Terms and conditions

Gen­er­al terms and con­di­tions of sale, deliv­ery and pay­ment of SPECK Pumpen Verkauf­s­gesell­schaft GmbH

Janu­ary 2018

I. Scope

  1. These terms and con­di­tions (T&Cs) apply to all busi­ness rela­tions between us, SPECK Pumpen Verkauf­s­gesell­schaft GmbH, and our cus­tom­ers (here­after referred to as the "pur­chaser").
  2. Any diver­gent, sup­ple­ment­ary or con­flict­ing terms and con­di­tions of the pur­chaser will not be recog­nised unless we have expressly agreed that they shall apply. This require­ment for an agree­ment shall apply in each case, and espe­cially where we execute a deliv­ery to the pur­chaser without reser­va­tion des­pite hav­ing know­ledge of the purchaser's T&Cs.

II. Con­tract conclusion

  1. Order­ing the goods by the pur­chaser is deemed a bind­ing offer to con­clude a con­tract. Unless it emerges oth­er­wise from the order we shall be entitled to accept the offer to con­clude a con­tract with­in two weeks fol­low­ing the point that we receive the offer. The accept­ance may be stated in writ­ing – e.g. through an order con­firm­a­tion – or may be provided by deliv­er­ing the goods to the purchaser.
  2. Our offers are sub­ject to con­firm­a­tion and are non-bind­ing. This is also the case where we have trans­mit­ted images or draw­ings to the pur­chaser or weight and meas­ure­ment inform­a­tion or oth­er doc­u­ment­a­tion in which we reserve title and hold the copyright.

III. Deliv­ery and deliv­ery times

  1. Deliv­ery times or peri­ods that are not expressly agreed as being bind­ing are non-bind­ing state­ments only. The deliv­ery time stated by us only begins once any tech­nic­al quer­ies have been cla­ri­fied. The pur­chaser must also meet all of their oblig­a­tions prop­erly and on time.
  2. We shall be liable under the stat­utory reg­u­la­tions where the pur­chaser is entitled to assert a ces­sa­tion of their interest in con­tin­ued ful­fil­ment of the con­tract as a res­ult of a delayed deliv­ery for which we are respons­ible. In this event our liab­il­ity shall be lim­ited to fore­see­able dam­age that typ­ic­ally occurs inso­far as the delayed deliv­ery is not based on inten­tion­al breach of con­tract for which we are respons­ible, with culp­ab­il­ity on the part of our rep­res­ent­at­ives or agents also being attrib­ut­able to us.
  3. We shall also be liable to the pur­chaser under the stat­utory reg­u­la­tions in the event of delayed deliv­ery where this is based on inten­tion­al or grossly neg­li­gent breach of the con­tract, with culp­ab­il­ity on the part of our rep­res­ent­at­ives or agents also being attrib­ut­able to us. Our liab­il­ity shall be lim­ited to fore­see­able dam­age that typ­ic­ally occurs inso­far as the delayed deliv­ery is not based on inten­tion­al breach of con­tract for which we are responsible.
  4. Oth­er­wise for each com­plete week of the delay the pur­chaser may make a flat-rate claim of 3% of the deliv­ery value up to a max­im­um of no more than 15% of the deliv­ery value in the event of a delayed deliv­ery. A remind­er on the part of the pur­chaser shall also be required in each case. We reserve the right to prove, how­ever, that the pur­chaser suffered no dam­age or sig­ni­fic­antly less dam­age than that fixed through the flat rate above. This lim­it­a­tion of liab­il­ity shall not apply where a com­mer­cial trans­ac­tion is con­cluded for deliv­ery by a fixed date and time.
  5. Where a prom­ised and bind­ing deliv­ery time can­not be met for reas­ons that are not under our respons­ib­il­ity, we shall inform the pur­chaser of this imme­di­ately and shall at the same time com­mu­nic­ate a new expec­ted deliv­ery time. If the per­form­ance is not pos­sible with­in the new deliv­ery time then we shall be entitled to with­draw from the con­tract in whole or in part. We shall imme­di­ately reim­burse the pur­chaser for any con­sid­er­a­tion already provided by the lat­ter. An instance of impossib­il­ity of the per­form­ance for these pur­poses is in par­tic­u­lar untimely deliv­ery to us by our own sup­pli­er. Our stat­utory rights of with­draw­al and ter­min­a­tion along with the stat­utory rules on pro­cessing the con­tract in the case of an exclu­sion of the oblig­a­tion to per­form (e.g. where the per­form­ance and/or sup­ple­ment­ary per­form­ance is impossible or unreas­on­able) remain unaffected.
  6. If the pur­chaser is in default of accept­ance, neg­lects to cooper­ate or if our deliv­ery is delayed for oth­er reas­ons which are the purchaser's respons­ib­il­ity then we shall be entitled to demand com­pens­a­tion for the dam­age that has occurred and for any addi­tion­al expendit­ure incurred. The same shall apply where the pur­chaser culp­ably breaches an oblig­a­tion to cooper­ate. In this event the risk of acci­dent­al dam­age or acci­dent­al deteri­or­a­tion of the item pur­chased shall also pass to the pur­chaser at the point that the lat­ter is in default of acceptance.
  7. We are entitled to make par­tial deliv­er­ies at any time inso­far as these are reas­on­able for the customer.

IV. Pay­ment terms

  1. The list prices applic­able on the day of deliv­ery will be the prices charged unless fixed prices are expressly agreed.
  2. Our prices are applic­able "ex works" without pack­aging unless oth­er­wise set out in the order con­firm­a­tion. The prices do not include stat­utory VAT. This will be stated and charged sep­ar­ately on the invoice at the stat­utory amount at the invoice date. No trans­port­a­tion pack­aging in accord­ance with the Ger­man Pack­aging Reg­u­la­tion will be taken back.
  3. Dis­counts shall only be per­miss­ible where there is a spe­cial writ­ten agree­ment between us and the pur­chaser. The pur­chase price shall be due for pay­ment with­in 30 days from the invoice date unless anoth­er pay­ment peri­od emerges from the order con­firm­a­tion. A pay­ment shall only be deemed to have been made where the amount is at the payee's dis­pos­al. Cheques will only be accep­ted on account of per­form­ance not, how­ever, in lieu of performance.
  4. If the pur­chaser is in default then interest shall be charged on the pur­chase price at the applic­able default interest rate for the peri­od of the default. A right to assert fur­ther claims for dam­age caused through the default is reserved. Any claim for com­mer­cial interest after the due date (sec­tion 353 of the Ger­man Com­mer­cial Code – HGB) remains unaffected.
  5. The pur­chaser shall only be entitled to rights of set-off where their counter-claims are determ­ined in law, are undis­puted or are acknow­ledged by us. Moreover the pur­chaser shall only be entitled to exer­cise a right of reten­tion to the extent that their counter-claim is based on the same con­trac­tu­al relationship.

V. Trans­fer of risk and transportation

  1. The risk of acci­dent­al destruc­tion or of acci­dent­al deteri­or­a­tion of the goods as well as the risk of delay shall pass with the deliv­ery of the goods to the car­ri­er, freight for­ward­er or oth­er per­son appoin­ted to execute the ship­ment. The goods will be loaded and shipped without insur­ance at the purchaser's risk. The han­dover shall be deemed to have occurred where the pur­chaser is in default of acceptance.
  2. Unless oth­er­wise agreed we shall be entitled to determ­ine the ship­ment type ourselves, in par­tic­u­lar the trans­port­a­tion com­pany, ship­ment route and packaging.
  3. At the purchaser's request and cost we will insure the deliv­ery with trans­port­a­tion insurance.

VI. Reten­tion of title

  1. We shall retain the title in the pur­chased item until all pay­ments from the deliv­ery con­tract are received. We shall be entitled to take the pur­chased item back in the event that the pur­chaser acts in breach of con­tract, in par­tic­u­lar in the event of default of pay­ment. Where we take the pur­chased item back this shall not res­ult in a with­draw­al from the con­tract unless we have expressly declared this. Where we pledge the pur­chased item this shall be deemed a with­draw­al from the con­tract. After we have taken the pur­chased item back we shall be entitled to real­ise its value and the amount real­ised from the sale of the goods shall be applied to the purchaser's oblig­a­tion – minus any reas­on­able real­isa­tion costs.
  2. The pur­chaser shall be under an oblig­a­tion to look after the pur­chased item – they shall in par­tic­u­lar be under an oblig­a­tion to insure it at their own cost against dam­age from fire and water and theft at replace­ment value. Where main­ten­ance and inspec­tion work is required the pur­chaser must execute this in good time at their own cost.
  3. In the event of seizure or oth­er inter­fer­ence from third parties the pur­chaser must inform us imme­di­ately and in writ­ing so that we are able to instig­ate leg­al pro­ceed­ings in accord­ance with sec­tion 771 of the Ger­man Code of Civil Pro­ced­ure (ZPO). The pur­chaser shall be liable for the loss suffered by us where the third party is not able to reim­burse us for the judi­cial and extra-judi­cial costs for leg­al pro­ceed­ings under sec­tion 771 ZPO.
  4. The pur­chaser shall be entitled to sell the pur­chased item on in the ordin­ary course of busi­ness; they shall, how­ever, assign all claims to us at the amount of the final invoice amount agreed by us (includ­ing VAT) accrued by them against their own pur­chaser or third party through the sale, irre­spect­ive of wheth­er the pur­chased item has been sold without or fol­low­ing pro­cessing. The pur­chaser shall also be entitled to col­lect this claim after the assign­ment. Our author­ity to col­lect this claim ourselves remains unaf­fected. We under­take, how­ever, not to col­lect the claim where the pur­chaser meets their pay­ment oblig­a­tions from the pro­ceeds col­lec­ted, is not in default of pay­ment and in par­tic­u­lar where no applic­a­tion has been made to open insolv­ency pro­ceed­ings or the pur­chaser has not been declared bank­rupt. Where this is the case, how­ever, we may demand that the pur­chaser reveals the assigned claims and their debt­or to us, provides all inform­a­tion required for col­lec­tion, sur­renders the asso­ci­ated doc­u­ment­a­tion and noti­fies the debt­or (third party) of the assignment.
  5. Pro­cessing or con­ver­sion of the pur­chased item by the pur­chaser will be car­ried out in all cases for us. The purchaser's expect­ancy right to the pur­chased item shall con­tin­ue to exist in the con­ver­ted item. If the pur­chased item is pro­cessed with oth­er items that do not belong to us then we shall acquire co-own­er­ship in the new item pro­por­tion­al to the object­ive value of our item that has been pur­chased to the oth­er items pro­cessed at the time of pro­cessing. For the remainder the same rule shall apply to the item res­ult­ing from the pro­cessing as for the pur­chased item delivered sub­ject to reservation.
  6. If the pur­chased item is insep­ar­ably amal­gam­ated with oth­er items that do not belong to us then we shall acquire co-own­er­ship in the new item pro­por­tion­al to the object­ive value of our item that has been pur­chased to the oth­er items amal­gam­ated at the time of the amal­gam­a­tion. If the amal­gam­a­tion occurs in such a way that the purchaser's item is to be deemed to be the main item then it is agreed that the pur­chaser shall assign pro­por­tion­al co-own­er­ship to us. The pur­chaser shall hold the sole or co-own­er­ship that arises this way for us as a custodian.
  7. The pur­chaser shall also assign to us the claims to secure our claims against them that arise through com­bin­ing the pur­chased item with a piece of land against a third party.
  8. At the purchaser's request we under­take to release the secur­it­ies to which we are entitled to the extent that the real­is­able value of our secur­it­ies exceeds the claims to be secured by more than 10% or the nom­in­al amount by more than 50%; we shall be entitled to select the secur­it­ies to be released.

VII. War­ranty

  1. The purchaser's war­ranty rights require that the pur­chaser has duly com­plied with their oblig­a­tions to exam­ine and noti­fy of defects under sec­tion 377 HGB.
  2. War­ranty rights are excluded where used goods are delivered, sub­ject to the liab­il­ity under VIII.
  3. Where the pur­chased item con­tains a defect for which we are respons­ible we shall be entitled to execute sup­ple­ment­ary per­form­ance by rec­ti­fy­ing the defect or to execute a replace­ment deliv­ery at our dis­cre­tion. In the event of defect rec­ti­fic­a­tion we shall be respons­ible for all expendit­ure required for the pur­poses of rec­ti­fy­ing the defect, in par­tic­u­lar trans­port­a­tion and car­riage costs and work and mater­i­al costs, unless these increase through the fact that the pur­chased item has been trans­por­ted to a dif­fer­ent loc­a­tion to the place of fulfilment.
  4. In the event that the sup­ple­ment­ary per­form­ance fails the pur­chaser shall be entitled at their dis­cre­tion to with­draw from the con­tract or to claim a cor­res­pond­ing reduc­tion in the pur­chase price.
  5. Where the reas­on for the dam­age is based on wil­ful intent or gross neg­li­gence we shall be liable in accord­ance with the stat­utory pro­vi­sions. This shall also apply where the pur­chaser requests com­pens­a­tion in lieu of per­form­ance due to the lack of a guar­an­teed fea­ture of the item.
  6. The war­ranty peri­od shall be 12 months from the date of the trans­fer of risk.
  7. If use of the item res­ults in an infringe­ment of intel­lec­tu­al prop­erty rights or copy­rights in Ger­many, we will in prin­ciple pro­cure the right for the pur­chaser to con­tin­ue to use the item or modi­fy the item delivered in a man­ner which is reas­on­able for the pur­chaser and in such a way that there is no longer any infringe­ment of the prop­erty right. Where this is not pos­sible under eco­nom­ic­ally reas­on­able con­di­tions or with­in a reas­on­able peri­od the pur­chaser shall be entitled to with­draw from the con­tract. We shall also be entitled to a right to with­draw from the con­tract under the con­di­tions stated. Moreover we will release the pur­chaser from any undis­puted claims of the rel­ev­ant own­er of the prop­erty right or any claims determ­ined in law.
  8. The oblig­a­tions stated under 7.) are con­clus­ive in the event of an infringe­ment of a pro­tect­ive right or copy­right sub­ject to point VIII. They shall exist only where: 
    • the pur­chaser informs us imme­di­ately of any claims that are as-ser­ted for pro­tect­ive right or copy­right infringements,
    • the pur­chaser sup­ports us adequately in our defence against the claims asser­ted or enables us to carry out the modi­fic­a­tion meas­ures under point 8.),
    • all defens­ive meas­ures includ­ing extra-judi­cial set­tle­ments remain reserved for us,
    • the leg­al defect is not based on an oper­a­tion of the pur­chaser and
    • the infringe­ment of the right has not been caused through the fact that the pur­chaser has inde­pend­ently changed the item delivered or used it in a man­ner not provided for under the contract.
  9. No guar­an­tee will be provided by us.

VIII. Liab­il­ity

  1. Irre­spect­ive of the sub­sequent lim­it­a­tions of liab­il­ity we shall be liable under the stat­utory reg­u­la­tions for dam­age to life, limb and health which is based on a culp­able breach of oblig­a­tion by us, our leg­al rep­res­ent­at­ives or our agents, as well as for dam­age that is covered by the liab­il­ity under the Ger­man Product Liab­il­ity Act. For any dam­age that is not covered by sen­tence 1.) and which is based on inten­tion­al or grossly neg­li­gent breach of oblig­a­tion or deceit on our part, our leg­al rep­res­ent­at­ives or our agents, we shall be liable in accord­ance with the stat­utory reg­u­la­tions. In this event, how­ever, the liab­il­ity for com­pens­a­tion shall be lim­ited to fore­see­able dam­age that typ­ic­ally occurs unless we, our leg­al rep­res­ent­at­ives or our agents have acted with intent.
  2. We shall also be liable for dam­age that we cause through simple neg­li­gent breach of those con­trac­tu­al oblig­a­tions the ful­fil­ment of which enables due ful­fil­ment of the con­tract in the first place and that the pur­chaser routinely trusts and may trust have been met. We shall, how­ever, only be liable where the dam­age is typ­ic­ally asso­ci­ated with or fore­see­able under the contract.
  3. Any fur­ther liab­il­ity is excluded irre­spect­ive of the leg­al nature of the claim asser­ted. This applies in par­tic­u­lar also to claims in tort, claims for com­pens­a­tion for futile expendit­ure or for lost profits and oth­er fin­an­cial dam­age of the pur­chaser; we shall not be liable in the event that the pur­chaser does not com­ply with oper­at­or instruc­tions that are also sup­plied where the spe­cific­a­tions in these must be strictly com­plied with; nor shall we be liable for nor­mal wear and tear, for dam­age to parts sub­ject to abra­sion and wear such as seals, bear­ings and sim­il­ar items where there is incor­rect or neg­li­gent treat­ment of the goods, where main­ten­ance and ser­vi­cing are not in com­pli­ance with the reg­u­la­tions or where there is expos­ure to unsuit­able work equip­ment or chem­ic­al, elec­tro­chem­ic­al and elec­tric­al influ­ences, unless we are respons­ible for these. Liab­il­ity is also excluded where the pur­chaser or a third party car­ries out improp­er repairs or makes changes to the goods without our pri­or writ­ten consent.

IX. Data protection

All the per­son­al data com­mu­nic­ated by the pur­chaser (title, name, address, e-mail address, tele­phone num­ber, fax num­ber, bank details, cred­it card num­ber) will be col­lec­ted, pro­cessed and saved by us exclus­ively in accord­ance with the reg­u­la­tions of Ger­man data-pro­tec­tion law. Where per­son­al data of the pur­chaser is required for sub­stan­ti­at­ing or amend­ing the con­trac­tu­al rela­tion­ship or for­mu­lat­ing its con­tent, this per­son­al data will be used by us exclus­ively for pro­cessing the con­cluded pur­chase agree­ments, for instance for deliv­er­ing the goods to the pur­chaser at the stated address. There will be no use of on-hand data above and bey­ond this for advert­ising or mar­ket-research pur­poses or to for­mu­late offers.

X. Con­struc­tion services

Part B of the con­tract­ing rules for the award of pub­lic works con­tracts (VOB/B) shall apply in its rel­ev­ant applic­able ver­sion in the event that we take on con­struc­tion ser­vices for the purchaser.

XI. Place of per­form­ance, place of jur­is­dic­tion and applic­able law

The place of per­form­ance for all oblig­a­tions from the con­trac­tu­al rela­tion­ship with the pur­chaser is our head office in Neunkirchen. The place of jur­is­dic­tion for all dis­putes arising between us and the pur­chaser from the con­trac­tu­al rela­tion­ship as well as on its ori­gin and effect­ive­ness will be determ­ined by our head office. The law of the Fed­er­al Repub­lic of Ger­many shall apply to these T&Cs and to all leg­al rela­tions between us and the pur­chaser, to the exclu­sion of all inter­na­tion­al and supra-nation­al (con­trac­tu­al) leg­al sys­tems, in par­tic­u­lar the UN Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods.

XII. Sev­er­ab­il­ity clause

In the event that reg­u­la­tions in these T&Cs are or become inef­fect­ive then this shall not affect the valid­ity of the remainder of the contract.

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