General Business Terms and Conditions
of the Silex-Gesellschaft für Silicon-Extrusion m.b.H.
As of August 2010
1. For all offers, contracts, deliveries and other performance with companies, including information, advising and similar matters, the following General Terms and Conditions (GTC) apply.
2. Divergent GTC’s of a buyer/contractor (hereinafter, “buyer”) do not apply insofar as they are not expressly acknowledged in writing. Alterations to the GTC’s of Silex GmbH require express written agreement. Silence as to divergent GTC’s of a buyer/contract is not valid as agreement or acknowledgment.
II. Offers, Prices, Entering into a Contract
1. All offers are non-binding. The prices apply from the factory, plus the statutorily allowed Value Added Tax. Shipping costs and all ancillary costs are separately calculated.
2. Tools will be provided to the buyer proportionately, and they remain the property of Silex GmbH.
3. Orally made side agreements, representations as well as subsequent alterations to the contract, in order to be effective, are required to be in writing.
4. For firmly scheduled goods ordered by call, which are still not produced, Silex GmbH is entitled to calculate the valid price at the time of delivery, unless it concerns a general agreement with a fixed price.
III. Delivery Deadlines
1.. Delivery deadlines are non-binding and only approximate, insofar as a binding deadline was not stipulated in writing. The time period begins to run only when the all documentation and release required to fill the order are present, and not before clarification of all details of performance. Partial deliveries are permissible.
2. Events occurring through force majeure, disruptions in traffic and operations, strikes, legally mandated measures, incorrect or untimely deliveries of subcontracting suppliers as well as unforeseeable impediments, entitle Silex GmbH to an appropriate extension of the delivery deadline or, due to the still unfilled part, to rescind the contract in whole or in part.
3. The delivery takes place within the deadline if the goods, ready for use, are brought or fetched for shipping. If delivery is delayed for reasons caused by the buyer, a report of readiness to ship suffices for ensuring of the delivery deadline.
4. After a six-week overrun of a non-binding delivery date or of a non-binding delivery deadline, the buyer is entitled to set with Silex GmbH an appropriate deadline for delivery, bound with a threat to refuse performance, through which Silex GmbH enters into default. In the case of an expiry of the supplemental deadline without result, the buyer is entitled to rescind the contract.
5. If a stipulated delivery deadline is not adhered to as the result of indebtedness, the buyer is thus entitled to withdrawal from the contract; however, only after the expiry of an established, suitable supplementary deadline without result, with the declaration of rejecting the acceptance of the delivery after expiry of the deadline. For damages which arise to the buyer therefrom, liability is restricted to intentional conduct or gross negligence. This does not apply so far as liability is mandatory in cases of intentional conduct, gross negligence or due to injury to life, limb or health.
6. The buyer’s claims for compensatory damages due to delivery delay, as well as claims of damages for performance, are also excluded, in all cases of delayed delivery, and after expiry of a deadline set by Silex GmbH. This does not apply to the extent that liability is mandatory in cases of delay, of gross negligence or due to injury to life, limb or health.
IV. Deliveries, Shipping, Transfer of Risk
1. If not separately stipulated, the delivery of goods takes place at the risk and on the account of the buyer. With the handing over to the person carrying out the transport, no later than upon leaving the factor for the purpose of shipping, the risk, including forfeiture, passes to the buyer, and, indeed, independently of whether the shipment takes place at the place of filling the order and independently of who bears the freight costs.
2. Packaging takes place at net cost price. The manner of transport takes place according to considerations of expediency under preclusion of liability, so far as no other written agreement was concluded. In the latter case, the buyer bears the possible additional costs. The preclusion of liability does not apply to cases of gross negligence or injury to life, limb, and health. Silex GmbH is entitled to insure the goods in the name of and for invoicing of the buyer, but, however, is not obligated to do so.
3. Partial deliveries are permissible. Delivered goods are therefore also to be received if they have only non-essential complaints. An acceptance with reservation must be noted with a signature on the bills of lading.
4. If the buyer, contrary to his obligation, does remove the goods, Silex GmbH is thus entitled, after setting a deadline of 10 days, to rescind the contract or to demand compensation for damages for breach of duty, whereby for this case, without further proof, 10% of the purchase price can be demanded, insofar as the buyer has not proved a lower amount of damages or Silex GmbH has not proved a higher amount of damages.
V. Conditions of Payment
1. Payments are to be made without delay, or according to the respective agreement, at the expense of and at the risk of the buyer, at the payment office of Silex GmbH. A discount deduction is granted only if no claims or receivables of any kind from the business relationship remain outstanding. Properly taxed and re-discount-eligible bills of exchange are accepted only after previous agreement and only on account of fulfilment. Bills of exchange and discount charges are invoiced separately and are immediately due and payable without deduction.
2. In the event of a delay or deferment of payment, interest in the amount of the respective bank rate for overdraft credit, but interest at least at the rate of 3% over the respective discount rate of the European Central Bank, can be charged without special warning. Moreover, the enforcement of further damages for delay remains unaffected.
3. If the buyer, despite repeated warnings, does not comply with his payment obligations, Silex GmbH is entitled to halt deliveries temporarily, to make them dependent upon the pre-payment of the stipulated compensation, or to withdraw from contracts not yet fulfilled under the setting of a deadline of 2 weeks and threat of refusal. The same applies when, after entering into the contract, circumstances concerning the financial situation of the buyer become known under which, pursuant to dutiful commercial discretion, it is appropriate to lessen the creditworthiness of the buyer. In this case, all payment obligations arising from the business connection become immediately due and payable.
VI. Reservation of Title
1. Until satisfaction of all claims, regardless of which legal ground they exist upon, including claims arising in or contingent upon the future, as well as from contracts concluded at the same time or later, the goods remain property of Silex GmbH, even if payment for specially designated claims is tendered. For ongoing invoices, property supplied under reservation of title is deemed security for the balance of Silex GmbH's claims.
2. The processing of goods supplied under reservation of title occurs for Silex GmbH, which is considered the manufacturer in terms of Section 950 of the German Civil Code (BGB), without, however, obligating Silex GmbH. The processed goods are considered goods supplied under reservation of title. Upon processing, connecting, co-mingling or mixing of goods supplied under reservation of title with goods not standing in the property of Silex GmbH, joint ownership is established in the new goods in proportion to the invoice value of the goods at the point in time of the connecting, mixing, or co-mingling. In these cases, the buyer, without being compensated, is to store safely the goods standing in the ownership or joint ownership of Silex GmbH, which goods are considered as supplied under reservation of title.
3. The buyer may dispose of, work on, or process the goods supplied under reservation of title only in the ordinary course of business and so long as he is not in default. He is entitled to further resale of them only if the claim therefrom, together with all subsidiary and lower-ranking rights, passes to Silex GmbH. The buyer assigns already now the receivables from a resale for security of all receivables of Silex GmbH from the business relationship with Silex GmbH. This also applies when the goods supplied under reservation of title are processed and / or further re-sold to several purchasers. The buyer is authorised to collect the assigned receivables. The buyer is not, however, entitled to other dispositions of the goods supplied under reservation of title, particularly pledging or assigning it as security. Upon demand by Silex GmbH, the buyer is to name the debtor of the assigned receivable and to announce the assignment. Silex GmbH is also itself entitled to announce the assignment to the debtors.
4. Silex GmbH is obligated upon the buyer’s demand, to release the securities to which it is entitled at its option, when the value of the securities exceeds the receivables to be secured by more than 20%.
5. With suspension of payments or the application or commencement of insolvency proceedings, the buyer’s right to re-sell or to use the property supplied under reservation of title is extinguished, and, further, the authorisation to collect on the assigned receivables.
6. The buyer obligates himself to issue all required information required for the exercise of rights to Silex GmbH and to hand over the required documentation, as well as to announce without out delay, in writing, the attachments, confiscations or compulsory execution measures in the goods supplied under reservation of title or the receivables assigned to Silex GmbH .
VII. Use of Customers’ Drawings
Goods which have been produced by Silex GmbH using tools manufactured according to customers’ drawings and devices may be offered and sold to third parties, even if the costs of the tools have been proportionately charged. These tools may, without the rights or claims stemming therefrom having accrued, also be used in catalogues or exhibits.
VIII. Complaints of Defects, Guarantees
1. The goods are to be examined for defects upon receipt without delay. Defects are to be complained of, without delay and in writing, within a deadline of one week after receipt of the goods, with an immediate cessation of any processing or alteration to them; defects which are not obvious are to be complained of within a deadline of one week after their discovery. The examination and complaint obligations arising out of Section 377 of the German Commercial Code (HGB) remain unaffected.
2. Silex GmbH has the right, when defects are present, at its discretion to initially undertake two attempts for improvement or to perform a substitute delivery in exchange for return of the goods complained of. Silex GmbH does not bear increased costs which thereby arise because the goods were brought to a location other than the place of performance.
3. In the event of failure of the subsequent improvement or substitute delivery, the buyer has the right to rescind the contract or to reduce the purchase price.
4. Further claims are excluded, insofar as compulsory legal obligations do not stand opposed. This especially applies for damages that have not arisen in the object of the delivery, for lost profits and other pecuniary losses to the buyer. This exclusion of liability does not apply for damages which rest upon grossly negligent or intentional conduct of Silex GmbH as well as claims for injury to life, limb or health.
5. For negligent breach of contractual obligation, the liability for damage to persons and property is restricted to the Silex GmbH's products liability insurance. Upon demand, the buyer will be granted viewing of the insurance policy.
6. The guarantee is restricted to six months from the transfer of risk. This does not apply insofar as the law compulsorily prescribes longer deadlines, particularly in cases under Section 438 Paragraph 1 of the German Civil Code (BGB) (Construction Sites and Items for Construction Sites), Section 479 Paragraph 1 of the German Civil Code (Claims for Recourse) and Section 634a Paragraph 1 No. 2 (Construction Defects) and injury to life, limb or health, for an intentional or grossly negligent breach of duty on the part of Silex GmbH and for malicious fraudulent concealment of defects.
1. Insofar as claims are not allowed expressly in these General Terms and Conditions of doing business, they are, to the extent legally permissible, excluded, regardless of the legal basis on which they are founded, unless they arise out of intentional or grossly negligent breaches of contract or from injury to life, limb, or health.
2. The exclusion of liability towards the buyer also applies in the same scope for the personal liability of legal representatives, vicarious agents, and company employees.
3. Advising and information take place to the best knowledge, but, however, are non-binding and exclude any and all liability, with the except of liability for a grossly negligent breach or injury to life, limb and health.
4. For the applicability of product liability law, the exclusions of liability in (1) and (2) above do not apply for the claims of the buyer resulting therefrom, unless the law expressly permits such a disclaimer of liability.
X. Set-Off und Right of Retention
Excluded are rights of retention, which do not rest upon the identically same contractual relationship, as well as setoff due to any counterclaims of the buyer. This does not apply if the claims of the buyer are not disputed or are ascertained in a legally timely manner.
XI. Place of Performance, Court of Jurisdiction, Applicable Law
1. The place of performance is Herne.
2. The court of jurisdiction for disputes arising out of the business relationship, including claims pertaining to the law of bills of exchange and negotiable instruments, is Herne. This also applies for the case in which the buyer, after entering into the contract, transfers his domicile or usual place of residence out of the territory of the Federal Republic of Germany, or his domicile or usual place of residence at the point in time of the filing of a legal action is not known.
3. For these General Terms and Conditions of doing business and the entire legal relationship between the seller and the buyer, the law of the Federal Republic of Germany applies.
XII. Ineffectiveness of Clauses
In the event that individual conditions among those present here are or become ineffective, the validity of the remaining provisions and the contract themselves are not affected or impaired.
Silex-Gesellschaft für Silicon-Extrusion m.b.H.
Headquarters: 44628 Herne, Amtsgericht Bochum HRB 9464
Managing Directors: Oliver Fleischer, Herman Kleinepier, Dirk Möller