General terms and conditions

General terms and conditions of sale and delivery

 

I. Scope of application

 

1. The following terms and conditions of sale and delivery shall apply to all contracts concluded between the Buyer and us for the purchase and delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed upon again. Any deviating terms and conditions of the Buyer which we do not expressly acknowledge shall not be binding on us, even if we do not expressly object to them. Our Terms and Conditions of Sale and Delivery shall also apply if we execute the Buyer's order without reservation in the knowledge of conflicting or deviating terms and conditions of the Buyer.

 

2. verbal subsidiary agreements are only binding for us if we have confirmed them in writing. Any waiver of the written form requirement must be agreed in writing.

 

3. The terms and conditions of sale and delivery shall only apply to companies within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law, but not to consumers (§ 13 BGB).

 

II. conclusion of contract

 

1. we can accept an order of the buyer, which is to be qualified as an offer for the conclusion of a sales contract, within two weeks by sending an order confirmation or by sending the ordered products within the same period.

 

2. we are entitled, for the purpose of the credit examination of the buyer the address and creditworthiness data stored over it including such, which are determined on the basis mathematical-statistical procedures by the companies Bürgel Wirtschaftsinformationen GmbH & Co. KG, Postfach 500166, 22701 Hamburg, Creditreform, Stuttgarter Str. 35, 73430 Aalen and Bisnode D&B Deutschland GmbH, Robert-Bosch-Str. 11, 64293 Darmstadt, provided that we have credibly demonstrated our legitimate interest. For the purpose of deciding on the establishment, implementation or termination of the contractual relationship, we collect or use probability values, the calculation of which includes address data.

 

3. Our offers are subject to change and non-binding, unless we have expressly designated them as binding.

 

4. We reserve our property rights, copyrights and other industrial property rights to all illustrations, calculations, drawings and other documents. The buyer may only pass these on to third parties with our written consent, irrespective of whether we have marked them as confidential.

 

III. terms of payment - prices

 

1. our prices are ex works without packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory value added tax. We will show this separately in the invoice at the statutory rate on the day of invoicing. The prices are quoted in Euro.

 

2. a discount deduction is only permissible with a special written agreement between us and the buyer. The purchase price is due for payment without deduction immediately upon receipt of the invoice by the purchaser, insofar as no other term of payment results from the order confirmation. A payment shall only be deemed to have been made when we can dispose of the amount. In the case of payments by check, payment shall only be deemed to have been made when the check has been cashed.

 

3. if the buyer is in default with a payment, the statutory provisions shall apply.

 

4. the buyer is entitled to the set-off, even if notices of defect or counterclaims are asserted, only if the counterclaims were ascertained validly, were recognized by us or are indisputable. The buyer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. We shall be entitled to exercise a right of retention on account of all claims arising from the business relationship with the purchaser.

 

IV. Time of delivery, performance and delay in delivery

 

1. delivery dates or periods which have not been expressly agreed as binding are exclusively non-binding information. The delivery period stated by us shall not commence until the technical issues have been clarified. Likewise, the buyer must fulfill all obligations incumbent upon him properly and in a timely manner. We reserve the right to plead non-performance of the contract.

 

2. we shall be liable for default in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the purchaser is entitled to claim that it no longer has an interest in the further performance of the contract, if we have guaranteed delivery dates or if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we, our representatives or vicarious agents are responsible.

 

3. In the event that a delay in delivery for which we are responsible, whereby fault on the part of our representatives or vicarious agents is attributable to us, is due to a grossly negligent or intentional breach of contract for which we are responsible or a slightly negligent breach of an essential contractual obligation for which we are responsible, we shall be liable in accordance with the statutory provisions with the proviso that in this case our liability for damages shall be limited to the foreseeable, typically occurring damage.

 

4. The Buyer's further statutory claims and rights arising in addition to the claim for damages due to a delay in delivery for which we are responsible shall remain unaffected. If a culpable breach of a non-essential contractual obligation caused by us leads to a delay in delivery on the part of the Buyer, the Buyer's claim for damages shall be limited to 25% of the value of the delivery.

 

V. Transfer of Risk - Shipping/Packaging

 

1. loading and dispatch shall be effected uninsured at the risk of the purchaser "ex warehouse" or "ex works", unless otherwise stated in our order confirmation. We shall endeavor to take into account the wishes and interests of the Buyer with regard to the mode and route of shipment; any additional costs incurred as a result - even in the case of agreed freight prepaid delivery - shall be borne by the Buyer.

 

2. we do not take back transport packaging and all other packaging in accordance with the packaging ordinance; except for reusable pallets. The Buyer shall be responsible for the disposal of the packaging at his own expense.

 

3. If shipment is delayed at the request of or due to the fault of the Buyer, we shall store the goods at the expense and risk of the Buyer. In this case, the notification of readiness for shipment is equivalent to the shipment.

 

4. at the request and expense of the buyer, we will secure the delivery by transport insurance.

 

5. We shall be entitled to make partial deliveries and render partial services at any time, provided that this is reasonable for the Buyer.

 

VI Acceptance

 

1. The Buyer shall be obliged to perform all actions which require acceptance of our delivery. In the event of a culpable breach of this obligation by the Buyer, the Buyer shall be liable to us for any additional expenses, whereby we reserve the right to assert further claims for damages.

 

2. If the buyer is in default with the acceptance of the delivery for more than 14 days, we shall set a grace period of 14 days in writing for the acceptance with the simultaneous announcement to refuse an acceptance in case of fruitless expiry of the set period. If the purchaser allows the set period of grace to expire unsuccessfully, we shall be entitled to withdraw from the purchase contract by means of a written declaration or to demand performance on the grounds of non-performance. If the purchaser persistently refuses to accept the goods or if it is evident that payment of the purchase price is not possible even after a period of grace has been granted, no period of grace need be set.

 

3. We shall then be entitled to claim our loss of profit at 10% of the agreed purchase price, unless the purchaser proves that we have suffered a lower loss. Notwithstanding this, we are entitled to prove and claim higher damages.

 

VII Warranty

 

1. claims for defects on the part of the purchaser shall only exist if the purchaser has duly complied with his duties of inspection and notification of defects owed under § 377 HGB. If the buyer makes changes to our products, if he does not or not sufficiently follow our operating, assembly and maintenance instructions, if he uses parts or consumables not approved by us, our warranty obligation shall lapse if he does not prove that the defect is not due to one of these circumstances. In all other respects, our respective assembly instructions and warranty conditions shall apply. 2.

 

2. In the event of a defect in the goods for which we are responsible, we shall be obliged to provide supplementary performance to the exclusion of the Buyer's rights to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse supplementary performance on the basis of statutory provisions.

 

The purchaser shall grant us a reasonable period of time for subsequent performance. Subsequent performance may be effected by remedying the defect (subsequent improvement) or by delivery of new goods. In the event of rectification of the defect, we shall bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located at a place other than the place of performance. We shall be entitled to determine the type of subsequent performance at our reasonable discretion. Any subsequent performance by us shall be without recognition of any legal obligation unless the defect has been recognized by us.

 

If the subsequent performance has failed, the purchaser may, at his discretion, demand a reduction of the purchase price (abatement) or declare his withdrawal from the contract. The subsequent improvement shall be deemed to have failed after the second unsuccessful attempt, unless further attempts at subsequent improvement are reasonable and acceptable to the Buyer due to the subject matter of the contract.

 

The Buyer may only assert claims for damages in accordance with the statutory provisions on account of the defect if the subsequent performance has failed.

 

The buyer is not entitled to claim damages or a reduction of the purchase price in the case of insignificant defects. 3.

 

3. the claims of the buyer because of lack of the purchase thing fall under the statute of limitations 2 years after delivery with the buyer, if this was used according to her usual use for a building and has caused his defectiveness. This shall also apply to claims of the Buyer for damages or damages in lieu of performance, as well as for all further damages to the Buyer's legal assets caused by the defect, but not in the case of damage to the life, body or health of the Buyer or if we are responsible for the defect due to intent or gross negligence - including that of our vicarious agents.

 

VIII. Liability

 

1. We shall be liable in cases of intent or gross negligence - including that of our representatives or vicarious agents - and always in cases of injury to life, limb or health in accordance with the statutory provisions. In cases of gross negligence, our liability shall be limited to the foreseeable damage typical of the contract, unless another of the exceptional cases set out in sentence 1 or sentence 3 of this paragraph 1 applies at the same time. Otherwise, we shall only be liable under the Product Liability Act or for culpable breach of material contractual obligations (cardinal obligations) or insofar as we have fraudulently concealed the defect or assumed a guarantee for the quality of the object of purchase. However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph 1 applies at the same time.

 

2. The provisions of paragraph 1 above shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of obligations arising from the contractual relationship or from tort. They shall also apply to the claim for compensation of futile expenses. However, liability for delay in delivery shall be determined in accordance with Section IV of these Terms and Conditions of Sale and Delivery.

 

3. a change in the burden of proof to the detriment of the purchaser is not associated with the above provisions.

 

IX. Retention of title

 

1. the delivery item shall remain our property until all our claims against the purchaser arising from the business relationship have been fulfilled.

 

2. the buyer is permitted to process or transform the delivery item ("processing"). the processing is carried out for us. However, if the value of the delivery item belonging to us is less than the value of the goods not belonging to us and/or the processing, we shall acquire co-ownership of the new goods in the ratio of the value (gross invoice value) of the processed delivery item to the value of the other processed goods and/or the processing at the time of processing. Insofar as we do not acquire ownership of the new goods in accordance with the above, we and the Buyer agree that the Buyer shall grant us co-ownership of the new goods in the ratio of the value (gross invoice value) of the delivery item belonging to the Buyer to that of the other processed goods at the time of processing. The above sentence shall apply accordingly in the event of inseparable mixing or combination of the delivery item with goods not belonging to us. Insofar as we acquire ownership or co-ownership in this respect, we shall hold them in safe custody for the purchaser with the diligence of a prudent businessman.

 

3. In the event of the sale of the delivery item or the new goods, the purchaser hereby assigns to us by way of security his claim against his customer arising from the resale, including all ancillary rights, without any further special declarations being required. The assignment shall apply including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by us. The share of the claim assigned to us shall be satisfied with priority.

 

4. If the Buyer combines the delivery item or the new goods with real estate, he shall also assign his claim to which he is entitled as remuneration for the combination in the amount corresponding to the price of the delivery item invoiced by us, without any further special declarations being required.

 

5. until revocation the buyer is authorized to collect the claims assigned to us. The Buyer shall immediately forward to us payments made on the assigned claims up to the amount of the secured claim. In the event of justified interests, in particular in the event of default in payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Buyer, we shall be entitled to revoke the Buyer's collection authority. In addition, we may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realize the assigned claims and demand disclosure of the assignment by way of security by the Buyer to the purchasers.

 

6. If a justified interest is substantiated, the Buyer shall provide us with the information required to assert its rights against the customers and hand over the necessary documents.

 

7. during the existence of the reservation of title, the buyer is prohibited from pledging or transferring ownership by way of security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the purchaser must notify us immediately. The resale of the delivery item or the new goods is only permitted to resellers in the ordinary course of business and only under the conditions that payment of the countervalue of the delivery item is made to the purchaser. The latter shall also agree with the purchaser that the purchaser shall only acquire ownership upon such payment.

 

8. insofar as the realizable value of all security interests to which we are entitled exceeds the amount of the secured claims by more than 10 %, we shall release a corresponding part of the security interests at the request of the purchaser. It shall be presumed that the requirements of the preceding sentence have been met if the estimated value of the security interests to which we are entitled equals or exceeds 150 % of the value of the secured claims. We shall be entitled to choose between different security interests for the release.

 

9. In case of breach of duty by the Buyer, in particular in case of default in payment, we shall be entitled, even without setting a time limit, to demand the return of the delivery item or the new goods and/or -if necessary after setting a time limit- to withdraw from the contract; the Buyer shall be obliged to return the goods. The demand for surrender of the delivery item/the new goods does not constitute a declaration of withdrawal on our part, unless this is expressly declared.

 

X. Place of jurisdiction, choice of law, data protection

 

1. The place of performance and jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as all disputes arising between us and the Buyer from the purchase contracts concluded between us and the Buyer shall be our registered office. However, we are also entitled to sue the buyer at his place of residence and/or business.

 

2. The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of international agreements concerning the purchase of movable goods and the UN Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) is excluded.

 

3. the processing of the contracts concluded between us and the buyer shall be carried out in compliance with the statutory provisions such as the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG). We also undertake to work towards compliance with these regulations on the part of service providers commissioned by us and vicarious agents employed by us. In this respect, we refer to the data protection declaration published on our homepage at: https://www.spa-frame.de/datenschutz in the currently valid version.

 

The German version shall apply exclusively to the content of our General Terms and Conditions of Sale and Delivery, even in the case of any other language versions.

 

Status December 2022