General terms and conditions of business
General terms and conditions of delivery of SEMEX-EngCon GmbH for commercial customers
For deliveries to businesses, our following terms and conditions apply exclusively. They exclude the validity of any conflicting terms and conditions stipulated by the customer on order forms or otherwise, even if the customer expressly specifies otherwise.
All products and goods manufactured by us are not intended for resale to private end consumers. The purchaser is not authorized to resell them without our written consent.
§ 1 Offer and Conclusion of Contract
All offers are non-binding with regard to pricing and delivery times. Unless otherwise agreed in an individual contract, we are bound by our written offers for two weeks for deliveries of goods and for six weeks for other services. We assume no liability for the accuracy of illustrations, drawings, technical data, and specifications unless expressly accepted by us in writing.
§ 2 Prices
(1) Unless otherwise agreed, prices are ex works, excluding packaging, freight, insurance, assembly, and site costs. Value added tax (VAT) is not included. VAT will be shown separately on the invoice at the statutory rate applicable on the date of invoicing. All orders are based on our prices and discount rates valid at the time of performance.
(2) For intra-Community services, VAT-free invoicing is only possible if we receive a tax declaration from the customer with an EU VAT identification number. Any duties or taxes not paid by the customer entitle us to a subsequent invoice.
(3) Goods are delivered cash on delivery or by prepayment. The right of withdrawal remains reserved for deliveries on account.
(4) If, during an agreed delivery period of more than four months, a significant change occurs in certain costs, such as in particular wage, raw material or energy costs, the agreed price may be adjusted accordingly to reflect the impact of the relevant costs.
(5) The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. The exercise of the right of retention is limited to cases in which the customer's counterclaim is based on the same contractual relationship.
§ 3 Delivery time
(1) Delivery and installation times are non-binding unless expressly agreed otherwise. The delivery period begins on the date of order confirmation, but not before all details essential for the execution of the order have been determined. It is calculated in working days and is considered met if:
a) in the case of delivery without installation, when the goods have left the factory within the agreed period or, if the customer declares that they are unable to accept delivery, the customer is notified of the readiness for shipment;
b) in the case of delivery with installation, when the installation is ready for acceptance by the customer within the period, or, in the case of contractually stipulated testing, for its execution.
(2) In the event of a delay in delivery or performance, we must be granted a reasonable grace period. If the supplier is prevented from fulfilling its obligations due to the occurrence of unforeseeable exceptional events which it could not avert despite exercising due diligence in accordance with the circumstances of the individual case, the delivery or performance period shall be extended by the duration of the disruption. This applies to the occurrence of such events as, in particular, government intervention, operational disruptions, labor disputes, and delays in the delivery of essential raw materials and supplies, both at the supplier's plant and at its sub-suppliers. If delivery or performance becomes impossible due to the aforementioned events, the supplier shall be released from its obligation without the customer being able to withdraw from the contract or claim damages. Such obstacles must be communicated without undue delay.
§ 4 Transfer of Risk and Acceptance
(1) Unless otherwise agreed, shipment is ex works from the supplier's registered office in 76275 Ettlingen, without obligation to use the cheapest shipping method. Risk passes to the buyer upon handover of the goods to the shipping agent or upon loading onto a vehicle belonging to the supplier or buyer. At the buyer's request and expense, the supplier will insure the shipment against breakage, transport damage, and fire. If shipment is delayed for reasons beyond the supplier's control, risk passes to the buyer upon receipt of the notification of readiness for shipment. If the buyer is in default of acceptance, the supplier is entitled to store the goods in its own or a third-party warehouse. The buyer shall bear the associated costs. In the case of delivery with installation, risk passes to the buyer upon acceptance of the work. In the case of multiple items delivered with installation, the supplier is entitled to partial acceptance of the individual installed systems.
(2) If dispatch, delivery, commencement or execution of assembly is delayed at the request of the customer or for reasons attributable to him, the risk shall pass to the customer for the duration of the delay.
§ 5 Warranty – Maintenance – Liability
(1) The warranty period for new products is 6 months. The warranty period for program updates and upgrades is three months. If longer periods are mandatory under applicable law, those periods shall apply. No warranty is provided for used goods. The warranty does not cover defects caused by normal wear and tear, nor does it cover damage occurring after the transfer of risk due to faulty or negligent handling, excessive strain, unsuitable operating materials, or chemical or environmental influences that were unknown to the supplier or could not have been foreseen by the supplier under the contract. To reduce any liability we may have under statutory product liability laws, the customer is obligated to notify us immediately of any defects that come to their attention.
(2) Any defects or lack of warranted characteristics must be identified immediately and reported to the supplier in writing within 8 days of receipt of the deliveries, specifying the defects in detail. The deadline is only met if the notification is received by the supplier.
(3) All information regarding the suitability, processing, and application of the product—including in brochures—as well as technical advice and other information, is non-binding but provided to the best of our knowledge. However, it does not release the purchaser from conducting their own tests and trials. The supplier is only liable for a specific use of the products if this has been communicated to them in writing beforehand and confirmed by them in writing. No liability is assumed for data deliveries.
(4) The supplier’s warranty obligation shall lapse if the purchaser, third parties commissioned by the purchaser or other persons acting within the purchaser’s sphere of responsibility make changes to the program or fail to follow the operating instructions contained in the respective manuals or product description when using the program.
(5) For software products from upstream suppliers, their terms and conditions also apply, with the proviso that we do not provide free support, even if the upstream supplier guarantees this in their license terms. For software products that were not customized by us, a warranty claim only exists in the case of significant defects in the product. The significance of a defect is determined by the degree of deviation from the specifications of the respective mutually accepted requirements document. Hardware and software are legally separate entities in this context. If legally valid warranty claims are asserted, resulting in the rescission of the contractual relationship, the customer must return the delivered goods unused, undamaged, complete, and in new condition. Usage time of the customer and any depreciation in the value of the delivered goods will be invoiced.
(6) The supplier reserves the right to remedy the reported defects (repair) or to provide a replacement. After three unsuccessful attempts at repair or replacement, the purchaser is entitled to the rights under the warranty for defects.
(7) There is no entitlement to maintenance and further development of delivered programs. The purchaser must, after consultation with the supplier, grant the supplier the necessary time and opportunity to carry out all necessary repairs and replacements; otherwise, the supplier is released from liability for defects. The supplier shall bear the direct costs incurred by the repair or replacement – insofar as the complaint proves to be justified – including the cost of the replacement part and its shipping. Otherwise, the purchaser shall bear the costs, in particular the costs of removal and installation.
(8) To the extent permitted by law, our liability for damages is excluded. This does not apply if the supplier is liable without limitation under mandatory statutory provisions due to intent or gross negligence or has breached essential contractual obligations and/or in the cases and under the conditions specified in Section 309 No. 7a of the German Civil Code (BGB).
(9) Insofar as the customer is entitled to compensation for damages instead of performance, our liability is limited to compensation for foreseeable, typically occurring damages.
(10) Returns of delivered goods are only accepted by prior arrangement. The costs of return shipping are borne by the customer and must be made carriage paid. Custom-made products, functional prototypes, engineering samples, semiconductors, and software are excluded from returns.
§ 6 Protective Rights
The supplier retains ownership and copyright to samples, models, drawings, and other documents. These may not be made accessible to third parties without the supplier's express consent and must be returned immediately upon request. If, during delivery according to drawings, samples, or other specifications provided by the customer, the intellectual property rights of third parties are infringed, the customer shall indemnify the supplier against all claims.
§ 7 Payment
(1) Invoices are payable within 30 days of the invoice date net without deductions.
Discounts are only granted by prior agreement. Unauthorized discounts will be reclaimed. Payments are only considered made on the day we have the full invoice amount at our disposal without loss. If the buyer defaults on payment, default interest of 8% above the base interest rate of the European Central Bank will be charged, without prejudice to the right to claim further damages. The buyer's creditworthiness is a prerequisite for all transactions. If, after conclusion of the contract, the supplier becomes aware of facts indicating a significant deterioration in the buyer's financial circumstances, which, according to sound business judgment, are likely to jeopardize the supplier's claim to payment, the supplier may, until the time of performance, demand suitable security within a reasonable period or performance against payment.
(2) For services provided under contracts for work and materials, a down payment is due upon placement of the order, in accordance with the applicable price list, but at least 40% of the order volume. For service contracts, invoicing is carried out periodically according to the specific terms of the respective contracts.
(3) We are not obligated to make any further deliveries or provide any services – even within existing contracts – until all outstanding invoices have been paid. If the customer is in default of payment of an invoice, all other outstanding liabilities, regardless of their legal basis, become due immediately, and any previously granted payment terms will be forfeited.
(4) The supplier may withdraw from the contract or claim damages for non-performance if the customer fails to provide suitable security without setting a deadline, or if the customer refuses to provide consideration after offering performance within a reasonable period set by the supplier. If the customer defaults on a partial payment, the supplier may declare the entire remaining balance immediately due and payable. If the customer defaults on payment within a reasonable period set by the supplier, the supplier may withdraw from the contract or claim damages for non-performance. If bills of exchange are accepted, they are accepted on account of payment. Discount and collection charges are to be borne by the customer. All payments must be made directly to the supplier; representatives and installers are not authorized to collect payments. Advance payments do not accrue interest.
§ 8 Retention of title and release clause
(1) The supplier retains title to the goods until all claims of the supplier against the customer arising from the business relationship, including future claims arising from contracts concluded simultaneously or subsequently, have been settled. This also applies if individual or all claims of the supplier have been included in a current account and the balance has been drawn and acknowledged. The customer is only entitled to resell the goods subject to retention of title in the ordinary course of business if the customer hereby assigns to the supplier all claims arising from the resale against purchasers or third parties. If goods subject to retention of title are sold unprocessed or after processing or combination with items that are exclusively the property of the customer, the customer hereby assigns to the supplier all claims arising from the resale in full. If goods subject to retention of title are sold by the customer – after processing/combination – together with goods not belonging to the supplier, the customer hereby assigns to the supplier all claims arising from the resale up to the value of the goods subject to retention of title, including all ancillary rights and priority over the remaining claims. The supplier accepts this assignment. The customer remains authorized to collect these claims even after assignment. The supplier's right to collect the claims directly remains unaffected; however, the supplier undertakes not to collect the claims as long as the customer duly fulfills its payment and other obligations. The supplier may demand that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment. Any processing or transformation of the goods subject to retention of title shall be carried out by the customer on behalf of the supplier, without creating any obligations for the latter. In the event of processing, combining, mixing or blending the goods subject to retention of title with other goods not belonging to the supplier, the supplier shall be entitled to the resulting co-ownership share in the new item in proportion to the value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending.
(2) If the purchaser acquires sole ownership of the new item, the contracting parties agree that the purchaser shall grant the supplier co-ownership of the new item in proportion to the value of the processed, combined, mixed, or blended goods subject to retention of title and shall hold this co-ownership in trust for the supplier free of charge. If goods subject to retention of title are incorporated by the purchaser as an essential component into the property of a third party, the purchaser hereby assigns to the supplier all claims against the third party or any other relevant party for compensation in the amount of the value of the goods subject to retention of title, together with all ancillary rights, including the right to the granting of a security mortgage; the supplier accepts this assignment.
(3) The supplier shall release the securities to which it is entitled at the purchaser’s request to the extent that their value exceeds the secured claim by more than 10%; the selection of the securities to be released shall be at our discretion.
§ 9 Place of performance and jurisdiction
(1) The place of performance for all obligations arising from the contractual relationship is the supplier's registered office. For all legal disputes, including those arising from bills of exchange and checks, the court at the supplier's registered office has jurisdiction if the customer is a merchant, a legal entity under public law, or a special fund under public law. The supplier is also entitled, at its discretion, to bring an action against the customer before any other court of competent jurisdiction.
(2) If we reject claims for damages, the customer is obliged to assert his claims in court within three months of receiving the rejection. If the claim is not asserted within this period, it shall be deemed time-barred.
(3) The contractual relationship between the parties shall be governed by the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
§ 10 Final Provisions
(1) Any side agreements, amendments, or additions to these terms and conditions must be in writing. This requirement is only met if both contracting parties have signed the side agreement, amendment, or addition. This requirement of written form can only be waived by a written agreement signed by both contracting parties.
(2) Should one or more provisions of these terms and conditions be or become invalid for legal reasons, the remaining provisions shall remain unaffected. The parties shall agree on a replacement provision that most closely approximates the economic purpose of the invalid provision.
Ettlingen, April 1, 2014