Spectral Audio Möbel GmbH
General Terms of Delivery
§ 1 Validity
These terms and conditions shall only be valid for companies, legal entities under public law or federal special funds under public law in the sense of § 310 I BGB (Bundesgesetzbuch – 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 a component of all contracts that the seller concludes with his contractual partners (hereinafter also referred to as “clients”) for deliveries or services provided by him. They shall also apply to all future deliveries, services or offers to clients, even if they are not separately agreed to again. Conditions of business of a client or third party shall not be applicable, also where the seller does not explicitly object to them in individual cases. Even where the seller refers to written correspondence that contains conditions of business of a client or third party, no agreement as to those conditions of business shall exist.
§ 2 Offer and conclusion of contract
All offers by the seller shall be non-binding and subject to confirmation, to the extent that they are not explicitly designated as binding, or do not contain a specific term of acceptance. The purchaser may accept orders within fourteen days of receipt. The written contract of sale, including these general terms of delivery, shall exclusively determine the legal relationship between the purchaser and the seller. This contract completely reflects all agreements between the contracting parties as to the object of the contract. Oral agreements by the seller before conclusion of this contract shall not be legally binding, and oral agreements between the contracting parties shall be replaced by the written contract, insofar as nothing ensues from these to the extent that they should continue to apply. Extensions and modifications to the conditions agreed, including these general conditions of business shall require the written form for their validity. With the exception of managing directors or authorised signatories, the seller’s employees shall not be entitled to conclude oral agreements that contradict this. Transmission by fax shall be sufficient to ensure the written form; communication by telecommunication shall otherwise not be sufficient, in particular by email. Details supplied by the seller as to the object of the contract or service to be delivered (e.g. weights, dimensions, usage values, resilience, tolerances and technical data) as well as our illustration of same (e.g. diagrams and drawings) shall be valid as approximations only, to the extent that usability for the contractually intended purpose does not presuppose an exact concordance. The details are not guaranteed characteristics, but are rather descriptions or designations of the delivery or service. Customary deviations and deviations resulting from statutory provisions or that represent technical improvements, or the replacement of components by those of similar capability, shall be permitted to the extent that they do not influence usability for the contractually intended purpose. The seller shall retain title or copyright in all offers and quotes provided by him, as well as in diagrams, drawings, calculations, brochures, catalogues, models, tools and other documentation and aids made available to the client. The client may not make these objects available to third parties without the express permission of the seller, either as such or in terms of their contents, make them known, or use or reproduce them himself or allow third parties to do so. On request of the seller, the client shall return these objects in their entirety to same and destroy any copies made where these are no longer required in the normal course of business or where negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
Prices shall be valid for the scope of products and services listed in the confirmations of orders. Additional or special services shall be invoiced separately. The prices shall be quoted in euros ex plant and excluding packaging, statutory VAT, customs duties in the case of exports as well as fees and other public levies. To the extent that the agreed prices are based on the seller’s list prices, and delivery occurs more than four months after conclusion of the contract, the seller’s list prices at the time of delivery shall be applicable (in each case less an agreed percentage or fixed discount). In the case of custom production, an advance payment in the amount of 50% of the contract amount shall be payable within fourteen days of confirmation of order. The invoice amounts, after deduction of advance payment, shall be payable within thirty days without further deductions, to the extent that no other written agreement to the contrary exists. The determining factor for date of payment shall be receipt by the seller. Cheques shall only be deemed to be paid once they have been cleared. Where the purchaser is in arrears, interest at the rate of 5% p.a. shall be charged on outstanding amounts from the due date; the application of a higher rate of interest and additional damages in the event of arrears shall remain intact. Set-off against counterclaims by the client or retention of payments due to claims of this nature shall only be permitted to the extent that the counterclaims are uncontested or legally binding. The seller shall be entitled to perform services or provide deliveries on outstanding items only after advance payment or the provision of securities where after conclusion of the contract he becomes aware of circumstances that significantly reduce the creditworthiness of the client, and as a result of which payment of outstanding demands on the part of the seller by the client based on the current contractual relationship (including from other individual orders to which the same framework agreement applies) are in jeopardy.
§ 4 Delivery and delivery time
Deliveries are ex plant. Deadlines and dates proposed by the seller shall at all times only be approximations, unless a fixed deadline or date has been expressly agreed to. To the extent that dispatch has been agreed upon, deadlines and dates for delivery shall refer to the point in time at which the shipping agent, transporter or other third party is tasked with delivery. The seller may – without prejudice to his right arising from default on the client’s part – request an extension of delivery deadlines and dates from the client, or a shifting of deadlines and dates by that period of time in which the client has not met his contractual obligations in respect of the seller. The seller shall not be liable for impossible deliveries or delays in delivery, to the extent that these have been caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. industrial disruptions of any nature, difficulties in procurement of material or energy, transport delays, strikes, lockouts in terms of law, missing work resources, energy or raw materials, difficulties in procurement of the necessary approval by authorities, official measures, or outstanding, incorrect or delayed delivery by suppliers), which cannot be attributed to the seller. To the extent that such events cause significant problems to the seller in terms of delivery or services or make such delivery or services impossible, and the impediment is not merely temporary in duration, the seller shall be entitled to withdraw from the contract. In the event of impediments of a temporary nature, the delivery deadlines and dates shall be extended or shifted by the period of time of the impediment plus an adequate start-up period. To the extent that the client cannot be expected to accept delivery or services as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the seller. The seller shall only be entitled to effect partial deliveries if the partial delivery is usable by the client in terms of the contractually intended purpose, the delivery of the remaining goods ordered is assured and no significant additional effort or costs arise on the part of the client as a result (unless the seller declares that he is prepared to bear such costs). Where the seller is in arrears with a delivery or service, or where a delivery or service is impossible, irrespective of the reason, the seller’s liability for compensation for damages shall be limited according to § 8 of these General Terms of Delivery.
§ 5 Place of fulfilment, dispatch, packaging, transfer of risk and acceptance
Place of fulfilment for all duties arising from the contractual relationship shall be the location of Spectral, in the absence of any agreement to the contrary. Where the seller is also liable for installation, the place of fulfilment shall be the location at which the installation is to be performed. The type of dispatch and packaging shall be subject to the conscientious discretion of the seller. Risk shall pass to the client at the latest on transfer of the delivery object to the shipping agent, transporter or other third party tasked with delivery, whereby the start of the loading process shall be decisive. This shall also apply where partial deliveries are effected or the seller has assumed other services (e.g. dispatch or installation). Where dispatch or handover is delayed for reasons that can be attributed to the client, risk shall pass on the day on which the seller is ready to dispatch and has informed the client accordingly. The client shall bear storage costs after risk has been transferred. Where the seller stores items, costs shall be 0.25% of the invoice amount of such items per completed week. Enforcement or proof of additional or lower storage costs shall be reserved. The consignment shall only be insured against theft and damage due to breakage, transport, fire, water or other insurable risks on the express request of the client and at his cost. Where acceptance is to take place, the object of purchase shall be deemed to have been accepted where the delivery and, to the extent that the seller is also liable for installation, installation has been completed, the seller has informed the client that acceptance shall be implied in terms of this § 5 and has requested same to accept the object of purchase, twelve working days have elapsed since the delivery or installation or the client has commenced the use of the object of purchase (e.g. the delivered system has been commissioned) and in this case six working days have elapsed since the delivery or installation, and the client has neglected to accept the items within this period of time for a reason other than a defect made known to the seller that makes use of the object of purchase impossible or significantly impairs same.
§ 6 Guarantee
The guarantee period shall be one year from delivery or, in the event that acceptance is required, from acceptance. The objects delivered must be carefully examined immediately after delivery to the client or a third party designated by him. The objects shall be deemed to have been accepted where the seller has not received notification of defect in the form stipulated in § 2 (2) p. 6 in terms of a patent defect or other defect that was recognisable after immediate, careful examination, or otherwise within seven days after discovery of the defect or the point in time at which the defect was recognisable by the client during normal use of the delivery object without closer examination. On request from the seller, the delivery object in question shall be returned carriage-free to the seller. In the event of a justified claim for defect, the seller shall reimburse for the least costly dispatch method; this shall not apply to the extent that the costs increase due to the delivery object being situated at a location different to that of the use according to purpose. In the event of material defects in the delivered objects, the seller shall in the first instance be obliged and entitled to make good the defect or to supply a replacement, at his discretion within an appropriate period of time. Where such an attempt fails, that is, a case of impossibility, unreasonableness, refusal or inappropriate delay in making good or replacement delivery exists, the client may withdraw from the contract or reduce the purchase price accordingly. Where the defect is attributable to the seller, the client may demand compensation for damages in terms of the conditions stipulated in § 8. In the case of defects in components from other manufacturers that cannot be resolved for licensing or material reasons, the seller shall at his discretion assert his guarantee rights in terms of the manufacturers and suppliers for the account of the client or cede same to the client. Guarantee claims against the seller in the event of defects of this nature shall only exist under the remaining conditions and according to these General Terms of Delivery if legal enforcement of the above claims against the manufacturer and supplier has been fruitless or has no chance of success, for example due to insolvency. For the duration of the legal dispute, the proscription of the affected guarantee claims on the part of the client against the seller shall be stopped. The guarantee shall be cancelled where the client modifies the delivery object without permission of the seller or allows such modification by a third party and the resolution of the defect is made impossible or significantly more difficult as a Result. In any event, the client shall bear additional costs for resolution of the defect arising from the modification. Delivery of used objects agreed to with the client in an individual case shall be to the exclusion of any guarantee.
§ 7 Property rights
The seller shall warrant the delivery object is free of commercial property rights or copyright in terms of this § 7. Every party to the contract shall immediately inform the other party to the contract in writing if claims are made against the party for breach of such rights. In the event that the delivery object breaches a commercial property right or copyright of a third party, the seller shall at his discretion and at his cost modify or exchange the delivery object in such a manner that the rights of third parties are no longer affected, but that the delivery object continues to fulfil the contractually agreed functions, or grant the client a right of use by concluding a licence agreement. Where the seller is unable to do so within a reasonable period of time, the client shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for compensation for damages by the client shall be subject to the restrictions of § 8 of these general Terms and Conditions of Delivery. Where breaches of the rights of other manufacturers occur as a result of products supplied by the seller, the seller shall at his discretion assert his rights in terms of the manufacturers and pre-suppliers for the account of the client or cede same to the client. Claims against the seller in terms of § 7 of these Terms and Conditions of Delivery shall only exist if legal enforcement of the above claims against the manufacturers and pre-suppliers has been fruitless or has no chance of success, for example due to insolvency.
§ 8 Liability for compensation for damages due to fault
Liability for compensation for damages on the part of the seller, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contractual negotiations and impermissible actions shall be restricted in terms of § 8 of these Terms and Conditions of Delivery to the extent that this is based on fault. The seller shall not be liable in cases of simple negligence of his agents, authorised representatives or employees, and in cases of gross negligence of his non-management employees or other agents, to the extent that a breach of a material duty of the contract is involved. Material duties are duties to provide and install defect-free items on time, as well as duties of advice, safety and obligation that permit the client to use the delivery objects according to the contract or serve to protect life or limb of the client’s personnel or third parties or the property of the client from significant damage. To the extent that the seller is liable for compensation for damages based on § 8 (2) this liability shall be limited to damages that the seller foresaw as the possible consequence of a breach of the contract or that he should have been aware of or foreseen had he applied due diligence. Indirect damages or consequential damages that are the result of defects in the delivery object are furthermore only eligible for compensation to the extent that such damages can be expected during typical use of the delivery object according to intended purpose. In the case of liability for simple negligence, the seller’s duty of replacement for material and personal damage shall be limited to the invoice value of the goods. The above exclusions and limitations of liability shall apply to the same extent to entities, authorised representatives, employees and other vicarious agents of the seller. To the extent that the seller provides technical information or is active as a consultant and this information or advice does not form part of the contractually agreed scope of delivery required of him, such information or advice shall be without monetary compensation and under exclusion of all liability. The limitations in terms of this § 8 shall not apply to liability of the seller due to wilful intent, to guaranteed characteristics, due to injury to life, limb or health, or according to the Law on Product Liability.
§ 9 Retention of title
The retention of title agreed on below serves to safeguard all currently existing and future demands by the seller on the purchaser from the supply relationship between the parties to the contract as to deliveries and services. The goods supplied to the purchaser by the seller shall remain the property of the seller until complete payment of all secured claims. The goods and all goods that replace such goods pursuant to this provision and that are under retention of title are hereinafter referred to conditional goods. The purchaser shall store the conditional goods on behalf of the seller at no charge. Where the conditional goods are resold, the purchaser hereby cedes the claim against the purchaser arising herefrom to the seller by way of security. In the event of joint ownership by the seller of the conditional goods this shall be performed in proportion to the co-ownership share. The same shall apply to other claims in terms of conditional goods or that otherwise arise in terms of the conditional goods. The seller shall on a revocable basis entitle the purchaser to collect claims ceded to the purchaser in his own name for the account of the purchaser. The seller may only revoke this authority to collect in the event that the claim is realised. Where third parties access the conditional goods, in particular by means of attachment, the purchaser shall immediately make reference to the ownership by the seller, and inform the seller accordingly, to allow him to assert his right of title. To the extent that a third party is not able to reimburse the seller for legal or extra-judicial costs arising in this connection, the purchaser shall be liable to the seller. On request, the seller shall at his discretion release the conditional goods as well as the objects or claims that replace same, to the extent that their value exceeds the amount of the secured claims by more than 50%. Where the seller withdraws from the contract due to a breach of the contract by the purchaser, in particular due to arrears in payment, he shall be entitled to reclaim the conditional goods. § 10 Withdrawal and cancellation Where the client withdraws from the contract for reasons not attributable to the seller, the seller shall have the right to demand a lump-sum payment or compensation for damages in the amount of 15% of the agreed contract price. The client shall be at liberty to prove that a lower claim is due to the seller by means of concrete accounting. In the event that the client’s acceptance is delayed, the seller shall be entitled to withdraw from the contract or to demand compensation for damages due to nonfulfilment, after setting an extension period of fourteen days. No extension period shall be necessary where the client genuinely or finally refuses acceptance or is clearly not able to pay the purchase price even within this period.
§ 10 Withdrawal and cancellation
Where the client withdraws from the contract for reasons not attributable to the seller, the seller shall have the right to demand a lump-sum payment or compensation for damages in the amount of 15% of the agreed contract price. The client shall be at liberty to prove that a lower claim is due to the seller by means of concrete accounting. In the event that the client’s acceptance is delayed, the seller shall be entitled to withdraw from the contract or to demand compensation for damages due to nonfulfilment, after setting an extension period of fourteen days. No extension period shall be necessary where the client genuinely or finally refuses acceptance or is clearly not able to pay the purchase price even within this period.
§ 11 Concluding provisions
Place of jurisdiction for any disputes arising from the business relationship between the seller and the client shall be the offices of Spectral or the client, at our discretion. Stuttgart shall be the exclusive place of jurisdiction for legal action against the seller. Mandatory statutory provisions as to 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. To the extent that the contract or these General Conditions of Delivery contain regulatory loopholes, the legally effective regulations that 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 regulatory loopholes shall apply for closing of these loopholes. The client shall not be entitled to cede his demands from the contractual relationship to a third party. This shall not apply to the extent that a monetary claim is involved. Where individual parts of these General Conditions of Delivery are legally ineffective, the effectiveness of the remaining provisions shall not be affected.
Valid from 1/4/2010