GTC - furniture for schools and institutions
Individually agreed conditions within a contract shall be given the priority over the following General Terms of Business.
I. Scope of Application
The General Terms and Conditions of Business (AGB) apply for all mutual claims from contracts with Sponeta GmbH on delivery and performance of goods in its issue currently applicable at the time of the respective contract conclusion and are fully accepted by the contractual parties as part of the contract indicated by their signatures. Unless it has not been expressly agreed, the other contractual partner’s own terms of business do not apply.
II. Quotation and Conclusion of Contract
All offers submitted by the Sponeta GmbH are not binding. This especially applies for prices, pictures and leaflets. We are not liable for misprints in price lists and leaflets. The Sponeta GmbH is always trying to keep its offer at the latest state of the art. That is the reason why it reserves the right to change details and designs.
A contract with the Sponeta GmbH shall only be considered as concluded when the orderer accepts the offer without reservation, the written order confirmation has been received or the execution of the service has begun. If the Sponeta GmbH issues a written order confirmation, it will be significant for content and scope unless otherwise expressly agreed.
III. Prices and Payment Conditions
If a new price list is issued, all prior offers will become null and void.
The Sponeta GmbH’s prices are ex works excluding packaging, postage, and insurance. These prices will be billed separately if nothing else has been agreed in the order confirmation. The statutory value added tax shall not be included. Sponeta GmbH will separately list the legal value of the VAT in the invoice. If not agreed otherwise, all invoices shall be payable immediately and strictly net. A payment shall be considered effected when Sponeta GmbH has the amount at their disposal. The means of payment, i.e. cheque or bill, need a contractual agreement that expenses and costs, as well as the risk for timely presentation and raising a protest, shall be at the orderer’s charge. In the case of payment by cheque, payment shall only be considered effected when the cheque is cashed. If the period of payment is exceeded, interest for delay of 8 % above the respective base interest rate of the Deutsche Bundesbank of the invoice amount has to be paid additionally. In case of delayed payment or the claim being at risk by impairment of the client's credit standing, Sponeta GmbH will be entitled to accelerate payment of all the receivables or to claim the provision of securities. Sponeta GmbH is entitled to withhold pending deliveries until the full payment or the provision of securities has arrived. A deterioration of the client's creditworthiness is considered especially in case of cancellation of the commercial credit insurance taken out by Sponeta GmbH, or if the insurance will not supply sufficient coverage for the client.
IV. Time of delivery and performance
Delivery dates or periods which have not been explicitly agreed upon are only non-binding information. The delivery times specified by Sponeta GmbH will only start when the technical details have been clarified. If the orderer subsequently changes requests or provides collaboration actions too late, the period for providing the performance shall be extended reasonably. The delivery times stated by the company Sponeta GmbH refer to the date when the goods shall be shipped. The deadlines shall be regarded as kept when the goods leave the factory at this date or the orderer is informed about readiness to supply. At any time, Sponeta GmbH is entitled to deliver partial deliveries and partial services, as long as this is reasonable for the orderer. Should the orderer be in default of acceptance, Sponeta GmbH shall be entitled to demand compensation for resulting damage and additional expenditures. It is the same when the orderer culpably failed to meet his obligation to collaborate. In the event of delayed acceptance of delivery or the debtor’s delay, the risk of accidental damage and deterioration shall pass to the orderer. In this case, the Sponeta GmbH shall be entitled to demand the compensation for the resulted damage including additional expenditures.
V. Passing of risk – Shipment / Packaging
Loading and shipping shall be uninsured and at the orderer’s risk. For delivery (at kerbside), Sponeta GmbH selects the way of transportation most favourable for the purchases at their own discretion and experience (without engagement). The orderer’s desires and interests shall be considered; arising additional costs – also in case of agreed free delivery – are to be borne by the orderer. Sponeta GmbH does not take back transport and other packaging in accordance with the packaging regulations. The orderer is responsible for the disposal of the packaging at his own expense. If the shipment is delayed at the orderer’s request or due to his fault (circumstances which the orderer is responsible for), Sponeta GmbH will store the goods at the orderer’s cost and risk. In this case, the notice of readiness for dispatch is the equivalent of shipment. If the orderer intentionally or recklessly remains behind schedule with taking the object of purchase for more than 14 days after the receipt of the notice of readiness for dispatch, Sponeta GmbH shall be entitled, after allowing an additional 14 day grace period, to withdraw from the contract or to demand compensation because of non-fulfilment. Setting of a grace period will not be required when the orderer refuses the acceptance seriously and finally or obviously is not able to pay the purchase price within this period.
VI. Cancellation fees
If the orderer withdraws from a placed order without justification, Sponeta GmbH shall be able, without prejudice to the possibility to claim for a higher actual damage, to demand 10 % of the purchase price for the expenses arisen from order processing and for the loss of profits.
VII. Warranties and damages
The orderer is obligated to check the delivered goods immediately after receipt and to immediately report in writing existing defects to Sponeta GmbH, by the second day after the delivery day at the latest (according to § 377 HGB Untersuchungs- und Rügepflicht [German Commercial Code, Duty of examination and notice of defect]). Defects which are reported late, i.e. contrary to the before mentioned obligation, will be excluded from the warranty Notifications of defects shall only be accepted as such ones, when they have been reported in writing. Notifications of defects which are asserted to sales representatives or other third parties, shall not represent duly and timely notifications. The return of the goods to the Sponeta GmbH necessary due to a defect can only be carried out with a prior agreement. If the goods are returned without Sponeta GmbH’s prior agreement, it does not have to accept the delivery. In this case, the orderer has to pay for the costs of the return delivery. In case remedy or replacement is required due to a justified notification of defect, the provisions of the delivery time shall apply accordingly. Minor defects, which impair neither the value nor the usability of the product significantly, are excluded from the warranty. This is the same for defects which are caused by improper usage or non-observance of the installation instructions. If a defect has been detected and has been notified by an effective notification of defect, the purchaser shall have the following rights:
In case of defectiveness, the orderer is entitled to require subsequent performance from Sponeta GmbH at first.
If the subsequent performance fails, Sponeta GmbH furthermore will be entitled to perform two further subsequent performances, on their own choice.
Only after the third subsequent performance has been failed, the orderer will be entitled to withdraw from the contract or to reduce the purchase price.
The orderer can only demand compensation or replacement of expenses for unsuccessful efforts in cases of gross negligence or deliberate breach of duty for the delivery of faultless goods. In each case, the purchaser has to proof that the defect has already existed at delivery. If the orderer or a third party improperly performs any touch ups, all warranty claims will expire.
If Sponeta GmbH's performance needs an acceptance procedure, the orderer shall be obligated to do this. Smaller defects which do not impair the suitability of the product for the contractually specified purpose, do not entitle the orderer to refuse the acceptance, without prejudice to his rights to demand the elimination of these defects within a reasonable period of time. If the orderer refuses the acceptance due to such defects, the acceptance will nevertheless be considered as carried out.
IX. Liability for dereliction of duty - incidentally
The Sponeta GmbH shall not be liable for derelictions of duty that result from performances according to drawings or other specifications approved by the orderer.
Without prejudice to the provisions on the warranty, as well as other special regulations made in these provisions, the following shall be applicable when the Sponeta GmbH is derelict in its duty.
The orderer has to grant a reasonable period for subsequent performance to the Sponeta GmbH to enable them to clear the dereliction of duty, which shall not be less than 14 days.
Only after the time for subsequent performance has expired (and three subsequent performance trials), the orderer is allowed to withdraw from the contract and/or demand compensation.
Only in cases of gross negligence or deliberate breach of duty, the orderer is entitled to claim compensation by the Sponeta GmbH. Compensation instead of performance (in case of non-fulfilment § 280 §§ 3 in connection with § 281 BGB (German Civil Code)) is restricted to the negative interest.
Compensation due to non-delivery of owed performance (§ 282 BGB (German Civil Code) is limited to the amount of the purchase price.
Compensation instead of performance in case of exclusion of the obligation to perform (impossibility) is excluded.
If the orderer is alone or mostly responsible for the circumstances which would entitle him to withdraw, or if the circumstances which would entitle him to withdraw, occur during the default in taking delivery by the orderer, the right to terminate the contract will be excluded.
X. Reservation of Proprietary Right
Each good delivered by Sponeta GmbH remains its property until the purchase price is completely paid or all requirements resulting from the business relation are fulfilled (extended reservation of proprietary rights). In case of machining and processing of the goods which are subject to reservation of title, the contractor will be entitled to own the (co)property in the subject which is created by this process in the value of the goods subject to reservation before the machining or processing procedure.
Taking possession, however natured, of the goods being under the reservation of proprietary rights by the orderer, is only allowed within the scope of proper business dealings. The goods may never be assigned to third parties to secure them in the course of proper business dealings. If the goods are sold within proper business dealings, the paid purchase price replaces the goods. Already now, the orderer assigns all receivables from a possible sale to the Sponeta GmbH. With consideration to the extended reservation of proprietary rights (advanced assignment of the respective purchase price demand), subrogation to third parties, especially to a lending institution, is contrary to the contract and therefore, impermissible. Sponeta GmbH is always entitled to check the orderer’s sales records and to inform his sub-purchaser about the subrogation. The subrogation is made for the amount the Sponeta GmbH had invoiced to the orderer for the resold goods subject to retention of title. In the event of the attachment of the goods at the orderer’s site, the orderer has to inform Sponeta GmbH immediately by sending a copy of the legal enforcement record and an affidavit about this that the attached goods are those which have been delivered by Sponeta GmbH and are goods being under the reservation of proprietary right. Raising of Sponeta GmbH’s right from the reservation of proprietary right does not exempt the orderer from his contractual obligations. The value of the goods at the date of the return is only counted against Sponeta GmbH’s existing claim against the orderer.
XI. Production to specifications
All goods which are not listed in the Sponeta GmbH’s catalogue are special designs. The additional expense has to be paid. A binding pricing will only be offered with the written order confirmation issued by the Sponeta GmbH and with the reservation that the order details which the order confirmation is based on will be kept unchanged. Product changes carried out on the orderer’s special request are invoiced to the orderer after the order confirmation has been confirmed. If the Sponeta GmbH produces a product according to samples, models, drawings or other specifications provided by the orderer, the orderer shall ensure that third parties’ protective rights will not be infringed by the manufacture and sale of the products. All damages, which raise to the Sponeta GmbH by claims for such protective rights, have to be paid by the orderer.
XII. Liability for delict
Claims for compensation from delict are excluded, unless damage has been caused intentionally or recklessly. This also applies for actions carried out by the Sponeta GmbH’s vicarious agents.
XIII. Place of performance, place of jurisdiction, applicable law
Place of performance and place of jurisdiction for the deliveries and payments (including actions on cheques and bills), as well as all disputes arising between Sponeta GmbH and the orderer from the contract concluded between Sponeta GmbH and the orderer, is the place of our headquarters (99994 Schlotheim/Thuringia). However, the Sponeta GmbH shall also be entitled to institute legal proceedings against the contractual party at its registered residence and /or office. The transfer of claims which the contractual party is entitled to from the business relation with the Sponeta GmbH is excluded.
The relationships between the contracting parties shall be regulated exclusively in accordance with the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Moveable Goods as well as the Law on the Conclusion of International Sales Contracts Regarding Moveable Goods [Gesetz über den Abschluss von internationalen Kaufverträgen über bewegliche Sachen] shall be excluded. The delegation of the contractual partner’s rights and obligations from the contract concluded with the Sponeta GmbH need Sponeta GmbH's written agreement (prior permission) to be effective. If the provisions of this contract or of a later added provision should not be legally valid or not practicable or later loose their legal effect or their practicability, the validity of the remaining provisions of the contract is not affected. A reasonable regulation shall apply instead of the ineffective or impracticable provisions, which is closest to that what the contractual parties wanted and would have wanted according to the sense and purpose of the contract, so far as they had considered the point upon completion of the contract or with later inclusion of a provision. This also applies when the ineffectiveness of a provision is based on a measure of performance or time (deadline or date) specified in the contract; then, a legally permissible measure will be seen as agreed which is the most possible near measure of performance or time (deadline or date).
Schlotheim, January 2015