General Terms and Conditions

§1 General

1. The following terms and conditions of sale and delivery of Spelsberg Gebäudeautomation GmbH (hereinafter referred to as: spega) apply to all current and – vis-à-vis businessmen regardless of a separate indication in the individual case – also to all future legal transactions unless spega have expressly acknowledged any deviations in writing. Collaterals and subsequent modifications are binding for spega only after written confirmation by spega. The employees of spega are not authorised to make oral agreements which deviate from these General Terms and Conditions.
2. Any conditions of purchase of the ordering party shall be binding only after the express agreement of spega in writing.

§2 Offers and scope of supply

1. 1.The offers of spega shall always be subject to change and not binding. The contract comes into force only after the written acknowledgement of order by spega. spega have the right to accept an offer from the ordering party within a period of three weeks.
2. The documents which belong to spega’s offers such as figures, drawings, weight and measurement specifications only identify the subject-matter of the contract and do not constitute an assurance of the properties and features of the contractual item. They contain only approximate information within the scope of the customary commercial tolerance values.
3. spega retain the right of ownership and copyright with regard to drawings and other documents. These drawings and documents may not be made available to third parties and are to be returned forthwith to spega postage paid at spega’s request or in the event of the order not being placed.
4. For the scope of supply, the written order acknowledgement of spega is decisive. Protective devices shall be part of the delivery if and insofar as this has been agreed upon in writing.
5. spega reserve the right to make modifications to the delivery item if this does not impair the usability of the items for the purpose agreed upon, and the agreed cost effectiveness is not modified to the customer’s detriment. Technical improvements are always permitted.

§3 Prices and payments

1. All prices are net prices. Discounts shall not be granted unless otherwise agreed upon. The prices shall apply “ex works” (spega’s sales office), and exclude packaging and insurance. Bank, discount and debiting charges shall not be borne by spega.
2. The prices shall be calculated on the basis of the prices of materials and wages valid at the time of signing the contract. Should these increase by the time of delivery, spega shall be entitled to invoice correspondingly higher prices as deemed appropriate. This shall not be affected by downpayments and advance payments made by the ordering party.
3. In the absence of any agreement to the contrary, payment shall be made in cash without discount ex appointed payment office of spega, and at the time of invoicing regardless of the time of delivery of the goods (“cash upon invoice”).
4. In the event of payment not being effected on time, spega have the right
   a) to demand annual interest in the amount of 5% over the basic interest rate according to §1 of    the discount transfer law of 9.6.1998 (Official Federal Gazette I S1242),
   b) to immediately assert all claims vis-à-vis the ordering party arising from this or other business transactions, also in cases where individual instalments are not yet due,
   c) to retain supplies or other services from this or other transactions until complete fulfilment of all claims which spega is entitled to from this or other orders by the ordering party,
   d) to request appropriate security.
   spega reserve the right to assert any damage that goes beyond the aforementioned.
5. The assertion of rights of retention or set-offs as well as the plea of non-performance or poor performance are not possible vis-à-vis spega’s claims unless the counterclaims are legally ascertained, indisputable or acknowledged by spega.
6. In the event of cancellation of orders, the agreed price shall be due and payable with immediate effect. However, the costs which spega have saved for the partial work still to be performed until the completion of the ordered parts must be deducted. The remuneration amounts to 30% of the order volume, unless the contracting party proves a smaller damage. spega reserve the right to provide proof of a greater damage.

§4 Delivery period and delay in acceptance

1. spega shall do their utmost to meet all delivery dates and deadlines; the delivery dates specified by spega can, however, only be intended for general guidance due to lack of explicit assurance.  Delivery shall, however, take place at the latest within 3 weeks of the specified date subject to timely self-delivery.
2. Deadlines begin with the sending of the order acknowledgement, however, not before provision of the final documents and/or approvals to be procured by the ordering party, the clarification of all technical issues as well as before the receipt of an agreed downpayment. Delivery dates shall be deemed observed if the delivery item has left the point of dispatch at spega by the time they expire or notice of readiness for dispatch has been submitted.
3. Delivery and performance dates shall be extended appropriately in case of measures due to labour disputes, in particular in the case of strikes or lock-outs and in the event of occurrence of unforeseeable obstacles if these result in delays in the rendering of services which are not caused by spega or their suppliers or sub-suppliers.
4. In the event of default on the part of spega, their obligation to pay damages in the case of slight negligence is restricted to foreseeable damage.  Further damages claims apply only if the delay is caused by wilfulness or gross negligence.
5. In case the ordering party falls into arrears with the acceptance of the service, spega without prejudice to further statutory claims are authorised to charge ½% of the invoiced value per month for the costs of storage, however, a maximum of 5% unless the ordering party proves a smaller damage. spega reserve the right to assert a greater damage.

§5 Transfer of risk

§6 Partial deliveries

§7 Reservation of ownership

spega retain the copyright to the software. After complete payment, the ordering party is granted the non-exclusive right of use to the supplied software. Here, the separate license conditions for the relevant software shall apply. 

§ 8 Copyright, software license, industrial rights

spega retain the copyright to the software. After complete payment, the ordering party is granted the non-exclusive right of use to the supplied software. Here, the separate license conditions for the relevant software shall apply. 

§ 9 Warranty, damages and claims for compensation of expenses

1. If the customer is an entrepreneur, then he must duly fulfil his obligation to examine and give notice of defects according to §377 of the German Commercial Code. Notice of defects must be submitted in writing within 8 working days after receipt of the delivery item at the place of destination or, insofar as these could not be detected during a standard examination, within 8 working days after the detection of such defects. If the customer is a consumer, the obvious defects must be notified within two weeks following hand-over of the goods, non-obvious defects within two months following detection of the defects.
2. Insofar as a service rendered on the part of spega shows a defect, the cause of which was already known at the time of transfer of risk, the customer has the right to post-performance through rectification or post-delivery depending on spega’s choice. The expenses required here shall be borne by spega only if they are not increased because a delivery item was transferred subsequently to a location other than the spega head office, unless this transfer is in accordance with the intended purpose. Replaced goods shall become the property of spega and must be returned to spega.
3. In case of failure to subsequently perform the contractual obligations, the customer has the right, notwithstanding any claims for damages or compensation of expenses according to the present General Terms and Conditions, to choose between either reducing the remuneration or, insofar as the violation of the obligation on the part of spega is considerable, rescinding the contract.
4. Defects in a part of the goods delivered do not entitle the customer to object to the entire delivery, unless the partial deliver is not of any interest to the customer.
5. Warranty claims become statute-barred in 12 months, in business transactions with a consumer in 24 months according to § 13 of the German Civil Code. This does not apply insofar as these claims are based on wilful behaviour attributable to spega or if statutory regulations make longer deadlines mandatory. For replacement parts or rectification work, spega shall be liable until the expiry of the period of limitation applicable to the original delivery item.
6. In case of notices of defect, payments of the customer can be retained only to an extent which is appropriate to the defects that have occurred if the claims of the customer are indisputable or legally ascertained. If the notice of defect is unjustified, spega have the right to demand compensation from the customer for the expenses incurred by spega.
7. spega are liable according to the statutory provisions insofar as the customer asserts claims for damages or for compensation of expenses which are caused by wilfulness or gross negligence. Furthermore, spega are liable according to statutory provisions if spega culpably violate an important contractual obligation as well as in cases of injury to life, body or health and insofar as guarantees have been assumed.
8. Damages for the violation of an important contractual obligation are restricted to foreseeable, typical forms of damage insofar as not caused by wilfulness or gross negligence and as long as there is no liability for the injury to life, body or health or due to guarantees assumed. Hence, these claims for damages become statute-barred in 12 months, and in the case of business transactions with a consumer, in 24 months.
9. In all other cases, liability for damages is excluded without taking into account the legal nature of the asserted claim. Thus spega are, in particular, not liable for damage which has not occurred on the delivery item itself, e.g. loss of profit or other damage to the property of the customer or of his buyer.
10. The obligatory provisions of the product liability act shall remain unaffected.
11. Claims for compensation of expenses on the part of the customer are limited to the amount of interest which the customer has in the performance of the contractual obligations.
12. Insofar as the liability of spega is excluded or limited, this also applies to personal liability of the employees, representatives and agents.

§ 10 Impossibility

§ 11 Industrial rights and copyright

1. In the event that a third party raises justified claims against the ordering party due to the violation of an industrial right or copyright (hereinafter referred to as : industrial right) caused by products supplied by spega and contractually used, spega shall be liable vis-à-vis the ordering party as follows:
   a) spega shall, of their own choice, either bring about a right of use for the product, modify the product in such a way that the industrial right is not violated or replace the product. If spega are unable to do so at appropriate conditions, they must take back the product and reimburse the purchase price.
   b) The aforementioned obligations of spega only exist if the ordering party notifies spega forth-with in writing about claims asserted by the third party, does not recognise a violation and if spega reserve the right to initiate any defensive measures and conciliation negotiations. If the ordering party stops using the product for reasons of mitigation of damage or other important reasons, the ordering party is obliged to point out to third parties that stopping the use of the product does not imply a recognition of violation of industrial rights.
2. Claims of the ordering party are excluded insofar as the ordering party has to account for the violation of the industrial rights.
3. Claims of the ordering party are furthermore excluded insofar as the violation of industrial rights has been caused by special specifications on the part of the ordering party, by an application which could not be foreseen by spega or because of the fact that the product was modified by the ordering party or used together with products not supplied by spega.
4. All further claims against spega are excluded. However, this does not affect § 12 nor the right of the ordering party to terminate the contract.

§ 12 Liability

1. In all cases of violation of contractual or pre-contractual as well as statutory obligations, spega are liable only where such violation is caused by wilfulness or gross negligence. A product liability applies only if this is made mandatory through statutory regulations. The liability for damage to persons is not affected.
2. Insofar as spega violate a main obligation or an essential contractual obligation due to negligence, spega’s  compensation obligation shall be restricted to contractually typical, foreseeable forms of damage.

§ 13 Final provisions

1. Place of performance is Moers; exclusive venue for all legal disputes arising from this legal relationship is Moers. spega, however, have the right to take legal action against the contracting parties at their general venue.
2. The contractual relationship including the delivery conditions shall be judged exclusively according to German law, with the exclusion of the standardised UN Convention of Contracts for the International Sale of Goods, CISG, even if the ordering party has its head office abroad or if the transaction in question is an export transaction.
3. Should individual parts of the afore-described provisions be ineffective, this shall not affect the validity of the remaining delivery conditions. The contracting parties shall undertake to replace an ineffective provision through an effective version which corresponds to its economic purpose.