§ 1 Applicability
- The following Terms of Sale and Delivery apply exclusively. Conflicting or deviating terms of the Customer shall only be binding if we acknowledge them in writing. Our Terms also apply even if perform delivery in the knowledge of the Customer's adverse or deviating terms.
- Any amendments and addenda to the contract must be in writing to be effective. This shall also apply to a cancellation of this agreement. The same shall apply to any promises, advices and statements made by our staff.
- Our General Terms of Sale and Delivery shall only apply to entrepreneurs within the meaning of Section 14 German Civil Code (BGB), legal entities under public law or public-law special funds.
- Our Terms of Sale and Delivery shall also apply to all future transactions with the Customer.
§ 2 Conclusion of contract
- Unless otherwise agreed, our offers are without obligation. We reserve the right to make technical changes as well as changes in shape, property values, colour and / or weight within the scope of what is reasonable.
- The information, drawings, illustrations, technical data, descriptions of dimensions and services contained in printed matter, brochures, catalogues, circulars, price lists or in the documents belonging to the offer are non-binding unless they are expressly designated as binding in the order confirmation.
- The conclusion of the contract shall be under the reservation of the correct and timely delivery by our sub-suppliers to us. This only applies to the case in which we are not responsible for non-delivery, especially when a congruent covering transaction has been agreed with our supplier. The Customer shall be informed immediately of the non-availability of the service. The consideration shall be refunded immediately.
§ 3 Delivery – Delivery time
- The scope and content of the owed delivery result from our order confirmation or - if no order confirmation has been sent - from our written offer. Unless agreed otherwise in writing, our deliveries are made ex works or ex warehouse. In the case of a sale on call, the respective quantities to be delivered shall be agreed separately for each call.
- A delivery period shall commence on the date of conclusion of the contract, but not before receipt of any agreed advance payment and before the provision of the documents to be procured by the Customer, such as drawings. The start of the delivery time stated by us also presupposes the clarification of all technical questions. For the compliance with delivery times, the time of the dispatch ex works or ex warehouse shall be decisive. In the case of a sale on call, the delivery dates shall be agreed separately for each call.
- We shall be entitled to partial delivery to the extent such partial delivery is not contrary to the evident interests of the Customer.
- All events of force majeure for which we are not responsible pursuant to Section 276 of the German Civil Code (BGB) shall release us from the performance of the contractual obligations assumed for as long as such events continue. We are obliged to inform the Customer immediately if such an event occurs. At the same time, we are required to notify the Customer of how long such an event is expected to last. If the event lasts longer than three months, we shall be entitled to rescind the contract. The consideration shall be refunded immediately.
- The events listed above shall also be deemed to exempt the Customer from performance insofar as they occur at the Customer's premises or within the Customer's sphere of control and organisation.
- The risk of accidental loss or accidental deterioration of the delivery shall pass to the Customer ex works or ex warehouse. This also applies if we effect delivery to the Customer's place of business upon his request. Insofar as the Customer takes out transport insurance, he is obliged to assign to us already now all claims for compensation insofar as these relate to the material and price risk assumed by the Customer. We hereby accept the assignment.
- If we are in default and the Customer can demonstrate that he has suffered damage due to our delay, he can claim compensation for default. This shall amount to 0.5% for each completed week of delay, but not more than a maximum of 5% of the order value. This restriction does not apply if the delay is due to intent or gross negligence.
- We shall assume liability as required by law, provided the purchase contract is based upon a fixed-date transaction pursuant to Section 286 subsection 2 No. 4 of the German Civil Code (BGB) or Section 376 German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions to the extent that, in consequence of a delay in delivery caused by us, the Customer has the right to assert that his interest in the continued fulfilment of the contract has ceased to exist. In both cases, however, the claim for damages shall be limited to the typically foreseeable damage.
- Costs for returned goods from the current product range, except custom-made products. For return deliveries from incorrect orders or cancellations, we charge a handling and storage fee according to the current cost overview.
- Further statutory claims and rights of the Customer remain reserved.
§ 4 Default in acceptance
- If the Customer is in default in acceptance or violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses, in particular the costs of further storage. The right to assert any further claims shall remain reserved.
- As soon as the Customer is in default in acceptance, the risk of accidental loss or accidental deterioration of the delivery shall pass to the Customer. However, we are obliged to store the delivery properly at the Customer's expense.
§ 5 Prices – Payment terms
- Unless otherwise agreed, the respective prices are ex works or ex warehouse excluding freight, packaging and insurance.
- Spartherm reserves the right to adapt the prices of orders with a delivery date more than eight weeks after conclusion of the contract, in particular in response to collective agreements and material price increases.
- The statutory value added tax is not included in our prices. It shall be shown separately in the invoice on the day of invoicing.
- The Customer is obliged to make the respective payments in accordance with the specifications of the order confirmation. Unless agreed otherwise, our invoices are due for payment net cash immediately upon receipt. The deduction of a discount requires special agreement.
- We only accept bills of exchange if this has been agreed in writing. In this case, the Customer shall bear the discount charges. Payment shall not be deemed to have been made until the amount due has been irrevocably credited to us.
- The Customer shall only be entitled to offsetting rights if the counterclaims are declared legally valid, are undisputed or have been recognised by us. The Customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
- If the Customer is in default of payment, we shall be entitled to claim interest at a rate of eight percentage points above the respective base interest rate stipulated in Section 247 of the German Civil Code (BGB) per year as damages for default. The amount of compensation shall be set higher or lower if we are able to prove higher damage.
§ 6 Packaging for shipment
- and all other packaging according to the packaging Ordinance shall not be taken back with the exception of pallets. The Customer is obliged to ensure the disposal of the packaging at his own expense.
§ 7 Liability for defects
- The Customer is obliged to inspect the deliveries without delay in accordance with Section 377 of the German Commercial Code (HGB) and to notify defects in writing. Unless otherwise agreed, the relevant DIN standards shall apply to examinations of the characteristics of the delivered item. In the absence of DIN standards, the agreed test methods apply and if no test methods have been agreed, the standard which we usually practice shall apply.
- Article 1 shall also apply to excess and insufficient deliveries as well as to any incorrect deliveries.
- Insofar as a defect exists and has been notified in good time, we shall be entitled, at our discretion, to effect subsequent performance within a reasonable period in the form of rectification of the defect or delivery of a defect-free item. The expenses necessary for the purpose of subsequent performance shall be borne by us. If the supplementary performance fails, is unreasonable for the Customer or is refused by us, then the Customer is entitled to demand a reduction of the remuneration (abatement) or cancellation of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the Customer shall not be entitled to withdraw from the contract. In addition, the Customer may also claim damages in lieu of performance within the scope of the limitation of liability under Section 7 subsection 5 to 9.
- The Customer's claims for defects shall become time-barred one year after delivery of the goods. However, insofar as the prerequisites of delivery recourse pursuant to Section 478 of the German Civil Code (BGB) are given, the statutory limitation period of Section 479 of the German Civil Code (BGB) shall apply. The provisions of Section 7 subsections 6 to 8 shall apply mutatis mutandis to the short limitation period.
- Notwithstanding the following provisions in Section 7 subsection 6 to 9, our liability for damages is excluded.
- Insofar as we have given a guarantee for the quality of an item, act intentionally or fraudulently conceal a defect, we shall be liable in accordance with the statutory provisions.
- In the event of grossly negligent damage, we shall be liable in accordance with the statutory provisions. This shall also apply in the event of damage caused by simple negligence, provided that we are in breach of a material contractual obligation. In these cases, however, liability shall be limited to the payment of foreseeable, typically occurring damage.
- The statutory liability for damage arising out of injury to life, limb or health shall remain unaffected. The Customer's claims arising from liability under the Product Liability Act shall also remain unaffected.
- Insofar as liability is limited in accordance with the above provisions, this shall also apply to the personal liability of our employees, staff, representatives, vicarious agents and subcontractors.
§ 8 Liability
- The limitations of liability of Section 7 subsections 5 to 9 shall also apply to all other claims - irrespective of the legal grounds on which they are asserted against us. In particular, this is valid for claims for damages resulting from culpability at the conclusion of contract, or from other gross breach of duty or because of tort claims for property damage according to Section 823 German Civil Code (BGB).
- Insofar as tort claims are asserted against us, the statutory limitation period shall remain unaffected. However, the Customer is obliged to assert any tort claims for damages against us in court within a preclusion period of one year after he has become aware of all conditions giving rise to a claim.
§ 9 Reservation of ownership
- We retain title to all deliveries until receipt of the payments which had already accrued between the Customer and us on the basis of the business relationship existing between us up to the time of the respective conclusion of the contract. If a current account relationship has been agreed between the Customer and us, the retention of title shall also apply to the respective recognised balance. The same applies if a balance is not recognized, but a "causal" balance is drawn, for example because the Customer becomes insolvent or goes into liquidation proceedings.
- The Customer is not permitted to pledge the goods or assign them as security.
- The Customer shall be entitled to sell goods delivered by us under reservation in the course of his ordinary business. Insofar as this occurs, however, the Customer shall be obliged to assign to us already now all claims accruing to him against his customers from the resale. The assignment is limited to the amount of the claim that has been agreed as the final invoice amount between the Customer and us. We accept the assignment. The Customer is entitled to collect this claim as long as he is not in default of payment. Insofar as this occurs, we are entitled to revoke the authorisation to collect; in this case, the Customer is obliged to provide us with all necessary information so that we are able to collect the debt from the purchasers ourselves. We shall be entitled to revoke the authorisation for re-sale and collection if the Customer has got into considerable payment difficulties or if an application for the opening of insolvency proceedings has been made.
- Insofar as the Customer processes the reserved goods delivered by us, this shall always be done on our behalf. Insofar as the Customer also processes the reserved goods of other suppliers, the reserved ownership to which we are entitled in the processed goods shall extend proportionately to the amount of the respective outstanding, unpaid claims (final invoice amount plus VAT) as agreed between the Customer and us.
- Insofar as the goods subject to retention of title delivered by us are indiscriminately mixed with other items / objects, we shall be entitled to co-ownership in the amount of the respective outstanding claim (final invoice amount plus VAT) as agreed between the Customer and us. The Customer grants co-ownership to us in that amount. He keeps this co-ownership for us.
- The Customer is obliged to insure the reserved goods against theft, breakage, fire and other damage. The insurance policies and premium receipts must be shown to us on request. In the event of damage, loss or destruction of our reserved goods, the Customer hereby assigns to us any claims for reimbursement against third parties.
- In the case of a lien or other action by third parties, the Customer must immediately inform us in writing, so that we can file legal action according to Section 771 German Code of Civil Procedure (ZPO). Insofar as the third-party action under Section 771 German Code of Civil Procedure (ZPO) was successful and we have tried unsuccessfully in this respect to obtain from the third-party respondent the costs of the legal dispute by way of enforcement, the Customer shall be liable for the loss incurred.
- If the realizable value of the securities to which we are entitled exceeds the nominal value of our claims by more than 10%, we are obliged to release the appropriate amount of securities on the Customer’s request; the choice of securities to be released shall be at our discretion.
§ 10 Customer's credit rating
- If the Customer is in default with his due payment obligations - also from previous contracts - and therefore a significant deterioration of his financial circumstances is to be feared which endangers our claim to payment, we shall be entitled to retain the goods not yet delivered until the Customer has paid the due claims in cash or has provided sufficient securities. If the Customer fails to do so, we can cancel all or any of the contracts to the extent to which these have not been completed.
- Even if the Customer is not in default with due payments, Section 10 subsection 1 shall apply if, after conclusion of the contract, we become aware of circumstances which give rise to fears of a significant deterioration in the Customer's financial circumstances which jeopardise the fulfilment of the contract on the part of the Customer.
§ 11 Prohibition of assignment
The Customer is not entitled to assign claims against us - of any kind whatsoever - to third parties or to authorise third parties to assert such claims in their own name.
§ 12 Rights of use and copyrights/industrial property rights
- We reserve all ownership and exploitation rights as well as copyrights to drawings, illustrations, calculations and other documents. The documents may only be made accessible to third parties with our consent and must be returned to us immediately if an order is not placed with us.
- Our liability shall be excluded if the Customer provides design drawings and/or other documents and the use of these documents infringes any third-party right.
§ 13 Jurisdiction – miscellaneous
- The exclusive local place of jurisdiction for all disputes arising from or in connection with this contract, including any tort claims, is the registered office of our commercial branch. However, we shall be entitled to legal action against the Customer at his place of business. Article 1 shall only apply to entrepreneurs, legal entities under public law or public-law special connections.
- German law is agreed to apply to all contracts; the provisions of the UN Convention on Contracts of the International Sale of Goods are excluded.
- The place of performance for the obligations arising from the contract, with the exception of the payment obligation, shall be the factory or warehouse responsible in accordance with Section 3 subsection 1; the place of performance for payment shall be our registered office. Article 1 shall only apply to entrepreneurs, legal entities under public law or public-law special connections.
Date: 1st June 2021
§ 1 Applicability
- Our Terms of Purchase apply to the exclusion of any other terms. Supplier terms opposed to or deviating from these terms are not accepted. Failure to respond to other terms disclosed to us by any other supplier does not mean that we approve of such other terms. Likewise, failure to respond to opposing order confirmations does not imply that we approve of them. These Terms apply to supplies and services of any kind. Your opposing terms will not apply even if we fail to expressly reject them or accept ordered goods without reservation. Our Terms of Purchase apply only to merchants within the meaning of Section 310 sub-section 1 German Civil Code (BGB).
- Any deviation in an order confirmation issued upon orders placed by us is deemed to be a rejection of the order. If such an order is delivered, this is final and conclusive proof that our Terms of Purchase are accepted. Our orders, including all changes and amendments, to be effective, must be made in writing. We can cancel any order placed by us free unless it is confirmed to us by you without any change in writing within 10 days.
- Our Terms of Purchase also apply to all future business with the supplier.
§ 2 Conclusion of contract, contract documents
- Our orders, including all changes and amendments, in order to be effective, must be made in writing. We can cancel any order placed by us free unless it is confirmed to us by you without any change in writing within 10 days. Confirmed dates are fixed dates. Orders placed orally or by phone are not effective unless confirmed by us in writing, by facsimile or e-mail.
- All offers submitted by the supplier and technical plans, schedules, etc. prepared by him are free for us.
- All tools, models, samples, drawings and other materials or documents which we make available to the supplier remain our property and must not be disclosed to any third party unless with our consent.
- The supplier is obliged to keep all obviously commercial or other information of which he comes to know in the course of our business relations with him in strict secrecy. The supplier shall obtain similar undertakings of secrecy from his suppliers and contractors. This undertaking survives the end of our business relations with that supplier.
- We can demand changes to the ordered goods or services even after the conclusion of contract provided the supplier can be expected to tolerate that. In this case, the consequences for both contracting parties, particularly any higher or lower cost as well as the dates of delivery and performance shall be considered reasonably.
§ 3 Prices, payments
- All prices are fixed prices and include packaging for shipment to the agreed destination. Value added tax at the applicable rate is not included in the prices. Payment of the price is in lieu of all principal and ancillary supplies and services which, according to the offer documents and drawings or catalogs of the supplier, are part of the production of the subject of the contract. The payment of the price is also in lieu of all surcharges, taxes and fees, except sales tax and customs duties, if any. Suppliers with registered office in a country member of the European Union providing goods or services to us are required to disclose their VAT identification number. They are further obliged to provide declarations and disclose information required under applicable regulations, tolerate inspections by the customs authority and submit required officials confirmations. Items for which an export license is required shall be identified in the supplier’s order confirmation or invoice. Imported goods shall be delivered duty paid. All required formalities shall be handled by the supplier. We expressly state that the supplier is not permitted without our express written approval to name us as declarant in the customs declaration. If the supplier should name us as declarant to the customs authorities and if as a consequence of this the customs authorities make any claim on us, we can demand compensation of the damage suffered by us from the supplier, in particular, payments of money that we are required to make to the customs authorities. If we are required to cooperate in the import and export of goods delivered from or to foreign customs territories, the supplier shall contact us in this behalf and agree on the details with us in writing as soon as possible. We bear the cost of clearance through customs. The supplier undertakes to inform us in writing at the time of his order confirmation of whether any cost will be incurred in connection with the customs clearance and of the expected amount involved and whether our cooperation will be needed. We can cancel the contract if the cost of the clearance of the goods through customers exceeds a defined level. We can offset cost and withhold payment to the extent permitted by law.
- All invoices shall be made out in Euro currency. All invoices shall be sent to us in one copy together with all related documents and data after delivery of the goods has been made.
- On principle, we pay all available and due invoices less 3% discount, depending on the date on which the invoice is received by us, on the 15th or the last day of a month. Invoices are paid without discount on the 15th day or the last day of the next but one month.
- We can offset payments of the supplier against receivables of our subsidiary or sister companies.
§ 4 Dispatch, packaging, delivery dates, passing of risk
- The delivery period in the order is binding. Partial shipments require our previous consent. If it can be foreseen that the delivery of a consignment or the provision of a service will be delayed, we shall be informed of this in writing without delay.
- Shipments shall be advised to us beforehand. The information comprises the type, quantity and weight of the goods shipped. Our order number shall be specified in all dispatch notes, consignment notes, invoices and correspondence.
- Packaging materials shall only be used as required and shall be accepted back by the supplier free as required by the packaging Ordinance. The place of performance for the return of all packaging material is the place to which the goods are shipped.
- If, in exceptional cases, the cost of packaging is charged separately to us, we can return the packaging to the supplier freight paid against compensation of two-thirds of the value specified in the invoice.
- The supplier is obliged to meet agreed delivery periods and delivery dates. At the end of a grace period in which no compliance occurs we can cancel the contract and claim damages. We can also cancel the contract if you are responsible for the delay.
- In case of delay the supplier is responsible as provided for in the laws. Liquidated damages, if any, agreed for delayed delivery of goods or provision of service is not affected by this provision.
- If delivery is delayed, we can claim damages at the rate of 0.5 % of the value of the delayed consignment for every week of delay, including fractions thereof, subject however to maximum 5 % of the value of the delayed consignment.
- Goods delivered early can be returned to the supplier. If we accept the goods, they are warehoused by us until the agreed date of delivery at the supplier’s cost and risk.
- Force majeure and well as industrial conflict release the supplier and us from the affected duty to deliver. We will endeavour to provide all required information without delay and adapt our obligations to the changed conditions. The supplier is obliged to do likewise.
§ 5 Properietorship, Assignment of Claims
- Retention of title favour of the supplier or a third party shall be excluded. The supplier shall not assign its claims against us without our consent.
- Any material we provide to the supplier for processing in accordance with a contract remains our property. Any combining, mixing or processing with other materials shall be done exclusively for us and on our behalf, with the result that we become pro rata joint owners of the new thing. Combination with other goods that are to be regarded as the main things requires our express written consent. The supplier shall be liable towards us for loss of or damage to our property.
- The supplier may only set off our claims or assert rights of retention with respect to debts due and owing that are undisputed or res judicata.
- The supplier shall not assign or pledge its claims against us. Any extended or wider retention of title shall be excluded.
§ 6 Defect complaints and warranty
The supplier is responsible for his actions as prescribed by law and, for the rest, as set out below:
- In cases of defective delivery, we are entitled to make good the defective delivery at the supplier’s expense if we have a particular interest in the quick use of the delivered goods in view of the circumstances of the case and the supplier cannot make good the defect for reasons of time. We will inform the supplier in writing (including by fax or e-mail) before starting the rework.
- Incoming goods are inspected by us only for externally visible defects and externally detectable deviations of identity and quantity. Complaints concerning such obvious defects shall have been made in time if they are received within 10 working days of the delivery. Payments shall not be interpreted as waiver of the right to lodge complaint. Complained goods are only accepted at the cost and risk of the Seller and warehoused by us on the latter’s behalf.
We reserve the right of making more extensive inspections of goods received by us. Defects found in the course such extensive inspection will be notified as soon as they are detected in the ordinary course of business. In such cases, you waive the defence of delayed notification of defect. The supplier assures that his supplies/services comply with the agreed specifications, the latest state of the art and standard business practices and that a thorough function and quality check has been carried out prior to delivery. In case of underperformance, the supplier is also responsible for damage suffered by us in the ordinary course of business prior to processing the goods as a result of undetected defects of the goods delivered. In any such case, the seller shall indemnify us against claims for compensation by third parties. If despite a written warning, the same or essentially the same supplies and services provided by you are again defective or delayed, we can cancel the contract with immediate effect. Our right to cancellation of the contract in that case also covers supplies and services which you are obliged to make to us under this or any other contractual relationship. For the rest, you are obliged to indemnify us against all claims for compensation by third parties on us - for whatever cause - for any defect of quality or title or any other defect of a product delivered by you and pay the cost necessary for the related litigation.
- The period of warranty is 36 months from the passing of risk. The validity of longer periods or warranty is not affected.
- The supplier is obliged to indemnify us against product liability claims of any third party to the extent to which the supplier is responsible for the defect that gives rise to the liability.
- The supplier warrants the availability of spare parts and assemblies for 10 years after the date of delivery.
§ 7 Copyright
- The supplier is responsible for assuring that his supplies or services do not violate any industrial property right of any third party. He shall afford us the use of the goods delivered or services provided, including repairs, changes or additions, at home and abroad and indemnify us against all claims by third parties.
- We are entitled to obtain the permission of using the goods or services from the holder of the respective right at the supplier’s cost.
§ 8 Concluding provisions
- The supplier is not entitled to contract the order or any substantial part of it to any third party without our prior written approval.
- The supplier should note that we store personal data that is related to our business relations with him and that the data so stored can also be used by our subsidiary companies.
- The place of performance is the agreed plate of destination.
- The principal place of business of the buyer is the exclusive legal venue.
- The laws of the Federal Republic of Germany apply to the exclusion of the UN Convention on Contracts of the International Sale of Goods and without giving effect to the rules of conflict of German Private International Law.
- If one or several business terms should be or become ineffective, the other provisions are not affected. Both contracting parties undertake to replace the invalid provision by a valid provision that meets the economic intention of the invalid provision as fully as possible.
Date: 1st July 2007