seca.

GTC

seca gmbh & co. kg

Terms and Conditions of Sale and Delivery

 

1. General

The following terms and conditions apply to all purchase agreements and contracts for work and materials, assembly and repair contracts, service contracts, maintenance contracts (software and hardware) and other legal transactions between us and our customers. Conflicting conditions are not binding for us even if we do not expressly object to them. Oral arrangements and ancillary agreements are only valid if they have been confirmed by us in writing.

2. Offer and formation of a contract

Orders are only accepted if they have been confirmed by us in writing. The subject matter of the contract is solely the product sold in accordance with the written order confirmation with the characteristics, features and intended use as per the product description listed for each product on our website and the instructions for use available for download. Any differing agreements with regard to these characteristics and features or this intended use that are agreed with our representatives are only valid if they are expressly confirmed in writing by seca gmbh & co. kg. The illustrations, drawings and weight indications in our catalogs and on our website contain only approximate values unless they are expressly marked as precise values.

3. Delivery period

The delivery period stated in each case begins on the date that our order confirmation is issued. If we are prevented from meeting our commitment by the occurrence of unforeseeable circumstances which we could not avert despite reasonable care under the given circumstances, regardless of whether they occurred in our factory or at our supplier or subcontractors (e.g. operational breakdowns, delays in the delivery of essential raw materials and building materials, impact of labor disputes or strikes, lockouts, etc.), and if the delivery or service does not become impossible and/or the basis of the transaction is not disrupted by this, the delivery time will be extended by a reasonable amount, but by no more than 8 weeks. The same applies in the event of a strike or lockout. If the delivery or service becomes impossible, we shall be released from our delivery obligation.

4. Transfer of risk

If the customer is an entrepreneur, even in the case of carriage paid or INCOTERMS 2010 CIF (cost, insurance and freight) delivery, the risk of seizure, any other official order and the risk of conveyance shall pass to the customer upon dispatch of the goods to the customer, regardless of whether the goods are dispatched from the place of performance or from another location. If the customer is an entrepreneur, the risk shall pass before dispatch if the delivery of the goods is postponed at the customer's request. The same applies from the time of notification of readiness for dispatch if dispatch is delayed through no fault of our own.

5. Prices and delivery restrictions

Prices are ex works or place of dispatch, excluding freight and packaging, unless otherwise agreed in the written order confirmation. All prices are stated in euros (EUR) and exclude statutory value added tax. For products and services for which fixed prices have not been expressly agreed, the list prices valid on the day of delivery shall apply for transactions with entrepreneurs. The customer has the right to withdraw from the contract if the price increases by more than 5% since the previous order. Where applicable, orders and deliveries of individual products and the provision of services are only possible in the countries that can be selected in the ordering process.

6. Payment

The payment terms and methods of payment stated in our offer or in the order confirmation shall prevail for each payment. Our representatives are only entitled to accept payments if, in each individual case, they are able to present a receipt signed by us or authorization in writing. The customer is not entitled to set off counter claims that are disputed or not legally established and not pending in court and ready for decision. If the customer is an entrepreneur, said customer has no right of retention based on counter claims that are disputed by us or which have not been legally established. If the customer is a consumer, said customer has a right of retention on the basis of a claim only to the extent that this is based on the same contractual relationship as the claim asserted by us. Unless otherwise confirmed by us in writing, invoices shall be paid within 14 days of receipt. In the event of late payment, we charge interest on arrears to consumers at a rate of 5 percentage points p.a. above the respective base rate of the Deutsche Bundesbank and to entrepreneurs at a rate of 9 percentage points p.a. above the respective base rate of the Deutsche Bundesbank, the respective statutory interest on arrears. If the customer falls into payment arrears or if, after the contract’s conclusion or delivery/performance of the services, circumstances become known that call the creditworthiness of the customer into question (e.g. failure to honor bills of exchange or checks), all claims, including those for which we have accepted bills of exchange on account of payment, shall become due immediately if the customer is an entrepreneur. We are then entitled to take possession of goods delivered under reservation of ownership without automatically exercising the right to withdraw from the contract. Furthermore, we are entitled to make outstanding deliveries and/or services to entrepreneurs only against payment in advance or initial collateral and to demand compensation instead of performance. If we render performance in advance, for example in the case of a purchase on account, we may obtain a credit report to protect our legitimate interests. In this instance, we shall transfer the contract data (company, name, surname, first name, street, house number, zip code, city) to the following service provider, to which the customer consents: Creditreform Hamburg von der Decken & Wall KG, Wandalenweg 8-10, 20097 Hamburg, Germany

7. Reservation of ownership and resale

If the customer is an entrepreneur, the delivery item shall remain our property (reserved goods) until all our claims from the business relationship with the customer have been settled in full. This also applies if we include individual or all claims in a running account and the balance is drawn and recognized. If the customer is a consumer, the delivery item shall remain our property until the purchase price has been paid in full. We are entitled to insure the delivery item against fire, water and other damage at the expense of the customer, unless the customer has demonstrably taken out this insurance. Any treatment or processing of the goods delivered by us is carried out for us as manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without any obligations arising for us as a result. If the customer processes, combines or mixes our goods with other goods not belonging to us, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time of processing, combining or mixing. If the customer acquires sole ownership of the new item after processing, combining or mixing, we mutually agree that the customer shall grant us co-ownership in the ratio of the value of the processed, combined or mixed reserved goods to the value of the new item and shall keep it safe for us free of charge. Resellers are entitled to resell the reserved goods in the ordinary course of business. However, they must agree a reservation of ownership with the customer covering the scope of the reservation imposed by us. The customer hereby assigns to us all claims against its buyer from the resale, regardless of whether the reserved goods are sold without having been processed, combined, or mixed, or after this has taken place. The claims serve as our security to the same extent as the reserved goods. The customer remains entitled to collect these claims even after the assignment. Our authority to collect the claims ourselves remains unaffected by this; however, we undertake not to collect the claims as long as the customer properly fulfills its payment obligations. We can demand that the customer names to us the debtors of the assigned claims and informs the debtors of the assignment. If the reserved goods are resold together with other goods not belonging to us, the customer's claim against its buyer shall be deemed assigned in the amount of the delivery price agreed between us and the customer. The customer may neither pledge the delivery item nor assign it as security. The customer must inform us immediately of any seizure or other impairment of our securities by third parties. We undertake to release the securities to we are entitled insofar as their value exceeds the claims to be secured by more than 20%. If the customer intends to resell products that they have purchased, the customer is aware that the products may be subject to European, German and/or US export regulations. Each export subject to licensing requires the permission of the authorities. In addition, an export license requirement may arise from the intended use or final destination of the products. The review of the export regulations is carried out by the customer.

8. Poor performance in the case of services and integration services

The customer's claims in the event of poor performance shall be governed by the statutory provisions. Furthermore, we guarantee that the services are performed in accordance with the contract and are suitable for the intended purpose.

In the event of poor performance, we are initially obliged either to provide the service owed again without undue delay or - if possible - to rectify the service already provided. We shall bear all expenses incurred in connection with the renewed provision of services or the rectification of the services already provided.

9. Warranty for material defects 

If the customer is an entrepreneur, claims for defects require that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB). In the event of material defects, we shall, at our discretion, remedy the defect or deliver a defect-free item (supplementary performance). If, after two attempts to provide supplementary performance, it is established that remedying the defect or subsequent delivery is unreasonably delayed, has become impossible or has failed, the customer may reduce the price, withdraw from the contract or demand compensation instead of performance. 

10. Liability

We shall be liable exclusively in accordance with this clause. In all other respects, liability on our part is excluded.

We shall be liable without limitation for damages arising from loss of life, bodily injury, or damage to health due to a breach of duty by us, our legal representatives or agents as well as for damages caused by the absence of a guaranteed quality or in the event of fraudulent intent.

We shall also be liable without limitation for damage caused by us or by our legal representatives or agents intentionally or through gross negligence.

In the event of a breach of material contractual obligations caused by slight negligence, our liability shall be limited to the foreseeable damage typical for this type of contract. Material contractual obligations are, in the abstract, obligations whose fulfillment is a prerequisite for the proper execution of the contract and on whose observance the contracting parties may rely as a matter of course.

In the event of data loss caused by the SECA software and for which we are responsible, our liability shall be limited to the amount of the necessary loss incurred for the restoration of the data, given proper data backup procedures.

Liability under the German Product Liability Act (ProdHaftG) remains unaffected.

Liability for culpable loss of life, bodily injury, or damage to health remains unaffected; this also applies to mandatory liability under the German Product Liability Act. Unless otherwise regulated above, our liability is excluded.

Claims of the customer shall become statute-barred within one year of transferring the item purchased to the customer; if the customer is a consumer, the claims of the customer shall become statute-barred within two years of the transfer.

11. Non-disclosure

The contracting parties undertake to treat as strictly confidential all legal transactions concluded and all discussions held in this connection, as well as any information, findings, or documents arising from the cooperation, regardless of their form, and to use said information, findings or documents solely for the purpose of the cooperation regulated in this contract.

12. Cancellation policy for consumers

Consumers are entitled to a right of cancellation in accordance with the following provisions, whereby a consumer is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to the consumer’s commercial nor their self-employed professional activity:

You have the right to cancel this contract within fourteen days without stating a reason. The cancellation period is fourteen days from the date

  • on which you or a third party designated by you (other than the carrier) took possession of the items if you ordered one or several items as part of a single order and the item or items are delivered in a single delivery;
  • on which you or a third party designated by you (other than the carrier) took possession of the last item if you ordered several items as part of a single order and the items are delivered separately;
  • on which you or a third party designated by you (other than the carrier) took possession of the last partial shipment or the last piece if you ordered an item that is delivered in several partial shipments or pieces;

If several of the above alternatives apply, the cancellation period shall only begin to run when you or a third party designated by you (other than the carrier) have taken possession of the last item or the last partial shipment or the last piece.

In order to exercise your right of cancellation, you must inform us (seca gmbh & co. kg., Hammer Steindamm 3- 25, 22089 Hamburg, phone: +49 40 20 00 00 0, fax: +49 40 20 00 00 140, e-mail: sales.de@seca.com) of your decision to cancel this contract by means of a clear statement (e.g. a letter sent by mail, or a fax or e-mail). You can use the attached specimen cancellation form for this purpose, although this is not mandatory.

To comply with the cancellation period, it is sufficient that your notification that you are exercising your right of cancellation is sent before the end of the cancellation period.

Consequences of cancellation

If you cancel this contract, we must reimburse you for all payments that we have received from you, including delivery charges (except for any additional costs resulting from your choosing a different method of delivery from the cheapest standard delivery offered by us), without delay and at the latest within fourteen days of the date on which we received notification of your cancellation of this contract. For this refund, we will use the same means of payment that you used for the original transaction unless expressly agreed otherwise with you; in no event will you be charged for this refund.

We may refuse the refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.

You must return or hand over the goods to us without undue delay and in any case within fourteen days at the latest of the date on which you inform us of the cancellation of this contract. The deadline shall be deemed to have been met if you dispatch the goods before the end of the fourteen-day period. The direct costs of returning goods that can be sent by parcel post shall be borne by you. The direct costs of returning goods that cannot be sent by parcel post shall also be borne by you. The costs amount to EUR 79 (plus VAT) if our pick-up service is used. You must only pay for any loss in value of the goods if this loss in value is attributable to the goods having been handled in a way that was unnecessary in order to test their quality, properties and functions.

Exclusion or premature expiration of the right of cancellation

The right of cancellation shall expire prematurely in the case of contracts for the delivery of sealed goods that are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery.

According to Section 312g (2) no. 1 of the German Civil Code (BGB) there is no right of cancellation for the following contracts unless the parties have agreed otherwise: contracts for the supply of goods that are not pre-fabricated and the production of which is governed by an individual choice of or decision by the consumer, or that are clearly tailored to personal needs of the consumer.

Furthermore, there is no right of cancellation if the customer is an entrepreneur pursuant to Section 14 of the German Civil Code (BGB), i.e. a natural or legal person or a partnership with legal capacity who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

13. Rights of use, third-party rights

So that we or our service providers can manufacture individualized products as commissioned, the customer grants us the right to use and process the transmitted contents solely within the scope of the commissioned manufacture of individualized products and to grant third parties non-exclusive rights of use in this respect. For the rest, the customer retains all rights to the contents transferred by the customer.

By transmitting contents for the production of individualized products, the customer declares to us that they are the owner of all necessary rights (copyrights, ancillary copyrights and personal rights). Therefore, by placing an order, the customer warrants that the production of individualized products commissioned by the customer does not violate any third-party rights or statutory regulations and that they have all necessary rights for the order and undertake to inform us about the existence of third-party rights to transmitted contents. Furthermore, the customer bears all responsibility for the contents and the legal admissibility of the individualized products manufactured as commissioned. If, as a result of non-compliance with these General Terms and Conditions, the execution of the order infringes third-party rights or statutory provisions, the customer shall be solely liable for this. The customer shall indemnify us and our service providers against all legitimate third-party claims and must reimburse the necessary legal costs incurred in such an event. The customer additionally undertakes not to transmit any content that is illegal, misleading, malicious, discriminating, pornographic, threatening, insulting, obscene, defamatory, ethically offensive, violence-glorifying, harassing, unsuitable for minors, racist, race baiting, hostile to foreigners or otherwise abhorrent or reprehensible, and to transmit the content free of viruses, worms, Trojan horses or other malicious code that could endanger or impair the functionality of the systems belonging to us or our service providers.

14. Set-up and calibration

The customer must bear all costs for the set-up and, if applicable, for the calibration or adjustment of our products at the place of destination, unless other arrangements have been agreed in this respect in our written order confirmation. The unloading of the delivery item or its parts is always the responsibility of the customer, even if we have to deliver carriage paid or free to the door. During the set-up of our products, auxiliary staff for our fitters must be provided by the customer to the extent necessary.

15. E-mail product recommendations to existing customers

If you have already ordered one of our goods or services in our online shop, we will send you product recommendations for our own similar goods or services by e-mail. You can object to receiving our product recommendations at any time and free of charge, without incurring any costs other than the transmission costs according to the basic rates. You can send us your objection at any time via an unsubscribe link in the product recommendation or by giving your
e-mail address (seca gmbh & co. kg., P.O. Box 76 11 80, 22061 Hamburg / Hammer Steindamm 3-25, 22089 Hamburg, phone: +49 40 20 00 00 0, fax: +49 40 20 00 00 140,
e-mail: sales.de@seca.com).

16. Place of performance and place of jurisdiction

The place of performance is Hamburg if the customer is an entrepreneur. The place of jurisdiction for all disputes arising out of or in connection with this contract – including disputes regarding bills of exchange or dishonored checks – is Hamburg or the customer's place of business, at our discretion. This applies even if the customer has no general place of jurisdiction in Germany. This agreement with regard to jurisdiction does not apply to customers who are consumers. All claims and rights arising from or in connection with the legal transactions concluded between us and the customer shall be governed solely by German law and shall be interpreted and enforced in accordance with German law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

17. Change in the Terms and Conditions of Sale and Delivery (Terms and Conditions)

We are entitled, at any time, to change any provisions of these Terms and Conditions that do not lead to a material modification of the contractual structure or affect said structure. We are additionally entitled to adapt and/or supplement the Terms and Conditions if this is necessary in order to eliminate difficulties in the execution of the contract with customers due to loopholes that have arisen after conclusion of the contract. This may be the case, for example, if jurisprudence declares one or more provisions of these Terms and Conditions to be invalid or if a change in the law results in the invalidity of one or more provisions of these Terms and Conditions. The changed conditions shall be sent to you in writing or by e-mail at least six weeks before they come into effect. The changes shall be deemed to have been approved if you do not object to them in text form. The objection must be received by us within six weeks of receipt of the notification of the changed conditions. We shall make special reference to the option of objecting to these changes and to the significance of the six-week deadline in our notification of changes with regard to the changed provisions. If you exercise your right of objection, the change request shall be deemed to have been rejected. The contract will then continue without the proposed changes.

18. Miscellaneous

Transactions with entrepreneurs are treated in the same way as transactions with legal entities under public law and special funds under public law.

Conflicting, supplementary and/or deviating conditions on the part of the customer shall not apply to the purchase of our products and services, even if we have not expressly objected to their applicability in individual cases, irrespective of our knowledge of conflicting conditions or the unconditional delivery or performance of services by us. Furthermore, we expressly object to the formal reference to the customer's own terms of business.

Should individual provisions of these Terms and Conditions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the provisions prove to be incomplete.

19. Information on online dispute resolution

Since February 15, 2016, the EU Commission has provided an internet platform for online dispute resolution in consumer matters (‘ODR platform’). The ODR platform is intended to be used by consumers as a contact point for the out-of-court resolution of disputes concerning contractual obligations from online sales contracts. This gives consumers the opportunity to resolve disputes relating to their online order without the need to go to court. The ODR platform can be reached via the following link: http://ec.europa.eu/consumers/odr.

20. Information on dispute resolution procedures before a consumer arbitration board

In order to settle disputes with consumers, we are prepared to participate in dispute resolution proceedings before a consumer arbitration board. Consumers can contact the competent consumer arbitration board for this purpose: Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e. V. Contact:



Straßburger Str. 8
77694 Kehl
Telephone: +49 7851 79579 40
Telefax: +49 7851 79579
Internet: www.verbraucher-schlichter.de
e-mail: mail@verbraucher-schlichter.de

This arbitration board is a ‘General Consumer Conciliation Body’ in accordance with Section 4 (2), sentence 2 of the German Consumer Dispute Resolution Act (VSBG).

Hamburg, October 2017