1.1 These General Terms and Conditions of Sale (hereinafter referred to as “General Sales Conditions” or “GSC”) shall apply to all business relationships between us, i.e. Siqens GmbH, and our customers (hereinafter referred to as “Customers“), irrespective of whether the Customer is a consumer, an entrepreneur, a legal entity under public law or a special fund under public law. “Consumer” is any natural person who enters into the contract for a purpose that can be attributed neither to his commercial nor to his independent professional activity (§ 13 BGB); “Entrepreneur” is a natural or legal person or a partnership with legal capacity that acts in the exercise of his commercial or independent professional activity when entering into the contract (§ 14 para. 1 BGB).
1.2 These GSC apply in particular to contracts for the sale and/or delivery of movable goods (“goods“), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB).
1.3 The GSC apply in the version valid at the time of the customer’s order. In relation to entrepreneurs, legal entities under public law or special funds under public law, the version of the GSC last notified to the customer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to the validity of these GCS again in each individual case.
1.4 Our GSC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing or text form (e.g. letter or e-mail). This requirement of consent shall apply in any case, e.g. even if we carry out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.
1.5 Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GSC. Subject to proof to the contrary, a contract or our confirmation in writing or text form (e.g. letter or e-mail) shall be authoritative for the content of such agreements.
1.6 The customer shall submit legally relevant declarations and notifications in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) in writing or text form (e.g. letter or e-mail). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the person making the declaration, remain unaffected.
1.7 If reference is made in these GSC to the applicability of statutory provisions, this shall only be for clarification purposes. If statutory provisions are not directly amended or expressly excluded in these GSC, the statutory provisions shall apply – even without clarification.
2.1 Our offers are – unless expressly stated otherwise – always subject to change and non-binding. This also applies if we have provided the customer with product descriptions or other documents – also in electronic form.
2.2 The order of the goods by the customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this offer of contract within five (5) working days after receipt of the order. “Working days” within the meaning of these GSC are all days from Monday to Friday with the exception of public holidays at our registered office.
2.3 We may declare acceptance of the offer either by confirming the order in writing or text form (e.g. letter or e-mail) or by delivering the goods to the customer. Our order confirmation shall be deemed to be a binding acceptance unless we declare otherwise in the order confirmation.
2.4 The contract shall be concluded exclusively in German.
2.5 We are entitled to have the contract fulfilled in whole or in part by third parties, but remain responsible for the fulfilment of the contract. The consent of the customer is not required for this.
2.6 After order confirmation, changes and additions to the contract requested by the customer are only possible after a separate agreement between the customer and us.
2.7 Consumers have a right of withdrawal in accordance with the provisions in clause 11
3.1 The prices as shown in our offer shall apply. The prices apply plus the statutory value added tax. Prices in our offers to consumers include the statutory value added tax.
3.2 Our prices apply in each case without packaging and dispatch of the goods, i.e. ex our works/warehouse (Ex Works, Incoterms 2020). We show the costs of packaging in the offer. When placing the order, the customer can also order the shipment of the goods at his own expense. We shall show the price for shipping the goods to a delivery address named by the customer (doorstep or agreed unloading point) on our quotation to the customer (clause 1). Any customs duties, fees, taxes and other public charges shall be covered by the customer.
3.3 Payments shall be made within 30 days of the date of the invoice and delivery of the goods (“payment period“) to the account specified in the invoice. If the customer’s place of residence or business is outside the Federal Republic of Germany or if it is the customer’s first order, the customer must make a down payment of 50% of the price when placing the order immediately after receipt of the down payment invoice. We are also entitled at any time – also within the framework of an ongoing business relationship – to make a delivery in whole or in part only against advance payment or appropriate security, e.g. in the form of a guarantee, if we have justified indications of a risk of non-payment on the part of the customer or if the customer has his place of residence or business outside the Federal Republic of Germany. We shall declare a corresponding reservation at the latest with our order confirmation.
3.4 The customer shall be in default without a reminder if he has not made payments within the payment period. During the period of default, interest shall be charged on the price at the applicable statutory default interest rate. We reserve the right to claim damages for default. With respect to merchants, the claim to the commercial due date interest rate (§ 353 HGB) remains unaffected.
3.5 If the customer does not fulfil his payment obligation, does not fulfil it properly or does not fulfil it on time or if circumstances become known which make the creditworthiness of the customer appear doubtful, we are entitled to make outstanding payments of the customer due for payment immediately. The same shall apply if the customer’s business is no longer conducted in an orderly manner, in particular if an attachment is levied against the customer or if proceedings under the German Insolvency Code are applied for. This clause 5does not apply to consumers.
3.6 The customer is only entitled to offset against our claims if his claim has been legally established or is undisputed. The customer is also entitled to set-off if he asserts notices of defects or counterclaims from the same purchase contract.
3.7 The customer may only exercise rights of retention if the customer’s counterclaims are based on the same contractual relationship.
3.8 If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the customer’s inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
4.1 Delivery shall be made from our warehouse, i.e. from the warehouse/plant specified in the order confirmation (Ex Works, Incoterms 2020), which is also the place of performance (Section 269 (1) of the German Civil Code) for the delivery and any subsequent performance. If no warehouse/plant for the delivery is specified in the order confirmation, the delivery shall be made from Landsberger Straße 318d, 80687 Munich, Germany.
4.2 At the customer’s request and expense, we shall ship goods to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
4.3 We are entitled to make partial deliveries, provided that the customer is not unreasonably disadvantaged by this. We shall bear any additional costs caused by partial deliveries.
4.4 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. However, this shall only apply to a consumer if the customer has commissioned the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment and we have not previously named this person or institution to the customer.
4.5 Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance. The customer shall be responsible for attaining transport insurance.
4.6 If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage (e.g. storage costs). For this purpose, we shall charge the customer a lump-sum compensation in the amount of 0.5 % of the invoice amount for each week of the delay – but no more than a total of 5 % of the invoice amount – beginning with the delay in performance by the customer (e.g. default in acceptance, failure to cooperate). The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump-sum compensation shall be offset against any claims for damages exceeding this amount. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the flat-rate compensation.
5.1 Unless a delivery period is agreed individually, we shall deliver the goods within the delivery period stated in our order confirmation. Delivery periods stated in our order confirmation are always approximate and may therefore be exceeded by up to three working days. Unless a delivery period is agreed individually or stated in our order confirmation, the delivery period is 14 working days from the conclusion of the contract.
5.2 We may – without prejudice to our rights arising from default on the part of the customer – demand from the customer an extension or postponement of agreed delivery periods and dates by the period during which the customer fails to fulfil its contractual obligations towards us.
5.3 We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure, i.e. events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or pandemics) for which we are not responsible. In the event of obstacles of temporary duration, the delivery period shall be extended by the period of the obstacle plus a reasonable start-up period.
5.4 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (force majeure, non-availability of the goods), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline.
5.5 The rights of the customer pursuant to sections 7and 9these GSC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
6.1 The delivered goods remain our property until full payment of the purchase price (retention of title). If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, we reserve title to the goods sold until full payment of all our current and future claims against the customer arising from the contract and an ongoing business relationship with the customer.
6.2 The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to our goods.
6.3 In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
6.4 Until revoked by us, the customer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. The following provisions shall apply in addition to this:
a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) Claims against third parties arising from the resale of our goods or the products resulting from the processing, mixing or combining of our goods are hereby assigned to us by the customer in total by way of security. We hereby accept the assignment.
c) The customer is entitled to collect the claims assigned to us for his account in his own name on our behalf as long as we do not revoke this authorisation. This shall not affect our right to collect these claims ourselves; however, we shall not assert the claims ourselves and shall not revoke the authorisation to collect as long as the customer duly meets his payment obligations.
d) If the customer acts in breach of contract – in particular if he is in default with the payment of a claim for payment – we may demand that the customer informs us of the assigned claims and the respective debtors, notifies the respective debtors of the assignment and hands over to us all documents and provides all information that we require to assert the claims.
e) If the customer so requests, we shall be obliged to release the securities to which we are entitled (assigned claims) to the extent that their realisable value exceeds the value of our open, secured claims against the customer by more than 10%. However, we may select the securities to be released.
7.1 We provide a warranty for the agreed quality. Unless expressly agreed, we do not warrant that the goods are suitable for the use intended by the customer.
7.2 The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title, unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
7.3 If the delivered item is defective, we may choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the customer is a consumer, he has the right to choose the type of subsequent performance (subsequent delivery or subsequent improvement). Our right to refuse subsequent performance under the statutory conditions remains unaffected in any case.
7.4 We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
7.5 The customer shall give us the time and opportunity necessary for the subsequent performance owed. In particular, the customer shall hand over the rejected goods to us for inspection purposes within a reasonable period of time after notification of the defect. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install it; section 6shall remain unaffected.
7.6 We shall reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.
7.7 Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with clause 9and are otherwise excluded.
7.8 With the exception of claims for damages, the customer’s warranty claims shall become statute-barred 12 months after delivery of the goods; if acceptance has been agreed, the limitation period shall begin with acceptance. If the goods are used for a building in accordance with their customary use and if the goods have caused its defectiveness, the limitation period shall be five years from delivery or acceptance (Section 438 (1) No. 2 BGB).
8.1 The customer’s claims for defects according to clause 7require that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB).
8.2 If a defect becomes apparent upon delivery, inspection or at any later time, the customer shall notify us thereof in writing (e.g. letter or e-mail) without delay. In any case, obvious defects must be reported in writing within three (3) working days of delivery and defects not recognisable during the inspection within the same period of time from discovery.
8.3 If the customer fails to properly inspect the goods and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
8.4 The provisions under this clause 8 not apply to consumers.
9.1 Insofar as nothing to the contrary arises from these GSC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
9.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we are liable – subject to statutory limitations of liability – (e.g. care in own affairs, insignificant breach of duty), only
a) for damages arising from injury to life, limb or health,
b) for damages arising from the breach of a material contractual obligation (i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from clause 2also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with the statutory provisions. They do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
9.4 The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. Otherwise, the statutory requirements and legal consequences shall apply.
10.1 We reserve ownership or copyright of drawings, illustrations, calculations, descriptions and other documents (together “Our Documents“) provided by us to the customer.
10.2 The customer may neither make Our Documents accessible to third parties nor use or reproduce them himself or through third parties without our express consent. The customer shall return Our Documents to us in full at our request if they are no longer required by him in the ordinary course of business.
10.3 This clause 10 does not apply to consumers.
11.1 The following cancellation policy only applies to consumers. The consumer is only entitled to the right of withdrawal in the event that the contract is concluded exclusively by means of distance communication, in particular by e-mail, fax and/or post.
– CANCELLATION POLICY –
Right of withdrawal:
You have the right to cancel this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the goods.
In order to exercise your right of withdrawal, you must inform us (Siqens GmbH, Landsberger Straße 318d, 80687 Munich, Germany, Phone: +49 89 452 44 63-0, Fax: +49 89 452 44 63-22, E-mail: email@example.com) by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. You can use the attached model withdrawal form for this purpose, which is, however, not mandatory.
To comply with the cancellation period, it is sufficient that you send the notification of the exercise of the right of cancellation before the end of the cancellation period.
Consequences of revocation
If you withdraw from this contract, we must repay you all payments that we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days from the day on which we received the notification of your withdrawal from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment. We may refuse repayment until we have received the goods back or you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us (Siqens GmbH, Landsberger Straße 318d, 80687 Munich, Germany) without delay and in any case no later than fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days. You shall bear the direct costs of returning the goods. You only have to pay for any loss in value of the goods if this loss in value is due to your handling the goods in a way that is not necessary for checking the condition, properties and functioning of the goods.
– End of the cancellation policy –
11.2 We provide the following information on the model withdrawal form in accordance with the statutory regulations:
– SAMPLE CANCELLATION FORM –
(If you wish to revoke the contract, please complete and return this form).
– To: Siqens GmbH, Landsberger Straße 318d, 80687 Munich, Germany, e-mail address: firstname.lastname@example.org, fax number: +49 89 452 44 63-22:
– I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
– Ordered on (*) / received on (*)
– Name of the consumer(s)
– Address of the consumer(s)
– Signature of the consumer(s) (only for notification on paper)
(*) Delete as applicable
– END SAMPLE CANCELLATION FORM –
13.1 These GSC and the contractual relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany – subject to mandatory international private law provisions – excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law. If the customer is a consumer and has his habitual residence in another country, he shall retain protection under the relevant provisions of the country of residence, which may not be deviated from by agreement.
13.2 If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, the City of Munich shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship. However, we are also entitled to bring an action at the customer’s general place of jurisdiction.
For the interpretation of the GSC the German version prevail.