1. Applicability of the terms
1.1 All of our tenders and contracts for the supply of our goods and services are based on these terms, including current and future business relations.
1.2 Any agreements that deviate from these terms and any other terms are only binding if we expressly confirm so in writing. Our terms are considered accepted when our goods and services have been accepted.
1.3 These terms apply for business transactions with companies
2. Tender - conclusion of the contract - content of the contract
2.1 Unless otherwise marked as binding, our tenders are subject to change without notice. Oral and written orders are considered accepted when order confirmation has been given in writing or the goods ordered have been delivered by an appropriate deadline.
2.2 The documents enclosed in the tender - such as charts, drawings, figures on weights or dimensions, descriptions of services and other features, and any other information about our products and services - are only approximate unless specified in writing in the contract. Information in technical documents and catalogues are not declarations of a warranty. The buyer must check them before accepting and using the order to ensure that the goods are suitable for the planned application. We reserve the right to make changes to our products in the course of further development and improvements.
2.3 „We reserve all rights of ownership and copyrights to cost estimates, drawings, and other documents; the buyer may not make them accessible to third parties.“
3. An order
3.1 Orders are not considered accepted until the supplier has given written confirmation. The text of the order confirmation is authoritative for the content of the contract thus entered into and for the content of the order. The buyer is obligated to check the entire order confirmation and to notify the supplier of any deviations immediately and in writing.
4. Scope of supply
4.1 „Our written order confirmation is authoritative for the scope of the delivery; if our offer is only valid for a limited term and the goods have to be accepted by a certain date, the tender applies unless an order confirmation is received on time. Subsidiary agreements and changes require our written confirmation.“
4.2 „The manufacture and supply of goods and services can be completely based on the buyer’s plans and other information, but this information only becomes part of the contract if expressly confirmed in writing. No guarantee of the provision of features can be derived hereof. The buyer assumes sole responsibility for the accuracy of its information; we have no obligation to check it.“
4.3 Partial delivery is admissible.
5. Delivery period
5.1 Deadlines and terms are only binding if we have expressly confirmed them as such. Terms do not begin until the buyer has provided all of the necessary services, information, permits, releases, and clarifications and approvals of plans and has upheld all of the agreed payments and other duties. If these prerequisites are not fulfilled in time, the deadlines and terms are extended accordingly.
5.2 The delivery deadline is considered to have been met if the delivery item has left the plant before the deadline or if the buyer has been notified of the supplier’s willingness to make delivery.
5.3 Any events that prevent or hamper the supply of goods and services - including but not limited to acts of God, uprisings, strikes, lockouts, supply shortages of energy or material, intervention by the authorities, and the like - likewise extend the deadline accordingly. If the supply of goods and/or services or part of that supply cannot be provided on time for reasons outside of our control, we also reserve the right to withdraw from the contract in part or whole.
5.4 „If the buyer is responsible for the delay of a shipment, a storage fee can be charged starting in the month after the order has been declared ready for delivery; this fee is 1 % of the order amount for each month begun, unless higher costs can be proven. The buyer also has the right to demonstrate that the damage was lower. The supplier does, however, have the right to dispose of the delivery item otherwise if a deadline for the buyer to accept delivery has been set and has elapsed and to supply the item to the buyer by an appropriately extended deadline.“
5.5 If the buyer incurs damage due to a delay caused by the supplier, the buyer has the right to claim compensation for this damage due to the delay to the exclusion of other claims. For each full week of the delay, 0.5 % and a maximum of 5 % of the sum of the part of the total delivery not supplied on time or not useful in accordance with this contract due to the delay may be claimed.
6 Default of acceptance of the customer
6.1 If the customer does not accept the goods by the agreed date, we are entitled to either stipulate a suitable new acceptance deadline. If this also elapses, we are entitled to dispose of the goods as we see fit or charge the customer immediately and store the goods; in the case of the latter the customer will bear all incurred costs for storage and also the risk. Our rights to withdraw from the contract or claim damages due to non-fulfilment remain unaffected. If we claim damages due to non-fulfilment, we are entitled to charge 30 % of the agreed invoiced sum if the customer cannot provide evidence that the suffered damage is considerably lower. We reserve the right to submit a claim for higher actual damages.
6.2 These conditions also apply if the customer does not accept partial deliveries ordered as part of a call order within the agreed periods.
7.1 Price lists and other general price information are subject to change without notice.
7.2 Unless otherwise agreed, prices do not include packaging, loading, transport, insurance, unloading, assembly, installation, and initiation. Prices are in EUR for delivery ex works or storage excluding the current turnover tax on the day of the delivery. Packaging, freight, any insurance that the purchaser expressly desires, etc. are charged at the prices applicable on the day of the delivery.
8. Payment terms
8.1 Invoices must be paid within 30 days of the invoice date in full to our payment office. If a set payment date is agreed, the purchaser is considered to be in arrears if it does not pay by that date - or, in other cases, if the purchaser has not paid by the date of receipt of our reminder or no later than 30 days after the due date and receipt of the invoice.
8.2 „If the purchaser is in default of payment, all outstanding accounts - including those for the supply of other goods and services, even if they are not yet due or have not been deferred - are due immediately without any further deduction. We reserve the right to charge 8 % interest above the base interest rate of the European Central Bank for all outstanding accounts since that date. The purchaser also has the right to demonstrate that the damage was lower. All outstanding accounts also become payable immediately if it turns out after the contract has been entered into that the purchaser’s economic situation does not make it seem likely that a credit period should be granted according to our business customs. In such case, we reserve the right to make the further supply of goods and services contingent upon cash payments upon delivery; if the purchaser cannot make cash payments on delivery, we reserve the right to demand compensation for damages or to withdraw from the contract to the extent it has not been fulfilled.“
8.3 Complaints that we have not expressly recognized in writing do not allow the purchaser to refuse payment. The purchaser only has the right to retain payments or offset them with counterclaims if its counterclaims are undisputed and have been established as legally effective.
9. General terms and conditions for SIKO GmbH (terms)
9.1 Risk is transferred to the purchaser not later than when the goods supplied reach the purchaser, even if partial deliveries are made and we have agreed to provide additional services, such as shipping costs, delivery, and assembly. At the purchaser’s request, we can insure the shipment at the purchaser’s expense for theft, breakage, and/or damage due to transport, fire, and water or any other risks than can be insuredt.
9.2 If the shipment is delayed due to circumstances caused by the purchaser, risk is transferred to the purchaser on the day on which the supplier was willing to ship to the purchaser. At the purchaser’s request and at its expense, we will provide insurance coverage that the purchaser expressly desires.
9.3 Unless the purchaser otherwise requests, the type of shipment is chosen at the discretion of the supplier.
10. Consumers‘ rights and liability
10.1 The purchaser’s rights require that it have fulfilled its duties to inspect the goods and notify the supplier of any defects in accordance with Section 377 of the German Commercial Code.
10.2 The usual commercial tolerances for dimensions, volume, weight, quality, color, etc. must be taken into consideration for complaints. Reference to DIN standards contains a specific designation of the goods but does not constitute a warranty.
10.3 We reserve the right, at our discretion, either to rework any parts at no charge or to provide replacement parts if the parts originally supplied prove to be useless or not insignificantly defective within the warranty period if the cause lies before the transfer of risk, such as due to poor construction or design, poor materials, or poor workmanship. We must be notified of such defects within 5 days in writing. After this period, the goods are considered accepted. Liability for any defects that were not apparent remains unaffected. However, the purchaser must also notify us of any defects that appear at a later date within 5 days.
10.4 Within the warranty period in accordance with 10.8, we reserve the right to either rework items, provide replacements, or accept returns at the invoiced amount if they prove to be useless or not insignificantly defective but it cannot be demonstrated that we are responsible for the cause of the damage, which must have occurred before the transfer of risk as described in 10.3. Parts replaced are our property. For essential products from third parties, the supplier’s liability is limited to the assignment of liability claims that he may have towards the supplier of the procured products.
10.5 The purchaser has a right to withdraw from the contract within the legal regulations if we do not provide a remedy by an appropriate deadline set for us to reworking or provide a substitute part to replace a defective part with consideration of the legal exceptions.
10.6 If the purchaser cannot use the delivery item for the contractually intended purpose due to an error on our part or a failure on our part to perform proposals or provide consulting or a breach of other contractual ancillary duties - including but not limited to operation and maintenance instructions for the delivery item - the purchaser may apply the regulations in Sections 10.1 - 10.5 and 10.7. to the exclusion of other claims.
10.7 „We are only liable - on whatever legal basis - for damage that does not occur to the delivery item itself if: we have caused the damage intentionally; the company’s executive bodies or middle managers have committed gross negligence; we are culpable of causing danger to life and limb; we maliciously fail to notify the purchaser of defects; we have guaranteed that such defects would not occur; or if there are defects for which the Product Liability Act provides liability in case of injuries or damage to privately used objects. If we culpably violate essential contractual duties, we are also liable for the gross negligence of employees below middle management and for negligence limited to the damage typical of contracts and reasonably predictable. Other claims are excluded.“
10.8 All of the purchaser’s claims - on whatever legal grounds - expire after 12 months. The legal deadlines apply for intentional or malicious conduct and for claims based on the Product Liability Act.
10.9 Changes or servicing made by the purchaser or by third parties done improperly or without the prior consent of the supplier exonerates the supplier of any liability for resulting damage.
10.10 Warranty claims can only be transferred without or prior written consent
11. Reservation of ownership
11.1 The goods supplied remain our property as a conditional commodity until the fees and outstanding accounts for all business relations have been paid in full, including any outstanding accounts concerning the delivery item and any future outstanding accounts. The assertion of this reservation of ownership does not constitute a withdrawal from the contract.
11.2 If the purchaser is in default of payment, we have the right to demand that the conditional commodity be returned after a reminder.
11.3 „If the purchaser processes the conditional commodity to make a new movable object, the processing does not affect our rights and duties; we retain ownership of the new object. If the object is processing into a new object along with goods that do not belong to us, we retain joint ownership of the new object based on the ratio of the value of the conditional commodity to the other goods used in processing. If the conditional commodity is combined or mixed with goods that do not belong to us in accordance with Sections 947, 948 of the German Civil Code, we retain joint ownership in accordance with the legal stipulations. If the purchaser obtains sole ownership through a combination or mixture, it automatically transfers joint ownership to us in relation to the value of the conditional commodity and the other goods at the time of the combination or mixture. In this case, the purchaser shall store the item for which we retain ownership or joint ownership and which also constitutes a conditional commodity as stipulated in the following provisions.“
11.4 „If the purchaser sells the conditional commodity alone or along with other goods that do not belong to us, the purchaser automatically assigns the claims from the sale of the conditional commodity in the value of the conditional commodity along with all ancillary rights from the rest; we accept this assignment. The value of the conditional commodity is the amount of the invoice excluding a 20 % security surcharge, which, however, is not applied if it conflicts with the rights of third parties. If we retain joint ownership of the conditional commodity resold, the assignment of the claims applies to the amount that corresponds to our share of joint ownership. Section 1, sentence 2 applies accordingly for extended reservation of ownership.“
11.5 „If the purchaser includes the conditional commodity as an essential part of the land or building of a third party or if we do so on behalf of the purchaser, the purchaser automatically assigns equivalent claims for compensation by the third party or the party concerned in the amount of the value of the conditional commodity with all ancillary rights, including the granting of a security mortgage with priority over the rest; we accept this assignment. Section 2, sentences 2 and 3 apply accordingly.“
11.6 The purchaser only has the right and authority to resell, use, or install the conditional commodity in the usual course of business and provided that the claim is actually assigned to us in accordance with Section 11. “Reservation of ownership”. The purchaser is not authorized to otherwise dispose of the conditional commodity, such as in pledges or security transfers..
11.7 „The purchaser is authorized to demand settlement of the assigned claims in accordance with Sections 3 and 4 with the proviso of revocation. We shall not make use of our own authority to collect payment as long as the purchaser fulfills its duty to make payments, including those to third parties. On our request, the purchaser must name the debtors for the assigned claim and notify them of this assignment; we also have the right to notify the debtors of this assignment ourselves.“
11.8 If we collect payments for the assigned claims, the purchaser is obligated to assist us comprehensively in collecting payments, especially in creating invoicing, providing information, and handing out documents to the extent this is necessary for collections.
11.9 The purchaser must inform us immediately of any levy of execution on the conditional commodity or the assigned claims by third parties by providing us with the documents needed for an objection.
11.10 „If payments are discontinued or if insolvency proceedings are filed for, the right to resell, use, or install the conditional commodity and the authorization to collect the assigned claims expires; authorization for direct debit also expires in this case for checks or protest.“
11.11 „If payments are discontinued or if insolvency proceedings are filed for, the right to resell, use, or install the conditional commodity and the authorization to collect the assigned claims expires; authorization for direct debit also expires in this case for checks or protest.“
12. Industrial property rights
12.1 Should the delivered goods be in violation of the industrial property rights of third parties, we shall only indemnify the purchaser from the claims of third parties if the purchaser informs us immediately and in writing of such claims, refrains from any action that could hamper our legal position, and gives us sufficient opportunity at our discretion and at our expenses either to have the right of use granted by the third parties or to change or exchange the goods that violate industrial property rights such that no industrial property rights are violated.
13. Final provisions
13.1 German law applies. This also holds if the buyer is a foreigner or has headquarters abroad. The language of the contract is German.
13.2 For both parties and for all current and future claims, the place of execution for the supply of goods and services and for payments and the exclusive venue for the settlement of all disputes, including complaints concerning documentation and legal proceedings related to a bill of exchange, is the supplier’s headquarters if the purchaser is a businessman, a person according to public law, or a special fund according to public law. The supplier also has the right to file suit at any other legal venue for the settlement of disputes.
13.3 Should any provision in this agreement be or become invalid, the validity of the other provisions is not affected.
last update: 12/2010