TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT (GENERAL TERMS AND CONDITIONS) 

of A. Sievers GmbH, Marie-Curie-Straße 3, D-30966 Hemmingen, Germany

The following General Terms and Conditions of A. Sievers GmbH shall apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Any conflicting purchasing or business terms and conditions of contractual partners (hereinafter referred to as the “Customer”) shall not apply, even if A. Sievers GmbH has not expressly objected to them in an individual case. Even if we refer to a letter containing or referring to the Customer’s or a third party’s terms and conditions, this shall not constitute acceptance of the validity of such terms and conditions. They shall only apply if confirmed by us in writing. These General Terms and Conditions shall also apply to all future transactions with the Customer, even if they are not separately agreed again. The version applicable at the time the contract is concluded shall be decisive.

All deliveries, services and offers provided by our suppliers shall be made exclusively on the basis of these General Terms and Conditions.

Legally relevant declarations and notices by the Customer relating to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction of the purchase price) must be made in writing. For the purposes of these General Terms and Conditions, written form includes written and text form (e.g. letter, email or fax). Statutory formal requirements and additional evidence, in particular in cases of doubt concerning the legitimacy of the person making the declaration, shall remain unaffected.

1. Offers / Acceptance of Orders
Our offers are subject to change and non-binding. The Customer’s order of goods shall constitute a binding offer to conclude a contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within four weeks of its receipt by us. The relevant date for compliance with this period shall be the date on which our acceptance reaches the Customer. Acceptance may be declared either in writing (e.g. by means of an order confirmation) or by delivering the goods to the Customer.

2. Prices
Unless otherwise agreed in an individual case, our current prices at the time the contract is concluded shall apply, ex works (Incoterms 2020), plus statutory VAT.

Orders shipped in a single consignment with a net value of more than EUR 1,000.00 shall be delivered carriage paid within the Federal Republic of Germany. Costs for deliveries abroad shall be calculated individually according to the actual costs incurred. Please contact us in advance regarding deliveries abroad.

For orders below EUR 100.00 net (excluding subsequent deliveries), a small-order surcharge of EUR 25.00 net shall also be charged.

3. Payment Terms
Invoices shall be payable within 30 days of the invoice date. Upon expiry of the aforementioned payment period, the Customer shall be in default of payment.

The Customer shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. The Customer’s counterclaims in the event of defects in the delivery shall remain unaffected.

Bills of exchange or cheques shall only be accepted on account of performance. The payment obligation shall only be deemed fulfilled once the bill of exchange or cheque has been successfully honoured.

4. Default of Payment
Upon expiry of the payment period pursuant to Section 3, the Customer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate.

We reserve the right to assert further damages caused by default. In relation to merchants, our claim to commercial maturity interest pursuant to Section 353 of the German Commercial Code (HGB) shall remain unaffected.

5. Packaging
Packaging shall be charged at cost price.

For deliveries within the Federal Republic of Germany with a net value exceeding EUR 150.00, packaging costs shall not be charged unless special packaging (crates, cases, etc.) is used.

For special packaging, two thirds of the amount charged shall be credited if the packaging is returned carriage-free in reusable condition within four weeks of delivery.

Packaging costs for deliveries abroad shall be calculated individually according to the actual costs incurred.

6. Delivery and Performance Periods
The delivery periods stated by us shall be non-binding unless an expressly fixed period or specific date has been promised or agreed. They shall be calculated on the assumption that they can probably be met under normal business conditions.

Compliance with agreed delivery periods shall be subject to timely and correct delivery to us by our own suppliers.

In the event of unforeseeable circumstances for which we are not responsible, in particular cases of force majeure or other events that were unforeseeable at the time the contract was concluded (e.g. delays in delivery or performance due to force majeure or events that make delivery more difficult or impossible for us, including in particular operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures, or failure by suppliers to deliver, or incorrect or late delivery), we shall be released from our obligation to meet any agreed delivery dates.

If such events substantially impede or make delivery or performance impossible for us and the impediment is not merely temporary, we shall be entitled to withdraw from the contract.

In the event of temporary impediments, the delivery or performance periods or dates shall be extended or postponed by the duration of the impediment plus a reasonable start-up period.

If, as a result of the delay, the Customer can no longer reasonably be expected to accept the delivery or performance, the Customer may withdraw from the contract by giving us immediate written notice.

If we are in default with a delivery or performance or if delivery or performance becomes impossible for any reason whatsoever, our liability for damages shall be limited in accordance with Section 10 of these General Terms and Conditions of Delivery.

For custom-made products and individual lettering (signs, labels, etc.), we reserve the right to make over- or under-deliveries of up to 10%. This shall not give rise to any entitlement to a reduction in the invoice amount or subsequent delivery.

7. Place of Performance, Shipment, Transfer of Risk, Acceptance
The place of performance for all obligations arising from the contractual relationship shall be the registered office of A. Sievers GmbH.

The risk shall pass to the Customer at the latest upon handover of the delivery item to the forwarding agent, carrier or other third party designated to carry out the shipment, whereby the commencement of the loading process shall be decisive.

If shipment or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the date on which the delivery item is ready for shipment and we have notified the Customer accordingly.

The Customer shall bear storage costs arising after the transfer of risk.

If the Customer is in default of acceptance, fails to perform a required act of cooperation or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs).

8. Complaints
The Customer shall comply with its statutory obligations to inspect the goods and give notice of defects pursuant to Sections 377 and 381 of the German Commercial Code (HGB).

The delivered goods must be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer.

Hidden defects must be notified in writing within eight days of their discovery, while apparent defects must be notified in writing within eight days of receipt of the goods and in any event before the goods are used.

If the defect was already apparent to the Customer at an earlier point in time, that earlier point in time shall be decisive for the commencement of the notification period.

The Customer shall be obliged to provide sufficient grounds for its complaint and to submit evidence or the goods subject to the complaint.

Minor deviations between the goods ordered and the goods delivered with regard to dimensions, colour and quality shall not entitle the Customer to assert defects, provided that the usability of the goods for the contractually intended purpose is not impaired.

9. Warranty
The warranty period shall be one year from delivery.

We shall be entitled, at our discretion, to fulfil our obligations in respect of defects in the purchased goods by remedying the defect or supplying replacement goods.

If the defect has not been remedied within a reasonable period or if we fail to provide a replacement within a reasonable period, the Customer may, at its discretion, demand a reduction in the remuneration or rescission of the contract.

Remedy of the defect shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the goods or defect or other circumstances indicate otherwise.

We shall be entitled to make the supplementary performance owed by us conditional upon the Customer paying the purchase price due. However, the Customer shall be entitled to withhold a reasonable portion of the purchase price in proportion to the defect.

The warranty shall not apply if the Customer itself or through third parties has made changes to the delivery item without our consent and this makes the remedy of the defect impossible or unreasonably difficult. This shall not apply if the Customer proves that the defect exists independently of the modification.

The Customer shall give us the necessary time and opportunity to carry out the required supplementary performance, in particular to hand over the goods subject to the complaint for inspection purposes.

In the event of replacement delivery, the Customer shall return the defective goods to us upon our request in accordance with the statutory provisions; however, the Customer shall have no right to demand that we take back the goods.

10. Liability
Unless otherwise provided for in these General Terms and Conditions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the applicable statutory provisions.

We shall be liable for damages, irrespective of the legal grounds, in cases of intent and gross negligence.

In cases of simple negligence, we shall only be liable:

a) for damages arising from injury to life, body or health;

b) for damages arising from the breach of an essential contractual obligation; in this case, however, our liability shall be limited to compensation for foreseeable damage that is typically incurred.

Essential contractual obligations include the obligation to deliver on time and to provide goods free from material defects, as well as advisory, protective and custodial obligations intended to enable the Customer to use the delivery item in accordance with the contract or to protect the life and health of the Customer’s personnel or the Customer’s property from significant damage.

The above limitations of liability shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee as to the quality of the goods. The same shall apply to claims by the Customer under the German Product Liability Act (Produkthaftungsgesetz).

In the event of a breach of duty that does not constitute a defect, the Customer may only withdraw from the contract if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences shall apply.

11. Retention of Title
We shall retain title to the goods delivered by us until all claims arising from the ongoing business relationship have been paid in full.

The Customer shall notify us immediately in writing if the delivered goods subject to retention of title are seized or otherwise exposed to third-party interference, or if an application for the opening of insolvency proceedings has been filed.

The Customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business.

The Customer hereby assigns to us all claims arising from the resale in the amount of the final invoice amount agreed with us (including VAT), irrespective of whether the purchased goods have been resold without or after processing. We hereby accept this assignment.

The Customer shall remain authorised to collect the claim. Our right to collect the claim ourselves shall remain unaffected.

The processing or transformation of the purchased goods by the Customer shall always be carried out in our name and on our behalf.

If the purchased goods are processed together with other goods not belonging to us, we shall acquire co-ownership of the new item in proportion to the objective value of our purchased goods (final invoice amount including VAT) to the other processed goods at the time of processing.

The same shall apply in the event of mixing.

If the mixing is carried out in such a way that the Customer’s goods are to be regarded as the principal item, it shall be deemed agreed that the Customer shall transfer proportionate co-ownership to us and shall hold the resulting sole or co-ownership on our behalf.

We undertake to release the securities to which we are entitled at the Customer’s request insofar as their value exceeds the claims to be secured by more than 20%.

12. Rights of Use

1. The Customer grants us a free-of-charge, non-exclusive, non-transferable, sublicensable, unrestricted in content and territorially unrestricted right (“Licence”) to use all intellectual property rights (in particular copyrighted works, designs, trademarks, business names, titles and name rights, including the company name) to the extent necessary to fulfil our performance obligations in accordance with these General Terms and Conditions and the order placed by the Customer.

This shall include, in particular, the right to reproduce, distribute or modify the intellectual property rights.

2. Within the scope of the licence pursuant to paragraph 1, we shall also be entitled to reproduce, distribute, present, make publicly accessible or modify the intellectual property rights for our own presentation and advertising purposes.

The granting of rights shall include, in particular, the purpose of using photographs, videos and other physical or non-physical images or representations of products manufactured for the Customer on the internet, in flyers, catalogues or other media, and to publish and publicly reproduce such content, including its use for presentation and advertising purposes at trade fairs.

3. If the Customer is not identical to the rights holder, the Customer warrants that it is authorised and empowered to grant the rights pursuant to paragraphs 1 and 2.

The Customer shall indemnify us against any claims by rights holders, including the costs of legal defence, insofar as such claims are asserted against us due to a lack of authority to grant the rights in connection with a possible infringement for which the Customer is responsible.

13. Limitation Period
In deviation from Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims based on defects in quality and title shall be one year from delivery.

The statutory special provisions for third-party claims for restitution in rem pursuant to Section 438 (1) No. 1 BGB shall remain unaffected.

The same shall apply in cases of fraudulent intent on the part of the seller pursuant to Section 438 (3) BGB and to claims arising from supplier recourse in the case of final delivery to a consumer pursuant to Section 479 BGB.

The above limitation periods under sales law shall also apply to the Customer’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation period pursuant to Sections 195 and 199 BGB would result in a shorter limitation period in an individual case.

The limitation periods under the German Product Liability Act shall remain unaffected in all cases.

Otherwise, the statutory limitation periods shall apply exclusively to the Customer’s claims for damages.

14. Place of Jurisdiction and Applicable Law
The place of jurisdiction for all disputes, including international disputes, arising from the business relationship between us and the Customer shall, at our discretion, be Hannover or the Customer’s registered office.

For actions brought against us, Hannover shall have exclusive jurisdiction.

Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected.

All legal relationships between us and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).

References in these General Terms and Conditions to the applicability of statutory provisions shall only have a clarifying effect. The statutory provisions shall therefore also apply without such clarification, insofar as they have not been directly amended or expressly excluded by these General Terms and Conditions.

15. Severability Clause
If the contract or these General Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed which the contractual parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gap.