General Terms and Conditions of Sale of Spanflug Technologies GmbH

Status: 09 December 2021

The following General Terms and Conditions of Sale ("GTCs") are addressed solely to entrepreneurs and apply to all business relationships of Spanflug Technologies GmbH ("Spanflug") with its Customers ("Customer") via the online portal for the contract manufacturing of components at and all associated domains ("Spanflug Website").

Spanflug and the customer subject each order exclusively to these GTC. Unless otherwise expressly agreed in writing, Spanflug objects to the inclusion of the customer's terms and conditions. This shall apply in any case, for example even if Spanflug carries out the delivery to the customer without reservation in the knowledge of the customer's terms and conditions. 

1. Order and Conclusion of Contract

1.1 The Customer provides the essential features of the component be manufactured ("Product") as STEP data and/or PDF drawing ("Product Specification") via the Spanflug Website.   

1.2 Spanflug evaluates the Product Specification and then makes a non-binding proposal to the Customer regarding the price and delivery date for the Product ("Delivery Information").  

1.3 The Customer submits an offer with the Delivery Information via the electronic Order Form on the Spanflug Website ("Order Form"). The Customer is bound by the offer for a period of two weeks.  

1.4 Spanflug accepts the offer by means of an express order confirmation by email ("Conclusion of Contract").  

1.5 In the event of an order deviating from clauses 1.1 - 1.4, for example by email or in written correspondence, a contract shall only concluded upon express acceptance by Spanflug.  

2. Payment

2.1 The applicable statutory value added tax is added to the price stated in the Delivery Information ("Purchase Price"). The Customer must bear any customs duties, fees, taxes or other public charges.  

2.2 If the Customer chooses the payment method "by invoice", the Purchase Price is due 14 days after delivery. For all other payment methods, the Purchase Price is due three working days after acceptance of the offer by Spanflug. Only the payment methods specified in the Order Form are available to the Customer.  

2.3 Payments must be made to Spanflug's account free of charge. 

2.4 The Customer's default interest is nine percentage points above the respective base interest rate. Spanflug reserves the right to assert further loss incurred as a result of the default. In business with entrepreneurs this has no effect on Spanflug's entitlement to default interest in accordance with section 353 German Commercial Code (HGB). 

2.5 The Customer will only be entitled to a set-off against the claim for payment provided its counterclaims are undisputed or have been declared final and absolute. The Customer will only be entitled to assert rights of retention on the basis of counterclaims from the same contractual relationship.  

3. Customer's further obligations and assurances

3.1 The Customer assures Spanflug that it will provide a complete and correct Product Specification. 

3.2 The Customer assures Spanflug that it is entitled to use the Product Specification and that no rights of third parties are infringed by Spanflug and the Manufacturers using it. The Customer grants Spanflug the rights of use necessary for executing the order.

3.3 The Customer assures Spanflug the following use of the Productproduct :

a) the Product will be ordered and used for lawful purposes only;

b) the Product will not be used as a weapon or for weapons;

c) the Product will not be used in motor vehicles, aircrafts, spacecrafts, offshore installations, long-distance lines or implants.

3.4 The Customer ensures that the contact details provided to Spanflug are accurate and up-to-date and that the email correspondence is technically secured and, in particular, not impeded by SPAM filters. The Customer will post any changes to the contact details on the Spanflug Website without undue delay. 

3.5 The Customer ensures that it meets the technical requirements for using the Spanflug Website. The Customer uses up-to-date virus protection programs on all devices with which it communicates via the Spanflug Website. 

3.6 The Customer assures that it is an entrepreneur within the meaning of section 14 of German Civil Code (BGB) and that it is solvent.  

4. Manufacture and delivery of the Product

4.1 Delivery is subject to the timely and proper fulfilment of all of the Customer's obligations under these GTCs. 

4.2 Spanflug manufactures the Product as per the Product Specification. Whether the Customer can in fact use the Product for a specific purpose according to its requirements is at the Customer's own risk.  

4.3 Spanflug is entitled to instruct third parties to manufacture the Products ("Manufacturers"). Spanflug does not have to inform the Customer of this. 

4.4 Production and any agreed delivery periods commence after receipt of payment in full; this also applies to express orders. By derogation from this, in the event of payment "by invoice" within the meaning of clause 2.2 of these GTCs, production and agreed delivery periods commence upon Conclusion of Contract.  

The Products are delivered and shipped at the Customer's risk by selected service providers whose terms and conditions of delivery may apply (packages: UPS Europe SRL/BV, DHL Express Germany GmbH, Deutsche Post AG, ; freight: Rhenus SE & Co. KG ). This has no effect on clause 4.6 of these GTCs.

4.6 The risk of accidental loss and accidental deterioration of the Product as well as the risk of delay passes to the Customer as follows even if the delivery is made carriage paid:

a) In the event of sale by delivery to a place other than the place of performance upon delivery of the Product to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Spanflug will insure deliveries against the usual transport risks at the Customer's written (including email) request and expense.  

b) In the event of deliveries including installation or assembly on the date of receipt at the Customer's premises or following successful trial run, if agreed. 

c) If acceptance has been agreed, then acceptance is decisive for the passing of risk. In all other respects, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance.

4.7 In the event of default of acceptance on the part of the Customer or a delay in shipment, delivery, commencement, execution of installation or assembly, receipt at the Customer's own premises or trial run for which the Customer is responsible, the risk of accidental loss and accidental deterioration passes to the Customer by derogation from clause 4.6 of these GTCs. 

4.8 The Customer may not refuse to take receipt of deliveries on the grounds of minor defects. Part deliveries are permissible to the extent that can be reasonably accepted by the Customer. 

4.9 If acceptance of the Product is required, it must be declared by the Customer within 14 days of delivery. Acceptance is deemed to have been given if the Customer does not give written notice of precisely described defects within this period; receipt of the notice of defects by Spanflug is relevant for determining whether the notice period has been observed. Spanflug will indicate this to the Customer on the delivery note. This has no effect on clause 6.1 of these GTCs. Acceptance is also deemed to have been given when the Customer puts the Product into operation, if necessary after completion of an agreed test phase. 

4.10 Transport packaging and all other packaging in accordance with the German Packaging Regulation (Verpackungsverordnung) will not be taken back by Spanflug; it will become the Customer's property. 

4.11 If it is foreseeable that a Product ordered by the Customer cannot be delivered by Spanflug in due time, Spanflug will inform the Customer of this without undue delay. 

4.12 If shipment or delivery is delayed at the Customer's request by more than one month after notification of readiness for shipment, Spanflug may charge the Customer, after the expiry of one month from notification of readiness for shipment, a flat-rate storage fee of 1 % of the price of the Products of the relevant delivery for each week commenced. The total amount of the storage fee is limited to the price of the relevant Products within the meaning of clause 2.1 of these GTCs. The contractual parties are at liberty to prove higher or lower storage costs, in which case the flat-rate storage fee is to be offset against such claims. 

5. Reservation of title

5.1 The delivered Products (reserved goods) remain the property of Spanflug until all claims have been satisfied to which Spanflug is entitled against the Customer now or in the future, including all balance claims from current accounts (secured claim). The Customer will treat the delivered Products with care.  

5.2 The Products supplied which are subject to reservation of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The Customer must inform Spanflug in writing without undue delay if and to the extent that third parties gain access to the goods belonging to Spanflug. 

5.3 The Customer is entitled to sell on and/or to process the Products under reservation of title in the ordinary course of business under the following conditions:

a) If the Products are irreversibly combined or mixed with other items not belonging to Spanflug, Spanflug acquires co-ownership in the new item in the ratio of the value of the Products concerned (invoice end amount including VAT) to the other combined or mixed items at the time of such combining or mixing. If the Products are combined or mixed in such a way that the Customer's item is to be regarded as the main item, the Customer and Spanflug already agree now that the Customer will transfer co-ownership of this item to Spanflug on a pro rata basis. Spanflug accepts this transfer. The Customer will hold the thus created sole or co-ownership of an item on Spanflug's behalf. 

b) The Customer hereby assigns to Spanflug as collateral any claims against third parties arising from the sale of the Products or the items arising in case (a) in their entirety or, in the case of a co-ownership share, in the amount of Spanflug's co-ownership share. Spanflug accepts the assignment.  

c) The Customer remains authorised, in addition to Spanflug, to collect the claim assigned under (c). Spanflug does not collect the claim as long as the Customer meets its payment obligations towards Spanflug, is not in default of payment, no application for the opening of insolvency proceedings against the Customer's assets has been filed and there is no other deficiency in the Customer's ability to pay. Otherwise, Spanflug may request that the Customer disclose to it the assigned claims and their debtors and all other information necessary for collection, hand over the corresponding documents and inform the debtors (third parties) about the assignment.  

d) If the realisable value of the collateral due to Spanflug exceeds the secured claims by more than 20 %, Spanflug will release collateral at its discretion upon the Customer's request. 

6. Warranty

6.1 The prerequisite for any warranty rights of the Customer is its proper fulfilment of all inspection duties and duties to provide notification of defects pursuant to sections 377, 381 German Commercial Code (HGB). In particular, the Customer is required to inspect the delivered Product for defects without undue delay upon receipt. The Customer must notify Spanflug of any defects without undue delay, at the latest within eight days after receipt of the delivery, in writing or by email. Parts about which a complaint has been made must be sent to Spanflug for inspection at Spanflug's request. The Customer must bear the costs of sending in the parts unless the defect complained about is present. 

6.2 Warranty claims may be asserted within twelve months after delivery of the Product to the Customer. This does not apply if longer periods are prescribed by statute pursuant to sections 438 (1) no. 2 (buildings and things used for buildings), 478 (2) (recourse of the entrepreneur) and 634a (1) no. 2 (building defects) German Civil Code (BGB) and in instances of culpable injury to life, body and health by Spanflug, an intentional or grossly negligent breach of duty on the part of Spanflug or fraudulent concealment of a defect by Spanflug. This clause 6.2 applies accordingly to Spanflug's legal representatives or vicarious agents. This has no effect on the statutory provisions for suspension of statute of limitations, suspension, and recommencement of the periods. 

6.3 In the event of Product defects, the Customer is entitled to subsequent performance in the form of rectification of the defects or delivery of a defect-free item. Spanflug may choose the type of subsequent performance. If the subsequent performance is not successful, the Customer may reduce the purchase price or withdraw from the contract. The obligation to remedy defects lapses if the parts affected by the defect have been modified or even provisionally repaired by the Customer or by third parties. The costs incurred by Spanflug due to unjustified claims for defects are borne by the Customer. 

6.4 There will be no claims for defects in the event of only slight deviations from the agreed quality, of only slight negative impact on use, of natural wear or damage that occurred after the transfer of risk as a result of faulty or negligent treatment, excessive use, unsuitable operating resources, faulty construction work, unsuitable building land or that arise owing to special external influences that are not stipulated under the contract, or in the event of non-reproducible software errors. Likewise, if inappropriate modifications or maintenance work are carried out by the Customer or third parties, there will be no claims for defects for these or any consequences. 

6.5 Claims of the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded where the expenses are higher because the Product was subsequently moved to a place other than the agreed place of delivery, unless such transportation is in accordance with the designated use. 

6.6 The Customer only has statutory rights of recourse against Spanflug pursuant to section 445a German Civil Code (BGB) (recourse of the seller) in as far as the Customer has not entered into any agreements with its buyer over and above the claims for defects provided for by statute. For the scope of the Customer's right of recourse against Spanflug pursuant to section 445a (1) German Civil Code (BGB), clause 6.5 of these GTCs also applies accordingly. 

6.7 In all other respects, compensation claims are subject to section 7 of these GTCs. Claims of the Customer against Spanflug, its legal representatives and vicarious agents on the grounds of a legal defect over and above or other than those set out in this clause 6 of the GTCs are excluded. 

7. Liability

7.1 Spanflug is liable in each case without limitation for damage arising from injury to life, body, or health as well as in all cases of intent and gross negligence, in the event of fraudulent concealment of a defect and in the event of assumption of a warranty for the quality of the object of purchase as well as in the event of damage under the German Product Liability Act (ProdHaftG). 

7.2 Insofar as essential contractual obligations are affected, Spanflug's liability in the case of slight negligence is limited to the foreseeable damage typical for the contract. Material contractual obligations in the aforementioned sense are contractual obligations whose fulfilment characterises the contract and on which the other party is entitled to rely. 

7.3 In the event of a breach of immaterial contractual obligations, liability is excluded in the case of slightly negligent breaches of duty. 

7.4 Data communication via the internet cannot be guaranteed to be error-free and/or available at all times in accordance with the current state of the art. In this respect, Spanflug is not liable for the constant or uninterrupted availability of the website and the service offered there. This does not affect clauses 7.1 and 7.2. 

If Spanflug is in default, the Customer may – if it can provide evidence of losses incurred because of such default – demand compensation for each full week of default in the amount of 0.5 % of the price of the part of the deliveries which was not delivered, the maximum compensation, however, being 5 % of such price. The Customer's claims beyond the limits stipulated in the previous sentence both for compensation on grounds of delayed delivery and in lieu of performance are excluded in all instances of delayed delivery, even after lapse of any delivery deadline that Spanflug may have been set. This does not affect clauses 7.1 and 7.2.

7.6 The Customer is required to declare, at Spanflug's request, within a period of two weeks whether it will withdraw from the contract due to Spanflug's default with a delivery. If it does not submit the declaration within this period, its right of withdrawal expires. 

7.7 The above provisions of this clause 7 apply accordingly to Spanflug's executive bodies and vicarious agents.  

8. Indemnity

The Customer indemnifies Spanflug and its contractors on first demand against claims of third parties in the cases listed below under clause 8.2 and bears all costs and expenses incurred by Spanflug and its contractors in this connection, in particular legal enforcement and defence costs on the one hand and costs resulting from compliance with a possible duty to cease and desist on the other hand. The Customer is required to notify Spanflug without undue delay of any risks of infringement and alleged cases of infringement that it becomes aware of and to counteract any corresponding infringement claims by mutual agreement with Spanflug within the bounds of what is reasonable.  

8.2 The obligation under clause 8.1 concerns:

a) Actual or alleged infringements of property rights for which the Customer is responsible; 

b) Product defects for which the Customer is responsible; 

c) Data protection infringements for which the Customer is responsible; 

d) Use of the product in breach of the warranty set out in clause 3.3 of these GTCs. 

9. Spanflug's rights to refuse performance and to withdraw

9.1 In the following cases, Spanflug is entitled to postpone the delivery or to withdraw from the contract in whole or in part:

a) The Product cannot be delivered for a reason for which Spanflug is not responsible; 

b) The manufacture or delivery of the Product is made substantially more difficult or impossible due to force majeure (in particular states of war or emergency, pandemics, in particular in connection with Covid-19, riots, strikes, lockouts, official orders, shortages of raw materials and illnesses; all of these also at suppliers of Spanflug or Manufacturers); 

c) The Product is manufactured subject to special technical problems which could not be foreseen at the time of ordering and which make the manufacture or delivery considerably more difficult; 

d) The manufacture and delivery of the Product is unreasonable for Spanflug for economic reasons which were not foreseeable at the time of ordering; and/or 

e) The Customer becomes insolvent or insolvency proceedings are opened against the Customer's assets.

9.2 In cases where Spanflug exercises its right of withdrawal for the reasons set out in clause 9.1 above, Spanflug is required only to refund payments already made, excluding other claims of the Customer. 

9.3 To the extent that delivery is not possible, the Customer is entitled to demand compensation unless Spanflug is not responsible for such impossibility. Compensation of the Customer is restricted to 10 % of the value of such portion of the delivery which cannot be used for its designated purpose owing to such impossibility. This has no effect on clauses 7.1 and 7.2 of these GTCs. This does not give rise to a change in the burden of proof to the detriment of the Customer. This does not affect the Customer's right to withdraw from contract. 

9.4 To the extent that unforeseen events substantially alter the economic significance or the content of the delivery or have a substantial influence on Spanflug's operations, the contract will be adjusted appropriately in good faith. If it is not economically tenable to adjust the contract, Spanflug will be entitled to withdraw from the contract. If Spanflug wishes to make use of this right of withdrawal, Spanflug must notify the Customer of this within three weeks of becoming aware of the event. If Spanflug does not submit the declaration within this period, Spanflug's right of withdrawal expires. 

10. Data protection

10.1 The Customer acknowledges that the use of personal data is necessary for the performance of the contract and payment.  

10.2 Spanflug does not process any personal data that are not required for the execution of the order process and the Customer does not transmit any such data to Spanflug.  

10.3 The Customer ensures that personal data in the Product Specifications are transmitted to Spanflug for product manufacturing with the consent of the persons concerned or otherwise authorised and indemnifies Spanflug against all claims in this respect.  

11. Confidentiality

11.1 For the purposes of this agreement, "Confidential Information"means all non-public, confidential and/or proprietary information of the Customer and Spanflug, including information relating to technologies, Products, intellectual property, finances, activities and business dealings, including technical drawings (in particular CAD models), information on components or business information relating to such technical drawings (in particular CAD models) and components, disclosed by the Customer to Spanflug, whether in writing, electronically or orally, in particular technical data, scientific information, research objectives, inventions, strategic plans, development plans and official plans, project records, policies and procedures, process or technology information and the fact that the Customer has instructed Spanflug. 

11.2 Spanflug and the Customer undertake to keep all Confidential Information secret. Spanflug undertakes to use the Confidential Information exclusively for the purpose of evaluating the Product Specification and for preparing the offer to the Customer, as well as for manufacturing the ordered Products and improving and further developing the Spanflug offers. 

11.3 Notwithstanding the other provisions of this clause 11, Spanflug has the right to disclose the Confidential Information to (sub-)contractors or Manufacturers if this appears expedient for performing the contract, in particular for manufacturing the Product. Spanflug ensures that all (sub-)contractors or Manufacturers its instructs who obtain access to Confidential Information undertake to maintain confidentiality to a comparable extent as Spanflug does in this agreement.

11.4 Spanflug's confidentiality obligations under Spanflug clause 11 do not apply to Confidential Information

a) that has already been made available to the public; 

b) became available to the public after disclosure without this being the result of an unlawful act on the part of Spanflug; 

c) in cases where Spanflug can prove that it legitimately received the information from a third party and that this third party was entitled to disclose it and did not breach any confidentiality obligation when disclosing it; 

d) in cases where Spanflug can prove that such information was developed independently without reference to or through the use of Confidential Information by or for Spanflug and Spanflug can prove this through written records; or 

e) that Spanflug must disclose due to applicable law. 
If Spanflug is required to disclose Confidential Information due to an official or court order, Spanflug will inform the Customer without undue delay to enable the Customer to cooperate in any such procedure and to take appropriate measures to prevent disclosure. 

12. Industrial Property Rights and copyrights, legal defects

12.1 Unless otherwise agreed, Spanflug is required to perform delivery free of third-party industrial Property Rights and copyrights (in this figure 12"Property Rights") in the country of the place of delivery. If a third party files justifed claims against the Customer owing to the breach Spanflug with the contract, Spanflug within the period Customers in clause 6.2. of these GTCs as follows:

a) Spanflug will at its discretion and at its expense either procure a right of use for the deliveries in question, modify them in such a way that the Property Right is not infringed or replace them. If this is not possible for Spanflug at reasonable conditions, the Customer will be entitled to the statutory rights of withdrawal or statutory rights to reduce the purchase price.  

b) Spanflug's obligation to pay damages is governed by clause 7 of these GTCs.  

c) The above obligations of Spanflug exist only to the extent that the Customer notifies Spanflug in writing without undue delay of the third-party claims, does not acknowledge an infringement and all measures for the purpose of defending against the claim and negotiations for a settlement remain reserved for Spanflug. If the Customer stops using the deliveries in order to mitigate loss – or for other good reasons – it is required to inform the third party that the fact that it has stopped using the deliveries does not constitute acknowledgement that a Property Right has been infringed.

12.2 Claims of the Customer are excluded if it itself is responsible for the Property Right infringement.  

12.3 Claims of the Customer are also excluded to the extent that the Property Right infringement was caused by the specific stipulations of the Customer, by use which was not foreseeable for Spanflug or by the fact that the Customer altered the deliveries or used them in conjunction with products not supplied by Spanflug.  

12.4 Spanflug reserves its unrestricted ownership and copyright-protected exploitation rights to cost estimates, drawings, manuals, and other Documents of Spanflug (in this clause 12.4: "Documents"). The Documents may only be made accessible to third parties with the prior consent of Spanflug and must be returned without undue delay on request if the order is not placed with Spanflug. Sentences 1 and 2 apply accordingly to Customer's Documents; they may, however, be made accessible to such third parties to whom Spanflug has permissibly transferred deliveries.  

12.5 The Customer has the non-exclusive right to use software provided by Spanflug with the agreed performance features in an unmodified form on the agreed appliances. The Customer may make two backup copies without express agreement.  

12.6 In the event of Property Right infringements, the provisions of clause 6 of these GTCs apply accordingly to the Customer's claims regulated in clause 12.1 a).  

12.7 In the event of other legal defects, the provisions of clause 6 of these GTCs apply accordingly.  

12.8 Claims of the Customer against Spanflug and its vicarious agents on the grounds of a legal defect over and above or other than those set out in this clause 12 are excluded. 

13. Final provisions

13.1 These GTCs are exclusively subject to German law, excluding the UN Convention on Contracts for the International Sale of Goods. 

13.2 The place of performance for all services arising from the business relationships existing with Spanflug as well as the place of jurisdiction is the registered office of Spanflug. This does not affect Spanflug's right to bring an action before the court of another statutory place of jurisdiction. 

13.3 Claims of the Customer arising from the contract are neither transferable nor assignable unless they are undisputed or declared final and absolute. 

13.4 No oral side agreements have been made. Additions and amendments to the contract must comply with the written-form requirement. This also applies to a waiver of the written-form requirement. 

13.5 If any of the above provisions are or become inapplicable or their validity is excluded by agreement, the validity of the other provisions will not be affected thereby. If any of the above provisions are or become invalid, the Parties are required to agree on a provision that comes as close as possible economically to the invalid provision. The same applies in the event of any lacunae in the contract.

This Agreement is subject to German law. This Agreement has been drawn up in German and in English. Only the German version is authoritative. 

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