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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SPECK Pum­pen Ver­kauf­sge­sell­schaft GmbH
91233 Neun­kir­chen am Sand, Ger­ma­ny

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