seca gmbh & co. kg
Terms and Conditions of Sale and Delivery
The following terms and conditions shall apply with respect to all purchase contracts and contracts for work and materials, installation and repair contracts, and any other legal transactions between us and our customers. Conflicting provisions shall not be binding on us, even if we do not expressly object to them. Verbal arrangements and ancillary agreements shall only be valid if they are confirmed in writing by us.
2. Offer and conclusion of contract
Orders shall only be deemed to have been accepted when they have been confirmed by us in writing. The subject of the contract is solely the product sold as per the written confirmation of the order, whose properties, features and designated use correspond with those listed under that item’s product description on our websites and the operating instructions available there for download. Deviating agreements regarding these properties and/or the designated use shall only be considered valid if they have been expressly confirmed in writing by seca gmbh & co. kg. The images, drawings and weight indications in our catalogs and on our website contain only approximate values, unless these are expressly identified as being precise values.
3. Delivery period
The respective specified delivery period shall commence on the date that our order confirmation is issued. If we are prevented from fulfilling our obligations due to unforeseeable circumstances, which – despite reasonable care being taken in accordance with the circumstances of the case – we could not avert and irrespective of whether these occurred at our facility or at our suppliers’ or subcontractors’ premises, (e.g. operational breakdowns, delays in the delivery of essential raw and building materials, the effects of workplace disputes or strikes, lockouts, etc.) and the delivery or performance is not rendered impossible and/or the basis of the transaction is not disrupted by this then the delivery period shall be extended by a reasonable amount not exceeding 8 weeks. If delivery or performance is impossible then we shall be released from our obligation to deliver.
4. Transfer of risk
If the purchaser is an entrepreneur, the risk of seizure, of any other decree by the authorities and the risk of conveyance are all transferred to the purchaser upon the goods’ dispatch, both for carriage paid and CIF (cost, insurance and freight) deliveries, irrespective of whether the goods are dispatched from the place of fulfillment or from another place. If the purchaser is an entrepreneur, then the risk shall be transferred prior to the goods’ dispatch if their shipment is delayed at the request of the purchaser. The same shall apply as soon as notification of readiness to dispatch has been issued, if the shipment is delayed through no fault of our own.
5. Prices and delivery restrictions
Prices are quoted ex works/place of dispatch, excluding freight and packaging, unless other arrangements have been agreed in the written confirmation of the order. All prices are in euros (EUR) and are subject to the legally applicable VAT. For transactions with entrepreneurs, the list prices valid on the date of delivery shall apply to all orders, for which fixed prices have not expressly been agreed. In the event of a price rise of more than 5% since the previous order, the purchaser has the right to withdraw from the sales contract. Orders and deliveries of individual products may only be possible in the countries that can be selected during the ordering process.
The payment terms set out in our offer or in our order confirmation shall prevail for every payment. Our representatives are only entitled to accept payments if, in every single case, they submit a receipt signed by us or can produce authorization in writing. The purchaser shall not be entitled to offset counterclaims that are contested, not established by force of law and not before the courts or awaiting a judicial decision. If the purchaser is an entrepreneur then the purchaser shall have no right of retention on account of counterclaims that are contested by us or not established by force of law. If the purchaser is a consumer then the purchaser shall have a right of retention on account of a claim only if this claim is based on the same contractual relationship as the claim which we have asserted. Invoices must be settled within 14 days of receipt, unless otherwise confirmed by us in writing. If payment is delayed the we shall charge the legally applicable interest on arrears. If the purchaser falls into arrears, or if circumstances come to light after the conclusion of the contract or after delivery which cast doubt on the customer’s creditworthiness (e.g. failure to honor bills or checks), then – provided the purchaser is an entrepreneur – all outstanding payments shall become immediately due, even those for which we have accepted bills of exchange as payment. We shall be entitled, in such circumstances, to take possession of goods delivered under retention of title without thereby automatically availing ourselves of the right to withdraw from the contract. With regard to entrepreneurs we shall furthermore be entitled to make outstanding deliveries conditional upon advance payments or securities, or to demand compensation instead of performance. If we pay in advance, e.g. in the event of a purchase on account, we may conduct a credit check as necessary in order to safeguard our legitimate interests. The purchaser hereby consents to our disclosure of the contract data (company, last name, first name, street, house number, postal code, location) to the following service provider for this purpose: Creditreform Hamburg von der Decken & Wall KG, Wandalenweg 8-10, D-20097 Hamburg
7. Retention of title
If the purchaser is an entrepreneur, we shall retain the title to the delivery items (goods subjection to retention of title) until amounts outstanding in our favor as a result of the business relationship with the purchaser have been settled. This shall also apply if any one or all amounts outstanding are included in a running account and the balance has been drawn and recognized. If the purchaser is a consumer then the delivery items shall remain our property until the purchase price has been paid in full. We are entitled to insure delivery items against fire, water and other damage at the purchaser’s expense, unless the purchaser can demonstrate that he or she has taken out such insurance. Any conversion or processing of items, which we have delivered, shall be effected for us as manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without subjecting us to any obligation. If the purchaser processes, combines, or mixes our goods with goods that do not belong to us, then we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title to the value of the remaining goods at the time these were processed, combined, or mixed. If the purchaser acquires sole ownership of the new object after processing, combining or mixing, we both agree that the purchaser shall grant us co-ownership of the new object, proportionate to the ratio of the value of the goods subject to retention of title that were processed, combined or mixed to the value of the new object, and shall safeguard this for us free of charge. Resellers are entitled to resell goods subject to retention of title within the normal course of their business. They must, however, conclude an agreement with their customer on a retention of title to the extent drawn by us. The purchaser hereby assigns to us all receivables from his or her customers from the resale of goods subject to retention of title, irrespective of whether such goods are sold without their having been processed, combined or mixed, or after this has occurred. The receivables shall serve as security to the same extent as the goods subject to retention of title. The purchaser shall still be authorized to collect these receivables after the assignment. Our right to collect these receivables remains unaffected by this; however, we pledge not to collect these receivables, provided that the purchaser properly fulfills his or her payment obligations. We have the right to ask the purchaser to make known to us the debtors of the assigned receivables and notify the debtors of the assignment. If the goods subject to retention of title are resold together with other goods that do not belong to us then the purchaser’s receivables from his or her customers shall be considered as assigned in the amount of the delivery price agreed between us and the purchaser. The purchaser may neither pledge the delivery items nor assign them as security. The purchaser must notify us immediately of any attachment or other impairment of our security by third parties. We pledge to release the securities due to us to the extent that their value exceeds the receivables to be secured by more than 20%.
8. Warranty and liability
Provided that the customer is an entrepreneur, any claims for defects presuppose that the customer has properly observed his or her obligations under Section 377 of the German Commercial Code to examine the goods and give notice of any defects. In the event of material defects, we shall at our discretion either remedy the defect or supply a defect-free item (supplementary performance). If, after a second attempt to provide supplementary performance, remedying the defect or supplying another item is unreasonably delayed, becomes impossible or fails, the purchaser may claim a discount, withdraw from the contract or demand compensation for damages instead of performance. We shall be liable in accordance with the statutory provisions to the extent that the customer asserts claims for compensation for damages that are based upon malice aforethought or gross negligence, including any willful or gross negligence of our representatives or agents. Other than in the event of a willful breach of the contract, liability for compensation shall be limited to the loss or damage that is foreseeable and which typically occurs. We shall also be liable in accordance with the statutory provisions to the extent that we culpably violate an obligation regarded as crucial to the fulfillment of the purpose of the contract (cardinal obligation). The term "cardinal obligations" encompasses material contractual obligations, the fulfillment of which alone makes possible the proper execution of the contract and on the adherence to which the contract partner may rely as a matter of course. In this event, liability for compensation shall be limited to the loss or damage that is foreseeable and which typically occurs.
Liability due to culpable injury to life, body or health remains unaffected: this also applies with respect to mandatory liability under the German Product Liability Law. In the absence of any provisions to the contrary above, our liability shall be excluded. The purchaser’s claims shall expire one year after the delivery of the item purchased to the purchaser. If the purchaser is a consumer then his claims shall expire two years after delivery.
12. Rights of use, third-party rights
In order for us or our service providers to be able to produce customized products as ordered, the customer hereby grants us the right to make use of the transmitted data exclusively within the framework of the ordered production of customized products as well as to grant third parties non-exclusive rights of use to them. Furthermore, the customer shall retain all rights to the data transmitted by him or her.
By transmitting the data for the production of customized products the customer declares to us that he or she is the holder of all of the rights required for this (copyrights, ancillary copyrights, and personal rights). By placing the order the customer is thereby asserting that the production of the customized products ordered by him or her do not violate the rights of any third parties or any statutory provisions, that he or she holds all of the rights required to place the order, and that he or she pledges to notify us of the existence of any third-party rights to the transmitted data and also bears any responsibility for the content and the legal permissibility of the customized made-to-order products. The customer shall be solely liable for any violation of third-party rights or statutory provisions through the execution of the order as the result of non-compliance with these General Terms and Conditions. The customer hereby indemnifies us against all justified third-party claims and is to reimburse us for the required legal costs resulting in this event. The customer furthermore pledges not to transmit any data that is illegal, misleading, malicious, discriminatory, pornographic, threatening, insulting, obscene, defamatory, ethically objectionable, glorifying violence, harassing, unsuitable for minors, racist, inciting racial or ethnic hatred, xenophobic, or otherwise abhorrent or objectionable and that the data is free of viruses, worms, Trojans, and other harmful code capable of endangering or negatively impacting the functionality of our systems or the systems of our service providers.
13. Installation and calibration
All costs for installing our products at the point of destination and for verifying or calibrating them as necessary shall be borne by the purchaser if no differing agreements regarding this have been made and included in our written order confirmation. The purchaser shall be responsible for unloading the delivery items and/or their parts, even if we are obliged to deliver these carriage paid or free to the door. The customer must provide assistants to help our fitters install our products, to the extent that this is necessary.
14. E-mail product recommendations to our existing customers
If you have already ordered one of our goods or services in our online shop then we will send you e-mail recommendations for similar goods or services that we offer. You can unsubscribe from our product recommendations at any time and free of charge without incurring any costs other than the transmission costs at the base rate. You can send your request to unsubscribe to us at any time by using the "unsubscribe" link in the product recommendation or by specifying your e-mail address in the request and mailing it to us by post (seca gmbh & co. kg., P.O. Box 76 11 80, 22061 Hamburg / Hammer Steindamm 3-25, 22089 Hamburg, phone: 0800 20 005, fax: +49 40 20 00 00-140, e-mail: firstname.lastname@example.org).
15. Place of performance and jurisdiction
The place of performance shall be Hamburg if the purchaser is an entrepreneur. The place of jurisdiction for all disputes arising from or in connection with this contract – including disputes regarding dishonored bills and checks– shall either be Hamburg or the purchaser’s place of business, at our discretion. This shall also apply if the purchaser has no general place of jurisdiction in Germany. This agreement with regard to jurisdiction shall not apply to purchasers who are consumers. German law shall apply. The provisions of the conflict of laws and of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
16. Change of the General Terms & Conditions (GTC)
We have the right at any time to make any changes to the amendments of these GTC that do not lead to a material change of the structure of the contract or affect it. We furthermore have the right to adapt and/or amend the GTC if this is necessary in order to eliminate difficulties in the execution of the contract with customers due to regulatory gaps arising after the conclusion of the contact. This can be the case if one or more provisions of these GTC are declared invalid under case law or a change in legislation leads to the invalidity of one or more provisions of these GTC, for instance. The changed terms and conditions will be sent to you by post or e-mail at least six weeks before they take effect. The changes shall be considered to be approved if you do not object to them in text form. This objection must be received by us within six weeks after you receive the notice of the changed terms and conditions. We will make special reference to the option to object to the changes and to the significance of the six-week rejection period in our change notice to the changed terms and conditions. If you exercise your right to object to the changes then the change request shall be considered rejected. The contract shall then continue in force without the proposed changes.
Transactions with entrepreneurs shall be treated in the same way as transactions with legal entities under public law and special funds under public law.
If individual provisions of these General Terms and Conditions should be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected by this. The invalid or unenforceable provision is to be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contractual partners with the invalid or unenforceable provision. The provisions above apply accordingly in the event that there found to be gaps in the provisions.
Information on online dispute resolution: We refer you to the option to resolve disputes online (known as the "ODR" platform). Consumers can use the ODR platform as the starting point for the out-of-court resolution of disputes relating to contractual obligations arising from online contracts for the purchase of goods or services. The ODR platform has been available under the following link since February 15, 2016: http://ec.europa.eu/consumers/odr.
Hamburg, April 2016