General business terms and conditions of seleon

General purchasing terms and conditions of seleon gmbh 

 

Section 1: Field of application 

1. These general purchasing terms and conditions apply exclusively to all of our current and future orders for goods and their processing; terms and conditions of the seller that contradict or deviate from these purchasing terms and conditions are not recognised by us unless we expressly consent to them in writing. 

2. The acceptance of goods with no express objection does not constitute acceptance of deviating delivery and/or selling terms and conditions of the seller.

Section 2: Offer, order 

1. Offers are prepared for us free of charge. 

2. Orders have to be confirmed promptly, including the agreed price and delivery time. 

3. We have the right to change and add to orders even after they have been placed. Unless the seller objects to any additions or changes in writing promptly and no later than within 10 days, the addition or change is deemed to be accepted. 

4. Concluding contracts and placing orders, including changes and/or additions, must be done in writing, by telex, electronically (for instance by e-mail) or by fax.

Section 3: Pricing 

1. Agreed prices are fixed prices unless explicitly specified otherwise. Prices cannot be increased without our express written consent. VAT as required by law is included in prices and must be disclosed separately. 

2. To the extent possible and permissible, we dispose of packaging materials at the expense of the seller. That being said, the seller is responsible for the pick-up and disposal of packaging materials at its own expense. 

Section 4: Payment

1. Invoices have to be sent out promptly upon delivery, in duplicate and including the order number and item numbers. The term of payment begins after complete delivery free of defects and the receipt of the invoice in proper form. 

2. Payments are subject to correct delivery. In case of a complaint for defects, we have the right to withhold payments that are due on outstanding invoices, up to a reasonable amount, until the seller fully meets its warranty obligations or provides proof of performance pursuant to the contract. 

3. Unless otherwise agreed, invoices are either paid within 10 days with the deduction of a 3% early payment discount or towards the end of the month following delivery, using a payment method of our choice. In case of monthly deliveries, invoices must be issued no later than by the first working day of the following month. Partial invoices must be designated as such. 

4. Payments are by bank transfer. Payment is deemed to be made on time if the bank transfer order was submitted to the bank on the due date. 

5. We have the right of retention and set-off to the extent permitted by law. 

6. Without prior written consent, which may not be unreasonably refused, the seller is not authorised to assign its receivables or have them collected by third parties. Assignment without our prior written consent is ineffective.

Section 5: Delivery terms, delayed delivery, passing of risk 

1. Unless otherwise agreed, delivery is DDP (Incoterms 2010). Meeting agreed delivery dates is mandatory. Partial deliveries require our written consent. Imminent delivery delays must be reported in writing. 

2. The delivery term begins with the day of the legally binding order, unless anything to the contrary is agreed in writing. 

3. In case of default in delivery by the seller, we are entitled to the applicable legal claims with no restrictions. If delivery is delayed by more than 2 weeks, a discount of 5% of the agreed price of the delayed goods is applied. In particular, we have the right to demand compensation in lieu of performance after a reasonable period of grace granted by us expires in vain. The right to delivery is only excluded after the seller has paid compensation. 

4. If meeting our contractual obligations is made impossible or significantly impeded by force majeure, strikes or lockouts, we may set aside the contract in whole or in part, or demand performance at a later date; this does not entitle the seller to any claims whatsoever against us. 

5. The seller bears the risk of accidental perishing or accidental impairment until the goods are handed over at the destination.

Section 6: Retention of title 

1. Retention of title by the seller, if applicable, is valid subject to the stipulation that ownership of the paid goods is transferred to us upon payment for the goods; an expanded and in particular extended retention of title does not form part of the contract. 

2. Only in case of prior withdrawal from the contract is the seller entitled to demand surrender of the goods based on the retention of title.

Section 7: Liability for defects 

1. The delivered goods must be free of material defects and defective title. In particular, the seller has to deliver the goods so that their disposal and, if applicable, processing does not violate third-party intellectual property rights. 

2. Complaints for apparent defects are deemed to be made by us promptly if they are submitted within three weeks from delivery. 

3. We are entitled to the applicable legal rights in case of defective goods. Unavoidable costs incurred for supplementary performance also include the costs incurred by our customer and must be borne by the seller. For goods that have to be repaired or replaced, the warranty term starts over. 

4. The seller has to indemnify us from third-party claims, regardless of the cause in law, due to a defect or other flaw of the goods; the resulting legal costs, in particular reasonable lawyer’s fees, are borne by the seller. 

5. The limitation period for our claims for defects begins with delivery of the goods and ends after three years.

Section 8: Product liability 

If the products delivered by the seller are defective/faulty, the seller has to indemnify us in regards to these defects/faults, meaning that the seller bears all related costs and expenditures. These costs and expenditures include the possible legal costs was well as retrofitting or recalls that may be required. The seller shall obtain adequate product liability insurance coverage for this purpose and provide us with proof of coverage promptly upon request.

Section 9: Nondisclosure 

All data that are not generally known and become known to the seller in the course of the business relationship must be kept confidential. This obligation applies correspondingly to sub-suppliers.  

Section 10: Documents 

By request the seller has to promptly provide us with approval, certification and test documents related to the goods.

Section 11: Final provisions 

1. Unless otherwise agreed, the place of fulfilment for deliveries is our registered office in Heilbronn. 

2. The jurisdiction is Heilbronn. However, we also have the right to take action at the registered office of the seller. 

3. The laws of the Federal Republic of Germany apply; application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. 

4. Should a provision of these general purchasing terms and conditions be or become ineffective, the effectiveness of the remaining provisions shall remain unaffected. The ineffective provision shall be replaced with a provision that comes as close as possible to the original legal and economic intent. 

5. These general purchasing terms and conditions apply correspondingly to other types of contracts, in particular contracts for services and contracts for work and materials. 

 

Last update: 14 December 2010

 

General selling terms and conditions of seleon gmbh

For use in the course of business with businesspersons (“orderer” in the following) (B2B) for

A. Deliveries, services

and

B. Research and development contracts

 

A. Deliveries and services

Section 1: General provisions 1. The following general business terms and conditions as well as possible separate contractual agreements apply exclusively in the context of deliveries and/or services (“performance” in the following) between seleon and the orderer. The general business terms and conditions of the orderer are hereby expressly rejected. They are not recognised by seleon even without an express notice of objection after they are received.

Section 2: Offer

All offers from seleon are subject to change without notice until they are accepted, unless expressly specified otherwise by seleon in the offer.

Section 3: Conclusion of the contract

1. A contract is only concluded with a written order confirmation or delivery of the goods by seleon. To the extent the technical functions are not impaired and there is no deterioration of the delivery object, seleon has the right to make technical modifications to the delivery.

2. seleon reserves exclusive ownership and intellectual property rights in regards to cost estimates, drawings and other documents. They may not be made accessible to third parties. The orderer has to surrender all documents related to the offer upon request.

Section 4: Pricing, payment terms

1. Unless otherwise agreed in writing, all prices are ex works plus VAT as required by law and excluding all essential incidental costs such as packaging, travel and transportation costs as well as daily allowances. Partial deliveries are respectively billed separately.

2. When seleon assumes responsibility for setup or installation subject to a written agreement, the orderer in addition to the agreed compensation bears all incidental costs such as travel and transportation costs as well as daily allowances unless anything to the contrary was agreed in writing.

3. Payments shall be made free of transaction charges to the seller’s designated account.

4. The orderer does not have a right to set-off with its own receivables, unless the receivable is undisputed or legally established.

5. Unless otherwise agreed, compensation in full is due upon delivery of the goods.

Section 5: Retention of title

1. The delivered goods remain the property of seleon until all claims of seleon against the seller, regardless of the cause in law, have been settled in full. This applies even when payments are made for specifically designated receivables. Pledging or transfer by way of security on the part of the orderer is prohibited.

2. If delivery objects subject to the retention of title (goods subject to retention of title) are combined or mixed with goods not belonging to seleon, then seleon obtains shared ownership of the resulting goods. In case the orderer obtains sole ownership through said combination, the orderer transfers shared ownership to seleon now and in advance in proportion to the value of the goods subject to retention of title to the value of goods not owned by seleon at the time of combination.

3. Subject to revocation, the orderer has the right to dispose of the goods subject to retention of title in the ordinary course of business, provided the orderer has agreed on the retention of title with its contractual partner; the right to disposal does not apply if the orderer is in default. The orderer assigns claims arising from the disposal of the goods to seleon in advance.

4. However, the orderer retains the right to collect the receivable assigned to seleon in advance. seleon can revoke this authorisation at any time. The right to collect does not entitle the order to assign the receivable. In case the goods subject to retention of title are located abroad, the orderer obligates itself to cooperate with all measures and statements required to obtain security for seleon equivalent to the retention of title.

5. The orderer does not have the right to pledge the goods subject to retention of title or transfer them by way of security.

6. In case of third-party intervention, pledging or other orders, seleon must be informed promptly.

7. In case of conduct of the orderer contrary to the contract, in particular if the orderer is in default of payment after a reasonable period of grace expires in vain, seleon has the right to withdraw from the contract and take back the goods subject to retention of title following a warning and the orderer is obligated to surrender the goods. Taking back the goods, asserting the retention of title or seizing the goods subject to retention of title does not constitute withdrawal from the contract unless this is expressly declared by seleon. 

Section 6: Deadlines, deliveries and default

1. Delivery dates are not binding unless otherwise agreed. Agreed delivery terms begin with the day the orderer receives the order confirmation from seleon.

2. seleon has the right to make partial deliveries to the extent this is reasonable for the orderer.

3. In order for delivery to be made within the agreed term, the orderer has to provide seleon with all applicable documents, required permits and approvals in a timely manner and meet the agreed payment terms and other obligations. Unless all of these requirements are met, the term is extended accordingly except when seleon is responsible for the delay.

4. If the delivery term is not met due to force majeure, labour disputes or other events outside the control of seleon, the delivery term is automatically extended accordingly; this applies correspondingly in case of late or improper delivery to seleon.

5. If seleon is in default, the orderer with proof of causal damage has the right to demand compensation for each full month of delay at the rate of 0.5% respectively, but no more than 5% in total, of the price for the part of the delivery that could not be used for the intended purpose because of the delay, unless seleon provides proof of lesser damages.

6. Compensation claims of the orderer due to late delivery and compensation claims in lieu of performance exceeding the limits defined in No. 5 are excluded. This does not apply in case of mandatory liability due to intent, gross negligence, death, physical injury or the impairment of health. The orderer has a right of withdrawal according to the applicable legal provisions to the extent seleon is responsible for late delivery. This provision does not shift the burden of proof to the detriment of the orderer.

7. If the delivery term is extended by request of the orderer, seleon has the right to charge storage costs at the rate of 0.5% of the price of the delivery for each partial month after the delivery term, but no more than 5% in total, unless the orderer provides proof of lesser damages.

Section 7: Passing of risk, acceptance

1. Risk passes to the orderer as soon as the delivery leaves the plant; this also applies to partial deliveries or orders that include installation and/or other additional services. If formal acceptance is agreed, this determines the passing of risk. Acceptance must be performed promptly on the delivery date. The orderer does not have the right to refuse acceptance due to immaterial defects.

2. Risk passes to the orderer as soon as it is in default of acceptance.

Section 8: Liability for material defects

1. The orderer is only entitled to claims for defects pursuant to the applicable legal regulations in case of material defects in the delivery. All defective delivery objects or services have to be repaired or replaced at the discretion of seleon, provided the cause of defectiveness existed at the time of the passing of risk.

2. The limitation period for claims for supplementary performance is 12 months after the commencement of the statutory period of limitation; this applies correspondingly for withdrawal and abatement. If longer periods are prescribed by law pursuant to Section 438, Paragraph 1, No. 2 (buildings and items for buildings), Section 479, Paragraph 1 (right of recourse) and 634a, Paragraph 1, No. 2 (construction defects) of the German Civil Code (BGB), in case of intent, malicious concealment of the defect and failure to comply with a quality guarantee, the respective longer period shall apply. The legal provisions regarding suspension of the statute of limitations and suspension and restart of the limitation periods remain unaffected.

3. In case of defects, the orderer has to submit complaints promptly in writing or by fax.

4. When the orderer submits a complaint of defects for a delivery, the orderer has the right to withhold payments to a reasonable extent in proportion to the material defects in question; this presumes there is no doubt regarding the justification of the notice of defects. The orderer does not have the right to withhold payments if its claims for defects have expired. In case of unjustified claims for defects, seleon can demand reimbursement for incurred expenditures from the orderer.

5. seleon must be given two opportunities for supplementary performance with reasonable terms.

6. The orderer is entitled to withdrawal or abatement if supplementary performance fails.

7. The orderer has no claims due to expenditures required for the purpose of supplementary performance to the extent the expenditures increase because the delivery object was subsequently moved to a place other than the establishment of the orderer, unless said movement corresponds to its intended use.

8. The orderer only has recourse against seleon pursuant to Section 478 BGB to the extent the orderer has not entered into any agreements with its customer that go beyond the statutory claims for defects. The extent of the orderer’s right of recourse against seleon pursuant to Section 478, Paragraph 2 BGB is determined accordingly by the preceding Section 8.

9. The orderer has no claim for compensation against seleon for a material defect unless the defect was maliciously concealed, a quality guarantee was not met, or in case of death, physical injury, the impairment of health, restriction of liberty, or a breach of duty by seleon due to intent or gross negligence, or the violation of essential contractual obligations. The preceding provisions do not shift the burden of proof to the detriment of the customer. The orderer is not entitled to additional or other claims for defects going beyond Section 8.

10. The liability of seleon is limited to foreseeable damages typical for the contract, and in any case to no more than the value of the respective contract. The buyer has no claims for consequential damages, consequential harm caused by a defect or purely financial losses. 

Section 9: Intellectual property rights, defective title

1. Only within the Federal Republic of Germany is seleon obligated to make deliveries free of third-party intellectual property rights (“proprietary rights”). If a third party asserts justified claims against the orderer due to the violation of proprietary rights by deliveries made by seleon and used pursuant to the contract, seleon is liable to the orderer within the term defined in Section 8, No. 2 as follows: 1.1. At its discretion and own expense, seleon may obtain usage rights for the delivery in question, make a change so that the proprietary rights are no longer violated or provide a replacement. If this is not possible for seleon at reasonable terms, the orderer is entitled to the applicable legal rights. 1.2. The extent of the claim for damages is determined pursuant to Section 12. 1.3. The obligation of seleon pursuant to the preceding provisions only applies if the orderer promptly informs seleon in writing of the claims asserted by third parties, refuses to acknowledge a violation, and all defence measures and settlement negotiations are reserved for seleon. If the orderer ceases use of the delivery to mitigate damages or for other important reasons, the orderer is obligated to notify the third party that this suspension of use does not constitute acknowledgement of a violation of proprietary rights.

2. The orderer cannot assert a claim if and to the extent it is responsible for the violation of proprietary rights.

3. Furthermore, the orderer has no claim if and to the extent a violation of proprietary rights is caused by

3.1. specifications of the orderer

3.2. an application not foreseeable by seleon

3.3. changes to the delivery by the orderer

3.4. use of the delivery object together with products not delivered by seleon

4. If proprietary rights are violated, the orderer is entitled to the claims pursuant to the preceding No. 1.1.; otherwise the provisions of Section 8, No. 4, 5 and 9 apply correspondingly.

5. For other defects of title, the provisions of Section 8 apply correspondingly.

6. The orderer is not entitled to any further or other rights for defective title than the claims against seleon and/or seleon’s assistants pursuant to this Section 9.

7. The orderer is obligated to indemnify seleon from third-party claims in case of 3.1-3.4.

8. seleon is liable pursuant to Section 12.

Section 10: Use of software

1. If the delivery includes software, the orderer is granted a non-exclusive right to use the delivered software and the corresponding documents. The software may be used solely on the intended delivery object.

2. The supplied software may only be duplicated, revised, translated or transformed from object code to source code by the orderer to the extent permitted by law (Section 69a ff of the German Copyright Act (UrhG)). The orderer does not have the right to remove or change the information of seleon or manufacturer information including notices of existing proprietary rights to the delivery without the express consent of seleon.

3. That being said, seleon and/or the software provider reserves all rights to the software and the documents including copies. The orderer is not authorised to issue sub-licenses.

Section 11: Impossibility

If delivery is impossible for seleon, the orderer may demand compensation unless impossibility is beyond the control of seleon. However, the claim for compensation is limited to 10% of the value of that part of the delivery that cannot be used as intended because of the impossibility. On the other hand, the orderer’s compensation claim is not limited in case of mandatory liability due to intent, gross negligence, death, physical injury or the impairment of health; this does not shift the burden of proof to the detriment of the orderer. The right of the orderer to withdraw from the contract remains unaffected.

Section 12: Other compensation claims, limitation period

1. All other compensation claims of the orderer are excluded.

2. This does not apply in case of mandatory liability, for example pursuant to the Product Liability Act (ProdHG), or in case of intent, gross negligence, death, physical injury or the impairment of health, or the violation of essential contractual obligations. However, compensation claims for the violation of essential contractual obligations are limited to foreseeable damages typical for the contract, except in case of intent or gross negligence or due to death, physical injury or the impairment of health. The preceding provisions do not shift the burden of proof to the detriment of the customer.

3. Both compensation claims and claims related to measures for the mitigation of damages expire after 12 months; the statutory limitation regulations apply in case of compensation claims pursuant to the Product Liability Act.

Section 13: Place of fulfilment, jurisdiction and applicable law

1. Written declarations may also be made by fax or e-mail.

2. Unless expressly agreed otherwise, the place of fulfilment is the registered office of seleon in Heilbronn.

3. The exclusive jurisdiction for all disputes arising from or in the context of the contractual relationship is Heilbronn. However, seleon has the right to file complaints at the headquarters of the orderer.

4. The laws of the Federal Republic of German apply for all legal relations between the orderer and seleon; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. 

 

B. Service, consulting and development contracts

If performance by seleon consists of service, consulting and development activities for the orderer, the following provisions apply:

Section 1: General provisions

1. The following general business terms and conditions as well as possible separate contractual agreements apply exclusively in the context of service, consulting and development activities between seleon and the orderer. The general business terms and conditions of the orderer are hereby expressly rejected. They are not recognised by seleon even without an express notice of objection after they are received.

2. Unless otherwise agreed, the laws for service contracts apply for service, consulting and development activities by seleon; this means seleon performs service, consulting and development activities on a time and materials basis and with no guarantee of a specific result or outcome. Service, consulting and development activities are performed by seleon according to the current state of the art.

Section 2: Offer and acceptance, compensation

1. The respective development phase and/or the respective service and consulting contract must be agreed between seleon and the orderer by means of a written offer and written acceptance. For this purpose, seleon shall prepare an offer for the orderer in a timely manner. There is no obligation to prepare an offer for the next development phase or the next service and consulting contract, nor to accept such an offer.

2. Compensation for service, consulting and development activities is determined by agreement. 

Section 3: Schedule, obligation to perform

1. A schedule and a desired end date can be agreed for service, consulting and development activities.

2. If changes to the agreed scope of performance for service, consulting and development activities are indicated, both seleon and the orderer can request the indicated changes from the respective other party with justification. Regarding the change request, the respective other party has to either agree or issue a notice of rejection. Reasons must be provided in case of rejection. The orderer has to confirm a change request in writing by first request of seleon.

3. To the extent they are foreseeable, seleon shall inform the orderer of the costs for changes.

Section 4: Proprietary rights and indemnity

1. The result of service, consulting and development activities is made available to the orderer upon conclusion of the project according to the offer.

2. All inventions of seleon and its employees during the term of this contract in regards to the contractual object shall be reported to the orderer in writing promptly after they are disclosed by the employee, with an offer to transfer them. Within three months after it is reported by seleon, the orderer has to declare whether it wants to assume the rights to the invention. seleon obligates itself to refrain from submitting its own patent applications until the end of the orderer’s term to respond within three months of reporting by seleon, and to impose the same obligation on its employees.

3. The orderer shall reimburse seleon for a reasonable proportion of the costs, to be defined in concrete terms on a case-by-case basis, for the registration, maintenance and defence of the proprietary rights and for statutory compensation for employee inventions in case of use.

4. For all intellectual property rights, in particular patent rights, copyrights and utility patent rights including all usage and exploitation rights arising from the inventions made by seleon or its employees during the contract term in regards to the object of the contract, the orderer is entitled to perpetual, non-exclusive usage rights unrestricted by place that cannot be assigned or sub-licensed, encompassing all types of use required for the success of the project and to achieve the project objectives.

5. If existing proprietary rights or copyrights of seleon are used in the implementation of the project and essential for the exploitation of the research and development results by the orderer, the orderer through a separate agreement and in exchange for compensation shall obtain non-exclusive usage rights unrestricted by place that cannot be assigned or sub-licensed, at reasonable licensing terms and conditions, insofar as this does not conflict with any other obligations of seleon. The orderer and seleon shall negotiate the details of a separate solution in such cases. 6. The orderer confirms to seleon that performance is free of third-party rights that exclude, restrict or impede use by seleon. The orderer on first request indemnifies seleon from possible third-party claims for alleged violations of proprietary rights, including all incurred costs.

Section 5: Prices and payment terms and conditions

1. Unless otherwise agreed, compensation for service, consulting and development activities performed by seleon on a time and materials basis is due monthly.

2. Price estimates issued by seleon prior to the contract for time and materials required for service, consulting and development activities are non-binding.

3. Invoices are due upon receipt with no deductions, within 15 days from the invoice date. After 14 days, seleon is authorised to charge late payment interest at 8% p.a. above the prime rate.

Section 6: Liability

1. For all service, consulting and development activities, seleon shall exercise due diligence as required for reasonable performance and strive to achieve the desired results. seleon assumes no further liability and does not guarantee that the desired results will be achieved. However, this limitation of liability does not apply to damages due to intent or gross negligence on the part of seleon nor to personal injury.

2. seleon assumes no liability for the industrial and business usability of the desired results.

3. The orderer has to indemnify seleon from third-party claims unless damages are due to intent or gross negligence by seleon.

4. Claims of the orderer, regardless of the cause in law, expire 6 months after completion of the service, consulting and development activities.

5. The disclaimer of liability and limitation of liability pursuant to this Section 6 also apply in case of personal liability by seleon’s employees, contractors and assistants.

Section 7: Cancellation

1. In principle, the orderer can cancel this contract at any time with immediate effect. If the orderer cancels with immediate effect but without specifying an important reason, the orderer shall make an additional payment of 10% of the contract amount or the costs incurred up to the cancellation date.

2. The orderer bears costs that have been incurred by seleon pursuant to this contract up to the cancellation date and cannot be averted. All payments including this additional payment must not exceed the compensation that would be payable if the contract were not cancelled.

3. Notwithstanding the preceding provisions, the contract for service, consulting and development activities can be cancelled by the contractual partners for an important reason without a period of notice. An important reason for extraordinary cancellation by seleon is given in particular if the orderer fails to make its payments or does not do so in a timely manner as agreed, in case of an application for the commencement of insolvency proceedings or in case of financial collapse of the orderer.

Section 8: Nondisclosure

1. The disclosure shall not exploit, disclose to third parties or otherwise reveal seleon’s confidential information. For the purpose of this provision, employees and assistants who require the information and legal consultants, auditors and/or other persons or corporations with a legal right or obligation to receive such confidential information are not third parties pursuant to this provision.

2. Confidential information pursuant to No. 1 is deemed to include all information regarding goods, services or customers, business transactions, accounts, finances and contractual relationships or other business relationships, transactions or affairs of the customer obtained by the vendor in the course of contractual performance; all information pertaining to the contract or the object of the contract that is designated as confidential or must be reasonably considered confidential according to its nature; programs, project materials and the object of all reports, recommendations, advice or tests that were prepared, made or carried out by the orderer in the context of its obligations and the contract.

3. The orderer shall make all reasonable efforts to prevent the unauthorised publication or disclosure of confidential information or documents.

4. The orderer has to ensure that its employees, assistants and subcontractors are aware of the preceding confidentiality obligation and personally obligate themselves in writing to comply with the confidentiality and nondisclosure provisions; seleon shall provide the orderer with a copy upon request.

Section 9: Miscellaneous

1. Written declarations may also be made by fax or e-mail.

2. Unless expressly agreed otherwise, the place of fulfilment is the registered office of seleon in Heilbronn.

3. The exclusive jurisdiction for all disputes arising from or in the context of the contractual relationship is Heilbronn. However, seleon has the right to file complaints at the headquarters of the orderer.

4. The laws of the Federal Republic of German apply for all legal relations between the orderer and seleon; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

 

Last update: 14 December 2010