Right from the beginning
CLEAR CONDITIONS
for a lasting partnership
GTC
1. General
1.1 These General Terms and Conditions apply to all our business relations with our contractual partners (hereinafter referred to as "Customer"), provided that the Customer is a company, a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.2 All deliveries, services and offers of us, Seal Concept GmbH, are made exclusively on the basis of our GTC. They become an integral part of all contracts that we conclude with our Customers and apply to all future contractual relationships with these Customers, even if their validity is not specifically reiterated.
1.3 Any deviating, conflicting or supplementary GTC of the Customer only become part of the contract if and to the extent that we expressly agree to their validity in writing. This also applies if we provide services or deliveries to the Customer without reservation in the knowledge of such Customer's GTC.
2. Offers/Quotations
Unless they have been expressly designated as binding or contain a binding period, our offers and quotations are always subject to change and non-binding, i.e. revocable at any time, until we receive acceptance from the Customer. Acceptance of our offers/quotations by the Customer must be in text form and can only be made within 28 days of receipt of our offer/quotation, unless otherwise stated in the offer/quotation and no revocation has been made in the aforementioned sense. If acceptance has been made at a later time, the declaration of the Customer will be deemed to be a new offer, which in turn requires our acceptance.
3. Orders
We can accept orders from the Customer within 28 days of receipt. The legally binding acceptance of the offer by us is effected by order confirmation in text form or - with the corresponding consent of the Customer - by means of performance of the service.
4. Prices
4.1 Our prices are subject to change and apply ex delivery point Bobingen, excluding packaging, postage, freight, other shipping charges, insurance, customs duties and assembly.
4.2 Any increase that occurs between the conclusion of the contract and delivery in the wages, raw material prices, freight, taxes, customs duties, levies or other charges on which the price calculation is based, or the entry into force of new such charges, entitles us to an appropriate price increase, insofar as this is legally permissible.
4.3 If more than 6 months have passed between the placing of the order and delivery, we may increase prices and costs by 3% without providing evidence. The number of units determined by us is decisive for the calculation.
5. Delivery
5.1 We reserve the right to agree the delivery time for each individual order separately. Delivery periods and dates proposed by us are always only approximate, unless a fixed period or a fixed date has been expressly promised or agreed. Unless expressly agreed otherwise, in the case of sale by delivery to a place other than the place of performance, delivery periods and dates are deemed to have been complied with upon handover of the delivery item to the forwarding agent, the carrier or any other third party entrusted with the transport.
5.2 Partial deliveries are reasonable for the Customer if it has expressly or impliedly agreed to them.
5.3 The performance periods and dates are to be extended appropriately if this is due to an event of force majeure (i.e. an unforeseen event beyond our control or responsibility, such as natural disasters, strikes or governmental acts/orders, whether effective or not); this also applies if such an event occurs during a delay in delivery or at one of our upstream suppliers. If, however, in the event of force majeure, it is not possible for us to provide the service even within a reasonable period of time, both the Customer and we have the right to withdraw from the contract in whole or in part. The same applies in the event of subsequent impossibility of performance of the contract beyond our responsibility. Neither Party is entitled to claim damages due to such withdrawal. The Party intending to withdraw from the contract for the aforementioned reasons will notify the other Party in writing without delay.
5.4 The risk passes to the Customer when the goods leave the distribution warehouse in Bobingen or upon notification of readiness for dispatch. In the absence of special instructions, the choice of the transport route and the means of transport will be made at our best judgement without any liability for the cheapest and fastest shipment. Shipment is always at the risk of the Customer - even in the case of carriage-paid deliveries and/or retention of title. Unless otherwise agreed, the type of packaging is at our discretion. We reserve the right to make product changes due to technological progress.
6. Duty to examine and notify defects
6.1 Claims for defects on the part of the Customer presuppose that the Customer has properly fulfilled its obligations to inspect and notify defects in accordance with s. 377 of the German Commercial Code (HGB). The time limit for giving notice of defects is 7 working days from the date of delivery for defects which are obvious or recognisable upon proper inspection. For other defects, the notification period shall be 7 working days from the time at which the defect was discovered or could have been discovered.
6.2 Notifications of defects by the Customer must be made in writing (by post, fax or e-mail).
7. Warranty for defects
7.1 Unless provided otherwise below, the statutory provisions apply to the rights of the Customer in the event of material defects (defects in quality including incorrect and short delivery as well as improper assembly or defective assembly instructions).
7.2 At our request, the products to which the complaint relates are to be returned to us carriage paid. No warranty will be assumed for damage caused due to the following reasons: unsuitable or improper use, faulty assembly, fair wear and tear, faulty or negligent handling, unsuitable equipment, substitute material, defective construction work, chemical, electrochemical or electrical influences, insofar as they are not to be attributed to the fault of the supplier. If the notice of defect is justified, we will bear the costs of the most favourable shipment mode; this does not apply if costs are increased by the fact that the products have been taken to a place other than the contractual destination.
7.3 In the event of material defects in the products, we are initially obliged and entitled to repair them or, at our discretion, to deliver a replacement within a reasonable period of time. If repair or replacement delivery is impossible or unreasonable or refused or unreasonably delayed, the Customer may withdraw from the contract or reduce the purchase price appropriately.
7.4 The Customer will cooperate in a reasonable manner in the performance of such supplementary performance and, in particular, give us the necessary time and opportunity to perform the rectification. If the Customer fails to comply with this duty to cooperate, we expressly reserve the right to charge the Customer for any additional costs that could have been avoided if the Customer had properly complied with its cooperation duty. If defects occur in the goods, the Customer is obliged, at our request, to have their condition recorded by a neutral and certified expert appointed by us. The costs for commissioning the expert will be borne by us. If the Customer does not give us the opportunity to check the identity of the goods complained about and the defects asserted, we are entitled to refuse subsequent performance.
7.5 Items exchanged within the scope of supplementary performance will become our property unless we waive this right.
7.6 We are exclusively liable in accordance with the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of representatives or vicarious agents. In the absence of any intent, liability is limited to the foreseeable, typically occurring damage.
7.7 We are also liable in accordance with the statutory provisions for culpable breach of an essential contractual obligation, i.e. an obligation the fulfilment of which has made the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely upon. In these cases, liability is limited to the foreseeable, typically occurring damage.
7.8 Insofar as the Customer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, liability shall be limited to the foreseeable, typically occurring damage.
7.9 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.
7.10 The limitation period for claims for defects is 12 months from the passing of risk. In the event of a delivery recourse according to s. 445a, b of the German Civil Code (BGB), the limitation period regulated therein remains unaffected.
7.11 Any further liability other than provided for in this clause 7 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for property damage pursuant to s. 823 BGB. Insofar as liability for damages against us is excluded, this also applies to the personal liability of our employees, representatives and vicarious agents. Under no circumstances are we liable to the Customer for loss of profit, loss of turnover, loss of use, loss of production, capital expenditure, costs of purchase or replacement, or for any indirect consequential damage resulting from a negligent breach of duty on our part. Moreover, the Customer undertakes to indemnify us against all claims by the end customer and the Customer's customers for such damage.
8. Technical application advice
The application, use and processing of the goods purchased are the sole responsibility of the Customer. Seal Concept GmbH's application advice, both verbal and written, is only to be regarded as non-binding advice, also with regard to any third-party property rights, and does not release the Customer from its own examination of the products for their suitability for the intended processes and purposes. Should liability on the part of Seal Concept GmbH nevertheless come into question, such liability is limited to the value of the goods delivered by us. For the storage of elastomer articles DIN 7716 (2.75) applies.
9. Retention of title
9.1 Ownership does not pass to the Customer until it has settled all its liabilities arising from the existing business relationship with us.
9.2 The acceptance of bills of exchange or cheques shall only apply on account of payment (without confirmation of the fulfilment of a debt); therefore, ownership of the respective sales object only passes to the Customer upon final settlement of the debt. Payment by cheque with simultaneous establishment of a financing relationship by bill of exchange is not considered a settlement of the sales claim. If the delivered goods or parts thereof are integrated into another object, the retention of title does not expire; rather, co-ownership is deemed to be agreed in accordance with the value ratios of the new object.
9.3 The Customer is entitled to further process or resell the goods delivered under retention of title in the ordinary course of business. However, it may not pledge the goods or assign them as security. In the event of resale or further processing, the Customer hereby assigns to us by way of security all claims arising from the resale with all ancillary rights against the third-party debtor up to the amount of the invoice with the authority to collect the claim on a pro-rata basis.
9.4 Insofar as the Customer collects the assigned claim itself, this shall only be made on a fiduciary basis. The proceeds collected on our behalf shall be paid out to us immediately. At our request, the Customer is obliged to make the assignment known to the secondary customers and to provide the information required to assert our rights against such secondary customers. The Customer must inform us of any seizure or any impairment of our rights by third parties without any delay.
9.5 The Customer is entitled to demand release of securities if their realisable value exceeds 20% of the claims to be secured. In the event that the secondary customer does not pay cash immediately, the Customer is to reserve extended ownership in our name.
10. Terms of payment
10.1 Unless otherwise agreed, the purchase price for the products becomes due for payment in the currency specified in the contract within 30 days of the date of the invoice without any discount.
10.2 If, after conclusion of the contract, there are actual indications of a deterioration in the Customer's financial position or if other facts become apparent at this time which justify the assumption that our claim to counter-performance is jeopardised by the Customer's lack of financial capacity, we are entitled to demand appropriate securities for our performance and/or to revoke any payment terms granted (also for other claims existing against the Customer). Should the Customer fail to provide the requested appropriate securities within a reasonable period of time, we are entitled to withdraw from the contract. This does not affect claims arising from services already rendered by us, those arising from default on the part of the Customer or our rights under s. 321 of the German Civil Code (BGB).
10.3 If the customer does not pay or does not pay on time, it has to pay interest on the outstanding amount. In the case of s. 288(2) BGB, the interest on arrears is currently 9 percentage points above the base rate (s. 247 BGB). The assertion of any further damage remains unaffected by this.
10.4 The Customer is only entitled to rights of set-off and retention if its counter-claims have become non-appealable, are uncontested or have been recognised by us. The Customer may only assert rights of retention, if any, on the basis of counter-claims that are based on the same contractual relationship.
11. Drawings, designs
11.1 The customer is to treat drawings, documents and drafts of our company confidentially. Any breach of this obligation results in full liability for damages.
11.2 Drawings or documents sent with offers must be returned immediately by the recipient if no order will be placed.
11.3 The languages used for all documents (in particular assembly and installation instructions), drawings and drafts are German and English. Other languages require an individual translation and must be borne by the Customer. Designs produced by us or on our behalf remain our property, even if they are charged to the Customer on a pro rata basis.
12. Compliance with export control regulations
The Customer is advised that it has to mandatorily comply with the respective export control regulations of the Federal Office of Economics and Export Control (BAFA) on the Customer's own responsibility. These can be consulted at: www.bafa.de. Further information can also be requested there.
13. Place of performance and jurisdiction
13.1 The place of performance for deliveries and payment is Augsburg.
13.2 The place of jurisdiction for all disputes arising from the contractual relationship is Augsburg. The entire legal relationship between the Purchaser and Seal Concept GmbH are governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
14. Severability
Should any provision in these General Terms and Conditions of Sale and Delivery or the contractual documents associated herewith be or become invalid, then the valid provisions of the General Terms and Conditions of Sale and Delivery or the contractual documents associated herewith remain valid. The invalid provision will be deemed to be replaced by a provision which corresponds to the original economic purpose of the invalid provision, insofar as this is legally possible.
15. Translation
Only the German version of these General Terms and Conditions of Sale and Delivery is legally binding; the English translation serves information purposes only.
Bobingen, February 2020
1. General
1.1 Unless expressly agreed otherwise, these Terms and Conditions apply exclusively to all orders of Seal Concept GmbH. The applicability of the Supplier's general terms and conditions or any terms and conditions in the Supplier’s order confirmation is explicitly rejected hereby. The confirmation of the orders by Seal Concept GmbH based on these Terms and Conditions of Purchase or the provision of the corresponding deliveries and services by the Supplier is sufficient for the validity of these GTCP.
1.2 Our Terms and Conditions of purchase apply exclusively. Any terms and conditions of the Supplier that conflict with or deviate from these GTCP do therefore not apply even if Seal Concept GmbH does not object to them in individual cases, unless Seal Concept GmbH has expressly consented to their application in writing through a representative authorised for this purpose.
1.3 The invalidity or unenforceability of individual provisions of these Terms and Conditions of Purchase shall not affect the validity of the remaining provisions. Invalid or unenforceable provisions are to be replaced by legally permissible provisions coming as close as possible to the economic purpose pursued by the invalid or unenforceable provisions.
2. Orders placed by Seal Concept GmbH
2.1 Orders and contracts are binding if they have been placed or made by us in writing or have been confirmed by us in writing. Any amendment, supplement or ancillary agreement before, at or after the conclusion of a contract also requires our written confirmation. The requirement of written form may only be waived in writing. Transmission by fax, e-mail or remote data transmission is deemed to be equivalent to written form.
2.2 Contracts are concluded by written acceptance of the order by the Supplier, with such acceptance being submitted by the Supplier in writing within fourteen (14) days of receipt of an order. If the Supplier starts performing the work requested in the order without order acceptance, this is deemed to be acceptance of the order in any case.
3. Prices and terms of payment
3.1 Unless otherwise agreed in the order, all agreed prices are fixed prices and remain unchanged until the expiry of the contract. They include packaging and freight costs as well as taxes and duties excluding VAT.
3.2 Invoices are to be issued stating the order date, order number and article number immediately after dispatch of the goods and shall be sent to us by separate post. Each order must be invoiced separately with value added tax shown separately as otherwise it will be deemed to be included in the price.
3.3 Invoices shall be issued in EUROS, payments shall be made exclusively in EUROS. The Supplier will provide us with its respective bank details, i.e. its correct IBAN, the corresponding BIC as well as its VAT identification number.
3.4 Payments will be made after acceptance of the delivery and receipt of an auditable invoice as well as provision of all documents related to delivery. If agreed in advance, we may also settle the invoice using the credit note procedure in accordance with s. 14(2) sentence 2 of the German Turnover Tax Act (UStG). Unless expressly agreed otherwise, we will pay either within 14 days with a 3% discount or within 30 days without discount.
3.5 The Supplier is not entitled to assign its claims against us in whole or in part or to dispose of them in any other way without our prior written consent. Offsetting by the Supplier can only take place with claims that are undisputed by us or have become non-appealable.
4. Delivery dates and delivery conditions
4.1 The delivery dates agreed in the orders are binding. The Supplier must inform us immediately in writing of any delay or exceeding of the agreed dates and deadlines, stating the reasons.
4.2 Partial deliveries or early deliveries may only be made with our express consent. However, the payment claim shall only become due on the originally agreed delivery date.
4.3 Unless otherwise agreed, the delivery must be accompanied by a delivery note. Initial deliveries, in particular those with sample status, are to be accompanied by complete initial sample documentation in accordance with an individually concluded supplier agreement.
4.4 Acceptance times for deliveries are MON-THU 8:00-12:00 a.m. and 1:00-4:00 p.m. and FRI 8:00-12:00 a.m. on weekdays.
4.5 If the Supplier is in default of delivery, we are entitled, after granting a reasonable grace period without result, to claim liquidated damages for default in the amount of 2% of the purchase price (invoiced value) of the goods in default per week or part thereof of the default in delivery, but not more than 25% of the purchase price of the goods in default against the Supplier by way of set-off. The Supplier is entitled to prove to us within a reasonable period of time that no damage or a lesser damage has been caused by the delay. We reserve the right to assert further legal claims, in particular to withdraw from the contract and/or to claim damages, particularly to cover our requirements elsewhere at the Supplier's expense.
4.6 All events of force majeure which cause a limitation of undisturbed operation on our part entitle us to suspend the fulfilment of assumed acceptance obligations until the event of force majeure ceases to exist and, in the event of a definitive shut-down of operations or in the event that performance has become unreasonable after the event of force majeure ceases to exist, to withdraw from the contract in whole or in part or to terminate the contract in whole or in part. In these cases, we are not liable for damages or any expenses.
5. Place of performance
The place of performance is the place to which - according to the order - the goods are to be delivered or at which the service is to be rendered. Our place of business is the place of performance for our payments.
6. Passing of risk
Unless otherwise agreed, the Supplier bears the risk and the shipping charges until acceptance at the place of performance. The risk of accidental loss or accidental deterioration of the delivery, even if we have agreed to bear the freight costs, do not pass to us until acceptance by us or our appointed forwarder at the agreed place of performance or after final acceptance of the delivery, whichever is later.
7. Passing of ownership
7.1 Upon delivery at the place of performance or to a forwarder commissioned by us, ownership of the goods passes to us without reservation of any rights on the part of the Supplier.
7.2 Any extended or expanded retention of title is excluded to the extent permitted by law.
8. Warranty and removal of defects
8.1 We will inspect the goods for deviations in quality and quantity within a reasonable period of time, unless the Supplier has assumed quality control for us in accordance with the order. In any case, notification of obvious defects has been made in good time if sent by us within 14 days of delivery of the goods; any notification of hidden defects has been made in good time if sent by us within 14 days of their discovery. All complaints require written form. Such written form is also fulfilled by electronic data transmission, fax or e-mail. Other than that, the Supplier declares a waiver of objection in the event of a complaint not being made in due time, insofar as this is legally permissible.
8.2 The Supplier warrants that the goods delivered to us are free of material defects and defects of title, in particular that they comply with the intended use resulting from the order, that they comply with all statutory or official safety regulations applicable in Germany, recognised rules of technology, all safety standards customary in the industry as well as specifications by us regarding dimensions, quality and designs and that the required pattern approvals are available.
8.3 We are entitled to the statutory claims for defects against the Supplier, in particular we are also entitled to demand supplementary performance (repair or replacement). We are entitled to demand the kind of subsequent performance. If the time limit for supplementary performance expires without result, if supplementary performance is finally refused, if supplementary performance fails or if supplementary performance is unreasonable (the decision on this being at our sole discretion), we are entitled to withdraw from the contract or reduce the purchase price. Sections 281(2), 323(2), 478(1) BGB remain unaffected. If we have to pay reimbursement of expenses or render supplementary performance to a customer due to a defect in the delivered goods which was already present when the risk passed from the Supplier to us, we may in any case also demand reimbursement from the Supplier of all expenses borne by us.
8.4 The limitation period for claims for defects is three years. It begins to run six months after delivery of the goods. In the case of clause 8.3 GTCP, our claims against the Supplier may become time-barred at the earliest four months after the date on which we have fulfilled the customer's claims, and at the latest three years after delivery of the goods.
9. Liability and indemnification
9.1 The Supplier will be liable to us in accordance with the statutory provisions. The Supplier will then be particularly liable for all damage and expenses incurred by us directly or indirectly due to defects in the delivered goods.
9.2 If claims are asserted against us by third parties due to the defectiveness of the delivered goods and/or due to violation of statutory or official safety regulations, the Supplier will indemnify us against all claims upon first request.
9.3 Furthermore, the Supplier will indemnify and hold us harmless from and against any and all claims for infringement of third party property rights by the delivered goods.
9.4 The Supplier will reimburse us for those expenses which we are legally obliged to bear in respect of our customers and which are attributable to defects from deliveries obtained from the Supplier.
10. Product liability
10.1 If liability claims are asserted against us, the Supplier is obliged to indemnify us against these claims, including any costs for recalls, if and to the extent that the cause thereof lies within the Supplier's sphere of control and organisational structure and the Supplier itself would be liable in the external relationship.
10.2 The Supplier undertakes to maintain an extended product liability and recall costs insurance with an insured sum of at least EUR 2,500,000.00 (two million and five-hundred thousand euros) any one occurrence for personal injury/damage to property paid as a lump sum; however, our claims are not limited to this sum insured.
11. Retention of title and secrecy
11.1 The Supplier delivers the sold item free of any third party rights. We accept a reservation of title by the Supplier only if it has been expressly agreed with us outside the General Terms and Conditions.
11.2 All documents, e.g., drawings, plans, samples, models, computer records and programmes which we make available to the Supplier remain our property and must not be made accessible to third parties. Any breach of this obligation will result in liability for damages. The documents must be returned self-motivatedly as soon as they are no longer required for the performance of the delivery or service.
11.3 We reserve the right of ownership to all parts provided by us. Machining and processing will be carried out for us. Insofar as the parts provided by us are combined or mixed with third-party objects, we acquire co-ownership of these objects in the ratio of the value of our objects to the value of the third-party objects.
11.4 Tools, moulds and devices paid for by us in whole or in part are our property/co-property and are only made available to the Supplier on loan.
12. Proprietary rights and quality assurance
12.1 The Supplier assures that its deliveries and their use neither violate industrial property rights or other third-party rights nor infringes any legal or official regulations or provisions of any kind. The Supplier further assures that the goods delivered by it do not contain any CFC, PCB, asbestos or other substances classified as particularly hazardous.
12.2 When delivering machinery and equipment, the Supplier must include a hazard analysis in accordance with EN 1050 pursuant to the EU Machinery Directive 98/37/EC free of charge, provided that the machinery and equipment to be delivered fall under this EU Machinery Directive.
12.3 The Supplier is obliged to keep a so-called proof of origin of the contractual objects, i.e. the Supplier must send us both the required declarations on the origin of the contractual objects under commercial and preferential law in good time and also notify us self-motivatedly of a change of origin without delay. If necessary, the Supplier must provide evidence of its information on the origin of the contractual objects by means of an information sheet confirmed by the Supplier’s customs office. If the Supplier does not comply with this obligation, it shall be liable for all resulting damage.
12.4 The Supplier undertakes to maintain a quality management system throughout the business relationship which complies with the requirements of the standards TS16949, DIN EN ISO 9000 et seq., QS9000, etc., to monitor such system at regular intervals by means of internal audits and to initiate the necessary measures without delay in the event of any deviations being detected, so that perfect quality is ensured for all deliveries to us. We have the right to inspect the Supplier's quality assurance at any time upon prior notice. At our request, the Supplier will allow us to inspect the certification and audit reports as well as the test procedures carried out, including all test records and documents relating to the delivery.
13. Final Provisions
13.1 Unless otherwise agreed, the legal relations between us and the Supplier are governed exclusively by the statutory provisions of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
13.2 The place of jurisdiction is Augsburg.
13.3 Should individual provisions of these GTCP be or become ineffective, the effectiveness of the remaining provisions shall remain unaffected. In this case, the Contracting Parties are obliged to cooperate in the creation of provisions by which a result that comes as close as possible to the ineffective provision is achieved in a legally effective manner. The same applies in the event of a gap in the contract.
14. Translation
Only the German version of these General Terms and Conditions of Purchase is legally binding; the English translation serves information purposes only.
Bobingen, February 2020