GTC
seca gmbh & co. kg
Terms and Conditions of Sale and Delivery
1. General
The following terms and conditions shall apply with respect to all purchase contracts and contracts for work and materials, installation and repair contracts, and any other legal transactions between us and our purchasers. Conflicting provisions shall not be binding on us, even if we do not expressly object to them. Verbal arrangements and ancillary agreements shall only be valid if they are confirmed in writing by us.
2. Offer and conclusion of contract
Orders shall only be deemed to have been accepted when they have been confirmed by us in writing. The subject of the contract is solely the product sold as per the written confirmation of the order, whose properties, features and designated use correspond with those listed under that item’s product description on our websites and the operating instructions available there for download. Deviating agreements regarding these properties and/or the designated use shall only be considered valid if they have been expressly confirmed in writing by seca. The images, drawings and weight indications in our catalogues and on our website contain only approximate values, unless these are expressly identified as being precise values.
3. Delivery period
The respective specified delivery period shall commence on the date that our order confirmation is issued. If we are prevented from fulfilling our obligations due to unforeseeable circumstances, which - despite reasonable care being taken in accordance with the circumstances of the case - we could not avert and irrespective of whether these occurred at our facility or at our suppliers’ or subcontractors’ premises, (e.g. operational breakdowns, delays in the delivery of essential raw and building materials, the effects of workplace disputes or strikes, lockouts, etc.) and the delivery or performance is not rendered impossible and/or the basis of the transaction is not disrupted by this then the delivery period shall be extended by a reasonable amount not exceeding 8 weeks. If delivery or performance is impossible then we shall be released from our obligation to deliver.
4. Transfer of risk
The risk of seizure, of any other decree by the authorities and the risk of conveyance are all transferred to the purchaser upon the goods’ dispatch, both for carriage paid and CIF (cost, insurance and freight) deliveries, irrespective of whether the goods are dispatched from the place of fulfillment or from another place. The risk shall be transferred prior to the goods’ dispatch if their shipment is delayed at the request of the purchaser. The same shall apply as soon as notification of readiness to dispatch has been issued, if the shipment is delayed through no fault of our own.
5. Prices and delivery restrictions
Prices are quoted ex works/place of dispatch, excluding freight and packaging, unless other arrangements have been agreed in the written confirmation of the order. All prices are in dollars (USD) and are subject to the legally applicable sales and use taxes. The list prices valid on the date of delivery shall apply to all orders, for which fixed prices have not expressly been agreed. Orders and deliveries of individual products may only be possible in the countries that can be selected during the ordering process. The purchaser acknowledges that the products are subject to the export control, economic sanctions, and import laws, regulations and requirements of the Federal Republic of Germany and other countries. Without limiting the foregoing, purchaser agrees that it will not export, re-export, retransfer or provide service to any person, in any jurisdiction, or for any end-use that would create a licensing requirement under German export control and economic sanctions laws, regulations and requirements without first obtaining any such license.
6. Payment
The payment terms set out in our offer or in our order confirmation shall prevail for every payment. Our representatives are only entitled to accept payments if, in every single case, they submit a receipt signed by us or can produce authorization in writing. The purchaser shall not be entitled to offset counterclaims that are contested, not established by force of law and not before the courts or awaiting a judicial decision. The purchaser shall have no right of retention on account of counterclaims that are contested by us or not established by force of law. Invoices must be settled within 14 days of receipt, unless otherwise confirmed by us in writing. If payment is delayed seca shall charge the legally applicable interest on arrears. If the purchaser falls into arrears, or if circumstances come to light after the conclusion of the contract or after delivery which cast doubt on the purchaser’s creditworthiness (e.g. failure to honor bills or checks), then all outstanding payments shall become immediately due, even those for which we have accepted bills of exchange as payment. We shall be entitled, in such circumstances, to take possession of goods delivered under retention of title without thereby automatically availing ourselves of the right to withdraw from the contract. We shall furthermore be entitled to make outstanding deliveries conditional upon advance payments or securities, or to demand compensation instead of performance. If we pay in advance, e.g. in the event of a purchase on account, we may conduct a credit check as necessary in order to safeguard our legitimate interests.
7. Retention of title
The delivery items shall remain our property until the purchase price has been paid in full. We are entitled to insure delivery items against fire, water and other damage at the purchaser’s expense, unless the purchaser can demonstrate that he or she has taken out such insurance. Any conversion or processing of items, which we have delivered, shall be affected for us as manufacturer, without subjecting us to any obligation. If the purchaser processes, combines, or mixes our goods with goods that do not belong to us, then we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title to the value of the remaining goods at the time these were processed, combined, or mixed. If the purchaser acquires sole ownership of the new object after processing, combining or mixing, we both agree that the purchaser shall grant us co-ownership of the new object, proportionate to the ratio of the value of the goods subject to retention of title that were processed, combined or mixed to the value of the new object, and shall safeguard this for us free of charge. Resellers are entitled to resell goods subject to retention of title within the normal course of their business. They must, however, conclude an agreement with their customer on a retention of title to the extent drawn by us. The purchaser hereby assigns to us all receivables from his or her customers from the resale of goods subject to retention of title, irrespective of whether such goods are sold without there having been processed, combined or mixed, or after this has occurred. The receivables shall serve as security to the same extent as the goods subject to retention of title. The purchaser shall still be authorized to collect these receivables after the assignment. Our right to collect these receivables remains unaffected by this; however, we pledge not to collect these receivables, provided that the purchaser properly fulfills his or her payment obligations. We have the right to ask the purchaser to make known to us the debtors of the assigned receivables and notify the debtors of the assignment. If the goods subject to retention of title are resold together with other goods that do not belong to us then the purchaser’s receivables from his or her customers shall be considered as assigned in the amount of the delivery price agreed between us and the purchaser. The purchaser may neither pledge the delivery items nor assign them as security. The purchaser must notify us immediately of any attachment or other impairment of our security by third parties. We pledge to release the securities due to us to the extent that their value exceeds the receivables to be secured by more than 20%.
8. Representations and Warranties
Purchaser must fully comply with its respective national, state, and local laws and regulations (collectively, “Laws”) as they relate to purchaser’s performance of this Agreement, including those Laws governing the manufacture, transportation, and/or sale of products and/or the performance of services during the Term of this Agreement.
Purchaser represents and warrants that it is in compliance with all applicable anti-corruption laws, and that it has not and will not violate any federal, state, or local anti-corruption law.
Without limiting the foregoing, purchaser represents and warrants that it, and its employees, agents, and representatives have not and will not, directly or indirectly, offer, pay, give, promise, or authorize the payment of any money, gift, or anything of value to: (i) any officer, employee or person acting in an official capacity for any government department, agency or instrumentality, including state-owned or state-controlled companies, and public international organizations, as well as a political party or official thereof or candidate for political office (“Government Official”), or (ii) any person while purchaser knows or has reason to know that all or a portion of such money, gift, or thing of value will be offered, paid or given, directly or indirectly, to any Government Official, for the purpose of (1) influencing an act or decision of the Government Official in his or her official capacity, (2) inducing the Government Official to do or omit to do any act in violation of the lawful duty of such official, (3) securing an improper advantage, or (4) inducing the Government Official to use his influence to affect, or influence any act or decision of a government or instrumentality, in order to assist seca or any of its affiliates in obtaining or retaining business. Purchaser agrees that should it learn or have reason to know of any payment or transfer (or any offer or promise to pay or transfer) in connection with this Agreement or seca’s business that would violate applicable anti-corruption laws, it must immediately provide seca with written notice.
9. Material Warranty and liability
seca warrants that the products in conformance with the terms of this Agreement will not infringe a German or European patent or copyright or misappropriate a trade secret of a third party. Purchaser’s sole and exclusive remedy and the sole and exclusive obligations and liability of seca for a breach of the foregoing warranty will be for seca to provide the indemnification as provided in Section 10 below.
Any claims for material defects (defects in workmanship) presuppose that the purchaser has properly observed his obligations to examine the goods and give notice of any defects within 7 days upon detection of the defect. In the event of material defects, we shall at our discretion either remedy the defect or supply a defect-free item (supplementary performance). If, after a third attempt to provide supplementary performance, remedying the defect or supplying another item is unreasonably delayed, becomes impossible or fails, the purchaser may claim a discount, withdraw from the contract or demand compensation for damages instead of performance.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, SECA MAKES NO ADDITIONAL WARRANTIES TO PURCHASER WITH RESPECT TO THE PRODUCTS OR SERVICES, WHETHER EXPRESS OR IMPLIED, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
10. Indemnification
10.1 Each party shall defend, indemnify, and hold harmless the other party and its affiliates and their officers, directors, employees, from and against any third party claims, demands, loss, damage or expenses (including attorney’s fees and court costs) relating to or arising out of death, bodily injury or damage to real and/or tangible property caused by:(i) the indemnifying party’s negligence; or (ii) the indemnifying party’s gross negligence or willful misconduct.
10.2 seca will indemnify and defend purchaser from and against any claim, demand, action, proceeding, judgment, or liability arising out of a claim by a third party that purchaser’s use of the products in conformance with the terms of this Agreement infringes a patent, copyright, or trade secret of that third party and pay any amounts awarded in a final judgment or a settlement approved by seca. The foregoing indemnification obligation of seca is contingent upon purchaser promptly notifying seca in writing of such claim, permitting seca sole authority to control the defence or settlement of such claim, and providing seca reasonable assistance in connection therewith. If a claim of infringement under this Section occurs, or if seca determines a claim is likely to occur, seca will have the right, in its sole discretion, to either: (i) procure for purchaser the right or license to continue to use the product free of the infringement claim; or (ii) modify the product to make it non-infringing, without loss of material functionality. If either of these remedies is not reasonably available to seca, seca may, in its sole discretion, immediately terminate this Agreement and return the purchase price paid by purchaser for the infringing product. Notwithstanding the foregoing, seca shall have no obligation with respect to any claim of infringement that is based upon or arises out of (the “Excluded Claims”): (i) the use or combination of the product with any third party hardware, software, products, data or other materials, including purchaser’s own systems and data; (ii) modification or alteration of the product by anyone other than seca; or (iii) any third party components]. The provisions of this Section state purchaser’s sole and exclusive remedy and the sole and exclusive obligations and liability of seca and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the product and/or this Agreement and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
Purchaser will indemnify, defend, and hold seca harmless from any claim, demand, action, proceeding, judgment, or liability from a third-party claim arising out of an Excluded Claim. Purchaser’s indemnification obligation is contingent upon seca promptly notifying purchaser in writing of such claim, permitting purchaser sole authority to control the defence or settlement of such claim, and providing purchasers reasonable assistance in connection therewith.
11. Limitation of Liability and Exclusion of Certain Damages
The contracting parties undertake to treat as strictly confidential all legal transactions concluded and all discussions held in this connection, as well as any information, findings, or documents arising from the cooperation, regardless of their form, and to use said information, findings or documents solely for the purpose of the cooperation regulated in this contract.
11.1 To the maximum extent permitted by applicable law, except for:
(i) either party’s infringement or violation of the other party’s intellectual property rights for which neither party’s liability for direct damages under this Section 11 will be limited,
(ii) either party’s liability for death or personal injury caused by such party’s gross negligence,
(iii) the indemnification obligations of either party (excluding indemnification obligations arising under Section 10.1 which will be subject to the limitations described in this Section 11.1), or
(iv) seca’s liability for any claim arising under or in connection with its obligations under Section 9 (“Material Warranties”), which will not exceed the purchase price paid or owing for the Products or Services giving rise to the cause of action.
Neither party’s liability (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) in any manner related to this Agreement or a Purchase Order, for any and all claims, regardless of the form of action, will not in the aggregate exceed the purchase price paid or owing for the products or services giving rise to the cause of action in the twelve months preceding the cause of action.
11.2 Exclusion of Certain Damages.
To the maximum extent permitted by applicable law except for:
(i) Either party’s willful misconduct or grossly negligent acts or omissions resulting in infringement or violation of the other party’s intellectual property rights,
(ii) either party’s liability for death or personal injury caused by such party’s gross negligence; or
(iii) the indemnification obligations of either party, (excluding indemnification obligations arising under Section 10.1 which will be also subject to the limitations described in this Section 11.2)
Neither party shall have liability for any amounts representing loss of business, profits, or anticipated savings or indirect, consequential, special, incidental, or punitive damages even if advised of their possible existence.
The purchaser’s claims shall expire one year after the delivery of the item purchased to the purchaser.
12. Rights of use, third-party rights
In order for us or our service providers to be able to produce customized products as ordered, the purchaser hereby grants us the right to make use of the transmitted data exclusively within the framework of the ordered production of customized products as well as to grant third parties non-exclusive rights of use to them. Furthermore, the purchaser shall retain all rights to the data transmitted by him or her.
By transmitting the data for the production of customized products the purchaser declares to us that he is the holder of all of the rights required for this (copyrights, ancillary copyrights, and personal rights).
Consequences of cancellation
If you cancel this contract, we must reimburse you for all payments that we have received from you, including delivery charges (except for any additional costs resulting from your choosing a different method of delivery from the cheapest standard delivery offered by us), without delay and at the latest within fourteen days of the date on which we received notification of your cancellation of this contract. For this refund, we will use the same means of payment that you used for the original transaction unless expressly agreed otherwise with you; in no event will you be charged for this refund.
We may refuse the refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
You must return or hand over the goods to us without undue delay and in any case within fourteen days at the latest of the date on which you inform us of the cancellation of this contract. The deadline shall be deemed to have been met if you dispatch the goods before the end of the fourteen-day period. The direct costs of returning goods that can be sent by parcel post shall be borne by you. The direct costs of returning goods that cannot be sent by parcel post shall also be borne by you. The costs amount to EUR 79 (plus VAT) if our pick-up service is used. You must only pay for any loss in value of the goods if this loss in value is attributable to the goods having been handled in a way that was unnecessary in order to test their quality, properties and functions.
13. Installation and calibration
All costs for installing our products at the point of destination and for verifying or calibrating them as necessary shall be borne by the purchaser if no differing agreements regarding this have been made and included in our written order confirmation. The purchaser shall be responsible for unloading the delivery items and/or their parts, even if we are obliged to deliver these carriages paid or free to the door.
14. Place of performance, Choice of Law and Jurisdiction
The place of performance shall be our Head Office at 13601 Benson Avenue, Chino, CA 91710, USA, unless otherwise agreed.
All matters pertaining to this GTC and any disputes associated therewith will be governed by the laws of the California, United States of America, without regard to conflict of law principles. The courts of Los Angeles, California, United States of America, shall have exclusive jurisdiction over all disputes relating to this Agreement.
15. Change of the General Terms & Conditions (GTC)
We have the right at any time to make any changes to the amendments of these GTC that do not lead to a material change of the structure of the contract or affect it. We furthermore have the right to adapt and/or amend the GTC if this is necessary in order to eliminate difficulties in the execution of the contract with purchasers due to regulatory gaps arising after the conclusion of the contact. This can be the case if one or more provisions of these GTC are declared invalid under case law or a change in legislation leads to the invalidity of one or more provisions of these GTC, for instance. The changed terms and conditions will be sent to you by post or e-mail at least six weeks before they take effect. The changes shall be considered to be approved if you do not object to them in text form. This objection must be received by us within six weeks after you receive the notice of the changed terms and conditions. We will make special reference to the option to object to the changes and to the significance of the six-week rejection period in our change notice to the changed terms and conditions. If you exercise your right to object to the changes then the change request shall be considered rejected. The contract shall then continue in force without the proposed changes.
16. Other
If individual provisions of these General Terms and Conditions should be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected by this. The invalid or unenforceable provision is to be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contractual partners with the invalid or unenforceable provision. The provisions above apply accordingly in the event that there found to be gaps in the provisions.
Hamburg, April 2022