Conditions of Sale
1. Insofar as our customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law, our deliveries, services and offers shall be made expressly on the basis of the following terms and conditions. Unless otherwise agreed, these terms and conditions shall apply in the version valid at the time of future orders / placing of orders, even if they are not expressly agreed again or reference is made to them.
2. These terms and conditions shall apply exclusively. Counter-confirmations of the buyer with reference to his terms and conditions are hereby contradicted.
3. Individual agreements made in individual cases shall in any case take precedence over these terms and conditions. A written contract or our written confirmation shall be authoritative for the content of such agreements.
4. Legally relevant declarations and notifications to us after conclusion of the contract (e.g. setting of deadlines, notices of defects, withdrawal or reduction) must be in writing to be effective.
5. For the storage, installation and assembly as well as the use of our products, our current technical information as well as the generally recognized rules of technology shall be observed.
6. We point out that we process data of the buyer, which concern the business transactions with him, in the sense of the Federal Law for Data Protection.
II. Offer and Conclusion of Contract
1. Our offers are subject to confirmation, unless expressly stated otherwise. Samples and specimens are non-binding general information. The order shall be deemed to be a binding contractual offer. Contracts and agreements shall only become binding upon our written order confirmation or upon our delivery, whereby in the latter case the invoice shall replace the order confirmation. Unless otherwise stated in the order, we are entitled to accept the contract offer within four weeks of receipt by us.
2. If an ordered article is not available because we are not supplied by our supplier despite contractual obligation without our fault, we are entitled to withdraw from the contract. In this case, we will inform you immediately that the ordered goods are no longer available and reimburse any services already rendered without delay.
3. Any reference made at the time of placing the order to previous orders or agreements, in particular by designations such as "as is", shall in all cases only refer to the execution, not to the price. Only the Silnova article designation shall be decisive for the designation of the product. The additional naming of customer article designations is non-binding.
4. Our technical application advice, both verbal and in writing, is non-binding - also with regard to any property rights of third parties - and does not release the purchaser from his own examination of our products with regard to their suitability for the intended processes and purposes.
1. Unless otherwise agreed, our prices are ex works or ex warehouse plus packaging and freight as well as customs duties and other charges plus the value added tax applicable on the day of delivery.
2. Unless expressly stated otherwise, the prices in our price lists and offers are subject to change and are based on the current cost factors. If changes in the cost factors occur up to the conclusion of the contract, e.g. due to price increases for raw materials or wage increases, we reserve the right to adjust our prices accordingly. If there is a period of more than three months between the conclusion of the contract and the expected delivery date, we shall be entitled to adjust our prices accordingly in the event of changes in cost factors, e.g. due to price increases for raw materials or wage increases. In the event of such a change, we shall contact the Buyer; in the event of a price increase of more than 5%, the Buyer shall be entitled to withdraw from the contract; such withdrawal shall be declared within one week of notification by us, otherwise the increased price shall be agreed and payable.
3. For orders for which no prices have been agreed, our prices valid at the time of conclusion of the contract shall apply; otherwise the above paragraph shall apply.
4. The sales prices as well as all offers and calculations are in EUR, unless expressly agreed otherwise.
IV. Terms of payment
1. Unless otherwise agreed in individual contracts, payment must be made in full within 30 days net cash from the date of invoice, unless other program-related payment conditions exist. Payment shall be made irrespective of any notices of defects. Place of performance for payments is Helmbrechts.
2. The retention of payments and the set-off is only possible, if the counterclaim of the buyer is undisputed or validly determined, if nothing else is agreed.
3. In case of delay of payment all still running invoices are immediately due and enforceable. In the event of non-compliance with the terms of payment or in the event of circumstances which are likely to reduce the creditworthiness of the Buyer, we shall be entitled to demand immediate payment of all our claims. In addition, we are entitled to carry out outstanding deliveries only against advance payment or provision of security. If advance payments or securities are not provided even after a reasonable period of time has been set, we shall be entitled to withdraw from the contract with regard to services not yet performed, with the consequence that all claims of the Buyer with regard to the deliveries not yet performed shall lapse.
4. We shall be entitled to set off all our claims against the Buyer against all claims which the Buyer has against us by virtue of delivery or for other legal reasons.
V. Retention of title and further securities
1. The goods shall remain our property until full payment of all claims against the purchaser arising from the business relationship, including claims arising in the future.
2. Processing and transformation of goods delivered by us subject to retention of title shall always be carried out on our behalf, but without any obligation for us, to the exclusion of the acquisition of ownership pursuant to § 950 BGB. The processed goods shall serve as our security only to the extent of the value of the goods subject to retention of title. In the event of processing with other goods not belonging to us by the Buyer, we shall be entitled to co-ownership of the new item in proportion to the value (invoice value) with the consequence that this is now reserved goods within the meaning of these terms and conditions.
3. The Buyer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business.
4. The Buyer hereby assigns to us by way of security all claims to which it is entitled with respect to the goods subject to retention of title (irrespective of the legal grounds; including claims from resale, balance claims from current account agreements, processing or combination of the goods delivered by us, tort, insurance claims). The assignment is limited in each case to the amount of the delivery value of the goods delivered according to our invoices. If the customer of the purchaser has effectively excluded the assignment of claims against himself, the purchaser and we shall place ourselves in the internal relationship as if the aforementioned claims assigned to us in advance, regardless of their nature, had been assigned to us in an effective form. We shall be authorized by the Buyer to assert the claim in his name for our account as soon as the Buyer is no longer entitled to collect the claim in his own name in accordance with the following provision.
5. We revocably authorize the buyer to collect the claims assigned to us for his account in his own name. As soon as the Buyer fails to fulfill an obligation towards us or a circumstance referred to in clause IV, sub-clause 4 occurs, the Buyer shall, upon our request, disclose the assignment and provide us with the necessary information and documents. We shall also be entitled to notify the Buyer's debtors directly of the assignment and to request them to make payment to us.
6. The delivered goods may neither be pledged nor assigned by way of security without our consent. In the event of access by third parties to the goods subject to retention of title, the purchaser shall draw attention to our ownership, notify us immediately and provide us with all assistance necessary to protect our rights.
7. In case of breach of contract by the buyer - in particular default of payment - we are entitled to assert our reservation of title and to demand immediate surrender of the goods subject to reservation of title and to obtain direct possession thereof ourselves or through authorized representatives or, if applicable, to demand assignment of the buyer's claims for surrender against third parties. The assertion of the reservation of title does not imply withdrawal from the contract.
8. If the value of the securities existing for us exceeds our claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the Buyer's request.
9. The Buyer shall adequately insure the goods subject to retention of title against fire and theft. Claims against the insurance company arising from a case of damage are already now assigned to us in the amount of the value of the goods subject to retention of title.
VI. Delivery time, delay in delivery
1. Place of performance for deliveries is Helmbrechts or the location of the plant or warehouse commissioned with the delivery. Unless otherwise agreed, delivery and performance deadlines shall be deemed to have been met if, by the time they expire, the delivered item has left the factory or readiness for dispatch has been notified or the service has been performed. 2.
2. The delivery and performance period shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond our sphere of influence, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item or the performance of the service. This shall also apply if the circumstances occur at our sub-supplier or in the case of lack of supply of primary materials through no fault of our own as well as if they occur during our delay. In the event of a prolonged failure to meet the deadline, we and - after setting a grace period - the purchaser shall be entitled to withdraw from the contract. In important cases, we shall inform the Buyer as soon as possible of the beginning and end of such obstacles.
3. The deliveries and services (performance of the contract) are subject to the proviso that there are no obstacles to performance due to national or international regulations, in particular export control regulations as well as embargos or other sanctions. The parties undertake to provide all information and documents required for the export/transfer/import. Delays due to export inspections or approval procedures shall invalidate deadlines and delivery periods. If required approvals are not granted, the contract shall be deemed not to have been concluded with regard to the parts concerned; claims for damages shall be excluded in this respect due to the aforementioned failure to meet deadlines.
4. The buyer can withdraw from the contract without setting a deadline if the entire performance becomes finally impossible for us before the transfer of risk. In addition, the Buyer may withdraw from the contract if, in the case of an order, the performance of part of the delivery becomes impossible and the Buyer has a justified interest in refusing the partial delivery. If this is not the case, the Buyer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of inability on our part. Section IX shall apply in all other respects. If the impossibility or inability occurs during the delay in acceptance or if the Buyer is solely or predominantly responsible for these circumstances, the Buyer shall remain obligated to counter-performance.
5. The occurrence of default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a written reminder by the buyer is required. If we are in default and the Buyer suffers damage as a result, he shall be entitled to demand a lump-sum compensation for default. This shall amount to 0.5% for each full week of delay, but in total to a maximum of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. Further claims arising from delayed delivery shall be determined exclusively in accordance with Section IX of these Terms and Conditions.
6. Goods notified as ready for dispatch must be called off immediately after expiry of the delivery period; if this does not happen, we shall be entitled to dispatch them at our discretion or to store them at the Buyer's expense and risk; the same shall apply if dispatch cannot be effected for reasons for which we are not responsible. Upon notification of readiness for shipment, the goods shall be deemed to have been delivered and may be invoiced.
7. The type of transport, the means of transport, the transport route as well as the type and scope of the required means of protection and the selection of the forwarding agent or carrier, furthermore the packaging are left to our choice. This is done at our discretion and with due diligence, excluding any liability. The goods shall only be insured at the express request of the Buyer, and at the Buyer's expense.
8. Partial deliveries are permissible. We are free to over- and under-deliver by 10% in terms of quantity, and by 20% in the case of custom-made products, against payment.
VII. Passing of risk
1. Unless otherwise agreed, the risk shall in any case pass to the Buyer upon handover to the forwarder or carrier, but no later than upon leaving the factory or warehouse.
2. Complaints due to incomplete, defective or incorrect delivery must be made immediately and to us at the latest within 10 days after arrival of the goods. Otherwise, the deliveries shall be deemed to have been approved.
We warrant for material defects and defects of title of the delivery under exclusion of further claims - subject to Section IX - as follows:
1. All parts or services which show a material defect within the limitation period shall be repaired or replaced free of charge at our discretion, provided that the cause of the defect already existed at the time of the transfer of risk and provided that the Buyer has complied with his obligations to inspect the goods and give notice of defects. If a proper inspection and/or notification of defects is not carried out, our liability for the defect not notified shall be excluded.
2. In the case of notices of defects, payments by the purchaser may be withheld to an extent which is in reasonable proportion to the material defects which have occurred. The purchaser may withhold payments only if a notice of defect is asserted about whose justification there can be no doubt. If the notice of defect is unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the Buyer itself.
3. We shall first be given the opportunity to remedy the defect within a reasonable period of time. If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages pursuant to Section IX - rescind the contract or reduce the remuneration.
4. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain or unsuitable operating materials. We shall be entitled to reject complaints if the Buyer has not presented the defective part to us within 4 weeks of being requested to do so; this shall not apply if the presentation of the part should not be possible due to its nature or the way in which it is installed, etc.
5. Claims of the Purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with the normal use of the Supplies.
6. The buyer's right of recourse against us (including § 478 BGB (recourse of the entrepreneur)) shall only exist insofar as the buyer has not reached an agreement with his customer which goes beyond the statutory claims for defects. Furthermore, No. 5 shall apply mutatis mutandis to the scope of the right of recourse against us pursuant to Section 478 (2) BGB.
Defects in title
7. If we have to deliver according to drawings, models, samples or using parts provided by the buyer, the buyer shall be responsible for ensuring that the property rights of third parties in the country of destination of the goods are not infringed thereby. We shall inform the Buyer of any rights known to us. The Buyer shall indemnify us against any claims of third parties and pay compensation for any damage incurred. If we are prohibited from manufacturing or delivering by a third party with reference to an industrial property right belonging to him, we shall be entitled - without examining the legal position - to suspend work until the legal position has been clarified by the purchaser and the third party. Should the continuation of the order no longer be reasonable for us due to the delay, we shall be entitled to withdraw from the contract.
8. Unless otherwise agreed, we shall be obliged to provide the delivery free of industrial property rights and copyrights of third parties only in the country of the place of delivery. If the use of the delivery item leads to an infringement of industrial property rights or copyrights, we shall, at our expense, generally procure for the Buyer the right to continue using the delivery item or modify the delivery item in a manner reasonable for the Buyer in such a way that the infringement of industrial property rights no longer exists.
9. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Buyer shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also have the right to withdraw from the contract.
10. In addition, we shall indemnify the Buyer against undisputed or legally established claims of the owners of the property rights concerned.
11. Subject to Section IX, the obligations of us stated in No. 9 shall be conclusive in the event of infringement of industrial property rights or copyrights. They shall only exist if
- the Buyer notifies us without delay of any asserted infringement of industrial property rights or copyrights,
- the Buyer supports us to a reasonable extent in defending the asserted claims or enables us to carry out the modification measures pursuant to No. 7,
- we reserve the right to all defensive measures including out-of-court settlements,
- the defect of title is not based on an instruction or special specification of the Buyer and
- the infringement of rights was not caused by the Buyer modifying the delivery item without authorization or using it in a manner not in accordance with the contract or otherwise being responsible for the infringement of property rights.
1. We shall be liable for damages in the event of intent and gross negligence. In the event of simple negligence, we shall be liable - subject to a statutory milder standard of liability (e.g. care in own affairs) only a) in the event of injury to life, limb, health, b) for damages arising from the not merely insignificant breach of a material contractual obligation; in this case, we shall be liable for compensation for the foreseeable, typically occurring damage. Unless the Buyer notifies us in writing before or immediately after conclusion of the contract that a higher damage than EUR 250,000 is foreseeable and typical, the above liability towards the Buyer shall be limited to an amount of EUR 250,000 per year. If the Buyer notifies us of a higher foreseeable and typical damage, the Buyer shall agree with Silnova on an appropriate limitation of liability; if such an agreement is not reached, we shall be entitled to withdraw from the contract.
2. The above limitation of liability shall not apply to claims of the Buyer under the Product Liability Act and to the extent we have fraudulently concealed a defect or have given a warranty as to quality.
3. In the event of slight negligence in the case of delay in delivery or performance, the liability provision in Section VI, No. 5, sentences 3 and 4 shall apply exclusively.
4. The above limitations of liability shall also apply in favor of our executive bodies, vicarious agents and persons employed by us in the performance of our obligations.
5. The statutory rules on the burden of proof shall remain unaffected by the above rules.
6. Insofar as Silnova is subject to information obligations according to the provisions of Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), Silnova shall not be liable for the correctnes and completeness of the information received from its upstream suppliers.
X. Statute of limitation
1. Warranty claims of the customer shall become statute-barred within one year from handover. Notwithstanding the foregoing, warranty claims based on the defectiveness of a building or for delivery items that were used for a building in accordance with their customary use and caused its defectiveness shall become statute-barred within the statutory period.
2. Claims for damages according to Section IX, No. 1 and 2 as well as product liability claims shall become time-barred within the statutory period. This shall also apply to the Buyer's claims under a right of recourse pursuant to Sections 478 and 479 of the German Civil Code (BGB).
3. All other claims of the Buyer - for whatever legal reasons - shall become statute-barred after 12 months, unless the regular statutory limitation period pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in individual cases.
1. Insofar as otherwise stipulated in agreed DIN standards, factory standards or other contractual documents (in particular in technical delivery conditions or Silnova drawing), the following specifications and tolerances shall be deemed agreed:
- Tolerances for hoses and profiles: DIN ISO3302 E3.
- Tolerances for bundled goods: +/- 2 % on the nominal length (measured without deformation or determined by weight).
- Underlengths are technically unavoidable for bundled goods. The underlengths relate to a maximum of 20 % of the delivery quantity and have a length of at least 50 % of the nominal length.
- Tolerances for bulk goods (e.g. fixed lengths): +/-3 % on the number of pieces.
- Mechanical values (e.g. hardness) apply to standard specimens manufactured from pressed sheets.
- Technically unavoidable minor deviations in color do not entitle the customer to complain about the delivery.
2. Shore-A-hardness values are given for a tolerance range of ± 3 for thermoplastics and ± 5 for elastomers (determined on standard specimens). Customary deviations in failure, weight and color do not entitle the customer to complain about the delivery. Illustrations, dimensions and weights in our lists, TL, factory standards, offers and order confirmations are only approximate. Deviations in dimensions, weight, number of pieces and quality are permissible within the scope of customary tolerances or in accordance with the relevant standards. No guarantee for compliance is assumed.
3. Unless otherwise agreed or stated by us, the tolerances permissible in accordance with the relevant technical standards and guidelines (DIN, VDE etc.) shall apply.
XII. Copyright and industrial property rights, molds and tools
1. We reserve all property rights and copyrights to drawings, samples and similar information; they may only be made available to third parties with our prior consent.
2. We claim the right of exclusive production for all designs, drawings and tools produced by us for the corresponding articles. Passing on and copying of these documents as well as the tools, utilization and communication of their contents are not permitted unless expressly granted. Any infringement shall result in the payment of damages. All rights are reserved in the event of patents being granted and for utility model registrations. The purchaser guarantees that the production and delivery of items manufactured according to his specifications do not infringe the industrial property rights of third parties. Molds, templates and other devices remain our sole property even if costs are charged to the purchaser.
3. Insofar as we manufacture or procure models, molds, tools and other molding equipment on behalf of the customer, we shall invoice a portion of the costs for this separately. Since these pro rata costs do not cover our expenses for design, construction, running-in or know-how and maintenance, the models and molds as well as tools including accessories shall remain our property. The same applies to modifications as well as to replacement models and tools and subsequent molds. Tooling, mold costs, etc., plus the statutory value-added tax shall be payable upon invoicing. If 3 years have elapsed since the last delivery of the items manufactured from them, we shall not be obliged to store them any longer.
XIII. Jurisdiction and Miscellaneous
1. The place of jurisdiction for all claims and liabilities of the parties, including claims based on bills of exchange and checks, irrespective of the place of payment, shall be Munich, provided that the buyer is a merchant, a legal entity under public law or a special fund under public law.
2. If the contracting party suspends payment or if insolvency proceedings against its assets or out-of-court composition proceedings are applied for, Silnova shall be entitled to withdraw from the unfulfilled part of the contract.
3. German law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 shall be excluded.
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