Общие условия заключения сделок

General Terms & Conditions of SILOKING Mayer Maschinenbau GmbH and Mayer Vertriebsgesellschaft mbH, 84529 Tittmoning, Germany (hereinafter referred to as “SILOKING”)

I. Scope, Exclusive Validity, Changes to the Terms & Conditions

1. These Terms & Conditions only apply with regard to companies, i.e. natural or legal persons or partnerships with legal personality who or which, when concluding the contract with SILOKING, acts in exercise of its trade, business or profession and with regard to legal persons under public law and public law special funds.

2. If SILOKING and the Customer have entered into agreements on an individual basis which deviate from these Terms & Conditions these agreements shall take precedence.

3. Offers, order confirmations, goods and services from SILOKING are solely governed by these Terms & Conditions. Any Terms and Conditions of the Customer which are contrary to deviate from these T&Cs shall also not apply even if SILOKING does not expressly object to them or carries out performance without reservation. Such Terms & Conditions of the Customer are only binding if SILOKING has expressly agreed to them on an individual basis.

4. These Terms & Conditions shall also apply to all future transactions with the Customer within the scope of the business relationship even if they are not separately agreed.

5. These Terms & Conditions form the entire agreement between SILOKING and the Customer to carry out this contract.

SILOKING's employees are not authorised to waive or alter these Terms & Conditions. The power of representation of duly authorised directors and Prokurists (holders of a commercial power of representation) in the requisite number are unaffected by the foregoing. Alterations and supplements to this contract must be in writing and signed by SILOKING in order to be valid.

II. Price and Payment, Offsetting and Retention

1. Unless individually agreed, prices shall be ex warehouse from SILOKING or ex works when sending from the manufacturer’s factory, excluding packaging and insurance. SILOKING shall be bound by its offer prices for 30 days from the date of the offer unless otherwise agreed.

2. Prices are subject to the current rate of statutory VAT. If the applicable rate of VAT at the time of supply is different to that applicable upon conclusion of the contract, the rate of VAT at the time of supply shall be invoiced.

3. Discounts and other reductions shall be agreed separately between SILOKING and the Customer.

4. SILOKING’s invoices for supply are due for payment upon receipt of invoice.

5. The date of receipt by SILOKING of the owed amount, or if sent by bank transfer the date when the amount is credited to SILOKING's account is definitive for settling receivables of SILOKING.

6. Cheques and bills of exchange are only accepted as conditional payment.

7. Payments may only be made to a SILOKING employee if this employee can produce a valid written authority to collect payments.

8. The Customer may only offset SILOKING’s claims if the Customer’s counterclaims are undisputed, due for judgment or have been adjudicated and found to exist by res judicata court judgment. The Customer may only then exercise a right of retention over payments if they relate to the same contractual relationship as SILOKING's claim to payment, or if the Customer’s counterclaims are undisputed, due for judgment or have been adjudicated and found to exist by res judicata court judgment.

III. Offer and Order Confirmation; Right of Modification, Customer’s Lack of Creditworthiness

1. Information contained in print media (e.g. brochures, catalogues) and on the website of SILOKING does not constitute an offer but is merely an invitation to the customer to make an offer. This information is thus non-binding.

2. Drawings, dimensions, weights, illustrations, descriptions about fuel consumption, operating costs and other technical data contained in print media (e.g. brochures, catalogues) and on the website of SILOKING are to be considered approximate and shall only be binding if agreed on an individual basis or confirmed in writing by SILOKING.

3. Offers made by SILOKING are non-binding unless agreed to the contrary on an individual basis. A contract comes into existence as a result of a written order confirmation from SILOKING.

4. SILOKING reserves the right to make necessary technical modifications to the design and the form, as well as colour changes provided this does not restrict the agreed function of the contractual item and the alterations are reasonable for the Customer.

5. If, following conclusion of the contract, circumstances become known to SILOKING which result in the Customer’s lack of creditworthiness and inability to pay without any culpable ignore on the part of SILOKING, SILOKING is entitled to require payment in advance or the provision of securities in the amount of the Customer’s receivables and in the event of refusal is entitled to withdraw from the contract. This shall also apply if the Customer does not fulfil its payment obligations from earlier contracts despite repeated written warnings.

IV. Delivery, Delivery Lead Times and Shipping

1. Delivery dates and lead times are non-binding. They are only then binding if SILOKING has expressly confirmed this in the order confirmation or has agreed this with the Customer on an individual basis.

2. The prerequisites for adherence to delivery lead times are that the Customer has properly fulfilled all its preliminary performance and obligations in good time.

3. In the event of force majeure and on the onset of unforeseeable events for which SILOKING is not responsible, such as strikes, lockouts, operational disruptions and delays in the delivery of fundamental initial materials, agreed delivery lead times shall be extended for the duration performance is impeded, regardless of whether the impediment occurred at SILOKING or its suppliers. SILOKING shall inform the Customer without delay of the commencement and end of the performance impediment. Notwithstanding this the Customer may withdraw from the contract if, in accordance with the contract, the delivery was to take place exactly at a specific defined time or within a defined delivery period, the contract is severable with adherence to the date/lead time and if the date/lead time has elapsed.

4. If SILOKING defaults on delivery, the Customer may withdraw from the contract in accordance with the statutory provisions.

5. Claims for damages and for the reimbursement of expenses of the Customer for SILOKING delivering late or defaulting on its delivery obligation (including defaulting on its delivery obligations due to delivery being impossible) shall only arise in accordance with the provisions of the following section VIII. This shall apply regardless of whether the Customer has withdrawn from the contract.

V. Place of Performance, Transfer of Risk, Shipping, Insurance

1. Deliveries shall be sent ex warehouse from SILOKING or, if shipped from the point of manufacture ex works, unless agreed to the contrary on an individual basis. This shall also apply if SILOKING has undertaken additional services e.g. transport. In this case the risk of accidental loss and accidental deterioration shall pass to the Customer upon handover of the contractual item to a transport employee.

2. If handover or shipping are delayed as a result of circumstances for which SILOKING is not responsible, risk shall pass to the Customer on the date the contractual item is ready for collection and the Customer has been informed of this. After the transfer of risk the Customer shall bear the storage costs.

3. If shipping is carried out by a transportation company, the Customer must report any complaints (loss of or damage to the contractual item or the delivery lead time is not met) in text form to the transportation company without delay – copying in SILOKING – within the applicable time limits as stated in section 438 German Commercial Code (HGB).

4. Provided the shipping route and means of shipment are not separately agreed between SILOKING and the Customer, this shall be determined by SILOKING at its discretion.

5. The contractual item will be insured at the request and expense of the Customer. In this event when selecting the transport insurance company SILOKING shall only be liable for intentional acts or omissions, and gross negligence. SILOKING is authorised to appoint itself as a beneficiary.

VI. Retention of Title

1. SILOKING shall retain title to the contractual item until the purchase price is paid in full and, if the Customer is a registered trader (Kaufmann), until all receivables arising from the business relationship with the Customer have been paid in full, in particular any current account balances.

2. This retention of title shall also apply if the Customer was granted a payment period.

3. During the retention of title period the Customer is obligated to maintain the contractual item in proper condition, service it as prescribed by the manufacturer SILOKING and, if applicable, to allow SILOKING to carry out maintenance work.

4. The Customer is obligated to secure the contractual item against attacks by third parties. The Customer shall insure the contractual item against fire on behalf of SILOKING without delay and shall provide evidence of this when requested by SILOKING. Alternatively SILOKING is entitled to insure the contractual item itself at the expense of the Customer. The Customer shall assign any claims for compensation from the fire insurance to SILOKING. The insurance obligation does not apply to replacement parts.

5. The Customer may not sell or pledge the contractual item or assign it by way of security. This also applies if the Customer is an agricultural tenant and concludes or has a loan agreement which pledges its inventory. In this case the Customer is obligated to expressly inform the lender of SILOKING’s retention of title and to exclude the retention of title from the pledge.

The Customer shall inform SILOKING without delay in text form in the event of the seizure, confiscation or disposal of the contractual item by third parties.

6. If the Customer is a reseller, the Customer is entitled to sell on the contractual item in the course of normal business in deviation to the above section VI. 5. At the time of the sale the Customer shall assign to SILOKING an amount equal to SILOKING’s unpaid invoice (including VAT) plus a security margin of 10% from all receivables due to the Customer arising from the resale of the contractual item to a third party or on other legal grounds regarding the contractual item (e.g. insurance claims).

The Customer shall also be entitled to collect the receivables even after their assignment. SILOKING's right to collect the receivables itself shall remain unaffected by the foregoing. SILOKING shall, however, not collect the receivables or notify the third party of the assignment as long as the Customer does not default on payment.

On request the Customer is obligated to disclose the assigned receivables and their debtors to SILOKING, to provide all information and to hand over documents which SILOKING will require to assert a claim and as evidence of the receivables and, if applicable, to inform the debtors of the assignment.

7. Certificates, vehicle registration documents and machine documents shall remain in SILOKING’s possession for the duration of the retention of title.

8. If the Customer defaults on payment SILOKING may withdraw from the contract and demand the return of the contractual item pursuant to section 323 German Civil Code (BGB). The same applies, if

- the Customer infringes fundamental contractual obligations, despite a written warning, or

- the Customer’s financial circumstances deteriorate significantly, in particular seizure or other enforcement measures are initiated against the Customer or an application is made to commence insolvency proceedings regarding the Customer’s assets, or

- the Customer attempts to agree an out of court settlement with its debtors to clear its debts, or

- an application is made to commence insolvency proceedings regarding the Customer’s assets or insolvency proceedings are discontinued or suspended.

The Customer may not exercise a right of retention unless the Customer’s counterclaims are undisputed, due for judgment or have been adjudicated and found to exist by res judicata court judgment. The Customer shall bear the resulting costs, in particular those of return transport. If SILOKING demands the return of the contractual item this shall be deemed to be a withdrawal from the contract in the event of doubt.

9. If the contractual item is delivered to a country or used by the Customer in a country where the retention of title in accordance with the above provisions is not recognised or does not have the same effect of providing security, the Customer is obligated to carry out all actions required and make all declarations which are required to create a comparable security right.

VII. Quality, Rights and Claims in the event of Defects (hereinafter referred to as “Defect Claims”)

1. Warranties given regarding the characteristics or durability of the contractual item must be in writing and signed by SILOKING in order to be valid.

2. The Customer shall inspect the contractual item with regard to type, quantity, characteristics and completeness without delay after delivery at its own expense. The Customer shall report obvious defects or those recognisable during an inspection under normal operating conditions to SILOKING without delay. The Customer shall report defects which first become apparent later without delay on discovery. Defects shall be notified in text form. If the Customer does not report a defect then defect claims for this defect are excluded.

3. Defect claims are excluded for used items. When supplying used items, SILOKING only assumes liability for defects if this is agreed with the Customer on an individual basis. The Customer's defect claims shall be governed by these General Terms & Conditions, unless agreed otherwise on an individual basis.

4. No claims for defects shall arise if the defect is caused by one of the following circumstances, provided SILOKING is not responsible for this:

- Unsuitable or improper use of the contractual item by the Customer or a third party;

- Incorrect assembly or commissioning of the contractual item by the Customer or a third party;

- Unsuitable repairs, or improper replacement of parts or unauthorised actions or alterations to the contractual item by the Customer or a third party;

- Non-observance of operating and instruction manuals, maintenance regulations or other provisions in relation to the contractual item by the Customer or a third party;

- Use of unsuitable fuel, consumables or unsuitable replacement materials by the Customer or a third party;

- Chemical, electrochemical or electric interference, or

- Natural wear and tear.

5. In the event of defects the Customer initially has the right to subsequent performance, consisting either of rectification of the defect or delivery of a defect-free item at SILOKING’s discretion.

6. Should subsequent performance fail, if subsequent performance is unreasonable for the Customer or SILOKING refuses to carry out subsequent performance due to the disproportional costs of subsequent performance, the Customer is entitled to withdraw from the contract or to reduce the purchase price. The right of withdrawal is excluded if the defect is not significant.

7. Section VIII. shall apply to claims for damages.

8. Defect claims of the Customer against SILOKING shall lapse one year after delivery of the contractual item. If the Customer is a reseller the limitation period shall commence on delivery to the reseller’s end customer. In this case the limitation period is restricted to two years after delivery of the contractual item to the reseller.

The statutory limitation period for claims stated in section VIII. remains unaffected by the foregoing.

9. If the Customer is a reseller and the end customer is a consumer and in the event of recourse by the supplier pursuant to sections 478, 479 BGB the Customer’s rights regarding subsequent performance, withdrawal and reducing the purchase price are limited in accordance with the statutory provisions in deviation from the above provisions. This shall not affect the examination and reporting obligations in accordance with the following section VII. 2. Claims for damages shall be restricted in accordance with the following section VIII.

10. Further defect claims are excluded provided SILOKING did not fraudulently conceal the defect or has provided a warranty for the agreed characteristics of the contractual item.

VIII. Liability, Limitation of Liability

1. Further claims of the Customer, which exceed those claims agreed in these provisions, regardless of the legal grounds thereof, are excluded subject to the following provisions. This applies, in particular, to claims for damages resulting from culpa in contrahendo, other breaches of obligations and claims in tort. SILOKING shall not be liable for consequential losses, indirect losses, such as loss of profit for example, and other financial losses of the Customer.

2. SILOKING shall be liable in accordance with the statutory provisions for losses resulting from the breach of an obligation by the Customer as a result of an intentional act or omission, or gross negligence on the part of SILOKING as well as for losses resulting from injury to life, limb or health as a result of an intentional act or omission, or gross negligence on the part of SILOKING.

Liability in accordance with the German Product Liability Act [Produkthaftungsgesetz] shall be unaffected by the foregoing.

3. For losses caused by the simple negligent infringement of fundamental contractual obligations by SILOKING, the statutory liability of SILOKING is restricted to those foreseeable losses typical for the type of contract. Fundamental contractual obligations are those obligations the performance of which actually enables the proper execution of the contract and the observance of which the Customer is entitled to expect (so-called cardinal obligations).

4. A breach of obligation by SILOKING’s executives, employees, directors, or other vicarious agents shall be treated the same as a breach of obligation by SILOKING.

5. SILOKING shall be liable in accordance with the statutory provisions if the Customer asserts a claim for damages with regard to a warranty provided by SILOKING for agreed characteristics of the contractual item. SILOKING shall be, however, only liable for consequential losses caused by a defect, in particular for loss of profit, to the extent that the Customer should have already been safeguarded by the warranty against losses of that type.

6. The restriction or exclusion of SILOKING's liability shall also apply to the personal liability of SILOKING’s executives, employees, directors, representatives or other vicarious agents.

IX. Jurisdiction, Applicable Law

1. If the Customer is a registered trader [Kaufmann], a legal person under public law, or a public law special fund or does not have a general place of jurisdiction in Germany, it is hereby agreed that the competent courts of 83278 Traunstein, Germany shall have jurisdiction over all disputes arising from and in connection with this contract.

2. These provisions and this contract between the Parties is solely governed by German law. The UN Convention on Contracts for the International Sale of Goods shall be excluded.

Tittmoning, April 2017

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