Terms and Conditions

General Terms and Conditions of Sale and Delivery (Rev. 06/06)

§2 Conclusion of an Agreement
2.1 Our proposals and bids are revocable without restriction and shall be deemed as a mere invitation by the customer to submit a proposal or bid within the meaning of § 145 of the German Civil Code, unless they are marked as firm offers or bids. An Agreement shall be deemed as being concluded only upon our order acknowledgement submitted in writing or upon delivery of the goods ordered.

2.2 Any and all information in leaflets, advertisements etc. shall be unbinding, this being applicable to the prices as well.

2.3 Our order acknowledgement or, if it is not available, our proposal or bid shall be authoritative as to the scope of delivery and performance. In this respect, any subsidiary agreements, modifications and amendments have to be made in writing to become legally effective.

§3 Prices, Terms of Payment
3.1 All payments shall be made in EURO to our account and address exclusively.

3.2 Unless otherwise provided, our list prices and freight tariffs ruling on the date of delivery shall apply.

3.3 Unless otherwise stated or determined in the order acknowledgement, prices shall be deemed as being quoted and applicable on the basis "ex works" (EXW, Incoterms 2000). Freight charges, customs fees, additional import duties and packing costs have to be paid by the customer as additional items.

3.4 Prices do not include the legal VAT. To the extent as applicable, the legal VAT shall be invoiced as an additional item to its legal amount applicable on the date of invoicing.

3.5 If a dependency of the price on the weight of parts has been agreed, the definite price shall be calculated from the weight of the samples released.

3.6 We reserve the right to increase prices for all Agreements concluded for a term of more than 4 months according to any changes in the cost situation that may have occurred. If the increase in prices exceeds 5 % of the price agreed, the customer shall be entitled to cancel the Agreement (Right of Termination and Cancellation of the Agreement).

3.7 In the event we should conclude any General Agreements or Call Agreements (i.e. for orders for goods delivered on request), we reserve the right to adjust the prices at four weeks´ prior notice in the event of substantial price variations in purchased materials during the term of any confirmed General or Call Agreement orders for such orders which have not been executed yet  if our cost charge rises in particular due to price increases for purchased materials, due to wage increases or due to an increase in energy prices by more than 5 % in total. If such price increase exceeds 10 %, the customer shall be entitled to withdraw from the Agreement.

3.8 Unless otherwise stated or determined in the order acknowledgement, our invoices shall be payable immediately without any deduction. Any prompt payment discount shall be subject to a special arrangement in writing.

3.9 Any and all payments effected shall be offset against the costs in the first instance, against the interest in the second instance and against the earliest debts in the last instance, irrespective of any other provisions of the customer.

3.10 We will accept any cheques upon a specific previous agreement and on account of performance exclusively. Any interest amounts and fees incurred shall be at the customer's expense.

3.11 The customer shall be authorized to make any offset settlements or to claim any retention rights only if his accounts receivable are uncontested or asserted by act of law.

3.12 Any sustained non-observance of payment terms or any circumstances justifying doubts about the customer's creditworthiness shall result in an immediate maturity of all of our accounts receivable. Moreover, we shall be entitled in this particular case to demand advance payments for any deliveries still pending at that time, and we shall also be entitled to withdraw from the Agreement upon fruitless expiry of an appropriate grace period.

§4 Obligation to Make and Accept Delivery
4.1 The time of delivery agreed shall basically commence on the date when the Agreement is concluded, but not before complete receipt of any required documents and papers to be furnished by the customer, not before receipt of any agreed down payments and not before the timely receipt of materials purchased, if they have been subject to a formal agreement. Delivery dates agreed shall not be deemed as being firm, partial deliveries shall be allowed. The time of delivery shall be deemed as being observed if the item delivered has left our factory before expiry of said time of delivery, or if the customer has been advised of delivery before expiry of said time of delivery in case dispatch of the merchandise has been delayed or become impossible without our fault.

4.2 If a delivery time agreed is not observed due to our fault, the customer shall be entitled - upon expiry of an appropriate grace period agreed - to claim a compensation for delay in delivery or to cancel the Agreement or to cancel the non-observed part of the Agreement in the event the customer should be interested in receiving a partial delivery. The compensation for a delay in delivery shall be limited to the maximum amount of 5 % of the part of delivery which has not been performed in accordance with the provisions of the Agreement. A cancellation of the Agreement shall be excluded if the customer has delayed acceptance of delivery due to his fault. The customer shall be reserved the right to furnish proof of a substantial damage. Any further assertions of claims shall only be admissible pursuant to § 8 below.

4.3 Deliveries made before expiry of the time of delivery agreed, appropriate partial deliveries and reasonable and acceptable deviations of up to +/-10% from the quantities agreed shall be admissible.

4.4 Any cases of force majeure or other events beyond our responsibility which result in a complication, delay or impossibility for us to fulfil our delivery commitments, shall entitle us  even if such cases or events of force majeure occur with our suppliers without their fault - to postpone the delivery by the period for which the impairment persists plus an appropriate resumption and preparation time, or to withdraw from the Agreement in total or in part due to the portion or portions of the Agreement not performed at that time. Cases of force majeure shall mean labour conflicts such as strikes and lock-outs or any other unforeseeable and unavoidable circumstances, e.g. operating troubles or breakdowns, which prevent us from carrying out a timely delivery even if we make our best and reasonable efforts. This shall likewise be applicable if the above-mentioned impairments occur during a delay in delivery or with a sub-supplier. The customer may invite us to announce to him within a period of two weeks if we wish to withdraw from the Agreement or make a delivery within a reasonable grace period conceded. If we fail to make such announcement, the customer shall be entitled to withdraw from the part of the Agreement which has not been performed. We will inform the customer immediately if a case of force majeure has occurred. We are committed to keeping any disturbances or impairments as low as possible for the customer.

§5 Packing, Shipment, Transfer of Risk and Delay in Acceptance of Delivery
5.1 Unless otherwise agreed, we will choose the packing material and method, the shipping mode and the way of transport.

5.2 Unless otherwise agreed, our deliveries will be made ex works.

5.3 The risk shall pass on to the customer at the time when the merchandise leaves the supplier s factory even if we bear the transport costs. In the event of any delays in shipment which lie within the customer's responsibility, the risk shall already pass upon advice of delivery.

5.4 The merchandise will be insured against any risks detailed by the customer, at the customer' s expense, upon the customer' s request in writing to effect such insurance.

§6 Reservation of Title
6.1 If the customer is an entrepreneur, any merchandise sold shall remain our property until all accounts receivable from this business relationship are settled in full. In Agreements concluded with private consumers we reserve title to the item delivered until complete payment of the purchase price (merchandise subject to reservation of title).

6.2 The processing and workmanship of the merchandise subject to reservation of title is carried out by ourselves, in our capacity as the manufacturer of said merchandise, within the meaning of § 950 of the German Civil Code. Nevertheless, this involves no commitment for us. In case of any processing or workmanship, combination, compounding or mixture with foreign items by the customer, we shall become co-proprietors at the specific portion which corresponds to the invoice amount of our merchandise in relation to such other item or items at the moment in time when the processing or workmanship, combination, compounding or mixture is done. If the merchandise subject to reservation of title is compounded, combined or mixed with a principal item of the customer or any third parties, the customer shall already at this point in time assign to us his rights on such new item. If the customer combines, compounds or mixes said merchandise subject to reservation of title with a principal item of any third parties in return for payment, he shall already at this point in time assign to us his remuneration claims against any such third party or parties.

6.3 The customer shall be entitled to resell to any third parties the merchandise subject to reservation of title within the framework of a well organized business establishment. If the customer sells the merchandise on his part without receiving the full purchase price in advance on a delivery versus payment basis, he shall be committed to agree upon a reservation of title clause with his customer in accordance with the conditions stipulated in this paragraph. The customer shall already at this point in time assign to us his claims from such resale and the rights arising from said reservation of title clause, which he has concluded. Upon our request, he shall be committed to inform the acquirers about such assignment and to furnish to us any information and documents which we need to be able to assert our rights against the acquirers.

6.4 The customer shall be authorized to collect the accounts receivable from the resale in spite of an assignment only if he discharges his obligations and liabilities vis-à-vis ourselves properly. If the value of the securities furnished to us exceeds our accounts receivable by more than 20 per cent as a whole, we shall be committed to release securities of our choice upon the customer' s demand. If we claim reservation of title, this shall imply a withdrawal from the Agreement - this being subject to the validity of any other legal provisions - only if we have given our consent in writing before.

6.5 Judgment executions or any other seizures by third parties on the merchandise subject to a reservation of title have to be notified to us by the customer immediately. The customer shall be compelled to notify us immediately of any judgment executions or other seizures effected by third parties. Any intervention costs arising from such judgment execution or other seizure shall in all cases be in charge of the customer, unless they are borne by third parties.

§7 Right of Revocation and Obligation of Return
7.1 If the customer is a consumer, he may revoke the executed Agreement within two weeks (without giving any reasons) by a written notice (e.g. by a return form, a letter, an E-Mail or a fax message) or by returning the item which is the subject matter of the Agreement. The revocation and return period shall commence on the date of receipt of this instruction at the earliest. The timely dispatch of said written notice or item shall be adequate to keep the revocation or return period. The revocation or return has to be addressed to: Speidel Tank- und Behälterbau GmbH Krummenstraße 2 72131 Ofterdingen.

7.2 In case of an effective revocation or return, the performances obtained on both sides by that date have to be returned and any benefits obtained from such performances have to be issued, if required. If the customer is not in a position to return the merchandise or performances received entirely, or if he can return it only in part or in a damaged condition, he shall be committed to grant us an appropriate compensation to that extent. In case of a surrender of merchandise, this provision shall not apply if the deterioration of the merchandise is exclusively due to its inspection and testing - as it could have been done in a retail shop, for instance. Apart from that, the consumer shall be entitled to avoid his duty to grant such compensation - by not starting to use the merchandise as a proprietor and by avoiding anything that deteriorates its value.

7.3 If any merchandise delivered is returned the total order value of which amounts up to 40 Euro, the consumer shall be committed to bear the costs of the return if the merchandise delivered is identical to the merchandise ordered. Otherwise, the return shall be free of charge for the consumer.

§8 Warranty
8.1 We grant warranty on material damages and legal imperfections in title on the item delivered pursuant to the provisions outlined below.

8.2 If we submit any samples to the customer for inspection and manufacturing approval, such manufacturing approval has to be made in writing. In this case, the samples released by the customer shall be authoritative for the quality and workmanship of the products. The reference made to technical standards shall be deemed as being given in support of the technical specifications and shall not be interpreted or construed as a warranty for the condition of the merchandise.

8.3 Any statements made by ourselves shall be deemed as a warranty commitment for the condition of the merchandise.

8.4 If the customer is an entrepreneur, he shall be committed to inspect the merchandise supplied immediately upon receipt in order to detect any obvious faults or defects. Any such obvious faults or defects must be notified and claimed within 5 days from delivery. In case of any concealed fault or defect, the complaint must be made immediately upon discovery of such fault or defect. If the obligation to inspect the merchandise and to make any complaint on the conditions stipulated in this paragraph is not observed, the merchandise will be deemed as approved and accepted. The obligations for the inspection of merchandise and notice of defects according to the German Commercial Code which are to be complied with by traders and business people shall remain unaffected thereby.

8.5 Unless otherwise agreed, any and all claims for faults or defects shall lapse within the statutory periods of limitation as provided by law. In derogation from this general provision, any claims asserted by an entrepreneur from a delivery of movable items shall lapse after a period of 12 months from the date of transfer of the risk.

8.6 Unless otherwise stipulated in this § 8, our warranty on material damages and legal imperfections in title shall be limited to a supplementary performance. We shall be entitled to opt for either a repair or a replacement delivery within our obligation to grant such supplementary performance. If we fail to meet our obligation within an appropriate period of time or if a supplementary performance is unsuccessful despite a repeated attempt, the customer shall be entitled either to reduce the purchase price or to withdraw from the Agreement. A cancellation of the Agreement shall be excluded if a fault or defect discovered is insignificant. Moreover, a cancellation of the entire Agreement shall only be admissible - if we have made faultless partial deliveries  if the customer s interest in the partial deliveries carried out has demonstrably ceased to exist.

8.7 The customer shall be committed to return to us the faulty or defective merchandise at our risk in view of a repair work or a replacement delivery, unless it is impossible to return such faulty or defective good to us due to the nature of the delivery. We will bear the transport costs incurred for the return of the merchandise in view of a supplementary performance, but only from the specific place to which the purchased merchandise was delivered as determined with the customer, and only to the maximum amount of the purchase price. Accordingly, we will bear the risk of an accidental loss or deterioration of the defective merchandise from this specific place exclusively. If the customer is an entrepreneur, he shall bear the risk of such accidental loss or deterioration of the merchandise during return transport. Any delivery items replaced or parts of delivery items replaced shall become our property or remain our property.

8.8 The customer shall be compelled to concede to us the time and opportunity required to accomplish the repair work or replacement delivery. Only in urgent cases of an endangerment of the operational and employees' safety, a defence against disproportionate big damages or a delay in the correction of any faults or defects by our fault, the customer shall be entitled - after a previous notice given to us - to remedy to the fault or defect either by himself or by the intervention of third parties and to demand from us a reimbursement of the costs he has incurred for such remedy or correction work.

8.9 The warranty commitment shall lapse whenever the customer has modified the merchandise supplied and the fault or defect discovered is obviously due to such modification. We also deny any liability for damages that have occurred as a result of an improper use or willful destruction of the merchandise delivered.

8.10 Normal wear and tear shall not give rise to any warranty claims.

8.11 Any claims under a right of recourse according to §§ 478, 479 of the German Civil Code shall only be applicable if the assertion of such claims by the consumer have been justified and only to the extent as provided by law, but shall definitely not be applicable to any gestures or arrangements of goodwill which have not been agreed with us, and they shall be subject to the observation of his own duties by the party or person entitled to assert such claim under a right of recourse, and in particular to the observation of any obligations to give notice of defects.

§9 Liability
9.1 Our liability - for any legal grounds whatsoever - shall be limited ...
a) ... to the extent as we, our executive employees or our vicarious agents are responsible for a wrongful intent or a gross negligence.
b) ... to a culpably caused violation of a person' s life, body or health.
c) ... to a culpably caused violation of contractual obligations.
d) ... to any faults or defects which we have fraudulently concealed or the absence of which we have guaranteed.
e) ... to the liability as provided for in the German Law on Product Liability, for any personal damages or material damages in privately used items or objects. We will not accept any other claims for compensatory damages.

9.2 In the event of a culpably caused violation of substantial contractual damages, our liability shall be limited to reasonably foreseeable damage as typically provided for in this Agreement. Such reasonably foreseeable damage as typically provided for in this Agreement has to be estimated at the amount of the contractual value of the item or performance concerned.

§10 Place of Performance, Place of Jurisdiction, Applicable Law, Miscellaneous
10.1 The place of performance for any and all claims arising from the business relationship shall be the city of Ofterdingen, Germany, if the customer is an entrepreneur.

10.2 The place of performance for any and all claims arising out of the business relationship including those related to cheques, shall be the regional court competent in the district of the domicile of our company, if the customer is an entrepreneur. We shall likewise be entitled to file an action before a regional court responsible for the customer' s corporate domicile.

10.3 These General Terms and Conditions of Sale and Delivery and the entire legal relationships between us and a customer shall be subject to the Law of the Federal Republic of Germany exclusively. The application of the UN Convention on contracts for the International Sale of Goods (CISG) and of the International Private Law (IPR) is excluded.

10.4 In the event any individual provisions of these General Terms and Conditions of Sale and Delivery should be ineffective or become ineffective, the validity of the remaining provisions shall remain unaffected thereby. Any such totally or partially ineffective provision shall be replaced with such other effective provision which comes nearest to the economic purpose and success of the replaced ineffective provision.

11. Any amendments to these General Terms and Conditions of Sale and Delivery must be made in writing. Likewise, any waiver of the written form requirement shall be effective upon a written agreement exclusively.