GTC - General Terms and Conditions
§ 1 General Conditions - Scope of Application
1. The following terms and conditions as well as any separate contractual agreements apply to all contracts for goods and services between the buyer and SPÄNEX. The Buyer's conflicting conditions of purchase do not become part of the contract, even if an order is accepted.
A contract is concluded - without any special agreement - when SPÄNEX issues a written order confirmation.
2. The scope of the delivery is determined by the written order confirmation. The following items are not included in the scope of goods and services: construction work (masonry and chiselling), constructional steelwork, plumbing work for heating and public utility systems and electrical work. Please see individual order confirmations for other goods and services that are excluded from the scope of delivery.
Apart from that, the current version of Part B of the German Construction Contract Procedures (VOB/B) applies in addition for work performances.
3. The sales and delivery conditions of SPÄNEX only apply with respect to entrepreneurs, corporate bodies under public law, or special funds under public law within the meaning of § 310, para. 1 of the German Civil Code (BGB).
§ 2 Offer and Conclusion of Contract
1. The information provided by SPÄNEX in its catalogues, brochures and advertisements is subject to change and non-binding, unless it is expressly designated as binding and included in the contract as part of the subject matter.
2. The sales representatives of SPÄNEX are not authorised to enter into agreements that go beyond the rules established herein, unless a suggestion made by a sales representative is confirmed to the Buyer in writing by SPÄNEX.
3. SPÄNEX reserves its proprietary and intellectual property rights to samples, estimates, drawings and other tangible or intangible information – including information in electronic form – which must not be shared with third parties, or may only be shared with third parties with the written permission of SPÄNEX, regardless of whether or not it has been marked as confidential by SPÄNEX. If the Buyer does not place an order all documents must be returned to SPÄNEX immediately.
SPÄNEX undertakes not to make information and documentation marked by the Buyer as confidential accessible to third parties without the Buyer's permission.
§ 3 Prices and Payments
1. Price lists as well as prices listed in catalogues and on the Internet are subject to change. Fixed price agreements require a written agreement between SPÄNEX and the Buyer. Without any special agreement, prices are quoted ex works, exclusive of packaging, shipping, transportation charges, unloading, assembly, start-up, customs fees, other ancillary costs and the like. These will be billed separately. Prices are quoted without the applicable value added tax, which will be shown separately on the invoice in the amount specified by law.
2. Goods invoices must be paid in full to the appointed paying agent of SPÄNEX no later than 30 days from the invoice date. A 2 % discount is granted if payment is made within 8 days from the invoice date.
If partial payments have been agreed the following rules apply:
- 1/3 is due as a down payment immediately upon receipt of the order confirmation;
- 1/3 is due as soon as the Buyer receives notice that the goods are ready for shipment and must be received before the goods are delivered;
- 1/3 is due after assembly and start-up, but no later than 30 days after delivery.
A 2% discount is granted if partial payments are made within 8 days from the invoice date.
Discounts will only be granted if all prior and outstanding invoices have been paid in full.
Invoices for services such as assembly, start-up, maintenance and transportation are not eligible for a discount and are payable in full within 8 days.
If payments are overdue (default as defined in § 286 of the BGB) we have the right to apply a payment to an old debt first.
3. A payment is considered to have been made when the amount is at the disposal of SPÄNEX. Payments by cheque are considered to have been made when the cheque has been cashed (conditional payment).
4. After a payment deadline expires the Buyer shall be considered in default without a separate reminder. Statutory provisions apply in this respect. Default interest in the amount of 8 % above the applicable base interest rate will be charged for late payments. The right to assert a claim for a demonstrated higher interest loss and other damages caused by default shall remain unaffected.
5. In the event of long-term payment agreements the entire outstanding balance becomes due immediately if the Buyer is more than 10 days late on two consecutive partial payments.
6. The Buyer is only entitled to withhold payments or set them off against counterclaims arising from a legal dispute or similar legal position if there is an uncontended or legally valid counterclaim.
§ 4 Time of Delivery and Performance
1. Delivery dates or periods are as agreed between the parties. Compliance with the stated delivery dates presumes that all commercial and technical questions have been clarified and the order confirmation has been sent to the Buyer. In addition, the Buyer must fulfil all obligations which are necessary to allow SPÄNEX to perform the agreed services, such as, for example, supplying required official certificates or approvals, other preliminary work, or making a down payment, in a proper and timely manner and document them. If this is not the case the delivery date will be extended accordingly, except in cases where SPÄNEX is responsible for the delay.
Deadlines are also extended accordingly if the failure to meet them was caused by unforeseen events (war, riots, strike, etc.).
2. Apart from that, the delivery time is deemed to have been met if the delivery item has left the premises of SPÄNEX before the scheduled delivery date or if the Buyer has been informed in writing that the item is ready for delivery. If acceptance of the goods is required the acceptance date, or, alternatively, the notification of readiness for acceptance, shall prevail, except in cases where acceptance is rejected for good reason.
3. Adherence to the agreed delivery time is contingent upon the correct and timely delivery of items to SPÄNEX by our suppliers. SPÄNEX will notify the Buyer as soon as possible of any emerging delays.
4. If the Buyer is responsible for a delay in the shipping or acceptance of the delivery item the Buyer will be billed for the costs resulting from that delay starting a month after receipt of the notification that the delivery is ready for shipping or acceptance.
5. SPÄNEX is liable to the Buyer under the provisions of law if a delay in delivery is the result of a deliberate or grossly negligent breach of contract on the part of SPÄNEX and if SPÄNEX is also responsible for the default of its representatives or vicarious agents. The liability of SPÄNEX is limited to the foreseeable damage that can typically be expected unless the delay in delivery is the result of a deliberate breach of contract on the part of SPÄNEX.
SPÄNEX is also liable under the provisions of law if the delay in delivery for which SPÄNEX is responsible is based on the culpable violation of a major contractual duty, however, in that case the liability for damages is limited to the foreseeable damage that can typically be expected.
6. The right to assert a claim for a contractual penalty is excluded in the event of a delay in delivery. In case the term of delivery is exceeded by SPÄNEX the Buyer has the right to demand a lump-sum compensation. The compensation is a maximum of 0.5 % for each full week of the delay, not to exceed 5 % of the delivery value overall, for the portion of the delivery the Buyer was unable to put into useful operation because of the delay caused by SPÄNEX. The right of SPÄNEX to claim that the Buyer did not suffer any or suffered only minor damage shall remain unaffected.
7. SPÄNEX does not accept any further liability for delays in delivery for which it is responsible. All other legal claims and rights to which the Buyer is entitled in addition to the claim for damages due to a delay in delivery for which SPÄNEX is responsible shall remain unaffected.
§ 5 Transfer of Risk, Shipping/ Packaging, Acceptance
1. Unless otherwise agreed in the order confirmation the delivery will be "ex works", even if carriage is prepaid. The risk is transferred to the Buyer when the delivery item or, in the case of partial deliveries, part of the delivery item, leaves the factory.
2. Notwithstanding item 1, the latest date for the transfer of risk for delivery items which include assembly is the date of delivery to the Buyer's factory. If acceptance is required the risk is transferred upon acceptance, which must be carried out without delay on the acceptance date or, alternatively, after SPÄNEX has notified the Buyer of an item's readiness for acceptance. The Buyer does not have the right to refuse acceptance because of an immaterial defect. Acceptance is deemed to have taken place at the latest after the Buyer has put the delivery item into operation.
3. At the request of the Buyer SPÄNEX will procure transport insurance for the delivery item. The related costs shall be borne by the Buyer. SPÄNEX must be presented with a written request to procure transport insurance.
4. Apart from that, goods will be shipped uninsured at the Buyer's risk. SPÄNEX will make every effort to take the wishes and interests of the Buyer with regard to the dispatch method and route into account. Any resulting additional costs will be borne by the Buyer, even if delivery has been agreed carriage-free. Any delivery items that have been damaged or lost in transit must be recorded immediately upon receipt of the shipment, noted in the freight documentation, and reported to SPÄNEX in writing.
5. In accordance with the provisions of the German packaging ordinance transport packaging and other packaging cannot be returned to SPÄNEX. The Buyer is responsible for the disposal of packaging materials at its own cost. If necessary, the return of transport and other packaging can be arranged in a separate agreement.
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6. If shipping, delivery or the start or completion of the set-up or assembly are delayed at the Buyer's request or through the Buyer's fault the risk will be transferred to the Buyer. SPÄNEX will store the goods at the Buyer's risk and expense. In that case the notification of readiness for delivery is equal to actual shipment.
7. If the Buyer is in default of acceptance or culpably violates other duties to cooperate SPÄNEX has the right to demand reimbursement for the resulting damage plus any additional costs. The right to make additional demands shall remain reserved. The risk of accidental deterioration or destruction is transferred to the Buyer at the time of the default of acceptance or debtor's delay.
8. SPÄNEX has the right to make partial deliveries if they are requested by or deemed acceptable to the Buyer. In particular, SPÄNEX has the right to make partial deliveries if the delivery of the complete order is delayed because technical information requested by SPÄNEX was not provided in time.
Repeat orders are delivered and invoiced separately. Repeat orders do not prevent the transfer of risk for (partial) shipments that have already been delivered.
§ 6 Reservation of Title
1. SPÄNEX retains ownership of the deliverable until all payments - including payments for any additional and potential future ancillary services - due under the contract have been received.
In the event that the Buyer acts in violation of the contract, particularly in the event of a delay in payment, SPÄNEX has the right to take back the goods subject to retention of title after an appropriate deadline has expired. In that case the Buyer is obligated to return the item, even if SPÄNEX has not withdrawn from the contract.
2. The Buyer is obligated to treat the goods subject to retention of title with the proper care. SPÄNEX has the right to ensure the goods subject to retention of title against damage from fire, water and theft at their replacement value at the expense of the Buyer if the Buyer does not provide proof of an existing insurance. If maintenance or inspection work becomes necessary it must be carried out by the Buyer in a timely fashion and at its own cost.
3. During the time that the goods are subject to retention of title the Buyer is prohibited from putting them in pawn or assigning them as security. The Buyer only has the right to sell and/or use the goods subject to retention of title in the course of doing business and in accordance with the rules, as long as the Buyer is not in default of payment. Claims and liabilities (including all current account balance claims) resulting from the resale of the goods subject to retention of title or any other legal reason (insurance, unauthorised activity) are herewith assigned to SPÄNEX by the Buyer in their entirety as a security; SPÄNEX hereby accepts the assignment. Apart from that, a resale is only permitted under the condition that the Buyer receives payment from its customers or sells the goods under the provision that ownership will not be transferred to the customer until the customer has met its payment obligations.
4. Any processing or alteration of the goods subject to retention of title by the Buyer is carried out on behalf of SPÄNEX. If the goods subject to retention of title are processed with articles that are not the property of SPÄNEX, SPÄNEX acquires joint ownership of the new article at the ratio of the value of the goods subject to retention of title (invoice final amount including VAT) to the value of the other processed articles at the time of processing. The new article created by processing is subject to the same rules as the goods subject to retention of title.
If the goods subject to retention of title are inseparably mixed with articles that are not the property of SPÄNEX, SPÄNEX acquires joint ownership of the new article at the ratio of the value of the goods subject to retention of title (invoice final amount including VAT) to the value of the other mixed articles at the time of mixing. If the Buyer's article is considered to be the principal article as a result of the mixing the Buyer and SPÄNEX agree that the Buyer will assign proportional co-ownership of that article to SPÄNEX; SPÄNEX hereby accepts the assignment. The Buyer holds the resulting sole or joint ownership of an article in safe custody for SPÄNEX.
5. In the event that the goods subject to retention of title are seized by a third party, especially in the event of an attachment, the Buyer shall make the third party aware of the ownership by SPÄNEX and inform SPÄNEX at once to allow SPÄNEX to assert its proprietary rights. The Buyer is liable for any legal and extra-judicial costs resulting from this matter if the third party is unable to reimburse SPÄNEX for those costs.
6. SPÄNEX has a special right of cancellation/withdrawal in the event and at the time that the Buyer submits a request for insolvency proceedings.
§ 7 Warranty/ Material Defects and Defects of Title, Liability and Limitation of Liability
1. The Buyer is only entitled to submit a claim for defects if the Buyer has duly complied with the obligation to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). A notice of defect must be submitted immediately and in writing.
2. The Buyer has the right to request either remediation of the defect or delivery of a non-defective item (§ 439, para. 1 of the German Civil Code (BGB)). SPÄNEX has the right to refuse the type of supplementary performance chosen by the Buyer if it is associated with excessively high costs for SPÄNEX. In that case the Buyer's claim is restricted to the other type of supplementary performance (§ 439, para. 3 of the BGB). Replaced parts become the property of SPÄNEX. The rights of the Buyer to withdraw from the contract or reduce the purchase price are excluded.
The Buyer's claim for supplementary performance only includes the performance of the service that was originally owed; any necessary expenses are borne by SPÄNEX only to the extent that they do not increase unreasonably because the object of agreement is in a place other than the place of fulfilment. SPÄNEX shall bear the costs of assembly and disassembly only to the extent that they are not unreasonably high.
3. The Buyer must grant SPÄNEX a reasonable period of time to carry out the supplementary performance; otherwise SPÄNEX shall be exempt from liability and the resulting consequences. Only in urgent cases where the operational safety is at risk or for the prevention of a disproportionately high loss does the Buyer have the right to remedy a defect itself or hire a third party to do so and to demand the reimbursement of the necessary expenses from SPÄNEX; in that case SPÄNEX must be notified at once. If the supplementary performance has definitively failed, or if SPÄNEX - in due consideration of statutory exceptions - allows a reasonable period for subsequent improvement or replacement due to a significant defect to elapse without effect the Buyer has the right to either withdraw from the contract or reduce the contract price. In the event of an insignificant defect the Buyer only has the right to reduce the contract price. The Buyer is entitled to submit a claim for damages as per the following conditions only after the supplementary performance has failed. The right of the Buyer to assert further claims for damages as per the following conditions shall remain unaffected.
4. The right of the Buyer to assert further claims for damages for material defects is excluded, unless SPÄNEX has fraudulently concealed the defect or failed to observe a guarantee of quality. The present provision does not change the burden of proof to the detriment of the Buyer.
5. Irrespective of the above limitations of liability SPÄNEX is liable for damages not involving the delivery item only in the event of intent, gross negligence of competent bodies or executive staff, culpable injury to life, body and health, and in cases where liability is required for personal or material damage to privately used items under the Product Liability Act. In the event of a culpable violation of essential contractual duties SPÄNEX is also liable for the gross negligence of non-executive staff as well as for slight negligence, although these are limited to the damage that is typical and foreseeable with respect to the contract.
6. SPÄNEX is not liable in the event of improper or incorrect use, improper assembly or start-up, natural wear and tear, improper or negligent handling, incorrect maintenance, unsuitable production facilities, faulty construction, unsuitable building sites, and chemical, electro-chemical or electrical influences, provided they are not within the scope of SPÄNEX's responsibility.
7. If the Buyer or a third party carries out improper repairs SPÄNEX shall not be liable for the resulting consequences. The same applies to modifications of the delivery item that are carried out without the prior consent of SPÄNEX.
8. Apart from that, unless otherwise agreed in the above, any further liability is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising out of culpa in contrahendo and to tortious claims for compensation for material damage or to claims for the compensation of wasted resources in lieu of performance.
9. The above provisions apply equally to defects of title.
§ 8 Impossibility
1. The Buyer has the right to withdraw from the contract without fixing a time limit if it becomes definitively impossible for SPÄNEX to deliver the entire performance prior to the transfer of risk, or if it becomes definitively impossible to carry out part of the delivery and there is a justified interest in rejecting partial deliveries. Apart from that,, SPÄNEX is liable for impossibility in accordance with § 7, items 5 and 8.
2. If unforeseen events (war, riots, strike, etc.) occur which significantly change the commercial relevance or content of the delivery to be made by SPÄNEX, or if these events have a significant effect on SPÄNEX's operations, the contract shall be adapted in good faith. If a contract adaptation is economically unacceptable SPÄNEX has the right to withdraw from the contract; in that case SPÄNEX is obligated to notify the Buyer immediately of its desire to withdraw.
§ 9 Limitation
1. The period of limitation for claims for defects is 12 months from the transfer of risk, but no later than the beginning of the statutory limitation period.
2. Damages that did not occur to the delivery item itself are subject to statutory limitation rules to the extent to which SPÄNEX can be accused of intent, gross negligence (including gross negligence of competent bodies or executive staff), culpable injury to life, body and health or fraudulent concealment, or to the extent to which defects of the delivery item are subject to liability for personal or material damage to privately used items under the Product Liability Act.
§ 10 Intellectual Property Rights
1. Subject to any agreements to the contrary, SPÄNEX's performance within Germany must be delivered without infringing upon the intellectual property rights of third parties.
2. If third parties justifiably raise a claim against the Buyer because of an infringement of intellectual property rights SPÄNEX shall be liable within the period stipulated in accordance with § 9 as follows:
a) SPÄNEX shall, at its choice and expense, either obtain the usage rights for the delivery in question or change or replace the delivery such that the usage rights are not violated.
b) The indemnification of the Buyer is determined conclusively by § 7.
3. SPÄNEX is required to meet the above-mentioned obligations only if the Buyer reports a claim raised by a third party immediately and refrains from admitting a violation to the third party, and if all defensive and other measures remain reserved to SPÄNEX.
4. If the third party claim is based on an infringement of its intellectual property rights by the Buyer any claims against SPÄNEX are excluded. The same applies if the infringement of intellectual property rights is caused by requirements of the Buyer or by an application, modification or the like that could not have been foreseen by SPÄNEX.
5. Further claims of the Buyer against SPÄNEX for infringement of intellectual property rights are excluded.
§ 11 Place of Fulfilment, Place of Jurisdiction, Language of the Contract, Applicable Law
1. The place of fulfilment and jurisdiction for deliveries and payments (including summary actions based on a cheque or a bill of exchange) as well as for all disputes between SPÄNEX and the Buyer as a result of the agreements between them is the place of business of SPÄNEX (Uslar). However, SPÄNEX also has the right to sue the Buyer at its place of residence and/or business.
2. The relationship between the parties to the contract is governed exclusively by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
3. Possible individual agreements and the statutory regulations of the Federal Republic of Germany apply in addition. Individual agreements take precedence over the General Terms and Conditions, which in turn take precedence over the statutory regulations of the Federal Republic of Germany.
4.The language used for the contract and for correspondence is German. In the event of a dispute resulting from the translation or interpretation of contracts and correspondence only the German versions of the document or contract shall be binding.
§ 12 Binding Force of the Contract
In the event that individual provisions of the contract become invalid the remaining provisions shall remain in effect. This does not apply if adherence to the contract would place undue hardship on one of the parties.