Terms and Conditions of API GmbH
This English translation of the General Terms and Conditions is provided solely for the convenience of customers. The translation is not binding. The German text (AGB) is the sole authoritative and binding version and prevails in case of any conflict.
Supplies, services, offers and sales are made solely on the basis of the following conditions. All contracts and future business are subject to these conditions, even if not expressly stipulated. These terms are accepted by the customer when placing an order, but no later than receipt of the goods or services. Contradictory Statements or conditions by the buyer will only be accepted if confirmed in writing by api.
Written and verbal offers from api are not binding also if not marked as such. api employees are not authorized to make binding offers.
All verbal or written published prices are not binding. Errors and short-term price modifications are subject to change without prior notice. All prices are net, excluding postage, packing and insurance. If payment of the customer is delayed with more than one claim, all outstanding claims against the client are due immediately.
4. Transfer of risk
Shipping / Pick-up is at customer's risk. Once the goods leave the api warehouse, the risk passes to the customer. api insures goods in accordance with the value of the goods, if customer does not expressly contradict to this.
All terms of delivery require written confirmation. All deliveries from api are subject to proper and timely delivery by its suppliers. Partial deliveries are permissible. If delivery and service delays occur, api cannot be held responsible in the event of force majeure and events that complicate or make the delivery impossible, such as strikes, breakdown, official directives and difficulties in obtaining materials etc., even if they occur to suppliers of api and even if api agreed to binding limits and appointments. The receipt of the ordered and delivered goods is a primary obligation of the buyer. If the buyer refuses to accept, or neglects to accept the goods, then the buyer is in default. After a second unsuccessful delivery attempt, api reserves the right to demand up to 30% of the contract value as compensation for damages. This is without prejudice to the possibility of evidence of higher damages.
api reserves the right to examine the customer by gathering information on his financial standing. In case of cash or check on delivery, the buyer is obliged to demand a receipt of payment from the carrier upon delivery and to retain it. Upon request the receipt, or a legible copy, must be presented to api; in the event of default, the customer bears the burden of proof of payment. api is not liable for timely presentation of the checks. In case of default by the customer, api is entitled to demand interest rates at up to 3% above the prime rate of the European Central Bank. If any further damages by delay, these can be claimed by api. In case of default, api is also entitled to demand overdue fines amounting up to 10 EUR as well as to give the demand for the debt recovery to a collection agency. The customer is obligated to pay all costs for the use of a collection agency. The customer is only entitled to retain or offset part payments, if the counterclaims are legally established or recognized by api. If after the conclusion of a contract the financial circumstances of the customer deteriorate, or if api comes to know about insufficient liquidity, then api reserves the right to make an appropriate security demand. If this is not complied with, api reserves the right to withdraw from the contract. An imminent delivery can be delayed until the provision of security.
7. Retention of title
The goods delivered from API to the buyer remain property of api until api has received payment of all secured claims of the supplier relationship (including all balance claims from a current account). The goods as well as the goods secured by retention of title in lieu of the original goods according to this provision will subsequently be referred to as conditional goods. Until the realisation of the retention of title the buyer shall be entitled to process, alloy or sell the conditional goods within the regular course of business. Pledging and assignment of the conditional goods as security shall generally be inadmissible. In the event the conditional goods are processed by the buyer the contracting parties agree that the processing is done in the name and for the account of api and api shall immediately become owner or joint owner of the newly created product, (joint owner in case goods belonging to several owners are processed and the value of the processed good is higher than the value of the conditional goods used therein. In case api does not become owner of the newly created product, the buyer hereby transfers his prospective ownership or joint ownership in the newly created product as security to api and undertakes to store the product for api until api claims redelivery. api hereby accepts the transfer of ownership. api becomes joint owner in the new product proportional to the value of the conditional goods in relation to the value of the other alloyed goods at the time of intermixture in case the buyer inextricably alloys the conditional goods with objects api has no ownership in. If the intermixtures carried out in a manner that the buyer's good is to be regarded as the principal object, then it is agreed that the buyer transfers proportional joint ownership to api. The buyer undertakes to store the property or joint property for api. In the event of a resale of the conditional goods, the buyer hereby assigns to api claims against the buyer arising from such resale. In case api has joint ownership in the conditional goods a proportionate assignment shall apply. This provision also applies to other claims in substitution of conditional goods or arising with regard to the conditional goods, e.g. insurance claims or claims in tort for loss or destruction. api revocable authorizes the buyer to collect assigned claims in his own name and for the account of api. api shall revoke this authorization to collect only in the event of the realization of the security or in case of composition proceedings or insolvency proceedings. If third parties take up steps to dispose of the conditional goods, especially by pledge, the buyer shall immediately advert to the ownership of api and notify api to allow enforcement of ownership rights. In this context api will be held liable for all expenses in and out of court in case the third party does not reimburse api for costs and fees accrued. Upon request api will release the conditional goods, or objects or claims in substitution of the conditional goods, at sole discretion of API, insofar as their fair market value exceeds the value of the secured claims by more than 20%.
8. Complaints, warranty
api guarantees under the statutory warranty provisions in respect of all goods supplied, not at liberty for material and manufacturer faults, the following conditions: The customer commits himself to check all deliveries upon receipt for defects and regularity for from api. Insufficient or incorrect deliveries or obvious defects are to be reported in writing by the customer within 14 days of receipt of the shipment. The obligation of merchants for immediate notification of defects under §§ 377, 378 Commercial Law (German HGB) remains unaffected. This also applies to merchants in the case of perceptible wrong deliveries by api, especially when products with a high depreciation rate (e.g. RAM, CPUs) are subject of the delivery. In these cases the goods will be returned immediately by return order arranged by api. Damages in transit must be reported immediately to the conveyer. To secure any claims by the customer, the packaging must be stored until further notice. api reserves the right to repair, also multiple times, and replacement. Should repair or replacement fail, the customer is entitled reduce the price or revoke contract of sale. Excepted from this warranty are all defects caused by improper treatment or intervention by customer or third parties. In the case of complaints, the customer is required to describe the defect precisely. The removal of labels, stickers and other required markings for the identification of the goods, leads to loss of claim on warranties.
9. Manufacturer warranty
api is not obligated to customers in their use of a manufacturer's warranty, to accept thereof concerned goods for forwarding to the manufacturer. When receiving the goods in such cases, as a gesture of goodwill towards customers, api is then only liable to intent and gross negligence. api can, at any time, without notice and for any reason, send back the goods to the customer without api being directly or indirectly liable to the manufacturer's warranty promise.
10. Place of Fulfilment, Jurisdiction
Place of fulfilment is Baesweiler, place of jurisdiction is Aachen. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply. Only German law prevails, even for deliveries abroad.
11. Final Regulations / Severability Clause
If any provision of these terms and conditions or a provision of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected. Instead of the invalid provision is to apply an appropriate provision that comes as close as possible to the invalid clause.
Special provisions for Software as a delivery item
1. If software is the item of delivery, api provides rights under the terms of license of the manufacturer with the spatial, temporal and factual content which is granted by the manufacturer for the specific software product. If distribution rights of software are the item of delivery, api is only obliged to provide the distribution rights in accordance with the terms of license of the manufacturer with the spatial, temporal and factual content, which is granted by the manufacturer for the specific software product.
2. api is not a vicarious agent of the manufacturer of the software product. api shall not be liable accordingly for fault of the manufacturer or its agents. The liability of api for own behavior remains unaffected under the concluded agreements.
Baesweiler, January 21th, 2019