Terms and Conditions

I. Scope

1. These General Terms and Conditions (GTC) apply to all business relationships between us, SPECK PUMPEN Verkaufsgesellschaft GmbH, and our business customers (hereinafter referred to as the ‘Purchaser’).
2. Any terms and conditions of the Buyer that deviate from, supplement or conflict with these GTC shall not be recognised, unless we have expressly agreed to their validity. This requirement for consent shall apply in all cases, in particular where we carry out a delivery to the Buyer without reservation whilst being aware of the Buyer’s terms and conditions.

II. Conclusion of the Contract

1. The Buyer’s order for the goods shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept the offer to enter into a contract within two weeks of its receipt by us. Acceptance may be declared either in writing – e.g. by means of an order confirmation – or by delivery of the goods to the Buyer.
2. Our quotations are subject to change and non-binding. This also applies where we have provided the buyer with illustrations and drawings, as well as weight and dimension specifications or other documents, in respect of which we reserve ownership rights and copyright.

III. Delivery and Delivery Times

1. Delivery dates or deadlines which have not been expressly agreed as binding are provided for information purposes only. The delivery period specified by us shall not commence until all technical issues have been clarified. Compliance with the delivery period further presupposes that the buyer fulfils all obligations incumbent upon them properly and in a timely manner.
2. We shall be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the buyer is entitled to claim that they no longer have an interest in the further performance of the contract. In this case, our liability is limited to the foreseeable, typically occurring damage, provided that the delay in delivery is not due to an intentional or grossly negligent breach of contract for which we are responsible, in which case any corresponding fault on the part of our representatives or vicarious agents shall be attributed to us.
3. Likewise, in the event of a delay in delivery, we shall be liable to the buyer in accordance with the statutory provisions if such delay is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby any corresponding fault on the part of our representatives or vicarious agents shall be attributed to us. Our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional or grossly negligent breach of contract for which we are responsible.
4. Otherwise, in the event of a delay in delivery for which we are responsible, the buyer may claim lump-sum compensation amounting to 3 per cent of the value of the delivery for each full week of delay, up to a maximum of 15 per cent of the value of the delivery. In any event, a formal notice of default from the buyer is required. We reserve the right, however, to prove that the buyer has suffered no loss at all, or only a loss substantially less than that fixed by the above lump sum. This limitation of liability shall not apply where a commercial fixed-date transaction has been agreed.
5. If we are unable to meet a bindingly agreed delivery deadline for reasons beyond our control, we shall inform the buyer of this without delay and, at the same time, notify them of an estimated new delivery deadline. If the goods are not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part. We shall refund any consideration already paid by the buyer without delay. In particular, a failure by our supplier to deliver to us on time shall be deemed a case of unavailability of the service in this sense. The statutory rights of withdrawal and termination to which we and the buyer are entitled, as well as the statutory provisions governing the settlement of the contract in the event of an exclusion of the obligation to perform (e.g. in the event of impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
6. If the buyer is in default of acceptance, fails to fulfil an obligation to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to claim compensation for the resulting damage and any additional expenses incurred. The same applies if the buyer culpably breaches their obligations to cooperate. In this case, the risk of accidental loss or accidental deterioration of the goods shall also pass to the buyer at the point in time at which they fall into default of acceptance.
7. We are always entitled to make partial deliveries, provided these are reasonable for the customer.

IV. Terms of Payment; Price Adjustment

1. Our prices are quoted ‘ex works’ excluding packaging, unless otherwise specified in the order confirmation. The prices do not include statutory value added tax. We shall show this separately on the invoice at the statutory rate applicable on the date of invoicing. All transport packaging in accordance with the Packaging Ordinance will not be taken back.
2. A cash discount is only permissible if a specific written agreement has been concluded between us and the buyer. The purchase price is payable net without deduction within 30 days of the invoice date, unless a different payment term is specified in the order confirmation. A payment shall only be deemed to have been made once we are able to dispose of the amount.
3. We are entitled to increase the contractually agreed prices if the agreed delivery period exceeds four months. A price increase is conditional upon an increase in our cost price (such as material costs, wages, transport costs, energy costs, import duties or taxes). The increase shall be determined at our reasonable discretion; however, it may not exceed 3 per cent for delivery periods of up to six months, nor 6 per cent for longer delivery periods. We shall notify the buyer of the change in writing or in text form no later than four weeks before it is due to take effect. If the price increase exceeds 5 per cent, the buyer shall be entitled to withdraw from the contract by written notice within a period of three weeks from receipt of the notification of the price increase. In all other respects, the provisions of Section 315 of the German Civil Code (BGB) remain unaffected.
4. Should the buyer fall into arrears, interest shall be charged on the purchase price at the applicable default interest rate for the duration of the arrears. We reserve the right to claim further damages arising from the arrears. The claim to commercial due date interest (Section 353 of the German Commercial Code (HGB)) remains unaffected.
5. The buyer shall only be entitled to set-off rights if their counter-claims have been legally established, are undisputed, or have been recognised by us. Furthermore, they shall only be authorised 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 Transport

1. The risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer upon delivery of the goods to a forwarding agent, carrier or any other person designated to carry out the dispatch. Loading and dispatch are carried out uninsured at the buyer’s risk. The handover is deemed to have taken place even if the buyer is in default of acceptance.
2. Unless otherwise agreed, we are entitled to determine the method of dispatch ourselves, in particular the transport company, route and packaging.
3. At the buyer’s request and expense, we shall insure the consignment against transport risks.

VI. Retention of Title

1. We retain title to the goods until all payments under the supply contract have been received. Should the buyer act in breach of the contract, in particular in the event of default in payment, we are entitled to take back the goods. Our taking back of the goods does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. Our seizure of the goods shall always constitute a withdrawal from the contract. Following the repossession of the goods, we are authorised to realise their value; the proceeds of such realisation shall be set off against the buyer’s liability – less reasonable costs of realisation.
2. The buyer is obliged to treat the goods with due care – in particular, they are obliged to insure them adequately at their own expense against fire, water damage and theft, at replacement value. Where maintenance and inspection work is required, the buyer must carry this out in good time at their own expense.
3. In the event of attachment or other interventions by third parties, the buyer must notify us immediately in writing so that we may bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action brought in accordance with Section 771 ZPO, the buyer shall be liable for the loss incurred by us.
4. The buyer is entitled to resell the goods in the ordinary course of business; however, the buyer hereby assigns to us, with immediate effect, all claims amounting to the final invoice amount agreed by us (including VAT) which arise for the buyer from the resale against its customers or third parties, irrespective of whether the goods have been resold unprocessed or after processing. The buyer remains authorised to collect this claim even after the assignment. Our right to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the buyer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made to open insolvency proceedings or payments have been suspended. Should this, however, be the case, we may demand that the buyer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtor (third party) of the assignment.
5. Any processing or transformation of the goods by the buyer shall always be carried out on our behalf. The buyer’s right to the goods shall continue to apply to the transformed item. If the goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the objective value of our goods to the other processed items at the time of processing. In all other respects, the same provisions shall apply to the item created by processing as to the goods delivered subject to retention of title.
6. If the goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the objective value of our goods to that of the other mixed items at the time of mixing. If the mixing takes place in such a way that the buyer’s item is to be regarded as the principal item, it shall be deemed agreed that the buyer transfers proportionate co-ownership to us. The buyer shall hold the sole ownership or co-ownership thus created in safe custody on our behalf.
7. The buyer shall also assign to us, by way of security for our claims against him, any claims arising against a third party as a result of the combination of the goods purchased with a property.
8. We undertake to release the security to which we are entitled at the buyer’s request to the extent that the realisable value of our security exceeds the claims to be secured by more than 10 per cent or the nominal amount by more than 50 per cent; the choice of which security is to be released shall be at our discretion.

VII. Warranty for Defects

1. The buyer’s warranty rights are subject to the buyer having duly fulfilled their obligations to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).
2. In the case of the supply of second-hand goods, warranty rights are excluded, subject to the liability set out in VIII.
3. Insofar as there is a defect in the goods for which we are responsible, we shall be entitled, at our discretion, to provide subsequent performance in the form of rectification of the defect or a replacement delivery. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs.
4. Should the subsequent performance fail, the buyer is entitled, at their discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price (price reduction).
5. Where the cause of the damage is due to wilful misconduct or gross negligence, we shall be liable – without prejudice to the provision under VIII – in accordance with the statutory provisions. This also applies if the buyer seeks damages in lieu of performance due to the absence of a guaranteed quality of the goods.
6. The warranty period is 12 months, calculated from the date of transfer of risk. The limitation of the warranty period does not apply in the event of liability for damage resulting from injury to life, limb or health, in cases of gross negligence, or in the event of fraudulent concealment of a defect.
7. If the use of the goods supplied results in an infringement of industrial property rights or copyright within Germany, we shall, at our own expense, in principle either secure the right for the buyer to continue using the goods or modify the goods in a manner reasonable for the buyer such that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the buyer shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also be entitled to withdraw from the contract. Furthermore, we shall indemnify the buyer against any undisputed or legally established claims by the relevant intellectual property rights holders.
8. The obligations set out in clause 7 are exhaustive, subject to clause VIII, in the event of an infringement of industrial property rights or copyright. They shall apply only if: • the buyer notifies us without delay of any alleged infringements of industrial property rights or copyright; • the buyer assists us to a reasonable extent in defending against the claims asserted or enables us to carry out the modification measures in accordance with Clause 7; • we reserve the right to take all defence measures, including out-of-court settlements, even if a claim is made against the buyer, • the legal defect is not due to an instruction from the buyer, and • the infringement was not caused by the buyer having altered the delivered goods without authorisation or having used them in a manner not in accordance with the contract.
9. We do not provide any guarantee.

VIII. Liability

1. Notwithstanding the following limitations of liability, we shall be liable in accordance with statutory provisions for damage to life, limb or health resulting from a culpable breach of duty on our part, on the part of our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act. The same applies to damage arising from a culpable breach of an essential contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the buyer may regularly rely (cardinal obligation). In the event of a breach of a cardinal obligation due to slight negligence, however, liability for damages is limited to the foreseeable damage that typically occurs. In all other cases, our liability is limited to cases of wilful misconduct and gross negligence.
2. Any further liability is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims in tort, claims for reimbursement of futile expenditure or for loss of profit and other financial loss suffered by the buyer; we shall not be liable for breaches by the buyer of the operating instructions supplied, the provisions of which must be strictly adhered to, nor for natural wear and tear, for damage to wear parts such as seals, bearings and the like, in the event of incorrect or negligent handling of the goods, improper maintenance, unsuitable operating equipment or chemical, electrochemical and electrical influences, unless we are responsible for these. Liability is also excluded if the purchaser or a third party carries out improper repairs or makes alterations to the goods without our prior written consent.

IX. Data Protection

All personal data provided by the buyer (title, name, address, email address, telephone number, fax number, bank details, credit card number) shall be collected, processed and stored by us exclusively in accordance with the provisions of German data protection law (in particular the GDPR and the BDSG). The buyer’s personal data, insofar as it is necessary for the establishment, substance or amendment of the contractual relationship, shall be used by us exclusively for the purpose of fulfilling the concluded sales contracts, for example to deliver goods to the address specified by the buyer. The data held shall not be used for any other purposes, such as advertising or market research.

X. Construction Services

Where we undertake construction work for the buyer, the VOB/B in its current version shall apply in addition to the individual contractual agreements.

XI. Place of performance, jurisdiction and applicable law

The place of performance for all obligations arising from the contractual relationship with the buyer is our registered office in Neunkirchen. The place of jurisdiction for all legal disputes arising from the contractual relationship between us and the buyer, as well as those concerning its formation and validity, is determined by our registered office. We are, however, entitled to bring proceedings against the buyer at any other competent court of jurisdiction. These General Terms and Conditions and all legal relationships between us and the buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of all international and supranational (contract) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.

XII. Severability clause

Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by the relevant statutory provision.