GT&Cs - General Terms and Conditions

§ 1 General information - Scope of applicability

1. The conditions below (GT&Cs) apply to all business relationships between the Purchaser and SPÄNEX. Deviating terms of purchase from the Purchaser shall not become a component of the Agreement, even if the order is accepted. The Purchaser's General Terms and Conditions or terms of purchase shall only become components of the Agreement if and insofar as SPÄNEX expressly consents to their applicability. The consent requirement also applies if SPÄNEX executes the service without reservation in awareness of the Purchaser’s terms of purchase.
   
   SPÄNEX’ GT&Cs apply, in particular, to contracts pertaining to the sale and/or delivery of movable items, without consideration of whether SPÄNEX manufactures the items itself or purchases them from a supplier..
   
   Unless otherwise agreed upon, SPÄNEX’ GT&Cs apply, in the form applicable at the time of the purchase or the most recently issued text form version, as a framework agreement for this and all future purchases..


2. SPÄNEX’ conditions apply only toward companies (§ 14 of the BGB), legal entities under public law or special funds under public law in accordance with § 310(1) of the BGB.

§ 2 Offer and conclusion of the Agreement

1. Offers and information from SPÄNEX in catalogs, brochures and advertisements are non-binding unless they are specifically marked as binding and shall be included as a component of the Agreement. Incidentally, the written order confirmation is relevant with respect to the scope of supply. The following are not part of the scope of supply and performance: construction work (masonry and demolition work), steel construction work, installation work on heating and supply systems as well as work on electrical systems. Additional supply and performance exclusions can be found in the respective order confirmation.
   
   Verbal agreements made between the contractual parties prior to the conclusion of the contract shall be replaced by the written agreement. Addenda and amendments to the concluded agreement must be made in writing..
    
2. SPÄNEX field service technicians are not authorized to make agreements that exceed the rules stipulated herein unless SPÄNEX confirms the recommendations of the field service technician in writing for the Purchaser.
    
3. SPÄNEX reserves the property rights and copyrights to designs, cost estimates, drawings, etc., information of a physical or non-physical nature, including electronic formats; they may not be made accessible on to third parties without written consent from SPÄNEX regardless of whether or not SPÄNEX has designated this information confidential. If the Purchaser does not place an order, all documents must be returned to SPÄNEX immediately.
   
   SPÄNEX is obligated not to make information and documents designated confidential by the Purchaser accessible to third parties without the Purchaser’s consent.
    
4. Orders of non-binding offers the Purchaser places with SPÄNEX apply as binding orders; SPÄNEX is entitled to accept it within 4 weeks. The acceptance can be declared in writing (e.g. via order confirmation) or implied by executing the order for the Purchaser.

§ 3 Delivery and service duration

1. Delivery dates or deadlines result from the specific agreement between the parties. Compliance with specified delivery dates requires clarification of all commercial and technical matters and the dispatch of the order confirmation to the Purchaser. The Purchaser shall also fulfill and verify the fulfillment of all obligations required for SPÄNEX to meet its obligations, e.g. obtaining the required official certificates or permits, other preliminary work or the provision of an advance payment properly and on time. If this is not the case, the delivery time will be extended accordingly. This does not apply if SPÄNEX is responsible for the delay..
   
   The deadlines also extend accordingly if non-compliance is the result of force majeure (war, etc.) or similar events (strikes, etc.).
    
2. Incidentally, the delivery deadline is considered met if the object of delivery has left the SPÄNEX plant by the deadline or the Purchaser has been notified in writing that the delivery is ready to ship. If an acceptance is required, unless there is a justified refusal to accept, the acceptance date is relevant or, alternatively, the notification of the readiness for acceptance..
    
3. Compliance with the delivery deadline is subject to the proper and on-time self-delivery. SPÄNEX shall notify the Purchaser of impending delays as soon as possible. If performance cannot be provided by  the new delivery deadline without SPÄNEX or its suppliers being at fault, SPÄNEX is entitled to fully or partially withdraw from the Agreement; payments already made shall be returned.
    
4. If the shipment or acceptance of the object of delivery is delayed for reasons for which the Purchaser is responsible, the Purchaser shall be charged for the costs incurred as a result of the delay starting one month after the notification of readiness for dispatch or acceptance.


5. A delay in delivery on SPÄNEX’ part is defined in accordance with the statutory provisions; in any case, however, the Purchaser must send a warning notice. The enforcement of a contract penalty is excluded in the event of a delay in delivery. If SPÄNEX is delayed, the Purchaser can demand a lump sum compensation of damages. The lump sum for each complete week of delay is a maximum of 0.5%, but no more than a total of 5% of the delivery value for the portion of the deliveries that could not be used as intended due to the delay. SPÄNEX’ right to assert a claim that the Purchaser incurred lesser or no damages remains unaffected..
    
6. The Purchaser’s rights pursuant to § 8 of these GT&Cs and SPÄNEX’ statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. in the event the provision of performance is impossible or unreasonable and/or subsequent performance) remain unaffected.

§ 4 Transfer of risk, dispatch/packaging, acceptance

1. Unless otherwise stipulated in the order confirmation, “ex works” shall be agreed upon with respect to the delivery, even if the shipment is carriage paid. This is also the place of fulfillment for the delivery and any potential subsequent performance. Upon request from and at the expense of the Purchaser, the object of performance can be sent to another destination. With respect to sales shipments, the risk of accidental loss and accidental deterioration is transferred to the freight forwarder, the freight carrier or the person or facility tasked with shipping upon delivery of the goods. SPÄNEX is entitled to specify the method of dispatch (transport company, transport route, packaging, etc.). With regard to the transport method and route, SPÄNEX will strive to take the Purchaser’s preferences and interests into account; resulting additional costs, also for carriage paid freight deliveries, shall be charged to the Purchaser. .
    
2. Irrespective of Clause 1, the latest transfer of risk date, if the delivery includes assembly, is the date of delivery to the Purchaser’s facility. If an acceptance is required, the date thereof is the date transfer of risk date. In addition, the statutory provisions under the laws pertaining to contracts for work and services apply. The transfer or acceptance shall also be considered effective if the Purchaser does not complete the acceptance in due time.
    
3. SPÄNEX does not accept returned transport packaging or any other packaging in accordance with the Packaging Ordinance. The Purchaser shall dispose of the packaging at its own expense.
    
4. If the shipment, delivery, start, execution of the installation or assembly is delayed upon request of or within the scope of responsibility of the Purchaser, the risk shall be transferred to the Purchaser. SPÄNEX shall store the goods at the Purchaser’s expense and risk. In this case the notification of readiness for shipping is equivalent to shipping.
    
5. If the Purchaser fails to meet the acceptance deadline or culpably breaches other duties to cooperate, SPÄNEX is entitled to demand compensation for the incurred costs and any additional expenses. Further claims remain reserved. Upon default on acceptance or debtor’s default, the transfer of the risk of accidental deterioration and accidental loss shall be transferred to the Purchaser.
    
6. SPÄNEX is entitled to provide partial deliveries if they are requested by and reasonable for the Purchaser. In particular, SPÄNEX is entitled to provide partial deliveries if the full delivery of the order is delayed as a result of the technical specifications requested by SPÄNEX not being provided in due time.
   
   Subsequent orders shall be delivered and invoiced separately. Subsequent orders do not prevent the transfer of risk for (partial) deliveries that have already been executed.

§ 5 Prices and payments

1. Price lists, catalog and online pricing information is non-binding. Fixed price agreements require a written agreement between SPÄNEX and the Purchaser. The prices are ex works, unless otherwise separately agreed upon (excluding packaging, shipping, freight, unloading, assembly, commissioning, customs duties, other ancillary costs, etc.; these shall be invoiced separately), plus statutory sales tax (at the time of invoicing).
2. With respect to sales shipments, the Purchaser shall bear the transport costs ex warehouse plus a potentially desired transport insurance policy. An order to conclude a transport insurance policy must be submitted to SPÄNEX in writing. Otherwise, the shipment shall be executed without insurance at the Purchaser’s risk. Transport damage or the loss of objects of the delivery must be recorded immediately after receipt of the delivery and reported in writing to SPÄNEX.
3. Goods invoices are due and payable  to SPÄNEX within 30 days from the invoice date and delivery or acceptance, without deduction and free of transaction fees. If payment is made within 8 days after the invoice date, SPÄNEX will grant a 2% discount.
   
   If a multi-stage payment has been agreed upon, the following provision applies: 
   - 1/3 advance payment immediately after receipt of the order confirmation. 
   - 1/3 as soon as the Purchaser has been notified that the goods are ready for dispatch,to be received prior to dispatch. 
   - 1/3 after the assembly, commissioning and acceptance, however, no later than 30 days after delivery. If the partial invoices are paid within 8 days after the invoice date, SPÄNEX will grant a 2% discount.
   

   The discount is generally only possible if all previous and due invoices have been paid in full. SPÄNEX is entitled, at any time, even in the framework of an ongoing business relationship, to only execute a delivery, fully or partially, in return for prepayment; such conditions shall be declared, at the latest, in the order confirmation..
   
   Invoices for services like assembly, commissioning, maintenance work and freight are not eligible for discounting and are payable within 8 days without deduction. In the event of overdue receivables (default in accordance with § 286 of the BGB), SPÄNEX is entitled to offset payments against any potential old debts and only provide delivery, fully or partially, in return for prepayment..
   
   Incidentally SPÄNEX is entitled to demand an advance payment on orders exceeding a volume of €25,000.00.

4. A payment is considered completed when SPÄNEX has the amount at its disposal. In the event of check payments, the payment shall not be considered completed until the check has been redeemed (payment for the purposes of payment).

5. After the respective grace periods have elapsed, the Purchaser shall go into default without being issued a separate warning notice. The statutory provisions apply. The right to assert proven, higher interest damages and other default damages remains unaffected. The claim against merchants for the commercial default interest (§ 353 of the HGB) remains unaffected.

6. In the event of long-term payment agreements, the entire remaining amount shall be due immediately if the Purchaser goes into default on two subsequent installments by more than 10 days.

7. The Purchaser is only entitled to the right to retain payments or offset with counterclaims from the disputed or other legal relationships if the counterclaims are undisputed or have been legally established. If the delivery is defective, counterclaims from the Purchaser remain reserved.

8. If, after the conclusion of the Agreement, it becomes apparent that the claim to the purchase price/work price is put at risk as a result of the Purchaser inability to pay (e.g. application for the opening of insolvency proceedings), SPÄNEX is entitled, in accordance with the statutory regulations, to refuse performance and (after setting a grace period if applicable) withdraw from the Agreement (§ 321 of the BGB). In the event of the custom manufacture (individual production), SPÄNEX can immediately withdraw.

§ 6 Retention of title

1. SPÄNEX retains ownership of the object of the delivery until full payment of all current and future receivables, including owed potential additional and future ancillary services, resulting from the Agreement and an ongoing business relationship. SPÄNEX is entitled to adequately insure the retained goods against fire, water and theft at the Purchaser’s expense, for the reinstatement value, unless the Purchaser has concluded such an insurance policy and provided evidence thereof. Required maintenance and inspection work shall be executed, in due time by the Purchaser and at the Purchaser’s expense..

2. Prior to full payment of the secured receivables, the object of delivery of which ownership is retained may not be pledged to a third party or used as collateral. The Purchaser shall immediately notify SPÄNEX in writing if an application for the opening of insolvency proceedings is submitted or third parties seizures (e.g. attachments) are executed against property SPÄNEX owns.

3. In the event of a breach of contract on the Purchaser’s part, in particular in the event of a failure to pay the due receivables, SPÄNEX is entitled to withdraw from the Agreement in accordance with the statutory regulations and/or demand the surrender of the object of delivery on the basis of the retained ownership. The demand to surrender does not constitute a declaration of withdrawal. SPÄNEX is also entitled to merely demand the surrender of the object of delivery and reserve the right to withdraw. If the Purchaser does not pay the amount due, SPÄNEX can only assert these rights if the Purchaser has been given a reasonable grace period to pay or setting such a grace period is not required in accordance with the statutory regulations.

4. The Purchaser is authorized to sell and/or process objects of delivery still subject to retention of ownership in the normal course of business.
   
   The Purchaser herewith assigns the receivables against third parties arising from the further sale of the objects of delivery or products (in the event of processing, combination, connection) in full or in the amount of any potential co-ownership. SPÄNEX accepts the assignment. The duties of the Purchaser specified in Para. 2 also apply with respect to assigned receivables.
   
   In the event of a further sale, the Purchaser, in addition to SPÄNEX, is entitled to collect payment. SPÄNEX is obligated to not collect the receivable as long as the Purchaser fulfills its payment obligation and there are no deficiencies in its ability to pay and SPÄNEX does not assert the right of retention of ownership by exercising a right pursuant to Para. 3. In this case, SPÄNEX can demand that the Purchaser disclose to us the assigned receivables and the debtors, all information required to collect the receivables, surrender the corresponding documents and notify the debtors of the assignment. SPÄNEX is then also entitled to revoke the Purchaser’s right to resell the objects of delivery subject to retention of ownership.
   
   The retention of ownership extends to the full value of the products created by processing, combining or connecting our objects of delivery, and we shall be considered the manufacturer. If a third party retains ownership rights in the event their goods were used in the further processing, combination or connection, SPÄNEX shall acquire co-ownership in proportion to the invoice values of the processed, combined or connected objects of delivery.
   
    If the achievable value of the collateral exceeds SPÄNEX’ receivables by more than 10%, SPÄNEX shall release collaterals as it chooses upon request of the Purchaser.

§ 7 Warranty/material and legal defects

1. Unless otherwise stipulated in the following, the statutory regulations apply to defect claims from the Purchaser in the event of material and legal defects as well as improper assembly or deficient assembly instructions. In all cases, special statutory regulations remain unaffected in the event of final delivery of the unprocessed goods to a consumer, even the consumer has further processed the goods (supplier recourse pursuant to § 478 of the BGB). Claims based on supplier recourse are excluded if the defective goods were further processed by the Purchaser or another company, e.g. by installing it in another product.

2. The basis of the liability for defects is, in particular, the Agreement concluded regarding the quality and characteristics of the object of delivery. The specific product descriptions and manufacturer specifications, which became the subject of an individual agreement apply as the Agreement regarding the quality and characteristics of the goods..

3. If the quality and characteristics have not been agreed upon, the assessment of a defect shall be based on the statutory provisions (§ 633(1) Sentences 2 and 3 of the BGB or § 434(1) Sentences 2 and 3 of the BGB). SPÄNEX does not assume any liability for public statements made by third parties (advertising statements) which the Purchaser did not indicate were relevant to decision-making.

4. Claims for defects from the Purchaser require the Purchaser having properly fulfilled its inspection and complaint obligations in accordance with § 377 of the HGB (German Commercial Code). The complaint must be made in writing immediately. If the Purchaser fails to perform the proper inspection and/or file the complaint, SPÄNEX is not liable, in accordance with the statutory regulations, for the defect not being reported or not being reported properly or on time..

5. If the delivered item is defective, SPÄNEX can decide whether to provide subsequent performance by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). The right to refuse to provide subsequent performance under the statutory conditions remains unaffected.

6. SPÄNEX is entitled to make the owed subsequent performance dependent upon the Purchaser paying all due receivables. The Purchaser is, however, entitled to retain a reasonable portion of the payment proportionate to the defect..

7. The Purchaser is obligated to grant the time and opportunity to provide the owed subsequent performance, in particular, to transfer the item that is the subject of the complaint for testing purposes. In the event of replacement delivery, the Purchaser shall return the defective item in accordance with the statutory regulations. The subsequent performance does not include the deinstallation of the defective item nor reinstallation if SPÄNEX was not originally obligated to perform the installation.

8. SPÄNEX shall bear the expenses required for the purpose of testing and subsequent performance, in particular, transport, road, work and material costs as well as potential deinstallation and installation costs in accordance with statutory regulations if there is, in fact, a defect. Otherwise, SPÄNEX can demand compensation from the Purchaser for the costs resulting from the unjustified request for defect rectification (in particular testing and transport costs) unless the Purchaser was unable to recognize that absence of a defect.

9. In urgent cases (e.g. operational safety) or to prevent disproportionate damages, the Purchaser has the right to rectify the defect itself and demand compensation of the objectively necessary expenses fromSPÄNEX. SPÄNEX must be notified immediately of any such self-performance. The right to self-performance does not apply if SPÄNEX were entitled to refuse subsequent performance in accordance with the statutory regulations.

10. If the subsequent performance fails or if a reasonable grace period for subsequent performance elapses without success (if such a grace period was not required), the Purchaser can withdraw from the Agreement or reduce the price. In the event of a minor defect, the right of withdrawal does not apply.

11. Claims from the Purchaser for compensation of damages or reimbursement of wasted expenses also only exist, in the event of defects, in accordance with the following provisions and are otherwise excluded.

§ 8 Liability

1. Unless otherwise stipulated in these GT&Cs, including the following provisions, SPÄNEX is liable for contractual and extracontractual obligations in accordance with the statutory regulations.
    
2. SPÄNEX is liable for compensation of damages, regardless of the legal grounds, in the framework of fault-based liability in the event of intent and gross negligence. In the event of minor negligence and subject to a milder standard of liability in accordance with the statutory regulations (e.g. due diligence in one’s own matters), SPÄNEX is only liable
   

    - for damages resulting from loss of life, physical injury or damage to health,

   - for damages resulting from a major beach of a significant contractual duty (obligation which enables the proper fulfillment and upon the compliance of which the contracting party regularly relies and may rely); in this case, liability is limited to the compensation of foreseeable, typically arising damages..

3. The limitations of liability resulting from Para. 2 also apply to breaches of duties by or to the benefit of persons for whose culpability SPÄNEX is liable in accordance with the statutory regulations. They do not apply if SPÄNEX maliciously concealed a defect or assumed a guarantee for the quality and characteristics of the object of delivery in accordance with the Product Liability Act (Produkthaftungsgesetz).

4. The Purchaser can only withdraw or cancel due to a breach of duty that is not the result of a defect if SPÄNEX is responsible for the breach of duty. The Purchaser is not entitled to a free right of cancellation (in particular pursuant to §§ 650, 648 of the BGB). Incidentally, the statutory requirements and legal consequences apply.

§ 9 Statute of limitations

1. The statute of limitations for claims for defects is 12 months starting from the transfer of risk date; if an acceptance has been agreed upon, the statute of limitations starts upon acceptance, but no later than the statutory start of the statute of limitations.

2. The statutory statute of limitation regulations apply to damages that did not arise in the object of delivery itself if SPÄNEX can be accused of intent, gross negligence (also the institutions or managing employees), culpable physical injury, loss of life or damage to health or malicious concealment, or if there are defects in the object of delivery, in accordance with the Product Liability Act for personal injury or property damages to privately used objects.

§ 10 Property rights and copyrights

1. Subject to agreements to the contrary, SPÄNEX is obligated to provide the service or delivery in Germany, free of third-party industrial property rights and copyrights.

2. If third parties file justified claims against the Purchaser due to a violation of property rights, SPÄNEX shall be liable within the grace period pursuant to § 9 as follows:
   
   a) SPÄNEX, shall, at its own discretion and at its own expense, either obtain the usage rights to the relevant delivery or modify or replace it so usage rights are not violated. 
   
   b) The Purchaser’s compensation of damages is conclusively based on § 8. 

3. The above obligations only pertain to SPÄNEX if the Purchaser immediately reports the third-party claim, does not recognize the violation toward the third-party and all defensive and other measures remain reserved for SPÄNEX.
    
4. If third-party claims are based on a violation of property rights on the Purchaser’s part, claims against SPÄNEX are excluded. The same applies if the violation of property rights occurs as a result of the Purchaser’s requirements or an application, modification or the like executed by the Purchaser that SPÄNEX could not have foreseen.
    
5. Further claims from the Purchaser against SPÄNEX due to a violation of property rights and copyrights are excluded.

§ 11 Choice of law, place of jurisdiction and contract language

1. The relationships between the Agreement parties are solely governed by the applicable law of the Federal Republic of Germany, excluding international uniform law, in particular, the UN Convention on the International Sale of Goods.
    
2. If the Purchaser is a merchant in accordance with the Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the sole place of jurisdiction and the international place of jurisdiction for all disputes resulting from the Agreement is SPÄNEX’ place of incorporation (Uslar). The same applies if the Purchaser is a contractor in accordance with § 14 of the BGB. SPÄNEX is, however, entitled to file suit at the place of fulfillment of the supply obligation or in accordance with these GT&Cs or an individual agreement that takes precedence or the Purchaser’s general place of jurisdiction. Statutory regulations that take precedence, in particular those pertaining to sole responsibilities, remain unaffected.
    
3. The contract and correspondence language is German. In the event of translation or interpretation disputes regarding the contracts and correspondence, exclusively the German versions of the written documents and contracts are relevant.

Version January 2020