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General terms and conditions
§ 1 Validity
These terms and conditions shall only be valid for companies, legal entities under public law or federal special funds under public law within the meaning of § 310 I BGB (Burgerliches Gesetzbuch - German Civil Code). All deliveries, services and offers on the part of the Seller shall be performed exclusively on the basis of these General Terms of Delivery. These are an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as „clients“) for deliveries or services provided by it. They shall also apply to all future deliveries, services or offers to clients, even if they are not separately agreed to. General Terms and Conditions of a client or third party shall not be applicable, even if the Seller does not explicitly repudiate them in individual cases. Even if the Seller refers to written correspondence which refers to or contains General Terms and Conditions of a client or third party, this shall not constitute any agreement to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
All offers by the Seller shall be subject to change without notice and be non-binding insofar as they are not explicitly designated as binding or do not contain a specific time limit for acceptance. The Seller may accept orders within fourteen days of receipt. The written order confirmation or sales contract, including these General Terms and Conditions, shall exclusively determine the legal relationship between the Seller and the Purchaser. This contract fully describes all the agreements between the contracting parties regarding the subject matter of the contract. Verbal undertakings given by the Seller before the conclusion of this contract shall not be legally binding, and oral agreements between the contracting parties shall be replaced by the written contract if they do not expressly state that they will continue to apply. Additions and amendments to the agreed conditions, including these General Terms and Conditions, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the Seller‘s employees shall not be entitled to conclude differing oral agreements. Transmission by fax shall be sufficient to meet the written form requirement; other transmission via telecommunications media, in particular via email, shall not be sufficient. Details supplied by the Seller regarding the subject matter of the supply or service (e.g. weights, dimensions, value in use, resilience, tolerances and technical data) as well as our descriptions of these (e.g. diagrams and drawings) shall be valid as approximations only to the extent that usability for the contractually intended purpose does not require exact concordance. The details are not guaranteed characteristics, but are rather descriptions or designations of the delivery or service. Normal commercial deviations and deviations which result from statutory provisions or which represent technical improvements, or the replacement of components by comparable parts, shall be permitted to the extent that they do not impair usability for the contractually intended purpose. The Seller shall retain title or copyright in respect of all offers and quotes provided by it, as well as in respect of diagrams, drawings, calculations, brochures, catalogues, models, tools and other documentation and aids made available to the Buyer. The Buyer may not make these objects themselves or their contents available to third parties without the Seller’s express permission, nor disclose them , nor use or reproduce them itself, nor allow third parties to do so. If requested to do so by the Seller, the Buyer must return these objects to the Seller in their entirety and destroy any copies made if they are no longer required by it in the normal course of business or if negotiations do not lead to the concluding of a contract.
§ 3 Prices and payment
Prices shall be valid for the scope of products and services listed in the order confirmation. Additional or special services shall be invoiced separately. The prices shall be quoted in GBP. To the extent that the agreed prices are based on the Seller‘s list prices and delivery is to occur more than four months after the concluding of the contract, the Seller‘s list prices at the time of delivery shall be applicable (in each case less any agreed percentage or fixed discount). In the case of custom-made products an advance payment of 50% of the total contract amount shall be payable within fourteen days following confirmation of the order. The invoice amounts, after deduction of the advance payment, shall be payable within thirty days without any further deductions unless otherwise agreed in writing. The date of payment is the date cleared funds have been received by the Seller. Cheques are only deemed to be paid once they have been cleared in the sellers bank account. If the purchaser fails to make payment on time, simple interest at a rate of 5% p.a. shall be charged on outstanding amounts from the due date; this does not affect the right to claim a higher rate of interest and additional damages in the event of late payment. Set-off against counterclaims made by the Client or the retention of payments due to such claims shall only be permitted if the counterclaims are uncontested or legally binding. The Seller shall be entitled to provide services or supplies that are still outstanding only once advance payment is made or a security is provided if after conclusion of the contract it becomes aware of circumstances which significantly reduce the creditworthiness of the client and which jeopardise the payment by the Client of the outstanding amounts payable to the Seller in respect of this contractual relationship (including in relation to other individual orders under the same framework agreement).
§ 4 Delivery and delivery time
Deliveries are made delivered at place (DAP). Deadlines and dates proposed by the Seller for supplies and services shall always only be approximations unless a fixed deadline or date has been expressly agreed to. If shipping has been agreed upon, deadlines and dates for delivery shall refer to the time of handover to the shipping agent, transporter or other third party tasked to undertake delivery. The Seller may – without prejudice to its right arising from default of the purchaser – request an extension of delivery and service deadlines from the Client, or the deferring of delivery and service deadlines by the length of time for which the purchaser fails to meet its contractual obligations towards the Seller. The Seller shall not be liable for the inability to make delivery or for delays in delivery if they are caused by force majeure or other events which are not foreseeable at the time when the contract is concluded (e.g. operational disruptions of any nature, difficulties in procuring materials or energy, transport delays, strikes, legal lockouts, lack of workers, energy or raw materials, difficulties in obtaining necessary official approvals, official measures, or outstanding, incorrect or delayed delivery by suppliers) for which the Seller is not responsible; if such events make delivery or service provision by the Seller significantly more difficult or impossible, and if the impediment is not merely of a temporary nature, the Seller shall be entitled to withdraw from the contract without penalty. If the impediments are of a temporary nature, the delivery or service deadlines shall be extended or they will be deferred by the length of time for which the impediment lasts plus an adequate lead-in period. If the Client cannot reasonably be expected to accept the delivery or service owing to the delay, it may withdraw from the contract by sending a written declaration to the Seller without delay. The Seller shall only be entitled to make partial deliveries if the partial delivery can be used by the Client for the contractually intended purpose, the delivery of the remaining ordered goods is assured, and no significant additional workload or costs arise for the Client as a result (unless the Seller declares that it is prepared to pay such costs). If the Seller ends up providing tardy delivery or service, or if, irrespective of the reason, it becomes unable to make a delivery or to provide a service, the Seller‘s liability to pay compensation shall be limited according to § 8 of these General Terms of Delivery
§ 5 Place of fulfilment, dispatch, packaging, transfer of risk and acceptance
The place of fulfilment for all duties arising from the contractual relationship shall be the Spectral premises unless otherwise agreed. If the Seller is also responsible for installation, the place of fulfilment shall be the location at which the installation is to be performed. The type of shipping and packaging used shall be at the reasonable discretion of the Seller. The risk shall pass to the Client at the latest upon handover of the subject matter of the delivery to the shipping agent, transporter or other third party tasked with delivery (as determined by the start of the loading process). This shall also apply if partial deliveries are made or if the Seller has undertaken to provide other services (e.g. shipping or installation). If dispatch or handover is delayed owing to circumstances which are attributable to the Purchaser, the risk is transferred to the Client as from the day on which the Seller is ready to effect dispatch and has notified the Purchaser of this fact. The Client shall bear storage costs after the risk has been transferred. If the Seller stores items, the storage costs shall be 0.25% of the invoice amount of such items per full week. The right to claim or prove additional or lower storage costs is reserved. The consignment shall be insured by the Seller against theft and damage due to breakage, transport, fire, water or other insurable risks only at the Client’s request and expense. If an acceptance inspection has to take place, the object purchased shall be deemed to have been accepted if the delivery – and installation if the Seller is also responsible for installation –has been completed, if the Seller has notified the Client with reference to the notional acceptance inspection according to this § 5, and if it has requested it to accept the object purchased, and if twelve working days have elapsed since the delivery or installation, or if the Client has started to use the purchased object (e.g. if it has commissioned the supplied item of plant), and in this case if six working days have elapsed since delivery or installation and the Client has failed to take acceptance of it within this period for a reason other than a defect that has been notified to the Seller which makes the use of the purchased object impossible or significantly impairs its use.
§ 6 Guarantee
The guarantee period shall be one year from delivery or, if an acceptance inspection is required, from the acceptance inspection. The objects delivered must be carefully examined immediately after delivery to the Client or a third party designated by it. They shall be deemed to have been accepted if, within seven working days following delivery of the supplied object or otherwise within seven working days after the discovery of the defect or the point in time at which the defect was recognizable by the client during normal use of the object supplied without closer examination, the Seller has not received in the form stipulated in § 2 defect notification in respect of evident defects or other defects which were identifiable following immediate, careful examination. At the Seller’s request, the object supplied which is the subject of the complaint shall be returned carriage-free to the Seller. In the event of a justified defect claim, the Seller shall reimburse the costs of carriage via the least costly method of carriage; this shall not apply if the costs increase due to the object supplied being at a location other than the intended location of use. If the object supplied contains material defects, the Seller shall in the first instance be obliged and entitled to rectify the defect or to supply a replacement, at its discretion and within an appropriate period of time. If this fails, i.e. if rectification or replacement is impossible, if it cannot reasonably be achieved, if it is refused or if it is unreasonably delayed, the Client may withdraw from the contract or reduce the purchase price accordingly. If the Seller is to blame for the defect, the Client may demand compensation subject to the conditions stipulated in § 8. In the case of defects in components made by other manufacturers which the Seller cannot rectify for licensing or factual reasons, the Seller shall at its discretion assert its guarantee rights against the manufacturers and suppliers on the Client’s behalf, or it will assign those rights to the Client. Guarantee claims against the Seller in the event of defects of this nature only exist subject to the other preconditions and according to these General Terms and Conditions and only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful, or if, for instance due to insolvency, there is no prospect of it succeeding. For the duration of the legal dispute, the statutory limitation period applying to the Client’s guarantee claims against the Seller shall cease to run. The guarantee shall be cancelled if the Client modifies the object supplied without the Seller’s permission or if it has it modified by third parties and this makes rectification of the defect impossible or makes it more difficult to an unreasonable extent. In each case, the Client must bear the additional costs of rectifying the defect which result from the modification. Any supplying of used/second-hand objects which is agreed with the Client in an individual case shall exclude any guarantee.
§ 7 Industrial property rights
The Seller warrants that the object supplied is free of third party industrial property rights or copyright according to the terms of this § 7. Each party to the contract shall notify the other party to the contract in writing if claims are made against it for breach of such rights. If the object supplied infringes a third party industrial property right or copyright, the Seller shall at its discretion and expense modify or exchange the object supplied in such a manner that third party rights are no longer infringed but the object supplied continues to fulfil the contractually agreed functions, or it will grant the Orderer a right of use by oncluding a license agreement. If it is unable to do this within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. A compensation claims by the Client shall be subject to the restrictions of § 8 of these General Terms and Conditions of Delivery. If other manufacturers’ products which are supplied by the Seller cause legal infringements, the Seller shall at its discretion assert its guarantee rights against the manufacturers and upstream suppliers on the Client’s behalf or it will assign those rights to the Client. Claims against the Seller only exist in these cases if legal enforcement of the above claims against the manufacturers and pre-suppliers has been unsuccessful or if, for instance due to insolvency, there is no prospect of them succeeding.
§ 8 Fault-based liability for compensation
The Seller’s liability for compensation is restricted according to this § 8 – irrespective of the legal reasons for it, in particular due to the inability to provide delivery, late, defective or incorrect delivery, breach of contract, breach of duties in contractual negotiations and prohibited actions – in each case insofar as it is fault-based. The Seller shall not be liable in cases of the simple negligence of its entities, authorised representatives, employees and other servants, nor in the case of gross negligence on the part of its non-managerial employees or other servants except in respect of the breach of material contractual duties. Material contractual duties are the duties to provide defect-free, on-time supply and installation, as well as advice, safety and ancillary obligations which are intended to enable the Client to use the object supplied according to the contract or to protect the Client‘s personnel or third parties from death or injury or to protect the Client’s property from significant damage. If the Seller is in principle liable to provide compensation based on § 8, this liability is limited to loss or damage which the Seller foresaw at the time when the contract was concluded as the possible consequence of a breach of the contract, or which it should have been aware of or foreseen had it exercised due diligence. Indirect losses or consequential losses which are the result of defects in the object supplied are furthermore only eligible for compensation insofar as such losses can typically be expected during the use of the object supplied for its intended purpose. In the case of liability for simple negligence, the Seller‘s duty to provide compensation for property damage or bodily injury is limited to the invoice value of the goods. The above exclusions and limitations of liability apply equally to the entities, authorised representatives, employees and other servants of the Seller. If the Seller provides technical information or advice and this information or advice does not form part of the contractually agreed scope of services that is to be provided by it, this is done without charge and excluding any liability. The limitations referred to in this § 8 shall not apply to the Seller’s liability in respect of intentional actions, guaranteed characteristics, death, bodily injury or health impairment, nor to liability according to the Produkthaftungsgesetz (German Product Liability Act).
§ 9 Retention of title
The retention of title agreed below serves to safeguard all the Seller’s currently existing and future payment entitlements from the Purchaser arising from the supply relationship in respect of supplies and services. The goods supplied to the Purchaser by the Seller shall remain the property of the Seller until complete payment of all secured payment entitlements. The goods, and all the goods which replace such goods pursuant to this provision and which are subject to retention of title, are hereinafter referred to as ‘conditional’ goods. The Purchaser shall store the conditional goods on the Seller’s behalf without charge. If the conditional goods are resold, the Purchaser hereby already assigns the resulting claim against the Purchaser to the Seller by way of security. In the event of joint ownership by the Seller of the conditional goods, this shall be done in proportion to its co-ownership share. The same shall apply to other claims which take the place of the conditional goods or which otherwise arise in relation to the conditional goods. The Seller revocably authorises the
Purchaser to collect payment of claims that have been assigned to the Seller in its own name on behalf of the Seller. The Seller may only revoke this collection authority in the event that the claim is realized. If third parties access the conditional goods, in particular by means of attachment, the Purchaser shall immediately inform them that they are owned by the Seller, and it will inform the Seller accordingly in order to allow it to assert its rights of ownership. If the third party is not able to reimburse to the Seller the judicial or extra-judicial costs which arise in this connection, the Purchaser shall be liable to do so. On request, the Seller shall at its discretion release the conditional goods as well as the objects or claims that replace them if their value exceeds the amount of the secured claims by more than 50%. If the Seller withdraws from the contract due to a breach of the contract by the Purchaser, in particular due to delay in payment, it shall be entitled to reclaim the conditional goods.
§ 10 Withdrawal and cancellation
If the Orderer withdraws from the contract for reasons for which the Seller is not responsible, the Seller shall have the right to demand a lump-sum payment or compensation equal to 15% of the agreed contract price. The Orderer is free to prove that based on the actual accounting that has been undertaken the amount which the Seller is entitled to receive is lower. If the Orderer‘s acceptance is delayed, the Seller shall be entitled to withdraw from the contract or to claim compensation due to non-fulfilment after setting an extension period of fourteen days. The setting of an extension period is not necessary if the Client genuinely or finally refuses acceptance or is clearly not able to pay the purchase price even within this period.
§ 11 Concluding provisions
The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client is the head office of Spectral or the Purchaser’s head office, whichever we choose. Stuttgart is the exclusive place of jurisdiction for legal actions against the Seller. Mandatory statutory provisions regarding the exclusive places of jurisdiction shall remain unaffected by this regulation. The relationship between the Seller and the Client shall be subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 shall not be valid. If there are gaps in the provisions of this contract or these General Conditions of Delivery, the legally effective regulations which the parties to the contract would have agreed according to the commercial aims of the contract and the purpose of the General Conditions of Delivery had they known about the gaps in the provisions shall apply for the purpose of closing these gaps. The Orderer is not be entitled to assign its entitlements arising from the contractual relationship to a third party. This does not apply in respect of monetary claims. If individual parts of these General Conditions of Delivery are legally ineffective, the effectiveness of the remaining provisions shall not be affected.
Valid from 01. January 2016