General terms and conditions
1. Scope
1.1 Xilence GmbH, Lavesstrasse 4, 31137 Hildesheim, Germany (hereinafter referred to as "Xilence") concludes contracts exclusively on the basis of these General Terms and Conditions of Business.
1.2 Any general terms and conditions of business of the customer are herewith expressly rejected. Any other arrangement shall only apply if and insofar as Xilence accepts the customer's conditions in writing.
2. Conclusion of contracts
2.1 Xilence's quotations are always without commitment and are not binding.
2.2 The contract with the customer shall not take effect until Xilence has issued a written order acknowledgement.
3. Place of performance and conditions of delivery
3.1 The place of performance is the warehouse of Xilence in Glinde, unless otherwise agreed in writing.
3.2 Periods for delivery and performance shall only be binding if they have been agreed in writing. The delivery shall be made at the cost and risk of the customer ex Xilence warehouse in Glinde, unless otherwise agreed in writing.
3.3 If Xilence cannot observe the agreed periods for delivery and performance owing to circumstances beyond its control, including force majeure, disruption at subsuppliers, strikes, lock-outs etc., it may demand a reasonable postponement of the agreed deadlines or rescind, in whole or in part, the unfulfilled part of the contract.
3.4 If the goods ordered by the customer are not available, in particular because suppliers have not supplied Xilence in spite of contractual obligations, Xilence shall be entitled to rescind the contract. In this case Xilence shall inform the customer immediately that the product is not available. Payments already made shall be reimbursed.
4. Prices and terms of payment
4.1 All the prices of Xilence are in euro, plus VAT. The customer shall bear all costs of shipment, unless otherwise agreed in writing.
4.2 All claims shall become due on receipt of the invoice and shall be payable immediately without any deductions.
4.3 Partial shipments and separate invoices for them shall be permitted.
4.4 If the customer defaults on payment, Xilence shall be entitled to charge interest on arrears at a rate of 8% above the ruling basic interest rate of the European Central Bank. If Xilence has verifiably suffered greater damage due to arrears, it shall be entitled to claim for these.
4.5 If payment by instalment has been agreed with the customer in writing, all claims still outstanding from the current business relationship shall become due immediately if the customer defaults on the payment of two instalments.
5. Price adjustment
5.1 Xilence shall be entitled to introduce a price increase if more than 4 (four) months have passed between the conclusion of a contract and the agreed delivery date. Xilence shall inform the customer in writing thereof. If a price increase clearly exceeds the rise in the cost of living, the customer shall be entitled to rescind the contract. Any payments already made shall be reimbursed.
5.2 If the customer does not object to the price increase within 4 weeks, the revised price shall be deemed to have been approved at the latest when use is made of the services. Xilence shall expressly refer once again to the consequences of not objecting to any change in the price.
6. Offset and right of retention
6.1 The customer shall only have the right of offset (summation) insofar as its counterclaims have become res judicata or are undisputed.
6.2 The assertion of rights of retention arising from claims other than those based on this contract is excluded.
7. Retention of title
7.1 The contractual products delivered to the customer shall remain the property of Xilence until the final payment of all claims relating to this contract, notwithstanding the passing of risk arising from this contract. The customer shall be entitled to sell the contractual product as part of the normal course of business and collect payments. The customer herewith assigns to Xilence its claims against its own customers arising from the resale of the contractual product. Xilence shall be obliged to release the securities at the customer's request when the value of the security exceeds the value of the outstanding claims by 20%. If the customer defaults on payment, Xilence may revoke the sale and the customer's authorisation to collect payment and demand the information and documents required to collect the claims.
7.2 The machining and processing of the goods by the customer shall always be performed in the name and on behalf of Xilence. If processing is performed with items not belonging to Xilence, Xilence shall acquire co-ownership in the new article in the ratio of the value of the goods supplied by Xilence to the other items processed. The same shall apply if the goods are mixed with other items not belonging to Xilence.
8. Claims based on defects
8.1 A defect exists when the goods do not exhibit the agreed properties on the passing of risk or are unsuitable for the contractually agreed use. A defect does not exist in the event of minor deviations, in particular compared with shop or brochure illustrations. The goods are subject to technical modifications and changes in shape, colour and/or weight within reasonable limits.
8.2 The customer shall inform Xilence in writing of any obvious defect in the goods delivered within one week from delivery. If this period is not observed, claims based on defects in this respect shall be excluded.
8.3 Xilence shall only permit the assertion of claims under a warranty for properties and/or durability if this has been agreed in writing with the customer.
8.4 Defects shall be reported without delay after their discovery in writing and in as much detail as possible. If defects arise, the customer shall be entitled, to demand the rectification of the defect or – at Xilence´s discretion – a replacement delivery (subsequent performance). In case of failure of supplementary performance the customer has the right to abate the price or to cancel the contract (after setting a time limit). If customer agrees (e.g. by E-Mail), Xilence can – instead of redemption – set a credit note. If the goods are returned, the original packing is to be enclosed if at all possible; however, it is no longer to be used as packing. We would point out that Xilence does not accept any carriage forward consignments.
8.5 The customer shall grant Xilence a reasonable period to rectify the defect. A price reduction for minor defects is excluded.
8.6 If the customer has interfered himself or through third parties with the goods without Xilence's prior written consent, it shall be assumed that the defect was caused as a result thereof. The customer shall lose its right of defence based on the warranty for defects, unless it proves that the defects are not attributable to his interference.
8.7 The customer's claims based on defects prescribe in 24 months, calculated from the delivery date. In cases of delivery of used goods, the claims prescribe in 12 month.
8.8 Before reshipment of goods to Xilence, the customer has to request a RMA-Number by telephone from Xilence-Customer-Service. This RMA-Number is to be affixed to the parcel (external) in order to recognize the RMA-case easily.
8.9 To verify the customers´s claims, he has to submit a copy of purchase voucher or list the correspondent voucher number on the shipping note (bill of delivery). Xilence can send the product back to customer unsettled, if above documentation is missing.
9. Liability
9.1 No claims for compensation may be lodged by the customer - including those of a non-contractual nature - for any minor negligent breach of duty by Xilence, his managerial employees or other agents, unless such breach by Xilence, his managerial employees or other agents concerns a duty that is crucial for the object of the contract.
9.2 Xilence shall only be liable for indirect damage or damage which could not be foreseen at the time of conclusion of the contract, if such damage is due to a gross fault on the part of Xilence, one of his managerial employees or other agents.
9.3 The above limitations shall not apply to damage resulting from death, injury or damage to health. However, this shall not affect the applicability of compelling statutory liability regulations such as, for example, liability for the assumption of a guarantee or product liability law.
10. Returned goods
10.1 Returned goods are to be sent back in unused condition (marketable) in the original packing at the cost and risk of the customer. Carriage forward return consignments are not accepted. Costs, that arise out of inaccurate shipment, will be refunded to Xilence by customer.
10.2 Xilence expressly points out that damages may be demanded in the event of a deterioration of the goods.
11. Data protection
11.1 The parties shall observe the statutory provisions on data protection, in particular the German Data Protection Act.
12. Miscellaneous
12.1 Amendments, supplements and the rescission of the contract shall be made in written form. This shall also apply to the cancellation of this clause.
12.2 German law shall apply to this contract to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The venue for any disputes shall be Hildesheim.
12.3 If one or more of these provisions is ineffective and/or impracticable in whole or in part, the effectiveness and practicability of all other provisions shall remain unaffected thereby. The ineffective and/or impracticable provision shall, in all cases, be regarded as replaced by the effective and/or practicable provision which comes closest to fulfilling the purpose pursued by the parties. The above shall apply mutatis mutandis if the contract contains any omissions.