GTC

Standard Terms and Conditions of APL GmbH – Status: 01.08.2024

I. Applicability

1. All quotations, supplies and services by APL Automobil-Prüftechnik Landau GmbH (hereinafter referred to as “APL”) shall be subject to these Standard Terms and Conditions. These Standard Terms and Conditions are an integral part of all agreements concluded by APL with its contractual partners (hereinafter referred to as “Clients”) for the supplies or services offered by APL. They shall also apply to all future supplies, services or quotations to Clients, even if they are not separately stipulated again.
2. Client’s or third party’s terms and conditions shall not apply, even if APL does not expressly object to their application in a particular case. Even if APL refers to a letter containing or referring to the Client’s or a third party’s terms and conditions, this shall not constitute consent to the application of such terms and conditions.
3. Individual agreements made with the Client in individual cases shall take precedence over these Standard Terms and Conditions. A written contract is required for such agreements.

II. Scope of supplies and services

1. The scope of supplies and services shall be defined exclusively and finally by the written quotation issued by APL or, to the extent applicable, by the written agreements concluded between APL and the Client. Any supplies or services not explicitly included in the scope of supplies and services are hereby expressly excluded from the scope of supplies and services. Oral agreements between the parties shall be superseded by APL’s quotation or by written agreements between the parties, unless expressly agreed otherwise by the parties.
2. Any subsequent extension or modification to the scope of supplies and services or these Standard Terms and Conditions (including this clause) shall be made in writing.
3. The scope of delivery and services defined above corresponds to the contractually agreed condition of the subject matter (“vertraglich vereinbarte Beschaffenheit”) of the agreement and is deemed to be a final and exclusive stipulation of condition according to the provisions of the law.
4. The Client is fully responsible for the information, documents and equipment to be provided by him, such as technical specifications, drawings, models, templates, samples, test specimens, fixtures or other such items.

III. Transfer of risk in the case of carriage transportation

1. In the event that APL agrees with the Client in writing that the obligations of APL under the agreement shall also include the carriage of objects or goods (hereinafter referred to as “the Goods”) to an unloading point agreed with the Client, the following shall apply:
   The carriage of the Goods shall be effected, at the option of APL, either by APL’s own personnel as part of its internal carriage operations or by a carrier commissioned by APL.
   Unless agreed between APL and the Client that the Goods shall be unloaded by the Client, the Client shall be obligated to provide ramps fit for the purpose of unloading the Goods from the delivery vehicle and any unloading equipment and facilities which may be required for such unloading at the agreed unloading point, and the Client shall also be obligated to enable APL or the carrier commissioned by APL to unload the Goods without hindrance and without undue delay after the arrival of the delivery vehicle at the agreed unloading point.
   Unless otherwise explicitly agreed between APL and the Client, the obligations of APL under the agreement shall not include the transfer of the unloaded Goods to the storage rooms of the Client.
2. If the unloading of the Goods at the delivery point is included in APL’s obligations under the agreement, the risk of accidental loss and accidental deterioration of the Goods shall be deemed transferred to the Client upon the unloading and handing over of the Goods at the delivery ramp at the agreed delivery point.
   If APL has agreed with the Client that the Client shall unload the Goods at the unloading point, the risk in respect of the Goods shall pass to the Client upon provision of the open and ready-to-unload delivery vehicle at the agreed unloading point.
3. The risk of accidental loss and accidental deterioration of the Goods shall also pass to the Client if the Client is in default of acceptance (“Annahmeverzug”). If the Client is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Client is responsible, APL shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).

IV. Payment terms

1. Invoice amounts shall be paid within 30 days without any deduction, unless otherwise agreed in writing. The date of payment shall be determined by the date of receipt of payment by APL. The Client shall bear the risk of the payment method.
2. In the event the agreed payment deadlines have been exceeded, the statutory default interest shall be charged – without the need for a special reminder and subject to the assertion of further rights.
3. The Client is only entitled to offset and withhold payments if his counterclaim is undisputed or has been legally established. The Client shall be entitled to other counterclaims, in particular the defence of non-performance of the contract, only to the extent permitted by law.
4. APL shall be entitled to set off its claims against the Client’s affiliates pursuant to Section 15 of the German Stock Corporation Act (Aktiengesetz) to the extent that such claims are substantially related to the supplies or services owed under this agreement.
5. APL shall be entitled to refuse its outstanding deliveries or services under a contractual agreement if, after the conclusion of the agreement, it becomes apparent that APL’s claim for payment under the respective contractual agreement is jeopardized by the Client’s inability to pay. APL’s right to refuse performance shall expire if payment is made or security is provided. This shall not affect APL’s other statutory rights.

V. Deadlines for delivery and performance

1. In the event that APL states deadlines for the delivery of goods or the performance of services to the Client, said deadlines will be determined with due care in view of technical and commercial factors but shall not be binding on APL unless APL explicitly confirms such deadlines to be binding in writing.
2. Dates and deadlines shall only become binding when they have been explicitly agreed by APL and the Client to be binding in writing.
3. APL may, without prejudice to its rights arising from the Client’s default, demand from the Client an extension of the deadlines for delivery or performance or a postponement of the deadlines for delivery or performance by the period during which the Client fails to fulfil its contractual obligations towards APL.
4. In the event of force majeure or other events unforeseeable at the time of conclusion of the agreement which are beyond the reasonable control of APL (such circumstances include, but are not limited to disturbances to business operations, strike, labour stoppages, lockout, lack of transport capacity, traffic disruptions, flood, fire, acts by authorities, energy and raw material supply problems, epidemics, pandemics or the non-delivery, incorrect or untimely delivery by suppliers of APL), including such circumstances affecting APL’s suppliers, APL shall not be liable for the impossibility of delivery or for delays in delivery and the period agreed for the affected supplies and services shall be extended by the duration of such circumstances and the consequences thereof including a reasonable start-up period. If, as a result of such circumstances, it becomes impossible to perform the services under the agreement in the long term, or APL is entitled to refuse to perform such services under Section 275, Paras 2 and 3, German Civil Code, APL shall be entitled to withdraw from the agreement. If the Client cannot reasonably be expected to accept the supplies or service as a result of such delay, it may withdraw from the agreement by immediate written declaration to APL.

VI. Guarantees, rights of the Client in the event of defects

1. APL warrants that the supplies and services to be provided in accordance with Section II will be performed with due care and in compliance with the recognized state of the art. Any declarations made by APL concerning the properties or specific characteristics of goods and services shall be deemed to have been made solely for the purpose of defining the agreed characteristics of such supplies and services in accordance with Sections 434 and 633, Civil Code. APL shall not be deemed to have provided any further guarantee as to the properties of goods and services except where APL has explicitly undertaken in writing to provide a guarantee giving the Client rights which are independent from the statutory rights of the Client in connection with such goods and services.
2. The Client shall notify APL forthwith in writing of any defect in goods supplied or in services performed by APL; each such notification shall include a precise description of the defect concerned. The Client shall not be entitled to delay payment of the invoice for such supplies and services because of a defect.
3. In the event of defects in the goods supplied or services performed by APL to the Client, the Client shall be entitled to require APL to undertake subsequent performance (“Nacherfüllung”) of the agreement. At the option of APL, such subsequent performance shall take the form of remedial action with respect to the defect concerned or the supply of replacement goods or services free from defects. In the event that subsequent performance of the agreement fails or APL fails to remedy any defect within a reasonable period of time granted by the Client, the Client shall be entitled to rescind the agreement for the goods or services concerned or to claim a reasonable abatement (“Minderung”) of the remuneration agreed. Subject to the provisions stated in Section VII. herein below, this provision shall be without prejudice to any rights of the Client to claim damages or compensation for expenditure incurred to no avail.
4. In the event that the Client modifies the delivery item or has it modified by a third party without APL’s consent, rendering it impossible or unreasonably difficult to remedy the defect, the warranty shall lapse. In any case, the Client shall bear the additional costs of remedying the defect resulting from such modification.
5. The warranty period shall be one year from the date of delivery or, if acceptance is required, from the date of acceptance. This period shall not apply to Client’s claims for damages arising from injury to life, limb or health or from intentional or grossly negligent breach of duty by APL or its agents (“Erfüllungsgehilfen”), which shall be time-barred in accordance with the statutory provisions.

VII. Limitations of liability

1. The liability of APL, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall be limited in accordance with this Section VII insofar as the damage is due to a fault (“Verschulden”) of APL.
2. APL shall not be liable in the event of ordinary negligence (“einfache Fahrlässigkeit”) by its executive bodies, legal representatives, employees or#kümm other agents, except in the event of a breach of a material contractual obligation (“vertragswesentliche Pflicht”). Material contractual obligations shall be obligations the performance of which makes the proper performance of the agreement possible and on the performance of which the other party normally relies and may normally rely.
3. To the extent that APL is liable for damages pursuant to Section VII.2, this liability shall be limited to such typical damage as could reasonably have been foreseen at the time the agreement was concluded. This limitation shall not apply in the event of intentional or grossly negligent conduct by members of APL’s executive bodies or senior management (“leitende Angestellte”).
4. The limitations of liability provided for in this Section VII shall not apply in the event of intentional misconduct by APL, for guarantees provided by APL or procurement risks, unless these procurement risks are based on force majeure, for injury to life, limb or health or under the Product Liability Act (Produkthaftungsgesetz). The provisions of this Section VII shall not operate to change the burden of proof to the detriment of the Client.
5. The above exclusions and limitations of liability shall apply to the same extent with regard to the personal liability of the executive bodies, legal representatives, employees and other agents of APL.
6. The Client is aware that when providing APL with vehicles, engines, gearboxes, or other components for testing purposes, the Client may not demand compensation for any wear and tear or comparable damage to these components, insofar as these impairments are to be regarded as a typical and direct consequence of the services to be provided by APL and are not based on intent or gross negligence on the part of APL.

VIII. Confidentiality, intellectual property rights

1. The Client shall keep confidential any and all information and documents concerning APL which may come to its attention in connection with the goods supplied or the services performed by APL, until such information and documents have become public knowledge. Except to the extent that the provision of such information and documents is part of the services of APL under the agreement, the Client shall handle with due care any and all information and documents received from APL in or in connection with the goods supplied and the services performed, irrespective of whether any such information or documents is explicitly designated as an industrial or trade secret of APL or is evidently an industrial or trade secret of APL, the Client shall not divulge any such information or document to any third party and shall not record, store, copy or otherwise file or use any such information or document.
2. APL shall remain the owner of all present and future industrial property rights (in particular patents, trademarks, utility models, designs and licenses), copyrights and know-how used by APL for the delivery of goods or performance of services under the agreement. To the extent it is necessary for the contractually agreed and/or specifically intended purpose due to the nature of the agreement, APL shall grant to the Client a free of charge, non-exclusive, non-transferable license to use such work results or other intellectual property rights to the extent that such use is necessary in connection with the use of the services performed or goods supplied by APL under the agreement.

IX. Final provisions

1. Any legal relationships between APL and the Client shall be governed by and construed and interpreted in accordance with the law of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The place of performance for all obligations under the agreement shall be Landau, unless otherwise agreed with the Client.
3. The exclusive venue for all disputes arising out of or in connection with the business relationship between the Client and APL shall be Landau. However, APL shall be entitled to bring an action against the Client at the Client’s seat. Compulsory statutory provisions on exclusive forums shall remain unaffected.
4. If any of the provisions of these Standard Terms and Conditions is or becomes ineffective or void, the other provisions of these Standard Terms and Conditions and these Standard Terms and Conditions as a whole shall remain in full force and effect.

Download:

APL CTG (englisch) Status: 01.08.2024