General Terms of Delivery
The deliveries, services and offers of SEBA Hydrometrie GmbH & Co. KG (hereinafter referred to as SEBA) are exclusively subject to these terms and conditions. Purchasing conditions of customers shall be also unbinding for SEBA, even if SEBA has not expressly objected to them.
Any deviation from the following conditions, additional agreements and commitments made by the representatives of SEBA shall require an express written confirmation in order to gain effectiveness.
1 - Offer and Contract Conclusion
1.1 The SEBA offers are non-binding and without obligation. Declarations of acceptance and orders shall require SEBA's written confirmation in order to be legally valid.
1.2 Drawings, illustrations, dimensions, weights or other performance data are presented as approximate values in accordance with the idustry standards and they shall only be binding if it has been expressly agreed.
1.3 Telephone information on prices, delivery options, etc. shall not be valid without a prior written confirmation.
2 - Prices
2.1 The prices indicated are, unless otherwise agreed, ex works excluding packaging; in the case of individual orders of more than €500 net, they are free including packaging within Germany or free up until the point of the German border for deliveries abroad.
2.2 The prices are subject to VAT in the statutory amount.
3 - Delivery Time
Delivery dates or deadlines shall only be binding if they are agreed to or confirmed in writing by SEBA. Delivery dates or deadlines are considered met, if before they elapse, the delivery item has left SEBA's factory or SEBA has notified the readiness for dispatch. The delivery time is extended appropriately in the event of labour disputes, in particular strikes and lockouts, or in the case of unforeseen obstacles that are beyond the control of SEBA. This shall also apply if the circumstances mentioned occur among SEBA's suppliers. SEBA shall notify the customer of such circumstances without delay.
4 - Defect Claims
4.1 Obvious defects, as well as quantitive and dimensional deviations of the goods are to be indicated to SEBA in writing immediately after delivery. If this is not done, the goods shall be considered as accepted in respect of this defect.
4.2 Defects other than the obvious ones must be reported in writing immediately after their discovery. If this is not done, the goods shall be considered as accepted in respect of this defect.
4.3 In case of justified complaints, the customer may initially only demand subsequent performance. This is then executed at the discretion of SEBA either by defect rectification or delivery of conforming goods. The customer may only withdraw from the contract or demand a reduction in payment, if the subsequent performance has failed or proved unfeasible.
4.4 SEBA may require - at their discretion - the customer to send the defective part or unit
4.4.1 to SEBA for repair and subsequent return or
4.4.2 to have it prepared, so as to allow SEBA to conduct the repair or replacement at the customer's location. Should the customer require the supplementary performance to be executed at a place specified by them, SEBA may meet this demand, whereby the parts covered by such remedial action shall not be calculated. Working hours and travel expenses will be charged to the customer at standard SEBA rates.
4.5 If the customer or a third party attempts the repairs by themselves and improperly, SEBA shall accept no liability for the consequences arising therefrom. The same shall apply to modifications made to the delivery item without the prior consent of SEBA, or if the operating or maintenance instructions specified by SEBA or the manufacturer are not followed, or if the equipment or its parts are opened without the prior consent of SEBA, or when the instructions are impinged otherwise and the components are replaced with such that do not meet the original specifications or if unsuitable consumables are used.
4.6 All claims for defects expire one year after the transfer of risk. This does not apply to delivery items that have been used in accordance with their intended purpose for a structure and have caused its defectiveness. In this case, the legal statute of limitations shall apply. This shall also apply, if SEBA is guilty of fraudulent intent and/or bad faith.
4.7 Claims for defects against SEBA for normal wear and tear from the provision of goods or services shall be excluded.
4.8 Only the customer is entitled to lodge claims for defects against SEBA, whereby such claims are not transferable.
5 - Retention of Title
5.1 Until the disbursement of the full payment of the purchase price plus costs and interest and up until the settlement ofall previous deliveries and services resulting from the contractual relationship, the goods sold shall remain the property of SEBA.
5.2 Handling and processing of goods delivered under the retention of title shall be executed for SEBA. Should the customer thereby acquire the title of ownership, they shall transfer it to SEBA and secure the product for them. In the case of processing with foreign goods, SEBA shall acquire joint ownership of the product according to the value ration of the processed goods at the time of processing. As long as SEBA has the right to the retention of title, the customer shall be entitled to resell the goods or the manufacture produced therefrom in the course of an ordinary business transaction and under the following conditions: third-party claims arising from the resale shall be transferred by the customer onto SEBA in the amount of the invoice value of the involved conditional goods of SEBA. The customer is authorised to collect this receivable on behalf of SEBA. However SEBA is entitled at any time to notify the purchasing party (named upon request) of the transfer of the claim and request a direct payment. The provisions of this paragraph shall apply accordingly when using the conditional goods of SEBA for the performance of a service contract or a contract for labour and materials.
5.3 If the invoice value of the reserved goods exceeds the value of SEBA's claim by more than 20%, then SEBA shall be obliged to perform an appropriate clearance upon a written request.
5.4 In case of seizures and similar restrictions on the reserved goods by third parties, SEBA shall be notified immediately by means of a registered letter. The goods and the claims taking their place may not be pledged to third parties nor be assigned or ceded by way of security prior to full payment of the claim of SEBA.
6 - Payment
6.1 Cheques and bills of exchange are accepted for payment only against reimbursement of bank charges. SEBA shall not be responsible for the timely presentation of checks and bills of exchange. The appeal of the customer to Art. 53 para. 1 of the Exchange Act shall be excluded. Default interest and exchange charges are to be paid immediately.
6.2 If the customer defaults on payment, then SEBA shall be entitled - without prejudice to the right to claim further damages - to calculate from the relevant date an interest rate of 5% above the respective base rate, pursuant to §247 BGB (German Civil Code).
6.3 The customer is entitled to compensation only if the counter-claims have been determined undisputed or have been legally established. If the customer is a merchant and the contract forms a part of their commercial activity or if the customer is a legal entity under public law or a separate estate under public law, they shall then be entitled to refuse performance under § 320 BGB (German Civil Code) and / or they shall have the right of retention only with regard to the undisputed or legally established counterclaims.
7 - Structural Modifications
At any time, SEBA shall reserve the right to make structural changes; SEBA is not obliged to execute such modifications to products already delivered.
8 - Limitation of Liability
Claims for damages of any nature on the part of the customer shall be excluded, unless they are based on a willful or grossly negligent conduct of SEBA or an intentional or grossly negligent behaviour of a legal representative or agent of SEBA. This limitation of liability shall not apply to the damages caused by SEBA, their legal representatives or vicarious agents resulting from injury to life, limb or health. It also does not apply to claims under the Product Liability Act and in cases of culpable breach of contract; in the latter case, the liability of SEBA shall be limited to slight or ordinary negligence relating to a typical and reasonably foreseeable damage.
9 - Rescission
If after the conclusion of the contract, SEBA learns that a significant deterioration has occurred in the financial situation of the customer, or that their pecuniary circumstances have led to their tools, machines, stocks or receivabled have been pledged, or if the customer fails to pay their due invoices immediately despite a reminder, then SEBA shall reserve the right to withdraw from the contract and / or demand compensation for the non-performance, without the customer being entitled to claim damages from SEBA. Likewise, SEBA shall have the right to withdraw from the contract without the customer being able to make demands on them, if their execution of the order is made impossible by unforeseen regulatory measures, operational settings, lack of raw materials, fire or similar accidents. In the case of non-availability of the contractual object, SEBA shall be obliged to immediately inform the customer about the unavailability and to reimburse the customer without delay.
10 - Applicable Law, Jurisdiction, Severability
10.1 The business relationship and the entire legal relationship between SEBA and the customer shall be governed by the law of the Federal Republic of Germany under exclusion of the uniform international sales law.
10.2 If the customer is a merchant within the meaning of the commercial code, a legal entity under public law or a special fund under public law, then Kaufbeuren shall be the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship. This also applies to disputes over the validity of concluded contracts. If the customer is based abroad, so SEBA is also entitled, at their discretion, to file a suit relative to the disputes arising directly or indirectly from the contractual relationship, as well as make claims regarding their effectiveness in that court of jurisdiction which is competent without respect of clause 1. The same applies if, after the conslusion of the contract, the customer moves their domicile or habitually residency abroad or if their domicile or habitual residence is not known at the time the action is filed.
10.3 If any provision of this contract or these general terms of delivery are or become invalid, then the validity of the entire contract and the general terms of delivery shall remain unaffected. The ineffective contractual provision or general delivery condition is to be replaced by that which comes economically the closest to the ineffective provision.