1. For the sales and other deliveries made by SE-Elektronic GmbH (hereinafter: SE) the following terms and conditions shall apply exclusively.
2. The contract between SE and the customer and any amendments, subsidiary agreements or other clarifications must be in text form unless otherwise agreed in these terms and conditions.
3. Any conflicting general terms and conditions of the customer shall not apply to the contractual relationship and are hereby expressly rejected by SE.
1. The prices are quoted ex works, not packed, plus the respectively applicable value added tax.
2. Payments are due strictly net within 30 days of receipt of invoice. Contract fulfilment shall occur upon the credit entry being made in the account of SE. The invoice shall be deemed received within 3 days of dispatch, unless the customer provides evidence of a different date of receipt.
3. Payments must be made free of transaction charges to SE’s designated account.
4. The customer may only set off against claims that are undisputed or legally certified.
1. The deliverables (conditional commodity) shall remain the property of SE until all its claims have been met that are due to the same against the customer from the business relationship. Inasmuch as the value of all security interests that are due to SE exceeds the amount of all secured claims by more than 10%, SE will surrender a corresponding part of the security interests at the request of the customer.
2. If the conditional commodity, through connection, becomes part of a new object, which does not belong to the customer, it is agreed that the customer shall transfer joint ownership of the new object to SE and store it for SE free of charge. The ownership share of SE is determined by the ratio of the value of the conditional commodity to the value of the new object.
3. Whilst the retention of title exists, the customer is prohibited from any pledging or assignment as security, and any resale is permitted only in the course of their ordinary course of business. He shall now already assign to SE all claims against its purchasers arising from the resale of the conditional commodity. SE shall accept the assignment. If the conditional commodity is sold together with other commodities that do not belong to SE, the customer shall transfer to SE the share of the claim arising from the resale that corresponds to the invoice amount of the conditional commodity. If conditional commodities which are only partially owned by SE are resold, the share of the claim arising from the resale assigned to SE shall be determined in accordance with the ownership share of SE.
4. In the event of distraints, seizures or other dispositions or interventions by any third parties, the customer shall notify SE without delay and immediately inform the pledging third party about the retention of title.
1. In order to comply with delivery periods, all documents to be supplied by the customer and all necessary approvals and releases, in particular those relating to plans, shall have to be received on time, and the customer must comply with all agreed terms of payment and other obligations. If these preconditions are not met on time, the relevant periods shall be extended commensurately; this shall not apply if SE is responsible for the delay.
2. In the event of force majeure, strikes or other disruptions to SE’s own business or its suppliers’ businesses, SE shall be entitled to extend the delivery period by the duration of the interference.
3. If SE is in default, the customer may demand for each full week of any such delay, if he substantiates that he suffered any loss or damage as a result, damages of 0.5% respectively but in total no more than a maximum of 5% of the price for that part of the deliveries which, due to the delay, cannot be used on time or as specified in the contract.
4. If, at the request of the customer, shipping or delivery will be delayed by more than a month after readiness for shipping has been displayed, the customer may be charged a storage fee of 0.5% of the price of the deliverables for each month that has commenced, but in total a maximum of 5% only. The proof of higher or lower storage remains the right of the contract parties.
5. Partial deliveries are permissible inasmuch as they are reasonable for the customer.
1. The customer shall acquire rights of use to the software (business software, firmware, software tools, configuration software, hereinafter referred to jointly as (“Software”), the corresponding documentation and other documents in accordance with the Software Licensing Agreement. He may use the software for the contractually agreed purposes on the agreed devices. All other software rights remain with SE. The customer undertakes to accept a new program update, which shall be provided free of charge, provided the contractually agreed range of functions remains unchanged and any adaptation or transition does not involve an unacceptable amount of work. Otherwise, SE shall be freed from providing any warranty, unless the services can also be provided for the old version at no additional expense.
2. The software, the documentation and all other documents and data carrier material are protected by copyright. The customer must not make accessible or transfer to third parties, in whole or in part, the software (including updates) or the associated documentation and other documents that it receives as part of the contract without the prior written consent of SE. The customer may create the required number of backup copies for secure operation in a machine-readable format. The SE copyright note must be added to these copies and they must be labelled as backup copies.
3. The customer is not permitted to:
a. Modify, analyse or combine the software, in whole or in part, integrate it into other software or reverse engineer the various production stages of the software; this shall apply in particular to retranslation of the program code into other code forms (decompiling) and disassembly. If the customer requires interface information to facilitate interoperability with other software, he shall be entitled to take action in accordance with the above clause to enable its own personal use, if SE is not prepared or not able to provide the required information, despite written request. If the customer takes action in accordance with the above clause, he and/or his employees may use the information obtained exclusively for internal purposes. Any other use, in particular commercial use or transfer to third parties, is inadmissible.
b. Reproduce the written material.
SE-ELEKTRONIC GMBH GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Date 2017-08-09
c. Copy or otherwise reproduce the software, in whole or in part, in its original or a modified format or when mixed with other software or included in other software (this excludes the creation of copies of the data processing program for the intended use and for data backup).
d. Change or remove labels and copyright marks on the software and the data carriers.
4. Use of the software is only permitted in conjunction with the purchased hardware. The software shall only be transferred to third parties permanently if the software and all of the documentation is transferred in full to the third party (i.e. documented transfer of all copies and permanent deletion of all affected files by the customer) and if the third party confirms its agreement with these General Terms and Conditions to SE. The customer undertakes to inform SE without delay of any transfer of the software and state the name and address of the third party in writing. On termination of the transfer agreement the original data carriers provided to the customer and all backup copies he holds must be returned and saved software files must be deleted. This excludes system backups from which the software cannot be started directly and from which the separate deletion of the transferred program files would be impossible or disproportionately difficult.
5. The customer itself must make appropriate provisions for an isolated incident where the software or the system, in whole or in part, does not work properly, e.g., with daily data backups and regular inspection of the work results.
6. Inasmuch as nothing has been agreed to the contrary, SE has a duty to perform the delivery only in the country of the delivery location free from the industrial and intellectual copyrights of any third parties and other absolute rights (hereinafter designated as: Property rights). Inasmuch as a third party raises justified claims against the customer due to property rights being injured by deliveries performed by SE and utilised by the customer in compliance with the contract, SE shall be liable to the customer as follows:
a. At its own discretion and at its own cost SE shall either obtain a right of use for the performances affected, modify the same such that the property right will not be injured, or replace the same. If this is not possible for SE in accordance with acceptable terms, the customer shall be entitled to the statutory rights of rescission or abatement.
b. The obligation of the supplier to pay damages is governed by Clause VI.
c. The above-mentioned obligations by SE only exist provided that the customer informs SE immediately and in writing about any such claims asserted by the third party, does not recognise any such injury and SE retains the right to all defence measures and settlement negotiations. If the customer ceases utilising the deliverable for reasons of damage reduction or other important reasons, he is obliged to inform the third party that any such cessation of use does not signify any acceptance that there has been an injury of property rights.
7. Any claims by the customer are excluded to the extent that he is responsible for the injury of property rights.
8. Any claims by the customer are also excluded inasmuch as the injury of property rights is caused by special customer requirements, by an application that could not be foreseen by SE or by the circumstance that the delivery is modified by the customer or is used together with products not supplied by SE.
9. In the event of any injuries of property rights, the customer claims governed by Clause VI shall apply accordingly. If there are any other defects in title, the provisions of Clause VI shall apply accordingly.
10. With regard to cost estimates, drawings and other documents (hereinafter designated as: Documents) SE reserves all its rights of exploitation in terms of property and copyright – without any restrictions. These documents may only be made accessible to third parties following express prior approval by SE, and must be returned immediately whenever requested, if the order is not granted to SE. Sentences 1 and 2 apply correspondingly with regard to customer documents; but these may be made accessible to third parties that SE has permissibly transferred deliveries to.
1. The statutory rights of the customer in accordance with Section 437 No. 1 of the BGB [German Civil Code] shall apply in accordance with the following provision: Insofar as deliverables are fully or partially unusable, SE shall, by its own choice, made at its reasonable discretion, remedy the defects free of charge or supply non-defective deliverables free of charge. SE shall not be liable for damage due to natural wear and tear that is commensurate with the duration of use.
2. SE must be notified of any defects without delay once they have been identified. This does not affect the duties of the customer in accordance with Sections 377 and 378 of the HGB [German Commercial Code]. The rejected deliverables must be kept and made available to SE.
3. For any software repair the customer shall provide, on request if necessary, the information required for fault diagnosis and elimination (in as much detail as possible and in a reproducible format for identified defects), and in the event of repair by long-distance data transmission or telephone, he shall provide SE with a trained, competent employee who will collaborate on the repair. In the event of rectification on site, we must be given unobstructed access to the defective goods and, if necessary, other work with the software must be stopped.
4. All other statutory rights of the customer shall apply in accordance with the following provisions:
a. Claims for damages, regardless of the legal basis, are excluded unless SE is accused of malicious intent or gross negligence or SE is liable for malicious intent or gross negligence of its legal representatives or vicarious agents.
b. The above limitation of liability shall not apply if the claim for damages results from the breach of significant contractual obligations. If SE negligently breaches an essential contractual obligation, the obligation to pay compensation shall be limited to the compensation of damage that is typical for the type of contract and foreseeable at the time of the conclusion of contract. Essential contractual obligations are those obligations which must be fulfilled in order for proper execution of the contract to take place, and the observance of which the contractual partner can regularly rely on.
c. Liability in the event of damage resulting from death, physical injury or damage to health, liability in the event of warranties and liability in accordance with the statutory product liability regulations remain unaffected.
d. The customer undertakes to notify SE without delay in writing of damage and loss for which SE must pay, or to have such damage and loss recorded by SE.
5. Unless otherwise specified in these General Terms and Conditions, SE does not assume any liability.
6. The costs of return will only be reimbursed by SE if this takes place at the request of SE.
7. The customer is responsible for providing evidence that the conditions of the claims asserted by him have arisen due to a breach of obligation. If it becomes apparent that a claim for subsequent fulfilment does not exist (e.g. user error, improper handling of the goods, lack of a defect), the customer shall reimburse all costs incurred in relation to the inspection of the goods and the subsequent fulfilment, unless it is not responsible for the claim against SE.
8. Claims for defects shall expire 12 months after supply of the deliverable, unless Clauses VI.4a or b apply. In these cases the statutory limitation period shall apply.
1. If the customer is a businessman or equivalent, the sole place of jurisdiction is Göppingen for all disputes arising directly or indirectly from the contract relationship. However, SE shall also be entitled to take legal action at the domicile of the customer.
2. German substantive law shall apply to the legal relationships in connection with this contract subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. If a provision is or becomes ineffective, this shall not affect the validity of the remaining provisions. In such a case the customer and SE undertake to replace the ineffective provision with an effective provision that comes as close as possible to the commercial purpose of the ineffective provision.
