General Terms of Business for Supplies and Services
Section 1 Scope of application, Object and formation of contracts
- The following terms and conditions govern definitively the contractual relationship between SEIKEL GmbH, represented by its managing director Peter Seikel, Industriestraße 5, 63579 Freigericht, hereafter known as “SEIKEL”, and the respective customer.
- These General Terms and Conditions apply exclusively. Any of the customer’s terms that differ from or contradict these terms and conditions are not recognised, unless Seikel has expressly accepted them in any individual case.
- They apply to both consumers and businesses. A consumer within the meaning of these General Terms and Conditions is any natural person who places an order for a purpose which cannot predominantly be attributed to their trade or independent professional activity. A business within the meaning of these General Terms and Conditions is a natural or legal person or partnership with legal capacity that acts in the exercise of its trade or independent professional activity when placing an order.
- These General Terms and Conditions apply to all future transactions in the course of a commercial relationship with businesses, even if no further explicit reference is made to them.
- The object of the respective contract is the sale of goods by SEIKEL to the customer and/or the provision of work (construction design services, installation and assembly work).
- Contracts come about as follows:
The customer can request an offer from SEIKEL for the desired goods and/or work by e-mail, fax, post or via the SEIKEL website. SEIKEL will then send the customer a written offer that is valid for six weeks. If the customer accepts the offer by signing and returning it within this period, a contract is thereby formed. If the customer only confirms the offer after the above period has elapsed, this constitutes a new binding offer by the customer to enter into a contract with SEIKEL. If SEIKEL sends an order confirmation to consumers within 3 days or dispatches the goods to the customer this constitutes a contract. Businesses are bound by their offer to SEIKEL for 2 weeks.
- SEIKEL may alter the technical data used in the offer as result of technical progress, even once the order has been confirmed. SEIKEL may also make changes of equal or greater value to the construction design or execution, to the extent that this does not visibly impair the functionality of the goods.
- The text of the contract and the General Terms and Conditions will be sent to customers who are consumers after ordering by electronic means if the order has been placed by fax, post or via the website. The General Terms and Conditions can be viewed at any time on the SEIKEL website.
- German law applies if the customer is a business. In the event of uncertainty or doubt when interpreting these General Terms and Conditions the German version is authoritative if the customer is a business.
- All prices on the SEIKEL website are in euro and include German VAT.
Section 2 Performance of the contract, delivery expenses
- If the goods are to be delivered, the customer bears the costs of delivery from SEIKEL’s place of business. If delivery charges are incurred the customer will be notified of their amount in the offer.
- The purchase price for products and labour can only be paid in advance or by means of payment on delivery. For deliveries abroad SEIKEL reserves the right to rule out certain methods of payment for first-time orders or for other reasons.
- If the goods are to be delivered after a contract with the customer has come about and once payment has been made in full, if advance payment has been agreed, SEIKEL undertakes to deliver the goods to the customer without delay, unless SEIKEL has given another delivery date when the order was made. Partial deliveries are permitted to the extent that they are reasonable for the customer.
- SEIKEL is entitled to revoke the contract if it does not receive the ordered goods, despite having entered into a corresponding supply contract beforehand; this does not affect SEIKEL’s liability for intent or negligence. In this case SEIKEL will notify the customer without delay that the goods are not available and reimburse any consideration already made without delay. SEIKEL reserves the right under these circumstances to offer goods of the same value at the same price, with the aim of entering into a new contract for the sale of the equivalent goods.
- To the extent that both parties are businesses within the meaning of the German Commercial Code the customer will inspect the ordered goods after delivery without delay. This applies in particular to the completeness of the goods and their functionality. Any defects identified, or which could readily be identified must be notified to SEIKEL without delay. A detailed description of the defect should be attached. If the customer does not notify SEIKEL the goods are deemed to have been accepted, unless the defect was not visible in the course of the inspection.
- Defects in goods that cannot be identified in the course of a proper inspection in accordance with paragraph 5 must be notified to SEIKEL without delay once they come to light if both parties are businesses; otherwise the goods are deemed to have been accepted notwithstanding the defect.
Section 3 Warranty and Liability
- Construction design, installation and assembly services are carried out on a state-of-the-art basis and with the customary due care and attention.
- A business cannot claim for defects if the appearance and workmanship of the goods only differs negligibly from that agreed or if their functionality is only negligibly impaired.
- In sales contracts SEIKEL is liable for defective goods in accordance with the statutory provisions relating to the sale of goods (Sections 434 et seq. German Commercial Code (BGB)) and the sale of consumer goods (Sections 474 et seq. BGB) if the customer is a consumer, unless these General Terms and Conditions provide otherwise.
- If the customer is a business the warranty period for rights under Section 437 No. 1 and No. 3 BGB for new articles is one year from the statutory limitation period, notwithstanding Section 438 paragraph 1 No. 3 BGB. For consumers the statutory limitation period in cases defined in Section 438 paragraph 1 No. 3 BGB is two years. In contracts with businesses SEIKEL can choose between rectifying the defect and supplying new goods.
- In contracts for work SEIKEL is liable for ensuring that the agreed services meet the requirements agreed on the basis of the offer and are suitable for the use intended by the contract. The statutory limitation period for defects defined in Sections 634, 434, 435 BGB is one year if the customer is a business.
- SEIKEL accepts no liability for damages caused by negligence.
- The disclaimer under numbers 3, 4 and 5 above does not apply in the event of damage to life, limb or health, misrepresentation, claims under the German Product Liability Act, acts of intent and gross negligence or the breach of obligations the performance of which is a basic precondition for the proper execution of the contract and on which the customer may generally be able to rely.
- In contracts with businesses the liability for defects is excluded for defects caused by external factors beyond SEIKEL’s control or improper use by the customer. It is also excluded if the customer or third parties modify and/or add to the services provided by SEIKEL without explicit approval. The customer may nonetheless provide evidence that the modification and/or addition is not the cause of the defect.
- Otherwise the statutory provisions apply.
Section 4 Retention of title
- In contracts with consumers the goods delivered remain the property of SEIKEL until they have been paid for in full.
- In contracts with businesses the goods delivered remain the property of SEIKEL until all claims against the customer arising from the business relationship have been settled.
- If the customer is a business the following also applies:
1 the customer is allowed to process the goods supplied and to combine or mix them with other articles. If they are processed along with other articles not belonging to SEIKEL, SEIKEL acquires a co-ownership share in the new item corresponding to the value of the processed goods in relation to the value of the other processed goods at the time the processing took place.
3.2 If the goods supplied or the new item is sold the customer hereby assigns its claims against its customer from the sale with all incidental rights to SEIKEL by way of collateral, without the need for any further declarations. However, this assignment is only valid for the amount corresponding to the amount invoiced by SEIKEL for the goods supplied. The share of the claim assigned to SEIKEL is to be settled in priority.
3.3 Until further notice the customer is authorised to collect the claims assigned in this Section 4 (retention of title). The customer will forward to SEIKEL without delay payments made on the assigned claims up to the amount of the secured claim. SEIKEL is entitled to revoke this authorisation for a good reason, in particular if the customer is in default of payment, has ceased payments, insolvency proceedings have been initiated or if there is a reasonable indication of the customer’s imminent insolvency. Furthermore, after giving notice and setting a reasonable grace period, SEIKEL may disclose the assignment, dispose of the assigned claim and require the customer to disclose the assignment to the third party.
3.4 To the extent that the realisable value of all collateral assigned to SEIKEL exceeds the amount of the secured claims by more than 10%, SEIKEL will at the request of the customer release a corresponding portion of the collateral rights. SEIKEL has the choice of which collateral rights to release.
Section 5 Transfer of risk and default
- If the customer is a business and the goods are sent at its request the risk is transferred to the business when the goods are handed over to the transport company. For consumers the risk is only transferred when the goods are handed over to the customer.
- Customers are in default if they do not pay the invoice within 14 days of the goods being delivered or the work being accepted.
- SEIKEL is entitled to charge the customer a flat fee of €2.50 for every reminder notice. The customer may provide evidence that SEIKEL did not incur any or a significantly smaller loss. SEIKEL explicitly reserves the right to claim for additional reminder costs.
Section 6 Final provisions
- These General Terms and Conditions and all individual contracts are governed solely by German law, excluding the UN Convention on Contracts for the International Sale of Goods, if the customer is not a consumer.
- If the parties are businesses, SEIKEL’s place of business is deemed to be the place of jurisdiction for all disputes arising from or in connection with this contract.
- If one or more provisions of these terms and conditions should be invalid, in full or in part, this does not affect the validity of the remaining provisions.