Status: February 1, 2016
§1 Scope of Terms, Exclusion of Conflicting Terms and Conditions
Our General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”) shall apply to all our offers, deliveries and services. The following GTC shall only apply to entrepreneurs according to Section 14 German Civil Code, legal entities under public law or an asset under public law (hereinafter referred to as “Customer”).
Our GTC shall apply exclusively. We shall not accept different GTC of the Customer unless they have been confirmed by us in writing.
Within a permanent business relationship, our GTC shall also apply to all our future offers, deliveries and services relating to the Customer without requiring any further reference or agreement.
§2 Conclusion of Contract, Scope of the Delivery, Prohibition of Assignment
As a general rule, our offers are free of charge and non-binding, unless agreed upon otherwise in writing. Any deal or agreement requires our written acceptance of order or our delivery of the goods. The same shall apply to any amendments, changes or side agreements.
All information about our products, in particular pictures, sizes, performance criteria and any other technical data contained in our offers and brochures shall be regarded as approximate average values. Tolerances in quantity, weight, number of pieces and dimensions customary in this line of business are expressly reserved.
Our written acceptance of order or, in the event of lack of such acceptance of order, our offer shall be authoritative for the scope of delivery and the services to be rendered.
All documents and data on which our offer is based, such as technical drawings, illustrations, descriptions, weights and sizes, shall only be binding if expressly agreed upon in writing. We reserve the right to make minor changes and modifications to the extent such changes or modifications do not substantially impair the purpose of the contract and the delivery. All our documents and data remain our property. Such documents may neither be retained nor copied or otherwise reproduced or made available to third parties by the Customer and have to be handed out to us immediately upon our request. Even if we leave these documents to the Customer, our intellectual property rights remain unaffected hereby.
The Customer shall not be entitled to assign any claims against us without our prior written consent. The same shall apply to any of the Customer’s claims against us in connection with the contractual relationship which have arisen by operation of law.
§3 Prices, Payments, Partial Payments
All payments are made in EURO exclusively to us.
Unless otherwise agreed, our list prices and freight rates valid on the date of delivery shall apply.
Unless otherwise stated in the order confirmation, our prices shall apply for delivery “Ex Works” (EXW, Incoterms 2010) and are net prices. Freight, customs, subsidiary import charges and packing costs shall be paid additionally by the Customer.
The prices do not include the statutory value added tax, which shall be invoiced separately at the rate(s) stipulated by applicable law as of the respective date of invoice.
If it is agreed that the prices depend on the respective component weight, the final price shall be based on the weight of the approved sample.
Unless agreed upon otherwise in writing, we are entitled to unilaterally raise the prices and / or charges for freight in the event of substantial increases of salaries, prices of raw materials and supplies, energy costs, costs for freight and customs duties or other materials. The same shall apply to contracts for the performance of a continuing obligation.
Unless agreed upon otherwise, our invoices are immediately due for payment without any deduction.
At the latest 30 days after the receipt of the invoice, the Customer shall be deemed in delay of payment unless circumstances exist (e.g. reminder or a shorter payment term or a payment term determinable by calendar) that cause the Customer to be deemed in delay earlier. When the Customers is in delay of payment, the Customer shall pay interest at a rate of annually 9 percentage points above the base interest rate. In case of delay of payment, we additionally reserve the right to charge a lump sum in the amount of 40,00 €. Further contractual or statutory rights remain unaffected hereby.
All payments received shall be used first to settle costs, than interest and finally against the oldest claim regardless to any conflicting determinations of the Customer.
Cheques and drafts will only be accepted as means of payment after previous agreement in writing. Any costs incurred by us resulting from such a payment shall be borne by the Customer.
The Customer may only offset receivables due to us with counter claims, if such counter claims are undisputed or have been established by a court of law in an unappealable manner.
If payment terms are not complied with or circumstances become known or visible which – according to our reasonable commercial discretion give reason to doubt the credit worthiness of the Customer including facts which already existed at the time of the conclusion of the contract, but which were not known by us or which we didn't have to be aware of, we are entitled to refuse our performance and to demand advance payments or the provision of adequate securities for outstanding deliveries and to withdraw from the contract after a reasonable grace period to provide such securities has expired; further statutory rights remain unaffected hereby. The Customer shall be liable for all damages incurred by us by the non-fulfilment of the contract.
Upon delay of payment of our Customer, suspension of payment or the opening of an insolvency proceeding with respect to the Customer’s assets, all our claims become immediately due for payment. This applies also in the event of agreed terms of credit or if the claim is not yet due for payment for some other reason. Furthermore, this shall apply irrespective of the term of a draft which we have accepted.
§4 Delivery Times
The delivery period shall be the period agreed upon between the parties.
The term of delivery agreed upon shall be considered as a term of delivery aimed at, unless agreed upon otherwise in writing.
The term of delivery agreed upon shall begin at the earliest with the date of conclusion of contract, however, not before complete clarification of all commercial and technical questions and not before delivery of all necessary documents and approvals to be provided by the Customer and / or receipt of any advance payments that may have been agreed upon.
Adherence to the delivery period is subject to the reservation of correct and timely delivery of our suppliers to us.
Delivery is made Ex Works, Incoterms 2010. The Customer shall collect the goods immediately after notification that the goods are ready for dispatch.
The term of delivery “Ex Works, Incoterms 2010”, shall be deemed complied with if the item to be delivered has been selected and is ready for dispatch within the agreed period and the Customer has been informed hereof. In the case of a sales shipment (“Versendungskauf”), the term of delivery shall be deemed complied with if the item that has to be delivered has been handed over to a person in charge of the transport prior to expiry of the delivery period or if the item could not be handed over without our fault.
A term of delivery shall be extended appropriately in the event of Force Majeure or any unforeseen obstacles which affect us or our suppliers. Such an unforeseen and extraordinary obstacle shall be particularly given in the event of unrest, strike, lock-out, fire, confiscation, embargo, statutory or official orders and constraints or incorrect and/or delayed self-supply, if and to the extent such obstacles have not been culpably caused by us and such obstacles have influence on our ability to timely fulfil our obligations under the contract. If, due to such circumstances, the term of delivery shall be extended for a commensurate period of time, the Customer shall be entitled to withdraw from the contract after expiry of such extended term of delivery. If the Customer is interested in partial performance of the contract, the Customer may withdraw from such part of the contract that is yet unfulfilled. If we have already performed in part, the Customer may only withdraw from the entire contract if the Customer can evidence that he has no interest in partial delivery and / or service by us. Further statutory or contractual rights to withdraw from the contract remain unaffected hereby.
If we should be in delay of delivery and after a reasonable grace period defined by the Customer has expired unsuccessfully, the Customer shall be entitled to withdraw from the entire contract or, if the Customer is interested in partial performance of the contract, withdraw from such part of the contract that is yet unfulfilled. Further claims of any kind, in particular claims for damages based on bad performance or damage caused by delay, are excluded. § 9 remains unaffected hereby. If and to the extent we are liable for damages caused by delay according to § 9, the Customer is entitled to claim compensation for the default, which shall amount to 0,5 % of the contract price for every full week of the delay, but not more than 5 % in the aggregate amount, for that part of the delivery which cannot be used in time because of the delay. The parties are free to demonstrate that the actual damage actually incurred was higher or lower than this amount.
We are entitled to deliver before the expiry of the delivery date and to deliver in partial deliveries, unless agreed upon otherwise in writing.
If the Customer is in default in accepting delivery or can otherwise be held responsible for a delay in dispatch, we shall be entitled to store the products at the risk and expense of the Customer. After the grace period for accepting the delivery set by us has expired, we may withdraw from the contract and demand compensation for damages in lieu of performance, without prejudice to further rights. The setting of a grace period is not required if the Customer seriously and finally declines acceptance or it is obvious that the Customer is not able to pay the purchase price or to accept the delivery within grace period. The amount of damages is deemed to be an amount of 20 per cent of the order value. The amount of damage shall be set off against any advance payment made. The parties are free to demonstrate that the actual damage actually incurred was higher or lower than this amount.
§5 Packaging, Dispatch, Passing of Risk
If a transport and / or a packaging to be performed by us is agreed upon, we may at our discretion determine the method of packaging and dispatch.
Unless agreed upon otherwise in writing, the goods shall be delivered “Ex Works”, Incoterms 2010.
The risk of accidental loss or accidental deterioration shall pass to the Customer as soon as the Customer is notified of the readiness for dispatch and the delivery item is set aside. This shall also apply if we have provided additional services such as loading, transport or unloading. If the performance is delayed due to reasons caused by the Customer the risk of accidental loss pass with the notification of provision of the delivery.
Upon the Customer’s request, we shall insure the respective shipment in its name and at its costs against theft, breakage, transportation, fire and water damages. A corresponding authority shall be deemed given to us by expression of the demand in the aforementioned sense.
§6 Retention of Title
We retain the title to all goods delivered by us until complete fulfilment of all claims resulting from the business connection with the Customer including claims resulting from cheques and drafts. If payment is agreed upon with the Customer on the basis of cheque-draft-procedure, the retention of title shall last until the danger of recourse has ceased to exist.
The Customer shall, at any time upon our request and in the event of an insolvency application, clearly mark the goods subject to retention of title as “property of Speidel Tank- und Behälterbau GmbH”.
The Customer shall handle the goods subject to retention of title with care; in particular, the Customer shall adequately insure these goods at replacement value against damages caused by fire, water and theft. If and to the extent maintenance and inspection services are required, these services shall be effected by the Customer in a timely manner.
Any processing of the delivered goods by the Customer will be done for us as producer according to § 950 German Civil Code. If the delivered item is processed or inseperably connected with other items not belonging to us, we acquire joint ownership of the new goods. The share of the joint ownership corresponds to the relation of the invoice value of the delivered item to the invoice values of the other used items. The Customer is authorized to process the delivered item in the ordinary course of business, provided that the aforementioned security interests are preserved.
The Customer is entitled to sell the delivered items in the ordinary course of business provided that the extended retention of title in accordance with number 6.6 is ensured. Any other acts of disposal, in particular transfer, transfer by way of security, pledge or the like shall not be permitted.
The Customer hereby assigns to us all claims resulting from the resale of the delivered goods to third parties. We hereby accept this assignment. If the good subject to retention of title is jointly owned by us, such assignment shall only relate to the amount of our claims against the Customer.
The Customer is authorized to collect the assigned claims for the account of us in its own name in the ordinary course of business and only revocably. Any revocation may only occur if the Customer has not correctly fulfilled its duties, in particular its payment duties, if it is insolvent or unable to pay, if it has applied for the opening of an insolvency proceeding or the opening of such proceeding has been refused due to lack of sufficient assets. If the permission to collect has been revoked, the Customer shall notify the debtor of the assignment. Furthermore, we are entitled to disclose the extended retention of title to the Customer's client.
The Customer’s authorization to dispose of, to process or to collect the assigned claims shall terminate without express revocation in the event an insolvency proceeding is opened or the opening is refused due to lack of sufficient assets, cessation of payments, a filing for insolvency concerning the Customer's assets by the Customer or a third party or in the event of establishment of inability to pay or over-indebtedness. In these events as well as in the events of section 6.7, we are entitled to withdraw from the contract and to request the return of the good subject to retention of title after reminder and fruitless expiry of an appropriate additional respite. The Customer is obliged to release such goods. The proceeds resulting from the collection of the goods subject to retention of title minus the collection costs shall be deducted from the obligations vis-à-vis us.
In the event the Customer’s authorization to collect the assigned claims is revoked, the Customer shall immediately disclose to us in writing the name of the assigned claim's debtor and the amount of the claims.
In the event that the securities assigned to us exceed the value of our claims by more than 20 %, we shall at the Customer’s request release securities to an appropriate amount at our own discretion.
The Customer shall immediately inform us in writing about third parties’ access to the goods subject to retention of title, the assigned claims or any other documents and data. Any costs incurred by a legal defense of the goods subject to retention of title including costs vis-à-vis third parties shall be borne by the Customer.
We are to be held responsible for defects in material and workmanship (“Sachmangel”) and defects of title existing at the time of the passing of risk according to the following provisions.
The production release shall be made in writing if we submit to the Customer samples for testing and production release. In this case, the samples released by the Customer shall be decisive for the quality and design of the products. The reference to technical standards is made for performance specification and is not to be construed as a quality guarantee.
Any warranty rights are available to the original purchaser only and may not be assigned to a third party without our consent.
Certain characteristics are only considered as warranted if expressly confirmed in writing. A guarantee shall only be deemed issued if a characteristic is expressly denominated as “guaranteed” in writing.
The Customer shall immediately give notice in writing of any kind of obvious material defects, deviations in quantity and false deliveries, at the latest within twelve (12) days after delivery, in any case before connection, mixture, processing or installation; otherwise, the goods are considered to be approved despite these defects, unless we, our legal agents or our vicarious agents have acted with fraudulent intent. The Customer shall immediately give notice in writing of any hidden material defects, at the latest within twelve (12) days after their discovery. In addition, Sections 377, 378 German Commercial Code shall apply.
The Customer shall give us the opportunity to jointly assess the notified complaints and to be present at any withdrawal for material examination.
Subject to the following provisions in this section 8.7, the limitation period for all claims for defects shall be one (1) year from the start of the statutory limitation period. If the delivered item is a building or is used for a building according to its intended use and has caused the building's defectiveness, the statutory limitation periods shall apply according to §§ 438 subsection 1 no. 2 and 634a subsection 1 no. 2 German Civil Code (BGB). If we have intentionally misrepresented the defect by silence, the statutory limitation periods shall apply with respect to any claims for damages. Furthermore, the statutory limitation periods shall apply with respect to claims for damages due to defects, if we are liable for intent or gross negligence, or in the event of injury to life, body or health.
Our warranty for defects of quality and defects of title shall be limited to supplementary performance. Within the scope of our supplementary performance obligation, we are entitled, at our discretion, either to remedy the defect (subsequent improvement) or to deliver faultless material (replacement). If our supplementary performance is delayed beyond a commensurate period of time, or if the supplementary performance is unsuccessful despite repeated efforts, the Customer is entitled to reduce the purchase price or to withdraw from the contract. A withdrawal from the contract is excluded if the defect is only of minor nature. Furthermore, in the event of faultless partial deliveries, the Customer may only withdraw from the entire contract if it can evidence that it has no interest in the partial performance. Further claims, in particular claims for reimbursement of expenses and claims for damages, are excluded unless provided for otherwise in the following § 9. We shall take title to the replaced parts or, as the case may be, they remain our property and they shall be returned to us upon our request.
The Customer shall return the defective good to us for subsequent improvement or replacement at its own risk, unless a reshipment is not possible because of the kind of delivery. We shall bear the costs for transportation due to supplementary performance, however only from the place where the good has been delivered to according to the terms of contract and limited by the amount of the purchase price.
The Customer has to give us the necessary time and opportunity for subsequent improvement or replacement. Only in the event of urgent cases of risk to the plant safety, the protection against unreasonably high damages or delay with the removal of defects, the Customer shall be entitled to cure the defect by itself or by a third party after prior notice and to demand from us restitution of the necessary costs.
Claims for recourse according to Sections 478, 479 German Civil Code are excluded, unless the claim by the consumer was legitimate and only to the statutory extent, except for gestures of goodwill which were not coordinated with us. Such claims require the observation of own duties of the person entitled to recourse, in particular the observation of the requirement to make a complaint in respect of a defect immediately on receipt of goods.
The processing or installation of delivered items is always deemed to be a waiver of the notice of defects to the extent the defect was obvious.
In the event of legitimate notices of defects, payments by the Customer may only be withheld in an adequate proportion to the material defects occurred. In the event of an unjustified notice of defects, we are entitled to demand from the Customer reimbursement of the expenses resulting therefrom.
Claims based on defects are excluded in the event of minor deviations from the agreed or usual characteristics or utility, e.g. minor differences in color, dimension, quality or performance features of the products or in the event of products being within the tolerances or having production based processing traces being typical for that kind of industry.
There shall be no warranty obligation if the intended use of the delivery item by the Customer deviates from the common use, unless agreed upon in writing.
The warranty rights only extent to new products. Unless agreed upon otherwise, used products are sold as is under exclusion of any warranty rights.
Fair wear and tear, damage caused by the Customer’s or any third party’s default, negligence or misuse of the Products, including the accidental or deliberate destruction of or damage to the products, is not subject to any warranty rights.
Our liability for damages, out of which legal reasons whatsoever, is limited to
a) our acts of intent or gross negligence including acts of our legal agents and vicarious agents
b) culpable injury of life, body, health
c) culpable material breach of contract
d) if we have intentionally misrepresentes the defect by silence or if we have guaranteed the absence of defects
e) to the extent we are liable for personal and material damages with respect to privately used items under the German Product Liability Act.
Further claims for damages are excluded.
A contractual obligation shall be material if its fulfilment is a precondition for the proper performance of the contract and on the observance of which the contractual partner generally relies and may rely.
In the event of a culpable breach of a material contractual obligation, our liability is limited to losses reasonably foreseeable and typical for this kind of contract.
The foreseeable loss typical for this kind of contract shall generally be the amount of the contract value of the particular performance.
§9 Moulds (Tools)
If we produce moulds for the execution of the customer order by ourself or if we have to purchase moulds from third parties, the Customer shall bear the necessary costs. The Customer shall also bear the costs for sampling including the costs for the approved, saleable production prototype. These costs will be charged separately to the Customer. The Customer bears the costs for test and processing devices as well as for changes caused by the Customer. Costs for sampling shall be borne by us if we are responsible for their necessity.
Unless agreed upon otherwise, we are and will remain owner of the moulds produced by us for the execution of the Customer’s order or produced by a third party commissioned by us and purchased by us. Moulds paid by the Customer in accordance with section 10.1 shall only be used for the Customer’s orders if and to the extent the Customer fulfils its payment and acceptance obligations.
We are entitled to require the Customer to pick the moulds up if, during the preceding six months, no parts have been produced from the moulds. Furthermore, we are entitled, but under no obligation, to store the moulds as long as the Customer might claim any warranty claims or other claims against us with respect to parts produced thereof.
In the event it is agreed that the Customer shall become owner of the moulds, the ownership passes after complete payment of the purchase price. The delivery of the moulds is replaced by the storage by us for the Customer. Irrespective of any legal right to recover possession of the moulds and irrespective of the lifetime of the moulds, we are entitled to exclusive possession of these moulds until the termination of the contract. We shall mark the moulds as property of the Customer and shall insure them upon the Customer’s request at its expense.
For moulds owned by the Customer in accordance with section 10.4 and/or moulds provided by the Customer, our liability with respect to storage and care shall be limited to the care which we use in own affairs. The costs of maintenance and insurance shall be borne by the Customer. Our obligations will end if the Customer does not collect the moulds within an adequate period of time after completion of the order and our respective request. If and to the extent the Customer fails to comply with its contractual obligations, we have a right of retention to the moulds as well as a contractual right of lien to the moulds to protect all claims if such counter claims are undisputed or have been established by a court of law in an unappealable manner.
§10 Provision of Material
If material is provided by the Customer, it should be delivered in time and in perfect condition at the Customer’s risk and expense with an adequate quantity surcharge of at least 5 percent. We are not obliged to conduct an incoming inspection.
If these conditions are not complied with, the delivery time will be extended accordingly. Except in cases of force majeure, the Customer shall also bear any additional costs also for production interruptions.
§11 Intellectual Property Rights and Defects of Title
If we have to deliver in accordance with drawings, models, samples or by using parts provided by the Customer, the Customer shall warrant that no intellectual property rights of third parties in the countries of destination of the goods are infringed. The Customer shall keep us harmless and indemnify us against any and all claims of third parties due to the infringement upon such rights and shall be liable for all damages. If any third party prohibits us the production or delivery with reference to the infringement of intellectual property rights, we are entitled - without examination the legal situation - to stop works to clarify the legal situation by the Customer and the third party. We are entitled to withdraw from the contract if the continuation of the order is no longer reasonable for us due to the delay.
If the contract between us and the Customer is not concluded, drawings and samples which were made available to us will be returned upon request; otherwise, we are entitled to destroy the drawings and samples three month after submission of the order. This obligation applies to the Customer accordingly. The party entitled to destruction shall inform the other party about its intention of destruction prior to doing so in due time.
We shall hold all copyrights and intellectual property rights, particularly all usage and exploitation rights of with respect to models, moulds and devices, drafts and drawings made by us or made by third parties on our account.
For all other defects of title, § 8 shall apply accordingly.
§12 Place of Performance, Place of Jurisdiction, Applicable Law
For all claims arising out of the business relationship between the Customer and us, the place of performance shall be Ofterdingen.
The exclusive place of jurisdiction for all claims resulting from the business relation-ship including claims from cheques and drafts shall be the place of performance if the Customer is a businessman, a legal entity under public law or an asset under public law. We are also authorized, however, to sue our Customer at its general place of jurisdiction.
All disputes arising from contracts to which these GTC apply and all disputes arising from business relationship between us and the Customer shall exclusively be governed by German law excluding the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.
§ 13 Final Clauses
Should one or another provision of these GTC be or become fully or partly invalid, the validity of the remaining provisions shall remain unaffected hereby.
Speidel Tank- und Behälterbau GmbH
General Terms and Conditions of Supply (AGB) download as PDF
Status: February 1, 2016
I. Scope of terms
- Our General Purchasing Conditions shall apply to all deliveries and services performed to us, unless agreed upon otherwise.
- Our General Purchasing Conditions (hereinafter referred to as »GPC«) shall apply exclusively; we shall not accept any conflicting or different GPC of the Supplier, unless agreed upon in writing. Our GPC shall also apply when we accept deliveries of the Supplier without reservation while being aware of conflicting or different terms of the Supplier.
- All agreements agreed upon between us and the Supplier for the purpose of executing this contract shall be put into writing in this contract.
- The following GPC shall only apply to entrepreneurs according to Section 14 German Civil Code, legal entities under public law or an asset under public law (hereinafter referred to as »Supplier«).
- Within a permanent business relationship between the Supplier and us, the following GPC shall also apply to all our future orders without requiring any further reference or agreement.
II. Conclusion of Contract – Offer Documents
- The creation of offers and cost estimates by the Supplier are free of cost and non-binding for us.
- Offers to us shall include all relevant details that are necessary for a technical and pricewise assessment.
- Delivery contracts (order and acceptance) and call-offs as well as their amendments and additions require written form; oral and telephonic orders require our written confirmation in order to be valid; this shall also apply in case of a subsequent amendment of orders already placed.
- If the order or the call-off is not confirmed in written form within 5 working days after receipt by the Supplier, we shall be entitled to cancel the order without the Supplier being able to derive any claims from this.
- We shall be entitled to require modifications of the subject matter of the contract with respect to construction and design to a reasonable extent. Any effects resulting hereof, in particular with respect to costs and delivery date, shall be appropriately settled by agreement.
- We reserve ownership and copyright in images, drawings, calculations and other documents; they shall not be made accessible to third parties without our expressed written consent. They shall exclusively be used for the production on the basis of our order; after completion of the order, they shall be returned to us without request. Towards third parties, they shall be kept confidential, in addition, section number XIII. shall apply.
III. Prices and Terms of Payment
- The price shown in the order shall be binding. It shall include all services and ancillary services, unless they are separately charged, which are necessary to provide the service, such as, for example, auxiliary means. Unless otherwise agreed upon in writing, the price shall include delivery »free house«, including packaging. The return of packaging requires a separate agreement.
- Unless provided for otherwise, the statutory value added tax is included in the price.
- We can only process invoices if they contain – according to the specifications of our order – the order number shown on our order form; for any and all consequences arising due to non-compliance with this duty, the Supplier shall be responsible, unless it proves that it is not to be held responsible for these consequences.
- We shall pay the purchase price, unless agreed upon otherwise in writing, within 14 days, calculated from delivery or assembly and installation and receipt of a proper invoice, with a 3 % discount or within 30 days after receipt of invoice net.
- The invoice shall be sent in duplicate to our postal address imprinted. It shall not be attached to a delivery.
- We are entitled to claim statutory setoff and retention rights.
- We reserve the right to choose the method of payment. In case of payment by check or draft, the legitimacy of payment solely depends on whether the check or draft is received by the recipient or bank within the payment term.
- Invoices deviating from the Supplier’s delivery or service shall be deemed to be received by us at the time we have received a corrected invoice.
- Payments effected shall not imply the acknowledgement of the delivery or service as being in accordance with the contract.
IV. Term of Delivery
- Terms of deliveries agreed upon shall be binding. The date of receipt of the delivery at our works shall be authoritative for adherence to the delivery date.
- Early deliveries shall only be accepted after prior written agreement.
- The Supplier shall immediately notify us in writing if circumstances occur or become apparent which indicate that the agreed delivery time cannot be adhered to.
- In the event of delay of delivery we shall be entitled to exercise the statutory rights. Especially, we shall be entitled to claim damages instead of performance and withdrawal after fruitless expiration of a reasonable period of time. In case we claim for damages, the Supplier shall be entitled to prove that it is not responsible for the breach of duty.
- Unless expressly agreed upon otherwise in writing, the Supplier shall not be entitled to make part deliveries or to provide surplus or short deliveries.
- If the agreed delivery date is not met due to a circumstances for which the Supplier is responsible, we are entitled, at our choice and without prejudice to further statutory claims, to withdraw from the contract after the expiry of a reasonable grace period, to obtain replacement from a third party and/or to demand damages for non-performance. We are entitled to claim compensation for all additional costs occurred due to delayed deliveries or performances for which the Supplier is responsible. The acceptance of delayed delivery or performance does not imply a waiver of any compensation claims.
- Furthermore, if the Supplier fails to comply with the agreed delivery date, we are entitled to demand a contractual penalty of 0,5 % of the order value for each commenced calendar week, however to a maximum of 5 % of the total order value. Any payable contractual penalty shall not exclude the right to claim further damages under deduction of the contractual penalty. If we accept the goods or service despite a delay, we shall be entitled to demand the contractual penalty without having reserved this right when accepting the goods or the service. The Supplier shall be entitled to demonstrate that the actual damage incurred was lower or that no damage whatsoever has been incurred.
- Due to operational reasons, we reserve the right to change the volume or quantity or to request the temporary suspension of scheduled deliveries.
- In case a delivery is made earlier than agreed upon, we are entitled to refuse acceptance or to return the goods at the Supplier’s cost and expense. If we do not return the goods, we are entitled to store the goods at our works at the cost and risk of the Supplier. With respect to the payment, the agreed delivery date shall be authoritative.
- The Supplier undertakes to comply with the Code of Conduct of Business Social Compliance Initiative (BSCI) (www.bsci-eu.org). In particular, the Supplier ensures that children and youngsters shall only be employed in compliance with the regulations of the International Labour Organisation (ILO), the United Nations (UN), and the national law of the country concerned. The Supplier shall also impose this obligation upon its suppliers.
V. Packaging, Transport, Passing of Risk and Documentation
- The transport of goods shall be carried out at the expense and risk of the Supplier »free agreed place of delivery«. Where delivery »freight collect« was exceptionally agreed, we shall only bear the most favorable freight costs, unless we have required a certain kind of shipment.
- The deliveries shall be carried out with the carrier designated by us, if exceptionally »freight collect« was agreed.
- If hazardous substances are being supplied, the Supplier shall comply with all governing standards, laws and regulations, especially the governing provisions regarding environmental protection, hazardous substance, dangerous goods and accident prevention.
- Any costs incurred due to the non-compliance with the stated delivery provisions and conditions have to be borne by the Supplier.
- Irrespective of the allocation of costs, the risk shall not pass to us before delivery and acceptance of the goods or the service at the agreed place of delivery.
- The Supplier shall indicate our exact order number, order date and shipping route on all shipping documents, order confirmations, invoices etc. Additionally, the Supplier shall enclose with each shipment a delivery note in duplicate with this information in a sealed envelope. In the event the Supplier fails to do so, the delays resulting therefrom shall not be attributable to us.
VI. Transfer of Rights
The supply agreement concluded with us shall not be transferred either wholly or partly to a third party without our written consent. The assignment of claims towards us is only effective with our prior written consent. This shall not apply if the legal transaction on which the claim is based is a commercial transaction for both parties or if the Supplier is a legal entity under public law or an asset under public law.
VII. Warranty, Inspection and Notification of Defects
- The statutory provisions regarding defects in materials and workmanship shall apply unless set forth otherwise below.
- We shall immediately give notice of defects to the Supplier as soon as they are identified in the ordinary course of business. In this respect, Supplier waives the objection to delayed notification.
- The Supplier shall undertake quality controls during the production and shall carry out a check at the dispatch and shall accordingly check deliveries extensively as to their quality.
- We are entitled to choose the type of subsequent performance. The Supplier shall be entitled to reject the type of subsequent performance chosen by us under the provisions of Section 439 subsection (3) German Civil Code.
- The limitation period is 36 months, calculated from the passing of risk, unless the statutory mandatory provisions of Sections 478, 479, 634a German Civil Code apply.
- The Supplier guarantees that the products delivered or the services provided are free from defects in materials and workmanship, have the contractually agreed characteristics and quantities, meet our specifications, and correspond to the recognized technical rules as applicable at the time of delivery as well as to the legally required standards of quality and safety. Amendments hereto have to be approved by us before the delivery of the products and services.
- If a defect is discovered, the Supplier shall bear the costs of the examination and determination of the defect, irrespective of other or further rights.
- In case of replacement deliveries, the warranty period for defects in materials and workmanship starts again.
- If the Supplier fails to fulfil its duty to remove the defect or provide replacement delivery immediately, within 7 business days at the latest, or if it is unable to do so, we are entitled to withdraw from the contract and/or to demand compensation instead of performance as well as to return the goods to the Supplier at its own risk and to purchase the required goods from a third party. The necessary costs incurred thereby are to be borne by the Supplier.
- In urgent cases, if the immediate removal of a defect is justified by reason of a particular need on our part or if there is reason to suspect that the removal of a defect by the Supplier would cause delays which would make it more difficult for us to meet our obligations towards our contractual partners, or that a removal of the defect by the Supplier would cause higher costs than a removal of the defect by us, we have the right to remove the defect of the defective delivery or service ourselves or have this done by a third party to the extent necessary without informing the Supplier in advance at the expense of the Supplier (self-repair). In such events, we shall also have the right to procure goods or services which are free of defects from a third party (replacement purchase). The Supplier shall bear the necessary costs for the self-repair or the replacement purchase.
- We have the right to return nonconforming goods at the expense and risk of the Supplier.
- If a defect of the goods delivered by the Supplier is only discovered on further processing or further delivery, the Supplier shall bear all costs associated with the exchange or rectification of the defective goods, in particular costs for testing, transport, travel, labor and material.
- In the event of insolvency or bankruptcy, we are entitled to withhold an appropriate security, at least however 10 % of the agreed price, until the expiry of the limitation of warranty claims.
- The Supplier assigns its warranty claims against its pre-suppliers to us. We are entitled to disclose this assignment in the event of bankruptcy of the Supplier. Furthermore, we are entitled to cancel orders which have not yet been delivered at this time.
- The Supplier indemnifies us and holds us harmless against all claims of third parties based on a defect in the Supplier’s performance of its obligations. The Supplier shall bear all costs associated with a defect, including potential costs of a recall.
- To the extent that the delivered goods are processed to an end product which is sold to a consumer, we shall have a right of recourse against the Supplier pursuant to Section 478, 479 German Civil Code in case of a claim by customers.
VIII. Execution of Works at our Plant
Persons, who perform work for the fulfilment of the contract in one of our works, shall observe the provisions of the respective plant rules. The provisions for entering and leaving our plants must be observed.
IX. Product Liability, Indemnification and Obligation of Liability Insurance
- In the event we are liable towards third parties in accordance with the provisions of the Product Liability Act or other provisions due to a product defect, the Supplier shall indemnify us upon first demand against all claims for damages, including damages due to necessary recall, refitting, mounting and dismounting, if and to the extent such damages are caused by a defect of the good delivered by the Supplier. If and to the extent such a damage is caused by the Supplier, the Supplier shall bear the burden of proof. In such cases, the Supplier shall also bear all expenses and costs including any costs for a legal defense.
- In order to comply with its obligations of the supply agreement concluded with us, the Supplier shall effect a business liability insurance and a product liability insurance at its own cost including the risks of recall at a sufficient level, at least with a coverage total of 5 Million € per personal/property damage claim, and to maintain the insurance continuously and at least for the duration of 10 years after delivery. Upon request, the Supplier shall provide written evidence of conclusion and continued existence of such insurance. Any further claims for damages remain unaffected hereby.3. We and the Supplier shall inform and support each other with respect to any legal defense.
X. Provided Material and Manufacturing Equipment
- Technical and commercial documents of any kind including prototypes, models, samples, drawings and manufacturing equipment which we provide to the Supplier remain our property and shall be returned to us unrequested as soon as they are no longer required for executing the order, as well as anytime upon request. They shall permanently be treated confidential and shall only be used in order to perform the ordered deliveries and services. In particular, they shall not be used for other purposes, neither copied nor made accessible to third parties.
- The same shall apply to any documents and manufacturing equipment which the Supplier has produced or developed according to our instructions or with our assistance.
- Provided material and manufacturing equipment shall not be handed out to any third party, sold, pledged or made accessible or used in a similar way without our prior written consent.
XI. Intellectual Property Rights and Liability for Defects of Title
- The Supplier shall warrant that the goods delivered by it do not infringe any national or foreign intellectual property rights or any other third party rights.
- In the event of an infringement of any third party rights, we are entitled to all legal claims arising out of defective goods and defective title against the Supplier, even where the Supplier had procured the goods involved from a third party.
- The Supplier shall indemnify us from and against all claims based on the infringement of such third party rights. This shall not apply if the Supplier has produced according to samples and drawings provided by us.
XII. Confidentiality and Data Protection
- The Supplier shall keep confidential all information received by us under a purchase order, including, but not limited to product and process drawings, product specifications and all documents created by the Supplier within the context of an order (»Confidential Information«) and shall only use them for the purpose of the performance of the order. Without our prior written consent, Confidential Information shall not be copied, used commercially or made accessible to third parties. This confidentiality obligation shall apply to the contents of all contracts with us, particularly with respect to the new or further development of products.
- The Supplier shall make accessible Confidential Information, also in its own enterprise, only to persons who need to be deployed for the execution of the order and who also have been bound by the Supplier to the confidentiality obligation. The Supplier shall impose equivalent confidentiality obligations on this group of persons, if this is not already the case. Furthermore, the Supplier shall take all reasonable steps in order to prevent that third parties have access to work results or to Confidential Information received from us. The Supplier shall be liable for any infringement of the confidentiality obligations by a third party to whom Confidential Information was made accessible by it.
- The obligations set out in section XIII.1 and XIII.2. shall not apply to Confidential Information that is demonstrably generally known, becomes generally known through no fault of the Supplier, has been rightfully obtained by a third party or was already known to the Supplier.
- Advertisement which contains the business relation with us and other statements towards the public or towards authorities shall only be permitted with our prior written consent, unless these statements are necessary due to mandatory statutory law.
- This confidentiality obligation shall also apply after the end of the delivery agreement or business relationship for the duration of 5 years subject to the provisions of the following sentence 2. If the information subject to confidentiality represents a trade or business secret, the confidentiality obligation shall be valid for an unlimited period of time. This confidentiality obligation shall apply accordingly to documents as set out in subsection (1) above received during contract negotiations if no contract is concluded, provided that the term of the confidentiality obligation shall start where it is established that contract negotiations have failed.
- Documents received shall be returned to us without request after the end of the supply and business relationship in proper condition.
- The Supplier shall ensure that all persons entrusted with the performance of contract in connection with the supply and business relationship shall comply with the statutory provisions of data protection law.
XIII. Place of Performance, Place of Jurisdiction, Applicable Law
- The place of performance for deliveries and performances shall be our place of business.
- If the Supplier is a businessman, a legal entity under public law or an asset under public law, our place of business shall be the exclusive place of jurisdiction; however, we shall also be entitled to sue the Supplier at its general place of jurisdiction.
- All legal relations between the parties shall be governed by German law excluding the rules of United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.
XIV. Final Clauses
Should one or another provision of these General Purchase Conditions be or become fully or partly invalid, the validity of the remaining provisions shall remain unaffected hereby.
Speidel Tank- und Behälterbau