General Terms and Conditions of Works and Services

1. General
1.1 No contract may be deemed to have been concluded with us excepting on the basis of these General Terms and Conditions of Sale and Delivery (General Terms) to the exclusion of any other terms or conditions. This applies also in cases where deliveries are performed without any separate provision on our part.

1.2 These General Terms apply also to future transactions with the Customer, even where no specific reference is made by us to the applicability of our General Terms.

2. Prices
2.1 The listed prices are net prices exclusive of freight, packaging costs and VAT.

2.2 Our prices for custom produced items are non-binding. Should material costs, labour or overheads verifiably increase within two months between conclusion of contract and delivery, we shall be entitled to increase the price accordingly, unless we are in default of delivering on time or we are liable for cost increase for other reasons.

3. Payment
3.1 Payments shall be made for deliveries cash in advance and free of charges for Siedle.

3.2 The Customer is not authorised to withhold payment or to set off counterclaims unless a right to do so has been determined with legal force or is undisputed or obvious.

3.3 In cases where we have raised an objection of uncertainty (circumstances which place the creditworthness of the Customer in doubt excepting in cases where such circumstances were recognizable on conclusion of contract, German Civil Code Art. 321) or if the Customer is in default of payment for a total amount of more than Euro 500,00 we are entitled to revoke any agreed-upon payment schemes and to make all claims immediately payable. We are entitled to announce the cancellation of contract, if the Customer has made false statement concerning his financial standing unless the Customer immediately makes advance payment.

3.4 Payment discounts are granted exclusively subject to adherence to our terms of payment. We are entitled to offset payment discounts against claims arising from future orders.

4. Delivery
4.1 Partial deliveries are admissible provided they do not constitute an unreasonable inconvenience to the Customer. Technical modifications are also admissible, provided they do not constitute price increases or a deterioration in quality.

4.2 Deliveries occur free carrier (FCA) Furtwangen (Incoterms 2000). Settling place is Furtwangen. If the dispatch or the hand-over to the carrier is delayed at the wish of the Customer, or if the Customer delays in acceptance, then the risk passes over to the Customer at the time of notification of dispatch readiness.

4.3 We only take back undamaged reusable package at the settling place Furtwangen.

5. Sales, Export
5.1 As we supply technically sophisticated goods which rely upon adequate explanation and support, the Customer is obliged to sell the goods exclusively to commercial traders and installers.

5.2 Every case of infringement against the prohibition outlined under point 1 above shall entitle us to demand a contractual penalty, to be fixed out our reasonable discretion verifiable in a court of law. The contractual penalty shall be offset against any claims for damages.

6. Delivery Period, Delays
6.1 An agreed-upon delivery period begins with the receipt or shipment of order confir-mation, but not before the provision of any necessary documents, approvals, releases, disposals, by the Customer which have to be obtained before the arrival of the agreed advanced payment. The delivery period has been complied with, if before its expiration the goods are ready for dispatch and this has been notified, or the contractual goods have been handed over to the carrier.

6.2 The agreed-upon delivery periods shall be reasonably extended in the event of disruptions for which we cannot be held accountable, such as: strikes, lockouts or delivery delays outside of our area of responsibility. In such cases, the Customer shall be entitled to withdraw from the contract, after granting a reasonable grace period. Any claims for damages are excluded. Should a disruption for which we are not responsible last for longer than eight weeks, we shall be released from our obligation to perform without any obligation to compensate the Customer.

6.3 In the case of a delay on our part, provided the Customer is able to make evident of damage, we shall be deemed liable at most for 0.5 % of the net price for each completed week of the delay, but no more than a total of 5 % of the net price for the affected part or delivery. The liability restriction shall not apply in cases of mandatory liability due to premedi-tation or gross negligence.

6.4 At our request, in case of a delay on our part, the Customer is obliged to declare within a reasonable period whether he intends to withdraw from the contract or whether he insists upon delivery.

6.5 In case of delay in the acceptance of ordered goods or if the dispatch or the hand-over to the carrier is delayed at the wish of the Customer, we are entitled to invoice the Customer warehousing costs of 0.5 % of the purchase price for each started month, but of no more than 5 % overall, without prejudice to the right of either party to provide evidence of higher or lower warehousing costs.

7. Warranty
7.1 No warranty cover shall be afforded for insignificant defects. Improper modifications, repairs or the consequences of such actions by the Customer or any third party shall not be covered by the warranty.

7.2 The Customer will examine the shipments immediately after receipt or, in case of deliveries FCA, hand-over to the carrier and has to provide written notice of any evident damage right away, but within fourteen days at the latest. Non-evident damage shall be reported in writing without delay upon discovery, but within seven days of discovery at the latest. The same applies to direct deliveries to third parties nominated by the Customer. The Customer has to ensure that complaints by third parties are made in good time.

7.3 In the event of significant defects occurring within the warranty period (s. 7.4) and if the Customer has provided notice of these defects within the time as set forth in 7.2, we are entitled and obliged to make three attempts at repair or replacement within a reasonable period, provided the root cause of the defect existed at the time of risk transfer. The latter Customer has to furnish proof. Should the third remedy fail, the Customer may either withdraw from the contract or reduce the payment accordingly without prejudice to any claims for damages as outlined under section 8.

7.4 Claims to damages shall lapse in one year. This shall not apply where longer periods are prescribed by the German Civil Code Art. 479 para. 1 (regress claims) or in cases of injury to life, body or limb, premeditated or grossly negligent breach of duty on our part, on part of our vicarious agents or of malicious failure to disclose a defect. This shall not affect statutory regulations relating to suspension of the period of limitations and recommencement of warranty periods.

7.5 Claims on the part of the Customer for expenses incurred in remedying a defect, in particular transport, travelling, labour and material costs shall be excluded in the event that the expenses incurred increase due to transfer of the delivered object to a location other than the Customer’s place of business.

7.6 Regress claims on the part of the Customer exist in accordance with Art 478 of the German Civil Code only to the extent that the Customer and his customer have entered into no agreements above and beyond the statutory claim for defects. For the scope of the Customer’s regress claim, point 7.5 shall otherwise apply accordingly.

7.7 For claims to damages based on material defects, section 8 shall apply. The Customer shall not be entitled to assert any claims above and beyond those regulated by section 7 in conjunction with section 8.

8. Claims for Damages
8.1 Claims for damages and expenditure on the part of the Customer (compensation for damages) whatever their legal grounds, in particular due to the infringement of obligations arising from the contractual relationship or on the basis of tort are excluded.

8.2 The exclusion of liability in accordance with point 8.1 shall not apply in cases where our liability is mandatory, e.g. in accordance with product liability legislation, in case of premeditated action, gross negligence, injury to life, body or limb or the infringement of pertinent contractual obligations. Contractual obligations are deemed pertinent, if com-pliance thereof makes the execution of the contract possible in the first place and if compliance can normally be expected by the Customer. In the case of infringement of such pertinent contractual obligations, however, our liability shall be limited to contractually typical foreseeable damages, except in cases where premeditation or gross negligence, injury to life, body or limb may be said to exist. A change in the burden of proof to the detriment of the Customer is in no way implied by these provisions.

8.3 Claims for damages due to material defects (s. 7) or the breach of industrial property rights (s. 9) shall lapse in accordance with Section 7.4.

9. Industrial Property Rights, Copyrights
9.1 Our obligation to perform the delivery free of any third-party industrial property rights and copyrights is restricted to the country in which the Customer is domiciled. In the event of justified claims asserted by third parties against the Customer for breach of industrial property rights by products supplied by us and utilized within the terms of the agreement, we shall be liable within the warranty period (section 7.4) as follows: We may either at our discretion procure utilization rights for the relevant products at our expense, modify the product in such a way that no industrial property rights are breached or exchange the products with the Customer at our expense. If these alternatives are not available to us at reasonable conditions, the Customer may have recourse to statutory rights of cancellation or price reduction. Any obligation on our part to com-pensate for damages shall be regulated by Section 8 below.

9.2 The obligations listed under point 9.1 apply only provided that the Customer informs us in writing of claims asserted by third parties immediately, but within ten working days of their coming to his knowledge at the latest, that the Customer does not acknowledge the breach, and that our right is reserved to take any defensive action or enter into conciliation proceedings. Should the Customer discontinue utilization or sale in the event of a claimed breach of industrial property rights, he shall be obliged to notify the third party that such discontinuation in no way constitutes an acknowledgement of any breach of industrial property rights. Claims on the part of the Customer shall be void in the event that he is responsible for the breach of industrial property rights. Claims on the part of the Customer shall furthermore be excluded in the event that the breach of industrial property rights is due to special stipulations on the part of the Customer, or due to an application which we could not have foreseen, or is caused by the Customer modifying the delivery or combining the delivered item with products not supplied by us.

9.3 In the event of a breach of industrial property rights, the claims of the Customer shall furthermore be subject to the stipulations of Section 7,8.

10. Return Delivery
10.1 We shall only accept the return delivery of flawless delivered goods as a conciliatory gesture following our prior written consent.

10.2 Where we accept the return of goods as a conciliatory gesture, they shall be sent at the risk and expense of the Customer.

10.3 In case of conciliation, we issue credit notes after deduction of 20% of the net invoice amount to cover administrative expenses, testing and repackaging. Damaged goods shall not be credited. Return delivery of custom produced deliveries and products belonging to the series BGA, BG/KSF, BG/SR, KSA, KS, KSF, RGA, RG/KSF, RGT, RG/SR and Siedle Steel shall not be accepted.

10.4 In the case of cancellations of custom produced orders accepted by us, the Customer shall pay the agreed remuneration less the expenses saved by us through non-execution, which amount to 30% of the net price for the goods. Should the Customer request a modification of custom-produced articles already commissioned, and should we be in agreement, the Customer shall reimburse the costs incurred to date.

11. Reservation of Title
11.1 The supplied goods shall remain our property until all our claims arising from the business relationship with the Customer have been met in full. The Customer is entitled to sell or process/integrate the goods (reserved goods) in the regular course of business. Only in the case of a deterioration in the financial circumstances of the Customer, we shall be entitled to prohibit the sale/processing or integration of reserved goods.

11.2 Resale by the Customer is permitted, provided the Customer (reseller) imposes the provision on the subsequent purchaser that title passes to the Customer’s purchaser only after his payment obligations relating to the reserved goods have been met in full (simple reservation of title). By now the Customer cedes to us all amounts due from resale of the reserved goods up to the amount of our claim.

11.3 The Customer is entitled to collect assigned claims. This entitlement shall lapse in the event of a default of payment or in case of a material deterioration in the financial circumstances of the Customer. In such cases, we are entitled to inform the customers of the assignment and to collect outstanding claims ourselves. The Customer is required to provide the necessary information for the assertion of assigned claims, and shall permit the review of this information. He shall, in particular, provide us on request with a precise list of claims owing to him with the names and addresses of customers, the amount of the individual claims, date of invoice etc. and shall afford us entry to his premises to review this information.

11.4 If the reserved goods are joined, mixed or processed by the Customer to create a new movable item, this is done without any obligation arising for us. By joining, mixing or processing the reserved goods, the Customer shall not acquire title to the new item in accordance with Artt. 947 ff. of the German Civil Code. If reserved goods are joined, mixed or processed with items not belonging to us, we shall acquire co-title to the new item at a ratio proportionate to the invoice value represented by our reserved goods.

11.5 The Customer shall inform us without delay in the event of a discontinuation of payments, a material deterioration in his financial circumstances or the attachment of property. The names and addresses of attachment creditors shall be made known to us. The Customer shall bear all necessary costs, which are spent for abolition of measures of distraint by mortgagees and for a replacement of the goods.

11.6 In the event of discontinuation of payments by the Customer, or a material deterioration of his financial circumstances, in particular when application is filed for the initiation of insolvency proceedings over his assets, we are entitled to demand surrender of the reserved goods. A demand for surrender constitutes a withdrawal from the contract. Under such circumstances, the granting of a period for performance may be dispensed with. In the case of withdrawal from the contract we reserve claims for damages.

11.7 The Customer shall hold the reserved goods in safekeeping on our behalf at no charge. He shall provide adequate insurance cover for the goods against customary risks such as fire, theft water and transport damage. He hereby assigns any claims to damages due to him as a result of damage from third parties to us to the full extent of the invoiced value of the goods.

12. Legal Venue, Applicable Law
12.1 The legal venue for all direct or indirect disputes arising from the contractual relationship shall be Furtwangen.

12.2The contractual relationship is subject to substantive and procedural German Laws. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. Version 11/2008

Download General Terms and Conditions
© 2018 S. Siedle & Söhne OHG