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, act in exercise of their 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 individual agreements which deviate from these Terms & Conditions, these agreements shall prevail.

3. Offers, order confirmations and supply of goods and services by SILOKING are exclusively governed by these Terms & Conditions. Any Terms and Conditions of the Customer which conflict with or deviate from these Terms & Conditions 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 individually.

4. Within the scope of regular business relationship with a Customer, these Terms & Conditions shall also apply to all future transactions with this Customer even if they are not separately agreed.

5. These Terms & Conditions form the entire agreement between SILOKING and the Customer to perform contracts.
SILOKING's employees are not authorised to waive or alter these Terms & Conditions. The power of representation of duly authorised Directors, General Managers and Prokurists (holders of a commercial power of representation) in the requisite number remains unaffected by the foregoing.

II. Prices and Payment, Offsetting and Retention

1. Unless agreed individually, prices shall be EXW (EX WORKS D-84529 Tittmoning, Kehlsteinstr. 4) INCOTERMS 2020, 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 applicable.

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

4. SILOKING’s invoices for supply are due for payment on the date 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 decisive for settling receivables of SILOKING.

6. Payments may only be made to SILOKING employees if these employees can produce a valid written authority to collect payments.

7. The Customer may offset SILOKING’s claims only 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 exercise a right of retention over payments only 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 SILOKING’s website does not constitute an offer but is merely an invitation to the customer to make an offer. Such information is therefore non-binding.

2. Drawings, dimensions, weights, illustrations, descriptions about material consumption, operating costs and other performance data contained in print media (e.g. brochures, catalogues) and on SILOKING’s website are to be considered approximate and shall only be binding if agreed individually or confirmed in writing by SILOKING.

3. Offers made by SILOKING shall be non-binding unless otherwise agreed individually. 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, changes in the course of technical further development as well as colour changes to the contractual item so long as this does not restrict the agreed function of the contractual item and the alterations are reasonable for the Customer.

5. If, after 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 shall be entitled to demand from the Customer either advance payment or the provision of securities in the amount of the receivables and in case of refusal to withdraw from the contract. This shall also apply if the Customer does not fulfill its payment obligations from earlier contracts despite repeated written reminders.

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 individually.

2. The delivery lead times result from the agreements between the contractual parties. The prerequisites for SILOKING’s adherence to delivery lead times are that all commercial and technical questions between the contractual parties have been clarified and that the Customer has fulfilled all its obligations, such as providing the necessary official approvals etc. or making a down payment. If this is not the case, the delivery lead time shall be reasonably extended. This shall not apply if SILOKING is responsible for the delay.

3. Adherence to delivery lead times is subject to orderly and timely delivery to SILOKING. SILOKING shall notify the Customer of any impending delays as soon as possible.

4. The delivery lead time shall be deemed to have been adhered to, if on the expiration of such period, the contractual item has left SILOKING’s factory or its readiness for shipment has been notified. If acceptance must take place, the date of acceptance shall be decisive, alternatively the notification of readiness for acceptance - except in case of a justified refusal of acceptance.

5. If shipment or acceptance of the contractual item is delayed for reasons for which the Customer is responsible, the Customer shall be charged for the costs resulting from such delay, starting one month after notification of readiness for shipment or of readiness for acceptance.

6. If failure to adhere to delivery lead times is due to force majeure, labour disputes or other events that are beyond SILOKING’s control, the delivery lead times shall be reasonably extended. SILOKING shall notify the Customer of the beginning and end of such circumstances as soon as possible.

7. The Customer may withdraw from the contract without fixing any time limit if complete performance becomes finally impossible for SILOKING before the transfer of risk. In addition, the Customer may withdraw from the contract if in the case of a purchase order, performance of part of the delivery becomes impossible and the Customer has a legitimate interest in refusing the partial delivery. If this is not the case, the Customer must pay the contractual price attributable to the partial delivery. The same shall apply in case of SILOKING’s inability to perform. In all other respects, section VIII.2. shall apply.
If the impossibility or inability to perform occurs during the default of acceptance or if the Customer is solely or largely responsible for such circumstances, the Customer shall continue to be obligated to undertake counter-performance.

8. If SILOKING defaults on delivery and this results in damage to the Customer, the Customer shall be entitled to demand lump-sum compensation for default. The compensation amounts to 0.5 % for every full week of delay, but to a total of 5 % of the value of that part of the total delivery which cannot be used in good time or under the contract.
If the Customer - taking into account statutory exceptions - grants SILOKING a reasonable period of time for performance after the due date and if this period of time is not adhered to, the Customer shall be entitled to withdraw from the contract under statutory provisions. Upon request of SILOKING, the Customer undertakes to declare within a reasonable period of time whether it intends to exercise its right to withdraw from the contract.
Any further claims resulting from default on delivery are exclusively governed by section VIII.2. of these General Terms & Conditions.

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

1. Deliveries shall be sent EXW (EX WORKS D-84529 Tittmoning, Kehlsteinstr. 4) INCOTERMS 2020, unless otherwise agreed individually. 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 the transport person.

2. If handover or shipping is 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 made available for collection and the Customer has been informed of the readiness for shipment. 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 period is not adhered to) in text form to the transportation company without delay - copying in SILOKING - within the time periods applicable under section 438 of the Handelsgesetzbuch (the German Commercial Code, “HGB”).

4. Unless the shipping route or means of shipment is 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 case, when selecting the transport insurance company SILOKING shall only be liable for intent and gross negligence. SILOKING is entitled to appoint itself as a beneficiary.

VI. Retention of Title

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

2. For the duration of the retention of title the Customer undertakes to maintain the contractual item in proper condition, to carry out maintenance work as prescribed by the manufacturer SILOKING and if applicable, to allow SILOKING to carry out repair work.

3. SILOKING shall be entitled to insure the contractual item against theft, breakage, fire, water damage and other damage at the expense of the Customer if the Customer fails to provide proof it has taken out such insurance itself.

4. The Customer may not sell or pledge the contractual item or assign it by way of security. This shall also apply if the Customer is an agricultural tenant and concludes or maintains a loan agreement which pledges its inventory. In this case the Customer undertakes to expressly inform the lender of SILOKING’s retention of title and to exclude the items subject to retention of title from the pledge.
The Customer must inform SILOKING without delay in text form in case of seizure, confiscation or disposal of the contractual item by third parties.

5. If the Customer is a reseller, the Customer is entitled to sell on the contractual item in the ordinary course of business in deviation from the above section VI.4. At the time of the sale the Customer shall assign to SILOKING an amount equal to SILOKING’s unpaid invoice (including VAT, if applicable) plus a security margin of 10 % from all receivables due to the Customer which arise 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 is entitled to collect the receivables even after their assignment. SILOKING's right to collect the receivables itself remains unaffected. SILOKING undertakes, however, not to collect the receivables or disclose the assignment as long as the Customer does not default on payment.
On request, the Customer undertakes to disclose the assigned receivables and their debtors to SILOKING, to provide all information and to hand over all documents which SILOKING will require to assert a claim and which serve as evidence of the receivables and, if applicable, to inform the debtors of the assignment.

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

7. If the Customer defaults on payment, SILOKING may withdraw from the contract and demand the return of the contractual item under section 323 of the Bürgerliches Gesetzbuch (the 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 seizures 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 to commence insolvency proceedings regarding the Customer’s assets is rejected 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 case of doubt.

8. If the contractual item is delivered to a country or taken by the Customer to a country where the retention of title under the above provisions is not recognised or does not have the same effect of providing security, the Customer undertakes to carry out, at its own expense, all actions incumbent on it and to 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. In case of material defects, all parts which turn out to be defective as a result of a circumstance occurring before the transfer of risk shall be repaired or replaced by defect-free items at SILOKING’s discretion. The Customer must therefore inspect the contractual item, at its own expense, with respect to type, quantity, characteristics and completeness without delay after delivery. If the Customer detects obvious defects or recognises defects during an inspection under normal operating conditions, it shall report these to SILOKING in writing without delay. The Customer must report any defects which first become apparent later without delay upon discovery. Any replaced parts shall become the property of SILOKING.

3. Upon consultation with SILOKING, the Customer must grant to SILOKING the necessary time to undertake any rectification of defects or replacement deliveries which SILOKING deems necessary; otherwise, SILOKING shall be released from any liability for the consequences arising therefrom.
Only in urgent cases of danger to operational safety or in order to avoid unreasonably high damage, whereby SILOKING must be informed immediately, the Customer shall have the right to rectify the defect itself or have it rectified by third parties and to demand from SILOKING compensation for the necessary expenses.

4. Defect claims are excluded for used items. When supplying used items, SILOKING assumes liability for defects only if this has been agreed with the Customer individually. The Customer’s defect claims shall then be governed by these General Terms & Conditions unless otherwise agreed individually.

5. If the claim proves to be justified, SILOKING shall bear the expenses required for the purpose of subsequent performance unless this imposes an unreasonably high burden on SILOKING. If the expenses increase due to the Customer’s having taken the contractual item to a place different from the place of performance after delivery, the Customer shall bear any additional costs resulting therefrom. When selling a newly produced item, SILOKING additionally compensates the Customer for the expenses incurred by the Customer to the extent of its statutory obligation within the scope of recourse claims in the supply chain.

6. Under statutory provisions, the Customer shall be entitled to withdraw from the contract if SILOKING - taking into account the statutory exceptions - allows a reasonable period granted to it for rectification of the defect or replacement delivery due to a material defect to elapse fruitlessly. If the defect is only of a minor nature, the Customer shall be entitled only to a reduction of the contractual price. The right to reduction of the contractual price is excluded in all other cases.

7. No defect claims shall arise if the defect occurred has been caused by one of the following circumstances unless SILOKING is responsible for it:

  • unsuitable, improper use or any use other than the intended 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,
  • improper repairs, 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 using instructions, maintenance instructions or other provisions regarding 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.

8. If the Customer or a third party undertakes any improper rectification of defects, SILOKING shall not be liable for any consequences resulting therefrom. The same shall apply to modifications to the contractual item carried out without SILOKING’s prior written approval.

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

10. If the Customer is a reseller and the end customer is a consumer and in case of recourse by the supplier under section 445a and section 445b BGB, the Customer shall be entitled, in deviation from the above provisions, to exercise the unrestricted rights regarding subsequent performance, withdrawal from the contract and reduction of the contractual price under statutory provisions. The obligations of examination and notification of defects under the following section VIII.2. remain unaffected. Claims for damages are restricted under the following section VIII.

11. Any further defect claims are excluded unless SILOKING has fraudulently concealed the defect or has provided a warranty for the quality of the contractual item.

VIII. Liability, Limitation of Liability

1. If the contractual item cannot be used by the Customer under the contract as a result of culpably neglect or incorrect execution of suggestions or advice by SILOKING either before or after the conclusion of the contract, or as a result of culpable breach of other contractual secondary obligations - in particular instructions for operation and maintenance of the contractual item, the provisions of sections VII. and VIII.2. shall apply, to the exclusion of any other claims by the Customer.

2. SILOKING shall be liable - on whatever legal grounds - for damage not caused to the contractual item itself only

  • in case of intent and gross negligence, 
  • in case of culpable injury to life, limb, health, 
  • in case of defects fraudulently concealed by SILOKING,
  • within the scope of a warranty promise, 
  • in case of defects in the contractual item to the extent that there is liability for personal injury or damage to property for privately used items under the Product Liability Act.

In case of culpable breach of fundamental contractual obligations, SILOKING shall also be liable in the case of simple negligence, however, the liability is limited to that reasonably foreseeable damage which is typical for the type of contract. Any other claims are excluded.

IX. Limitation period

The limitation period for all claims of the Customer - on whatever legal grounds - is 12 months. This shall also apply to the limitation period of recourse claims in the supply chain under section 445b paragraph 1 BGB, unless the last contract in this supply chain is a consumer good purchase. The expiry suspension under section 445b paragraph 2 BGB remains unaffected. The statutory periods of time shall apply to claims for damages under section VIII.2.

X. Software use

If the scope of supply includes software, the Customer shall be granted a non-exclusive right to use the software supplied including its documentation. The software is provided for use on the contractual item intended for this purpose. The use of the software on more than one system is prohibited.

Use of the software by the Customer is restricted to the extent permitted by law (sections 69 a et seqq. of the Urheberrechtsgesetz (the German Act on Copyright and Related Rights, “UrhG”)), i.e. reproduction, editing, translation or conversion of the object code to the source code. The Customer undertakes not to remove or to modify any manufacturer’s details - in particular copyright notes - without SILOKING’s express prior written approval.

All other rights to the software and the documentation including copies thereof remain with SILOKING or with the software supplier. The granting of sublicences is not permitted.

XI. Jurisdiction, Applicable Law

1. If the Customer is a Kaufmann (a registered trader), a legal person under public law, or a public law special fund or does not have a general place of jurisdiction in the Federal Republic of 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 Terms & Conditions and the contract between the Parties are exclusively governed by German law. The Vienna UN Convention on Contracts for the International Sale of Goods shall be excluded.

Tittmoning, September 2020