General Terms and Conditions of Sales and Delivery
1. Scope of Validity of these Terms and Conditions
1.1 All order and delivery transactions of Silikal GmbH (hereinafter: “Silikal“) shall be exclusively subject to the following general terms and conditions (hereinafter: “General Terms”) and to the provisions of the respective contract.
1.2 Entering into a contract based on these General Terms substantiates the applicability thereof to all other (delivery) transactions with the customer (hereinafter: “Customer”) within the scope of a current business relationship, even if Silikal does not make explicit reference thereto in future. This also applies if Customer received knowledge of these General Terms after the first conclusion of a contract between the Parties.
1.3 Agreements deviating from these General Terms, especially conflicting general terms of Customer, shall require Silikal’s explicit written consent to become valid and have to be accepted separately by Silikal in writing for every individual contract. Such conditions shall not be binding upon Silikal, even if Silikal fails to explicitly contradict them, or if Silikal, being fully aware of such conditions, delivers to Customer without reservations.
1.4 Silikal shall inform Customer in written form (Sec. 126 b German Civil Code, “Bürgerliches Gesetzbuch”, “BGB”) about modifications of these General Terms at the latest four (4) weeks before they become valid. Customer’s consent is deemed to be given if he does not communicate his rejection in written form (Sec. 126 b German Civil Code, “Bürgerliches Gesetzbuch”, “BGB”) until the date of the modifications’ coming into force. Silikal shall expressly advert Customer to this effect of deemed consent in its information about the modification of these General Terms.
2. Offers and Conclusion of Contract; Order of Validity
2.1 Offers of Silikal shall not be binding unless expressly indicated or confirmed otherwise by Silikal in written form. Drawings, depictions, dimensions, weights or other performance data shall only be binding if explicitly agreed upon in writing.
2.2 Insofar Customer places an order, this shall be considered a binding offer pursuant to Sec. 145 German Civil Code (“Bürgerliches Gesetzbuch”, “BGB”). Customer’s order shall comply with Silikal’s offer. Unless agreed otherwise in writing, Silikal may accept this offer within a period of four (4) weeks by sending Customer an order confirmation.
2.3 Contracts with Silikal come into existence upon Silikal’s acceptance of Customer’s order in textform, e.g. email, fax (sec. 126b German Civil Code), in the form of an order confirmation, the latest at Silikal’s provision of its performance.
2.4 Unless otherwise agreed in the individual contract, in case of conflicting provisions the following order applies:
1. the individual contract including additional agreements
2. these General Terms
– if applicable – performance description as arranged with Customer
– if applicable – technical specification as arranged with Customer
5. the essential contractual parts of Silikal’s offer (e.g. price, amount).
2.5 Silikal reserves rights of ownership and copyright with respect to the documents mentioned in 2.1 above.
3. Customer’s Duties and Obligations
3.1 Customer shall ensure that Silikal is provided with all necessary cooperation and provision of performance in good time, to the necessary extent, and without charge. If Customer does not, not in time, or not in the agreed manner provide necessary cooperation performance, he solely has to bear the consequences resulting therefrom (e.g. delays, additional expenditures).
4. Delivery and Time of Delivery; Sub-contractors
4.1 As long as Customer does not fulfill its cooperation and provision duties, a delay in delivery of Silikal is excluded.
4.2 Deliveries shall be effected ex works “Mainhausen” (if the delivery item is an item of sale: “ex works”, resp. hereinafter “EXW Mainhausen” according to Incoterms 2010) unless explicitly agreed otherwise in writing.
4.3 Following the completion of EXW orders as mentioned above, Customer is required to pick up his goods at the delivery destination pursuant to Sec. 4.2 within five (5) days (Monday through Friday, legal holidays excluded) from receiving notice of completion (delivery date), unless indicated otherwise by Silikal. Upon Pick-up, Customer is obliged to settle any transport and/or all other costs concerning the goods which arose after their completion and provision by Silikal.
4.4 Form, modality and scope of packaging are in the sole discretion of Silikal. If Silikal committed itself, in an individual case, beyond EXW Mainhausen pursuant to Incoterms 2010, to send goods to Customer, the modality of dispatch is in the sole discretion of Silikal.
4.5 Indicated delivery and performance dates are only binding if Silikal declared or confirmed them to be binding in written form (sec. 126b German Civil Code). If an estimated delivery date is overdue by more than 2 (two) weeks, Customer shall be entitled to set Silikal an adequate subsequent period of time for delivery. If Silikal does not deliver within the subsequent period of time, Customer shall be entitled to withdraw from the contract. Withdrawal shall be declared in writing.
The right to withdraw from the contract shall only exist if Silikal is liable for not complying with the subsequent period of time set for delivery, and if it is not reasonable for Customer to adhere to the contract. If Customer chooses compensation for damages in lieu of performance, Silikal´s liability is subject to the limitations as stipulated in provision 9 below.
4.6 For the period of the existence of circumstances outside of the control of Silikal (“Force Majeure”), such as inability to source raw materials and transportation means, stoppages in production, strikes and lock-outs, fire and natural catastrophes, Silikal shall be discharged from its delivery obligation. Delivery deadlines agreed shall be extended by the period of the existence of the circumstances of Force Majeure, but by no longer than six (6) months. If the circumstances of Force Majeure end within this period, Customer shall only have the right to reject the deliveries if it is unreasonable to expect from Customer taking delivery after such lapse of time. If the circumstances of Force Majeure end following the lapse of six (6) months, this shall be regarded as ultimate impediment to performance; Customer shall be entitled to withdraw from the contract (sec. 323 German civil Code). The same applies, if and when it is foreseeable that the circumstances of Force Majeure will be permanent.
4.7 Silikal shall be entitled to effect partial deliveries and services, if (i) the partial delivery is usable for Customer within the intended purpose of the contract, (ii) the delivery of the remaining ordered goods is secured and (iii) no substantial additional expenses occur for Customer hereby (unless Silikal agrees in writing to bear these expenses).
4.8 In case Silikal delivers upon Customer´s request goods to a non-EU country without being provided with a certificate of export or other relevant information concerning the export of the goods, Customer is liable towards Silikal insofar as Silikal is held liable for payment of Value Added Tax (VAT) regarding the respective delivery, unless Silikal is responsible accordingly.
4.9 Silikal is entitled to perform by subcontracting third parties (subcontractors), unless this contradicts Customer’s justified interests. Silikal is liable for the performance of subcontractors to the same extent as it is liable for its own actions.
5. Prices and Payment Conditions
5.1 Prices are ex works (that is, if the delivery item is an item of sale: “ex works”, resp. hereinafter “EXW Mainhausen” according to Incoterms 2010) and do not include freight, customs, import duties, ancillary levies; they are net prices plus statutory value added tax (VAT).
5.2 In case of shipment of the goods to a non-EU country, Customer shall, on its own initiative, send Silikal as proof of shipment an export certificate in written form within 5 (five) business days after receiving the goods in the non-EU country. In case of not providing the export certificate or any other relevant information concerning the shipment of the goods, Customer is liable pursuant to 4.8 above.
5.3 In the event that during the period between conclusion of the contract and delivery cost decreases or cost increases occur, unforeseen and uninfluencable by Silikal, especially due to changes in the raw material prices by more than 10 % (ten percent), Silikal and Customer are entitled to request of the respective other party an adjustment of the agreed prices by renegotiation. The validity of the remaining provisions shall not be affected by such renegotiations. If no agreement can be reached by the renegotiations, both Silikal and Customer are entitled to withdraw from the contract.
5.4 Invoices of Silikal are due immediately upon receipt and shall be paid without deductions and within ten (10) days to the account indicated on the invoice, unless other terms of payment are agreed between the parties in writing or indicated on Silikal’s invoice. They are to be paid in EUR. After a potential change of the EURO denominated monetary claims to another currency, it may turn out that this other currency bears more or less purchasing power than the EURO currency. In such case, each party shall be entitled to demand from the other party that the amount of the contractual claims be renegotiated in good faith with the aim of compensating such loss or gain of purchasing power. Timeliness of payment shall be determined by the date the whole amount is credited to one of Silikal’s business accounts. In the event of default in payment, Silikal is entitled to charge default interest in the amount of nine (9) percentage points above the base interest rate.
5.5 If Customer deducts a cash discount from its payment which is unjustified due to non-execution of a payment within a set payment period, absence of a complaint by Silikal does not constitute a tacit acknowledgement of the deducted cash discount. Until expiration of the limitation period, Silikal is entitled to demand payment of the partial amount not paid by Customer due to the cash discount or to settle this partial amount with outstanding claims of other orders of Customer resp. to book it on Customer’s receivables account.
5.6 If Customer delays on payment with respect to carried out deliveries Silikal is, at its option, entitled to either withhold not yet carried out deliveries until Customer has performed advance payment accordingly, or to withdraw from the contract about the not yet carried out deliveries.
5.7 For each debit balance not realized or returned unpaid, Customer shall, to the extent he is liable for the event which triggered the costs, reimburse Silikal the costs incurred, including costs for the collection of the outstanding payments.
5.8 Checks are only accepted on account of performance and the debt shall only be cleared upon receipt of full payment. Silikal shall assume no liability for correct and timely presentation and protesting with regard to the negotiated check. Discount charges (2 % above the discount rate charged by Silikal´s bank, minimum € 50.-), and all expenditure and costs in connection with the honoring of check amounts shall be borne by Customer.
5.9 Any complaints against the level of Silikal’s remuneration charged to Customer shall be addressed to Silikal immediately after receipt of invoice. Complaints have to reach Silikal within eight (8) weeks after receipt of invoice. Omission of timely complaints is deemed as approval of the amount of the invoice. Customer’s legal claims concerning complaints after expiration of the deadline remain unaffected.
5.10 If, after the conclusion of a contract, there are reasonable doubts as to the solvency or credit standing of Customer or, if such circumstances are prevailing at the conclusion of the contract but become known at a later date, Silikal shall be entitled to demand advance payment or the posting of collateral prior to delivery, as well as to revoke payment terms granted and render all credited receivables immediately due for payment.
5.11 Despite possible conflicting or missing determinations of Customer, Silikal shall be entitled to initially offset payments against older debts of Customer and shall notify Customer of the nature of any offset. If costs and interest have already accrued, Silikal shall be entitled to offset payments against these costs first, then against interest and finally against the principal debt.
6. Transfer of risk; Examination for transport damages
6.1 The risk of accidental loss of goods shall pass over to Customer in all cases (regardless of any INCOTERMS clause Silikal and Customer have agreed to) as soon as the consignment is handed over to the third party effecting the transport or has left Silikal´s warehouse for dispatch purposes.
6.2 Immediately after receiving the delivery, Customer shall examine its external condition, notify any transport damages to carrier, secure relevant evidence and immediately inform Silikal and the carrier by phone and in text form (Sec. 126b BGB). In case of a delivery to a deviating debtor’s address, Customer shall ensure that the examination for any transport damage is carried out in accordance with this section 6.
6.3 If dispatch cannot be carried out within the agreed delivery period for reasons for which Silikal is not responsible, the risk of accidental loss of the goods shall pass over to the Customer upon lapse of the delivery date stipulated in section 4.3.
7. Duty of Examination; Warranty; Period of Limitation
7.1 Obvious defects and defects noticeable upon proper inspection of the delivery including any transport damages (see section 6.2) shall be notified by Customer in written form (sec. 126 b German Civil Code) immediately upon receipt of the goods. Defects that could not be discovered within this period, even upon proper inspection, shall be notified to Silikal immediately upon their discovery. The same applies to complaints because of wrong deliveries and discrepancies in quantities. If the period for notification is not observed, warranty claims shall be excluded.
7.2 Customer shall, prior to processing the delivered goods, be obliged to inspect them for their suitability for the purposes of use, even if samples of goods have been supplied before.
7.3 Minor discrepancies in dimensions and formats shall not entitle Customer to raise complaints for defects. Potential discrepancies listed in the relevant quality guidelines known to Customer are all in consistency with the contract.
7.4 Warranty rights may only be raised in respect of goods that are available for inspection or return. Without prior mutual agreement in written form (sec. 126 b German Civil Code) products may not be returned to Silikal.
Taking back goods by Silikal does in no case constitute an acknowledgement that the goods taken back are defective.
7.5 For defects notified in time pursuant to 7.1, Silikal warrants delivery of new goods free from defects. In case the delivery of new goods by Silikal turns out to be unsuccessful, Customer shall, at its option, be entitled to reduce the price or to withdraw from the contract. There are no claims for compensatory damages, except as provided for in section 9 below.
7.6 The warranty obligation shall expire if the goods delivered are changed, processed or improperly handled. Improper handling also includes an improper storage of the goods. Customer shall especially store goods according to Silikal’s guidelines for the storage of goods from the current version of the technical documentation (MMA) (www.silikal.com). Proper storage must be documented by the Customer in a suitable manner.
7.7 Silikal is not liable for such products Customer provides Silikal with for the purpose of processing or finishing. With respect to such goods there shall be no warranty rights for Customer, unless the defect is due to the processing or finishing by Silikal.
7.8 The warranty statute of limitations amounts to 12 (twelve) months from transfer of risk, unless another statutory term is prescribed by law or unless the compulsory provisions of the purchase of consumer goods (Sec. 478, 479 German Civil Code) apply. The aforementioned does not apply in cases Silikal is liable for culpable violation of life, limb or health, and in cases Silikal is liable for claims for damage based on intent or gross negligence, including intent or gross negligence of Silikal’s representatives or vicarious agents.
8. Retention of Title
8.1 Until such time as all receivables from the business relationship with Customer have been paid, Silikal shall retain title (ownership) to the purchased goods. To the extent Silikal agrees with Customer on payment of the purchasing price on the basis of check procedure, the retention of title shall also extend to the encashment as well as any claims against Customer in connection with a potential liability of Silikal towards respective third parties holding rights in such bills and does not expire with the receipt of money from such check procedure.
8.2 Processing or reshaping of delivered goods shall exclusively be made under maintenance of the security claims of Silikal. The processed product shall secure at its full value the receivables mentioned above. To the extent that the goods delivered are being processed with other goods not owned by Silikal, Silikal shall acquire co-ownership in the new product in the proportion of the value of the goods delivered by Silikal to the other goods processed not owned by Silikal at the time of processing. In addition, to the new product generated by procession, the same applies as to the goods delivered under retention of title by Silikal.
To the extent that the goods under retention of title are inseparably assembled or mixed with goods of other suppliers, Silikal shall acquire co-ownership in the new product in the proportion of the value of the goods under retention of title (invoice amount plus value added tax) to the other goods they have been assembled or mixed with at the time of assembly or mixture.
If the assembly or mixture is made in such a way that the goods of Silikal under retention of title become essential parts of a new product, Silikal shall acquire co-ownership in the new product in the aforesaid proportion.
Customer shall store the respective share of co-ownership of Silikal free of charge. In the case no acquisition of ownership in the sense of this section commences, Customer already now assigns its future ownership or co-ownership in the new product in aforesaid proportion to Silikal by way of security. Silikal already now approves this assignment.
8.3 Customer shall be entitled to sell the goods of Silikal in the ordinary course of business. The receivables of Customer from selling or other receivables substituting the goods shall already now be assigned to Silikal by way of security in their full amount with all ancillary rights irrespective whether the goods of Silikal have been delivered with or without processing, reshaping, assembling or mixing and whether Silikal´s goods have been processed, reshaped, assembled or mixed with goods of other third party suppliers; Silikal already now approves this assignment. If another supplier is entitled to lawfully claim extended retention of title concerning receivables of Customer, Customer shall assign to Silikal the receivables concerned to the extent of the retention of title of Silikal to the sold goods. Silikal already now approves this assignment.
8.4 If the receivables of Customer from selling the goods of Silikal under retention of title or of goods in which Silikal holds co-ownership are put in a current account Customer already now shall assign to Silikal its payment claim in the amount of the respectively acknowledged balance covering the amount of the claims of Silikal. Silikal already now approves this assignment.
8.5 Until canceled, Customer is entitled to collect the assigned claims. Silikal’s right to collect the claims itself remains unaffected therof. Out of legitimate reason, like defaults of payment or cessation of payment of Customer, filing for initiation of insolvency proceedings regarding the assets of Customer, or other jeopardy to the satisfaction of the claims of Silikal against Customer, the authorization of the Customer to collect the receivables may be canceled by Silikal. Until then, Silikal commits itself not to collect the claim itself. In this case the Customer shall be obliged, among others, to immediately label the reserved goods as property of Silikal in appropriate manner recognizable for each third party.
Customer shall provide Silikal with a detailed list of any reserved goods also to the extent that they are processed as well as a list of assigned receivables with naming of the third party debtors. Irrespective thereof, representatives of Silikal shall be entitled to conduct appropriate examinations at any time during normal business hours at the Customer and inspect the documents necessary in this connection.
8.6 Customer bears the risk for the goods delivered by Silikal. He shall be obliged to keep the goods diligently in custody and sufficiently insure them against usual risks, like damage, loss, theft, fire etc. to usual terms and common extent. Customer herewith assigns to Silikal any claim against the insurer for the case of damages namely a first ranking partial amount corresponding to the purchasing price of goods delivered under retention of title; Silikal already now approves this assignment. To the extent that the insurer does not cover the total damage, Silikal may not be referred to a proportionate compensation.
8.7 Pledging or transfer of title for security purposes are excluded. Customer has to inform Silikal without delay of any event concerning the title of Silikal and be obliged to use best efforts in particular to make all legal declarations towards Silikal or a third party in order to render the agreed retention of title and the pre-assignment effective. Customer shall be liable for all cost of an intervention in court and / or out of court.
8.8 Silikal is obliged to release collaterals in their dutiful discretion, if and to the extent that the estimated value of the collateral exceeds the total receivables of Silikal to be secured respectively, permanently by 50 % (fifty percent).
9. Liability; Product Liability
9.1 Silikal shall be liable under statutory regulations insofar as Customer raises claims based on intent or gross negligence, including intent or gross negligence of Silikal’s representatives or vicarious agents.
9.2 To the extent Silikal is accused of the slightly negligent breach of an essential contractual obligation the fulfilment of which enables the proper execution of this agreement at all, and the violation of which puts the achievement of the contractual purpose at risk, and the observance of which Customer may regularly rely on, liability for damages is limited to the foreseeable and typically occurring damage.
9.3 Liability for culpable violation of life, limb or health and Silikal’s liability according to other mandatory binding provisions, especially according to the German Product Liability Act, shall not be affected thereby.
9.4 Customer shall, in the internal relationship to Silikal, take the sole risk as (co-)producer in accordance with the German Product Liability Act, insofar as the cause of damage falls within his domain of responsibility and organization, and if he, in his external relationship to the claimant, is liable as producer. Customer shall in the abovementioned cases indemnify Silikal explicitly from any third party claims and shall, when necessary, provide security insofar as his liability in the internal relationship is concerned.
The provision in 9.4 does not apply insofar as, in cases Customer provided Silikal with goods or products for the purpose of processing or finishing, the cause of damage is due to the processing or finishing by Silikal, not even in cases Silikal does not appear as producer towards third parties.
9.5 Insofar as Silikal’s liability for damages is restricted, this also applies to the personal liability for damages of Silikal’s staff, employees, personnel, representatives and vicarious agents.
9.6 Unless stipulated otherwise above, Silikal’s liability shall be excluded.
10. Right of Withdrawal in Case of Non-availability of Special Raw Materials
In the event that during the period between conclusion of the contract and delivery it turns out, unforeseeable to Silikal, especially at the time of the conclusion of the contract, that Silikal cannot be provided in sufficient amount with a raw material essential for Silikal´s fulfillment of the contract, and such non-availability is not contemporary and cannot be overcome by reasonable expenses, Silikal is entitled to withdraw from the contract with Customer. This does not apply if Silikal is liable for such non-availability. Silikal will inform Customer about the non-availability without delay.
11.1 To the extent that nothing deviating arises from a separate confidentiality agreement between the parties, parties undertake to keep confidentiality pursuant to this section 11.
Parties shall mutually undertake to maintain confidentiality about all business and company secrets and about all information designated as confidential (“confidential information”) that came to their knowledge in the context of performing this agreement or which the Parties exchange and make available for each other. As confidential information, the parties in particular understand all orders and all commercial and technical information and documents related therewith, illustrations, drawings, calculations, quality directives, samples and similar objects, knowhow, business relations, business strategies, business plans, financial planning, personnel matters. Information publicly known at the time of transmission, or later becoming publicly known not resulting from a wrongdoing of the party concerned, is not deemed as confidential. The same applies if an information, without a direct or indirect infringement of the concerned Party’s duty to maintain confidentiality, becomes known to a third party other than by the party concerned or its affiliates.
A reproduction and dissemination of such secret information shall only be allowed within the scope of operational requirements. It may only be disclosed or made accessible to third parties upon prior express and written consent.
11.2 The aforesaid obligation to keep confidential shall survive the termination of the supply relationship, as long as the confidential information has not become common knowledge.
12. Non-Solicitation Provision
12.1 During the contract term, Customer shall refrain from hiring Silikal’s employees or other personnel who are involved in the fulfillment of the respective contract, unless the employee or other personnel has already resigned from Silikal six months before, or Silikal agreed in advance in written form. The aforementioned restraint also does not apply if the hiring of the employee or other personnel resulted from the initiative of Silikal’s employee or other personnel.
12.2 During the contract term, customer shall refrain from directly or indirectly soliciting Silikal’s employees or other personnel who are involved in the fulfillment of the respective contract.
12.3 Both preceding paragraphs shall continue to be effective for one (1) year after the end of the contract term, starting with the end of the contract term.
12.4 Sections 12.1 and 12.2 above concerning the non-compete and non-solicitation provision shall also apply to companies associated with Customer.
12.5 Customer shall demonstrate and prove that the employment of a former employee or other personnel of Silikal is not based on an infringement of this non-employment/non-solicitation provision.
13. Offsetting; Right of Retention
13.1 Customer’s right to offset is excluded. This does not apply insofar as the counterclaim is based on a violation of a main obligation of Silikal pursuant to sec. 320 German Civil Code, or the counterclaim is assessed in a legally binding judgment, or is undisputed.
13.2 Unless stipulated otherwise in mandatory law, Silikal may set off all its claims against Customer’s claims. This also applies if Customer used a cash discount in case of a delayed payment.
13.3 Customer shall have a right of retention only insofar as its counterclaim is connected with or arising from the same transaction and is assessed in a legally binding judgment, or is undisputed. Apart from that, Customer shall not have a right of retention.
14. Written Form
14.1 This agreement shall precede all prior agreements concerning its object, regardless of whether they were agreed in writing or verbally. No subsidiary verbal agreements exist.
14.2 Any amendments, addendums and the annulment of this agreement shall be in writing in order to be effective. This also applies for amendments of this written form clause. The aforementioned requirement of written form shall not apply to oral agreements made after the conclusion of this contract. Also, in this case parties agree on the necessity of a written confirmation concerning the content of the oral agreement.
14.3 Unless stipulated otherwise in these General Terms, to fulfill the written form requirement, text form pursuant to sec. 126 b German Civil Code, e.g. e-mail, fax, is sufficient.
15. Applicable law, Court of Venue
15.1 All contractual and non-contractual relationships between Silikal and Customer shall be governed by the laws of the Federal Republic of Germany. The application of the consistent United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
15.2 All disputes arising in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration is Munich. The language of arbitral proceedings is English; documents could be provided in English language. The number of arbitrator is one.
16. Final Provisions
16.1 Should particular provisions of these General Terms be or become invalid, the validity of the remaining provisions shall not be affected hereby. This does not apply if an adherence to the agreement would present an unreasonable hardship to a contracting party.
16.2 Customer may only assign rights and obligations arising from the agreement after prior written consent by Silikal. Silikal shall only refuse consent for important reason. Customer shall immediately inform Silikal if he plans to assign rights and obligations arising from the agreement with Silikal.
16.4 These General Terms shall be concluded in both German and English language. In case of any discrepancies between the German and English version, the German version shall prevail.
17.1 Our company checks your creditworthiness regularly when you enter into a contract and in specific scenarios, in which there is a legitimate reason. In such cases, we work with Creditreform Offenbach Gabold & Bleul KG, Goethering 59, 63067 Offenbach, a company that provides us with the data necessary to perform the credit check. For this purpose, we transmit your name and your contact details to Creditreform. For more information on data processing at Creditreform, please visit www.creditreform-offenbach.de/EU-DSGVO or send a request via e-mail/ fax or postal mail.