General Conditions of Sale and Delivery of Semikolon GmbH

General
1. The following conditions of sale and delivery apply to all current and future transactions with the customer.
2. Our conditions of sale and delivery are exclusively valid; we do not accept any of the customer's conditions which are in conflict with or deviate from our conditions of sale and delivery, unless we have given explicit written consent to their validity. The implicit delivery of goods, provision of services or acceptance of payments on our part does not mean that we accept any deviating conditions.
3. Deviations from these terms of business shall only become legally effective with our written conformation. Our conditions are considered to be accepted at the latest on acceptance of the goods.
Offers, Contracts, Prohibition of Assignment, Offer Documents
1. Offers from Semikolon GmbH are non-binding unless stated otherwise in the order confirmation. A contract only comes into effect with our written order confirmation or by making delivery.
2. Alterations, additions and/or cancellation of a contract or of these conditions must be made in writing. Declarations and notifications by the customer after the contract has been concluded shall only come into effect if made in writing.
3. The customer may not assign any rights from the contract between us and the customer without obtaining our prior written consent.
4. We reserve the rights of use, ownership and copyrights together with other industrial property rights to illustrations (particularly the trademark "Semikolon;"), drawings, calculations and other documents. The customer may not forward these to third parties without obtaining our prior written consent.
Prices, Payment Terms
1. Transactions are based on the current price lists issued by Semikolon GmbH, unless a fixed price has otherwise been explicitly agreed. The prices are to be understood as EURO prices; shipping costs and transport insurance shall be added to the prices together with corresponding statutory value added tax (VAT), unless explicitly agreed otherwise. Any accruing taxation, customs duties, charges, import and export charges shall be paid by the customer.
2. Specific written agreement is required before deducting any discount.
3. Unless agreed otherwise, the purchase price is due for payment without deductions within 10 days of the invoice date. Should the customer be in default of payment, he shall pay interest amounting to 8 percentage points above the corresponding base rate of the European Central Bank. We reserve the right to assert claims for further damages.
4. In case of default of payment by the customer, we are entitled at our own discretion to make further deliveries or services dependent on advance payments or the provision of securities.
5. The customer may only set-off counterclaims which are undisputed or determined with final res judica effect. The customer has no right to withhold payment.
6. We reserve the right to adjust our prices accordingly if there are any major changes in the costs for raw materials, energy or labour, unless there are less than 3 months between conclusion of the contract and making the delivery. We shall provide verification of these changes on request.
7. Semikolon GmbH reserves the right to make technical improvements or adjustments to the corresponding technical or design standards, insofar as this is reasonably acceptable for the customer.
Delivery Dates
1. Delivery dates shall be met to the best of our ability, but shall only be binding if they have been agreed as binding in writing. Should a binding delivery date agreed in writing be exceeded for reasons for which we are responsible, the customer shall grant us an appropriate period of grace for delivery of at least two weeks, stated in writing. Partial deliveries are permitted.
2. At our request, the customer is obliged to declare within an appropriate period of time whether he will be reacting to the delayed delivery by withdrawing from the contract and/or demanding compensation instead of performance, or whether he will insist on the delivery.
3. We are liable according to the statutory provisions insofar as the delivery delay is caused by a wilful or grossly negligent breach of contract for which we are responsible or by culpable breach of a fundamental contractual obligation; default on the part of our representatives and vicarious agents shall be attributed to us. Insofar as the delivery delay is caused by a not wilful breach of contract or culpable breach of a fundamental contractual obligation for which we are responsible, the compensation shall be limited to the foreseeable, typically occurring damage.
4. A case of force majeure can cause the delivery period to be prolonged to an appropriate extent. Forece majeure can include for example: production stoppages, shortage of raw materials, power failure, traffic congestion, official decrees, strikes and lockouts. If these conditions make delivery or performance impossible for a period of at least six months, we are released from our delivery obligation, without being obliged to provide compensation. We shall inform the customer immediately about the delays in delivery or impossibility of delivery.
5. If delivery is delayed for reasons for which the customer is responsible, or if the customer delays in accepting the goods, we are entitled to dispose otherwise of the goods at the end of an appropriate period of grace. We reserve the right to make further claims.
Delivery, Shipments
1. Shipments shall be made "ex works" at the customer's risk.
2. We are entitled to take out appropriate transport insurance on behalf and at the costs of the customer.
3. Semikolon GmbH is not liable for damage and loss of the goods during transport, unless the damage was caused by incorrect packaging. Transport damage shall be reported to the transport company immediately in writing.
4. If the delivery is delayed for reasons for which the customer is responsible, the risk passes to the customer on the day of reporting that the goods are ready for shipment.
5. Shipment shall only be made in the packaging units stated by us. The return of packaging materials is subject to separate agreements.
Reservation of Title
1. Sold goods remain the property of Semikolon GmbH until the fulfilment of all claims arising from the business relationship with the customer.
2. As long as the customer fulfils his obligations to Semikolon GmbH correctly, he is entitled to resell the goods supplied by us, but only in the ordinary course of business; this shall not apply, however, if and insofar as a prohibition of assignment has been agreed between the customer and his buyers with regard to the purchase price claim. If the customer itself sells the goods without receiving the full purchase price in advance or quid pro quo on handing over the purchase item, he shall agree a corresponding reservation of title with his customer.
3. The customer herewith already assigns to us his claims from the resale and his corresponding rights from the agreed reservation of title, regardless of whether the purchased item is resold without or after further processing. At our request, he is obliged to inform his buyers about the assignment and to provide us with the information required for us to assert our rights against the purchaser, and to hand over the necessary documentation to us. The customer shall only be authorized to collect claims from the resale in spite of the assignment insofar as he fulfils his obligations to us correctly.
4. If the goods are processed by the customer, our reservation of title shall extend to the complete new product. In case of processing, connecting or mixing with third-party products by the customer, we acquire co-ownership to the proportional amount corresponding to the relationship of the invoice value of our goods to that of the other items used by the customer at the date of processing, connecting or mixing. If the goods subject to the retention in title are connected or mixed with a main component of the customer or of a third party, then the customer transfers to us his rights to the new product already now. If the customer connects or mixes the conditional goods with a main component from a third party for a remuneration, then he assigns his remuneration claim on the third party to us already now.
5. We are entitled to demand information about the goods supplied by us and the claims resulting from resale or processing at any time. We are entitled to inspect the goods supplied under reservation of title at any time and to gain access to the storage site; if the customer should violate his obligations, particularly if he should default in payment, we are entitled to demand recovery of the conditional goods and/or to withdraw from the contract; the customer is obliged to surrender the goods.
6. The customer is obliged to inform us immediately of any third-party interferences to goods belonging to us.
7. We undertake to release the securities to which we are entitled according to the above provisions insofar as the realizable value exceeds the demands being secured by more than 10%; it is up to us to choose which of the securities shall be released.
8. The customer is obliged to insure our goods at his own costs against fire, water and theft and to provide verification of such insurance cover at our request. The customer assigns his claims from the insurance contracts to us in advance now already at this moment in time.
Product Specifications
1. Our product details and descriptions only indicate the properties of our goods and do not constitute any guarantee of properties or durability in accordance with Section § 443 German Civil Code, unless we have provided the customer with explicit confirmation to this effect in advance. However, this does not release the customer from his own obligation to check the suitability of our products and processes for his own use.
Liability for defects
1. All complaints, in particular notifications of defects, must reach Semikolon GmbH in writing immediately after receipt of the goods (in the case of hidden defects without delay, but at the latest 5 days after being detected). If the customer does not report complaints and notifications of defects in good time or not in the agreed written form, our delivery and performance is considered to be free of faults with regard to the defects not notified at all or not in the correct form. If the customer accepts our delivery or performance in full knowledge of a fault, he is only entitled to any rights derived from the defective nature of the goods if he has explicitly reserved his rights because of these faults in writing.
2. The customer cannot derive any rights from the defective nature of our goods insofar as only an immaterial diminution in the value or suitability of our performance and goods applies.
3. The customer's claims for defects are limited to the right to subsequent delivery. Semikolon GmbH shall always be granted an opportunity to make such subsequent delivery within an appropriate period of time. If the subsequent delivery should fail, the customer can withdraw from the contract or reduce the remuneration. Notwithstanding compensation claims as per No. 9. Claims from the purchaser referring to expenditure necessary for the purpose of subsequent delivery, in particular transport, commuting, working and material costs, are ruled out insofar as the expenditure has increased because the goods have subsequently been brought to a different site than the customer's branch, unless this corresponds to the intended use of the goods.
4. Subsequent changes of any kind to the goods supplied by us preclude our liability for defects. The same applies if faults or alterations to the supplied goods have been caused by interventions or alterations by the customer or a third party.
5. The warranty period for our products is twelve months. Longer mandatory statutory periods of limitations, particularly the five-year period of limitations counting from delivery of the faulty product in the case of delivery regress as per §§ 478, 479 German Civil Code, shall remain unaffected.
Damages
1. Semikolon GmbH is only liable to pay damages, for any legal reason whatsoever, particularly for breach of contractual obligations and for claims in tort, to the extent that Semikolon GmbH, its legal representatives or vicarious agents have acted with wilful intent or gross negligence, or if the violated obligation is of material significance for achieving the purpose of the contract (cardinal obligation). In the case of slightly negligent violation of cardinal obligations, liability for compensation is limited to the predictable damage typical for the contract and amounts at the most to double the invoice value of the affected goods and services.
2. Liability for culpable injury to life and limb or health remains unaffected, this also applies to mandatory liability according to the product liability law.
3. Any assignment of warranty and compensation claims by the customer is precluded.
Place of Performance, Jurisdiction, Governing Law, Severability
1. If the customer is a merchant, then the place of jurisdiction is the registered business address of our company; if we take legal action, then the customer's general place of jurisdiction is also possible.
2. German law shall govern.
3. The place of fulfilment for the delivery is the place of our branch.
4. If individual provisions of these general terms of business should be partly or completely invalid, this does not affect the validity of the remaining provisions. The parties shall replace an invalid clause by a clause which complies with the statutory clause and comes as close as possible to the financial purpose of the invalid clause.

May 2007 | Semikolon GmbH