Terms and Conditions B2C

I. Scope

General Terms and Conditions Ape Labs GmbH

1. All deliveries, services and offers from Ape Labs GmbH ("Contractor") are made exclusively on the basis of these General Terms and Conditions, provided that the contractual partner ("Client") is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law. These General Terms and Conditions are part of all contracts that the Contractor concludes with the Client for the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the Client until new conditions come into force, even if they are not separately agreed again.
2. Any deviating, conflicting or supplementary general terms and conditions of the client will only become part of the contract if and to the extent that the contractor has expressly agreed to their validity in writing. This consent requirement applies in all cases, for example even if the contractor carries out the service without reservation in full knowledge of the client's general terms and conditions. Verbal agreements before or upon conclusion of the contract require written confirmation from the contractor to be effective.

II. Conclusion of the contract

1. Orders only become binding once the contractor has confirmed the order in writing. Additions and changes to the agreements made, including these General Terms and Conditions, must be made in writing to be effective.
2. Offers from the contractor are non-binding unless expressly agreed otherwise. The contractor can accept orders or requests from the client within 14 days of receipt.
3. The Contractor reserves ownership/copyright of all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Client.

III. Prices / Terms of payment

1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services are charged separately. The prices are in EUR ex works plus packaging, shipping costs, the applicable statutory VAT, customs duties for export deliveries, fees and other public charges.
2. If the agreed prices are based on the Contractor's list prices and delivery is not to take place until more than four months after conclusion of the contract, the Contractor's list prices valid at the time of delivery shall apply (each less an agreed percentage or fixed discount).

3. Contractor invoices are to be paid in EURO net without deductions within 30 days of the invoice date. Payment must be made to a business account specified by the contractor, quoting the invoice number provided by the contractor.
4. Once the above payment deadline has expired, the customer is in default. During the period of default, the purchase price will be subject to interest at the applicable statutory default interest rate. The contractor reserves the right to claim further damages for default. In the case of merchants, the right to commercial default interest (Section 353 of the German Commercial Code) remains unaffected.
5. If the Client defaults on payment, the Contractor is entitled to demand immediate cash payment for all due and undisputed claims arising from the business relationship.
6. Set-off against counterclaims of the Client or withholding payments due to such claims is only permissible if the counterclaims are undisputed or legally established or arise from the same order under which the delivery in question was made.
7. The Contractor is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the Client's creditworthiness and which endanger the payment of the Contractor's outstanding claims by the Client from the respective contractual relationship.

IV. Delivery and acceptance obligation

1. Deadlines and dates for deliveries and services promised by the Contractor are always approximate, unless a fixed deadline or date has been expressly promised or agreed.
2. The start and compliance with agreed delivery deadlines require the fulfilment of any cooperation obligations of the client, in particular the timely receipt of all documents to be supplied by the client and compliance with the agreed payment terms. If these requirements are not properly met in a timely manner, the delivery deadlines will be extended accordingly; this does not apply if the contractor is solely responsible for the delay.
3. If shipment has been agreed, delivery periods and delivery dates refer, unless expressly stated otherwise, to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport.
4. Events of force majeure entitle the contractor to postpone delivery for the duration of the hindrance and a reasonable start-up time, or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which make it impossible for the contractor to deliver on time despite reasonable efforts, are equivalent to force majeure; the contractor must provide evidence of this. This also applies if the aforementioned hindrances occur during a delay at a subcontractor. The client can request the contractor to declare within 2 weeks whether the contractor wants to withdraw or deliver within a reasonable grace period. If the contractor does not declare this, the client can withdraw from the unfulfilled part of the contract.

5. The Contractor is entitled to make partial deliveries if

• the partial delivery can be used by the customer within the scope of the contractually intended purpose,
• the delivery of the remaining ordered goods is ensured and
• the Client does not incur any significant additional expenditure or costs as a result (unless the Contractor agrees to cover these costs).

V. Packaging, shipping, transfer of risk and delay in acceptance

1. The place of performance for all obligations arising from the contractual relationship is the registered office of Ape Laps GmbH, unless otherwise specified.
2. Unless otherwise agreed, the contractor will choose the packaging, shipping method and shipping route at his own discretion. Any additional costs caused by the client's special shipping requests will be borne by the client.
3. If shipping of the goods has been agreed and the contractor has not taken over the transport, the risk is transferred to the customer at the latest when the delivery item is handed over to the forwarding agent, freight carrier or other third party appointed to carry out the shipment. If the shipment or handover is delayed due to a circumstance for which the customer is responsible, the risk is transferred to the customer from the day on which the delivery item is ready for shipment and the contractor has notified the customer of this.
4. Only upon written request from the customer will the goods be insured at his expense against risks specified by him.

VI. retention of title

1. The contractor reserves ownership of the contractual items until all current and future claims arising from the respective contractual relationship or the ongoing business relationship (secured claims) have been fully settled. The client undertakes to treat the contractual items with care.
2. The goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The client must notify the contractor immediately in writing if an application for the opening of insolvency proceedings is made or if third parties (e.g. seizures) take effect on the goods belonging to the contractor.
3. If the client acts in breach of contract, in particular if the remuneration due is not paid, the contractor is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the contractual object on the basis of the retention of title. The demand for return does not simultaneously entail a declaration of withdrawal; rather, the contractor is entitled to simply demand the return of the contractual object and to reserve the right to withdraw. If the client does not pay the remuneration, the contractor may only assert these rights if he has previously unsuccessfully set the client a reasonable deadline for payment or if such a deadline is unnecessary according to the statutory provisions.

4. The client is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with paragraph 4 lit. (c). In this case, the following provisions apply in addition.

1. (a) The retention of title extends to the products resulting from processing, mixing or combining the goods at their full value, with the contractor being considered the manufacturer. If the property rights of third parties remain in place during processing, mixing or combining with goods of third parties, the contractor acquires co-ownership in proportion to the invoice values ​​of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
2. (b) The Client hereby assigns to the Contractor, as security, any claims against third parties arising from the resale of the goods or products, either in full or in the amount of any co-ownership share, in accordance with the previous paragraph. The Contractor accepts the assignment. The Client's obligations set out in Section VI.2 also apply with regard to the assigned claims.
3. (c) The client remains authorized to collect the claim alongside the contractor. The contractor undertakes not to collect the claim as long as the client meets his payment obligations to the contractor, there is no lack of his ability to pay and the contractor does not assert the retention of title by exercising a right in accordance with Section VI.3. If this is the case, however, the contractor can demand that the client disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors (third parties) of the assignment. In this case, the contractor is also entitled to revoke the client's authorization to further sell and process the goods subject to retention of title.
4. (d) If the realisable value of the securities exceeds the Contractor’s claims by more than 10%, the Contractor shall release securities of its choice at the Client’s request.

VII. Warranty

1. The Contractor’s warranty is determined in accordance with the statutory provisions, subject to the following provisions.
2. The contractual items must be carefully inspected immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects that would have been apparent upon immediate, careful inspection, they are deemed to have been approved by the customer if the contractor does not receive a written complaint within six working days of delivery. With regard to other defects, the delivery items are deemed to have been approved by the customer if the complaint does not receive the contractor within six working days of the time at which the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is to be taken into account for the start of the

   The notice period is decisive. At the request of the contractor, a delivery item that is the subject of a complaint must be returned to the contractor carriage paid. If the complaint is justified, the contractor will reimburse the costs of the cheapest shipping method; this does not apply if the costs increase because the delivery item is located at a location other than the location of its intended use.

3. In the event of material defects in the contractual items, the Contractor is initially obliged and entitled to repair or replace the goods within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement, the Client may withdraw from the contract or reduce the purchase price in accordance with the statutory provisions. Claims for damages in accordance with Section VIII.7 remain unaffected by this.
4. The warranty is void if the client changes the subject matter of the contract or has it changed by a third party without the consent of the contractor and this makes the elimination of defects impossible or unreasonably difficult. In any case, the client must bear the additional costs of eliminating defects resulting from the change.
5. Subject to the provisions of Section VIII.6, warranty claims expire one year after delivery of the goods. The above provision does not apply if the law stipulates longer limitation periods in accordance with Sections 438 Paragraph 1 No. 2 (buildings and items for buildings), 479 Paragraph 1 (right of recourse) and Section 634a (construction defects) of the German Civil Code (BGB).
6. Material defects do not include (i) natural wear and tear, (ii) the quality of the goods or damage that occurs after the transfer of risk as a result of improper handling, storage or installation, non-compliance with installation and handling instructions or excessive stress or use, or (iii) the quality of the goods or damage that occurs due to force majeure, special external influences that are not assumed under the contract, or due to the use of the goods outside of the use assumed under the contract or normal use. Furthermore, claims for material defects do not exist if the goods are modified by a third party or by installing parts of foreign origin, unless the defect is not causally related to the modification. The contractor is not liable for the quality of the goods that is based on the design or the choice of material, provided that the contractor has specified the design or the material.

VIII. Liability

1. The Contractor’s liability shall be determined in accordance with the statutory provisions, subject to the following provisions.
2. The Contractor's liability for damages, regardless of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Section VIII to the extent that fault is relevant in each case.
3. The Contractor shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of an essential contractual obligation (such as one which the contract intends to impose on the Contractor according to its content and purpose or the fulfilment of which makes the proper execution of the contract possible in the first place and on whose compliance the Client regularly relies and may rely).

4. To the extent that the contractor is liable for damages in accordance with Section VIII.2, this liability is limited to damages that the contractor foresaw as a possible consequence of a breach of contract when concluding the contract or that he should have foreseen if he had exercised due care. Indirect damages and consequential damages that are the result of defects in the delivery item are also only compensable to the extent that such damages are typically to be expected when the contractual item is used as intended.
5. The above limitations of liability apply to the same extent to the bodies, legal representatives, employees and other vicarious agents of the Contractor.
6. The restrictions of this Section VIII do not apply to the Contractor’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
7. The Client's claims for damages shall expire within one year from delivery, unless the Contractor's liability is unlimited in accordance with the above provisions; in this case, claims for damages shall expire in accordance with the statutory provisions.

IX. Confidentiality

1. The client is obliged to treat the order confidentially and to treat any information and knowledge acquired as a result of this contract as confidential towards third parties - even beyond the term of the contract - not to make it accessible to third parties, to protect it from third-party access and not to use it as part of his own work for third parties. This obligation applies for the term of the contract and beyond until the information becomes public.
2. This obligation does not apply to information which was demonstrably already known to the Client prior to its communication under this Agreement, which was demonstrably independently developed by the Client or otherwise lawfully obtained, or which is general or becomes generally known without violating this Agreement.
3. The client will ensure in an appropriate manner that the employees, freelancers and subcontractors that he legitimately engages in the implementation of this contract maintain the above-mentioned confidentiality. At the request of the contractor, the client must provide written evidence of his measures in this regard.

X. Final Provisions

1. All contractual agreements between the client and the contractor are subject exclusively to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
2. If the client is a merchant, a legal entity under public law or a special fund under public law, or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between the contractor and the client shall be Würzburg or the client's registered office, at the contractor's discretion. In these cases, however, Würzburg is the exclusive place of jurisdiction for lawsuits against the contractor. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this regulation.

3. Should individual provisions of these terms and conditions be legally invalid in whole or in part or should they subsequently lose their legal validity, this shall not affect the validity of the remaining provisions.