General terms and conditions of business

1 Validity of these conditions

1.1 All orders and delivery transactions of Silikal GmbH (hereinafter: "Silikal") are based exclusively on the following General Terms and Conditions (hereinafter: "GTC") and the provisions of the respective contract.
1.2 The conclusion of a contract on the basis of these terms and conditions establishes their validity for all further (delivery) transactions with the customer in the context of ongoing business relationships, even if Silikal does not expressly refer to them in the future. This also applies if the customer only becomes aware of these terms and conditions after the first conclusion of the contract between the contracting parties.

1.3 Deviating agreements, in particular contradictory terms and conditions of the customer, require the express written consent of Silikal in order to be valid, whereby consent from Silikal only becomes effective if it is confirmed separately in writing by Silikal for the respective individual contract from Silikal . Such terms and conditions of the customer shall not bind Silikal , even if Silikal does not expressly object to them or delivers to the customer without reservation in the knowledge of such terms and conditions.

1.4 Silikal shall notify the customer of any amendments to these GTC in text form (Section 126 b BGB) no later than four weeks before they come into effect. The customer shall be deemed to have given his consent if he has not notified Silikal of his rejection in text form (§ 126 b BGB) by the time the changes take effect. Silikal shall specifically inform the customer of this approval effect in its notification of the amendment to these GTC.

2 Offers and conclusion of contract; order of validity

2.1 Offers from Silikal are non-binding unless they have been designated or confirmed as binding in writing by Silikal . Drawings, illustrations and dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.2 If the customer places an order, this shall be deemed a binding legal application in accordance with § 145 BGB. The customer must adhere to the offer of Silikal in his order. Silikal can accept this request within four (4) weeks from the submission of the offer by the customer by sending an order confirmation, unless the parties agree otherwise in writing.

2.3 Contracts with Silikal are concluded upon acceptance of the customer's order by Silikal in text form (§ 126 b BGB) in the form of an order confirmation, at the latest upon provision of the service by Silikal.

2.4 Unless otherwise stipulated in the individual contract, the following order shall apply in the event of conflicting provisions:
1. the individual contract including any additional agreements made,
2. these GTC,
3. - where applicable - the service description agreed with the customer,
4. - where applicable - the technical specification agreed with the customer,
5. the essential contractual components of the offer from Silikal (e.g. price, quantity).

2.5 Silikal reserves ownership rights and copyrights to the documents referred to in section 2.1.

3. duties and obligations of the customer

The customer shall ensure that all necessary provision and cooperation services are provided on time, to the required extent and free of charge for Silikal . If the customer does not provide a required cooperation service, does not provide it on time or does not provide it in the agreed manner, the resulting consequences (e.g. delays, additional expenses) shall be borne solely by the customer.

4. delivery and delivery time; subcontractors

4.1 As long as the customer does not fulfill his obligations to cooperate and provide materials, a delay in delivery by Silikal is excluded.
4.2 Deliveries shall be made ex works "Mainhausen" (if the delivery item is a purchased item: "ex works" or hereinafter "EXW Mainhausen" according to Incoterms 2010), unless expressly agreed otherwise in writing.

4.3 After completion of orders EXW as above, the customer is obliged to collect the goods within 5 (five) working days (Monday to Friday, excluding public holidays) after receipt of the notice of completion (time of delivery) at the place of delivery in accordance with clause 4.2, unless otherwise specified by Silikal . Upon collection, the customer is obliged to pay all transportation costs and/or other costs incurred since the goods were completed and made available by Silikal with regard to the goods.

4.4 The type, method and scope of packaging are at the discretion of Silikal. If Silikal has undertaken to ship the goods to the customer in individual cases beyond EXW Mainhausen in accordance with Incoterms 2010, the shipping method shall be at the discretion of Silikal.

4.5 Specified delivery and performance dates are only binding if they have been designated or confirmed as binding by Silikal in text form (§126 b) BGB). If an expected delivery date is exceeded by more than 2 (two) weeks, the customer is entitled to set Silikal a reasonable grace period for delivery. If Silikal does not deliver within the grace period, the customer has the right to withdraw from the contract. The withdrawal must be declared in writing.

The right of withdrawal only exists if Silikal is responsible for the non-compliance with the grace period for delivery and the customer cannot reasonably be expected to continue to adhere to the contract. If the customer chooses compensation instead of performance, the extent of the liability of Silikal is determined according to clause 9.

4.6 For the duration of circumstances beyond the control of Silikal ("force majeure"), such as the subjective impossibility of procuring raw materials and means of transportation, operational disruptions, strikes and lockouts, fire and natural disasters, Silikal shall be released from its obligation to deliver. Agreed delivery periods shall be extended by the duration of the force majeure circumstances, but by a maximum of 6 (six) months. If the circumstances of force majeure end within this period, the customer can only refuse delivery if acceptance of the delivery has become unreasonable after this period. If the circumstances of force majeure end after the expiry of six months, this shall be deemed a definitive impediment to performance; the customer shall be entitled to withdraw from the contract (§ 323 BGB). The same shall apply if and as soon as it becomes apparent that the circumstances of force majeure will be permanent.

4.7 Silikal is entitled to make partial deliveries or render partial services if (i) the partial delivery can be used by the customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered goods is ensured and (iii) the customer does not incur any significant additional expenses or costs as a result (unless Silikal agrees in writing to bear these costs).

4.8 If Silikal delivers to a third country territory at the customer's request and expense without the customer providing Silikal with an export certificate or other required information regarding the export of the goods, the customer shall be liable in the internal relationship to Silikal insofar as Silikal is therefore required to pay VAT on the delivery in question, unless Silikal is at fault in this respect.

4.9 Silikal is entitled to provide the services by subcontracting them to third parties (subcontractors), unless this conflicts with the legitimate interests of the customer. Silikal is liable for the provision of services by subcontractors as for its own actions.

5 Prices and terms of payment

5.1 The prices are quoted ex works (i.e. if the delivery item is a purchased item: "ex works" or "EXW Mainhausen" according to Incoterms 2010) - excluding packaging, freight, customs, import, ancillary charges - and net plus statutory VAT.
5.2 If the goods are shipped abroad, the customer is obliged to send Silikal the export certificate in text form (§ 126 b BGB) as proof of shipment within 5 (five) working days of receipt of the goods abroad without being requested to do so. In the event of failure to submit the export certificate or any other required information regarding the export of the goods, the customer shall be liable in accordance with section 4.8.

5.3 If, in the period between conclusion of the contract and delivery, unforeseen price increases or reductions occur that cannot be influenced by Silikal due to price changes in the raw materials used of more than 10%, Silikal and the customer shall be entitled to demand an adjustment of the agreed price from the other party by renegotiation. The validity of the rest of the contract remains unaffected by these renegotiations. If the renegotiations do not lead to an agreement, both Silikal and the customer are entitled to withdraw from the contract.

5.4 Invoices from Silikal are due immediately upon receipt and payable without deductions within ten (10) days to the account specified on the invoice, unless other payment terms are agreed in writing between the parties or specified on the invoice from Silikal . They are to be paid in EUR. After any conversion of the monetary claims expressed in euros to another currency, it may occur that this other currency has more or less purchasing power than the euro. In such a case, each party has the right to demand from the other that the amount of the contractually agreed monetary claims be renegotiated in good faith with the aim of compensating for such a gain or loss in purchasing power. The timeliness of the payment is determined by the receipt of the full payment amount on one of the business accounts of Silikal . In the event of late payment, Silikal is entitled to charge interest on arrears at a rate of nine (9) percentage points above the base interest rate.

5.5 Should the customer take a discount agreed in an individual case on his payment which is unjustified due to non-payment within the specified payment period, the absence of a complaint on the part of Silikal shall not constitute tacit recognition of the discount taken. Silikal shall nevertheless remain entitled until the limitation period has expired to demand the partial amount not paid by the customer due to the discount or to offset this partial amount against outstanding claims from other orders of the customer or to book it to the customer's receivables account.

5.6 If the customer is in default of payment with regard to deliveries already made by Silikal , Silikal shall also be entitled, at its discretion, either to withhold the delivery(s) not yet made until the customer has made advance payment for them, or to withdraw from the contract for the delivery(s) not yet made and, if applicable, demand compensation for damages

5.7 For each direct debit that is not honored or returned, the customer shall reimburse Silikal for the costs incurred, including the costs of collecting the outstanding payment, to the extent that the customer is responsible for the event giving rise to the costs.

5.8 Cheques shall only be accepted on account of performance and the debt shall only be discharged upon full payment. Silikal accepts no liability whatsoever for the correct and timely presentation and protesting of cheques issued. Discount charges (2% above the discount rate charged by Silikal's house bank, but at least € 50) and all costs incurred in cashing the check amounts are to be borne by the customer.

5.9 Complaints about the amount of the remuneration charged to the customer by Silikal must be addressed to Silikal immediately after receipt of the invoice. Complaints must be received by Silikal within eight weeks of receipt of the invoice. Failure to make timely complaints shall be deemed as approval of the amount of the invoice. Legal claims of the customer in case of complaints after the deadline remain unaffected.

5.10 If, after conclusion of the contract, there are indications of doubt about the solvency or creditworthiness of the customer or if such circumstances, which already existed at the time of conclusion of the contract, only become known later, Silikal shall be entitled to demand either advance payment or the provision of security before delivery as well as to revoke any payment terms granted and to declare the credited claims due immediately.

5.11 Despite any contrary or missing provisions of the customer, Silikal is entitled to offset payments first against older debts. Silikal will inform the customer about the type of offsetting that has taken place. If costs and interest have already been incurred, Silikal is entitled to offset the payment first against the costs, then against the interest and finally against the main service.

6. transfer of risk, inspection for transport damage

6.1 The risk of accidental loss shall pass to the customer in all cases (irrespective of the INCOTERMS trade term agreed between Silikal and the customer) as soon as the consignment has been handed over to the person carrying out the transportation or has left the Silikal warehouse for the purpose of dispatch.
6.2 The customer shall inspect the external condition of the delivery immediately upon arrival, notify the carrier of any transport damage, secure the evidence thereof and inform Silikal and the carrier immediately by telephone and in text form (§ 126 b BGB). In the case of a delivery to a different debtor delivery address, the customer is obliged to ensure that the inspection for any transport damage is carried out in accordance with the provisions of this clause 6.

6.3 If shipment cannot be carried out within the agreed delivery period through no fault of Silikal , the risk of accidental loss of the goods shall pass to the customer upon expiry of the delivery date specified in section 4.3.

7. obligation to examine; warranty; limitation periods

7.1 The customer must notify in text form (§ 126 b BGB) immediately after receipt of the goods of any obvious defects that are recognizable during a proper inspection, including any transport damage (see Section 6.2). Defects that could not be discovered even during a proper, immediate inspection must be reported to Silikal immediately after discovery. The same applies to complaints due to incorrect deliveries and deviations in quantity. Warranty claims are excluded if the complaint period is missed.
7.2 The customer is obliged to inspect the delivered goods for their suitability for their intended use before handling and processing them, even if samples of the goods were delivered beforehand.

7.3 Minor deviations in dimensions and designs shall not entitle the customer to give notice of defects unless they are unreasonable for the customer. Any deviations within the scope of the relevant quality guidelines known to the customer shall be deemed to be in accordance with the contract.

7.4 Defect rights can only be considered with regard to goods that are still available for inspection and/or return. No goods may be returned to Silikal without prior mutual notification in text form (§126 b BGB).

If Silikal takes back goods and, if applicable, processes these goods after taking them back, this shall in no way constitute an acknowledgement that the returned goods are defective.

7.5 For defects in the delivered goods notified in good time in accordance with Section 7.1, Silikal shall grant the delivery of a new, defect-free item. If the subsequent delivery fails, the customer may, at his discretion, reduce the contractually agreed price or withdraw from the contract. In addition, the customer shall only be entitled to claims for damages within the scope of clause 9.

7.6 The warranty obligation shall lapse if the delivered goods have been modified, processed or improperly handled. Improper handling also includes improper storage of the goods. In particular, the customer must always comply with the Silikal guidelines for storage from the current version of the technical documentation (MMA) (available at www.silikal.com). The customer must document proper storage in a suitable manner.

7.7 Silikal assumes no warranty for goods that the customer has made available to Silikal for the purpose of processing or treatment. With regard to such goods, the customer is not entitled to any warranty rights, unless the defect is due to the processing or treatment by Silikal.

7.8 The limitation period for claims for defects is 12 (twelve) months from the transfer of risk, unless another statutory period is mandatory for Areas of Application or unless the mandatory provisions on the sale of consumer goods (§§ 478, 479 BGB) apply. Furthermore, the above provision shall not apply in cases of liability of Silikal for culpable injury to life, limb or health or in cases of liability of Silikal for claims for damages based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of Silikal .

8. retention of title

8.1 Silikal retains title to the goods until all payments arising from the business relationship with the customer have been received. The goods as well as the goods covered by the retention of title which take their place in accordance with the following provisions are hereinafter referred to as "reserved goods". Insofar as Silikal agrees payment with the customer on the basis of the check procedure, the retention of title also extends to the redemption as well as to claims against the customer in connection with a possible claim against Silikal by third parties entitled and does not expire with the receipt of the money within the scope of the check procedure.
8.2 The processing or transformation shall always take place exclusively under the protection of the security claims of Silikal. The processed item serves with its full value as security for the claim mentioned in the previous paragraph. If the goods are processed with other items not belonging to Silikal , Silikal acquires co-ownership of the new item in the ratio of the value of the goods to the other processed items at the time of processing. For the rest, the same applies to the item created by the processing as to the item delivered under reservation of title.

If the reserved goods are inseparably combined or mixed with goods from other suppliers, Silikal shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount plus VAT) to the other combined or mixed items at the time of combination or mixing.

If the combination or mixing is carried out in such a way that the goods subject to retention of title of Silikal are to be regarded as part of a main item of the customer, the customer shall grant Silikal co-ownership of the main item in the above-mentioned ratio.

The customer shall store the co-ownership share for Silikal free of charge. In the event that no acquisition of ownership within the meaning of this paragraph should occur at Silikal , the customer hereby transfers his future ownership or co-ownership in the above-mentioned proportion of the newly created item to Silikal as security. Silikal hereby accepts this transfer.

8.3 The customer is entitled to sell the goods of Silikal in the ordinary course of business. The customer's claims from this sale or other claims taking the place of the goods are already now assigned to Silikal by way of security in the full amount or in the amount of any co-ownership share of Silikal and with all ancillary rights, irrespective of whether the reserved goods have been delivered on by Silikal without or after processing, transformation, combination or mixing and whether these reserved goods have been processed, combined or mixed with goods from third party suppliers; Silikal already now accepts this assignment. If another supplier can assert a legally effective extended retention of title with regard to the customer's delivery claims, the customer assigns the relevant delivery claims to Silikal to the extent of Silikal 's retention of title to the goods sold. Silikal accepts this assignment now.

8.4 If the customer's claims from the resale of the reserved goods of Silikal or the goods in which Silikal has co-ownership are included in a current account, the customer hereby assigns his claim for payment in the amount of the respective recognized balance, namely in the amount of the claims of Silikal against him. Silikal hereby accepts this assignment.

8.5 The customer is entitled to collect the assigned claim until revoked. The authorization of Silikal to collect the claim itself remains unaffected by this. For justified reasons, such as default or suspension of payment by the customer, application for the opening of insolvency proceedings against the customer's assets or any other threat to the satisfaction of his claim against the customer, Silikal may revoke the customer's authorization to collect the assigned claims. Until then, Silikal undertakes not to collect the claim itself. In this case, the customer is obliged, among other things, to immediately mark the reserved goods as the property of Silikal in a suitable manner recognizable to any third party.

The customer shall send Silikal a detailed list of the goods subject to retention of title still available, even if they have been treated or processed, as well as a list of the assigned claims, naming the third-party debtors. Irrespective of this, authorized representatives of Silikal are entitled at any time during normal business hours to make pertinent determinations at the customer's premises and to inspect the necessary documents.

8.6 The customer shall bear the risk for the goods delivered by Silikal . For the duration of the retention of title, the customer is obliged to store the goods carefully and to insure them adequately against the usual risks, such as damage, loss, theft, fire, etc. at the usual conditions and to the usual extent. The customer hereby assigns the claim against the insurance company in the event of damage to Silikal , namely a first-ranking partial amount in the amount of the price of the goods delivered by Silikal subject to retention of title; Silikal hereby accepts this assignment. Insofar as the insurance does not cover the entire amount of the damage, Silikal cannot be referred to a proportional compensation.

8.7 Pledges or transfers by way of security are excluded. The customer must inform Silikal immediately of all events affecting the property of Silikal and must do everything possible, in particular to make any legal declaration to Silikal or a third party, in order to make the agreed retention of title and advance assignment effective. The customer is liable for all costs of judicial and/or extrajudicial intervention.

8.8 Silikal is obliged to release the collateral after due selection by Silikal if and to the extent that the estimated value of the collateral permanently exceeds the total claim of Silikal to be secured by 50% (fifty percent).

9 Liability; product liability

9.1 Silikal shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of Silikal .
9.2 Insofar as Silikal is accused of the slightly negligent breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of this agreement, the breach of which jeopardizes the purpose of the contract and on the observance of which the customer can regularly rely, the liability for damages is limited to the foreseeable, typically occurring damage.

9.3 Liability for culpable injury to life, limb or health and the liability of Silikal under other mandatory statutory provisions, in particular under the Product Liability Act, shall remain unaffected.

9.4 The customer assumes the sole risk in the internal relationship to Silikal as (co-)manufacturer according to the Product Liability Act, insofar as the cause of the damage was set in his area of responsibility and organization and he is liable as manufacturer in the external relationship to the claimant. In the aforementioned cases, the customer expressly indemnifies Silikal from all possible claims of third parties and will, if necessary, provide security to the extent of his responsibility in the internal relationship.

The provision in clause 9.4 does not apply Areas of Application if, in cases in which the customer has provided Silikal with goods for the purpose of processing or treatment, the cause of the damage is based on the processing or treatment by Silikal , even if Silikal does not appear to third parties as the manufacturer.

9.5 Insofar as the liability for damages towards Silikal is limited, this shall also apply with regard to the personal liability for damages of the employees, workers, staff, representatives and vicarious agents of Silikal.

9.6 Unless otherwise stipulated above, the liability of Silikal is excluded.

10. right of withdrawal in case of unavailability of special raw materials

If, in the period between the conclusion of the contract and delivery, it becomes unforeseeable for Silikal , in particular with regard to the time of the conclusion of the contract, that a raw material essential for the fulfillment of the contract by Silikal is not only temporarily no longer available in the quantity sufficient for the fulfillment of the contract through reasonable expenses, Silikal is entitled to withdraw from the contract with the customer. This does not apply if Silikal is responsible for this non-availability. Silikal will inform the customer immediately of the non-availability.

11. secrecy

11.1 Unless otherwise provided for in a separate confidentiality agreement between the Parties, both Parties undertake to maintain confidentiality in accordance with this Clause 11.
The Parties are mutually obliged to maintain confidentiality with respect to business and trade secrets as well as information designated as confidential ("Secret Information") which becomes known in connection with the performance of the Contract or which the Parties exchange with each other and make available to each other. By secret information the parties mean in particular all orders and all related information and documents of a commercial or technical nature, illustrations, drawings, calculations, quality guidelines, samples and similar information, know-how, business relationships, business strategies, business plans, financial planning, personnel matters. Information which is publicly known at the time of disclosure or becomes publicly known at a later date and which is not the result of misconduct on the part of the party concerned, or which has come to the knowledge of a third party by means other than through the other party to the contract or its affiliated companies, without the party concerned having directly or indirectly breached a duty of confidentiality towards the other party, shall not be deemed to be secret information.

Duplication and disclosure of secret information is only permitted within the scope of operational requirements. It may only be disclosed or made accessible to third parties with the prior express written consent of the respective other party.

11.2 The above confidentiality obligation shall survive the termination of the supply relationship as long as the confidential information has not become public knowledge.

12. non-solicitation

12.1 The customer shall refrain from hiring employees or other workers of Silikal who are involved in the fulfillment of the respective contract during the term of the contract, unless the employee or other worker has already left Silikal as an employee or other worker six (6) months ago or Silikal has given its prior written consent. The above prohibition also does not apply if the hiring of the employee or other worker by the customer is due to the initiative of the employee or other worker of Silikal .
12.2 The customer shall refrain from directly or indirectly enticing away employees or other workers of Silikal who are involved in the fulfillment of the respective contract during the term of the contract.

12.3 The two preceding paragraphs shall apply in each case also after the end of the contract term for a period of one year, starting from the end of the contract term.

12.4 The two preceding paragraphs 12.1 and 12.2 regarding the prohibition of hiring or soliciting also apply to the companies affiliated with the customer.

12.5 The customer must demonstrate and prove that the employment of a former employee or other employee of Silikal is not based on a breach of this recruitment or non-solicitation clause.

13 Offsetting and rights of retention

13.1 Offsetting by the customer is excluded. This does not apply if the counterclaim is based on a breach of a principal obligation of Silikal within the meaning of § 320 BGB or if the counterclaim has been legally established or is undisputed.
13.2 Silikal may offset all of its own claims against claims of the customer, insofar as this does not conflict with any statutory prohibition of offsetting. This also applies in the event that the customer has taken advantage of discounts agreed in individual cases despite late payment.

13.3 The customer shall only be entitled to rights of retention insofar as its counterclaim in connection with or arising from the same legal transaction has been legally established or is undisputed. Otherwise, the customer shall not be entitled to any rights of retention.

14. written form

14.1 This agreement shall take precedence over all previous agreements on its subject matter, irrespective of whether the parties have agreed thereto in writing or orally. There shall be no verbal collateral agreements.
14.2 Amendments, supplements and the cancellation of this agreement must be in writing to be effective. This also applies to the amendment of this written form clause itself. Areas of Application The above written form requirement does not apply to agreements made orally between the parties after the conclusion of the contract. In this case, too, the parties agree that written confirmation is required for the content of an oral agreement.

14.3 Unless otherwise stipulated in these General Terms and Conditions, text form, e.g. e-mail, fax, within the meaning of § 126 b of the German Civil Code (BGB) shall also be sufficient for compliance with the written form requirement.

15 Applicable law, place of jurisdiction

15.1 All contractual and non-contractual relationships between Silikal and the customer are subject to the law of the Federal Republic of Germany. The Areas of Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
15.2 All disputes arising out of or in connection with this contract or its validity shall be finally settled under the Rules of Arbitration of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Munich. The language of the arbitration proceedings shall be English, although documents and evidence may also be submitted in German. It is agreed that the decision shall be made by a single judge.

16. final provisions

16.1 If individual provisions of these GTC are or become invalid, this shall not affect the validity of the remaining provisions. This does not apply if adherence to the contract would represent an unreasonable hardship for one of the contracting parties.
16.2 The customer may only transfer the rights and obligations arising from the contract with Silikal to a third party with the prior written consent of Silikal . Silikal will only refuse consent for good cause. The customer shall inform Silikal immediately if he intends to transfer rights and obligations from the contract with Silikal .

16.3 These GTC are agreed in a German and English version. The German version shall prevail in the event of any discrepancies.

17 Creditreform

17.1Our company regularly checks your creditworthiness when concluding contracts and in certain cases where there is a legitimate interest. For this purpose, we work together with Creditreform Offenbach Gabold & Bleul KG, Goethering 59, 63067 Offenbach, from whom we receive the data required for this purpose. For this purpose, we transmit your name and contact details to Creditreform. Further information on data processing at Creditreform is available at www.creditreform-offenbach.de/EU-DSGVO or on request by e-mail/fax/post.