GTBs | General Terms of Business

Section 1: Scope

(1) All deliveries, services and offers of Johann Sperber GmbH & Co. KG (henceforth the “Contractor”) are made exclusively on the basis of these General Terms of Business. These are a component of all contracts, which the Contractor concludes with its contracting partners (henceforth the “Customer”) in relation to the deliveries and services it offers. They also apply to all future deliveries, services or offers to the Customer, even if they are not agreed again separately.

(2) The terms of business of the Customer or third parties do not apply, even if the Contractor does not separately reject their application in the individual case. Even if the Contractor refers to a letter that contains the terms of business of the Customer or a third party, or makes reference thereto, this shall not constitute agreement with the application of such terms of business.

Section 2: Offer and contract conclusion

(1) The “order” of the Customer represents a request to submit an offer for the conclusion of a contract on a service and/or delivery of the Contractor.

(2) The Contractor shall then send a corresponding offer to the Customer. Acceptance of the contractual offer is declared either by an express declaration of acceptance (“order confirmation”) by the Customer or by execution of the delivery or service by the Contractor.

Section 3: Cancellation policy for consumers

Right of cancellation
In the event that you, as the Customer, are a consumer, you may cancel your declaration of contract within 14 days – without stating reasons – in writing (e.g. letter, fax or email or, if an item is provided to you prior to expiry of the period, via return of the item). The period commences upon receipt of this written information on the right of cancellation. In the event of the provision of services, however, this period does not commence prior to contract conclusion or prior to fulfilment of our information duty pursuant to Article 246 Section 2 in conjunction with Section 1 (1) and (2) of the Introductory Act to the Civil Code (Einführungsgesetz BGB, EGBGB), nor prior to the fulfilment of our information duty pursuant to Section 312e (1) Clause 1 of the Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with Article 246 Section 3 EGBGB. You confirm the fulfilment of our information duty by accepting our GTBs.

Special notice:
Insofar as the contract concerns the provision of a service, your right of cancellation shall lapse prematurely if the contract is fulfilled completely by both sides at your express request, before you have exercised your right of cancellation.

The punctual dispatch of the information on the right of cancellation or the item shall suffice in order to observe the cancellation period. Cancellation must be addressed to:

Johann Sperber GmbH & Co. KG, Rotterdamer Str. 50, 90451 Nuremberg
Email: sperber@sperber-kg.de

Consequences of cancellation
(1) In the event of effective cancellation, the mutually received performances shall be returned and any benefits derived released. If you are unable to return or release the received performances and benefits (e.g. benefits of use) to us in full or part or only in a deteriorated condition, you shall pay us compensation for the value to this extent. In the case of the provision of services, this may nevertheless result in the obligation on your part to fulfil the contractual payment obligation for the period until cancellation.

(2) In the case of the deterioration of an item, you must only pay compensation for the value to the extent that the deterioration is due to the handling of the item, which goes beyond examination of the functional properties. “Examination of the functional properties” refers to the test and trial of the respective item, as possible and customary in the retail business, for example. Items ready for package dispatch must be returned at your cost and risk. Items not ready for package dispatch shall be collected from your address.

(3) The obligation to refund payments must be fulfilled within 30 days. The period begins with the dispatch of your declaration of withdrawal or dispatch of the item, or the receipt thereof in our case. End of the information on the right of cancellation

Section 4: Prices and payment

(1) The prices apply to the scope of services and deliveries listed in the offers of the Contractor. Additional or special services shall be charged separately. Prices are stated in euros ex works before packaging, statutory value added tax and, in the case of export deliveries, customs and duties as well as other official levies.

(2) Insofar as the agreed prices are based on the list prices of the Contractor and the delivery only takes place after more than four months following contract conclusion, the list prices of the Contractor valid upon delivery shall apply (minus any agreed percentage or fixed discount).

(3) Receipt at the Contractor shall determine the actual date of payment. Redemption of payment shall apply in the case of cheques. If the Customer fails to pay upon maturity, the outstanding amount shall be subject to interest from the date of maturity at 8% p.a. above the base rate and, for consumers, at 5% p.a. above the base rate; the assertion of higher interest rates and other damages in the event of arrears remains reserved.

(4) Offsetting with counterclaims of the Customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or legally determined.

(5) The Contractor is permitted in particular to execute or provide outstanding deliveries or services only in exchange for advance payment or security payment, if it becomes aware of circumstances following conclusion of the contract, which indicate the creditworthiness of the Customer is significantly impaired and which endanger the payment of the outstanding claims of the Contractor by the Customer from the respective contractual relationship (including from other individual orders for which the same framework agreement applies).

Section 5: Delivery and delivery period

(1) Deliveries are made ex works.

(2) The periods and deadlines indicated by the Contractor for deliveries and services are always only approximations, unless a fixed period or fixed deadline has been expressly approved or agreed. Insofar as dispatch has been agreed, the delivery periods and delivery deadlines refer to the date of handover to the forwarder, carrier or other third party commissioned with transport.

(3) The Contractor may – without prejudice to its rights arising from the default of the Customer – request from the Customer an extension of delivery and service periods or a postponement of delivery and service deadlines by the period in which the Customer does not comply with its contractual obligations towards the Contractor.

(4) The Contractor shall not be liability for impossibility of delivery or for delivery delays, insofar as these are due to force majeure or caused by other events not foreseeable at the time of contract conclusion (e.g. operating disruptions of any kind, difficulties in material and energy procurement, transport delays, strikes, lawful lockouts, shortages of labour, energy or materials, difficulties in the procurement of necessary official approvals, official measures or pending, incorrect or unpunctual delivery by suppliers), for which the Contractor is not responsible. Insofar as such events render delivery or service significantly impaired or impossible for the Contractor and the impairment is not temporary, the Contractor is permitted to withdraw from the contract. In the case of temporary impediments, the delivery or service periods shall be extended or the delivery or service deadlines shall be postponed by the period of the impediment plus an appropriate start-up time. Should the acceptance of the delivery or service be unreasonable for the Customer as a result of the delay, it may withdraw from the contract by way of immediate written declaration to the Contractor.

(5) The Contractor is only permitted to provide partial deliveries or partial services if:

• the partial delivery/service is usable for the Customer in connection with the intended purpose of the contract;
• the delivery/performance of the remaining ordered goods or services is ensured, and;
• the Contractor does not thereby incur any considerable additional workload or additional costs (unless the Customer agrees to assume such costs).

(6) If the Contractor enters into default on a delivery or service or if a delivery or service becomes impossible for the Contractor, regardless of the reason, the liability of the Contractor shall be limited to the compensation of damages according to Section 10 of these General Terms of Business.

Section 6: Place of fulfilment, dispatch, packaging, transfer of risk and acceptance

(1) The place of fulfilment for all obligations arising from the contractual relationship is Nuremberg, unless otherwise agreed or the Customer is a consumer. If the Contractor also owes installation, the place of fulfilment is the place at which installation is to occur.

(2) The type of dispatch and packaging are subject to the dutiful discretion of the Contractor.

(3) The risk shall be transferred to the Contractor by no later than handover of the delivery item (whereby the beginning of the loading process is decisive) to the forwarder, carrier or other third party commissioned with executing the consignment. This shall also apply if partial deliveries take place or the Contractor has also assumed other services (e.g. dispatch or installation). If the dispatch or handover is delayed due to a circumstance caused by the Contractor, the risk shall be transferred to the Contractor from the day on which the Contractor is ready to carry out dispatch and has informed the Customer accordingly.

(4) The Contractor shall bear storage costs following the transfer of risk. In the event of storage by the Contractor, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per completed week. The assertion and demonstration of further or lower storage costs remain reserved.

(5) The consignment shall only be insured by the Contractor at the express request of the Customer and at its costs with protection against theft, breakage, transport, fire and water damages or other insurable risks.

(6) Insofar as acceptance is to take place, the purchase item shall be deemed accepted if:

• the delivery and, insofar as the Contractor also owes installation, the installation are completed;
• the Contractor has informed the Customer accordingly, referring to the assumed acceptance pursuant to this Section 6 (6), and has requested the Customer to carry out acceptance;
• 12 working days have passed since delivery or installation or the Customer has started to use the purchase item (e.g. put the delivered system into operation) and in this case, six working days have passed since delivery or installation, and;
• the Customer fails to carry out acceptance within this period due to a reason other than a defect disclosed to the Customer, which renders use of the purchase item impossible or considerably impaired.

Section 7: Reservation of ownership

(1) The Contractor reserves ownership of the delivered items until complete payment of all claims arising from the delivery contract and all claims from the entire business relationship. The Contractor is permitted to take back the purchase items if the Customer breaches the contract.

(2) The Customer undertakes to treat the purchase item with care for as long as ownership has not yet been transferred to it. While ownership has not yet been transferred, the Customer must promptly inform the Contractor in writing if the delivered item(s) is/are pledged or exposed to other third-party interventions.

(3) The Customer is permitted to resell the item under reservation of ownership in the ordinary course of business. The Customer hereby assigns the claims of the Customer arising from the resale of the item under reservation of ownership to the Contractor in the amount of the agreed final invoice amount (including value added tax). This assignment applies regardless of whether the purchase item is resold without or following processing. The Customer continues to be permitted to collect the claim even after the assignment. The authorisation of the Contractor to collect the claim itself remains unaffected. However, the Contractor shall not collect the claim for as long as the Customer meets its payment obligations from the proceeds taken, is not in payment arrears and in particular no application to open insolvency proceedings has been filed and no insolvency exists.

(4) The transformation, processing or modification of the purchase item by the Customer always occurs in the name of and on behalf of the Contractor. In this case, the expectant right of the Customer in the purchase item continues in the transformed item. If the purchase item is processed with other items that do not belong to the Contractor, the Contractor shall obtain co-ownership in the new item in the ratio of the objective value of the purchase item to the other processed item at the time of processing. The same applies in the event of mixing. Insofar as mixing occurs in such a manner that the item of the Customer is to be viewed as the main item, the Parties agree that the Customer shall assign to the Contractor proportional co-ownership and store the resulting sole ownership or co-ownership for the Contractor. In order to secure the claims of the Contractor against the Customer, the Customer shall also assign such claims to the Contractor, which it gains through combination of the item under reservation of ownership with property against a third party; the Contractor hereby accepts this assignment.

Section 8: Special duties of the Customer and consequences of payment arrears

(1) The Customer must ensure that the waste it offers for disposal may be disposed of in connection with the applicable statutory conditions, in particular the Act on the Circular Economy (Kreiswirtschaftsgesetz, KrWG), and in particular are not subject to mandatory connection and/or usage under public law.

(2) The Customer must ensure that it may dispose over the waste for disposal in the capacity of the legal waste owner or party authorised for disposal and is also responsible for its permission in this respect.

The ownership of the waste brought by the Customer into the waste containers of the Contractor shall be transferred to the Contractor upon loading of the containers onto the vehicles of the Contractor.

(3) Furthermore, the Customer undertakes to declare the offered waste properly according to the type and scope in accordance with the relevant waste fractions as part of the order.

(4) The Customer is liable for all damages and expenses incurred as a result of its false or incomplete declaration of the waste for disposal or if the damage is caused by incorrectly filled waste containers. Moreover, the Customer is also liable for damages and loss of the waste containers provided and for the consequences of exceeding the stated filling weight. The Customer undertakes to observe the filling limits of the containers, which may not exceed the walls of the containers under any circumstances.

(5) The Customer must provide a suitable location with sufficiently paved access (load capacity for trucks weighing at least 40 tonnes) for the placement of containers. The Contractor shall obtain any necessary permissions under private or public law for the placement of the containers at the cost of the Customer (e.g. special-use permission for placement on public roads) and the Customer shall also be responsible for compliance with road safety obligations (e.g. lighting during times of darkness). The Customer further ensures free access for the vehicles of the Contractor for the purpose of delivery/collection. Any waiting times incurred during placement, changing and removal, for which the Customer is responsible, shall be charged separately.

(6) Any waste types or fractions other than those agreed for disposal may not be filled into the containers. The Customer shall assume any additionally incurred disposal costs as a result of the filling of non-agreed waste fractions. The Customer assures and guarantees that the waste for disposal does not contain any hazardous substances/waste.

(7) In particular, the Customer shall ensure that the filling heights of the containers are not exceeded and that the load is distributed evenly. In cases of doubt, the top edge of the container is considered the filling limit. If significant deviations are determined with respect to the proper filling of the containers or the agreed waste fractions (e.g. mixing of waste fractions or improper filling), the Contractor shall be permitted to perform the necessary load changes or refuse the load at the cost of the Customer and/or charge the Customer for the additional costs incurred from the material deviation and/or the contamination and from decontamination.

The respective recycling plant shall determine the decisive/final classification of the waste found in the containers.

(8) In the event of payment arrears, in particular impending insolvency or its occurrence on the part of the Customer, the Customer shall no longer be permitted to fill waste into the containers provided. In this case, the Contractor is permitted to remove its waste containers following suitable advance notice and demand that the Customer removes any unwarranted waste from the containers in this regard. If this does not occur, the Customer must bear the costs of transport and disposal. The Customer hereby expressly agrees to the removal of the waste containers and the associated entry or access to the property of the Customer in the above-mentioned case.

Section 9: Guarantee

(1) The guarantee period shall amount to one year from delivery or, insofar as acceptance is required, from acceptance.

(2) The delivered items must be promptly inspected following delivery to the Customer or to the third party designated by same. The delivered items shall be deemed approved if the Contractor does not receive a written complaint regarding obvious defects or other defects, which were evident during a prompt and careful inspection, within seven working days from delivery of the delivery item, or otherwise within seven working days of discovery of the defect or from the date on which the defect was evident to the Customer in the normal use of the delivery item without closer inspection. At the request of the Contractor, the delivery item subject to the complaint shall be returned to the Contractor, with carriage paid. In the event of a justified complaint for defects, the Contractor shall refund the costs of the cheapest form of dispatch; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.

(3) In the case of material defects in the delivery items, the Contractor is obliged and permitted to carry out subsequent improvement or replacement delivery according to its choice within a reasonable period. Should this fail, i.e. the subsequent improvement or replacement delivery is impossible, unreasonable, refused or unsuitably delayed, the Customer may cancel the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the Customer, the Contractor may demand compensation according to the provisions stated in Section 11.

(5) In the case of defects in components from other manufacturers, which the Contractor is unable to resolve due to licence-related or practical reasons, the Contractor shall at its discretion assert guarantee claims against the manufacturer and supplier for the account of the Customer or assign such claims to the Customer. Guarantee claims against the Contractor shall only exist in the case of such defects, subject to other requirements and according to these General Terms of Business, if the judicial assertion of the above-mentioned claims against the manufacturer and supplier were unsuccessful or futile, for example due to insolvency. The limitation of the affected guarantee claims of the Customer against the Contractor shall be arrested for the duration of the legal dispute.

(6) The guarantee shall lapse if the Customer modifies the delivery item without the approval of the Contractor, or allows such modification by third parties, and this renders defect remedy impossible or unreasonably impaired. In any case, the Customer shall assume the additional costs of defect remedy incurred through the modification.

(7) A delivery of used items agreed with the Customer in individual cases shall take place with the exclusion of any guarantee.

Section 10: Protective rights

(1) In accordance with this Section 10, the Contractor gives its assurance that the delivery item is free from commercial protective rights or copyrights of third parties. Each Party shall promptly notify the other Party in writing if claims based on the infringement of such rights are asserted against it.

(2) In the event that the delivery item infringes a commercial protective right or copyright of a third party, the Contractor shall – at its discretion and expense – modify or exchange the delivery item such that no third-party rights are infringed anymore, but the delivery item still fulfils the contractually agreed functions, or the right of use shall be obtained for the Customer through conclusion of a licence agreement. If the Contractor fails to do so within a reasonable period, the Customer is permitted to cancel the contract or reduce the purchase price appropriately. Any compensation claims on the part of the Customer are subject to the limitations of Section 11 of these General Terms of Business.

(3) In the event of legal violations caused by products from other manufacturers delivered by the Contractor, the Customer shall – at its discretion – assert its claims against the manufacturer and upstream supplier for the account of the Contractor or assign same to the Contractor. In these cases, claims against the Contractor shall only exist in accordance with this Section 10 if the judicial assertion of the above-mentioned claims against the manufacturer and upstream supplier was unsuccessful or futile, for example due to insolvency.

Section 11: Liability for compensation due to fault and liability limitation

(1) The liability of the Contractor for compensation, regardless of the legal reason, in particular due to impossibility, default, defective or improper delivery, contractual breach, breach of duties in contract negotiations and tort, shall be limited to intent and gross negligence.

(2) Furthermore, the Contractor shall not be liable in the event of the gross negligence of its non-executive employees or other vicarious agents, insofar as this does not concern a breach of an essential contractual duty. An essential contractual duty in this sense includes the obligation to perform punctual, defect-free delivery and installation as well as advisory, protection and duty of care obligations, which are intended to enable the contractual use of the delivery item for the Customer or are intended to protect the life or limb of the personnel of the Customer or third party or the property of the Customer from significant damages.

(3) Insofar as the Contractor is liable to compensation due to the grounds of the case in accordance with Section 11 (2), this liability is limited to the damages, which the Contractor foresaw as possible consequences of a breach of contract upon conclusion of contract or which the Contractor must have foreseen in consideration of the circumstances known to it or which it would have had to have known had it applied the customary care. Moreover, indirect damages and consequential damages, which are the result of defects in the delivery item, shall only be eligible for compensation insofar as such damages are typically to be expected in the intended use of the delivery item.

(4) In the event of liability for simple negligence, the liability for compensation on the part of the Contractor shall be limited to the amount of the current coverage sum of its product liability insurance or liability insurance for property damages or personal injuries, including if this concerns a breach of an essential contractual duty.

(5) The above liability exclusions and limitations apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Contractor.

(6) Insofar as the Contractor provides technical information or advice and this information or advice does not constitute part of the contractually agreed scope of service owed by the Contractor, this shall be free of charge and to the exclusion of any liability.

(7) The limitations of this Section 11 do not apply to the liability of the Contractor for wilful conduct, for guaranteed quality attributes, due to injury to life, limb or health or according to the Product Liability Act (Produkthaftungsgesetz).

Section 12: Final provisions

(1) Insofar as the Customer of the Contractor is not a consumer, the place of jurisdiction for all and any disputes arising from the business relationship between the Contractor and the Customer shall be Nuremberg or the address of the Customer at the discretion of the Contractor. In the event of lawsuits against the Contractor, Nuremberg shall be the exclusive place of jurisdiction. Any mandatory statutory regulations on exclusive jurisdictions remain unaffected by this provision.

(2) The relations between the Contractor and the Customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations’ Convention on the International Sale of Goods dated 11 April 1980 (CISG) does not apply.

(3) Should the contract or these General Terms of Business contain omissions, such omissions shall be replaced by those legally valid provisions, which the Parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms of Business, had they been aware of such omissions.

Notice on data protection:

The Customer acknowledges that the Contractor stores data arising from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing and reserves the right to transmit the data to third parties, insofar as this is necessary for contract fulfilment (e.g. insurers).