Delivery and Delivery Times, Packaging, Transfer of Risk
Our written confirmation of order is decisive for the type and scope of the delivery. We are entitled to make delivery by instalments insofar as this is reasonable for the Buyer.
Delivery times are only approximate times if they are not expressly defined as binding in writing. The delivery time shall begin with the sending of our confirmation of order, but shall not begin before all questions relevant for the execution of the agreement, involving actions to be carried out by the Buyer, have been finally clarified. In particular, the delivery time shall not begin before we have received all information required for the delivery from the Buyer or its representative, or before the Buyer proves that, insofar as necessary, it has opened a letter of credit (Akkreditiv) or rendered an advance payment or security.
The delivery time is considered to be met if the object to be delivered has left our works, or we have notified our readiness to deliver, before expiry of the deadline.
All cases of force majeure, strikes, blockage, insufficient supplies of materials, raw materials or energy, a lack of transport possibilities or other similar events or causes outside the scope of our influence shall release us from our obligations to fulfil this agreement for the duration and scope of such hindrances. This also applies if such circumstances arise among our suppliers. The above mentioned circumstances shall not be our responsibility even if they arise when we are already in delay with delivery. We shall inform the Buyer of the beginning and end of such hindrances as soon as possible in writing.
If it has been agreed that the delivery of a total amount is to be effected in accordance with several call-forward requests, the Buyer is to distribute the individual deliveries evenly over the calendar year. If more than 10% of the annual delivery is to be called forward in one calendar month, this requires our prior written consent.
We determine the type of packaging and dispatch.
Risk passes to the Buyer at the latest upon the object of delivery being dispatched, even if we have assumed responsibility for additional services such as loading, transport or unloading. If delivery is delayed as a result of circumstances which are the Buyer’s responsibility, the risk to be obliged to pay the purchase price even though the purchased good was destroyed or cannot be delivered for other reasons passes to the Buyer on the day on which it is notified of our readiness to deliver. At the request of the Buyer we will insure the respective delivery against theft, breakage, transport, fire and water damage at the Buyer’s expense.
If shipment is delayed upon request of the buyer, he has to bear the costs of storage starting with our notice that we are in a position to deliver. If the storage takes place in our premises, we will charge at least 0.5% of the invoice per month.
The Buyer is to assert complaints about transport delays, deficiency notifications or transport damage against our forwarder and freight driver, and to notify us of this fact without delay.
We are not obliged to supply third parties at the request of the Buyer.
Any complaints with respect to visible defects must be lodged with SPX in writing within 7 working days of receipt of the goods, any complaints with respect to hidden defects must be lodged with SPX in writing immediately after discovery.
Notwithstanding clause V we only accept returns after prior agreement. An administrative fee of 15% of the agreed sales price will be levied.
Warranty, Duties of the Buyer in the event of a Defect Notification by its Customers, Compensation of Damages, Liability
Warranty claims of the Buyer depend on it properly complying with its statutory duties of examination and notification. In the event of an obvious defectiveness or incompleteness of the goods, we are to be notified thereof in writing within two weeks of the delivery arriving at its destination, including a precise description of the defect and the order or invoice number. At our request the documents, samples and/or the defective goods included in the delivery are to be returned to us. Claims of the Buyer on account of a defectiveness or incompleteness of the delivery are excluded if it fails to comply with this obligation.
Should the goods be defective, we can elect to remove the defects or to provide a defect-free replacement. Only if this repeatedly fails or is unreasonable and the defect is not only insubstantial is the Buyer entitled to rescission or reduction of the purchase price in accordance with common law and statutory provisions. The Buyer is entitled to damage claims in accordance with clause V.7. Irrespective of clause III.6. the Buyer is only entitled to retain payments due for defective products to the extent reasonable in the light of the respective defect. In respect of any replacement deliveries and rectification work, a warranty period of 3 months is granted from the time of delivery or rectification which, however, runs at least until the expiry of the warranty period for our original performance (cf. clause V.9).
The Buyer is to inform us without delay of any defect notification of its customers in respect of our objects of delivery. If the Buyer does not comply with this obligation, it shall have no claims against us due to defective deliveries. Furthermore, the Buyer is to secure evidence in a suitable form and, at our request, give us the opportunity to examine this evidence.
Any advertising statements of the Buyer vis-à-vis its customers or in its advertising materials which have not been authorised by us in advance will not establish warranty claims against us.
There are no warranty claims if deviations from the agreed compo¬sition/specifications are only insubstantial and/or if the impairment to use is merely insubstantial.
If the supplied goods infringe IP rights of third parties and if we have caused this infringement intentionally or negligently, we can, in our own discretion, (i) get a sufficient licence at our own cost for the contractually agreed upon use and transfer it to the buyer, or (ii) modify the supplied goods so that they do not infringe IP rights, or (iii) exchange the supplied goods against others as far as the contractually agreed upon use is not limited. If this is not possible for us or if the connected costs are unreasonable or if this is unacceptable for the Buyer, the Buyer shall have the statutory claims and rights. Damage claims are governed by clause V.7.
We are liable without restriction under the Consumer Protection Act 1987, in the event of an express assumption of a warranty or a procurement risk, or in the event of wilful or grossly negligent violations of a duty. We are also liable without restriction in the event of wilful or negligent injury to life, physical well-being or health. In the event of our negligence resulting in property or pecuniary damage, we shall only be liable for a breach of essential contractual duties and our liability shall be limited to the typical contractual damage foreseeable at the time of contractual conclusion.
Claims to compensation for all kinds of damage arising from improper treatment, modifications, assembly and/or operation of the delivery object, or from incorrect advice or instructions of the Buyer, are excluded unless we are responsible for such damage. The same applies to damages that are caused by the normal wear and tear of parts subject to wear and tear and consumable materials. In addition, the Buyer bears the full responsibility for the use of any design, trademark or trading name appearing on the goods at its request.
If the Buyer is entitled to demand damages instead of performance or to withdraw from the agreement, at our request it must declare within a reasonable period whether and, if so, how it intends to exercise such rights. If it does not make such declaration in due time or if it requests performance, it is only entitled to exercise these rights after the fruitless expiry of a further period of grace.
If the buyer wrongfully notifies a defect we are entitled to charge him with the connected, reasonable costs.
Defect claims shall become time-barred after 12 months from the transfer of risk. The same applies to claims for any lack in title. In the event of wilful breaches of a duty, claims arising from tortious acts, the absence of a warranted quality or the assumption of procurement risks or personal injury, the statutory time periods apply. If the perfor¬mance is provided for a construction and it has caused its defective¬ness, the warranty period amounts to 5 years.
A further-reaching liability for damages than that provided in the paragraphs of this clause V. is excluded - without regard to the legal nature of the asserted claim.
Pursuant to the Contracts (Rights of Third Parties) Act 1999, the aforementioned restrictions of liability also apply, in terms of the reason and amount, in favour of our statutory representatives, employees and other vicarious agents .
Irrespective of the provisions above we are in no event liable for indirect or consequential damages, for instance loss of profits.