APN General Terms and Conditions

General
The contractual relationship, in particular the invoicing, shall be governed by our terms and conditions set forth below, supplemented by the General Terms and Conditions for the Execution of Construction Work (DIN 1961) VOB, Part B, the General Technical Terms and Conditions for Construction Work VOB, Part C, the relevant VDI guidelines in the version applicable at the time of submission of the offer, unless the above terms and conditions conflict with the following.

The customer’s terms and conditions of business shall only apply insofar as they have been expressly acknowledged by us in writing.
Scope of services
The scope of services includes the work described in the offer as confirmed or the services listed in the order confirmation.

If, on the other hand, a deviation in the scope of services arises during the execution of the order, which could not be taken into account when submitting the price, we shall be entitled to charge the customer for the associated costs, insofar as the additional work is necessary for the complete performance of the service and corresponds to the presumed will of the customer.

We reserve the right to replace offered materials by equivalent ones as well as to make constructive changes, as far as these are caused by the technical advancement and these changes are reasonable for the customer under consideration of our interests.
Prices
Any difficulties not recognizable at the time of submission of the offer and any overruns of the normal working time unavoidable for construction-related reasons for which we are not responsible shall be invoiced additionally.

Irrespective of the nature of the agreed prices, we shall be entitled to invoice an unavoidable increase in our cost price (e.g. collectively agreed wage increases, additional expenses due to weather conditions, unforeseeable increases in the cost of raw materials and the like) if the scheduled date of performance is delayed for reasons for which we are not responsible.
Changes in the sales tax rate shall entitle the customer to corresponding price adjustments.
If the Customer is not a public-sector customer or a merchant, these provisions shall only apply if there are more than four months between the conclusion of the contract and the agreed delivery and performance date.
Deadlines
If the customer does not fulfill its obligations under this contract in a timely manner and if their fulfillment is of importance for our own timely performance, an impediment exists which does not have to be reported separately.

Operational breakdowns and operational disruptions at the manufacturers’ plants which result in delays in the delivery of the material and which inevitably make us partially or completely unable to fulfill our obligations shall entitle us to postpone our performance by the duration of the delay with a time surcharge for the resumption of the work if we have purchased the material on a project-related basis, with corresponding contractual deadlines and contractual terms.

Delays in delivery shall only entitle the customer to claim damages if they have been caused intentionally or by gross negligence by us, our legal representatives, senior employees or vicarious agents. This also applies if the contract is withdrawn in such a case.
Acceptance
Should a partial acceptance be carried out by us in accordance with § 12 No. 2 a) or b) VOB/B, the legal consequences of § 12 No. 5 VOB/B shall also apply to these respective partial performances after corresponding notification of completion by us.
Transfer of risk during shipment
a) We determine the forwarding agent or carrier, shipping route, shipping method, means of transport and protection, without assuming any liability for this. The General German Forwarding Agent Terms and Conditions also apply to us.

b) When the goods are handed over to the transport person, at the latest, however, when they leave the warehouse, also in the case of shipment with our own truck and also in the case of agreed freight-free delivery, the risk, including any seizure, shall pass to the Purchaser. This also applies to partial deliveries.

c) Insurance shall only be taken out at the express request and expense of the Purchaser.
Liability and warranty
1. Within the scope of our technical delivery conditions, we guarantee freedom from defects in material and workmanship corresponding to the state of the art at the time of conclusion of the contract. For defects including the absence of warranted characteristics, we warrant as follows to the exclusion of any further claims:
2. Defects shall be notified by the Purchaser in writing on the shipping documents without undue delay, recognizable defects immediately upon receipt at the place of destination, otherwise any rights based on defects shall expire.
3. Due to defective parts, the Purchaser may not assert any rights with regard to the remaining parts.
4. Rejected parts must always be secured and taken back by us.
5. We may refuse to remedy defects as long as the customer does not fulfill his obligations appropriately.
6. Negotiations do not waive the objection that the complaint was not timely or sufficient.
7. The warranty period is two years from the transfer of risk.
8. At our discretion, we may repair, replace, reduce or withdraw from the contract in whole or in part. Defective parts and replaced parts become our property.
9. The warranty does not cover:
  a) Defects and their consequences which have arisen as a result of harmful natural influences or natural wear and tear, non-compliance with our assembly instructions, incorrect or negligent handling, improper use, as a result of chemical, electrochemical and/or electrical influences.
  
  b) defects and their consequences caused by modifications or repairs carried out by the customer without our consent, as well as to the costs of remedying defects initiated by the customer without our prior written consent.
  
  c) defects and their consequences caused by defective system parts of other suppliers on our delivered goods.
10. Any further claims of any kind not expressly conceded in this section, in particular for compensation for wages, missed work, lost profit or other consequential damages, are excluded.
11. The foregoing shall apply mutatis mutandis to deliveries of goods not in conformity with the contract.
Copyright and technical documentation
We shall have sole ownership and copyright of all technical documents provided by us, such as drawings, design proposals and the like. Reproduction or disclosure of these documents to third parties is prohibited unless express written consent is obtained from APN.

If an order is not placed with us, the documents provided must be returned to us. In the event that our suggestions are used outside of an order placed with us, we shall not be liable in any way.
On-site services
The prerequisite for the start of our work is that the necessary preliminary work has been completed and other construction work does not impede the performance of our installation.

The client is obliged to make arrangements so that our work can be started on the date agreed with him. Unless expressly agreed otherwise, the Customer shall make available to us free of charge until completion of all work (including rectification work, insofar as the Customer does not incur any special costs as a result thereof) and make it available for use or joint use:
- Sufficient, dry storage and workplaces close to the assembly site
- Access roads that must also be passable for heavy trucks and, if available, rail sidings
- Connections close to work for water and wastewater, for electricity and, where necessary, for other energy
- all necessary working and protective scaffolding
- Elevators and hoists
- Containers for the removal of debris or garbage
- adequate sanitary facilities
- Working scaffolds according to the UVV guidelines from a height of 3.00 m
Upon request, we shall provide the customer with a list of such items in the individual case. In addition, the Client shall provide the following services free of charge:
- Securing the components, including our materials stored there.
- Lighting of the construction site and work locations
- Removal of construction or garbage waste.
However, the Contractor shall have no claim to performance in this context.

If the client does not fulfill individual or all construction-related services or does not fulfill them on time and if an impediment occurs as a result, a corresponding notification is not required. The client shall also reimburse us for any costs incurred as a result if he is entitled to claims in this connection against other parties involved in the construction or the client.
Payment
Checks and bills of exchange shall not be deemed payment until they are cashed. All collection or discount charges shall be borne by the customer.

If the customer is in default with a payment, we are entitled to charge him € 12, for each subsequent reminder. In addition, the customer shall pay interest on the principal claim in the amount of 3% above the respective discount rate of the Deutsche Bundesbank. We reserve the right to assert claims for damages in excess thereof.

Insofar as the customer has been granted a discount, a corresponding deduction may only be made when the final invoice is settled and only if we have also received all partial and interim payments in due time.

Even if the client designates a payment as a final payment, we are not precluded from making subsequent claims. The provision of § 16 No. 3 para. 2 VOB/B shall not apply.

The customer may only set off claims that have been legally established or are undisputed. The customer may only assert a right of retention if it is directly related to this contractual relationship.
Retention of title and assignment in advance
The material delivered to the construction site remains our property until full payment has been made. If the customer is not at the same time the principal or if he acquires a claim against a third party on the basis of our services, he hereby assigns to us his rights to which he is entitled vis-à-vis third parties, including all ancillary rights, until full settlement of all our claims, including in particular the respective balance claims to which we are entitled within the scope of the business relations. We hereby accept this assignment.

At our request, the customer shall be obliged to notify his debtor of the assignment and to provide us with the information required to assert our rights against the third-party debtor and to hand over the relevant documents.

Processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 of the German Civil Code (BGB) without obligating us. The processed goods shall be deemed to be goods subject to retention of title in the sense described above.

In the event of processing, combination and mixing of the reserved goods with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used.

If our ownership lapses as a result of combination, mixing or processing, the customer shall already now transfer to us the ownership or expectant rights to which it is entitled in the new stock or item to the same extent. We hereby accept this transfer.

The customer may neither pledge nor transfer by way of security any materials subject to retention of title before payment has been made in full.

If the value of the existing securities exceeds our current claims from this or another transaction by more than 20 %, we shall be obliged to reassign a proportionate share at the request of the customer.
Provision of materials
If materials are provided by the client for the execution of the order, the client shall be exclusively liable for defects in these materials.

All costs resulting from the defective condition shall be borne by the customer, insofar as this defective condition was not recognizable for us.The risk of accidental damage and accidental loss of the materials provided shall be borne by the customer.
Power of representation
If the architect, the engineering office or a person designated by them, e.g. the subsequent construction manager, has represented the client in the contract negotiations, has conducted the price negotiations or has sent us the construction contract signed by the client with the request to return it to him or to a person designated by him, the architect, the engineering office or the person designated by them shall be deemed to be the client’s authorized representative vis-à-vis us for the entire duration of the construction period, including the acceptance, also insofar as it concerns changes in performance that are economically significant for the client.
Place of payment and jurisdiction
Place of payment is Neustadt i. Holstein. For any legal disputes arising from the contract or concerning the existence of the contract, Oldenburg in Holstein is agreed as the exclusive place of jurisdiction and, irrespective of the subject matter of the dispute and the amount in dispute, the subject-matter jurisdiction of the local court.This only applies if the customer is a public sector client or a registered trader.
Modification of the terms and conditions
If one of the above provisions is invalid, this shall not affect the validity of the other provisions. The invalid provision shall then be replaced by the corresponding provision of the VOB/B.
Conversion to electronic invoicing
Our invoices are exclusively digital and are sent to the email address known to us.
Modification of the terms and conditions
If one of the above provisions is invalid, this shall not affect the validity of the other provisions. The invalid provision shall then be replaced by the corresponding provision of the VOB/B.

Status January 2018