Standard Terms and Conditions of Sale

1.          General Terms

1.1    This writing constitutes the terms under which SPIETH Gymnastics GmbH agrees to sell the commodities and/or services to customers who place orders for such commodities. Unless given the explicit consent, this writing is not an acceptance of any offer made by the customer, and SPIETH hereby objects to any additional or different terms which may be contained in any of the customers purchase orders, acknowledgement or other forms, or in any communication heretofore or hereafter received from the customer.

1.2    Verbal agreements prior to or at conclusion of the contract are subject to an explicit conformation in writing on our part. Order confirmations deem given after our explicit conformation in writing or delivery of the commodities ordered.

1.3    In case of any individually negotiated terms with the customer, those terms supersede and replace the standards terms and conditions of this writing, provided that such terms contradict the terms of this writing.

 

2.      Prices and Payment Terms

2.1    Prices and product design are subject to change at any time without notice. Alteration of prices due to changes of  underlying conditions for cost calculations, including but not limited to production costs, labor costs, as well as increased costs due to inflation are subject to change. This applies to potential errors on our parts as well. The prices reflect SPIETH‘s normal charges based on prices valid at the time of delivery ex works, excluding freight charges, customs duty or any other additional charges, as well as packaging. Additional VAT rate applies accordingly. (Incoterms Edition 2010)

          For spare part deliveries and returns of repaired commodities appropriate additional charges for packaging and freight may apply, as well as reasonable compensation for additional services performed on our part, if not covered by our liability.

2.2    For payments within 10 days after invoice a cash discount of 2% will be granted. Payment orders, checks and bills of exchange can be accepted in lieu of formal payment only and all discounting and collection charges will be billed to the customer. Net payments shall be due 30 days from invoice date. Past-due invoices are subject to a service charge of 2% above the current discount rate authorized by Deutsche Bank without further notice. Granted discounts are subject to correct order approval and payment at due date.

2.3    Customers using SEPA direct debit will receive an advice notice 7 days prior to due date.

2.4    In the event of default payment in spite of overdue notice, regardless of any other legal rights or claims (particularly in regards to claims for damages) that may apply, we shall be entitled to,

2.5.1   to revoke all granted terms of payment, to claim all outstanding demands from the customer immediately. We are entitled to suspend the delivery of invoiced orders until payment of all outstanding demands. This applies regardless of any further claims or legal rights we may have, such as a written, direct, irrevocable, unlimited bank guarantee of the customer and/or the enforcement of default interest in the amount authorized by law, as well as claims for damages for any further damages caused by the customer’s default;

2.5.2   to suspend the fulfillment of our commitments until payment of all outstanding demands according to the conditions of respective order(s);

2.5.3   to enforce default interest of 8% above the prime rate authorized by the European Central Bank for each day of default payment until the respective payment is received, regardless if the payment was enforced by pursuing legal actions;

2.5.4   to terminate the business relationship with the customer immediately, after the expiration of a period of 14 days from the explicit written notification.

2.5.5   In case the customer resigns from the contract, SPIETH reserve the right to claim for damages of 15% of the net invoiced value for services provided to that date, as well as lost profit.

2.6    An offset or retention of payments on part of the customer shall not be permitted unless the customer’s claims are uncontested and legally binding.

 

3.      Freight and Alteration of Contract

3.1    Delivery shall be carried out at the customer’s risk and for account of the customer. Additionally the Incoterms issued by the International Chamber of Commerce/Paris apply in their respective version. Commodities deem delivered according to contract, if nature and quality of the commodities meet the product descriptions and specifications for the end user. This also applies to insignificant or customary variations in quality, size, color, weight, etc., whilst intended product use is not affected. We reserve the right to further modify our products, if those modifications are subject to technical changes or represent technical improvements. International orders are carried out ex works. Freight charges are billed to the customer. Truck deliveries are curb-side deliveries, customer has to provide staff for unloading.  We reserve the right to charge an additional surcharge of 3% of the net invoiced value for packaging of deliveries under certain conditions, specifically for delivery of large commodities.

3.2    Delivery-dates are non-binding and approximate, except for explicit agreements in writing or fixed delivery dates. The delivery period for completion at work shall commence from the invoice date. The delivery period does not commence until final consensus is reached for all conditions and terms of the delivery. Follow-up orders will be treated like new orders. In case of orders being put on hold due to impaired financial condition of the customer, set delivery dates are invalid. After the hold has been lifted, new delivery dates will be arranged upon written confirmation.

3.3.   We reserve the right to carry out partial deliveries or early deliveries.

3.4    We shall extend the time for delivery or resign from the contract in case of failure to deliver due to any act of God, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, defaults of common carriers, inability to obtain necessary labor or any other delays beyond SPIETH’s control. SPIETH shall not be liable for any damages resulting from any of the foregoing events. The same applies to past-due delivery by our suppliers, unless as a result of a SPIETH error. In case of fixed deliveries, in the events listed above, the customer is only entitled to resign from the contract after a reasonable period of time. In case the completion or delivery is delayed by the customer’s request, we reserve the right to charge them for storage or warehousing costs, commencing one month after the alteration request has been received or after dispatchment confirmation on our part. For storage at our production plant a minimum of 2% of the invoiced amount (plus VAT) per month will be charged.

3.5    In case the customer is in default of acceptance or fails to perform other obligations, we reserve the right to claim for damages, including potential additional expenses amounting to 0,5% of the value of the items delivered for each month commenced, but no more than 5% of the value of items delivered. In case the customer resigns from the contract, we are entitled to claim for damages for services rendered as well as lost profit amounting to 15% of the invoice. Both SPIETH and the customer shall remain free to proof higher or lower additional costs. Additional claims resulting from default of acceptance remain unaffected. Under those circumstances perils transfer to the customer.

3.6    We reserve the right to instruct a carrier of our choice. The shipment is made at buyer’s risk. As per customer’s request insurance can be provided to cover transportation risks.

3.7    In case of default of delivery, on our request the customer has to declare within a reasonable period of time, if they insist on the delivery or assert other legal rights. Within the limits of the law, the customer can only withdraw from the order in case of default of delivery as a result of a SPIETH error.

3.8    For claims for damage as a result of a default of delivery the following regulations stated in number 6 apply.

 

4.      Claims, Warranty, Returns

4.1    SPIETH Gymnastics warrants its products against defects in material and workmanship. Without charge SPIETH will, at its option, repair or replace any product shown to our satisfaction to be defective within two (2) years from receipt by the customer. If repair or replacement fails, the customer shall have the right to withdraw from the affected delivery agreement  or reduce the price of the affected commodities accordingly. Misuse, abuse, abnormal use, faulty installation, improper maintenance or unauthorized repairs are not covered under warranty. The customer is obligated to inspect merchandise on receipt for damage or shortage. Notifications of any shortage or damage to the merchandise or packaging must be made on the delivery receipt before signing it. All claims for defective or damaged work that are not evident must be made by the customer in writing, fully setting forth the nature of the alleged defect or damage (take pictures or provide other forms of evidence), within (8) eight days after receipt thereof by the customer. The customer’s failure to so notify SPIETH shall constitute irrevocable acceptance of the work and a waiver of any defect, damage or shortage.

          Carpets used for our mats are technical items, where above all functionality for gymnastics is essential. Mats are composed of different kinds of fabric, differing in color and characteristics. A complete mixing of those fabrics can not be ensured, which can lead to color shading. Color shading of this kind is not covered under warranty.  

4.2    Without limiting the foregoing liability, products shown to our satisfaction to be defective are covered under warranty no longer than (2) years after delivery to the customer.  The following items are covered no longer than (1) one year: bars for parallel bars, uneven bars, and horizontal bar, as well as pommel horse torsos.

4.3    The customer is obligated to keep the commodities at their premises until they are notified otherwise in writing. SPIETH will arrange with the customer for the commodities to be inspected. If a claim proves to be valid, we reserve the right to grant the customer a corresponding credit amounting to the invoiced net value or provide the customer with commodities free of defects of equal value. In case an item is no longer available, it will be replaced by an item as close in characteristics and value as possible. Foregoing terms do not limit any other legal rights of the customer, such as the entrepreneurial recourse in section 478 BGB under German law.

4.4    In case the commodities delivered to the customer have not been manufactured by us, but by one of our suppliers, we meet our liability by assigning our rights to the customer, who shall accept this on account of performance. In this case warranty is only granted subsidiary on our part.

4.5    For possible damage claims on our part the regulations stated in number 6 apply. If a claim proves to be invalid, we reserve the right to claim compensation for expenses incurred unless the customer is able to provide proof they were not at fault for the invalid claim.

4.6    Customer returns not covered by warranty have to be approved individually in writing. If we choose to accept the return, we will issue a return authorization number. Please use this number on all related correspondence and mark the packages as instructed by us. Only commodities purchased by the customer within 3 months after invoice can be returned. Commodities not included in our current price list or modified commodities are non-returnable and non-refundable. This also applies to damaged items or items labeled with a customer’s price tag.

4.7    Legal deficiencies are covered by the regulations stated in number 4.

 

5.      Retention of Title and other Security Interests

5.1    The title to the commodities delivered remains vested in us until complete fulfillment of all obligations by the customer.

5.2    The buyer may resell the commodities in the ordinary course of business. All receivables from their customers and/or third parties are transferred to us in advance. In case of invoices on open account the title to the commodities remains vested in us to secure outstanding balance.

5.3    Any disposition of reserved commodities interfering with our legal rights, such as bailment, chattel mortgaging or cession is inadmissible. We shall be informed about impending claims from third parties as soon as possible.

5.4    Despite any deviating agreements, in order to resell the reserved commodities, the buyer is obligated to disclose the ownership status to third parties to secure our legal rights. In case of assigned rights the buyer is authorized and obligated to collect debt until our revocation. Particularly in case of deterioration of assets of the buyer, we are entitled collect outstanding receivables ourselves.

5.5    The buyer explicitly agrees to us being entitled to collect reserved commodities or ensure otherwise to protect our legal rights, in case of possible interference with our security interests. For this purpose, we are entitled to enter the premises of the buyer, if necessary to enforce our legal rights. In this respect the buyer commits to unrestricted cooperation.

5.6    We commit to release existing securities as per buyer’s request, in case the value exceeds the value of the receivable to be secured by 20%. In case of an ongoing business relationship the foregoing percentage applies to all receivables from the buyer.

 

 

6.      Limitation of Liability

6.1    SPIETH’s liability with respect to breaches of this contract, as well as the liability of our subcontractors, shall be limited to the contractual average damage, unless we bear liability due to harmful intent, culpable negligence or assurance of a quality guarantee. Furthermore we are not liable for any damages resulting from slight negligence.

6.2    The foregoing limited liability does not apply to legally binding liability, such as product liability under German law, as well as culpable injury to life, physical integrity or health, including the liability of subcontractors or legal representatives.

6.3    Claims for punitive damages on part of the buyer become time-barred after a period of one year after delivery. This applies unless we can be accused of fraudulent intent, as well as in case of injuries to life, physical integrity or health of the buyer caused by us.

6.4    Any further liability on our part, as stated in number 6 is precluded, regardless of the legal nature of the claim. This explicitly applies to damage claims for fault at the conclusion of the contract or tortious liability according to section 823 BGB.

 

7.      Intellectual Property Rights

7.1    The buyer acknowledges the intellectual property respectively our exclusive rights of usage of our property rights (including trade marks, registered designs, patents, copyrights, etc.) and will refrain from any action interfering with these property rights.

7.2    The buyer will be granted a non-exclusive revocable license to use our property rights for marketing purposes, limited to the scope of distributing our products or services. This includes but is not limited to the use of logos, trade marks, illustrations, designs, photos, texts, etc., as well as further vested property rights for explicitly authorized advertising and promotional materials of the buyer in print media, PoS or web-based media (hereinafter referred to as „materials“). Any unauthorized disclosure of materials to third parties is inadmissible, unless the disclosure solely serves the purpose of creating advertising and promotional materials through third party providers.

7.3    To ensure that materials used by the buyer for online and offline use meet our quality standards for intellectual and industrial property rights, any further usage is subject to our explicit writing approval. The usage of images of persons, names or references associated with our products, that are linked to our company in a commercial way, are subject to prior explicit approval in writing.

7.4    The buyer is obligated to remove outdated product information from advertisements and marketing materials immediately or replace it with current information.

7.5    In case of a breach of the contractual terms stated in number 7, we reserve the right to refrain from further supplying the buyer, especially in case of recurrence.

7.6    In any case of termination of the business relationship regardless of the legal basis, the buyer is obligated to refrain from any further use of online and offline materials in their possession, respectively return materials provided by us for promotional purposes immediately.

7.7    Further individual agreements with the buyer, especially in the area of e-commerce activities on a B2B level, supersede these standards terms, provided that such terms contradict with terms of this writing.

 

8.      Privacy, Confidentiality

8.1    We collect and safe data in compliance with data protection regulations without explicit approval of the buyer solely for purposes of handling and processing orders. Any further usage of date is subject to the explicit approval of the buyer.  

8.2    The buyer is obligated to treat any information, unless public and openly accessible, strictly confidential and any copying, publication of disclosure to third parties is subject to our explicit approval. Any confidential material or information is to be returned or destroyed after termination of the business relationship.

 

9.      Place of Fulfillment, Court of Jurisdiction, Applicable Law

9.1    Esslingen am Neckar shall be the place of fulfillment for any obligations resulting from the business relationship with the buyer, unless the nature of the obligation is opposed.

9.2    For business with merchants, legal entities under public law or public funds the court of jurisdiction shall be Esslingen am Neckar, respectively Stuttgart, unless a different court of jurisdiction is justified. We reserve the right to pursue legal options against the buyer before their court of jurisdiction or any other relevant court.

9.3    For these standard terms and conditions of sale, as well as all legal relations with the buyer German law shall be applicable exclusively, excluding conflict of laws, as well as the UN convention for the International Sale of Good & Related Transactions (CISG) for buyers based outside the Federal Republic of Germany.

 

10.    General Terms

10.1 Our employees, agents or sales representatives, who are not part of the management or have power of attorney are not authorized to issue legally binding statements, unless we have given our explicit approval.

10.2 Written terms and agreements, as stated in these standard terms and sales conditions also include e-mail communication. The sender has to provide proof the recipient has received the e-mail in question.

10.3 If not regulated otherwise in the foregoing terms or due to legally binding liability, all claims become time-barred after a period of 6 months after the moment the buyer became aware or had to become aware of the issue in question, regardless of the buyer’s awareness within a period of 3 years after invoice date of the respective delivery, regardless of the nature of the claim.

10.4 In case any of the regulations of these standard terms and conditions are invalid or legally ineffective, all other terms remain unaffected. In this case the affected invalid or legally ineffective terms shall be replaced by regulations closest to the commercial purpose of the terms in question.

10.5 We explicitly reserve the right to alter or amend these standard terms and sales conditions, if we deem necessary and will provide the buyer with the modified version, replacing the current version, without delay. Accordingly this applies to the previous version of these standard terms and conditions. For all orders processed prior to the publication of this modified version of standard terms and sales conditions, the regulations of the previous version are applicable.