GENERAL TERMS AND CONDITIONS SEALS-SHOP GMBH
Schockenriedstr. 1, 70565 Stuttgart, Germany (as of 02/2018)
- These General Terms and Conditions apply only where the Purchaser is an entrepreneur according to Sec. 14 of the BGB, (Bürgerliches Gesetzbuch, hereinafter referred to as: "German Civil Code"), a legal person under public law, or a special fund under public law.
- Quotes, sales, and deliveries by SEALS-SHOP GMBH ("Seals-Shop") are made exclusively on the basis of the most recent version of the General Terms and Conditions set out below. These General Terms and Conditions can be viewed online at any time at /eu/en/terms-and-conditions in a reproducible form that can be saved and printed out by the Purchaser.
- The Purchaser's terms and conditions of purchase are herewith expressly rejected. This applies in all situations, for example, even where Seals-Shop makes delivery to the Purchaser in full knowledge of the Purchaser's terms and conditions without expressing any reservations or without expressly rejecting Purchaser's terms and conditions of purchase.
- QUOTE, CONTRACT, SCOPE OF DELIVERY
- Quotes provided by Seals-Shop are non-binding and must be in writing to be valid. Unless otherwise agreed by the parties, a contract is not formed until Seals-Shop has confirmed the order in writing, however no later than when Seals-Shop makes delivery. No verbal collateral contracts exist at the time the contract is formed. Seals-Shop shall provide the Purchaser with an immediate automatic confirmation that the order has been received. Such confirmation does not constitute an order confirmation in the sense of this clause.
- The scope of delivery owed by Seals-Shop is always determined by the written order confirmation.
- Seals-Shop retains the property rights and copyrights in all documentation from Seals-Shop, e.g., specifications, drawings, notes, instructions, technical bulletins, technical data, or other documents or information concerning the goods delivered or services provided by Seals-Shop, both in paper form as well as electronic form; such documentation may not be made available to third parties without the express written consent of Seals-Shop in advance.
The prices valid at the time the contract is formed shall apply. These prices are in Euros, they are DAP (Incoterms 2010) and do not include shipping and packaging costs, customs fees, import duties, or the value-added tax applicable by law in the particular situation.
- TOOLS, MOLDS AND MODELS
All tools, molds, dies, models and testing equipment remain the property of Seals-Shop irrespective of whether or not the Purchaser has made payment toward the costs to manufacture them. After the completion of the particular order, such items will remain in the possession of Seals-Shop and will be held in storage for future orders for a reasonable period of time to be determined by Seals-Shop without any obligation on the part of Seals-Shop. Seals-Shop retains industrial property rights and copyrights that may exist in such tools or in their underlying materials, e.g., drawings. Where such rights exist, the production of replicas of the items specified above is prohibited
- PAYMENT TERMS
- Purchaser may pay the purchase price via invoice, credit card or PayPal. There is a credit limit of EUR 500 if customer selects payment via invoice. Customer may request an increase of the credit limit at Seals-Shop. However, there is no claim for such increase.
- In the event of payment via invoice, such invoices has to be paid within a period of 30 days after the receipt of the invoice. Invoices will be sent to the Purchaser only in electronic form.
- Where the Purchaser is in default of payment, Seals-Shop shall be entitled, while retaining any further rights in this regard, to charge late payment interest pursuant to Sec. 288 (2) of the German Civil Code in the amount of 9 percentage points above the base rate and an additional flat fee of EUR 40 for the payment reminder.
- OFFSETTING AND WITHHOLDING PAYMENT
- Offsetting with counterclaims is prohibited except where such are undisputed or subject of a final and conclusive judgement of a competent court.
- Withholding payments owed due to any claims made by the Purchaser against Seals-Shop is prohibited except where the right to withhold payment is based on claims made by the Purchaser arising from the same con¬tractual relationship with Seals-Shop.
- DELIVERY PERIODS, SCOPE OF DELIVERY AND PRODUCT AVAILABILITY
- The delivery period starts on the date the order confirmation is issued. Once the Purchaser has been notified that the order is ready to be shipped, the delivery period is considered to have been adhered to even if the shipment is delayed or rendered impossible provided such occurs through no fault of Seals-Shop.
- In case selected products are temporarily not available Seals-Shop will inform Purchaser about such fact including the estimated delivery time on the product page as well as in the order confirmation.
- For reasons of complexity in conversion between different measurement units of the ordered product (e.g. weight units to quantity units) Seals-Shop reserves the right to deliver a quantity that exceeds or falls short of the quantity ordered, provided this is not unreasonable for the Purchaser and that the difference in quantity falls within the usual commercial quantity tolerance. The basis for the invoice issued shall be the actual quantity delivered. Seals-Shop shall be entitled to make partial deliveries in such scope as is not unreasonable for the Purchaser.
- SHIPMENT AND TRANSFER OF RISK
- Orders are shipped DAP (Incoterms 2010) and the charges specified for the products ordered do not include shipping and packaging, which separate charges are as agreed by the parties during the purchase process. Unless otherwise specified by the Purchaser, Seals-Shop selects the manner of shipping.
- Where shipment has been delayed at the request of the Purchaser, Seals-Shop is entitled, after setting a reasonable deadline for acceptance of delivery and after such deadline has passed without result, to dispose of the items to be delivered in another manner and to deliver the order to the Purchaser by a reasonably extended deadline.
- DEFAULT AND IMPOSSIBILITY OF PERFORMANCE
- The Purchaser's right of rescission in the event of defects notwithstanding (see no. 13 of these General Terms and Conditions), in the event of impossibility of performance or default by Seals-Shop, the Purchaser may rescind the contract only where there is a breach of a duty under the contract for which Seals-Shop is responsible.
- Additionally, in order to rescind or receive damages in lieu of performance in the event of default, the Purchaser must have first set a reasonable deadline for Seals-Shop in writing of at least four (4) weeks to perform as required per the terms of the contract, and must have specified clearly that in the event of failure to meet this deadline, the Purchaser would rescind the contract and/or assert a claim for damages. Once this deadline has passed, upon request by Seals-Shop the Purchaser must state whether it will continue to insist on deli¬very, assert a claim for damages, or rescind the contract.
- The only situation in which the Purchaser is not required to set a time limit as described in 9.2 of these General Terms and Conditions is whe¬re Seals-Shop sincerely and decisively refuses to perform as required per the terms of the contract or there are special circumstances that, given the interests of both parties, justify immediate rescission.
- The Purchaser may not rescind the contract in the event of an immaterial breach of a duty under the contract by Seals-Shop. Ultimately, rescission is barred where the Purchaser is solely or primarily responsible for the circumstances that would otherwise justify rescission, or where a circumstance beyond Seals-Shop's control arises during the Purchaser's delay in accepting delivery.
- No. 17 of these General Terms and Conditions applies with respect to damage claims.
- FORCE MAJEURE
The indicated delivery period, notwithstanding it remains an approximation in accordance with no. 7.1, is anticipated as being reasonably achievable except in the event of unforeseeable, exceptional circumstances that Seals-Shop has not been able to avert despite exercising reasonable care for the circumstances in the particular situation, irrespective of whether such circumstances arose at Seals-Shop facilities or those of its upstream suppliers. Among others, such exceptional circumstances include events of force majeure, war, civil unrest, disruptions in operations, strike, lockout, lack of availability of specialists, government sanctions and interventions, delays in the supply of essential raw materials or energy supply difficulties, as well as other unforeseeable impediments that are beyond the control or influence of Seals-Shop.
Where such circumstances result in delays but do not render delivery or performance impossible, the indicated delivery period shall be extended by a reasonable amount of time. Seals-Shop is also not responsible for the circumstances described above where such arise during a delay that had already occurred. Seals-Shop shall inform the Purchaser within three (3) work days of the date on which an impediment of the type described above starts. Where the impediment lasts for more than 60 consecu¬tive days, save where due to the fault of Seals-Shop, Seals-Shop shall be released from the obligation to deliver without this giving rise to claims by the Purchaser against Seals-Shop
- RETENTION OF TITLE
- All delivered items remain the property of Seals-Shop until such time as payment has been made in full for all Seals-Shop accounts receivable existing at the time the contract was formed. Where Seals-Shop has accepted checks or bills of exchange in the interest of settling the Purchaser's account, all delivered items shall remain the property of Seals-Shop until the full amount of such checks or bills of exchange has been cleared. In case of a current account the reservation of title shall be deemed a collateral for the balance of account in Seals-Shop's favour and if a balance is struck and confirmed by the Purchaser, this shall not affect the retention of title.
- The Purchaser is entitled to adapt and process delivered items in connection with its usual business operations. The Purchaser undertakes any such adaptation and processing of delivered items on behalf of Seals-Shop without this creating obligations on the part of Seals-Shop. In the event that delivered items are processed, combined with, incorporated into, or commingled with other goods not sup¬plied by Seals-Shop, Seals-Shop shall have partial ownership of the newly created item in the same proportion the invoice value of the delivered items bears to the rest of the processed goods at the time the items are processed, combined, incorporated, or commingled. Where the Purchaser acquires sole ownership of the newly created item by law, at this time the Purchaser hereby grants Seals-Shop partial ownership of the newly created item in the proportion described above and shall hold such item in safekeeping for Seals-Shop free of charge.
- In the event the Purchaser sells the delivered item or the item subject to shared ownership as described in no. 11.2 of these General Terms and Conditions either by itself or together with goods that do not be¬long to Seals-Shop, at this time the Purchaser hereby assigns to Seals-Shop the receivables resulting from the resale in the amount of the delivered items together with all related rights. Seals-Shop hereby accepts this assignment. Where the item sold is partially owned by Seals-Shop, the assignment of the receivable shall extend to a sum equivalent to the value of the percentage of ownership held by Seals-Shop. Seals-Shop hereby grants the Purchaser the authority – which can be revoked – to collect receivables assigned to Seals-Shop. Should the Purchaser default on its obligations to Seals-Shop, the Purchaser must name to Seals-Shop all of the parties that owe the receivables assigned. Furthermore, the Purchaser must report the assignment to such debtors. In such case, Seals-Shop is also entitled to disclose the assignment to the respective debtors itself and to exercise its right to collect on the receivables.
- Where the Purchaser's actions are not in compliance with the terms of the contract, in particular where the Purchaser is in default with regard to its payment obligations or breaches a duty of care with regard to the handling of the delivered item, Seals-Shop shall be entitled, after sending a warning and setting a deadline, to repossess the delivered item after having rescinded the contract. In such case, the Purchaser is required to return the delivered item.
- The Purchaser is entitled and authorized to resell the delivered item only in the usual and ordinary course of business and only on condition that receivables assigned to Seals-Shop pursuant to no. 11.3 of these General Terms and Conditions are also actually transferred to Seals-Shop. The Purchaser is not entitled to dispose of the items delivered in any other manner. In particular, it may not pledge the item delivered or transfer title for purposes of collateral.
- The Purchaser must immediately notify Seals-Shop of any measures undertaken by third parties to enforce judgments (seizure) with respect to the delivered item subject to retention of title or the receivables assigned to Seals-Shop and provide any documentation necessary to object to such measures.
- Where the Purchaser's principle place of business is not in Germany, it shall take every action set out by law or elsewhere as is necessary to perfect Seals-Shop's retention of title as provided in these General Terms and Conditions in the country in which delivery is made.
- Seals-Shop shall release securities when the value of all of the securities granted to Seals-Shop is equivalent to or exceeds 115% of the estimated value of the secured receivables pursuant to Sec. 237 of the German Civil Code.
- NOTICE OF DEFECTS
- Obvious defects, i.e., defects in title and material defects, overdelivery, underdelivery, and incorrect delivery, as well as the lack of properties or durability of the delivered item or service as may have been guaranteed by Seals-Shop (defects) are to be reported in writing immediately, however no later than 14 days after receipt of the goods; in the case of defects that are unable to be detected during the usual inspection at receipt, these are likewise to be reported in writing immediately, however no later than 7 days after they have been detected.
- Once the goods have been processed, complaints regarding obvious defects are barred. Defects in part of a delivery cannot result in a com¬plaint concerning the entire delivery except where it is unreasonable for the Purchaser to accept the part of the delivery that has no defects.
- The notice must indicate the details of the defect that is being reported. The defect should be described as precisely as possible, e.g., the type of defect or malfunction.
- Where defects or other complaints are not reported within the time limits pursuant to no. 12.1 above of these General Terms and Condi¬tions, any and all warranty claims against Seals-Shop shall be barred.
- DEFECT CLAIMS
- The terms of the contract define what constitutes the absence of defects in the delivery as well as the quality and workmanship of the delivered items. Any indication of technical standards in the contract serves as a specification of services and shall not constitute a guarantee of properties. Public comments or advertising can only be construed as a contractual specification of properties of the goods insofar as such properties have not already been stipulated in the contract. Where Seals-Shop issues installation recommendations, the Purchaser must take into consideration that the function of the products supplied by Seals-Shop depends not only on their particular features but first and foremost on how the products supplied interact with the other components of the respective sealing system. Where Seals-Shop has not expressly entered into a contractual agreement to do so, the selection and testing of the suitability of the products supplied by Seals-Shop for a sealing system are the Purchaser's responsibility, as is the testing of the interaction of the Seals-Shop products with the other components of the sealing system.
- Seals-Shop may have provided the Purchaser with the functions of online tools in relation to selection of Seals-Shop products. Based on the parameters provided by the Purchaser, the online tools suggest the respective Seals-Shop products from the current standard catalogue. These online tools are only intended to support the Purchaser in its decision but does not replace application-specific advice and its use is without prejudice to the term of no 13.1.
- Improperly performed attempts by the Purchaser or a third party to remedy defects and improper storage – especially storage that contradicts the instructions given by Seals-Shop – shall result in the Purchaser losing all rights to assert claims for defects insofar as such actions have increased the expense for Seals-Shop of remedying the particular improperly handled defect or caused further defects or damage, unless the Purchaser can provide sufficient evidence that its attempts to remedy defects or improper storage did not lead to such damages.
- Where a notice of defects is legitimate, Seals-Shop shall either remedy the defect (repair) or provide a replacement, at its discretion, provided the Purchaser proves that the defect had already existed at the time of transfer of risk. Purchaser is obliged to return the defective item(s) immediately but no later than 7 days after Seals-Shop has been notified of the defective product in accordance with sec. 12.1 using a Seals-Shop return form available from the returns section of www.seals-shop.com. The timely dispatch shall be sufficient to observe the deadline. Returns without a Seals-Shop return form will not be accepted. If the returned item(s) are refused (determined not to be defective, or damaged by human error on Purchasers site), Purchaser - will not be compensated for the return cost and no credit or replacement for the item(s) will be issued and the item(s) will not be sent back to Purchaser.
- Where the cure is unsuccessful, i.e., Seals-Shop allows a reasonable deadline set for Seals-Shop to provide a cure to pass, Seals-Shop has made two attempts at repair or has provided one replacement and this has not remedied the defect reported, or in the event that Seals-Shop unjustifiably refuses or unreasonably delays making repairs or providing a replacement, or when repair is not acceptable for the Purchaser for other reasons, and where the conditions set out in Sec. 281 (2) or Sec. 323 (2) of the German Civil Code have been met, the Purchaser can, in lieu of repair or re-delivery, demand the remedy provided for by law of rescission and of reducing payment, and may assert claims for damages or reim-bursement of expenses, the latter pursuant to no. 17 of these General Terms and Conditions.
- Rights of recovery as set out in Secs. 478 and 479 of the German Civil Code shall exist only insofar as the demands made by the Purchaser's customer - being a consumer according to Sec. 13 German Civil Code - were legitimate and only to the extent provided by law, however not for arrangements made to show good will, except where such have been coordinated with Seals-Shop. For rights of recovery to be available, the party entitled to recovery must have satisfied its own duties, in particular any reporting obligations. Accordingly, the Purchaser must immediately and comprehensively notify Seals-Shop of any report of defects by such a customer that relates to the delivered items. Where the Purchaser fails to satisfy this obligation, it shall not have a right to assert any defect claims against Seals-Shop or any claim for reimbursement of expenses pursuant to See. 478 of the German Civil Code.
- The Purchaser can assert damages claims against Seals-Shop arising from purchase by third parties of goods that require replacement or from the involvement of third parties for the completion of the repair via claims for recovery pursuant to Sec. 478 of the German Civil Code only where it had previously reported the defect in accordance with no. 13.7 of these General Terms and Conditions and had set a reasonable grace period for cure by Seals-Shop, and such period expired without result.
- In the event of claims for recovery pursuant to Sec. 478 of the German Civil Code, Seals-Shop shall then bear the burden of proof only vis-à-vis the Purchaser for a period of six (6) months, starting from the date the goods were turned over to the consumer, that the defect did not already exist at the time of transfer of risk to the Purchaser, provided no more than 12 months passed between this transfer of risk and the resale to the consumer.
- PERIOD OF LIMITATION FOR DEFECT CLAIMS
The period of limitation for all defect claims is 12 months, starting from the date the delivered items change hands. The statute of limitations as provided by law shall apply to claims for damages based on injury of life, body or health caused by a defect for which Seals-Shop is responsible, where the defect stems from a deliberate breach of a duty under the contract by Seals-Shop or one amounting to gross negligence, in the event of fraudulent concealment of a defect or defects in title within the meaning of Sec. 438 (1) no. 1 a) of the German Civil Code, and for warranties (Sec. 444 of the same). The same applies with respect to claims pursuant to the German Product Liability Act (Produkthaftungsgesetz). A period of limitation of three (3) months applies with respect to any replacements and attempts at repair, starting from the date of delivery and/or performance, however such period shall last at least until the period of limitation for the original delivery or service has expired.
- The inter-active online discussion function (“Online Discussion”) is provided to support the Purchaser and potential purchasers of Seals-Shop products in respect of their decision making regarding product selection, use, maintenance and support.
- Seals-Shop intends to make Online Discussion available to its users during the hours of 8:00 to 17:00 CET. However, Seals-Shop makes no guarantee regarding such availability. Furthermore, Seals-Shop intends to support users interested in Seals-Shop products or their use but does not guarantee it can or will respond to any communication using Online Discussion.
- Installation suggestions, recommendations and other statements regarding Seals-Shop products will be based on the parameters and specific conditions stated by the user. Their application always requires practical trials within the user's operations and applications. Because of the many different ways in which Seals-Shop products can be used, Seals-Shop does not provide any guarantee for the correctness of suggestions or recommendations in any particular instance.
- Installation and other technical suggestions and recommendations remain the intellectual property of Seals-Shop and are not to be disclosed to third parties.
- Any quotes provided as part of Online Discussion communications are non-binding. Online Discussion is made available without charge to users. Seals-Shop shall take reasonable care when responding to Online Discussion communications. However, subject to the provisions set forth in no. 17 of these General Terms and Conditions, Seals-Shop excludes all other warranties and representations.
- MONEY BACK WARRANTY
The Purchaser may return at their own cost any new and unopened items in their original packaging with the original label intact within 30 days of delivery. The timely dispatch shall be sufficient to observe the deadline. Once Purchaser’s item(s) are received and inspected by Seals-Shop’s fulfilment center, Purchaser’s credit for the returned item(s) will be processed and will be applied to the Purchaser’s account. Credit Card and PayPal payments will be refunded to the respective Credit Card or PayPal Account. If the returned item(s) are refused (e.g. returned after 30 days of delivery, opened/used, damaged or contaminated items, or wrong quantities), no credit for the returned item(s) or replacement will be issued and the returned item(s) will not be sent back to Purchaser. Items must be returned with a Seals-Shop return form available from the returns section of www.seals-shop.com. Returns without a Seals-Shop return form will not be accepted.
- The Purchaser can assert claims for damages irrespective of the legal grounds insofar as such are based on deliberate breach of contract or breach amounting to gross negligence or such breach of duty during contract negotiations by Seals-Shop, its legal representatives, or parties assisting it in performance. This also applies with respect to recommenda¬tions given by Seals-Shop regarding specific materials and types of materials.
- In the event of the breach of so-called material duties, i.e.
a)Substantial breaches of duties under the contract that jeopardize the achievement of the purpose of the contract, or
b)Breach of duties where the satisfaction of such is essential for proper performance of the contract to occur at all and compliance with which the Purchaser should be able to trust in as a matter of course ("material duties"), Seals-Shop shall also be liable for slight negligence, however this shall be limited to damages for typical and foreseeable loss arising from the Purchaser's interest in performance identifiable by Seals-Shop upon execution of the contract.
- Unless otherwise provided in these terms, all claims by the Purchaser for damages for losses of any type, even claims for reimbursement of expenses and consequential losses such as production stoppage, are barred. This applies in particular with respect to claims due to any breaches of duties arising from the contractual relationship and from tortious acts. The exclusion of liability also applies where Seals-Shop has assi¬gned employees or other parties to assist in performance.
- This exclusion of liability does not apply with respect to claims based on the German Product Liability Act or where Seals-Shop provided a warranty for properties of the delivered item or assumed the procurement risk, or in the event that Seals-Shop fraudulently concealed a defect in the delivered item. Moreover, the exclusion of liability does not apply with respect to claims for damages based on injury of life, body or health.
- Where claims are made against Seals-Shop by third parties based on product liability or the violation of official safety regulations or other legal grounds pursuant to domestic or foreign law, Seals-Shop can demand that the Purchaser reimburses Seals-Shop for the expense incurred under the provisions of liability law applied to Seals-Shop insofar as the Purchaser failed when entering into the contract to provide information or complete information to Seals-Shop concerning the subsequent use of the items delivered by Seals-Shop and insofar as the failure to provide such information gave rise to the loss, except where the Purchaser proves it was not responsible for the loss and the omission of notification.
- INSTALLATION SUGGESTION
Installation suggestions and recommendations regarding materials from Seals-Shop are based on the parameters and specific conditions stated by the Purchaser. Their application always requires practical trials within the Purchaser's operations. Because of the many different ways in which Seals-Shop products can be used, Seals-Shop cannot provide any guarantee for the correctness of recommendations in any particular instance unless Seals-Shop affirms such in writing. Installation suggestions are the intellectual property of Seals-Shop and are not to be disclosed to third parties.
- FINAL PROVISIONS
- The Purchaser may assign or transfer receivables only after receiving written consent from Seals-Shop in advance.
- Customer agrees and undertakes that:
- it will not use the products for any purpose connected with chemical, biological or nuclear weapons, missiles capable of delivering such weapons, nuclear explosive activity or in any way that would cause the Supplier to be in breach of financial or trade sanctions imposed against Iran or any other destination;
- it will not export, re-export, re-sell, supply or transfer the products to any destination or party subject to UN, EU, or US trade embargos, or to any destination or party if it is known or suspected that the products are likely to be used for the purposes set out in clause 19.2.1 above;
- it will comply with all applicable export and sanctions laws;
- it will include the same terms in its dealings with its customers;
- it agrees to fully indemnify Seals-Shop for all costs, expenses, liabilities, losses, damages, claims, proceedings, (including without limitation legal fees) incurred or awarded against Seals-Shop arising out of or in connection with any breach of this clause whether such breach occurs directly or indirectly, with or without the knowledge of Seals-Shop.
- These General Terms and Conditions are governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not apply.
- The place of performance for payments by the Purchaser and deliveries by Seals-Shop is Seals-Shop's principal place of business in Stuttgart. The language of the agreement shall be English.
- 19.5 For legal actions against businesspersons, legal entities organized under public law, and entities specially funded under public law, the courts of Stuttgart shall have exclusive jurisdiction and venue. Seals-Shop also reserves the right to initiate court proceedings at the place of business of the Purchaser.
Supplier's declaration for products having preferential origin status pursuant to Implementing Regulation (EU) No. 2015/2447: Seals-Shop hereby declares that, except where otherwise indicated, the products listed in this document are products originating in the European Union and satisfy the rules of origin governing preferential trade with the European Union. Seals-Shop shall make available to the customs authorities any further documentation regarding origin that they request. The most recent information can be found at the customs websites: www.zoll.de and www.wup.zoll.de.