Effective: August 2024

1. Common Provisions for Contractual Services, Repairs, and Sales

1.1 Scope

1.1.1. All deliveries, services, and offers are made exclusively based on these General Terms and Conditions. They are an agreed part of all contracts and apply to all present and future business relationships, even if they are not explicitly included again. The version valid at the time of the contract conclusion is applicable and is also made available online.

1.1.2. Consumers, within the meaning of these terms and conditions, are natural persons who enter into business relationships without acting in the exercise of a commercial or independent professional activity. Entrepreneurs, in the sense of these terms and conditions, are natural or legal persons or legally capable partnerships and companies with whom business relationships are entered into, and who act in the exercise of their commercial or independent professional activity. Customers, in the sense of these terms and conditions, are both consumers and entrepreneurs.

1.1.3. Deviating, conflicting, or supplementary general terms and conditions will not become part of the contract, even if known, unless their validity is explicitly agreed to in writing.

1.2 Contract Conclusion

1.2.1. Our offers are non-binding and represent a non-binding invitation to order goods. Our presentation of goods on the internet does not constitute an offer, but rather an invitation to the customer to order. Technical changes, as well as changes in the form and/or color of the goods, are reserved within reasonable limits.

1.2.2. By ordering goods/services, the customer makes a binding declaration of intent to acquire the ordered goods/services. We are entitled to accept the contractual offer contained in the order within two weeks of receiving it. Acceptance can either be declared in writing or by delivering the goods or commencing the services.

1.2.3. For consumers, the withdrawal periods applicable according to the German Civil Code (BGB) apply. Consumers can revoke the order within 14 days without stating reasons. Any payments already received will be refunded within 14 days of receiving your withdrawal. For services already commenced, including any material deliveries and related procurement or return costs, payment of a reasonable amount for these services is deemed agreed.

1.2.4. The contract is concluded with the reservation that, in the event of incorrect or improper self-delivery (i.e., delivery by our suppliers), we may not or only partially provide the services to our contracting partner. This only applies if the non-delivery by our suppliers is not our responsibility.

1.2.5. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately. Any payment already made will be refunded without delay.

1.2.6. The quality of the ordered goods is determined by the manufacturer's specifications or the respective product descriptions. Deviating qualities require express agreement, as they are part of the contract.

1.2.7. Software and software licenses or activations, as well as client access licenses for any software, are generally excluded from exchange or return by the manufacturers. Therefore, exchange and return of these products are also excluded for our customers.

1.3 Payment, Default

1.3.1. Unless otherwise agreed or offered, we adhere to the prices stated in our offers for 90 days from the offer date.

1.3.2. The unit prices offered are only valid for the complete assignment of the offered scope of services. Quantities listed in the offer are estimates and, unless explicitly stated otherwise, are non-binding.

1.3.3. For contracts with consumers, VAT (excluding packaging costs) is only included in our individual and unit prices if explicitly stated in the offer. Otherwise, individual prices are listed as "net, plus applicable VAT" as is customary in the trade. Delivery and shipping costs are not included in our prices.

1.3.4. Unless otherwise agreed in writing, our prices for contracts with entrepreneurs apply ex works, excluding packaging and plus the applicable VAT. Packaging costs are invoiced separately.

1.3.5. Unless otherwise agreed, payments must be made without any deduction to one of our specified accounts. Discounts are only permitted with a written special agreement.

1.3.6. Unless otherwise agreed, the invoice amount is payable within 14 days after delivery in one sum. Partial payments require written agreement.

1.3.7. If the customer is in default of payment in whole or in part, they must pay default interest from that point, in accordance with the applicable legal rate, without prejudice to other rights. Currently, this is 9 percentage points above the base interest rate for contracts with entrepreneurs (§ 288 para. 2 BGB) and 5 percentage points above the base interest rate for contracts with consumers (§ 288 para. 1 BGB). If we incur a higher loss due to default than the statutory rate, we are entitled to prove and claim it. However, the consumer has the right to prove that the default damage claimed by us was not incurred or was incurred at a significantly lower rate.

1.3.8. The customer may only offset claims if their claims have been legally established or are undisputed. The customer is then entitled to offset if they assert defect claims or counterclaims arising from the same contractual relationship.

1.3.9. The customer may only exercise a right of retention if their counterclaim arises from the same contractual relationship.

1.4 Limitation of Liability

1.4.1. We are fully liable for damages to life, body, and health caused by a negligent or intentional breach of duty, including damages caused by the negligent or intentional breach of duty by our legal representatives or vicarious agents.

Furthermore, we are liable for damages covered by the Product Liability Act and for all damages arising from intentional or grossly negligent breach of contract, including fraud, by our legal representatives or vicarious agents. If we have provided a quality or durability guarantee for the goods or parts thereof, we are also liable under this guarantee. However, we are only liable for damages resulting from the absence of guaranteed quality or durability if the risk of such damage is covered by the quality or durability guarantee.

1.4.2. We are also liable for damages caused by simple negligence if this negligence concerns the violation of contractual obligations whose fulfillment is essential for achieving the purpose of the contract (cardinal obligations). However, we are only liable to the extent that the damages are typically associated with the contract and foreseeable. We are not otherwise liable for the simple negligent breach of non-essential contractual obligations. This limitation of liability also applies to the liability of our legal representatives, senior executives, and other vicarious agents.

1.4.3. Any further liability, regardless of the legal nature of the claim, is excluded. To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and vicarious agents.

1.5 Miscellaneous

1.5.1. German law applies. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.

1.5.2. If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract, including claims on checks and bills of exchange, is the District Court of Traunstein or the Local Court of Mühldorf, depending on the value of the dispute.

1.5.3. Should any provision of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid or partially invalid provisions shall be replaced by a provision whose economic effect comes as close as possible to the invalid provisions.

2. Terms of Sale

2.1 Transfer of Risk

2.1.1. For consumers, the risk of accidental loss and accidental deterioration of the sold goods, even in the case of shipment sales, passes to the consumer upon the handover of the goods.

2.1.2. For entrepreneurs, the risk of accidental loss and accidental deterioration of the goods passes to the entrepreneur upon handover or, in the case of shipment sales, upon delivery of the goods to the carrier, freight forwarder, or the person or institution designated to carry out the shipment.

2.1.3. Handover is deemed to have occurred if the customer is in default of acceptance.

2.2 Warranty and Liability for Defects

2.2.1. Any claims for warranties are void if our operating and maintenance instructions are not followed, if changes are made to the products, parts are replaced, or consumables are used that do not correspond to the original parts.

2.2.2. If the purchase is a commercial transaction for both parties, the customer must inspect the delivered goods immediately upon receipt for quality and quantity and notify us in writing of any defects; otherwise, the assertion of any warranty claims is excluded. The merchant must report hidden defects in writing within one week of their discovery. Timely dispatch of the defect notification is sufficient to meet the deadline. The merchant bears the full burden of proof for all claim prerequisites, particularly for the defect itself, the time of discovery, and the timeliness of the defect notification.

2.2.3. Consumers have the option to choose between remedying the defect through repair or replacement. We are entitled to refuse the chosen type of remedy if it is only possible with disproportionate costs, provided that the alternative method of remedy does not pose significant disadvantages for the consumer. For entrepreneurs, we shall initially provide remedy for defects at our discretion, either by repair or replacement.

2.2.4. If the remedy fails, the customer can generally choose to reduce the purchase price (reduction), rescind the contract (withdrawal), or claim damages. However, in the case of minor defects, the customer does not have the right to withdraw from the contract. If the customer opts for damages, the liability limitations as outlined in section 1.4 of these terms and conditions apply.

2.2.5. For consumers, the warranty period is two years from the delivery of new goods. For used goods, the warranty period is one year. For entrepreneurs, the warranty period is one year from the delivery of new goods, and for used goods, the warranty is excluded. For claims of damages due to intent or gross negligence, or in the event of injury to life, body, or health caused by an intentional or negligent breach of duty by us, our representatives, or agents, the statutory limitation period applies. Our liability under the Product Liability Act remains unaffected.

2.2.6. The product description provided by the manufacturer is deemed to be the agreed quality of the goods. Public statements, endorsements, or advertisements by the manufacturer do not constitute a contractual description of the quality of the goods.

2.3 Retention of Title

2.3.1. Until full payment of the purchase price, including VAT, we retain ownership of the delivered goods. For entrepreneurs, we retain ownership of the goods until all claims arising from an ongoing business relationship existing at the time of delivery or arising later are fulfilled.

2.3.2. The customer is obliged to handle the purchased item with care as long as ownership has not yet passed to them. In particular, they are required to sufficiently insure the goods at their own expense against theft, fire, and water damage at their new value. If maintenance and inspection work is necessary, the customer must carry this out regularly at their own expense. As long as ownership has not yet been transferred, the customer must promptly notify us, at least in text form, if the delivered item is seized or subjected to any other third-party interventions. If the third party is not able to reimburse us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO (German Civil Procedure Code), the customer is liable for the loss incurred by us.

2.3.3. The processing or transformation of the goods subject to retention of title by the entrepreneur is always carried out in our name and on our behalf. In this case, the customer’s expectant right to the goods subject to retention of title continues with the transformed item.

2.3.4. If the goods subject to retention of title are processed, combined, or mixed with other materials not supplied by us, we acquire co-ownership of the new item in the ratio of the objective value of our goods subject to retention of title to the other processed items at the time of processing. If the combination or mixing occurs in such a way that the customer’s item is considered the main item, it is agreed that the customer transfers co-ownership to us proportionately, and the customer holds the sole ownership or co-ownership thus created in safekeeping for us.

2.3.5. The entrepreneur is entitled to resell the goods subject to retention of title in the ordinary course of business. They hereby assign to us all claims in the amount of the invoice value that accrue to them from the resale to a third party. We hereby expressly accept the assignment. After the assignment, the entrepreneur is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the entrepreneur fails to meet their payment obligations properly and is in default of payment.

2.3.6. If the goods subject to retention of title are connected to a property by the customer on behalf of a third party, the customer also assigns to us those claims that arise to them against the third party through the connection of the goods subject to retention of title with a property to secure our claims against the customer. We hereby expressly accept this assignment.

2.3.7. In the event of contractual breaches by the customer, particularly in the case of default of payment, we are entitled to withdraw from the contract and demand the return of the goods subject to retention of title, as well as to request assignment of the customer’s claims for surrender against third parties.

3. Conditions for Services and Repairs

3.1 General

3.1.1. The award and contract regulations for construction work (VOB) Part B and Part C apply as a whole for the execution of construction work.

3.1.2. Our offers are our property and intended solely for internal use by our customers. We object to any other use or transfer to third parties. In the event of unauthorized delivery of these documents or parts thereof to third parties, especially as a basis for obtaining further offers, we are entitled to charge the customer for the effort involved in creating the offer, based on the usual compensation under the HOAI or at local rates.

3.1.3. The documents belonging to our offer, such as illustrations, drawings, etc., are only approximately accurate regarding dimensions and weight unless accuracy has been explicitly confirmed. We reserve all ownership and copyright rights to these documents. They must not be made accessible to third parties or misused without our consent. If no order is placed, the documents must be returned unsolicited.

3.1.4. Work not related to our industry, such as masonry, painting, drywall, carpentry, roofing, or metalwork, is not included in our offer unless expressly stated in the item description.

3.2. Delivery Dates / Execution Times

3.2.1. The delivery and/or completion dates indicated in the offers are preliminary and therefore non-binding, unless otherwise expressly and in writing agreed upon. Even in such cases, they are only binding if we are not prevented from meeting these deadlines due to circumstances beyond our control. Such circumstances also include changes or the absence of necessary documents for executing the order.

3.2.2. For deadlines and dates that are not expressly designated as fixed dates in the order confirmation, the contracting party may grant us a reasonable grace period for delivery/service two weeks after they have expired. We will only be in default after the expiration of this grace period.

3.2.3. Self-supply remains reserved.

3.2.4. We are entitled to make partial deliveries and perform partial services if these are reasonable for the client.

3.2.5. If the contracting party is entitled to a contractually agreed or statutory right of withdrawal, and we set a reasonable period for the exercise of such withdrawal right, the right of withdrawal lapses if the withdrawal is not declared before the end of the set period.

3.2.6. The contracting party shall only be entitled to claim under § 8 No. 3 VOB/B in cases of delay if a specific calendar date was agreed upon in writing at the beginning and for the completion of the work, and the contracting party, after the expiration of that date, has set a reasonable grace period and declared that the contract will be revoked after the grace period expires without result.

3.2.7. The services offered will be performed during our regular business hours unless otherwise explicitly offered. These hours are Monday to Friday from 6:00 AM to 6:00 PM. Work outside of these hours will be subject to standard surcharge rates. These surcharges are:

  • Saturday: 6:00 AM to 6:00 PM: 25%

  • Monday – Saturday: 6:00 PM to 10:00 PM: 25%

  • Night work: Monday – Saturday, after 10:00 PM: 60%

  • Sunday and public holidays: 100%

  • Easter / Pentecost / Christmas / May 1st: 150%

 

3.3. Prices, Billing, and Payment Terms

3.3.1. Payments shall be made in accordance with the terms of the VOB/B.

3.3.2. For orders lasting longer than one month, interim payments are to be made in accordance with the progress of the work performed. The regulations under the BGB (German Civil Code) or VOB/B apply.

3.3.3. Retentions as security, e.g., to ensure contract fulfillment or for warranty and defect claims, only apply if they have been expressly and in writing agreed upon.

3.3.4. If additional services arise, the client can request supplementary offers, or we may submit them. Should additional services be performed on the instruction of an authorized person before a subsequent price agreement is reached, these services will be billed at local and reasonable rates.

3.3.5. When billing by unit prices, only the actual quantities incurred and measured are billed at the unit prices stated in the offer or contract. Data lines are generally billed according to measurement protocol plus 10% for wastage. Additionally, the uninterrupted or unimpeded execution of all listed work during normal working hours is the basis.

3.3.6. When billing based on time and material costs, such as for unforeseen work or work performed under the direction of an authorized person (on-site management), the actual costs are billed. The material and labor, travel time, and use of vehicles, machines, measuring equipment, and any incidental expenses, each with a local and reasonable surcharge for risk and profit, are billed. Unless otherwise agreed, the hourly rates are as per the current price list of APLEMIS design & build AG i.G., which we are happy to send you upon request. In case of dispute, local and reasonable hourly rates plus a reasonable surcharge for risk and profit shall apply. For material deliveries, the current gross list prices of wholesalers or manufacturers apply, except for the Rittal brand.

3.3.7. Any travel and transportation flat rates mentioned in the offer, as well as offered mileage charges, include, unless explicitly otherwise stated or agreed in writing, only the costs for the specified installation vehicle, including its standard equipment with standard tools, small machines, and measuring equipment, as well as standard small parts. The cost of travel time for personnel is not included. Travel time is billed as working time.

3.3.8. The contracting party may only offset claims if their counterclaims are legally established or undisputed. The contracting party is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship. For merchants, withholding payments due to or offsetting with counterclaims is only permissible if these counterclaims are undisputed or legally established.

3.4. Acceptance

3.4.1. Acceptance cannot be refused due to a defect that only insignificantly reduces the value or usability.

3.4.2. If the contracting party waives acceptance or fails to attend the acceptance appointment upon request, we are entitled to conduct the acceptance without the contracting party, and they are obliged to accept the results of this acceptance appointment. Costs arising from a delay in acceptance not caused by us shall be borne by the contracting party. In any case, the work or trade is considered accepted if the contracting party has put the work or trade into use.

3.4.3. Expert acceptance (e.g., TÜV, etc.) is generally a separately chargeable service unless expressly included in the offer. Such services will be charged according to actual effort (expert and our own personnel) plus a 15% administrative fee on external costs, if applicable.

 

3.5. Warranty

3.5.1. The warranty period for all services, repairs, etc., that are not construction services and for installed materials is one year for the contracting party as an entrepreneur.

3.5.2. For construction services, the VOB/B and VOB/C apply in full.

3.5.3. In the event of a defect, the contracting party must set us a reasonable period for rectification. The contracting party must ensure that the object of complaint is made available to us for inspection and rectification.

3.5.4. If we are obligated to rectify the defect, this can be done at our discretion either by removing the defect or by new construction of the work.

3.5.5. If rectification fails, the contracting party is entitled to reduce the payment or withdraw from the contract. Withdrawal is excluded in cases of insignificant defects or if the subject of the contract is construction work.

 

3.6. Liability

3.6.1. For damages due to delay, we are liable only up to 5% of the order value in cases of slight negligence.

3.6.2. For other damages arising from the violation of essential duties due to slight negligence by us, our legal representatives, or agents, our liability is limited to foreseeable, contract-typical damage up to a maximum of double the value of the subject of the contract.

3.6.3. All claims for damages against us, regardless of the legal basis, shall expire no later than one year after acceptance if the contracting party is a merchant.

3.6.4. The provisions of this paragraph do not apply if we are liable for intent; in this case, the statutory provisions apply.

 

3.7. Extended Lien of the Contractor on Movable Property

3.7.1. We have a lien on the items of the customer that came into our possession due to the order for claims arising from the order. The lien can also be asserted for claims from previously performed work, spare parts deliveries, and other services, as long as they are related to the item. For other claims from the business relationship, the lien applies only if these claims are undisputed or legally established.

3.7.2. If the item is not collected within four weeks after the request for pickup, we may charge a reasonable storage fee after this period. If collection does not occur within three months after the pickup request, the obligation to keep the item ceases, and we assume no liability for slight negligent damage or loss. One month before the expiration of this period, a notice of sale will be sent to the contracting party. We are entitled to sell the item at market value after this period to cover our claims. Any surplus proceeds will be refunded to the contracting party.

 

3.8. Retention of Title

3.8.1. As long as the replacement parts inserted during repairs do not become essential components of the contract item, we reserve ownership of these installed parts until all claims from the contract are settled.

3.8.2. If the contracting party falls into payment default or fails to comply with obligations from the retention of title, and we therefore declare withdrawal from the contract, we may demand the item for the purpose of removing the inserted parts. All costs for retrieval and removal shall be borne by the contracting party.

3.8.3. If the repair occurs at the contracting party's premises, the contracting party must give us the opportunity to remove the parts at their location, with labor and travel costs being borne by the contracting party.