General Conditions of Business for the Online Shop of
S.E.A. - Science & Engineering Applications Datentechnik GmbH
§1 General Scope of Application
- The present general conditions of business apply to the business relationships entered into by and between S.E.A. – Science & Engineering Applications Datentechnik GmbH, Mülheimer Straße 7, 53840 Troisdorf, Germany (hereinafter referred to as “S.E.A. Datentechnik GmbH”) and its customers via the online shop at the URL www.sea-gmbh.com and, as the case may be, other URLs referring to it (hereinafter altogether referred to as the “online shop”). The online shop of S.E.A. Datentechnik GmbH addresses exclusively to customers who are not consumers within the meaning of § 13 BGB (German Civil Code). Enquiries from consumers, if any, must be addressed directly to the address indicated in the legal note. There, the consumers can obtain information on whether and on what conditions they will be able to place an order with S.E.A. Datentechnik GmbH.
- These general conditions of business apply in particular to contracts for the sale and/or delivery of movables (hereinafter referred to as the “goods”), regardless of whether S.E.A. Datentechnik GmbH manufactures the goods itself or procures them from sub-suppliers (§ 433, § 651 BGB – German Civil Code). The general conditions of business apply in the version valid at the time as a master agreement even for future contracts for the sale and/or delivery of goods concluded with the same customer, without S.E.A. Datentechnik GmbH being under the obligation to point out the application of the general conditions of business again in each individual case.
- These general conditions of business apply exclusively. When placing an order with S.E.A. Datentechnik GmbH, the customer acknowledges and agrees to these general conditions of business in the version valid at the time of the placement of the order. The general conditions of business can be accessed any time in the online shop of S.E.A. Datentechnik at the URL www.sea-gmbh.com/shop. Deviating, conflicting or supplementary general conditions of business of the customer only become part of the contract if and to the extent that S.E.A. Datentechnik GmbH has explicitly agreed to them. The requirement of consent applies in any case, in particular also in the case that S.E.A. Datentechnik GmbH – even though it is aware of the general conditions of business of the customer – delivers to the customer without reservation. Specific arrangements made with the customer in an individual case (including supplementary agreements, amendments and modifications) prevail over these general conditions of business. The contents of such an arrangement will be stipulated exclusively in a written agreement or a written confirmation from S.E.A. Datentechnik GmbH.
- If reference is made in these general conditions of business to statutory regulations, such reference is for clarifying purposes only. Even without such a clarification, the statutory regulations apply if and to the extent that these are not modified directly or precluded explicitly by these general conditions of business.
- The duties under § 312e subs. 1 clause a no. 1 through 3, clause 2 BGB (German Civil Code) are not applicable.
§2 Conclusion of contract
The quotations and offers from S.E.A. Datentechnik GmbH are without obligation and subject to change. This applies even in the case that S.E.A. Datentechnik GmbH makes catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product specifications or documents (hereinafter altogether referred to as “product specifications”) available to the customer, even in electronic form. S.E.A. Datentechnik GmbH does not warrant, and is not liable for, that the goods ordered by the customer are mutually compatible and interoperable in the configuration chosen by the customer and can be used together faultlessly; insofar, only such qualities of the goods are deemed guaranteed as are explicitly referred to in writing as “guaranteed qualities” (“zugesicherte Eigenschaften”) on the part of S.E.A. Datentechnik GmbH.
The ordering of goods by the customer is deemed a binding offer for the conclusion of a contract. S.E.A. Datentechnik GmbH will inform the customer of the receipt of the order by e-mail immediately, i.e. without undue delay (“unverzüglich”) (hereinafter referred to as “acknowledgement of order receipt”). The acknowledgement of order receipt must not be deemed acceptance of the order but can be combined with the acceptance. If not stipulated otherwise in the order, S.E.A. Datentechnik GmbH has the right to accept the customer’s offer for conclusion of a contract within two weeks from receipt. The offer for conclusion of a contract can be accepted in writing or by e-mail or by provision of the goods for delivery to the customer.
§ 3 Delivery times and default
The time of delivery is specifically agreed between the parties or indicated by S.E.A. Datentechnik GmbH upon acceptance of the order. If this is not the case, the delivery time will be approx. two weeks from the conclusion of the contract.
If S.E.A. Datentechnik GmbH is not able to comply with the bindingly agreed delivery times for reasons that are not attributable to S.E.A. Datentechnik GmbH (non-availability of performance), S.E.A. Datentechnik GmbH will notify the customer immediately, i.e. without undue delay (“unverzüglich”), indicating at the same time the presumable new delivery time. If performance cannot be provided within the new delivery time either, S.E.A. Datentechnik GmbH will be entitled to withdraw from the contract in whole or in part; S.E.A. Datentechnik GmbH will reimburse the consideration - if and to the extent already provided by the customer - immediately, i.e. without undue delay (“unverzüglich”). Non-availability of performance in the aforesaid sense is in particular deemed to comprise the non-timely delivery to S.E.A. Datentechnik GmbH itself on the part of a sub-supplier, if S.E.A. Datentechnik GmbH has concluded a congruent covering transaction. This is without prejudice to the customer’s right to withdraw from the contract according to § 7 of these general conditions of business.
§ 4 Delivery, Prices, Terms of payment
- Delivery will be ex works which place is also deemed the place of performance (“Erfüllungsort”). The goods will be delivered to another destination at the customer’s request and expense (sale by delivery to a place other than the place of performance – “Versendungskauf”). Unless agreed otherwise, S.E.A Datentechnik GmbH will be entitled to choose the mode of delivery itself (in particular as regards the carrier, dispatch route and packaging).
Unless otherwise agreed in the specific individual case, the prices indicated in the online shop at the time of the order are applicable, plus VAT at the statutory rate applicable at the time of invoicing.
In the case of a sale by delivery to a place other than the place of performance (“Versendungskauf”) as stipulated in § 4 subs. 1, the customer will bear the cost of transport ex works and the cost of transport insurance, if requested by the customer. If S.E.A Datentechnik GmbH does not invoice the cost of transport actually incurred in the specific individual case, lump-sum cost of transport (exclusive of transport insurance) in the amount of EUR [TO BE SUPPLEMENTED] is deemed agreed between the parties. Customs duties, charges, taxes and other public charges, if any, are borne by the customer. S.E.A Datentechnik GmbH will not take back transport packaging or other packaging as specified in the “Verpackungsverordnung” (German Packaging Regulations); the packaging will become the property of the customer.
The purchase price is due and payable within two weeks from invoicing and delivery or acceptance of the goods. In the case of contracts with a delivery value of more than EUR [TO BE SUPPLEMENTED], S.E.A Datentechnik GmbH is entitled to demand a down-payment in the amount of [TO BE SUPPLEMENTED] % of the purchase price. The down-payment is due and payable within two weeks from invoicing.
The customer is only entitled to set-off if the claims asserted by him – even if these are claims for defects or counter-claims – have been established by final non-appealable court decision or have remained undisputed. The customer is only entitled to retention if the counter-claim is based on the same contract that gives rise to the payment obligation of the customer.
§ 5 Retention of title
- S.E.A. Datentechnik GmbH retains title to the sold goods until all present and future claims arising out of the purchase contract and an ongoing business relationship (secured claims) have been satisfied in full.
The goods subject to retention of title must not be pledged in favour of, or transferred to, a third party by way of security until the secured claims have been satisfied in full. The customer must notify S.E.A. Datentechnik GmbH of any attachment of the said goods by a third party in writing immediately, i.e. without undue delay (“unverzüglich”).
The customer has the right to resell and/or process the goods subject to retention of title in the ordinary course of trade. In such a case, the following provisions apply in addition.
The retention of title pertains to the full value of the items generated by way of processing, mixing or integration of the delivered goods whereby S.E.A. Datentechnik GmbH is deemed the manufacturer of these items. If – in the case of processing, mixing or integration with goods belonging to a third party – the property right of the third party is maintained, S.E.A. Datentechnik GmbH will share title to, and become co-owner of, the new items in proportion to the invoice values of the goods processed, mixed or integrated. Apart from that, the new items are subject to the same provisions as are applicable to the goods subject to retention of title.
The customer already now assigns by way of security the claims against third parties arising out of the resale of the goods or new items to S.E.A. Datentechnik GmbH – either entirely or in the amount equivalent to our co-ownership share as defined in the preceding subsection (a); S.E.A. Datentechnik GmbH hereby accepts the assignment. The customer’s duties specified in subs. 2 apply also with respect to the assigned claims.
The customer remains entitled – besides S.E.A. Datentechnik GmbH – to collect the claim. S.E.A. Datentechnik GmbH undertakes not to collect the claim as long as the customer fulfils his payment obligations, is not in default with payment, no petition in bankruptcy is filed against him and the customer’s ability to pay is not impaired otherwise either. If this should be the case, S.E.A. Datentechnik GmbH can demand the customer to disclose the assigned claims and the corresponding debtors, provides all information required to collect the claims, hands over the corresponding documents and notifies the debtors (third parties) of the assignment.
If the realizable value of the securities exceeds the claims of S.E.A. Datentechnik GmbH by more than 10 %, S.E.A. Datentechnik GmbH will release securities at its choice at the customer’s request.
§ 6 Customer claims for defects
The rights of the customer in the case of a defect in quality or title are governed by the statutory regulations unless stipulated otherwise hereinafter. The special statutory regulations relating to the recourse against suppliers as described in § 478, § 479 BGB (German Civil Code) remain unaffected.
The quality agreements made with the customer on the basis of the products specifications (including those of the manufacturer) constitute the basis for the liability for defects. If and to the extent that no agreements were made as to quality, it must be assessed in accordance with the statutory regulations whether a defect exists or not (§ 434 subs. 1 clause 2, clause 3 BGB – German Civil Code). S.E.A. Datentechnik GmbH is not liable for public statements of the manufacturer or other third parties (e.g. advertising statements).
The customer’s claims for defects are subject to compliance with the customer’s statutory duty to inspect the goods and give notice of defects (§ 377, 381 HGB – German Commercial Code). Regardless of the aforesaid duty to inspect and give notice of defects, the customer must give written notice of obvious defects (including delivery of other goods than those ordered - “Falschlieferung” and short delivery) within two weeks from delivery whereby timely dispatch of the notice of defect is deemed sufficient. If the customer fails to duly inspect the goods and/or give due notice of defect, the liability of S.E.A. Datentechnik GmbH for the defect that was not notified is precluded.
The necessary expenses for examination and subsequent performance (“Nacherfüllung”) including in particular the cost of transport, tolls, labour costs and cost of material, are borne by S.E.A. Datentechnik GmbH if the goods actually show a defect. If the customer’s request for remedy of an alleged defect proves to be unjustified, S.E.A. Datentechnik GmbH can demand reimbursement of the cost incurred by it from the customer.
The customer is precluded from asserting liability claims for defects if the goods were modified without the explicit written consent of S.E.A. Datentechnik GmbH or are used in another manner than provided for in the products specification unless the customer proves that the modification or inappropriate use of the goods does in no way relate to the defect asserted by him.
The customer will only be entitled to claim compensation for damages or reimbursement of useless expenses as is stipulated in § 7; beyond that, all such claims are precluded.
§ 7 Liability
- Unless these general conditions of business including the provisions hereinafter provide otherwise, S.E.A. Datentechnik GmbH will be liable in accordance with the relevant statutory regulations in the case of breach of a contractual or non-contractual duty.
- S.E.A. Datentechnik GmbH can only be held liable for damages – regardless of the legal cause – in the event of intentional or grossly negligent conduct. In the case of simple negligence, S.E.A. Datentechnik GmbH can only be held liable
- for damages resulting from the injury of the life, body or health,
- for damages resulting from the violation of a fundamental contractual duty (a duty that absolutely needs to be fulfilled to allow proper performance of the contract and on the observation of which the contractual partner usually relies and is reasonably allowed to rely) whereby in such a case the liability is limited to compensation for the typical foreseeable damage.
- The limitations of liability according to subs. 2 are not applicable if and to the extent that S.E.A. Datentechnik GmbH has concealed a defect fraudulently or has given a guarantee as to the quality of the goods. The same applies to the claims of the customer under the “Produkthaftungsgesetz” (German Product Liability Act)
- The customer is only entitled to withdraw from or terminate the contract for a breach of duty that does not constitute a defect if the breach of duty is attributable to S.E.A. Datentechnik GmbH. The customer has no right of discretionary termination of the contract (in particular under § 651, § 649 BGB – German Civil Code). Apart from that, the requirements and legal consequences prescribed by law are applicable.
§ 8 Limitation
- Notwithstanding § 438 subs. 1 no. 3 BGB (German Civil Code), the regular limitation period as to claims for a defect in quality or title is one year from delivery. If acceptance of the goods is agreed between the parties, the limitation period runs from acceptance. The special statutory regulations applicable in the event of fraudulent conduct on the part of S.E.A. Datentechnik GmbH (§ 438 subs. 3 BGB – German Civil Code) and those governing the claims within the framework of recourse against suppliers in the case of ultimate delivery to a consumer (§ 479 BGB – German Civil Code) remain unaffected.
- The aforementioned limitation periods also apply to contractual and non-contractual claims of the customer for damages that are based on a defect of the goods unless the application of the statutory regulation governing ordinary limitation (§ 195, § 199 BGB – German Civil Code) would lead to a shorter limitation period in the specific individual case. The limitation periods prescribed by the “Produkthaftungsgesetz” (German Product Liability Act) remain unaffected. Apart from that, the customer’s claims for damages under § 7 are exclusively subject to the statutory limitation periods.
§ 9 Special conditions for the distribution of software
- As to the distribution of software via the online shop, the conditions of use or the licensing conditions that are provided separately for such purpose by S.E.A. Datentechnik GmbH or the manufacturer of the software and that stipulate the rights and duties of the customer, S.E.A. Datentechnik GmbH and the manufacturer of the software in connection with the use of the software purchased by the customer apply in addition to these general conditions of business. The conditions of use or the licensing conditions applicable to the software will be made available to the customer as a hard copy or electronic file upon delivery of the software at the latest. With the unsealing but in no case later than with the installation of the software, the customer acknowledges and agrees to the conditions of use or the licensing conditions applicable to the software. The purchase does not imply the acquisition of rights in the software going beyond those stipulated in the prevailing conditions of use or licensing conditions on the part of the customer. All copyrights and other rights in the software, its contents and supplementary documentations are reserved.
- The software is provided to the customer in the online shop either on a data carrier (CD or DVD) or is made available to him for download, according to the product specification. If the customer purchases the software on a data carrier, he will acquire title to the tangible data carriers upon payment of the purchase price and delivery of the software to the customer. When making the software available to the customer, S.E.A. Datentechnik GmbH will communicate to the customer, along with the acceptance of the order under § 2.2, access data and a link to a protected internet page where the customer can download the software. The software downloaded there is usually not fully operable at first but can be activated in the unrestricted full version acquired by the customer in the online shop after installation by entering a licence code provided to the customer by S.E.A. Datentechnik GmbH in writing or by e-mail.
- The customer has the right to make backup copies of the delivered data carriers and the software exclusively for personal use.
- If an internet connection is required for the use of the software sold by S.E.A. Datentechnik GmbH, such internet connection and the installation of the software possibly required to use the internet connection will be procured by the customer at his expense. The customer is responsible for that the technical requirements to be fulfilled on his part for the use of the software are actually complied with - in particular as regards the hardware to be applied, the necessary operating system and the internet connection, if required - whereby the instructions given by S.E.A. Datentechnik GmbH as to the software acquired by the customer must be observed by the customer. All rights to make technical modifications are reserved and S.E.A. Datentechnik GmbH will notify the customer of such modifications in due time. If the software is advanced or modified by S.E.A. Datentechnik GmbH (e.g. in the case of updates), it is up to the customer to take the measures required for the adjustment of the software and hardware used by him. The customer has no right to claim that the advanced or modified software versions must be executable with the customer equipment; claims of the customer for defects under § 6 remain unaffected.
§ 10 Choice of law and Place of jurisdiction
- These general conditions of business and all business relationships between S.E.A. Datentechnik GmbH and the customer are subject to German law with the exception of all international and supranational (conventions and) regimes including in particular UN Sales Law. The prerequisites and effects of a retention of title under § 5 are subject to the law of the state of situs of the goods if and to the extent that the choice in favour of German law agreed between the parties is inadmissible or invalid under the lex situs.
If the customer is a merchant in terms of the “Handelsgesetzbuch” (German Commercial Code) or a legal entity under public law or a special fund under public law (“öffentliches Sondervermögen”), the exclusive – and even international – place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is Cologne. However, S.E.A. Datentechnik GmbH is also entitled to sue the customer at the place of general jurisdiction (“allgemeiner Gerichtsstand”) applicable to him.
§ 11 Miscellaneous
- Declarations of legal relevance and notices to be given after the conclusion of the contract require written form to be valid. The written form requirement in terms of these general conditions of business is also deemed observed if transmission is made by facsimile.
- If transcriptions of these general conditions of business should have been issued in any other language than German, the German version will be solely binding on S.E.A. Datentechnik GmbH and the customer.
- If a provision of these general conditions of business is invalid, the validity of the remaining provisions hereof will remain unimpaired.