Seiko Instruments GmbH Standard Terms and Conditions
Please note: This is a translation of our German T&C. The only legally binding version of this document can be found on the German site.
(Effective as of March 1, 2014)
1.1. The following Standard Terms and Conditions apply to all business relations between us and Purchasers of our products and services (referred to in the following as Purchasers). They only apply to Purchasers who are entrepreneurs as defined in § 14 German Civil Code (BGB).
These Standard Terms and Conditions also apply to all future business conducted with the Purchaser concerned. The version in force at the time when an order is concluded will be decisive.
1.2. We do not recognise the Purchaser‘s own standard terms and conditions unless we have confirmed in text form (§ 126 a German Civil Code (BGB)) that these are to apply. The Purchaser’s own standard terms and conditions shall not apply even in the event we supply the goods/services in question without reservation, knowing of their existence and without contradicting them again.
1.3. We reserve the rights and copyright in cost estimates, drawings and similar information of either a material or an immaterial nature - including information in electronic format; and shall not be disclosed to third parties. If we supply goods and services in accordance with drawings, models, patterns or other information supplied as a basis by the Purchaser, the Purchaser guarantees that this will not infringe on any protected third-party rights.
Conclusion of contract, order confirmation
2.1. Our offers are subject to change. We are only bound by our offers if they are expressly designated as binding; otherwise they are to be regarded as invitations to submit offers.
2.2. The Purchaser shall be responsible for the accuracy of information and documents supplied by it, e.g. drawings, models, patterns etc. We are under no obligation to examine the accuracy and completeness of information supplied by the Purchaser. If at the Purchaser's request we procure information required for the execution of an order, the Purchaser is responsible for checking and approving that information.
2.3. Declarations made by us are only binding if they are signed by a person authorised to do so by the management. Information and agreements supplied or concluded verbally must also be confirmed in text form to have legal force. Orders are not to be regarded as accepted until we have confirmed them in text form. Subsidiary agreements and amendments must also be confirmed in text form. The Purchaser is bound by its offer for three weeks. A contract will be concluded if we either accept the order in text form or supply the goods/services before the expiry of this commitment period.
2.4. Minor technical modifications or deviations from the specifications contained in catalogues, brochures and the confirmation of order must be accepted as in compliance with contract as long as they do not prejudice the use of the item concerned in accordance with contract and as long as it is reasonable to expect the Purchaser to accept them. No notification of such deviations is required. If, for production or other reasons, there are substantial
variations from the dimensions, weights, illustrations, performance or power consumption or other operating costs specified, the Purchaser will be notified in text form of the relevant changes made; if the Purchaser either fails to object within two weeks of receiving notification of the modifications or confirms its acceptance of them in text form, the modified specifications will form the sole basis for the contract. In this case no further confirmation from us will be required.
2.5. Obvious errors, printing, computing, spelling and calculation errors are without binding force and do not give rise to any entitlement to performance.
Delivery, delivery times and assignement of risk
3.1. The place of performance for us is our registered place of business and/or the plant/delivery depot notified to the Purchaser in the confirmation of order. The cost of transporting goods shall be borne by the Purchaser. These costs include any taxes and Customs duties incurred as a result of the transport.
3.2. The risk of the accidental destruction or deterioration of the goods shall pass to the Purchaser on handover; if goods purchased are transported, the risk will pass to the Purchaser on handover to the forwarding agent or other carrier. This also applies even if the Purchaser has not expressly requested that the goods be sent and in exceptional cases where we agree separately to pay the transport costs. If no specific instructions are received from the Purchaser, we will select a suitable carrier. We are entitled, but under no obligation, to take out transport insurance at the expense of the Purchaser for the items purchased.
3.3. Delivery times quoted are only to be regarded as approximate, unless they are expressly described as binding in our confirmation of order. All delivery times will, in the event of action being taken in connection with labour disputes within our company or those of our suppliers, in particular strikes and legal lockouts, and in the case of unforeseeable events (e.g. force majeure, action by public authorities, failure to obtain official approvals, shortages of raw materials etc.) for which we are not to blame, be extended by the duration of the interruptions to our business operations caused by the problems concerned. We will not be held responsible for the above-mentioned circumstances merely because they arise when we are already behind schedule. If it is unreasonable to expect an extension of a delivery period to be accepted, both parties shall be entitled to withdraw from the contract.
3.4. If delivery times are not expressly referred to as binding, we will not fall into arrears until the Purchaser issues a demand for delivery in text form. Such a demand cannot be issued until at least four weeks after the expiry of a non-binding delivery deadline. We are entitled to a grace period of the delivery deadline by at least two weeks following receipt of a formal reminder.
3.5. We expressly reserve the right to make partial deliveries and issue invoices for these, unless a partial delivery is against the Purchaser's objective interests and the Purchaser informs us of this in text form.
3.6. Adherence to delivery times is conditional on the Purchaser's fulfilling its contractual obligations. If dispatch is delayed as a result of circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day when the goods are ready for transport. In such a case we will, if requested to do so by the Purchaser in text form, take out insurance at the latter's expense.
Prices and terms of payment
4.1. Unless otherwise specified, our generally applicable prices at the conclusion of the contract shall be charged for goods, services, repairs and other subsidiary supplies in proportion to the cost. These prices are net prices subject to the addition of statutory VAT and freight, packing and transport costs from the factory or warehouse. If deliveries are made later than the originally scheduled time for reasons, for which the Purchaser is responsible, and wage or material costs or the prices charged by our suppliers rise after that date, we will be entitled to increase prices accordingly. Price increases of more than 10% entitle the Purchaser to a right of withdrawal.
4.2. Unless otherwise agreed in text form, payment is due at the latest on the collection of the item purchased or, if the item is sent to the Purchaser, on handover to the forwarding agent or other carrier. If we grant to a period for payment, then invoices shall be paid at the latest within 30 days following the invoice date, with the date when payment is received by us being decisive. Payments shall be made directly without deduction into one of the accounts referred to in the invoice. Payments made to third parties shall only effect a release from the debt if those third parties are authorised by us in text form for collection. We reserve the right to refuse cheques and bills of exchange. Cheques and bills of exchange will only be accepted on account of performance and without any guarantee of punctual submission or punctual protest. All costs and expenses incurred in connection with cheques and bills of exchange will be chargeable to the Purchaser and payable to us immediately.
4.3. If the Purchaser falls behind with payments, either in part or in whole, in particular if bills are not redeemed punctually or cheques are not redeemed on submission, we shall be entitled to demand fulfilment of all claims arising out of the business relationship with the Purchaser, subject to one week's notice. This includes bills of exchange due at a later date. We may also demand the immediate fulfilment of all claims arising out of the business relationship if the event Purchaser suspends payments or if an application is made with respect to its assets for the initiation of insolvency proceedings or any similar proceedings in foreign jurisdictions or settlement proceedings either in or out of court or if the Purchaser applies for proceedings according to § 270 b InsO. Upon the termination of a distribution agreement all claims associated with the business relationship will likewise become due immediately, regardless of the reason for the termination. If the Purchaser falls into default with payment we will, without prejudice to our other and more far-reaching rights, charge interest at 8% above the European Central Bank's current base rate.
4.4. No offsetting or exercise of a right to withhold is permitted on the basis of counterclaims of the Purchaser which we dispute and which are either not ready for decision or which have not been confirmed as legally final and binding. The right of retention is excluded if the counterclaims of the Purchaser are not based on the same contractual relationship.
Retention of title
5.1. We reserve title to goods until the purchase price and all of our other claims arising out of the business relationship with the Purchaser due at the time when the contract was concluded, including claims arising in the future, including on the basis of simultaneous or subsequent contracts, have been paid in full. This also applies if all or any of our claims have been included in a current account and the balance has been drawn and confirmed.
5.2. The Purchaser is only entitled to resell the reserved goods ("reserved goods") in the normal course of business if it hereby assigns to us all claims which arise from it against its customer or third parties as a result of the resale up to the amount of the final invoice total (including VAT). We hereby accept this assignment of claims.
Any handling and processing of reserved goods is for the purposes of § 950 German Civil Code (BGB) carried out by us as the manufacturer. If, as a result of processing, items from different owners are combined with each other, our share of the title will correspond to the ratio of the value of the goods supplied by us to the value of the other goods processed at the time of processing. The value of goods for this purpose is the agreed price.
If our reserved goods are resold of by the Purchaser together with other goods, the Purchaser's assignment will be of a first-ranking share of the claim to the purchase price equal to the invoice value of our reserved goods supplied. If the Purchaser operates a current account with its customer, the assignment will be of the outstanding balance at the end of an accounting period.
5.3. The Purchaser shall remain entitled to collect its claim against the third party. We may revoke this authorisation to collect if the Purchaser stops payments, if insolvency proceedings are commenced with respect to its assets, if an application for the initiation of such proceedings is made or if the Purchaser is affected by anything else leading to a disintegration of its assets. If authority to collect is revoked, the Purchaser is required to disclose to us the claims assigned and the respective debtors, supply all of the information and hand over all of the necessary documents for the collection of claims and notify the debtors of the assignment.
5.4. In the event of seizure by a third party the Purchaser is under an obligation to emphasize our rights and to notify us immediately. If the third party concerned is not in a position to reimburse to us for the costs incurred in and out of court in connection with an action pursuant to § 771 German Code of Civil Procedure (ZPO), the Purchaser will be liable to us for those costs.
As long as title to goods is reserved, any pledge, transfer, lease or other action with respect to those goods which prejudices our security rights is only permissible with our prior approval in text form.
5.5. If the Purchaser breaches the terms of the contract, in particular in the case of default of payment or a breach of any of the above obligations, we shall be entitled to withdraw from the contract and demand that reserved goods be handed over. In such case we shall have the right to enter the Purchaser's premises in order to enforce our reserved title by taking possession of the reserved goods. The Purchaser shall bear all costs which we incur in collecting goods, in defending our reserved title and in collecting any assigned claims.
The cost of reclaiming and selling goods is set at 15% of the proceeds of sale plus VAT at the current rate,
without any evidence been required. Proof of higher or lower utilization costs is reserved. The proceeds of sale shall be credited to the Purchaser after deducting all costs incurred thereby.
5.6. If the value of the existing securities exceeds the secured claims by more than 10 %, we shall at the request of the Purchaser in text form be obliged to release securities up to the relevant amount.
5.7. If the Purchaser pays the purchase price or a part thereof with a bill of exchange or cheque, the reservation of title and the claim on which this is based shall not lapse until the bill/cheque is redeemed or unconditionally credited.
6.1. The Purchaser must examine received goods immediately and check them for damage, completeness and defects and report any defects to us in text form without undue delay. Otherwise any enforcement of warranty claims will be excluded and the goods will be regarded as approved, unless the defect in question was impossible to detect in the examination. If such a defect becomes apparent later it must likewise be reported without undue delay in text form. Otherwise the goods will be regarded as approved.
The burden of proof for all claims, in particular for the defect itself, the time of discovery of the defect and for the timeliness of the complaint is on the Purchaser. Our liability under § 444 German Civil Code (BGB) remains uneffected hereof.
6.2. The Purchaser's warranty claim is initially limited to the remedying of the defect. After two subsequent unsuccessful attempts to remedy, the Purchaser shall be entitled to enforce all other statutory warranty claims.
We may at our discretion choose to remedy either by repairing the defect or by supplying a replacement, unless the Purchaser has a particular interest worthy of being respected which excludes one of the two remedy options.
6.3. We are entitled to refuse subsequent remedy until the Purchaser has paid a proportional amount of the agreed remuneration. Remuneration may only be withheld in proportion to the difference between the actual value of the goods at the time that the contract was concluded and the value of the goods would have been in a faultless state and the real value. This does not apply if the goods supplied were standard items and we choose to remedy by supplying a defect-free item.
6.4. Claims by the Purchaser for costs, in particular including transport, travel, labour and material costs, incurred for the purpose of remedy are excluded insofar as these costs increase because the goods were subsequently provided to a location other than the premises of the Purchaser unless this transport corresponds to the goods' intended use.
6.5. No warranty claims based on material defects shall apply if the item supplied deviates only slightly from the contractually agreed characteristics and usefulness to an insubstantial extent, unless this would unreasonably prejudice the Purchaser's interests.
6.6. Claims for defects do not exist when these are due to the following causes: excessive or improper use, normal wear and tear, the failure of surrounding system components, non-reproducible software errors, faulty assembly/commissioning by the Purchaser or a third party, unsuitable equipment or chemical, electro-chemical or electrical influences, unless the above causes are attributable to us. Claims are also excluded if modifications or repairs are carried out later by the Purchaser or a third party, unless these do not render the analysis and rectification of a material defect more difficult.
6.7. Claims on the basis of a material defect shall expire within one year from the statutory limitation period. This does not affect the statutory period for reimbursement claims laid down for contracts of sale by § 478 German Civil Code (BGB). Where the law prescribes longer limitation periods for contracts of sale covered by § 438 Para. 2 No. 2 German Civil Code (BGB) for buildings and items for buildings, these periods will apply. This is also the case where the law prescribes longer limitation periods for contracts for work and services covered by § 634a Para. 1 No. 2 German Civil Code (BGB) for buildings and planning and supervisory services, whose success depends on a longer work limitation period. The statutory limitation periods also apply in the case of a deliberate or grossly negligent breach of obligation, a fraudulent concealment a defect or any injury to life, limb or health by us.
7.1. For the violation of third-party rights, we are only liable if our performance is in accordance with the contract and in particular within the contractually intended use of the purchased goods. Liability for a breach of third-party rights shall only apply within the European Union and onsite where the goods/services concerned are put to use in accordance with the contract.
7.2. If claims are made against the Purchaser based on a breach of the asserted rights of a third party, we shall be informed immediately by the Purchaser in text form to enable us to defend ourselves against the claims.
7.3. If our supply of goods/services results in a breach of third-party rights, we shall at our discretion
- obtain unobjectionable rights for the Purchaser to make use of the goods/services or
- modify our goods/services so that they no longer breach any rights or
- recall the goods/services supplied by us in cases where it is impossible to remedy the situation at a reasonable cost, the interests of the Purchaser are adequately taken into account.
7.4. Claims based on legal defects will expire by limitation as stated in Subsection 6.7.
Limitation of liability
8.1. We shall be liable
- under the German Product Liability Act,
- for losses resulting from injuries to life, limb or health for which we, our legal representatives or our vicarious agents are responsible and
- for all losses caused deliberately or by gross negligence by us, our legal representatives or our vicarious agents.
8.2. In cases of slight negligence we shall, except in the cases referred to in Subsection 8.1, only be liable if a substantial contractual obligation was breached. In this case our liability for material and pecuniary losses is limited to foreseeable losses typical of the type of contract concerned.
In the case of deliveries and/or shortages we will not be liable for consequential damage except in the cases referred to in Subsection 8.1.
8.3. Our liability for losses of data is limited to the cost of restoring properly backed-up data.
8.4. The limitation provisions of Subsection 6.7. apply accordingly.
Deterioration in the asset position of the Purchaser/ cancellation of orders
9.1. If the Purchaser becomes insolvent after the conclusion of a contract, if an application is made for the initiation of insolvency proceedings with respect to its assets or any similar proceedings in foreign jurisdictions or if the Purchaser applies for proceedings according to § 270 b German Insolvency Law (InsO) or if circumstances arise following the conclusion of the contract which substantially prejudice the Purchaser's creditworthiness, we shall be entitled to refuse to deliver until the price as provided in the contract has been paid in full or the Purchaser has provided security for it. The same shall apply where we do not become aware of the facts leading to a substantial deterioration in the Purchaser's asset position until after the conclusion of a contract, although they already applied before that conclusion.
9.2. If the Purchaser does not provide the consideration owed and/or fails to provide security for its consideration within a reasonable period, we are entitled to withdraw from the contract and/or claim damages.
We shall also be entitled to object to any resale and/or further processing of goods supplied subject to a retention of title and to demand that reserved goods be stored separately until the Purchaser meets its obligation to pay the purchase price for the remaining reserved goods or provides an appropriate amount of security. This does not affect our right to terminate the contract.
If we choose to claim damages, we are entitled to require the payment of lump-sum damages equal to 15% of order value plus VAT, in addition to the costs already incurred. The right to prove that the loss was greater or smaller is reserved.
9.3. The provisions contained in Subsection 9.2 Sentences 4 and 5 will apply accordingly if the Purchaser cancels an order. Notice of cancellation must be given in text form.
9.4. Sales discounts, bonuses, advertisement allowances or any other benefits granted by us dependent on the total business volume with the Purchaser over a certain period shall arise only, if at this time there is no substantial
evidence leading to the conclusion that the Purchaser in the following period will cease business, stop payments or become insolvent. Insofar as we have granted these benefits in advance and before the end of the respective period we are entitled to claim back these benefits if at the end of the respective period there is such evidence as stated before.
10.1. German law applies, with any further reference forward under German private international law being excluded. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
10.2. If the Purchaser is a merchant as defined under German law (Kaufmann), a public law legal entity or a public law special fund, the legal venue for all disputes arising out of this contract, including actions relating to bills of exchange or cheques, is the place where our company is registered for business or, at our discretion, the place where the Purchaser is registered. The same applies if the Purchaser has no general legal venue in Germany or if the Purchaser's place of residence or habitual place of residence is unknown at the time when action is brought.
10.3. Unless otherwise agreed, the place of performance for our supply of goods/services is our corporate headquarters. The same applies to the obligations of the Purchaser.
10.4. Where we are under a statutory obligation to take back packing materials or goods, the Purchaser must deliver these to our distribution warehouse free of charge.