General Terms and Conditions of the se ma Gesellschaft für Innovationen mbH
I. Scope of Application
1. The following provisions shall apply exclusively to companies, legal entities under private or public law and special funds under public law.
2. Our sales, deliveries and services (hereinafter referred to as “deliveries”) shall only take place in accordance with the following provisions. Any provisions of the purchaser or beneficiary (hereinafter referred to as “purchaser”) that are contrary to or deviating from our provisions shall only be accepted with our prior written approval. Furthermore, our provisions shall remain valid if we unreservedly execute the delivery to the purchaser while being aware of any provisions contrary to or deviating from our provisions.
3. In the event of changes, the purchaser agrees to the exclusive validity of the changed provisions if he fails to contradict within one week after the receipt of the changed provisions although we informed him about the significance of his behaviour on the occasion of the publication of the changed provisions.
II. Contract Conclusion and Guarantees
Our offers are non-binding, especially with regard to the price, quantity, delivery time and availability. A contract is only concluded by a written order confirmation on our part.
The contract shall be deemed to be concluded with the contents of our written order confirmation if the purchaser does not object immediately.
Characteristics of patterns and samples shall only be binding if explicitly agreed in writing. The information and data contained in data sheets, brochures or other advertising and information material shall be considered to be a guideline and become a binding component of the contract only if explicitly agreed in writing. Quality and durability descriptions shall be considered as guarantees only if explicitly designated as such. The same applies to the assumption of the procurement risk.
Provided that a certificate of analysis (CoA) exists for a product, the data contained therein shall be deemed as the agreed quality of the product. Insofar, the restrictions mentioned in II.3 shall not apply. The certificates of analysis will be provided free of charge on request.
III. Calculation, Payment and Default
All prices are exclusive of the statutory value-added tax, outer packaging and shipping costs ex works. The prices are calculated on the date of delivery on the basis of the list prices valid on that date. In the event of a price increase, the purchaser shall be entitled to withdraw from the contract within one week after becoming aware of the price increase. The invoice amounts shall be paid within 14 days from the invoice date.
Cheques shall only be accepted as means of payment. Any discount and bank charges as well as expenses for cash on delivery shall be borne by the purchaser. Discount deductions are not permitted unless agreed between the contract parties in writing.
The purchaser shall not be entitled to the offset and the assertion of rights of detention against claims unless the counterclaim is undisputed or legally binding.
In the event of default, interest in the amount of 6 percentage points p.a. above the respective base rate (§247 BGB – German Civil Code) shall be paid. The proof of any further damage caused by default remains reserved.
We are entitled to ship outstanding deliveries only in return for advance payment or subject to provision of a security, if the purchaser is, even after the expiry of an appropriate grace period, in default with the agreed terms of payment or if there are circumstances that, according to the standard banking practice, give reasons for doubts regarding the purchaser’s solvency.
IV. Delivery, Packaging and Transfer of Risk
As far as reasonable for the purchaser, we are entitled to ship partial deliveries. Forward transaction shall not take place. Unless explicitly confirmed as binding, delivery deadlines are approximate only.
All cases of force majeure, strikes, lockouts, insufficient material, raw material or energy supplies, lack of transport possibilities or similar events or causes that are beyond our sphere of influence shall release us, for the duration and to the extent of such obstacles, from our obligation to fulfil the contract. Cases of force majeure shall include, in particular, statutory or official export or movement restrictions that are required for the export or movement of the goods. The same applies if these circumstances affect our suppliers.
The delivery deadline is met if the object of service has left our works or if our readiness for delivery has been communicated until the expiry of the deadline.
The goods are shipped as cargo ex works. With the handover to a freight carrier or forwarder, the entire risk is transferred to the purchaser. This also applies if we were responsible for additional services such as loading, transport or unloading or if the transport was carried out by us or an affiliated company.
In the event of complaints due to transport delays, incorrect messages or transport damages, the purchaser must immediately submit these complaints to our forwarder or freight carrier and inform us in writing.
We are not obliged to supply third parties at the behest of the purchaser.
In the event that the purchaser is in default of acceptance or in breach of other obligations to cooperate, the seller is entitled to request reimbursement of the damage incurred including possible extra costs. In this case, the risk of accidental loss or accidental degradation of the purchased item is transferred to the purchaser at the time he gets into delay of acceptance. Claims for damages of the purchaser based on a delay in delivery are excluded insofar as they are not attributed to gross negligence or intent on our part.
V. Foreign-Trade Restrictions
With regard to the products purchased from us, the purchaser is obliged to comply with all applicable laws and other provisions of the foreign-trade right, in particular with the export control regulations and applicable trade embargos. This applies to both the German and foreign provisions and especially to the provisions of the US export administration and
provisions based on European laws. The products purchased from us may not be directly or indirectly resold, exported, re-exported, distributed, transferred or otherwise sold without observing all restrictions, obtaining all administrative decisions required and fulfilling all formalities that are to be observed or required according to the above-mentioned laws, provisions and other regulations.
If goods were, as an additional service, transported to a place of delivery outside Germany, the provisions stated in 3. and 5. shall additionally apply.
The purchaser is obliged to inform us in writing about special legal requirements of the country of destination that we have to observe with regard to the sale and delivery of the goods.
Moreover, the purchaser is obliged to inform us as early as possible or, at the latest, when the contract is concluded, whether the products purchased from us are intended to be used by the purchaser or third parties in the military supplies or defence industries or for other military purposes in any country outside the European Union or if such use cannot be excluded. Failure to submit such information is deemed to be the purchaser’s assurance that such military use of the products purchased from us in one of the mentioned countries will not take place.
If there is concrete evidence of a possible use according to no. 4, we are entitled to seek a decision of the BAFA stating whether the transport is subject to approval or to require the compliance with such decision on the part of the purchaser. To the extent that a delivery is delayed for this reason, any claims of the purchaser arising from the default or delay are excluded.
VI. Warranty and Liability
Any claims of the purchaser relating to the warranty for defects imply the purchaser’s compliance with the statutory duties to examine and to report the defect. The purchaser is obliged to check the purchased item immediately. In the event of any detectable defects or incompleteness of the goods, the purchaser is obliged to immediately report the defect in writing and to include both the type of defect and the order and/or invoice number. If a defect or short delivery is not detectable until later, the purchaser must proceed as mentioned above immediately after having discovered such defect. On our request, all documents, samples and/or defective goods related to the delivery must be returned to us at our expenses. Any claims of the purchaser relating to the defect or incompleteness of the delivery are excluded if he fails to meet his obligations.
If the goods are defective, we may, at our own option, remedy the defects or supply non- defective goods as supplementary performance. The purchaser is only entitled to withdrawal or reduction in accordance with the statutory provision, if the supplementary performance fails repeatedly or if the defects are unacceptable or insignificant. §478 of the BGB shall remain unaffected.
The customer must immediately inform us about any notification of defects on the part of his customer that relate to our objects of service. The purchaser’s failure to meet this obligation results in the loss of his claims for defects against us. The same applies to his claims for the reimbursement of expenses according to §478 of the BGB. Apart from that, the purchaser must properly secure any evidence and give us the opportunity to review the complaint.
In the event of insignificant deviations from the quality agreed and/or insignificant impairment of the usability, there is no entitlement to claims for defects.
We offer unlimited liability according to the product liability law, in events of an explicit assumption of a guarantee or procurement risk as well as due to wilful or grossly negligent
breaches of obligations. The same applies to wilful or grossly negligent damage to life, body or health. In the event of property damages and financial losses resulting from slight negligence, we shall be liable only if essential contractual obligations (cardinal obligations) are breached. In this case, however, the liability is limited to the contractual damage foreseeable when the contract is concluded.
Claims for the compensation of damages of any kind that arise as a consequence of improper handling, modification, assembly and/or operation of the delivery object due to wrong advice or introduction by the purchaser are excluded unless we are responsible for them.
If the purchaser is entitled to demand compensation in lieu of performance or to withdraw from the contract, he must, on our request, declare within a reasonable period of time, whether and how he will exercise these rights. If the purchaser fails to declare in due time or insists on the performance, he is entitled to exercise these rights only after the unsuccessful expiry of a reasonable period of grace.
Claims for defects shall lapse after 12 months from the date of the transfer of risk. The statutory periods of limitation shall apply in the event of intentional breach of duty, claims arising from tort, absence of guaranteed characteristics, assumption of procurement risks as well as injury to persons. If a performance intended for a building has caused its defectiveness, the period of limitation for claims for defects shall be 5 years.
Further liability for compensation beyond the stipulations contained in the above-mentioned paragraphs is excluded regardless of the legal nature of the claim asserted.
10. The above-mentioned limitations of liability shall, in respect of the basis and scope, also apply in favour of our legal representatives, employees or other agents and/or vicarious agents.
VII. Reservation of Title
The goods delivered remain our property until all outstanding and future debits have been paid. However, the purchaser may sell or process the goods in the course of ordinary business. Pledging or transferring the goods by way of security to third parties is not permitted without our consent. If these goods are seized by third parties, the purchaser must notify us immediately.
The following complement shall apply in the event of processing and subsequent resale:
a) The purchaser’s entitlement to process and sell the reserved goods in the course of ordinary business shall end with the purchaser’s cessation of payment or in the event that insolvency proceedings are initiated with regard to the assets of the purchaser. In this case, the purchaser is obliged to return the reserved goods in unprocessed condition on first demand. We will credit to the purchaser the revenue for the reserved goods returned and processed which he is able to obtain from the best possible use (§254 BGB). The withdrawal of or request for the return of the reserved goods in unprocessed condition by us shall not constitute a withdrawal from the purchase agreement.
b) Pledging or transferring the reserved goods or assigned debts by way of security is not allowed.
c) Processing of the reserved goods does not result in the purchaser’s acquisition of ownership of the new item according to §950 BGB. The purchaser shall take care of the processing for us so that no liabilities will be incurred by us. After the reserved goods have
been processed, we shall acquire the co-ownership of the new item in the amount of the invoice value of the reserved goods that have been processed into the new item.
d) The purchaser hereby assigns to us the claims resulting from the resale of the reserved goods insofar as the goods have been processed. The assignment shall be limited to the invoice amount of the reserved goods that have been processed into the new item.
e) We will not collect the assigned claim as long as the purchaser fulfils his obligation to pay. However, the purchaser is obliged to indicate to us the third-party debtors and to inform them about the assignment. As long as the purchaser fulfils his obligation to pay and does not receive other instructions from us, he is entitled to collect the claim himself.
f) The reservation of title also remains if we include individual claims in a current invoice and the balance is drawn and recognised. This shall not apply if the balance is settled.
g) We undertake to release the securities allowed according to the above-mentioned provisions insofar as their value, in consideration of the value creation by the purchaser, does not exceed the claims to be secured by more than 10%.
h) In the event of seizures, the purchaser must notify us immediately and also indicate the pledgee.
i) As soon as the purchaser has ceased to pay, he is obliged to send us a list stating the existing reservations of title, also as far as processed, and a list of the claims against third- party debtors along with any credit notes. This has to be done immediately after the announcement of the cessation of payment.
j) If we enter into contingent liabilities (cheque/exchange payments) in the interest of the purchaser, the prolonged and expanded reservation of title remains until we have been fully released from these liabilities.
VIII. Applicable Law
Any disputes arising from this contract shall be settled by the ordinary courts unless the parties agree on a court of arbitration. The German law shall exclusively apply for the contractual relationships; application of the international purchase right laws (particularly the UN purchase right) is excluded.
IX. Written Form
Possible conditions imposed by the purchaser when the order was placed as well as possible side agreements between the parties shall only be effective when explicitly acknowledged in an order confirmation or when separate written confirmations have been provided by us. Verbal side agreement shall not be valid. The cancellation of the written form requirement must also be made in writing.
X. Place of Fulfilment and Place of Jurisdiction
The place of fulfilment of all performances arising from the supply agreement shall be Coswig/Anhalt. The place of jurisdiction (also for actions on a bill of exchange and cheque)
for both parties shall be the Wittenberg Local Court and/or the Dessau-Roßlau Regional Court. This applies to the extent that the purchaser is a registered trader, a legal entity under public law or a special fund under public law. The same applies to business relationships between non-traders if these do not have a domestic place of general jurisdiction. We are entitled to sue the purchaser at his place of general jurisdiction.
XI. Final Provisions
If the General Terms and Conditions contain any loopholes, these shall be filled with such legally effective provisions that would have been agreed between the contracting parties according to the economic objects of the contract and the purpose of these General Terms and Conditions if the contracting parties would have been aware of the loopholes.
Responsible for the contents according to § 55 section 2 RStV (German Interstate Broadcasting Agreement)
Liability for Contents
The contents of our pages were created with utmost care. However, we cannot assume any responsibility for the correctness, completeness and currentness of the contents. In accordance with § 7 section 1 TMG (German Telemedia Act), we are responsible for the own contents of these pages according to the general laws. However, according to §§ 8 to 10 TMG, we are not obliged to monitor any third-party information transferred or saved or to do any research with regard to circumstances that indicate an illegal activity. The statutory obligations to remove or block the use of information shall remain unaffected. However, any liability concerning this matter cannot be assumed until the date of knowledge of a specific infringement. In the event that we become aware of such infringements, we will remove these contents immediately.
The use of our website is usually possible without the provision of personal data.
As far as personal data are gathered on our pages (e.g. name, address or email addresses), this is done, as far as possible, on a voluntary basis. These data will not be forwarded to third parties without your explicit consent. We point out that data transfer via the internet (e.g. when communicating by email) can have security leaks. A gapless protection of data against the access of third parties is not possible. We explicitly contradict the third-party use of contact data, which have been published within the framework of the obligation to provide legal information, for the mailing of unsolicited advertising and information material. The operator of the pages explicitly reserves the right to take legal action in case of unsolicited mailing of advertising information, e.g. by SPAM emails.
Privacy Statement for the Use of Google Analytics
This website uses Google Analytics, a web analysing service of Google Inc. (“Google”). Google Analytics uses so-called “cookies”; these are text files which are saved on your computer and make it possible to analyse your use of the website. The information about your use of the website generated by the cookie is transmitted to a server of Google in the USA and saved there. However, if IP anonymisation has been activated on this website, your IP address will previously be shortened by Google within the European Union Member States or the other Signatory States of the Agreement on the European Economic Area.
Only in exceptional cases will the full IP address be sent to a Google server in the USA and then shortened. Google will use this information to analyse your use of the website, to gather reports about the website activities for the website operators and to render further services related to the use of the website and the internet. The IP address transferred from your browser within the framework of Google Analytics will not be merged with other Google data.
You can change the settings of your browser software to keep the cookies from being saved. However, we would like to point out that you may then not be able to use all the functions of this website. Furthermore, you can prevent the gathering of the data generated by the cookie and related to your use of the website (including your IP address) as well as the processing of these data by Google by downloading and installing the browser plug-in available under the following link:
http://tools.google.com/dlpage/gaoptout?hl=de. Use of the Gathered Information