STANDARD TERMS AND CONDITIONS OF SEI ANTECH-EUROPE GMBH FOR THE PURCHASE OF GOODS AND THE ORDERING OF SERVICES
1.1 These standard terms and conditions ("Standard Terms") apply for all purchase and service agreements, including all contracts for the supply of movable objects to be produced or created, concerning product supplies and service renderings (together named "Deliverables") of a contractor ("Contractor") to and for SEI ANTECH-EUROPE GMBH ("we", "us"), save as varied by express agreement accepted in writing by both parties.
1.2These Standard Terms apply exclusively. Any terms and conditions of the Contractor do not apply and are excluded. Terms and conditions of the Contractor do not become part of an agreement with us even if they are included in an order confirmation subsequent to our order or assignment ("Order") and even if we do not expressly object to them or if we accept a Deliverable without reservations.
1.3 The provisions of these Standard Terms extend to standard contract conditions which are used in contract with a merchant in the course of business only.
2. CONCLUSION OF CONTRACT
Each Order must be confirmed by the Contractor in writing. A contract only becomes binding if the Contractor has confirmed our Order within two weeks of its dispatch or if it delivers within that period of time. Should the Contractor not wish to carry out our Order, then the Contractor is obliged to inform us immediately. Any additional verbal understandings must be set forth in writing.
3. QUALITY CONTROL SYSTEM
The Contractor is obliged to maintain a quality control system such as that pursuant to DIN EN ISO 9000 et seq. and/or DIN ISO 14001. We are entitled, acting in agreement, to check the Contractor's system by way of quality audits.
4. SUBCONTRACTORS Any engagement of subcontractors requires our prior written consent. The Contractor must impose on the subcontractor all obligations with regard to the tasks assumed and must ensure such compliance with them as it itself assumed in relation to us.
5.1 The Contractor shall deliver to the place of delivery indicated in the Order. When shipping, the relevant rates, transport and packing regulations of the railway, road transport, sea carriage and air traffic etc. must be observed, in particular with respect to any regulations on customs and dangerous goods. In addition, shipping options most favourable for us shall be selected unless we have explicitly given specific instructions on shipping.
5.2 In the transportation documents, in addition to the shipping address, the Order information (Order number, Order date, place of delivery and performance, the name of recipient and material number where applicable) shall be indicated. The Deliverables must be labelled according to the provisions of the German Verordnung zum Schutz von Gefahrstoffen - Gefahrstoffverordnung – GefStoffV (Hazardous Substances Ordinance) and EC/EU Guidelines for Hazardous Materials/Substances. The Contractor is obliged to supply us in good time prior to delivery with all requisite product information, e.g. safety datasheets, processing instructions, labelling regulations, work safety measures, etc, all in their currently valid wording. All information including drawings and other documents indispensable for installation, operation, maintenance and repair of the Deliverables must be made available by the Contractor without specific request and free of any charge.
5.3 Where subcontractors are engaged, the latter shall identify the Contractor as customer in all correspondence and shipping documents, specifying the Order data.
5.4 On the loading units (upwards of 1 metric ton), the unit weight must be affixed in a well visible and permanent manner.
5.5 The Contractor is only entitled to make partial deliveries upon our consent.
5.6 Only packaging complying with the objectives and requirements of the German Packing Ordinance (Verpackungsverordnung) as amended may be used.
5.7 Where for deliveries by the Contractor waste products within the meaning of environmental law are generated beyond the packaging, the Contractor must process or remove such waste, except where otherwise agreed in writing, at its own expense in accordance with the provisions of environmental laws. Title, risk and environmental law responsibility pass at the moment of delivery to the Contractor.
6. DELIVERY DATE, DEFAULT IN DELIVERY
6.1 The date of delivery indicated in the Order shall be binding and understood as the date of arrival “carriage paid to” (CPT, Incoterms 2010) at the place of delivery and performance indicated in the Order. The Contractor is obliged to inform us immediately in writing if any circumstances occur or become known to it, from which it emerges that the date of delivery cannot be met.
6.2 To the extent we are obliged to provide documentation or information the Contractor may only plead our failure to provide necessary documentation/information if the Contractor has not received the same within a reasonable term following the Contractor’s written reminder.
6.3 In the event of a default in delivery we are authorized to claim liquidated damages at the rate of 0.1 per cent. of the net Order value for each workday of default, up to a maximum of 5 per cent. in total. The Contractor has the right to demonstrate that no damage at all or only damage of a considerably lower amount was generated due to the Contractor’s default. We are authorized to retain any liquidated damages payments until final payment. Assertion of further damage beyond the liquidated damages amount is not excluded hereby.
7. PRICES, INVOICES AND TERMS OF PAYMENT
7.1 The prices agreed upon in the contract are to be understood as “carriage paid to” (CPT, Incoterms 2010), including packing and shipping to the place of delivery or performance indicated in the Order, as well as installation, if agreed upon, plus VAT.
7.2 Invoices have to be issued in Euro and shall indicate VAT separately. The invoice must be sent separately to the invoice address indicated in the Order.
7.3 Invoices are paid by us within 30 days. The payment term begins with the delivery of the goods respectively with the acceptance of the services at the place of delivery or performance indicated in the Order and upon receipt of a regular and verifiable invoice at the invoicing address indicated in the Order. The time of payment has no relevance for the Contractor's warranty obligations. Effectuation of the payment does not imply that delivery is found to be in order.
7.4 If we are sued for payment of a default interest for late payment established by law or in the contract, we shall be authorised to demonstrate that the loss actually suffered by the Contractor was lower than the interest claimed.
8. NOTICE OF DEFECT If the Contractor delivers under a purchase contract, our obligation for inspection upon receipt of the goods will be restricted to check the quantity and identity thereof, as well as for evident defects and transport damage. We may report such divergences, defects and damages within six workdays upon Delivery, while hidden defects are to be reported within six workdays upon their discovery, where in both cases, mailing of the notice within the specified term will suffice.
9. CLAIMS FOR DEFECTS
9.1 The Contractor shall supply the delivered items or the service rendered free from any physical or legal defects.
9.2 The goods or services are deemed to be free from defects if they have the agreed quantity and character, in particular if they comply with all conditions and requirements stipulated in respect of quantity, quality and nature, as well as regarding packing or container. For weight discrepancies, the weight as determined by us at inspection upon receipt applies, unless the Contractor can show that the weight it has charged was correctly determined according to a generally recognized method at the time when risk passed; the same applies to quantities mutatis mutandis. Unless agreed otherwise, the goods or services shall meet the state-of-the-art standards and all relevant statutory and regulatory requirements.
9.3 Approval of drawings or our participation in the inspection of any item ready for shipment does not mean either acknowledgment of quality or modification of a quality agreement or acceptance, and does not exempt the Contractor of his obligations specified above.
9.4 In the event of a defective Delivery, we may claim, at our discretion, free of charge amendment (repair of the defect) or free of charge replacement (delivery of goods or rendering of services free of defects) by way of supplementary delivery. If a reasonable term set by us for supplementary delivery has passed with no avail, we shall be authorised to remedy the defects ourselves at the Contractor's expense, cancel the contract, reduce remuneration and demand damages and compensation of expenses. Setting of a deadline may be neglected in cases defined by law.
9.5 For any claims based on a defective delivery the statute of limitations as provided by law shall apply. However, the limitation period shall be deemed suspended if we notify a defect to the Contractor. The suspension ends in such a case upon complete remedy of the defect or when the Contractor refuses to complete performance, in which latter case such claims will not become statute-barred any earlier than three months after the end of such suspension. The limitation period restarts afresh for subsequently repaired or replaced parts.
9.6 If we are entitled to damages or cancellation, we may demand liquidated damages amounting to 10% of the net Order value. The assertion of additional damages due to a higher damage is not excluded. The Contractor is entitled to demonstrate that a substantially lower damage or no damage at all occurred as a result of the defect.
10. INSURANCE The Contractor shall maintain a liability insurance coverage under conditions customary in the trade, with a minimum coverage of EUR 2 million per claim event for the duration of the contractual relationship including any applicable guarantee and warranty periods and shall give proof thereof upon our demand. Lesser coverage amounts in individual cases may be agreed with us in writing.
11. LIMITATION OF LIABILITY
11.1 We shall only be liable for damages claims, irrespective of their legal nature, including, in particular, breach of contractual duty or tort, in the following cases: a) wilful misconduct; b) death or personal injury; c) failure to fulfil an expressly assumed guaranty; d) if in other cases legal provisions provide for liability regardless of negligence or fault;
e) if, in case of a breach of a miscellaneous contractual duty within the meaning of Sec. 241 Para. 2 of the German Civil Code (sonstige Pflicht im Sinne des § 241 Abs. 2 des Bürgerlichen Gesetzbuchs – BGB), the Contractor can no longer be expected to accept our performance of our contractual obligation; f) gross negligence; and/or g) to the extent liability has not already occurred in accordance with section 11.1 a) to f), in case of a breach of a Material Duty (wesentliche Vertragsverletzung); Apart from that, our liability is excluded. A "Material Duty" within the meaning of the present agreement shall be (i) any contractual duty protecting an essential contractual position of the Contractor, the granting of which position is an essential aim and purpose of the agreement, and/or (ii) any contractual duty the fulfilment of which is a basic requirement enabling the proper performance of the agreement in the first place and in the fulfilment of which the Contractor may usually trust.
11.2 In the case of section 11.1 d) to g), we shall only be liable for the typical and foreseeable damage.
11.3 The exclusions or limitations of liability, pursuant to sections 11.1 to 11.2, shall also apply to the same degree in relation to any acts of our legal representatives, executive and non-executive employees and other vicarious agents as well as subcontractors. We do not assume any liability for employees or other auxiliary persons who are engaged in the performance of our contractual duties by the Contractor and the Contractor shall indemnify us against all expenses and claims by any third party for damages of such persons. This shall not apply in case these persons are deemed to be auxiliary persons of us.
11.4 The aforementioned provisions shall not be interpreted as a shift of the burden of proof.
11.5 We shall not be liable for failure to fulfill any of our obligations in case the failure is caused by circumstances beyond our control (force majeure). During force majeure our obligation to fulfill our obligations shall be suspended. In the event that the performance of our contractual obligations is made impossible by force majeure for a period longer than thirty days, each party shall be entitled to withdraw from the agreement without judicial intervention and without any obligation whatsoever to compensate the damages of the Contractor.
11.6 The Contractor’s statutory liability shall remain unaffected.
12. No Assignment Assignments of claims by the Contractor beyond the scope of application of Section 354 of the German Commercial Code (Handelsgesetzbuch) are prohibited unless otherwise agreed upon in writing.
13.1 For the purpose of these Standard Terms, "Confidential Information" shall mean, all information of any kind whatsoever (including, without limitation, materials, compilations, sequences, data, experimental results, electronic data files, formulae, models, patent disclosures, procedures, processes, projections, protocols, specifications, strategies and techniques, financial and business information), and all tangible and intangible embodiments thereof of any kind whatsoever (including, without limitation, apparatus, documents, drawings, machinery, patent applications, records and reports), which is owned or controlled by a disclosing party and is marked as confidential at the time of disclosure to the receiving party or is of a type that is customarily considered to be Confidential Information. This shall also include any and all information disclosed prior to or after an Order. This definition above shall not apply to any information of which the receiving party can show that it (a) was at the time of its disclosure to the receiving party published or otherwise generally available to the public; or (b) has after disclosure to the receiving party been published or become generally available to the public other than by breach of agreement by the receiving party; or (c) was already known to the receiving party at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence; or (d) has at any time after the date of an Order been acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of obligation owed by that third party to the disclosing party; or (e) was developed independently of the work performed in connection with an Order by the receiving party.
13.2 The parties agree that, within five (5) years of receipt of any Confidential Information, but at least until five (5) years after confirmation of an Order, they will not disclose, and will cause their affiliates, employees and consultants not to disclose, such Confidential Information and will not use, and will cause their affiliates, employees and consultants not to use, any Confidential Information except as expressly permitted hereunder. Without limiting the generality of the foregoing, the parties shall take such action, and shall cause their affiliates to take such action, to preserve the confidentiality of the Confidential Information as the parties would customarily take to preserve the confidentiality of their own confidential information.
13.3 In the event that a party is legally required to disclose Confidential Information of the other party, such disclosure shall not be a breach of this Agreement; provided that the disclosing party (i) informs the other party as soon as reasonably practicable of the required disclosure prior to such disclosure, (ii) limits the disclosure to the required purpose, and (iii) at the other party’s request and expense, assists in an attempt to object to or limit the required disclosure.
14. APPLICABLE LAW AND VENUE
14.1 These Terms and Conditions shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
14.2 Exclusive place of jurisdiction for all disputes arising out of or in connection with the present Terms and Conditions and/or an agreement governed by the present Terms and Conditions shall be Landgericht Wiesbaden.