Our terms of sale shall apply to all deliveries made by us to the customer now and in future. They shall also apply for future offers of contracts, acceptance of offers and any further obligations and services, as far as no other stipulations are expressly confirmed in writing by us. Our terms of sale shall have precedence as the exclusive valid terms of sale over other provisions, particularly over terms of purchase of customers. In case an order is placed with reference to terms of purchase which do not comply in part or in whole with our terms of sale, we hereby expressly state that we do not recognize such terms of purchase at all. Any divergences from our terms of sale require our express written confirmation. The invalidity of any provision of these terms of sale or the alteration of individual provisions shall not effect any part of the remaining provisions.
Data of our customers is stored and processed by us using EDP as far as necessary for the proper conduct of our business relations. Furthermore, permission is granted to use address data provided by us, in particular that of individuals, for information purposes between the companies.
Resale of goods may be subject to German, EU or US export laws. Resale to countries subject to an embargo or to prohibited persons or persons who will use the goods for military purposes, ABC weapons or nuclear technology requires approval in all cases. The necessary approval must be acquired by the reseller.
Each order requires our written confirmation to be legally accepted. Any supplementary agreements as well as subsequent supplements and alterations require our express written confirmation to become legally effective.
§3 Terms of delivery
Any terms and dates of delivery are approximate, as long as they are not explicitly specified as fixed. In any case of noncompliance with set terms and dates of delivery, the customer shall have to send us a written reminder and grant us an additional and reasonable period of time for compliance before he can exercise his legal and contractual rights. Partial deliveries are permissible, excess or short deliveries of up to 10% of the overall quantity shall be permissible. The price will be calculated based on the partial quantity delivered.
All risks will pass to the customer as soon as the goods are handed over to the carrier or as soon as the goods leave our premises. Packing costs are charged separately unless other provisions have been expressly stipulated in writing. We will take back packing materials; charges for return mail, however, are at the customer’s expense. Both contracting parties agree that all deliveries to customers are subject to a punctual, proper and sufficient self-supply from our suppliers. The same shall apply as far as products or primary products are bought from third parties and especially for any delay or impossibility of performance due to products or primary products bought from abroad. In case of such a delay or impossibility of performance customers can only exercise their rights if we are responsible. Unforeseeable, inevitable, and extraordinary circumstances, e.g. industrial dispute, administrative actions or regulations, severe disturbances of traffic etc., shall fully exempt us from all delivery obligation as long as these circumstances endure or, should the result of these circumstances be the impossibility to deliver, shall fully exempt us from any delivery obligation.
We shall reserve the right to have delivery executed by our own carriers.
Partial deliveries and services shall be permissible if they are just and reasonable to the customer.
§4 Waste disposal inside the European Union
The customer is responsible for the proper disposal of the goods at his expense according to legal regulations after he ends the use of delivered goods. The customer shall exempt the supplier from the duties according to § 2 II ElectroG (manufacturer‘s obligation to take back used goods) as well as claims from third parties connected with these regulations.
If the customer passes on to commercial third parties goods that were delivered by Sill, it is the customer’s duty to oblige the commercial third party to dispose of the goods properly at the third party’s expense and according to legal regulations, when the use of the goods has been ended. If a further passing-on takes place, a corresponding obligation has to be imposed upon the recipient of the goods.
Should the customer fail to oblige third parties to whom the goods have been passed on under a contract to accept responsibility to dispose of the goods and to oblige any further purchaser in the same way, it shall be the customer’s duty to take back the goods at his own expense and to dispose of them properly and according to legal regulations after the use of the goods has been ended.
The manufacturer‘s right of acceptance/exemption granted by the customer shall not fall under the statute of limitations until the expiration of two years after the definite end of using the appliance. The two-year period of suspension of the statute of limitations shall start no sooner than upon receipt of a written notification of the customer regarding the end of use of the appliance by the manufacturer.
§5 Wage labour
Wage labour will be conducted on a best-effort-basis according to the current technical standards of Sill Optics. Should it become apparent during the labour process that the goods and/or services cannot be supplied to their full extend with the standards and know-how available at Sill Optics, the customer shall not have the right to contract a third party to finish the goods or to request such action from Sill Optics.
All components and substrates made available to Sill Optics are to be insured against damage by the customer. Sill Optics is exempt from all accountability and indemnification for preliminary products at all times except in case of gross negligence or premeditation.
Further liability, e.g. for subsequent damage due to the late or non-delivery of components or substrates, is excluded as well.
The customer shall have to name the current value of the component or substrate to be worked on before work on said component/substrate commences.
§6 Terms of payment
Our invoices are payable immediately. If payment is not made within 30 days of the date of invoice, the full amount is subject to an obligatory interest rate of 12%.
Customers can only offset against our demands for due payment or exert a right of retention with uncontested or non-appealable counterclaims.
If there is a substantial deterioration in the financial circumstances of the customer, which might affect the full and prompt payment after the contract has been concluded or if such circumstances are present before the contract is concluded but are only recognized at a later date, further deliveries will be made only on advance payment or on security. This shall also apply if customer is in delay in paying former deliveries. In this case we can also ask for immediate and full payment of all unsettled invoices as regards all business transactions, even when a respite on all or parts of our demands was granted or when payment by bill of exchange was accepted.
§7 Notification of Defects and Guarantee
Notification of defects must be given according to § 377 HGB, with the proviso that we must be notified of complaints on faulty or incomplete deliveries in writing no later than 2 weeks after the delivered goods reached their point of destination. Hidden defects must be brought to our attention in writing no later than 2 weeks after detection. Damages to goods in transit must be brought to the carrier’s attention immediately. If the delivered goods are defective or are lacking the guaranteed qualities at the time of passage of risk we shall fulfill our warranty obligations by rectification of defects or replacement as we choose. If several attempts of repairs or replacements fail, the customer may demand abatement of purchase price or annulment of contract. All further warranty is hereby excluded except those rights granted by law concerning lack of guaranteed qualities. Where permissible all warranty rights shall be struck by the statute of limitations after one year, in other cases according to legal regulations. The return of goods shall be conducted by a carrier named by Sill Optics.
The return of goods shall only be executed by use of our RMA-Note form stating the RMA-number provided to the customer by Sill Optics. Processing without the RMA-Note is not possible. This form is available on our homepage for download www.silloptics.de/rma-schein.pdf.
§8 Damage claims
Any damage claims of customers, especially damage claims for non-performance or in case of default, positive violation of contractual duties, breach of duties prior to contract and for tortious act are excluded. This exclusion pertains especially to claims for damages that do not occur in the delivered goods themselves. The exclusion of liability, however, is not valid in cases of wrongful intent or gross negligence or neglect of fundamental contractual obligations. Furthermore this exclusion is not valid for any claims concerning the lack of guaranteed qualities, when damages occur in the delivered goods themselves or if the warranty is intended to back up customers against the occurrence of such damages.
§9 Reservation of ownership
The delivered goods shall remain our property until all our accounts receivable have been settled. Bills of exchange and cheques shall only be excepted as proper payment after cashed bank payment.
If the retained goods have been processed or combined with other goods not belonging to us and are sold or combined with moveable items, our right of ownership will be replaced either by a co-ownership of the new object(s) or - in case of resale - a share of the resale price in proportion to the value of our goods. The customer shall undertake to communicate with us in writing the whereabouts of the goods and the co-owners of the connected or mixed objects or the recipients of the sold goods upon request.
The customer may only resell the goods covered by our reservation of ownership rights in the usual course of business and only if he is not in default in payment. If the customer should default in payment or if there are any doubts on his creditworthiness, we are entitled for our protection to ask for the return of all goods which are still under our rights of ownership or co-ownership until all our accounts receivable have been settled.
To secure all our accounts receivable from this business relationship the customer hereby accepts and grants the assignment of future claims, which result from resale of goods covered by our reservation of ownership even if the retained goods have been processed or combined with other goods not belonging to us, up to the value of the respective retained goods. The customer shall be entitled to collect these claims as long as we do not revoke this permission. Should the value of these securities exceed our claims by a total of more than 20%, we shall be obliged after customer‘s request to either release or reassign the excessive securities as we choose.
In case of access of third parties to the retained goods, especially in case of attachment, the customer shall advise said third parties of our ownership and notify us immediately so that we can enforce our right of ownership. If the third party is not able to reimburse us for the legal fees incurred in and outside a court of law in this matter, the customer shall be liable for these costs.
§10 Developments and tooling
All rights to new developments, especially to new designs or optical calculations remain with us, even if developed by order of the customer against payment. The customer is not entitled to produce himself or engage a third party to produce the goods using our development unless express permission is granted in writing by us. All tooling shall remain our property, even if charged to the customer. All charges are partial charges only. Therefore all tooling shall remain our property and will not be surrendered to the customer.
Unless otherwise expressly agreed in writing, information provided to us in connection with the order shall not be treated as confidential unless confidentiality is obvious. Our commercial partners are obliged to protect and secure any data and information resulting from the cooperation with SILL OPTICS from unauthorized use of third parties
§12 Place of performance, jurisdiction, applicable
Place of performance for all mutual contractual obligations shall be Wendelstein; if purchase is made from one of our distributing warehouses it shall be this place. If the customer is a merchant, a legal entity under private law, or a juristic person of the public law, the sole place for jurisdiction for all disputes including legal action concerning cheques and bills of exchange shall be Nürnberg. The law of Germany as it is applied in Nürnberg shall be applied exclusively to all legal relations between ourselves and customers. The United Nations Convention on Contracts for the International Sale of Goods is excluded. In case of doubt, trade terms should be interpreted according to Incoterms 2000.