spittler 2012

General Terms and Conditions§ 1 Scope1. The General Terms and Conditions of Spittler Lichttechnik GmbH (hereinafter Spittler)apply exclusively; deviating terms and conditions of the Customer which are not explicitlyacknowledged by Spittler in particular conditions of purchase, shall not be binding for Spittlereven if these are not explicitly opposed by Spittler. The following General Terms and Conditionsshall also apply if Spittler unconditionally performs the order in the knowledge thatthe Customer‘s terms and conditions may conflict with or deviate from its own.2. The following General Terms and Conditions shall also apply to all future business relationswith the Customer even if they have not been explicitly agreed again.3. All previous versions of the General Terms and Conditions (also referred to as GeneralConditions) hereby lose their validity and are replaced by this version.4. The following General Conditions shall apply only for companies as defined by Para. 310Sub-section 1 BGB (German Civil Code).§ 2 Offer documentation/drawings/standard software, etc.1. We shall retain ownership of and copyright on illustrations, drawings, calculations,software as well as on other documents. The Customer is not entitled to make availablethe above-mentioned documents, especially drawings to third parties without the expressconsent of Spittler.2. The Customer shall have the non-exclusive right to use standard software in unchangedform with the stipulated performance characteristics on the agreed upon devices. TheCustomer may make a back-up copy of the standard software without obtaining expressagreement.§ 3 Conclusion of contract, additional agreements1. All agreements that have been made by the Customer and Spittler relating to the performanceof the Contract are documented in writing. All agreements and additional agreements– particularly those that amend or supplement these provisions (extension of Contract)– require written confirmation from the management of Spittler to be legally valid.2. Details about price, time of performance and quality shall apply only to the order volumeoriginally agreed in writing (number of items, etc.). Agreements about payment and time ofperformance with regard to extensions of Contract must be confirmed in writing.§ 4 Prices1. The agreed prices are quoted ex works or ex distribution centre, excluding freight, insuranceand transportation packaging. If the supplier has undertaken additional services such as,e.g., assembly or connection work, the purchaser shall bear all required incidental costs inaddition to the agreed contract.2. Statutory VAT is not included in the prices of Spittler, the required legal amount is shownseparately on the invoice.3. With all deliveries having an order value 750.00 Euros, Spittler shall bear all charges forpacking as well as freight until receiving station in Federal Republic of Germany providedthat the Customer does not wish a dispatch method which involves higher charges than thedispatch method chosen by Spittler.4. If there is a time period of more than 4 months between the order and the contract dateand agreed and/ or actual delivery dates, the prices from Spittler at the time of delivery orprovision apply. If the latter prices are higher than 11% of the agreed prices, the Customer isentitled to withdraw from the contract.§ 5 Terms of payment1. In the absence of any written agreement to the contrary, payments are due immediatelyafter receipt of the invoice by the Customer. A payment is not deemed to have been madeuntil Spittler can dispose freely of the amount. Spittler is entitled to offset credits against theCustomer‘s current balance.2. If several claims exist against the Customer, Spittler is free to set of these claims againstobligations.3. The Customer is only entitled to rights of retention against Spittler if these are based onthe same contractual relationship. He is only entitled to set off claims against Spittler withundisputed or legally determined claims.4. If the customer falls behinds with payments, Spittler is entitled to demand interest onarrears amounting to 8% points above the base interest rate of the Deutsche Bundesbank.Spittler reserves the right to assert claims for other damage caused by default.5. For every reminder sent out after delayed payment, the Customer is charged a flat rateof EUR 5.00.6. If the Customer fails to observe the conditions of payment, in particular, if he falls behindwith the payment of an invoice or if a significant deterioration of the Customer‘s financialcircumstances occurs which jeopardizes the claim to the payment of the purchase price,Spittler is entitled to withdraw from the Contract immediately and to demand compensationfrom the Customer. Furthermore, Spittler is entitled to perform every subsequent order onlyagainst prepayment or to demand security. All claims against the Customer shall also bepayable immediately irrespective of agreed due dates of payment.§ 6 Retention of title1. Spittler retains title of the goods until all claims resulting from an ongoing business relationshiphave been settled in full. Spittler is entitled to withdraw from the Contract and demandthe return of the goods if the Customer breaches this Contract. Taking back the goodsconstitutes withdrawal from the Contract. Seizure of the goods by Spittler always constituteswithdrawal from the Contract. After taking back the goods, Spittler is entitled to use thegoods; the proceeds of sale are used to reduce the Customer‘s debts – minus appropriateutilization costs.2. The Customer is obliged to treat the goods carefully and he is particularly obliged to insurethe goods at his own expense against fire, water and theft to the extent of the replacementcosts. If maintenance or inspection costs are required, the Customer must carry these out athis own expense in a timely manner.3. The Customer shall inform Spittler immediately if third parties obtain access to the goods,for example, in the event of seizure, or other intervention so that Spittler can file a complaintin accordance with § 771 ZPO. To the extent the third party is unable to reimburse Spittlerfor the legal costs incurred in a claim according to § 771 ZPO in this connection, the Customershall be liable for such costs.4.The Customer is entitled to resell the goods in the ordinary course of business if has notfallen into arrears with the payment of these goods in the amount of the commercial invoice(including VAT) to Spittler. The Customer already assigns claims arising from resale or anotherlegal basis (insurance, unlawful act, etc.) with regard to the retained goods by way of securityto Spittler including all ancillary rights and securities which he accrues from the resaleof the goods against his Customer or third parties, irrespective of whether the goods havebeen sold without or after processing. Spittler hereby accepts the assignment. The Customeris still authorized to collect these claims after the assignment. This shall be without prejudiceto Spittler‘s authority to collect the claims itself. However, Spittler agrees not to collect theclaims as long as the Customer fulfils his payment obligations from the collected proceeds,does not fall behind with payments and, in particular, no application for insolvency proceedingsis made or payments are suspended. If this is the case, however, Spittler can demandthat the Customer informs Spittler of the assigned claim and its debtor, provides all detailsnecessary for collection, supplies all necessary documents and notifies the debtors/thirdparties of the assignment.5. Processing or reforming of the object of purchase by Client shall always be done onSpittler’s behalf. If the object of purchase is processed with other objects not belonging toSpittler, Spittler shall acquire co ownership of the new object in the ratio of the value of theobject of purchase (final invoice amount, including VAT) to the other processed objects atthe time of the processing. Apart from this, the same shall apply for the object originatingthrough processing as for the conditional commodities.6. If the object of purchase is inseparably combined with other objects not belonging toSpittler, Spittler shall acquire co ownership of the new object in the ratio of the value of theobject of purchase (final invoice amount, including VAT) to the other processed objects at thetime of the combining. If the combining is done in such a way that Customer’s object is to beregarded as the main object, it shall be deemed agreed that Customer shall transfer ownershipto Spittler pro rata. Customer shall keep the sole property or co-property originating inthis way on Spittler’s behalf.7. The Customer also assigns to Spittler the receivables for securing claims against him whicharise against a third party due to combination of the item purchased with real property.8. Spittler is obliged to release the securities to which it is entitled at the request of theCustomer insofar as the value of the securities which is realisable for Spittler exceeds theclaims to be secured by more than 10%. Spittler is responsible for selecting the securities tobe released.9. Until Spittler has received all payments resulting from the Contract, the Customer mayneither pawn nor assign the goods by way of security nor assign claims of Spittler againsthim to third parties.10. The Customer may not agree on a prohibition of assignment with his buyers.§ 7 Delivery and delay in delivery1. The commencement of any lead time stated by Spittler shall be subject to the prior finalclarification of all technical issues.2. Observance of the time for delivery by Spittler is conditional upon the timely receipt ofall documents, necessary permits and releases, especially of plans to be provided by theCustomer, as well as fulfilment of the agreed terms of payment and other obligations by theCustomer. Unless these conditions are fulfilled on time, the time for delivery will be extendedaccordingly except where Spittler is responsible for the delay.If the Customer falls into default of acceptance or if he culpably breaches other cooperationduties, shall be entitled to demand the losses it sustains including any additional expenditures.In this case, the risk of accidental loss or of accidental degradation of the item purchasedtransfers to the Customer at the point at which the customer falls into default of acceptance.4. Partial deliveries are permissible provided that they are reasonable to the Customer.5. The Customer is not allowed to refuse acceptance because of minor defects.6. Unless otherwise agreed, Spittler reserves the right to choose the route and the means oftransport7. The term of delivery which is to be agreed separately begins on the day on which thewritten confirmation was dispatched by Spittler, however, not before all order details havebeen clarified. The delivery date is deemed to be complied with if the goods are dispatchedor – if, by way of exception, the Customer has arranged for their collection – their readinessfor dispatch has been advised by Spittler. Compliance with the delivery deadline presupposesthe punctual fulfilment of all of the contractual obligations of the Customer.8. If Spittler is unable to fulfil its delivery commitment due to reasons beyond its reasonablecontrol – e.g. interventions by the authorities, industrial disruption, strike, lock-out, delayin the delivery of important raw materials – , also in the case of suppliers of Spittler, whichSpittler was unable to prevent despite reasonable care being taken in accordance with thecircumstances of the case, the delivery term shall be extended in a reasonable measure if thedelivery or service has not become impossible.9. In the event of force majeure, the Customer and Spittler are entitled after a period ofeight weeks to declare their withdrawal from the part of the Contract that has not been fulfilled.Should delivery or services become impossible as a result of the said events, Spittler isreleased from its delivery obligation. If the delivery term is extended as a result of the aboveevents or if Spittler is released from its delivery commitment, the Customer is entitled to noclaims for damage from Spittler as a result of this.10. If the above circumstances occur for the Customer, the same legal consequences andeffects shall apply to his obligation to accept.11. If Spittler falls behind schedule, the Customer must grant an appropriate additional respitein writing. If this respite passes without result, he may withdraw from the Contract insofaras the goods have not been delivered on time. Default on performance does not occur if theCustomer fails to fulfil his obligations vis-à-vis Spittler on time and in full.12. Spittler shall be liable according to the legal conditions, insofar as the underlying contractof purchase is a transaction at a fixed date as defined by Article 286 para. 2 no. 4 BGBor Article 376 HGB (Commercial Code), if the Customer, as a consequence of a default indelivery for which Spittler is responsible, is entitled to assert that his interest in the furtherperformance of contract has discontinued.13. Spittler shall further be liable according to statutory provisions to the extent that the arrearsin delivery are based on breach of contract by malice aforethought or gross negligencefor which it is answerable. Culpability of the representatives or vicarious agents of Suppliershall be ascribed to Spittler. Insofar as the arrears in delivery are not based on a breach ofcontract by malice aforethought to be ascribed to Supplier, Spittler’s liability for damagesshall be limited to the foreseeable damages typically occurring.14. If dispatch or delivery is delayed at Customer’s request by more than one month afternotice was given of the readiness for dispatch, the Customer may be charged storage costsfor every month started, to the amount of 0.5% of the price of the supplied goods but nomore than a total of 5%. The parties to the contract are at liberty to furnish proof of higheror lower storage costs.§ 8 Shipment and passing of risk1. Dispatch shall occur at the expense of the Customer unless otherwise agreed..2. The risk of accidental loss and accidental deterioration of the goods passes with thetransfer, in the case of sales shipment with the handing over of the goods to the forwardingagent, carrier or person or body specified to carry out shipment, to the Customer.3. If shipment is delayed as a result of circumstances for which the Customer is responsible,the risk passes to the Customer from the day on which the readiness for shipment is advised358 www.spittler.com