These conditions apply only to contracts with companies as per § 14 Federal Code, with legal entities or special funds under public law. The general delivery and payment conditions (company-consumer) apply to contracts with consumers according to § 13 Federal Code.
These conditions apply to all contracts agreed between the purchaser and the vendor regarding provision of services and or the delivery of goods. They apply also to all future business relationships even if not again expressly agreed. Conditions of the purchaser which deviate from or supplement these and which we do not expressly recognise are not binding even if we do not expressly object. The following conditions also apply if we carry out the purchaser’s order unconditionally with awareness of the purchaser’s deviating or contradictory conditions.
In the contracts, all agreements made between us and the purchaser for completion of the purchasing contract are laid down in writing.
In individual cases, agreements made in writing between the contract parties (including additional agreements, supplements and changes) take precedence over these conditions in each case.
Tender and Closure of Contract
We can accept an order from the purchaser that is to be qualified as a tender for the closure of a purchasing contract within two weeks by sending a confirmation of contract or by sending the products ordered within the same time scale.
Our tenders are subject to alteration and are non-binding unless we have expressly designated them as binding.
We reserve our rights of ownership, copyright or all other property rights to all illustrations, calculations, drawings and any other documents. The purchaser may only pass them on to third parties with written permission, regardless of whether we have marked them as confidential.
Payment Conditions
Our prices are factory-gate prices without packaging unless otherwise stated in the contract conditions. Statutory value-added tax is not included in our prices. We will indicate this separately in the invoice at the legal rate on the day of invoicing.
A discount is permissible only in a separate written agreement between us and the purchaser. The purchase price is due net (without deductions) immediately on receipt of the invoice by the purchaser unless another term of payment ensues from the confirmation of the contract. Payment is only considered as made when the sum is available to us. In the case of payment by cheque, the payment is not considered made until the cheque has cleared.
Legal regulations apply if the purchaser falls into arrears with payments.
The purchaser is entitled to compensation only if the counterclaims are legally established, acknowledged by us, or uncontested. The same applies to the right to withhold payment; moreover, the purchaser is entitled to exercise the right to withhold payments only if the counter-claim relates to the same contractual relationship.
Delivery and Service Time
Delivery dates or deadlines which are not expressly agreed as binding are always non-binding statements. Maintaining delivery times is dependent on correct and punctual delivery by our suppliers.
We are entitled to make partial deliveries and provide partial services at any time if this is acceptable to the purchaser.
If the purchaser is late in accepting goods, we have the right to claim damages for resulting damages and any extra expenses. The same applies if the purchaser is in culpable violation of the duty to cooperate. At the start of the period of delay in accepting or payment default, the risk of accidental degradation or perishing passes to the purchaser.
Transfer of risk, Shipping, Packaging,
Uninsured loading and shipping is at the risk of the purchaser. We will make efforts, unless otherwise agreed, to consider the wishes and interests of the purchaser in regard of type and route of shipping; additional costs thereby incurred will be the responsibility of the purchaser; this also applies to agreed freight-paid deliveries.
In accordance with the packaging regulations we do not take back transport and other packaging, with the exception of pallets. Purchasers must dispose of the packaging at their own cost.
If the shipment is delayed at the request of or through the fault of the purchaser, we will store the goods at the cost and risk of the purchaser. In this case the indication of readiness to ship is equivalent to shipping.
Material and Legal Defects, Liability
Legal claims on the part of the purchaser exist only if the purchaser has fulfilled the duty of due inspection and reporting under § 377 HGB of the German Commercial Code.
In the case of a defect, we have the right to choose either to make good the deficiency or to deliver defect-free goods. In the case of failure to rectify, the purchaser has the right to declare withdrawal from the contract. The right to reduce the purchase price is excluded. The purchaser is also entitled to claim damages; the regulations in section VII apply here.
Claims for defects by the purchaser expire one year after delivery of the goods to the purchaser.
Upstream information about materials potentially containing SVHCs will be provided by SILAG Handel AG at the request of the purchaser.
Liability
The vendor has unlimited liability for culpable injury to life, physical injury and health, when accepting a procurement risk or guarantees or any other liability that is regardless of blame, and for liability under product liability law. Additionally, the vendor has unlimited liability for all damage caused by deliberate or grossly negligent violation of contract conditions by the vendor, his/her legal representatives or his/her vicarious agents..
The vendor is liable for the simple negligent violation of important contractual obligations, that is, those obligations in whose fulfilment the purchaser regularly trusts and may trust for due completion of the contract, limited however in this case to the predictable damages that typically arise.
Any more extensive liability of the vendor is excluded; this also applies to the personal liability of its legal representatives and vicarious agents.
Retention of title
Up until the completion of all claims, including balance claims from current accounts due to us from the purchaser now or in the future, the delivered goods, (reserved goods) remain our property. In the case of conduct contrary to contract by the purchaser, e.g., payment delays, we have the right, after previously setting an appropriate deadline, to reclaim the reserved goods. If we reclaim reserved goods, this constitutes a withdrawal from the contract. We are entitled to re-sell the reserved goods after reclaiming them. After deduction of an appropriate sum for the utilisation costs, the realisation proceeds will be offset against the sums owed to us by the purchaser.
The purchaser must handle the reserved goods with care and insure them adequately at their new value at his/her own cost against damage from fire, water and theft. Maintenance and inspection work that becomes required must be carried out promptly by the purchaser at his/her own cost.
The purchaser is entitled to sell and/or use the reserved goods in proper business activity as long as payments are not in arrears. Liens or security bills of sale are not permitted. The purchaser now assigns to us as collateral the full extent of claims in relation to the reserved goods arising from selling-on or some other legal reason (insurance, unlawful act) (including all balance claims from current accounts); we accept herewith the assignment. We give the purchasers the revocable right to collect these claims assigned to us for accounting on their own behalf. The direct debit authorisation can be revoked if purchasers do not fulfil their payment obligations correctly. The purchaser is not authorised to assign this claim, not even for the purpose of debt collection in the course of factoring, unless at the same time the obligation of the factor is on the grounds of executing counter-performance in the amount of the claims directly to us as long as claims of our still exist against the purchaser.
In all cases processing or transforming of the reserved goods by the purchaser will first be performed by us. If the reserved goods are transformed with other items not belonging to us, we acquire co-ownership of the new item in the proportion that the value of the reserved goods (final invoice total inclusive of VAT tax) has to the other processed goods at the time of processing. The same applies to the new item arising from processing as for the reserved goods. Where there is an inseparable mixing of the reserved goods with others not belonging to us, we acquire co-ownership of the new items in the proportion that the value of the conditional goods (final invoice total inclusive of sales tax) has to the other mixed items at the time of mixing. If the purchaser’s item is considered the main item following the mixing, we and the purchaser are in agreement that the purchaser transfers co-ownership to us proportionally; we accept herewith the transfer. The purchaser holds in custody for us our sole or co-ownership of items thus acquired.
Where there is access of third parties to the reserved goods, especially seizures, the purchaser will give notice of our ownership and inform us immediately so that we can exercise our rights of ownership. If the third party is not in a position to refund to us legal or out-of-court costs arising from this, the purchaser is responsible for them..
We are obligated to release the securities which are due to us if the realisable value of our securities exceeds the claims to be secured by more than 10%, whereby we will have the freedom to choose which securities we release.
Storage and Logistics Contracts
If we provide services for the purchaser as regards storage, shipping or transport of the goods, the General German Haulage Conditions apply (ADSp) as amended at the time the contract was signed. The ADSp apply supplementary to these conditions; if there is a contradiction, the ADSp take precedence.
Place of Delivery, Jurisdiction, Applicable law
If the purchaser is a merchant, legal entity or special fund under public law, the place of delivery and the jurisdiction for deliveries and payments (including actions arising out of a cheque or a bill) and for all disputes between us and purchasers arising from the purchasing contracts agreed between him/her and us is our company’s registered office. We are entitled, however, to sue purchasers at their residence and or registered office as well..
The contract between the vendor and the purchaser including these conditions is subject to the law of the Federal Republic of Germany to the exclusion of UN purchasing law. (CISG).
Valid as of 10/2012
