• I. Scope of Application
• II. Offer, Samples, Warranties, Contractual Conclusion
• III. Prices, Payment, Delay
• IV. Delivery and Delivery Times, Packaging, Transfer of Risk
• V. Warranty, Duties of the Buyer in the event of a Defect Notification by its Customers, Compensation of Damages, Liability
• VI. Reservation of title
• VII. Performance by Affiliated Enterprises
• VIII. Observance of Safety and other Provisions
• IX. Transfer of Rights, Trademark Use
• X. Choice of Law, Venue, Place of Fulfilment 

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1. All of our sales, deliveries and performances (hereinafter uniformly referred to as: “Deliveries”) shall be subject to the following terms. These terms apply vis-à-vis companies, government departments and public authorities (Buyer). By accepting these terms without raising any objection, the Buyer is declaring its agreement to their exclusive application for the respective delivery and all sub¬se¬quent business transactions.
2. We do not recognise any terms of the Buyer which oppose or deviate from our terms unless we expressly agreed to the application of such terms in writing. Our terms apply even if, despite having knowledge of terms of the Buyer which oppose or deviate from our terms, we effect delivery to the Buyer without reservation.

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1. Our offers are subject to change in respect of price, volume, delivery period and delivery possibilities. Offers can only be accepted within a period of 30 days.
2. Manuals, handbooks and similar documents shall be supplied in English language if not otherwise agreed upon. We are entitled to make technical amendments to the supplied goods that provide a better or similar solution.
3. The information and data contained in data sheets, brochures and other advertising and information material only serve as a guideline and only become a binding part of the contract if we have expressly agreed to them in writing.
4. The qualities of patterns and samples are only binding if this was expressly agreed.
5. We reserve ownership and IP rights in relation to cost evaluations, drawings and other documents which shall not be disclosed to third parties.
6. Stipulations concerning the composition and imperishable nature of the goods are only deemed guarantees if they are expressly referred to as such. The same applies to the assumption of any procurement risk.
7. The agreement is only binding for us once we have issued a written confirmation of order. Oral agreements require written confirmation by us.

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1. The prices are without VAT, external packaging and dispatch costs (Ex Works).
2. All prices relate to the cost factors at the time of giving confirmation of order. If, subsequently, there is a substantial increase in the cost of raw materials, energy, freight and packaging material for us or our supplier, and if these lead to a considerable increase in our purchase prices or total production costs, we are entitled to demand that the Buyer immediately enters into negotiations regarding a price adjustment, unless the price was expressly confirmed as a fixed price. If no agreement is reached within a reasonable period, we are released from our delivery duty in respect of any outstanding deliveries.
3. Our invoices are to be paid within the agreed payment period, but at the latest 30 days from the invoice date.
   Decisive for determining adherence to payment deadlines is the receipt of the payment into our accounts. Cheques are only taken in payment pending full discharge of the debt. Any expenditure incurred is borne by the Buyer.
4. In the event of a delay in payment, interest shall become due at a rate of 8 percent points p.a. above the official dealing rate of the Bank of England. The right to provide evidence of a more extensive default damage is reserved.
5. We are not obliged to fulfil the agreement for as long as the Buyer fails to comply with its duties arising from other agreements with us, in particular has not paid due invoices.
6. The Buyer can only set off against, or retain payment on account of, such claims as have been acknowledged in writing or determined with unappealable effect.
7. We are entitled only to effect outstanding deliveries against advance payment or make them dependant upon the provision of a security if the Buyer is, after expiry of a reasonable period of grace, in delay with agreed payment dates or the surrounding circumstances are such that, applying standards usual in the banking trade, there are doubts concerning the Buyer’s ability to pay.

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1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. We determine the type of packaging and dispatch.
7. 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.
8. 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.
9. 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.
10. We are not obliged to supply third parties at the request of the Buyer.
11. 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.
12. Notwithstanding clause V we only accept returns after prior agreement. An administrative fee of 15% of the agreed sales price will be levied.

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1. 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
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.
8. 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.
9. 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.
10. If the buyer wrongfully notifies a defect we are entitled to charge him with the connected, reasonable costs.
11. 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.
12. 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.
13. 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 .
14. Irrespective of the provisions above we are in no event liable for indirect or consequential damages, for instance loss of profits.

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1. We reserve title to all goods delivered until the Buyer has completely fulfilled all present and future obligations arising from its business relations with us. This applies even if payments have been made against specifically designated claims. In the event of a current account, the reserved goods shall be deemed security for the claim to the account balance.
2. Any conversion or processing of the reserved goods shall be effected for us as manufacturer, without subjecting us to any obligation. The converted/processed goods shall be deemed reserved goods within the meaning of these terms. If the reserved goods are processed or inseparably mixed/combined with objects which do not belong to us, we shall acquire joint title to the new object in the proportion of the invoice value of the reserved goods to the invoice value of the other objects used at the time of processing or mixing/combining. If the reserved goods are combined or inseparably mixed with other goods which do not belong to us to form a uniform object, and if this object is to be regarded as the principal object, the Buyer herewith transfers co-ownership of this principal object to us on a pro rata basis, insofar as it owns this principal object. The Buyer keeps safe custody of the owner’s title for us together with its own title without charge.
3. Until our revocation, which is admissible at any time and without any particular reason, the Buyer is entitled to sell, process or recast the reserved goods within the ordinary course of business. A sale within this meaning shall also include an installation in the ground or earth or in machines connected with buildings, or a use in fulfilment of other contractual agreements. In the event of such sale the Buyer herewith assigns to us its resulting claims against the customer to payment of the purchase price. If the reserved goods are sold by the Buyer together with other objects not supplied by us, this assignment shall only apply up to the value of the reserved goods sold as speci¬fied in our invoice. In respect of the sale of objects to which we have a co-ownership share in accordance with clause VI.2, the assign¬¬ment shall apply in the amount of this co-ownership share. The assigned claims serve as security to the same extent as the reserved goods.
   If the assigned claim is included in a current account, the Buyer already now assigns to us a balance from the current account corresponding to the amount of this claim.
   Until our revocation, which is admissible at any time and without any particular reason, the Buyer is entitled to collect the claims assigned to us. At our request it is obliged to notify its customers of the advance assignment and to provide us with the information and documents necessary to assert the claim.
4. If the value of the securities provided for us exceeds the total value of our claims by more than 10%, at the request of the Buyer we shall release corresponding securities of our choice.
5. The Buyer is not entitled to make any other disposals of the reserved goods (pledges, transfers for security purposes) or any other assignments of the claims mentioned in clause VI.3. In the event of a levy of execution or seizure attachment concerning the reserved goods, the Buyer is obliged to make our ownership known and inform us without delay.
6. The Buyer is obliged to insure the reserved goods appropriately against all usual risks, in particular fire, burglary and water damage, at its own expense, to treat them carefully and store them properly.
7. If the Buyer is in default with payment, we are entitled to take back the reserved goods after setting a period of grace; this also applies if we have not withdrawn from the agreement.

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Upon our demand any of our contractual obligations can be fulfilled by another enterprise of the SPX group of companies. Due regard is to be paid to the Buyer’s legitimate interests. If the performance is of equivalent value, the relevant contractual obligations are deemed fulfilled.

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1. Unless anything to the contrary is agreed in the individual case, the Buyer is responsible for observing statutory and official provisions, as well as accepted practices concerning import, transport, storage, treatment, use and disposal of the goods.
2. Furthermore, the Buyer is obliged
• to familiarize itself with all product information provided by us.
• to provide its employees, contractors, agents and customers with sufficient instructions to work with the product,
• to take suitable measures for preventing damaging environ¬men¬tal effects and other risks for persons or assets by our goods.
3. The Buyer shall be liable to us for all damage incurred as a result of its failure to observe the safety provisions and shall indemnify us against claims of third parties.

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1. A transfer of the Buyer’s rights arising from this contractual relation¬ship is only admissible with our prior written consent.
2. Within the scope of its advertising measures, the Buyer is only entitled to use the trademarks protected in our name with our prior consent, in accordance with our specifications, in the original form and for unaltered, original goods. Our consent can be revoked at any time. The Buyer shall bear the sole responsibility for the form of its advertisements.

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1. These Terms and Conditions shall be governed by and construed in accordance with English law.
2. The courts of England are to have [non-exclusive] jurisdiction to settle any disputes which may arise out of or in connection with these Terms and Conditions. The Buyer irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in such courts, This submission is made for our benefit and shall not limit our right to take proceedings in any other court of competent jurisdiction.

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SPX Sales Terms 2005