General terms and conditions

I Scope of Application

1.1. These General Terms and Conditions of Sale (hereinafter “Terms“) shall apply exclusively to business relationships between Siebert GmbH (hereinafter also referred to as “we“, “our“, etc.) and entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law (hereinafter “Customer“). The Terms apply both to the current contract and as a framework agreement for all future contracts in ongoing business relationships with Customers. All deliveries and services, including ancillary and additional services (hereinafter jointly also “Deliveries“) shall be based on these Terms.

1.2. Terms and conditions that conflict with or deviate from our Terms or from any statutory provisions shall not apply unless we have expressly agreed to their validity in writing. This shall also apply if we have not expressly objected to them or if we have carried out Deliveries without reservation or accepted payments without reservation. The Customer’s terms and conditions of business or purchase are hereby rejected.

II Conclusion of Contract

2.1. Our pre-contractual communications (in particular contractual offers, descriptions and cost estimates) are always subject to change and non-binding, unless we expressly designate them as binding. Unless otherwise agreed, they refer to customary commercial quality. Agreements shall only become binding upon our order confirmation.

2.2. We can accept orders and other contractual offers from the Customer within 14 calendar days of submission. Until the expiry of this period, the Customer’s orders and other contractual offers are irrevocable. Our declarations intended to conclude contracts (in particular order confirmations) must be made in text form (as defined in Section 126b of the German Civil Code (BGB)). Our silence in response to such an offer shall not constitute any reliance on the conclusion of a contract. The text form requirement (as defined in Section 126b of the German Civil Code (BGB)) shall not affect any agreements concluded informally after conclusion of contract. We shall also remain entitled to bring about the conclusion of a contract by making Deliveries without reservation or by invoicing Deliveries in whole or in part. Our silence shall not constitute any reliance on the conclusion of a contract.

2.3. If a letter of confirmation from the Customer deviates from our offer or our order confirmation or extends or restricts them, the Customer shall emphasize the changes as such.

2.4. Our sales staff are not authorized to make verbal side agreements that go beyond the content of the written contract.

III Suitability for Use, Documents, Intellectual Property

3.1. Unless otherwise agreed, we do not assume any procurement risk or guarantee for our products. The latter also applies to technical information, recommendations and advice, in particular on the application of the products. The Customer is always obliged to check the suitability of the products for the intended purpose himself. Our information on the subject matter of the Deliveries (e.g. data and other properties of the Deliveries), which are provided in product descriptions by us or the Customer, are only approximate unless expressly designated as binding in writing and the usability for the contractually agreed purpose does not require exact conformity. Technical instructions, in particular safety data sheets and instructions for storage, handling and disposal of our products must be observed by the Customer.

3.2. Unless expressly agreed otherwise, we reserve title and all our rights to all documents (in particular product descriptions, brochures, catalogues, price lists, illustrations, calculations, technical documents) which we have made available to the Customer. Unless otherwise agreed in writing, we hold the copyright to all documents.

3.3. The documents in accordance with Section 3.2. may not be reproduced or made accessible to third parties without our written consent. Should the Customer culpably violate this provision, we are entitled to claim liquidated damages in the amount of 5% of the net order value of the contract in question. In the event of particularly high damages, such as the disclosure of business secrets to third parties, the possibility of claiming higher damages remains unaffected. The Customer shall be permitted to prove that we have incurred no damage or significantly less damage than the liquidated damages.

3.4. The Customer must ensure that our product information (in particular product and application instructions), which we have made available to the Customer, is sent to the respective further purchasers of our Deliveries. We shall make the documents required for this purpose available to the Customer on request, unless they have already been supplied.

3.5. If our Deliveries have been manufactured using know-how, inventions, patents, copyrights or other industrial property rights of which we are the owner or authorized user, the Customer shall only be granted rights of use to these to the extent that this is necessary to achieve the purpose of the contract. All other rights of use and exploitation (in particular patent rights and copyrights) shall remain with us.

 IV Prices

4.1. Unless expressly agreed otherwise, the prices are in euros and based on FCA (Incoterms 2020) our factory in Mönchengladbach, exclusive of packaging, which is charged separately and is not returnable, and exclusive of freight, carriage, insurance and other ancillary costs, plus the statutory value added tax at the applicable rate.

4.2. The prices stated in the offer and order confirmation are based on the raw material prices, wages, taxes, social security contributions and freight costs (hereinafter referred to as “Cost Factors“) valid at the time of conclusion of the contract. These Cost Factors have a direct influence on the sales price of our Deliveries. If there are more than four months between the conclusion of the contract and the agreed delivery date and if Cost Factors increase by more than five per cent in total during this period, we may increase the sales prices of our Deliveries accordingly. The points of reference for this are the dispatch of the order confirmation and the day on which the Delivery is made available. The above-mentioned price increase does not lead to an increase in profit for the seller.

V Terms of Payment

5.1. Our purchase price claims are due for payment within 30 calendar days of receipt of the invoice and delivery of the goods. If payment is made within 14 days of receipt of the invoice and delivery of the goods, we grant the Customer a discount of 2%.

Irrespective of this, we are authorized at any time, even within the framework of ongoing business relationships, to make a Delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.

The crediting of the invoice amount to our account specified in the offer and order confirmation shall be decisive for the timeliness of payment.

5.2. The Customer shall only be entitled to rights of set-off and retention against our claims insofar as counterclaims against us have been legally established or are undisputed, or the counterclaim arises from the same contractual relationship.

5.3. If our claims arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) are jeopardized by a significant deterioration in the Customer’s creditworthiness which becomes apparent after conclusion of the contract, we shall be entitled to perform outstanding Deliveries only against advance payment or provision of appropriate security. If the Customer does not provide advance payment or appropriate security within a reasonable period of time, we may withdraw from the contract. Our other rights of cancellation shall remain unaffected.

 VI Delivery, Delivery Dates

6.1. Deliveries are made on the basis of FCA (Incoterms 2020) our factory in Mönchengladbach, Germany, unless expressly agreed otherwise.

6.2. If expressly agreed, we shall provide the delivery items packed in accordance with standard commercial practice. Packaging that goes beyond the transport purpose known to us or other special protection, e.g. for longer-term storage of the goods, requires an express agreement.

6.3. Premature delivery is permissible insofar as it is reasonable for the Customer. Partial, excess or short Deliveries are permissible insofar as they are reasonable for the Customer, taking into account customary commercial tolerances.

6.4. Delivery dates shall only be binding if this has been expressly agreed with the Customer. Agreed delivery dates are also subject to our proper and timely self-delivery by our suppliers and the timely and correct fulfillment of all the Customer’s obligations to cooperate.

6.5. We shall be entitled to adjust the delivery dates at our reasonable discretion if the conditions specified in Section 6.4. are not met in good time.

6.6. In the case of Deliveries that fall under the dangerous goods regulations (ADR, RID, IMDG, IATA), the Customer undertakes to observe all applicable regulations for the transport, handling and storage of these Deliveries on its own responsibility. The Customer must ensure that third parties commissioned by it and any other recipients are also informed accordingly and that they comply with the relevant statutory and safety-related provisions. Any official authorizations, labelling or training certificates required for handling such Deliveries must be obtained or verified by the Customer at its own expense and responsibility. Any liability on our part for violations of dangerous goods regulations by the Customer or third parties is excluded.

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

VII Transfer of Risk, Acceptance

7.1. The risk of accidental loss and accidental deterioration of our Deliveries shall pass to the Customer if and insofar as we have made the Deliveries available for collection at our outgoing goods department in Mönchengladbach, Germany, on the agreed delivery date in accordance with FCA (Incoterms 2020) and have notified the Customer thereof.

7.2. If, in deviation from Section 6.1., the Deliveries are shipped by us, this shall be done – unless otherwise agreed – on the basis of DAP (place of delivery specified by us) in accordance with Incoterms 2020; in this case, the risk of accidental loss and accidental deterioration of our Deliveries shall pass to the Customer when they are handed over to the forwarding agent or carrier, but at the latest when they leave our factory.

7.3. In the event of default of acceptance by the Customer, the risk of accidental loss and accidental deterioration of our Deliveries shall pass to the Customer at the time of default of acceptance.

VIII Delay in Delivery

8.1. In the event of our delay in delivery, our liability shall be limited as follows: The Customer’s claim for damages due to delay is limited to 0.5% of the net price of the delayed Deliveries for each full week of delay, up to a maximum of 5% of this net price of the delayed Deliveries. This limitation shall not apply in the event of liability due to willful intent or gross negligence or in the event of injury to life, limb or health.

8.2. The Customer may only withdraw from the contract due to delays in delivery in accordance with the statutory provisions if we are responsible for the delay or if the Customer can no longer reasonably be expected to adhere to the contract due to the delay. Statutory cancellation rights remain unaffected by this.

8.3. At our request, the Customer must declare within a reasonable period of time whether he withdraws the contract due to the delay in delivery or whether he continues to insist on delivery.

IX Retention of Title (Retained Goods)

9.1. Until full payment of all our present and future claims arising from the purchase contract and the current business relationship (secured claims), we retain ownership of the Deliveries (hereinafter “Retained Goods”).

9.2. The Customer is obliged to cooperate in measures necessary to protect our retention of title; in particular, the Customer authorizes us, upon conclusion of the contract, to make any necessary entry or priority notice of our retention of title in public registers at the Customer’s expense and to fulfill all other formalities required under the applicable property law. Insofar as the legal system applicable at the place of performance does not recognize our retention of title, the Customer undertakes to cooperate in the creation of a comparable security interest in the Retained Goods.

9.3. The processing or transformation of the Retained Goods by the Customer shall always be carried out free of charge for us as manufacturer within the meaning of Section 950 of the German Civil Code (BGB). The Customer shall store the new item for us with the care of a prudent businessman. It shall be deemed Retained Goods. If the Retained Goods are processed, combined or mixed with other items by the Customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the Retained Goods to the invoice value of the other goods used. If our retention of title expires as a result of combining or mixing, the Customer hereby assigns to us his ownership rights to the new stock or the new item to the extent of the invoice value of the Retained Goods and shall store them for us free of charge. Our (co-)ownership rights arising hereunder shall be deemed to be Retained Goods.

9.4. The Customer is obliged to store the Retained Goods separately from other items belonging to the Customer or third parties and to mark them as our property and to treat them with care and to maintain them at his own expense for the duration of the retention of title and to insure them in our favor against theft, breakage, fire, water and other risks at replacement value. The Customer shall carry out any necessary maintenance and inspection work on the Retained Goods at his own expense and risk. The Customer hereby assigns to us, by way of security, all claims for compensation arising from such insurance policies.

9.5. The Customer may only resell the Retained Goods in the ordinary course of business. He is not authorized to dispose of the Retained Goods in any other way, in particular by pledging them or transferring them by way of security. By way of security, the Customer hereby assigns to us all claims arising from the resale of the Retained Goods. The Customer is hereby authorized to collect the claim. If the Retained Goods are sold by the Customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the Retained Goods sold in each case. If the claim from the resale is placed by the Customer in a current account relationship with his buyer, the recognized balance, which is assigned in the amount of the resale value of the Retained Goods sold in each case, shall take its place after the current account claim has been balanced. In the case of the sale of goods in which we have co-ownership shares in accordance with clause 9.3., the assignment of the claim shall apply in the amount of the corresponding resale value of these co-ownership shares.

9.6. We shall be entitled to revoke the authorization to sell the Retained Goods and the collection authorization if the Customer is in default of payment or disposes of the Retained Goods outside the ordinary course of business or if, after conclusion of the contract, a significant deterioration in the Customer’s financial circumstances becomes apparent which jeopardizes a claim on our part. In the event of suspension of payments by the Customer or an application to open insolvency proceedings against the Customer’s assets, the authorizations to sell the Retained Goods and the collection authorization shall automatically lapse. In this case, we shall also be entitled, without prejudice to other claims, to prohibit the processing, combining or mixing of the Retained Goods. In addition, we are entitled – just as in the event of revocation of the collection authorization – to demand that the Customer immediately inform us of the transferred claims and name the debtors, provide any information required to assert the claims, hand over the relevant documents and inform the debtors of the transfer.

9.7. After the revocation or discontinuation of the authorization to collect receivables, the Customer shall immediately collect any assigned receivables received in a special account, whereby the payments must be clearly attributable to us.

9.8. If the Retained Goods are used by the Customer to fulfill a contract for work or services, the Customer’s claim arising from the contract for work or services shall be assigned to us to the same extent as stipulated in Section 9.3 and Section 9.5.

9.9. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must draw attention to our ownership and notify us immediately.

9.10. Withdrawal from the contract is not required to assert the retention of title. If we assert our rights of retention of title, this shall only be deemed a withdrawal from the contract if we expressly declare this. Any repossession of Retained Goods shall always be for security purposes only; this alone shall not constitute a withdrawal of the contract. The Customer’s right to possess the Retained Goods shall expire if we demand the return of the Retained Goods due to default of payment. The Customer hereby authorizes us to enter his premises for this purpose, to take back the Retained Goods and to sell them by private sale to offset them against the outstanding claim less any costs incurred.

9.11. If the value of the security interests to which we are entitled exceeds the amount of the secured claims by more than 10%, we shall, at the Customer’s request, release a corresponding part of the security interests at our discretion.

X Defect Rights

10.1. The Customer is obliged to carefully inspect the goods immediately after delivery, insofar as this is feasible in the ordinary course of business. The Customer must notify us of material defects in writing without delay, i.e. recognizable material defects must be notified in writing without delay, but no later than five (5) days after delivery, hidden material defects must be notified in writing without delay, but no later than five (5) days after their discovery. Otherwise, the goods shall be deemed approved.

10.2. Our Deliveries are in conformity with the contract if they comply with the contractually agreed specifications (hereinafter “Specifications“) at the time of transfer of risk (in the case of defects of title at the time of transfer of ownership). If our Deliveries comply with the Specifications, they shall be free from material defects even if they do not comply with the other objective requirements or any samples or specimens. Non-binding information in brochures, catalogues, public statements or other advertising material as well as statements by third parties do not constitute a contractually agreed quality of the products within the meaning of Section 434 para 2 German Civil Code (BGB), unless they have been agreed as such.

10.3. In the event of a material defect, we must first be given the opportunity for subsequent fulfillment within a reasonable period of time. Subsequent fulfillment shall be effected at our discretion by repair or replacement, provided that the material defect already existed at the time of transfer of risk. In the event of a new delivery, we shall either take back the originally delivered goods at our expense or the Customer shall, at our request, return or dispose of the originally delivered goods at our expense, unless the return and/or disposal is associated with considerable inconvenience for the Customer. In the event of seller recourse, the Customer is also obliged, notwithstanding Section 445a para 2 German Civil Code (BGB), to give us the opportunity for subsequent fulfilment within the period set by the Customer’s buyer. The setting of a deadline is only dispensable if the setting of a deadline is already dispensable in the relationship between the Customer and his buyer in accordance with Section 445a para 2 German Civil Code (BGB) , so that the Customer cannot give us the opportunity for subsequent fulfillment.

10.4. Unless otherwise agreed, the place of subsequent fulfillment shall be the original place of delivery.

10.5. If the subsequent fulfillment fails, the Customer is entitled – without prejudice to other rights – to withdraw from the contract or to reduce the remuneration under the statutory conditions. At our request, the Customer must declare within a reasonable period of time whether he withdraws from the contract due to a material defect or whether he continues to insist on delivery.

10.6. Warranty rights and claims shall not exist if and to the extent that the usability of the products concerned is only insignificantly impaired, in the event of only insignificant deviations of the Deliveries from the agreed specifications and in the event of improper use or storage of the Deliveries.

10.7. The Customer shall bear the costs of determining the defect if there is no defect and the Customer has recognized or negligently failed to recognize this.

10.8. Our obligation to pay compensation for damages or expenses shall be governed by Section 11.

 XI Compensation for Damages and Expenses

11.1. Claims for damages and reimbursement of expenses by the Customer, irrespective of their legal basis, are excluded.

11.2. The above exclusion of liability shall not apply in the case of

1. a) Claims for reimbursement of expenses pursuant to Section 439 para 2 and 3 and Section 445a para 1 German Civil Code (BGB);
2. b) intent or gross negligence;
3. c) liability under the Product Liability Act;
4. d) liability for culpable injury to life, limb or health;
5. e) the assumption of a guarantee or fraudulently concealed defects (Section 444 German Civil Code (BGB));
6. f) liability for culpable breach of material contractual obligations, i.e. obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the Customer regularly relies and may rely. In the event of a breach of material contractual obligations, our liability shall be limited to foreseeable damage that can typically be expected to occur, unless we are liable for intent or gross negligence, injury to life, limb or health, or under the Product Liability Act.

11.3. Insofar as our liability is limited in accordance with this Section 11., this shall also apply to the corresponding personal liability of our employees, vicarious agents, executive bodies and legal representatives.

11.4. A change in the burden of proof to the detriment of the Customer is not associated with the above provisions.

11.5. In the event of damage caused by delay, Section 8. shall take precedence over this Section 11.

XII Force Majeure

12.1. If the fulfillment of a contract is prevented by force majeure (hereinafter “Force Majeure“), i.e. circumstances for which one party to the contract is not responsible and which could not have been foreseen at the time the contract was concluded with reasonable care, in particular due to partial or general mobilization, war, civil war, warlike or war-like acts or conditions, imminent threat of war, state interventions or controls in the context of the war economy, monetary and trade policy measures or other sovereign measures, official or political arbitrary acts, riots, terrorism, natural disasters, accidents, industrial disputes, epidemics, pandemics, significant operational disruptions (e.g. fire, machine breakage, raw material shortages, etc.), or other unforeseeable circumstances. In the event of any significant operational disruptions (e.g. fire, machine breakdown, shortage of raw materials or energy), significant obstructions of transport routes or other unusual delays in transport, in each case of more than short duration, the contractual obligations of the parties shall be suspended and the deadlines and dates scheduled for the execution of the Deliveries shall be extended accordingly, irrespective of whether these circumstances occur at our premises, at the premises of a supplier or subcontractor.

12.2. Force Majeure shall be notified to the other party without undue delay. In such a case, the parties shall negotiate an appropriate adjustment of the contract (also considering the commercial content). If such an adjustment to the contract cannot be achieved, both parties shall be entitled to withdraw from or terminate the contract, but no earlier than three (3) months after the start of Force Majeure. Withdrawal and termination rights regulated in these Terms or by statutory law remain unaffected.

XIII Indemnification

If the Customer culpably fails to forward our product information in accordance with Section 3.4. to the respective other recipients of our products and our products cause damage to these recipients which would have been avoided had they been aware of and complied with our product information, the Customer shall indemnify us and hold us harmless from all third-party claims in connection with such damage and reimburse us for any compensation payments already made by us. Any further liability of the Customer shall remain unaffected by this.

 XIV Confidentiality

14.1 The Customer is obliged to treat all information, in particular know-how and trade secrets, which it obtains from us and which are labelled as confidential or where it is clear from the circumstances that they are confidential (hereinafter “Confidential Information“) as confidential towards third parties, irrespective of whether they have been communicated in written, electronic, embodied or verbal form. In particular, the Customer is not authorized to disclose or make the Confidential Information accessible to third parties without our prior consent. The Confidential Information shall only be used for the purposes of the contract. Employees of the Customer and other persons who gain access to the Confidential Information in connection with the performance of the contract shall be obliged by the Customer to maintain confidentiality accordingly.

14.2. Excluded from the obligation in Section 14.1. is information insofar as it

1. a) was demonstrably already known to the Customer at the time of conclusion of the contract or subsequently becomes known to the Customer from a third party without violating a confidentiality agreement, statutory provisions or official orders,
2. b) are already generally known at the time of the conclusion of the contract or become generally known later, insofar as this is not based on a breach of this contract,
3. c) were developed independently by the Customer without access to our Confidential Information, or
4. d) must be disclosed due to legal obligations or by order of a court or authority.

14.3. The obligations of this Section14. shall survive the ending of the contract and the business relationship, regardless how the contract or the business relationship is ended.

 XV Framework and Call-off Orders

15.1. The Customer is obliged to purchase the total quantity agreed in a blanket or call-off order.

15.2. If no specific call-off dates are specified in the blanket or call-off order, the entire quantity of the blanket or call-off order must be called off within twelve (12) calendar months of the conclusion of the contract.

15.3. If the Customer does not comply with bindingly agreed call-off dates, we shall be entitled to deliver the total quantity in full as agreed in the blanket or call-off order four weeks after written notification with reference to the consequences of the failure to call off and to invoice the price. We reserve the right to assert further claims.

XVI Export Control

16.1. The fulfillment of the contract by us is subject to the proviso that there are no obstacles to fulfillment due to national or international regulations of foreign trade law and no embargoes and/or other sanctions.

16.2. The Customer must comply with the applicable provisions of national and international
(re-)export control law when selling and passing on the Deliveries made by us to third parties in Germany and abroad. A sale/transfer (directly or indirectly) to or for use in countries/regions against which an embargo results from the applicable provisions of (re-)export control law (in particular Germany, the EU and/or the U.S.A.) is not permitted unless prior written approval is given by us.

16.3. If required for export control checks, the Customer shall, upon request, immediately provide us with all information about the final recipient, final destination and intended use of the Deliveries made by us as well as any export control restrictions in this respect.

16.4. If there is a legal or official authorization requirement for the export of the Deliveries at the time of delivery/service and if such an export license is not granted upon application, we shall be entitled to cancel the contract or the accepted order without any liability obligation for us.

16.5.   We are also entitled to cancel accepted orders if a trade ban exists at the time of delivery or if a product registration obligation exists and the registration has not been applied for or granted at the time of delivery/service.

16.6. The Customer shall fully indemnify us and hold us harmless from against all claims asserted against us by authorities or other third parties due to non-compliance with the above export control obligations by the Customer and undertakes to compensate us for all damages and expenses incurred by us in this connection, unless the Customer is not responsible for the breach of duty. This does not imply a reversal of the burden of proof.

16.7. In the event of a breach by the Customer of the obligations set out in this section 16., we shall have the right either to withdraw from the contract or to terminate it. Statutory cancellation rights remain unaffected by this.

XVII General Provisions

17.1. The parties shall process personal data exclusively for the fulfillment of contractual obligations in compliance with the applicable data protection regulations. Our details can be found in the privacy policy (https://www.siebert-lubricants.com/privacy-policy/).

17.2. Legally relevant declarations and notifications made to us by the Customer after conclusion of the contract (e.g. setting of deadlines, reminders, cancellation notices) must be made in writing. Insofar as a written form requirement is stipulated in these Terms, the text form within the meaning of Section 126b of the German Civil Code (BGB) shall suffice in this respect (e.g. permanent data carrier such as fax, e-mail, letter).

17.3. Rights and claims of the Customer arising from contracts concluded with us may only be transferred to third parties with our prior written consent.

17.4. In the event that individual provisions of the contract, including these Terms, are invalid, the remaining provisions shall remain valid.

17.5. Amendments and supplements to this contract must be made in writing to be effective. This also applies to the cancellation of this written form requirement.

XVIII Arbitration, Applicable Law

18.1. All disputes arising out of or in connection with the contractual relationship between us and the Customer and its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Mönchengladbach, Germany. The language of the arbitration shall be English.

18.2. These Terms and the contractual relationship between us and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).