1. The following General Terms and Conditions (“GTC”) of A&P Industriemontage GmbH & Co. KG (“A&P”) are intended exclusively for use in commercial transactions. A&P’s deliveries, services, and offers are provided exclusively on the basis of these GTC. Any deviating, conflicting, or supplementary general terms and conditions of the respective purchaser (“Customer”) shall become part of this agreement only if and to the extent that A&P has expressly agreed to their validity in writing. This requirement for consent applies in all cases, including, for example, when A&P carries out a delivery or service without reservation while being aware of the Customer’s General Terms and Conditions. These Terms and Conditions apply to all future business transactions with A&P even if not expressly mentioned.
2. Individual order agreements made with the customer on a case-by-case basis (including ancillary agreements, additions, and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or written confirmation from A&P shall be decisive regarding the content of such agreements.
1. Information contained in brochures, advertisements, etc.—including any price information—is subject to change without notice and is not binding. A&P reserves unrestricted rights of use, including ownership and copyright, with respect to cost estimates, offers, drawings, and all associated technical documentation (hereinafter collectively referred to as “Documents”). This also applies to any other documents that we provide to the customer during the execution of the order. The documents may not be reproduced, copied, made available to third parties in any other way, or used for other purposes without the express written consent of A&P. The Documents (including any copies made) must be returned immediately upon A&P’s request if an order is not placed.
2. A&P remains bound by its offers for six (6) weeks from the date the offer is issued, unless the offer specifies a different binding period or is expressly marked as “non-binding” or “subject to change.” Acceptance of a binding offer requires an order referencing the offer, submitted at least in writing.
3. If the offer is marked as “non-binding” or “subject to change,” the customer’s order shall be deemed a binding offer to enter into a contract. Such orders are effective only if they are placed in writing and require an order confirmation from A&P. If A&P does not accept such an order by sending an order confirmation within four (4) weeks of receipt, the customer is entitled to cancel the order.
1. The customer is obligated, at its own expense, to ensure that the conditions necessary for the safe, smooth, and proper performance of the work are in place. This applies in particular to necessary official permits as well as warnings regarding specific hazards—such as those posed by internal transport, crane operations, fall hazards, and explosion hazards—if these must be taken into account during the performance of the work. To the extent that the customer and/or third parties also provide services in addition to A&P, the customer is responsible for coordinating the individual work processes.
2. The customer shall be responsible, at its own expense, for all construction work and other necessary preparatory and ancillary services required for the proper performance of the work and shall complete them in a timely manner. In particular, the customer must ensure that the ground conditions at the service location where disassembly and reassembly take place are adequate to allow for proper and safe loading and unloading.
3. The customer is obligated to provide A&P, free of charge, in full, and in a timely manner, with the documents, plans, drawings, operational safety regulations, etc., necessary for the performance of the service.
4. The customer shall provide, free of charge, the utilities and energy (such as electricity, gas, and water) necessary for the performance of the services. Furthermore, subject to prior agreement, the Client shall provide
free of charge for the duration of the service provision: (i) the space required for the storage of materials, equipment, and tools, and (ii) suitable, lockable rooms for the storage of personal belongings of A&P employees.
5. A&P is entitled to have the work performed by qualified and suitable subcontractors. A&P will notify the customer in a timely manner of any use of subcontractors.
6. The services owed by A&P are derived exclusively from the quotation, purchase order, and order confirmation. Additional services are all services that are not already owed based on the agreement between the parties. A&P will provide additional services for a separate fee, upon request, and only after receiving a separate order from the customer (in writing or via email). For commissioned full-service 1:1 moves, all subsequent changes of any kind are considered additional services.
7. The working hours and services provided by A&P employees shall be confirmed weekly—or daily, if otherwise agreed—by the customer or a third party authorized by the customer.
8. The customer’s performance deadlines are binding on A&P only if they have been expressly confirmed by A&P. In particular, A&P shall not be liable for delays resulting from a change in the overall project schedule or from other reasons for which A&P is not responsible.
1. Unless otherwise expressly agreed, A&P’s compensation shall be determined in accordance with A&P’s hourly and billing rates in effect at the time the contract is concluded.
2. For a project duration of up to ten (10) business days, A&P will invoice for the services upon completion of the work. If the project duration exceeds ten (10) business days, A&P is entitled to invoice reasonable interim payments for services already completed prior to the final settlement, taking into account the signed work and service reports.
3. Invoices are due for payment within fourteen (14) days of the invoice date, without any deductions, to an account to be designated by A&P.
4. The customer shall have no right of set-off or retention unless the customer’s counterclaim has been acknowledged by A&P, is undisputed, or has been established by a final and binding judgment, or unless the customer’s counterclaim arises from the same contractual relationship as A&P’s claim.
5. If more than four months elapse between the conclusion of the contract and the start of services, A&P is entitled, in the event of cost increases that occur during this period and for which A&P is not responsible (e.g., price increases by suppliers, increases in labor, transportation, or material costs), A&P is entitled to adjust prices accordingly upon providing evidence.
1. A&P is entitled to terminate the contract with immediate effect and to cease work immediately if there is good cause. Good cause exists, in particular, if the customer
(a) is in default on a payment obligation, in whole or in part, for more than two months; or
b) the debtor has filed a petition to initiate insolvency proceedings with respect to his or her assets, a provisional insolvency administrator has been appointed, insolvency proceedings have been initiated, or the petition has been dismissed for lack of assets; or
c) repeatedly fails to fulfill his or her obligations to cooperate.
2. In such cases, A&P is entitled to the full amount of the agreed-upon compensation for the services rendered to date. This does not preclude the right to claim further damages.
1. The customer is required to inspect and accept the work performed by A&P and any self-contained partial services immediately upon their completion. The services must be accepted even if they contain minor defects.
2. The services shall also be deemed accepted if A&P has set a reasonable deadline for acceptance and the customer has not refused acceptance within that deadline by citing at least one defect. Otherwise, the services shall be deemed accepted upon completion of the acceptance procedure, which involves the customer taking the subject matter of the service into use without raising any objections.
3. If the customer refuses to accept the goods, citing defects, the customer must, at A&P’s request, cooperate in a joint assessment of the condition of the goods. If the customer fails to attend a meeting to assess the condition of the goods scheduled by A&P within a reasonable period, A&P may conduct the assessment unilaterally. Section 650g(2), sentences 2 and 3, and (3) apply mutatis mutandis.
1. A&P’s warranty is governed by the provisions of applicable law, unless otherwise agreed below.
2. The customer must report any material defects that are obvious or detectable upon proper inspection in writing immediately after acceptance of the service. The customer must report any material defects that are not obvious and/or not detectable upon proper inspection in writing immediately upon discovery.
3. In the event of a defect, A&P is entitled, at its discretion, to remedy the defect (repair) or to deliver new goods or re-perform the work (replacement delivery).
4. The statute of limitations for claims arising from defects is 1 year, calculated from the date of acceptance (for contractual work) or from the transfer of risk (for deliveries of goods). Notwithstanding the preceding sentence, the statutory limitation periods apply to any liability arising from intentional or grossly negligent breaches of duty, as well as from culpable injury to life, limb, or health, and to mandatory liability under the Product Liability Act. Mandatory limitation provisions under Section 438(1)(2) and Section 634a(1)(2) of the German Civil Code (BGB) remain unaffected.
5. The customer’s rights of recourse against A&P under Sections 445a, 478, and 479 of the German Civil Code (BGB) shall apply only to the extent that the customer has not entered into any agreements that go beyond the statutory claims for defects.
1. A&P shall be liable for intentional acts and gross negligence in accordance with statutory provisions. Liability for breaches of duty resulting from slight negligence is excluded, unless such breaches involve injury to life, limb, or health, or affect warranties, or unless claims under the Product Liability Act are involved. Furthermore, liability remains unaffected for the breach of obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the customer may reasonably rely (so-called material contractual obligations). In the event of a breach of essential contractual obligations, liability is limited to compensation for foreseeable and typical damages.
2. The statute of limitations under Section 7(5) also applies to all of the customer’s claims for damages, unless the application of the standard statutory statute of limitations (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period. However, the customer’s claims for damages pursuant to Section 8.1, sentence 1, and claims for damages resulting from injury to life, body, or health, as well as claims under the Product Liability Act, are subject exclusively to the statutory limitations period.
1. In cases of force majeure, the affected party shall be released from its obligation to perform for the duration and to the extent of the impact. Force majeure refers to any event beyond the control of the respective contracting party that prevents the contracting party, in whole or in part, from fulfilling its obligations, including fire damage, floods, strikes, and lawful lockouts, as well as operational disruptions or official orders for which it is not at fault.
2. The affected contracting party shall immediately notify the other contracting party of the occurrence and cessation of the force majeure event and shall use its best efforts to remedy the force majeure event and limit its effects as much as possible.
3. In the event of force majeure, the contracting parties shall consult with each other regarding further action. Notwithstanding this, each contracting party is entitled to cancel affected binding orders if the force majeure persists for more than two months after the agreed performance date. The right of each contracting party to terminate the contract for good cause in the event of prolonged force majeure remains unaffected.
1. The parties shall treat all trade and business secrets, as well as any confidential information not generally known, belonging to the other party and its affiliated companies (as defined in Sections 15 et seq. of the German Stock Corporation Act (AktG)) strictly confidential, use such information solely for the purposes of their cooperation, refrain from disclosing it to third parties, and protect it from access by third parties; furthermore, upon request by the other party, they shall impose a corresponding obligation on their employees, independent contractors, and any subcontractors.
2. “Confidential Information” means all information, data, and knowledge—whether communicated in writing, orally, or by any other means—that one party discloses to the other party in the course of the business relationship and that is designated or marked as “confidential” or similarly designated or marked, or which must be treated as confidential due to its recognizably confidential content. Confidential Information also includes the contents of individual contracts as well as all agreed-upon pricing terms.
3. The duty of confidentiality does not extend, or no longer extends, to Confidential Information that can be shown to:
(a) information that was verifiably already publicly known or publicly available at the time it was disclosed to the respective recipient, or that becomes publicly known or publicly available at a later date, without this resulting from a breach of confidentiality obligations;
(b) of which the respective recipient can demonstrate that it had knowledge prior to their disclosure by the other party;
(c) have been verifiably developed by the respective recipient independently and without violating this confidentiality agreement;
(d) information that the respective recipient can demonstrate was made available to it by a third party without any confidentiality restrictions and without violating any confidentiality agreement;
e) the disclosure of which to third parties of the respective recipient has been expressly authorized in writing in advance by the other party.
4. The respective recipient may disclose Confidential Information of the other party to the extent that the respective recipient is required to do so pursuant to an official or judicial order or mandatory legal provisions, provided that the respective recipient promptly notifies the disclosing party in writing for the purpose of protecting the disclosing party’s rights.
5. The Parties shall protect the Confidential Information from unauthorized access by third parties through appropriate confidentiality measures and shall comply with statutory and contractual data protection provisions when processing the information. This includes technical security measures that are in line with the current state of the art, as well as the obligation of employees to maintain confidentiality and comply with data protection requirements.
6. Both parties are obligated to return or destroy the other party’s confidential information upon request, at the other party’s discretion, provided that no statutory retention periods or statutes of limitations preclude such action. This does not apply to necessary backup copies that are part of the central data backup, provided that these cannot be deleted in a reasonable manner. The parties shall ensure that confidential information in the form of backup copies is not accessed.
7. The foregoing confidentiality provisions shall remain in effect for a period of five (5) years following the termination of the collaboration.
1. The customer shall refrain from, directly or indirectly, poaching A&P employees—either for its own benefit or for the benefit of third parties—during the business relationship or for a period of twelve (12) months following the termination of the business relationship, or from attempting to do so. This provision does not apply to applications submitted by A&P employees to the customer in response to general, publicly posted job listings and recruitment advertisements that are not specifically targeted at A&P employees.
2. The customer agrees to pay A&P a contractual penalty for each instance of a culpable violation of the provision in Section 11.1. A&P shall determine the amount of the contractual penalty at its reasonable discretion. The Customer is entitled to have the amount of the contractual penalty reviewed by the competent court to determine its reasonableness. The right to claim damages in excess of the contractual penalty remains unaffected; however, any forfeited contractual penalties shall be offset against such additional damages.
1 The invalidity of any individual provision shall not affect the validity of the remaining provisions. The invalid or void provision shall be replaced by the relevant statutory provision.
2. The laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction is A&P’s registered office. Notwithstanding the foregoing, A&P is entitled to sue the customer in any other permissible place of jurisdiction.