General Terms and Conditions of Sale and Delivery of Wilhelm Spiess GmbH & Co. KG – As of January 1, 2015
1. General provisions
1.1. Our all future deliveries and services, including proposals, consultations and other ancillary services (hereinafter collectively "Deliveries") are carried out in business transactions exclusively on the basis of these General Terms and Conditions. Terms and conditions of the customer do not become the content of the contract, even if we do not expressly object to them or accept payments without reservation.
1.2. Our offers are generally subject to change. However, if, after we have made a binding offer due to new or changed legal regulations or new requirements from authorities and audit bodies, there are modified requirements for the contractual obligations, we may adjust this at our reasonable discretion, taking into account the interests of both parties. This also applies after acceptance of an offer.
1.3. Agreements – in particular insofar as they amend these terms and conditions – become binding only after our written confirmation. If a letter of confirmation from the customer deviates from our order confirmation, the customer will highlight the change as such.
2. Price – Payment – Security
2.1. Unless otherwise agreed, all prices apply ex works including loading, but excluding packaging, insurance, unloading and freight and assembly costs. It also does not include acceptance costs and inspection equipment supplies to the customer. In addition to the prices, the value added tax is added to the respective statutory amount.
2.2. Prices do not include notarial, administrative or bank charges, nor any other comparable charges, taxes or fees payable in the recipient country. Should we be called upon to pay such a charge or fee, the amount of that charge or fee will be added on the invoice as a separate item and the customer is obliged to reimburse us for this amount.
2.3. If we have taken over the installation or assembly and nothing else has been agreed, the customer shall bear all necessary incidental costs in addition to the agreed prices as in the following as in s. Costs for travel, transport of the tools as well as for the consumption and supply of electricity, water, compressed air, etc.
2.4. Subject to other agreements, all payments in cash are to be made free of payment by the supplier within 8 days with a 2% discount or within 30 days net. Repair and assembly invoices are due immediately and without any deduction. Transfer payments are the same after a cash payment has been credited. This does not apply to bills of exchange payments. In any case, bills of exchange shall be borne by the customer.
2.5. We accept discountable and duly taxed bills of exchange only (and in any case only for payment purposes) if this has been expressly agreed. When accepting bills of exchange, the debt is only redeemed by redemption; when accepting cheques only with the irrevocable credit to our account. Discount fees and all costs incurred by redeeming the bill of exchange or cheque amount are to be borne by the customer.
2.6. The right to withhold payments or offset against counterclaims is only available to the customer to the extent that his counterclaims are undisputed or legally established. If this is not the case, a right of retention of the customer must come from the same contractual relationship as our claim and be in an appropriate relationship with it.
2.7. In the event of non-compliance with the agreed payment dates, interest equal to the average interest charged on the market for overdrafts from business accounts, but at least the statutory interest, will be charged from the day following the payment date and without further reminder.
2.8. In the event of a delay in payment or in the event of a risk of our claims due by a significant deterioration in the creditworthiness of the customer, we shall be entitled to make our claims due regardless of the term of any bills of exchange or to demand collateral. We are also entitled to carry out outstanding deliveries only against advance payment or against the provision of collateral.
2.9. If the delivery is delayed due to the fault of the customer or under the direction of third parties, the customer shall reimburse us for the additional costs due to the delay.
3. Scope of delivery and services
3.1. The written order confirmation is decisive for the scope of the delivery, this also applies if it contradicts the order letter of the customer. All offers are always subject to change. A contract is only concluded by written order confirmation. In the event of a lack of written order confirmation, the seller's offer shall apply.
3.2. The supply of mechanical and other equipment (hereinafter referred to as the "Plant") includes all components, materials and services expressly specified in the contract. Protective devices are supplied to the extent that this has been agreed.
3.3. The documents belonging to the offer, such as illustrations, drawings and weightinformation, are only approximate unless they are expressly designated as binding. The supplier reserves ownership and copyright to cost estimates, drawings and other documents; they may not be made available to third parties. Design drawings are not submitted.
3.4. Planning, on-site work, assembly, monitoring of assembly, personnel training, commissioning and other components in addition to the standard components are only included to the extent expressly specified in the contract.
4. Packaging and labelling
Unless otherwise agreed, the buyer will be charged separately for the packaging. Instead, we may demand return of the packaging by calculating user fees and deposit. The plant parts are packed according to our usual procedure for the requirements under normal transport conditions. The identification of the parts of the installation shall include the necessary information regarding the identification of the customer and the place of delivery.
5. Documentation – Software
5.1. The scope of delivery includes our standard technical documentation, such as user manuals in German. We are not obligated to provide production plans for equipment or spare parts.
5.2. All technical documents as well as information on weights, services, operating costs, cost estimates or drawings are only binding if they have been referred to in writing in the contract or if these are expressly agreed.
5.3. Software, drawings and documentation, technical documents, other technical information regarding the delivery or its manufacture, which are handed over to the customer, remain the seller's property and copyright. Documents or documentation received from us may not be used for purposes other than assembly, commissioning, operation or maintenance without our consent. These documents may not be used, copied or reproduced, nor handed over to third parties or communicated to third parties without our written consent.
5.4. Insofar as software is included in the scope of delivery, the customer is granted a non-exclusive right to use this software and documentation only in connection with the delivered system and for no other, any purpose whatsoever. Unless otherwise agreed or noted .B on the data carrier or in the software documentation, the customer may make two backup copies. The customer undertakes not to remove manufacturer's information, in particular copyright notices, or to change it without the supplier's prior express consent. All other rights to the software and documentation, including copies, remain with the supplier or software supplier. Sub-licenses are not permitted.
6. Dates, obstacles to fulfillment
6.1. All agreed delivery terms are to be interpreted in accordance with INCOTERMS® (2010). If no delivery conditions have been agreed, the delivery condition "ex works" (EXW) of our production plant shall be deemed to be " ex works".
6.2. Specified delivery times and dates shall only apply subject to timely clarification of all details of the order, in particular the provision of all documents and approvals to be procured by the customer, the release of drawings and the punctual receipt of an agreed down payment, as well as the punctual delivery of an agreed payment guarantee. Further prerequisite is the timely provision of the construction and assembly inputs of the customer, in particular the provision by the customer of free electricity, gas, water and necessary auxiliary personnel.
6.3. Partial deliveries and services are permitted insofar as they are reasonable for the customer.
6.4. The agreed dates for the delivery shall be deemed to have been met upon notification of readiness for dispatch, in particular if the delivery items cannot be dispatched in due time without our fault. A delivery date can also be met due to a defective delivery.
6.5. If we are prevented from fulfilling our obligations by the occurrence of unforeseen events affecting us or our suppliers or sub-contractors, and which we have not been able to avert with the reasonable care due to the circumstances of the case, e..B war, high-handed interventions, internal unrest, forces of nature, accidents, strikes and lockouts, other operational disruptions and delays in the delivery of essential supplies or materials , the dates are postponed by the duration of the disability and a reasonable start-up period. Claims for damages can only be derived from the exceeding of the delivery period in the event of gross negligence on the part of the supplier. If the performance of our obligations becomes impossible or unreasonable for us, we may withdraw from the contract; the customer has the same right if he cannot reasonably be expected to receive or accept our deliveries due to the delay.
6.6. At the end of the delivery period, the supplier is entitled to deliver. If the customer is not yet able or does not want to take the goods, the supplier is entitled to store the goods at the expense and risk of the customer and to invoice the entire delivery including storage costs. If the customer does not accept the goods despite the set grace period, the supplier is entitled to refuse the delivery and to demand compensation for non-performance.
6.7. We are entitled to a reasonable extension of the delivery period (at least as long as the duration of the delay) if the delivery is delayed due to the fault of the customer or under his instructions of third parties, or it appears that the customer will not fulfil his contractual obligations, such as changes requested by the customer, delay in the approval of the corresponding plans, delays in the preparatory work at the assembly site and late payment.
6.8. The customer is entitled to a flat-rate damages, excluding further claims from the day on which the delivery should have taken place, provided that the delay in delivery is the basis of our fault and the customer has suffered damage as a result of the delay. The amount of the flat-rate compensation shall be 0.2% per completed week of delay of the value of that part of the total delivery which, due to the delay, cannot be used in time or in an appropriate manner. However, in no case shall such compensation be 5 % of the value of that part of the deliveries which cannot be used for good use as a result of the delay. The customer must claim damages against us no later than one month after delivery. If the customer fails to do so, he loses the right to compensation. Claims for damages due to delay in deliveries as well as claims for damages instead of performance that go beyond the stated limits are excluded in all cases of delayed delivery, even after the expiry of a period of time for delivery, if any. This does not apply in cases of intent or gross negligence or due to injury to life, body or health or other mandatory liability. The customer can only withdraw from the contract within the scope of the statutory provisions insofar as the delay in our deliveries is our stake. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
6.9. The customer is obliged to declare, at our request, within a reasonable period of time whether he insists on the delivery due to the delay in deliveries and/or which of the claims and rights to which he is entitled asserts.
6.10. A right of withdrawal to which the customer or us is entitled shall in principle only extend to the part of the contract that has not yet been fulfilled. Insofar as partial deliveries made are not reasonably usable for the customer, he is also entitled to withdraw from these partial deliveries.
7. Transfer of risk – acceptance
7.1. The risk passes to the customer when the delivery item has left the factory, even if partial deliveries are made or the supplier has taken over other services, e.B. the shipping costs or delivery and installation.
7.2. The means of transport and the transport route are left to our choice. The same applies to the selection of the carrier or carrier.
7.3. We are entitled to carry out partial deliveries and to calculate them as far as reasonable for the customer.
7.4. Insofar as acceptance is required in accordance with the contractual agreement, this is decisive for the transfer of risk. It must be carried out immediately on the delivery date, at the latest after the supplier has been notified of the readiness for acceptance. The customer may not refuse acceptance in the event of a non-essential defect. The customer must create the conditions necessary for the execution of an acceptance. With the exception of our personnel costs, the customer bears all the costs associated with acceptance.
7.5. Acceptance tests are carried out in accordance with the contract. If no requirements are laid down in the contract for the acceptance tests to be carried out, these are carried out in accordance with the usual procedure in German crane construction.
7.6. The customer is not entitled to operate the system before acceptance. If the customer operates the system before acceptance without our consent, the system shall be deemed to have been approved.
7.7. If the dispatch or acceptance is delayed or is not due to circumstances that are not attributable to the supplier, the risk shall pass to the customer from the date of notification of readiness for dispatch or acceptance. The supplier undertakes to take out the insurances that the customer requires at the expense of the customer.
8.1. Notwithstanding Article 6.1, the delivery item remains our property until all claims against the customer have been fully fulfilled.
8.2. If the applicable legislation does not permit a retention of title, we are entitled to a right of protection of the property. In doing so, the customer shall provide all assistance to protect the property or to take other measures to protect the property or other similar rights for us. The retention of title or the right of security have no influence on the transfer of risk as defined in Article 7.1 ff.
8.3. In the event of attachment or other interventions by third parties, the customer must notify us immediately in writing.
8.4. The customer is entitled to resell the delivery item in the ordinary course of business. The customer assigns his claims from the resale of the delivery item to us already now in order to secure our claims and up to the amount of the invoice value of the reserved goods. Every processing of the delivery item subject to retention of title as well as its connection with third-party items by the customer or third parties takes place for us. We are entitled to co-ownership of new items in accordance with the value of the delivery item. The customer is authorized to collect his claims against his customers even after the assignment, as long as he behaves faithfully to the contract and there is no insolvency. Our Power to collect the Claim ourselves remains unaffected by this. However, we undertake not to exercise this right of collection as long as the customer duly fulfils his payment obligations and there is no insolvency. Otherwise, we may require the customer to disclose the assigned claims and their debtors, to provide all information necessary for the collection of the claims, to hand over the relevant documents and to inform the debtors of the assignment. In the event of a breach of contract by the customer, in particular in the event of a delay in payment, we reserve the right to withdraw from the contract after a reminder and to demand the return of the delivered deliveries. The customer is liable for all damages that arise as a result of the return of the delivery item. The customer must insure the delivery item against the relevant risks during the duration of the retention of title, provided that the rights under the insurance contract are ours. The policy must be presented to us on request.
8.5. We undertake to waive the rights reserved in these provisions at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%, insofar as they have not yet been settled.
8.6. The withdrawal or assertion of the retention of title as well as the attachment of the delivery item by us shall not be deemed to be a withdrawal from the contract, unless we have expressly stated this.
8.7. The application for the opening of insolvency proceedings entitles the supplier to withdraw from the contract and demand the immediate return of the delivery item.
9. Confidentiality, data protection
9.1. We reserve the right of ownership and copyright to cost estimates, models, drawings and other documents.
9.2. The customer is obligated to keep secret all drawings, models, cost estimates, business or trade secrets as well as other confidential documents and information received by us in physical or electronic form. Third parties may only be made available to third parties within the limits of what is necessary, as agreed by our consent. The obligation of confidentiality also applies after the execution of the contract; it shall not expire until and to the extent that information has become widely known.
9.3. Within the scope of the purpose of the respective contract, we are also entitled to process the personal data entrusted to us in compliance with the data protection regulations or to have them processed by third parties. We have to ensure compliance with data protection rules.
All claims of the customer – for whatever legal reason – become time-barred in 12 months. The statutory time limits apply to claims for damages in accordance with clause 12. They shall also apply to defects in a building or to delivery items which have been used for a building in accordance with its usual use and which have caused its defectiveness.
11. Liability for defects in delivery
Unless the customer has caused changes or repair work on his own, the supplier shall be liable for defects in the service, excluding further claims, as follows:
11.1. All such deliveries shall be repaired, re-delivered or re-delivered free of charge at our discretion, which show a defect within the limitation period, regardless of the duration of operation, provided that the cause of the defect was already present at the time of the transfer of risk. The customer has to grant us the opportunity to perform the following performance within a reasonable period of time. A guarantee is expressly not given.
11.2. The warranty period for all parts of the installation is 12 months from the date of delivery of the installation. This does not apply to the extent that the law requires mandatory liability within the meaning of clause 12.4 or in accordance with Section 438 (1) No. 2 (buildings and objects for buildings), 479 (1) (reparity claim) and 634a (1) No. 2 (tree defects) BGB requires longer periods. The regulations on the suspension of expiry, inhibition or new beginning of the deadlines remain unaffected.
11.3. The warranty period for replaced or repaired parts or repairs is 6 months from the date of repair or installation. However, the warranty period ends no later than the expiry of the warranty period for the original delivery item.
11.4. In order to assert warranty claims, the customer must notify the defect immediately and in writing after becoming aware of the defect. The display shall include a detailed description of the defect and the manufacturer's and order number. If the customer fails to notify the defect within the above-mentioned warranty period, he loses the right to make a defect.
11.5. The replaced parts become our property and must be returned to us immediately for review.
11.6. This guarantee shall be provided on condition that the installation is operated, managed, maintained and maintained in all aspects in accordance with our regulations and under the specified conditions.
11.7. Claims for defects do not exist in the case of
11.7.1. only insignificant deviation from the agreed quality, with only negligible impairment of usability.
11.7.2. Parts, the repair or replacement of which is required due to natural wear (wear parts).
11.7.3. Consumables, including, but not limited to, parts such as light bulbs, accumulators, and fuses.
11.7.4. Parts on which repairs, modifications or adjustments by the customer or third parties have been made or started without our prior consent.
11.7.5. Damage caused after the transfer of risk as a result of faulty or negligent handling, faulty, improper, failed or improper maintenance, improper storage, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or due to special external influences (e.B. chemical, electrochemical or electrical influences or exceptional temperature and weather influences).
11.7.6. Parts whose defects have not been communicated to us immediately within the above warranty period.
11.7.7. non-reproducible software errors. Claims for defects exist for a software that the customer has extended via an interface provided by us for this purpose, only up to the interface.
11.8. In the case of software whose source code we may change ourselves ("Class A"), we will remedy defects in the Software at our discretion by providing an update of the Software in which only the defects have been rectified or by providing an upgrade in which the defects have also been rectified. In the case of software whose source code we cannot change ourselves ("Class C"), this only applies to the extent that such an update or upgrade is available to us or can be procured by us with reasonable effort.
11.9. The customer reserves the right to demand a reduction of the remuneration or, at his choice, rescission of the contract in the event of failure of the rectification or replacement delivery after a reasonable period of time. The time limit for rectification to be set by the customer before asserting this right must be made in writing. The withdrawal is only possible in the case of our material breach of duty, which the customer has to prove.
11.10. For damages claims, the rest of the world is subject to clause 12. Further or different claims against us and our vicarious agents due to a material defect are excluded.
12. Other claims for damages
12.1. We are solely liable in accordance with the statutory provisions under the following conditions.
12.2. Claims for damages and reimbursement of expenses ('the claims for damages'), regardless of the legal reason, in particular due to breach of obligations arising from the obligation and from tort, are excluded.
12.3. Liability for indirect and consequential damages such as loss of use, lost profit, damage resulting from business interruption and financing costs is excluded.
12.4. The above limitations of liability (section 12.2 and clause 12.3) do not apply, to the extent that liability is mandatory, e.B. according to the Product Liability Act, in cases of intent or gross negligence, due to injury to life, body or health, because of the assumption of a guarantee for the quality of an item or because of the violation of essential contractual obligations, i.e. such contractual obligations, the fulfilment of which enables the proper execution of the contract in the first place and on whose compliance the customer regularly trusts and may rely. However, the compensation for the violation of essential contractual obligations is limited to the foreseeable damage typical of the contract, unless there is intent or gross negligence or is liable for the injury to life, body or health.
12.5. Insofar as the customer is entitled to claims for damages in accordance with this clause 12, these shall become time-barred upon expiry of the time limits in accordance with clause 10 or deviating statutory time limits.
12.6. A change in the burden of proof to the detriment of the customer is not connected with the above liability regulations.
13. Intellectual Property Rights, Copyrights – Defects of Title
13.1. Unless otherwise agreed, we are obliged to deliver the deliveries only in the country of delivery free of industrial property rights and copyrights of third parties (hereinafter: intellectual property rights). If a third party asserts legitimate claims against the customer due to the violation of intellectual property rights by deliveries provided by us in accordance with the contract, we shall be liable to the customer within the limitation period (section 10) as follows:
13.1.1. At our discretion and at our expense, we will either obtain a right of use for the supplies in question, modify it in such a way that the intellectual property right is not infringed, or we will exchange it. If this is not possible for us under economically reasonable conditions, the customer is entitled to the statutory right of withdrawal or reduction.
13.1.2. For damages claims, the rest of the world is subject to clause 12.
13.1.3. The above-mentioned obligations concerning us shall only exist if:
22.214.171.124. the customer immediately informs the supplier of alleged infringements of protection or copyright, does not acknowledge any infringement and reserves the right to all defensive measures and settlement negotiations. If the customer discontinues the use of our deliveries for damage reduction or other important reasons, he is obliged to inform the third party that the suspension of use does not involve any recognition of an infringement of intellectual property rights.
126.96.36.199. the customer supports the supplier to an appropriate extent in the defense of the asserted claims or.dem supplier allows the implementation of the measures in accordance wi
th section 188.8.131.52.dem supplier reserves all defensive measures including out-of-court regulations.
184.108.40.206. the infringement of intellectual property rights is not caused by special specifications of the customer or by the fact that our deliveries are modified by the customer or used together with products not supplied by us.
220.127.116.11. the infringement was not caused by the purchaser changing the delivery item on his own initiative.
13.2. In addition, the supplier shall infree the customer from undisputed or legally established claims of the relevant intellectual property rights holders.
14th. Export licences, transfer rights
14.1. The export of the goods may be subject to authorisation, e.B. by their nature or purpose of use.
14.2. We may transfer the rights and obligations under this Agreement to a third party. The transfer shall not take effect if the customer objects in writing within four weeks of receiving a corresponding notification; we will point this out in the communication.
15th. Force majeure
Both Parties shall be entitled to suspend the performance of their contractual obligations to the extent that performance is prevented by circumstances not under their control, as well as unforeseen events, including, but not strictly limited to, war (whether declared or not), revolution, strike, failure to supply energy, fuel, transport, equipment or other goods and services, natural disasters, unacceptable weather conditions, government operations. , traffic accidents, export or import bans, fires, explosions, floods, accidents, sabotage, riots, riots and breakage or loss during transport or storage, and delay in delivery by subcontractors (if these reasons are caused by force majeure).
16. Applicable law and place of jurisdiction
16.1. For all legal relations between the supplier and the customer, the law of the Federal Republic of Germany, which is applicable to the legal relations of domestic parties among themselves, applies exclusively to the united nations convention on contracts for the international sale of goods (UN-Kaufrecht/CISG).
16.2. For the customer, who has its head office in Germany, the exclusive place of jurisdiction for all disputes, including bills of exchange and cheque processes, is the court responsible for the supplier's registered office. However, the supplier is entitled to sue the customer also in the courts of his general place of jurisdiction or at the place of the infringement. 16.3. For the customer who has its head office outside Germany, all disputes arising in connection with this contract or its validity will be finally decided in accordance with the Arbitration Regulations of the German Institution of Arbitration (DIS) excluding the ordinary legal redress. The number of arbitrators is three (3). The place of arbitration is the seat of the supplier. The language of the arbitration is german. In addition, we are entitled to sue for the recovery of claims before the competent court where the customer is domiciled.
17th. Language and Severability clause
17.1. All documents as well as correspondence between us and the customer must be prepared in German.
17.2. If part of the contract is ineffective, the validity of the remaining part shall remain unaffected, insofar as the ineffectiveness does not affect the essential features of the contract. The parties are required to replace the invalid provision with a legally valid provision that comes closest to the economic purpose and purpose of the invalid provision.
Wilhelm Spiess GmbH & Co. KG
Dycker Feld 20
0 Fax 0212-25822-2
2 E-mail: firstname.lastname@example.org
e Internet: www.spiess-krane.de
Managing Director: Dipl.-Kfm. Stephan Radke / Dipl.-Ing. Harry Ra
dke Legal form: Limited partnership – Headquarters: Solingen – AG WUPPERTA
L HRA19631 Personally liable partner: Radke Management and Shareholding GmbH – Headquarters: Solingen – AG Wuppertal HRB 15276
VAT IdNr.: DE120874768 – St.No.: 128/5918/4429
Bank details: Vol
ksbank RS-SG eG – DE76 3406 0094 0006 2590 30 – VBRSDE33XXX Com
merzbank Solingen – DE94 3428 0032 0626 3938 00 – DRESDEFF 342 De
utsche Bank Solingen – DE54 3427 0094 0012 1434 00 – DEUTDEDW342 Po
stbank Cologne – DE40 3701 0050 0041 8225 01 – PBNKDEFF