Terms and Conditions

General terms and conditions

Standard Sale, Delivery and Payment Terms

RECA NORM GmbH

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I. Scope of applicability, general terms

1. The present Business Terms shall apply to all business relations of RECA NORM GmbH (hereinafter referred to as „RECA“) with its customers (hereinafter referred to as „Buyer“). The Business Terms shall only apply if the Buyer is an entrepreneur (§ 14 Civil Code), a legal entity of public law or a segregated estate under public law.

2. These Business Terms shall apply exclusively; the Buyer's contrary terms or terms differing from these Business Terms shall not be recognised by RECA unless it has expressly consented to their applicability. The present Business Terms shall also apply if RECA, although aware of the Buyer's contrary terms or terms differing from its Business Terms, unconditionally carries out delivery to the Buyer.

3. Individual agreements reached in a specific instance with the Buyer shall in any case take precedence over these Business Terms. For the contents of any such agreements, a written contract or a written confirmation by RECA shall be authoritative.

4. Legally relevant statements and notifications to be issued to RECA by the Buyer after signing of the contract (e.g., setting of deadlines, notifications of flaws, statement of withdrawal or abatement) shall require written form to be valid.

5. References to the applicability of statutory regulations shall only have clarifying significance. The statutory regulations shall therefore also apply even without such clarification, unless they are directly modified in these Business Terms or expressly excluded.

 

II. Contract signing

1. RECA's offers shall be subject to change and without obligation. This shall also apply if RECA has given the Buyer catalogues, technical documentations, other product descriptions or documents to which RECA retains title or copyright.

2. Ordering of the goods by the Buyer shall be deemed to be a binding offer of contract. If nothing else transpires from the order, RECA shall be entitled to accept that contract offer within four weeks of its receipt by RECA.

3. Acceptance of the order may be declared either in writing by means of an order confirmation or by delivery of the goods to the Buyer. Any transmission by remote data transfer shall meet the requirements of written form.

4. Should RECA make use of tele-media for the purpose of signing a contract for the delivery of goods or performance of services (contract in electronic business communication), the Buyer shall waive making appropriate, effective and accessible technical means available to recognise and correct input errors, any notification of information referred to in art 246, § 3 of the Act to Introduce the Civil Code as well as any confirmation of receipt of its order. Orders transmitted by electronic means shall only be deemed to be received if they are retrieved and opened by RECA.

III. Price and payment terms

1. All of RECA's prices shall be understood to mean ex warehouse plus the statutory value-added tax applicable at the time of invoicing.

2. In case of sale to destination determined by the Buyer (section VI, item 1), the Buyer shall bear shipping costs ex warehouse (including the costs of shipment packing and loading) and the costs of any shipping insurance desired by the Buyer. Any eventual customs duties, fees, taxes and other public charges shall be borne by the Buyer. RECA shall not take back shipment or any other packing materials under the provisions of the Packing Ordinance and they shall become the property of the Buyer. An exception to this shall be pallets.

3. For small orders a minimum quantity allowance in an appropriate amount will be charged.

4. Unless otherwise agreed, the agreed purchase price shall be due within 20 calendar days of invoicing and must be paid. If the Buyer makes payment within 10 calendar days, RECA shall grant it 2% early payment discount on the gross amount of the invoice.

5. For all means of payment, the date on which RECA may dispose of the amount owed by the Buyer shall be deemed to be the date of payment receipt.

6. At the end of the payment deadline cited in item 4, the Buyer shall come into arrears. The purchase price shall bear interest during arrears at the applicable statutory late payment rate of interest. RECA reserves the right to assert damages for late payment going beyond this. In relation to businessmen, RECA's claim to the commercial interest due (§ 353 Commercial Code) shall not be affected.

7. The Buyer shall only be entitled to set-off or retention rights to the extent that its claim has been definitively adjudicated or is not contested. For flaws in delivery, the Buyer's adverse rights shall not be affected.

8. If it becomes clear after signing of the contract that RECA's claim to the purchase price is jeopardised by inadequate solvency on the part of the Buyer (e.g., due to initiation of insolvency proceedings) then RECA shall be entitled under the statutory regulations on refusal to perform and, where applicable, after setting a deadline, to withdraw from the contract (§ 321 Civil Code). In case of contracts on production of non-generic objects (individual manufacture), RECA may declare withdrawal immediately. Statutory provisions on the indispensability of setting a deadline shall not be affected.

9. Should RECA have a claim to payment on the Buyer from its permanent business relationship with the Buyer then RECA may refuse to deliver goods until the Buyer has made the payment due. This shall apply accordingly during the period of time exceeding any credit limit granted by RECA to the Buyer.

 

IV. Retained title

1. Pending complete payment of all current and future claims under the relevant purchase contracts and the current business relationship (hereinafter referred to as „secured claims“), RECA reserves the right to retain title to the goods sold.

2. The goods under retained title may neither be hypothecated to third parties nor assigned as collateral prior to complete payment of the secured claims. The Buyer must immediately notify RECA in writing if and to the extent there is any third-party recourse on the goods.

3. In case of actions by the Buyer in breach of the contract, in particular in case of non-payment of the purchase price due, RECA shall be entitled under the statutory regulations to withdraw from the contract and to demand surrender of the goods on the basis of the retained title and withdrawal from the contract. Should the Buyer not pay the purchase price due, RECA may only assert such rights if RECA prior to that had set the Buyer an appropriate deadline for payment to no avail or if such setting of a deadline is dispensable under statutory regulations.

4. The Buyer shall be authorised to resell and/or process the goods under retained title in the proper course of its business. In that case, the following provisions shall apply supplementally.

(a) The retained title shall extend to the products originating by processing, commingling or combining RECA's goods in their full value, in which context RECA is deemed to be the manufacturer. If in case of processing, commingling or combining with third-party goods their retained title survives, then RECA shall acquire co-title in the ratio of the invoiced values of the processed, commingled or combined goods. Beyond that, the same shall apply to the product created as to the goods delivered under retained title.

(b) The Buyer hereby assigns to RECA as collateral all claims on third parties due to resale of the goods or products or in the amount of any eventual co-title of RECA under the above paragraph. RECA hereby accepts such assignment. The Buyer's obligations as cited in item 2 shall also apply in respect of the assigned claims.

(c) The Buyer shall remain authorised together with RECA to collect on the claim. RECA shall be obliged not to collect on the claim as long as the Buyer complies with its payment obligations in relation to RECA, does not go into arrears with payment, there is no initiation of insolvency proceedings and there is no other flaw in its performance ability. However, if this is the case RECA may demand that the Buyer makes the assigned claims and their debtors known to RECA and provides all information required for collection, surrendering the relevant documentation and informing the (third-party) debtors of such assignment.

(d) Should the realisable value of the collateral exceed RECA's claims by more than 10% then RECA will at the demand of the Buyer release collateral. The selection of the collateral to be released shall be at RECA's discretion.

 

V. Delivery period, delivery deadline, force majeure and arrears in delivery

1. Delivery and performance periods and delivery and performance deadlines shall be agreed individually or indicated by RECA upon acceptance of the order.

2. Commencement of the individually agreed delivery or performance period, or the ones indicated by RECA, shall presuppose clarification of all technical issues.

3. Compliance with RECA's delivery and performance obligation shall furthermore presuppose timely and proper fulfilment of the Buyer's obligation. The right to the defence of contract-not-fulfilled shall remain reserved.

4. Should RECA, for reasons for which it is not liable, not receive deliveries or performance from subsuppliers or subcontractors despite proper congruent stocking-up, or not receive deliveries correctly or on time, or should force majeure events occur, i.e. obstacles to performance without fault and lasting for more than 14 calendar days, then RECA shall inform the Buyer thereof in writing in due time. In that case, RECA shall be entitled to postpone delivery or performance by the duration of the obstacle or to withdraw, fully or partially, from the still unfulfilled part of the contract, provided RECA has complied with its obligation to inform the Buyer as mentioned above and has not assumed the procurement or production risk and provided the obstacle to performance is not merely of a temporary nature. Equated with force majeure shall be strikes, lockouts, government interference, scarcity of energy or raw materials, shipping bottlenecks without fault, operational obstacles without fault such as caused by fire, leakage and damage to machinery and all other obstacles which, objectively seen, were not caused by the fault of RECA.

5. Where a delivery or performance period or a delivery or performance deadline has been bindingly agreed and where due to events as under item 4 the agreed delivery or performance period is exceeded by more than four weeks, or where with a non-binding performance deadline the Buyer cannot objectively be expected to maintain the contract, then the Buyer shall be entitled to withdraw from the contract due to the part not fulfilled.

6. The occurrence of arrears in delivery by RECA shall be governed by the statutory regulations. In any case, a reminder by the Buyer shall be required. Should RECA go into arrears with delivery then the Buyer may demand flat-rate compensation for its damages due to arrears. The flat-rate compensation shall for every completed calendar week come to 0.5% of the net value of the goods, however at most to a total of 5% of the net value of the goods delivered late. RECA reserves the right to show that the Buyer suffered no damages or significantly less damages than covered by the flat-rate above.

7. The Buyer's rights under section IX of these Business Terms and RECA's statutory rights, in particular in case of exclusion of the obligation to performance (e.g., due to impossibility or unreasonable nature of performance and/or subsequent fulfilment), shall remain unaffected.

 

VI. Delivery, passing of risk, delay in acceptance

1. Delivery shall be ex warehouse which is also the venue of fulfilment. At the demand and expense of the Buyer the goods will be sent to another destination (sale to destination determined by the Buyer). Unless otherwise agreed, RECA shall be entitled to itself determine the mode of shipping (in particular the shipping company, shipping route and the packing).

2. Partial deliveries shall be allowed provided they do not entail any disadvantage for the Buyer.

3. Taking the constellation of interests in a specific instance into account and in the framework of what is reasonable, RECA shall in case of custom manufacture reserve the right to overage and underage in delivery as is customary in the trade.

4. The risk of accidental destruction and accidental deterioration of the goods shall pass to the Buyer at the latest when the goods are handed over. However, in a sale with destination determined by the Buyer, the risk of accidental destruction or accidental deterioration of the goods as well as the risk of delay shall pass when the goods are delivered to the freight forwarder, the carrier or the individual or party otherwise intended for shipping. Equated with hand-over shall be if the Buyer is in arrears with acceptance.

5. Should the Buyer be in arrears with acceptance, omit any act of cooperation or if delivery should be delayed for any other reasons for which the Buyer is liable then RECA shall be entitled to demand compensation for the resulting damages, including extra expenses (e.g., storage costs).

 

VII. Industrial property rights

1. The Buyer shall be obliged to notify RECA without delay of any third-party industrial property claims in respect of products delivered by RECA. RECA shall be entitled but not obliged to assume legal defence at its own expense and on its own responsibility. 

2. The Buyer shall ensure that goods and performance contributed shall be free of third-party industrial property rights. In case of legal flaws, it shall exonerate RECA from all corresponding third-party claims unless it is not liable for the legal flaw.

3. On all documents or auxiliary supplies given to the Buyer, such as blueprints, illustrations, graphic material, designs, calculations, descriptions, plans, technical specifications, documentation, data media and software programmes, RECA reserves ownership title and copyrights. Such documents and auxiliary supplies shall be used exclusively for contract performance and may not be made accessible to third parties without RECA's express written consent. The software programmes made available by RECA may only be used by the Buyer in the framework of applicable licence regulations.

 

VIII. Buyer's claims due to flaws

1. Statutory regulations shall apply to the Buyer's rights in case of physical and legal flaws, unless otherwise determined below.

2. The basis for RECA's liability for flaws shall primarily be the agreement reached on the make-up of the goods. Deemed to be an agreement on the make-up of the goods shall be any information, blueprints, illustrations, samples, technical information and data as well as any recommendations on use contained in prospectuses, catalogues, advertisements, price lists or bid documents, provided they have been expressly confirmed by RECA as binding and validly included in the particular contract. Only such guarantees on the make-up of the goods that RECA has expressly designated as such in its order confirmation shall be deemed to be such guarantees.

3. The Buyer's claims for flaws presuppose that it has complied with its statutory examination and complaint obligations (§§ 377, 381 Commercial Code). Should a flaw appear upon examination or later, then RECA must be notified hereof in writing and without delay. Notification "without delay" shall be any notification made within two weeks where timely dispatch of notification shall suffice to meet the deadline. Regardless of this examination and complaint obligation, the Buyer must report obvious flaws (including wrong or insufficient delivery) in writing within two weeks of delivery, where timely dispatch of notification shall here as well suffice to meet the deadline. Should the Buyer fail to examine properly and/or fail to make notification of the flaw, RECA's liability shall be excluded for any flaw not notified.

4. Should the item delivered be flawed, RECA may initially choose whether it will provide subsequent fulfilment by repairing the flaw (subsequent improvement) or by delivering a non-flawed item (replacement delivery). RECA's right to refuse subsequent fulfilment under statutory conditions shall remain unaffected.

5. RECA shall be entitled to make the subsequent fulfilment owed dependent upon the Buyer paying the purchase price due. However, the Buyer shall be entitled to withhold a portion of the purchase price appropriate to the flaw.

6. The Buyer must allow RECA the time and opportunity required for the subsequent fulfilment required and must, in particular, surrender the goods complained of for the purpose of having them tested. In case of replacement delivery, the Buyer must under statutory regulations return the flawed item to RECA. Subsequent fulfilment shall neither include removal nor reinstallation of the flawed item, unless RECA was originally obliged to install it.

7. The expenses required for testing and subsequent fulfilment, in particular shipping, freight, work and material costs (but not: removal and installation costs) shall be borne by RECA if there actually is a flaw. However, should a demand for repair of a flaw by the Buyer turn out to be unjustified, RECA may demand reimbursement by the Buyer of costs incurred.

8. Should subsequent fulfilment fail or should an appropriate deadline set by the Buyer for subsequent fulfilment passes to no avail or if such a deadline was dispensable under statutory regulations, the Buyer may withdraw from the contract or abate the purchase price. However, in case of an insignificant flaw there shall be no right to withdraw.

9. The Buyer's claims to damage compensation or reimbursement of unnecessary expenses shall only apply under the provisions of section IX and shall otherwise be excluded.

 

IX. Other liability

1. Unless it otherwise emerges from these Business Terms including the provisions below, RECA shall be liable for any breach of contractual or non-contractual obligations under relevant statutory regulations.

2. RECA shall be liable for damage compensation, regardless of the legal grounds, in case of deliberate intent and gross negligence. In case of simple negligence RECA shall only be liable

a) for injury to life, limb or health,

b) for damages due to the breach of an essential contractual obligation (an obligation whose fulfilment makes proper execution of the contract possible at all and whose compliance the contractual partner regularly trusts in and may trust in); in that case, RECA's liability shall however be limited to compensation of the predictable and typically occurring damage.

3. The limitations on liability entailed by item 2 shall not apply if RECA has maliciously concealed a flaw or it has assumed a guarantee for the make-up of the goods. The same shall apply to the Buyer's claims under the Product Liability Act.

4. For any breach of obligation not consisting of a flaw the Buyer may only withdraw or cancel if RECA is liable for the breach of obligation. Any free right of cancellation by the Buyer (in particular under §§ 651, 649 Civil Code) shall be excluded. Otherwise, the statutory conditions and legal consequences shall apply.

 

X. Statute of limitations

1. Contrary to § 438, paragraph 1, numeral 3 Civil Code, the general statute of limitations for claims for physical and legal flaws shall be one year from delivery.

2. However, if the goods consist of a work of construction or an item that is normally intended for a work of construction according to its usual mode of use and that has rendered the work of construction flawed (building materials), the statute of limitations under statutory regulation shall be five years from delivery (§ 438, paragraph 1, numeral 2 Civil Code). Likewise unaffected shall be special statutory regulations for third-party claims for physical surrender (§ 438, paragraph 1, numeral 1 Civil Code), in case of deception by the Seller (§ 438, paragraph 3 Civil Code) and for recourse claims against suppliers where ultimate delivery is to a consumer (§ 479 Civil Code).

3. The above statutes of limitation in purchase law shall also apply as well to contractual and non-contractual damage compensation claims by the Buyer due to a flaw in the goods unless application of the usual statutory statute of limitations (§§ 195, 199 Civil Code) would in the particular instance entail a shorter statute of limitations. The statutes of limitations under the Product Liability Act shall in any case not be affected. Otherwise, statutory statutes of limitations shall exclusively apply to Buyer damage compensation claims under section IX.

 

XI. Hydrogen embrittlement

1. RECA and the Buyer are aware of the many different causes and issues of hydrogen induced brittle fracture, in particular with electro-plated, high-tensile or application hardened articles upwards of a tensile strength of 1000 N/mm² and core hardening and surface hardening upwards of 320 HV according to DIN EN ISO 4042. The complete elimination of the risk of hydrogen embrittlement cannot be guaranteed by RECA.

2. If the probability of hydrogen embrittlement is to be reduced due to the concrete area of application of the goods to be delivered by RECA, e.g. due to their construction or for safety reasons, the Buyer shall be obliged to jointly reach an agreement with RECA on process execution and materials sourcing in order to counter the above cited risks.

3. DIN EN ISO 4042 shall be an integral component of the contracts signed between RECA and the Buyer.

 

XII. Choice of law and court venue

1. The law of the Federal Republic of Germany shall apply to these business relations and to all legal relations between RECA and the Buyer with exclusion of international standard law and in particular the UN Convention on the International Sale of Goods (CISG). Prerequisites and effects of the retained title under section IV shall be subject to the lex loci of the place where the item is stored, if according thereto the choice of German law is accordingly not allowed or void.

2. If the Buyer is a businessman within the meaning of the Commercial Code, or a legal entity of public law or a segregated estate under public law, then the exclusive court venue, including for international purposes, for all disputes directly or indirectly stemming from this contract relationship shall be where RECA's registered offices are located in 74635 Kupferzell in Germany. RECA shall however also be entitled to bring suit in the general court venue of the Buyer.

Version dated April 2014


 

Standard Sale, Delivery and Payment Terms of SILLER & LAAR Schrauben-Werkzeug- und Beschläge-Handel GmbH & Co. KG  

I. Scope of applicability, general terms

1. The present Business Terms shall apply to all business relations of Siller & Laar Schrauben-Werkzeug- und Beschläge-Handel GmbH & Co. KG  (hereinafter referred to as „Siller & Laar“) with its customers (hereinafter referred to as „Buyer“). The Business Terms shall only apply if the Buyer is an entrepreneur (§ 14 Civil Code), a legal entity of public law or a segregated estate under public law.

2. These Business Terms shall apply exclusively; the Buyer's contrary terms or terms differing from these Business Terms shall not be recognised by SILLER & LAAR unless it has expressly consented to their applicability. The present Business Terms shall also apply if SILLER & LAAR, although aware of the Buyer's contrary terms or terms differing from its Business Terms, unconditionally carries out delivery to the Buyer.

3. Individual agreements reached in a specific instance with the Buyer shall in any case take precedence over these Business Terms. For the contents of any such agreements, a written contract or a written confirmation by SILLER & LAAR shall be authoritative.

4. Legally relevant statements and notifications to be issued to SILLER & LAAR by the Buyer after signing of the contract (e.g., setting of deadlines, notifications of flaws, statement of withdrawal or abatement) shall require written form to be valid.

5. References to the applicability of statutory regulations shall only have clarifying significance. The statutory regulations shall therefore also apply even without such clarification, unless they are directly modified in these Business Terms or expressly excluded.

 

II. Contract signing

1. SILLER & LAAR's offers shall be subject to change and without obligation. This shall also apply if SILLER & LAAR has given the Buyer catalogues, technical documentations, other product descriptions or documents to which SILLER & LAAR retains title or copyright.

2. Ordering of the goods by the Buyer shall be deemed to be a binding offer of contract. If nothing else transpires from the order, SILLER & LAAR shall be entitled to accept that contract offer within four weeks of its receipt by SILLER & LAAR.

3. Acceptance of the order may be declared either in writing by means of an order confirmation or by delivery of the goods to the Buyer. Any transmission by remote data transfer shall meet the requirements of written form.

4. Should SILLER & LAAR make use of tele-media for the purpose of signing a contract for the delivery of goods or performance of services (contract in electronic business communication), the Buyer shall waive making appropriate, effective and accessible technical means available to recognise and correct input errors, any notification of information referred to in art 246, § 3 of the Act to Introduce the Civil Code as well as any confirmation of receipt of its order. Orders transmitted by electronic means shall only be deemed to be received if they are retrieved and opened by SILLER & LAAR.

 

III. Price and payment terms

1. All of SILLER & LAAR's prices shall be understood to mean ex warehouse plus the statutory value-added tax applicable at the time of invoicing.

2. In case of sale to destination determined by the Buyer (section VI, item 1), the Buyer shall bear shipping costs ex warehouse (including the costs of shipment packing and loading) and the costs of any shipping insurance desired by the Buyer. Any eventual customs duties, fees, taxes and other public charges shall be borne by the Buyer. SILLER & LAAR shall not take back shipment or any other packing materials under the provisions of the Packing Ordinance and they shall become the property of the Buyer. An exception to this shall be pallets.

3. For small orders a minimum quantity allowance in an appropriate amount will be charged.

4. Unless otherwise agreed, the agreed purchase price shall be due within 20 calendar days of invoicing and must be paid. If the Buyer makes payment within 10 calendar days, SILLER & LAAR shall grant it 2% early payment discount on the gross amount of the invoice.

5. For all means of payment, the date on which SILLER & LAAR may dispose of the amount owed by the Buyer shall be deemed to be the date of payment receipt.

6. At the end of the payment deadline cited in item 4, the Buyer shall come into arrears. The purchase price shall bear interest during arrears at the applicable statutory late payment rate of interest. SILLER & LAAR reserves the right to assert damages for late payment going beyond this. In relation to businessmen, SILLER & LAAR's claim to the commercial interest due (§ 353 Commercial Code) shall not be affected.

7. The Buyer shall only be entitled to set-off or retention rights to the extent that its claim has been definitively adjudicated or is not contested. For flaws in delivery, the Buyer's adverse rights shall not be affected.

8. If it becomes clear after signing of the contract that SILLER & LAAR's claim to the purchase price is jeopardised by inadequate solvency on the part of the Buyer (e.g., due to initiation of insolvency proceedings) then SILLER & LAAR shall be entitled under the statutory regulations on refusal to perform and, where applicable, after setting a deadline, to withdraw from the contract (§ 321 Civil Code). In case of contracts on production of non-generic objects (individual manufacture), SILLER & LAAR may declare withdrawal immediately. Statutory provisions on the indispensability of setting a deadline shall not be affected.

9. Should SILLER & LAAR have a claim to payment on the Buyer from its permanent business relationship with the Buyer then SILLER & LAAR may refuse to deliver goods until the Buyer has made the payment due. This shall apply accordingly during the period of time exceeding any credit limit granted by SILLER & LAAR to the Buyer.

 

IV. Retained title

1. Pending complete payment of all current and future claims under the relevant purchase contracts and the current business relationship (hereinafter referred to as „secured claims“), SILLER & LAAR reserves the right to retain title to the goods sold.

2. The goods under retained title may neither be hypothecated to third parties nor assigned as collateral prior to complete payment of the secured claims. The Buyer must immediately notify SILLER & LAAR in writing if and to the extent there is any third-party recourse on the goods.

3. In case of actions by the Buyer in breach of the contract, in particular in case of non-payment of the purchase price due, SILLER & LAAR shall be entitled under the statutory regulations to withdraw from the contract and to demand surrender of the goods on the basis of the retained title and withdrawal from the contract. Should the Buyer not pay the purchase price due, SILLER & LAAR may only assert such rights if SILLER & LAAR prior to that had set the Buyer an appropriate deadline for payment to no avail or if such setting of a deadline is dispensable under statutory regulations.

4. The Buyer shall be authorised to resell and/or process the goods under retained title in the proper course of its business. In that case, the following provisions shall apply supplementally.

(a) The retained title shall extend to the products originating by processing, commingling or combining SILLER & LAAR's goods in their full value, in which context SILLER & LAAR is deemed to be the manufacturer. If in case of processing, commingling or combining with third-party goods their retained title survives, then SILLER & LAAR shall acquire co-title in the ratio of the invoiced values of the processed, commingled or combined goods. Beyond that, the same shall apply to the product created as to the goods delivered under retained title.

(b) The Buyer hereby assigns to SILLER & LAAR as collateral all claims on third parties due to resale of the goods or products or in the amount of any eventual co-title of SILLER & LAAR under the above paragraph. SILLER & LAAR hereby accepts such assignment. The Buyer's obligations as cited in item 2 shall also apply in respect of the assigned claims.

(c) The Buyer shall remain authorised together with SILLER & LAAR to collect on the claim. SILLER & LAAR shall be obliged not to collect on the claim as long as the Buyer complies with its payment obligations in relation to SILLER & LAAR, does not go into arrears with payment, there is no initiation of insolvency proceedings and there is no other flaw in its performance ability. However, if this is the case SILLER & LAAR may demand that the Buyer makes the assigned claims and their debtors known to SILLER & LAAR and provides all information required for collection, surrendering the relevant documentation and informing the (third-party) debtors of such assignment.

(d) Should the realisable value of the collateral exceed SILLER & LAAR's claims by more than 10% then SILLER & LAAR will at the demand of the Buyer release collateral. The selection of the collateral to be released shall be at SILLER & LAAR's discretion.

 

V. Delivery period, delivery deadline, force majeure and arrears in delivery

1. Delivery and performance periods and delivery and performance deadlines shall be agreed individually or indicated by SILLER & LAAR upon acceptance of the order.

2. Commencement of the individually agreed delivery or performance period, or the ones indicated by SILLER & LAAR, shall presuppose clarification of all technical issues.

3. Compliance with SILLER & LAAR's delivery and performance obligation shall furthermore presuppose timely and proper fulfilment of the Buyer's obligation. The right to the defence of contract-not-fulfilled shall remain reserved.

4. Should SILLER & LAAR, for reasons for which it is not liable, not receive deliveries or performance from subsuppliers or subcontractors despite proper congruent stocking-up, or not receive deliveries correctly or on time, or should force majeure events occur, i.e. obstacles to performance without fault and lasting for more than 14 calendar days, then SILLER & LAAR shall inform the Buyer thereof in writing in due time. In that case, SILLER & LAAR shall be entitled to postpone delivery or performance by the duration of the obstacle or to withdraw, fully or partially, from the still unfulfilled part of the contract, provided SILLER & LAAR has complied with its obligation to inform the Buyer as mentioned above and has not assumed the procurement or production risk and provided the obstacle to performance is not merely of a temporary nature. Equated with force majeure shall be strikes, lockouts, government interference, scarcity of energy or raw materials, shipping bottlenecks without fault, operational obstacles without fault such as caused by fire, leakage and damage to machinery and all other obstacles which, objectively seen, were not caused by the fault of SILLER & LAAR.

5. Where a delivery or performance period or a delivery or performance deadline has been bindingly agreed and where due to events as under item 4 the agreed delivery or performance period is exceeded by more than four weeks, or where with a non-binding performance deadline the Buyer cannot objectively be expected to maintain the contract, then the Buyer shall be entitled to withdraw from the contract due to the part not fulfilled.

6. The occurrence of arrears in delivery by SILLER & LAAR shall be governed by the statutory regulations. In any case, a reminder by the Buyer shall be required. Should SILLER & LAAR go into arrears with delivery then the Buyer may demand flat-rate compensation for its damages due to arrears. The flat-rate compensation shall for every completed calendar week come to 0.5% of the net value of the goods, however at most to a total of 5% of the net value of the goods delivered late. SILLER & LAAR reserves the right to show that the Buyer suffered no damages or significantly less damages than covered by the flat-rate above.

7. The Buyer's rights under section IX of these Business Terms and SILLER & LAAR's statutory rights, in particular in case of exclusion of the obligation to performance (e.g., due to impossibility or unreasonable nature of performance and/or subsequent fulfilment), shall remain unaffected.

 

VI. Delivery, passing of risk, delay in acceptance

1. Delivery shall be ex warehouse which is also the venue of fulfilment. At the demand and expense of the Buyer the goods will be sent to another destination (sale to destination determined by the Buyer). Unless otherwise agreed, SILLER & LAAR shall be entitled to itself determine the mode of shipping (in particular the shipping company, shipping route and the packing).

2. Partial deliveries shall be allowed provided they do not entail any disadvantage for the Buyer.

3. Taking the constellation of interests in a specific instance into account and in the framework of what is reasonable, SILLER & LAAR shall in case of custom manufacture reserve the right to overage and underage in delivery as is customary in the trade.

4. The risk of accidental destruction and accidental deterioration of the goods shall pass to the Buyer at the latest when the goods are handed over. However, in a sale with destination determined by the Buyer, the risk of accidental destruction or accidental deterioration of the goods as well as the risk of delay shall pass when the goods are delivered to the freight forwarder, the carrier or the individual or party otherwise intended for shipping. Equated with hand-over shall be if the Buyer is in arrears with acceptance.

5. Should the Buyer be in arrears with acceptance, omit any act of cooperation or if delivery should be delayed for any other reasons for which the Buyer is liable then SILLER & LAAR shall be entitled to demand compensation for the resulting damages, including extra expenses (e.g., storage costs).

 

 

VII. Industrial property rights

1. The Buyer shall be obliged to notify SILLER & LAAR without delay of any third-party industrial property claims in respect of products delivered by SILLER & LAAR. SILLER & LAAR shall be entitled but not obliged to assume legal defence at its own expense and on its own responsibility. 

2. The Buyer shall ensure that goods and performance contributed shall be free of third-party industrial property rights. In case of legal flaws, it shall exonerate SILLER & LAAR from all corresponding third-party claims unless it is not liable for the legal flaw.

3. On all documents or auxiliary supplies given to the Buyer, such as blueprints, illustrations, graphic material, designs, calculations, descriptions, plans, technical specifications, documentation, data media and software programmes, SILLER & LAAR reserves ownership title and copyrights. Such documents and auxiliary supplies shall be used exclusively for contract performance and may not be made accessible to third parties without SILLER & LAAR's express written consent. The software programmes made available by SILLER & LAAR may only be used by the Buyer in the framework of applicable licence regulations.

 

VIII. Buyer's claims due to flaws

1. Statutory regulations shall apply to the Buyer's rights in case of physical and legal flaws, unless otherwise determined below.

2. The basis for SILLER & LAAR's liability for flaws shall primarily be the agreement reached on the make-up of the goods. Deemed to be an agreement on the make-up of the goods shall be any information, blueprints, illustrations, samples, technical information and data as well as any recommendations on use contained in prospectuses, catalogues, advertisements, price lists or bid documents, provided they have been expressly confirmed by SILLER & LAAR as binding and validly included in the particular contract. Only such guarantees on the make-up of the goods that SILLER & LAAR has expressly designated as such in its order confirmation shall be deemed to be such guarantees.

3. The Buyer's claims for flaws presuppose that it has complied with its statutory examination and complaint obligations (§§ 377, 381 Commercial Code). Should a flaw appear upon examination or later, then SILLER & LAAR must be notified hereof in writing and without delay. Notification "without delay" shall be any notification made within two weeks where timely dispatch of notification shall suffice to meet the deadline. Regardless of this examination and complaint obligation, the Buyer must report obvious flaws (including wrong or insufficient delivery) in writing within two weeks of delivery, where timely dispatch of notification shall here as well suffice to meet the deadline. Should the Buyer fail to examine properly and/or fail to make notification of the flaw, SILLER & LAAR's liability shall be excluded for any flaw not notified.

4. Should the item delivered be flawed, SILLER & LAAR may initially choose whether it will provide subsequent fulfilment by repairing the flaw (subsequent improvement) or by delivering a non-flawed item (replacement delivery). SILLER & LAAR's right to refuse subsequent fulfilment under statutory conditions shall remain unaffected.

5. SILLER & LAAR shall be entitled to make the subsequent fulfilment owed dependent upon the Buyer paying the purchase price due. However, the Buyer shall be entitled to withhold a portion of the purchase price appropriate to the flaw.

6. The Buyer must allow SILLER & LAAR the time and opportunity required for the subsequent fulfilment required and must, in particular, surrender the goods complained of for the purpose of having them tested. In case of replacement delivery, the Buyer must under statutory regulations return the flawed item to SILLER & LAAR. Subsequent fulfilment shall neither include removal nor reinstallation of the flawed item, unless SILLER & LAAR was originally obliged to install it.

7. The expenses required for testing and subsequent fulfilment, in particular shipping, freight, work and material costs (but not: removal and installation costs) shall be borne by SILLER & LAAR if there actually is a flaw. However, should a demand for repair of a flaw by the Buyer turn out to be unjustified, SILLER & LAAR may demand reimbursement by the Buyer of costs incurred.

8. Should subsequent fulfilment fail or should an appropriate deadline set by the Buyer for subsequent fulfilment passes to no avail or if such a deadline was dispensable under statutory regulations, the Buyer may withdraw from the contract or abate the purchase price. However, in case of an insignificant flaw there shall be no right to withdraw.

9. The Buyer's claims to damage compensation or reimbursement of unnecessary expenses shall only apply under the provisions of section IX and shall otherwise be excluded.

 

IX. Other liability

1. Unless it otherwise emerges from these Business Terms including the provisions below, SILLER & LAAR shall be liable for any breach of contractual or non-contractual obligations under relevant statutory regulations.

2. SILLER & LAAR shall be liable for damage compensation, regardless of the legal grounds, in case of deliberate intent and gross negligence. In case of simple negligence SILLER & LAAR shall only be liable

a) for injury to life, limb or health,

b) for damages due to the breach of an essential contractual obligation (an obligation whose fulfilment makes proper execution of the contract possible at all and whose compliance the contractual partner regularly trusts in and may trust in); in that case, SILLER & LAAR's liability shall however be limited to compensation of the predictable and typically occurring damage.

3. The limitations on liability entailed by item 2 shall not apply if SILLER & LAAR has maliciously concealed a flaw or it has assumed a guarantee for the make-up of the goods. The same shall apply to the Buyer's claims under the Product Liability Act.

4. For any breach of obligation not consisting of a flaw the Buyer may only withdraw or cancel if SILLER & LAAR is liable for the breach of obligation. Any free right of cancellation by the Buyer (in particular under §§ 651, 649 Civil Code) shall be excluded. Otherwise, the statutory conditions and legal consequences shall apply.

 

X. Statute of limitations

1. Contrary to § 438, paragraph 1, numeral 3 Civil Code, the general statute of limitations for claims for physical and legal flaws shall be one year from delivery.

2. However, if the goods consist of a work of construction or an item that is normally intended for a work of construction according to its usual mode of use and that has rendered the work of construction flawed (building materials), the statute of limitations under statutory regulation shall be five years from delivery (§ 438, paragraph 1, numeral 2 Civil Code). Likewise unaffected shall be special statutory regulations for third-party claims for physical surrender (§ 438, paragraph 1, numeral 1 Civil Code), in case of deception by the Seller (§ 438, paragraph 3 Civil Code) and for recourse claims against suppliers where ultimate delivery is to a consumer (§ 479 Civil Code).

3. The above statutes of limitation in purchase law shall also apply as well to contractual and non-contractual damage compensation claims by the Buyer due to a flaw in the goods unless application of the usual statutory statute of limitations (§§ 195, 199 Civil Code) would in the particular instance entail a shorter statute of limitations. The statutes of limitations under the Product Liability Act shall in any case not be affected. Otherwise, statutory statutes of limitations shall exclusively apply to Buyer damage compensation claims under section IX.

 

XI. Hydrogen embrittlement

1. SILLER & LAAR and the Buyer are aware of the many different causes and issues of hydrogen induced brittle fracture, in particular with electro-plated, high-tensile or application hardened articles upwards of a tensile strength of 1000 N/mm² and core hardening and surface hardening upwards of 320 HV according to DIN EN ISO 4042. The complete elimination of the risk of hydrogen embrittlement cannot be guaranteed by SILLER & LAAR.

2. If the probability of hydrogen embrittlement is to be reduced due to the concrete area of application of the goods to be delivered by SILLER & LAAR, e.g. due to their construction or for safety reasons, the Buyer shall be obliged to jointly reach an agreement with SILLER & LAAR on process execution and materials sourcing in order to counter the above cited risks.

3. DIN EN ISO 4042 shall be an integral component of the contracts signed between SILLER & LAAR and the Buyer.

 

XII. Choice of law and court venue

1. The law of the Federal Republic of Germany shall apply to these business relations and to all legal relations between SILLER & LAAR and the Buyer with exclusion of international standard law and in particular the UN Convention on the International Sale of Goods (CISG). Prerequisites and effects of the retained title under section IV shall be subject to the lex loci of the place where the item is stored, if according thereto the choice of German law is accordingly not allowed or void.

2. If the Buyer is a businessman within the meaning of the Commercial Code, or a legal entity of public law or a segregated estate under public law, then the exclusive court venue, including for international purposes, for all disputes directly or indirectly stemming from this contract relationship shall be where SILLER & LAAR's registered offices are located in 86159 Augsburg in Germany. SILLER & LAAR shall however also be entitled to bring suit in the general court venue of the Buyer.

 

Version dated April 2014

 

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