Spindel und Präzisionslager GmbH
General Terms and Conditions of Business
I. Validity of the Terms and Conditions of Business
Our supplies services and quotations are based solely on these Terms and Conditions of Business. These terms shall also apply to all future business relationships even where these have not been expressly agreed. Counterconfirmations of the purchaser by way of reference to their own business and purchasing conditions are hereby precluded. These shall neither be considered to be terms of a contract through silence nor unconditional performance on our part.
II. Quotations, order confirmations and quality specifications
Our quotations are subject to confirmation and are non-binding unless otherwise expressly agreed. Orders require our written order confirmation to be legally valid. This also applies to amendments or supplementary agreements as well as to supplementary agreements or assurances from our employees or representatives. Our written order confirmation is solely defining for the scope of the supply or service.
Drawings illustrations dimensions weight or other performance data are approximate values as is standard practice in this industry and are only binding where this is expressly agreed in writing. This also applies to characteristics which the purchaser expects in accordance with our public statements in particular based on advertising, labelling or established commercial practice. These characteristics shall only form a part of the agreed quality insofar as they are expressly confirmed in writing. This likewise applies to guarantees. We reserve the right to undertake design and formal alterations during the delivery period and in particular such changes as are ascribed to the improvement of the technology or at the demands of the legislature insofar as the goods are not materially altered or the suitability of the goods ordered is not compromised in terms of the contractually provided for or usual application.
We reserve all ownership rights and copyrights over samples, cost estimates, drawings etc., information of a material or intellectual nature also in electronic form and these may neither be made accessible to any third parties and nor not be used for the in-house production of the objects concerned by the purchaser.
III. Prices and Payments
Our prices are net and quoted in Euros excluding the statutory value added tax and are ex works including loading but without packaging, unloading and assembly. Unless assembly has been agreed with the purchaser then the purchaser shall bear the additional costs arising therefrom. The extent of these costs shall be determined in accordance with these Terms and Conditions of Business unless otherwise agreed.
Unless otherwise agreed payment shall be due immediately upon receipt of invoice and shall be paid without deduction within ten days. The receipt of payment is defining in terms of the timeliness of payment. All payments are to be made only to the accounts stated on the invoices.
If the purchaser is late with payment then we shall be entitled to demand interest on late payment to the amount of five percentage points above the respective base rate without provision of evidence.
If the purchaser is not the consumer then the late payment interest on payment demands shall be eight percentage points above the respective base rate. Further claims shall remain unaffected. In particular the enforcement of higher interest rates on other legal grounds as well as the enforcement of other damages is not precluded.
In the case of late payment by the purchaser we shall be also be entitled to cancel the contract after expiry of a period of grace set by ourselves or after the due issuance of a written reminder in addition to the enforcement of claims for damages as we see fit.
The written reminder shall be unnecessary in accordance with the statutory regulations inter alia where a calendar date was determined for the payment or where the purchaser earnestly and conclusively refuses to pay. The written reminder is also unnecessary if the immediate initiation of default is justified because the purchaser despite their express announcement of an immediate payment does not undertake to do the same or because the purchaser by dint of their behaviour prevents input of the written reminder.
Moreover the purchaser is deemed to have defaulted if at the latest if they do not make payment within 30 days after the due date and the input of an invoice or equivalent payment schedule.
The purchaser can only offset with counterclaims where this is uncontested or recognised by us or established as legally binding.
If the purchaser is a merchant then they cannot exercise right of retention against our claims for payment.
We expressly reserve the right to make part deliveries and part invoicing.
To secure our claims for payment we shall be entitled at all times to demand suitable payment security (e.g. bank guarantees) from the purchaser. Should the purchaser be in default of the required security then we shall be entitled to cancel the contract and/or demand damages for nonfulfilment.
IV. Delivery period /delivery delays
The delivery period ensues from the agreements between the parties to the contract. Adherence by ourselves presupposes that all commercial and technical issues of the parties to the contract have been settled and the purchaser has fulfilled all the above obligations such as the furnishing of the required official certifications or approvals or making an advance payment. Should this not be the case then the delivery period shall lengthen accordingly. This does not apply insofar as the delay is accountable for.
Adherence to the delivery deadline is conditional on the correct and timely delivery to ourselves. Parts which appear to be delayed shall be notified by us a soon as possible.
The delivery deadline shall be deemed to have been adhered to when up to the point in its cycle the article to be delivered has left the works of the supplier or readiness for despatch has been notified. Insofar as an acceptance inspection is to take place (apart from the lawful declining of an acceptance) the date of acceptance is defining or alternatively the notification of readiness for acceptance.
V. Place of performance, transfer of risk, acceptance
Place of performance for all performance obligations shall be our place of business. This applies also to assembly and repair services insofar as these are within the scope of our supply.
Upon delivery the risk passes to the purchaser as soon as the goods are handed over to the carrier or other transport person. This shall also apply in the case that the transport is provided by our vehicle.
The risk is transferred to the purchaser where the article to be delivered has left the works and also in the case of part deliveries or where the supplier has also undertaken other services such as the costs of despatch or delivery and placement. Inasmuch as an initial acceptance is to take place then this is defining for the transfer of risk.
The purchaser may not reject the initial or final acceptance due to the existence of an insignificant defect.
Should the despatch or the initial acceptance respectively be delayed or not come about as a consequence of circumstances which are not attributable to the supplier then the risk is transferred to the purchaser from the day of notification of despatch and initial acceptance readiness.
VI. Retention of title
We reserve the rights of ownership of the goods until all payments due from the business relationship have been received. Insofar as we agree with the purchaser on payment of the goods by process of cheque or bill of exchange the retention of title shall extend until payment by the purchaser of the accepted cheque or bill of exchange and does not cease through our crediting to account of the received cheque. In the case of behaviour contrary to contract by the purchaser and in particular with payment default we shall be entitled to take back the goods. Recovery of the goods by ourselves shall not be considered a withdrawal from the contract unless we had expressly declared this.
Seizure of the goods by ourselves shall always be considered a withdrawal from the contract. After taking back the goods we shall be entitled to salvage these whereby the salvage proceeds shall be deducted from the debts of the purchaser minus reasonable salvage costs.
The processing or conversion of the goods by the purchaser shall always be carried out in our favour.In the case of processing or conversion of goods subject to retention of title it shall for the applicability of § 950 BGB (German Civil Code) be agreed that we are the manufacturer of the new goods. This shall serve as our security only to the extent of the value of the goods subject to retention of title. Where the goods are processed with other artefacts not belonging to us then we shall acquire joint ownership of the new object in the ratio of the value of the goods under retention to the other processed artefacts as at the time of the processing. Apart from that the same shall apply to the new object resulting from the processing as for the goods supplied under retention of title. Where the goods under retention are inseparably combined or mixed with other artefacts not belonging to us then we shall acquire joint ownership in the new object in the ratio of the value of the goods under retention to the other combined or mixed artefacts at the point of time of the combining or mixing. Where the combining or mixing takes place in such a way that the object of the purchaser is to be regarded as the main object then it shall be considered to have been agreed that the purchaser transfers joint ownership to us proportionately. The purchaser shall keep safe custody of the resulting sole ownership or joint ownership for us.
The purchaser's receivables from the resale of the goods under retention shall apply upon its completion as assigned to ourselves and this shall be irrespective of whether the goods under retention are resold without or subsequent to processing. The assigned receivables shall serve as our security only to the extent of the respective value of the goods under retention. In the case of the sale of the goods under retention by the purchaser together with other goods not belonging to us or after processing then the assignment of the purchase price receivables shall apply only to the extent of the value of the goods under retention which together with the other goods constitute this purchase contract or a part of the object of purchase.
The purchaser shall be entitled and empowered to resell the goods under retention in the proper course of business with the stipulation that the purchase price receivables from the resale are transferred to ourselves in accordance with the preceding paragraph. The purchaser shall not be entitled to other dispositions of the goods under retention. The purchaser shall be empowered to collect the receivables from the resale as long as they discharge their contractual payment obligations to ourselves. Our entitlement to collect the receivables ourselves shall remain unaffected by this. We are however obligated not to collect the receivables provided that the purchaser discharges their payment obligations out of the proceeds received and does not default on payment and in particular that no insolvency or settlement proceedings have been applied for or there exists no stoppage of payment.
On our demand and in particular in the last mentioned situations in paragraph 6.4. the purchaser shall notify ourselves of the assigned receivables as well as their principals and provide all details necessary for their collection and inform the principals of the assignment. In the case of seizure or other interventions of a third party the purchaser shall notify us without delay by handing over documentation necessary for an intervention in order that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to compensate ourselves for the judicial and extrajudicial costs of a legal action in accordance with § 771 ZPO (German Code of Civil Procedure) then the purchaser shall be liable for our incurred loss.
The purchaser shall also assign the receivables to ourselves to secure our claims against them which accrue against a third party by combining the purchased goods and/or goods under retention with real property.
We shall be obliged in accordance with the foregoing conditions to release at our discretion the security owed as its value exceeds the claims to be secured by twenty percent but with the stipulation that only excepting the delivery in a current account relationship a release shall only be effected for such deliveries or replacement values which themselves are paid in full.
The purchaser is bound to keep safe custody of the goods for us and to repair and maintain the same at their own expense and in addition to insure these at their own expense in the manner expected of a prudent businessman against loss and/or damage. The purchaser shall thereby assign their claims from the insurance policy to ourselves in advance. Insofar as maintenance and inspection work is necessary the purchaser shall carry this work out at their own expense and in good time unless otherwise agreed.
VII. Claims against defects
The purchaser is bound to give notice in writing to ourselves of identifiable defects promptly but at the latest within one week following receipt of the goods and unidentifiable defects at the latest within one week of their discovery. These deadlines are preclusion periods.
Insignificant defects shall not entitle the purchaser to refuse acceptance. Normal wear and tear of the goods supplied shall not constitute a defect.
Insofar as a defect is present in the supplied goods then we shall be entitled to rectify this or replace the goods at our discretion (supplementary performance). The purchaser shall after agreement with ourselves allow us the required time and opportunity to undertake all the rectifications and supply of replacements which appear to us to be necessary otherwise we shall be released from the liability for the consequences arising therefrom. The supplementary performance shall take place without the recognition of a legal liability and shall not institute a new period of limitation. This shall also apply where within the scope of rectification work spare parts are fitted. Should the rectification work be abortive then the purchaser shall be entitled within a reasonable deadline and at their discretion to cancel the contract or demand a reasonable abatement of the purchase price (reduction).
In the case of fitted third party components we shall undertake the same guarantee that the supplier of those components gives to ourselves.
The guarantee period shall commence with the transfer of risk to the purchaser and shall run for twelve months.
Where used artefacts are supplied then any guarantee is precluded insofar as this is legally permissible.
No liability shall be accepted for defects which are caused by unsuitable and inexpert use or faulty installation or commissioning by the purchaser or from non-assigned or not authorised third parties or which arise from normal wear and tear or incorrect or negligent handling or unsuitable operating media or substitute materials or defective supporting ground or otherwise unsuitable accommodations or chemical or electronic or electrical influences insofar as these are not attributable to our responsibilities. Likewise precluded shall be claims against defects which are attributable to modifications to the goods or inexpert repairs by the purchaser or third parties assigned by them.
Should it emerge upon examination of the asserted defects that a defect is not present or is not attributable to ourselves then the purchaser shall be bound to bear the costs occasioned by the examination.
Where the delivered articles cannot be used by the purchaser as provided in the contract through our responsibility as a consequence of negligent or faulty execution of proposals and advice given prior to or subsequent to the concluding of the contract or through the violation of other secondary contractual obligations and in particular instructions for the operation and maintenance of the delivered articles then the provisions of paragraphs 7.1, 7.3 and 7.6 shall apply accordingly to the exclusion of further claims.
For damage that does not result from the delivered article itself we shall only be liable
a. in the case of intent,
b. in the case gross negligence by the owner /company organ or managing employee,
c. in the case of culpable injury to life or body or health,
d. in the case of defects fraudulently concealed or the absence of which was guaranteed,
e. in the case of defects in the delivered article insofar as liability exists under product liability laws for personal or material damage to objects in private use.
In the case of culpable violation of material contractual obligations we shall also be liable in the case of gross negligence of non-managerial employees and in the case of minor negligence in the latter case limited to the contract-typical and reasonably foreseeable damage.
Further claims shall be precluded.
IX. Period of limitation
All claims irrespective of whatever their legal grounds shall lapse after a period of twelve months. The statute of limitations shall apply to claims for damages of any kind.
X. Applicable law and court of jurisdiction
The law of the German Federal Republic shall apply exclusively to the business relationship between ourselves and the purchaser with the exclusion of a possible referral to the German International Private Law a well as the UN Convention for the International Sale of Goods (CiSG). This shall also apply where the purchaser has their company head office abroad.
Inasmuch as the purchaser is a registered merchant in the sense of the German Commercial Code or a legal entity under public law or a special fund under public law or has no general court of jurisdiction within the German Federal Republic then Leipzig shall be the exclusive court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship (including such arising from bills of exchange or cheques). We reserve the right also to avail ourselves of the court of jurisdiction of the purchaser.