Terms of Delivery and Payment
I. Scope of Application:
1. The following General Business Conditions will apply to all transactions with Herm. Sprenger GmbH (hereinafter known as “the supplier“), i.e. all contracts, deliveries and other services and shall be deemed to be incorporated into future business relationships even when reference has not especially been made to the same. The validity of the purchaser’s General Terms of Business is discounted.
2. Any deviations from these General Terms of Business will only become an integral part of the contract if such deviations constitute the subject matter of an express agreement in writing entered into between the purchaser and the supplier.
II. Subject Matter of Contract/Prices:
1. Decisive for the contents and scope of deliveries and services is the written confirmation of order from the supplier. If no such confirmation has been issued then the quotation from the supplier is decisive. Should there be no quotation, then the supplier’s current price list is decisive. Confirmation of order by data telecommunication, EDP-printout and electronically transferred order confirmations and quotations are to be considered as valid even without signature.
2. Our quotations will be valid for 8 days, whereafter they lose their validity.
3. Orders received via our agents and/or sales representatives together with subsidiary agreements, supplements, etc. require confirmation in the above mentioned form (written) to become effective.
4. All the technical data contained in our catalogues and other sales documentation, lists and drawings as well as details of weights and measures have been drawn up with all due diligence; obvious mistakes are subject to subsequent correction.
5. The price lists applicable at the time of entering into the contract constitute the basis for price calculations or alternatively the prices in the specific quotations. All prices are understood to be ex works and do not include the Value Added Tax applicable on the day of delivery or services performed and do not include any transport and packaging costs.
6. For orders of low value, we reserve the right to charge a processing fee.
III. Delivery Terms/Delayed Deliveries:
1. The observance of agreed periods for deliveries and performance of services or delivery dates is conditional on the timely receipt of all specifications and documents to be communicated by the purchaser as well as the compliance with the payment conditions agreed upon together with any other obligations through the purchaser. Should these prerequisites not be fulfilled punctually, then the delivery dates will be delayed commensurately.
2. Transactions for delivery by a fixed date (§ 376 German Commercial Code) require explicit written confirmation.
3. Should the non-compliance of delivery dates or service periods be caused by Force Majeure, e.g. mobilization, war, uprising, or any similar events, such as strike, lock-outs etc., then the dates or periods will be commensurately extended. The same is to apply for delayed deliveries of the supplier’s own supplies.
4. Should the supplier’s delivery dates or service dates or alternatively the delivery periods or service periods on behalf of the supplier not be observed, then the purchaser is obliged to set the supplier a reasonable subsequent date for delivery in writing. Should the supplier culpably not deliver or alternatively perform services within this set subsequent delivery period, then the purchaser is entitled to withdraw from the contract.
5. Inasmuch as the supplier is responsible for the non-observance of the accepted date, then the purchaser – provided he can substantiate that damages have thus arisen for him – can demand compensation for each complete week of delay of 0.5%, however, no more than a total of 5% of the price of the deliveries or services affected by the delay. This limitation of liability shall not be applicable if the supplier is to be blamed with handling with intent or with gross negligence or is compulsorily liable for damages arising from death or injury to body and health.
6. On demand by the supplier, the purchaser is obliged to explain within a commensurate period whether he withdraws from the contract because of the delays in delivery or performance and/or will make claim for compensation instead of the deliveries demanded and/or insists on receiving the deliveries/performances.
IV. Terms of Delivery:
1. The supplier is entitled to make partial deliveries on a reasonable scale. Variances in respect of the measurements, the weight, the technical configuration, the manufacture and the extent of the commodities to be supplied are permitted within a tolerance range of 15%.
2. The purchaser additionally consents to any deviating modifications which serve technical improvement of the commodity or alternatively that will not bring about any technical deterioration.
V. Passing of Risk/Delivery:
1. Dispatch is made on the order of the purchaser at his cost through a haulage contractor of our choice.
2. The risk of accidental destruction and/or loss passes to the purchaser with the despatch or upon handing over to the person carrying out the transportation, respectively. Moreover all risk passes to the purchaser once he is in default of acceptance following receipt of notice of readiness for shipment from the supplier.
VI.Terms of Payment:
1. The supplier’s invoices are due for payment immediately and without any deduction. Payment is considered to have been made as soon as the sum has been made available to the supplier.
2. The supplier reserves the right to demand payment in advance should he so desire.
3. Should the purchaser fall into arrears, then the supplier can demand interest on arrears in the amount of 8% p.a. over the valid basic interest rate in accordance with § 247 German Civil Code. Any right to assert further claims for damages shall not be affected by this.
4. The supplier is not obliged to accept drafts (Bills of Exchange). These will only be accepted in individual cases on account of performance by reason of special agreements. The discount and collection charges for the draft are to be borne by the issuer upon maturity and are payable immediately in cash.
5. Regardless of any single instances of specially agreed payment conditions, demands to which the supplier is legally entitled become immediately due when circumstances arise in the person of the purchaser where any holding to the agreed payment conditions can no longer be deemed acceptable. This is the case if there are grounds to suspect a significant deterioration of the financial position of the purchaser, in particular upon suspension of payments, cheque and draft protests or default of payment, if it is apparent from this that the supplier's claim to the consideration is endangered as a result of the purchaser's lack of ability to pay. In such cases the supplier is furthermore entitled to demand contemporaneous payment with delivery or the surrender of additional securities. Above and beyond this the supplier is entitled to determine a reasonable term within which the purchaser, at the option of the supplier, is to simultaneously execute consideration or provide security in exchange for performance. The supplier may withdraw from the contract upon futile expiry of the said term.
6. Within the scope of the warranty for defects the purchaser may only withhold payment after making a justifiable notice of defects to an extent that is in due proportion to the incurred defect. Any lien on goods on the part of the purchaser is otherwise excluded. The purchaser only has the right to offset claims with uncontested or legally enforceable claims.
VII. Reservation of Title:
1. The commodities supplied (goods subject to reservation) remain the property of the supplier until all claims on the part of the supplier against the purchaser arising from the business relationship have been met. The purchaser is not permitted to pledge or transfer ownership by way of security for the duration of the reservation of title. In the event of any pledge, seizure or other disposition or intervention by third parties, the purchaser shall immediately notify the supplier of the same.
2. The purchaser is entitled to dispose of the goods subject to reservation in the normal course of business provided he receives the agreed remuneration or a prohibition of assignment is not agreed upon. The purchaser herewith preventatively assigns to the supplier the claim arising from the sale. However, he remains duly authorised to the collection of the preventatively assigned claim, as long as such authorisation is not revoked. The authorisation can then be revoked when the purchaser culpably does not or no longer fulfil his contractual obligations. If a direct debit authorisation is revoked, the supplier is permitted to give notice of the occurred assignment. The purchaser must then immediately make available all the documents necessary for the notification of assignment and the collection.
3. A sale in the ordinary course of business is not constituted if the goods subject to reservation are pledged or transferred by the purchaser by way of security to a third party, or made the object of factoring and/or sale-lease-back procedures, in violation of sub clause 2.
4. In the event of goods subject to reservation being processed or treated, this shall be effected for and on behalf of the supplier as the manufacturer within the sense of §§ 950 et seq. German Civil Code. In this case the supplier is lawfully entitled to (joint) ownership of the articles emerging from the processing or treatment of the goods subject to reservation in the proportion of the goods subject to reservation to the value of the new article at the time of the said processing or treatment. The supplier is likewise entitled to a proportional co-ownership in the new article whenever goods belonging to third parties are processed together with the goods subject to reservation. If the purchaser sells the article newly manufactured by him to another party, he herewith preventatively assigns the claim due to him arising from that sale to the amount of the value of the goods subject to reservation.
5. The purchaser shall immediately notify the supplier if the goods subject to reservation are damaged or otherwise impaired. Any claims against third parties arising from the damage or impairment in favour of the purchaser are herewith preventively assigned to the supplier.
6. Insofar as the value of all security interests to which the supplier is entitled exceeds the amount of all claims covered by security by more than 20% the supplier shall if requested by the purchaser, release a corresponding portion of the security interests.
7. Should the purchaser neglect any of his duties, in particular in the case of default of payment, the supplier is entitled to cancel the contract and to take back the goods subject to reservation. The purchaser is obliged to surrender the same. The taking back of the goods subject to reservation, or the enforcement of the reservation of title alone does not require the withdrawal on the part of the supplier and is not to be deemed as an implied declaration of cancellation of the contract unless the supplier explicitly declares that these acts are to be understood as a cancellation.
1. The recipient is obliged to examine the commodities delivered immediately regarding their completeness, outer discernable damages and following normal business procedures carry out feasible checks in addition to making written report of any possible damages without delay.
2. No warranty claims shall exist in the event of only immaterial deviation from the agreed condition and only insignificant impairment of the serviceability.
3. Furthermore no warranty claims shall exist in the case of fair wear and tear, or by damage arising subsequent to the passing of risk as a result of incorrect or negligent handling, excessive treatment, unsuitable operating materials or that occur as a result of particular external influences that are not presupposed according to the contract
4. In the event of a substantiated notice of defects, i.e. upon the occurrence of quality defects which, or the cause of which, already existed at the time of the passing of risk, the supplier is entitled, at his option, to provide subsequent improvement (removal of defects) or delivery (replacement).
5. The warranty for expenses incurred by subsequent improvement is limited to the value of the defective commodities.
6. If the supplier supplies a faultless item for the purpose of subsequent performance, the purchaser shall surrender the defective article. This is correspondingly applicable to defective components if these are replaced by faultless components within the scope of subsequent improvement.
7. A warranty term of one year shall apply for claims for defects, insofar as the statutory provisions concerning the sale of consumer goods are not applicable (§§ 474 et seq. German Civil Code) in particular with regard to liability upon recourse (§§ 478 et seq. German Civil Code) in the absence of statutory requirements.
8. The legal consequences of any violation of the commercial duty to examine goods and the obligation to give notice of defects (according to § 377 German Commercial Code) shall not be affected.
9. Clause IX shall otherwise apply to any claims for damages. Claims are excluded that are more extensive or different from those in this sub-clause and clause IX raised on the part of the purchaser against the supplier and his vicarious agents due to a defect of quality.
1. Claims for compensation on the part of the purchaser are excluded, irrelevant of the legal grounds, in particular due to any breach of obligations arising from the contractual obligations and from tortious acts, unless there is compulsory liability in accordance with product liability laws, in cases of liability for intention or grossly negligent conduct, due to fatal or physical injury or health hazard, or due to the infringement of essential contractual obligations.
2. Claims for compensation in respect of the violation of essential contractual obligations shall, however, be limited to predictable damages typical for the contract, unless a limitation is excluded for other reasons due to intentional or grossly negligent conduct, due to liability in accordance with product liability laws or due to fatal or physical injury or health hazard.
3. In the event of impossibility of performance for which the supplier is responsible, claim for compensation by the purchaser is limited to 10 % of the value of that portion of the delivery which cannot be delivered due to impossibility of performance, as long as the supplier cannot be charged with intent or gross negligence and there is no compulsory liability due to fatal or physical injury or health hazard. The right of the purchaser to withdraw from the contract remains untouched.
4. In the event that the purchaser’s customer, or his customer, justifiably claims against him for subsequent performance, he shall give the supplier the opportunity to carry out such subsequent performance himself within a reasonable term before procuring other “compensatory” goods. The purchaser shall impose this obligation accordingly to his customer. In the event that the purchaser violates these obligations, the supplier reserves the right to reduce compensation to an amount he would have incurred by carrying out subsequent performance himself. This shall not affect § 444 German Civil Code.
5. Compensation for expenses associated with such subsequent performance on the part of the purchaser in respect of his customer are furthermore excluded if the purchaser, contrary to his duty to limit damages, has not made use of his right to refuse this kind of subsequent performance, or both kinds of subsequent performance, because of the disproportion of costs and/or has not limited compensation to a reasonable amount.
6. Claims on the part of the purchaser in respect of expenses necessary to effect subsequent performance, in particular transport, travelling, labour and material costs, are excluded if the expenses increase due to the fact that the object of supply has been subsequently transferred to a different place to the one given by the purchaser as recipient address, unless such a transfer corresponds with its designated use. This is applicable to recourse liability accordingly.
7. The statutes of limitation binding on these claims are applicable to any claims for damages and compensation in conjunction with the defectiveness of the goods or performance (ccf. VIII. 7.). Claims for compensation caused by liability in accordance with product liability laws, in cases of liability for intentional or grossly negligent conduct, due to fatal or physical injury or health hazard, or due to the infringement of essential contractual obligations are subject to the statutes of limitation.
X. Data Protection:
1. Personal data concerning the purchaser obtained directly or indirectly within the scope of the business relationship or becoming known through third parties will be stored by the supplier in an automatic file and processed in the course of business (reference to BDSG) [Federal Data Protection Act].
2. The supplier will observe the relevant data protection regulations (in particular those of the BDSG).during his use of the personal data .
3. The purchaser consents to the processing by the supplier of personal data becoming known concerning him indirectly or through third parties.
4. The supplier may pass on to the supplier current information concerning the company and the products e.g. in the form of a newsletter concerning changes in the sales programme.
1. The supplier reserves all property rights, copyrights and exploitation rights to quotations, drawings and other records (herein referred to as “documents“) without limitation. The documents shall only be made accessible to third parties with the prior consent of the supplier and are to be returned immediately on request if the contract is not awarded to the supplier. Sentences 1 and 2 above apply to the purchaser’s documents accordingly, although these may be made accessible to such other persons to whom the supplier has legitimately assigned the deliveries.
2. The legal relations in conjunction with this contract are governed by German substantive law and exclude the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. The sole legal venue for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier.
4. Should any provision in these Terms and Conditions or any provision in other agreements be or become ineffective, then this shall not affect the effectiveness of all the remaining provisions or agreements.