
