General Terms and Conditions
§ 1 Scope
The present General Terms and Conditions (GTC) apply to all current and future contracts concluded between the Customer and the company S.E.A. Vertrieb & Consulting GmbH (hereinafter referred to as S.E.A.). Conflicting provisions, especially in standard terms and conditions of the Customer or a third party, shall be effective only if they are confirmed by S.E.A. in text form (§ 126b BGB, i.e in readable form stating the name of the issuing party and made on a durable data carrier). This shall also apply if S.E.A. fulfils an order despite conflicting terms and conditions of the Customer.
§ 2 Definitions
The term “Customer” as used in the present GTC means entrepreneur for the purposes of § 14 BGB, exclusively.
§ 3 Conclusion of contract
I. All offers of S.E.A. are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period for acceptance. S.E.A may accept any order or contract within three weeks from receipt.
II. The legal relations between S.E.A. and the Customer are subject solely to the contract concluded in writing or in text form, including the present General Terms and Conditions. The contract contains all and any agreements made between the parties hereto (the “Parties”) in relation to the subject matter of the contract. All and any verbal promises made by S.E.A. prior to the conclusion of the contract are non-binding and all and any verbal agreements made between the contracting parties are superseded by the contract, provided it is concluded in writing or in text form, unless the respective verbal agreement expressly provides that it shall survive with binding effect.
III. Any addenda to and amendments of the agreements made, including these General Terms and Conditions, shall only be effective if made in text form. Save for managing directors or authorized signatories, the employees of S.E.A. are not entitled to enter into any verbal agreements that deviate from the General Terms and Conditions.
IV. Data provided by S.E.A. relating to the object of delivery or performance (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) and illustrations of the same (e.g. drawings and figures) are binding only as approximations, unless their usability for the purpose of the contract requires precise conformity. Such data shall not constitute a guaranteed characteristic or quality, but mere descriptions of or identifying references to the delivery or service. Deviations that are customary in the trade, or deviations that occur due to legal regulations or that constitute technical improvements, and/or the substitution of components with equivalent parts are permitted provided and inasmuch as they do not impair usability for the purpose of the contract.
V. S.E.A. reserves the full title, and/or all copyrights, to all and any offers and cost estimates submitted by it and to all and any drawings, illustrations, calculations, brochures, catalogues, models, tools, and other documents and auxiliary items, that S.E.A. may provide to the Customer. Customer is not permitted to make any of the foregoing items nor their content accessible, nor disclose them, to any third party, to use them him-/her-/itself or through any third party, nor reproduce them, without the express consent of S.E.A. Upon request of S.E.A., Customer must return the items to S.E.A. in full and, when Customer no longer needs them or if negotiations do not lead to the conclusion of a contract, must destroy any copies made in the proper course of his/her/its business.
§ 4 Confidentiality Agreement
Sales documents and price lists of S.E.A. are strictly confidential and may only be made accessible to a third party if they are public knowledge or if S.E.A. has given explicit permission in text form.
§ 5 Prices, terms of payment
I. The prices apply to the services and deliveries listed in the confirmation of order. Additional or special services will be charged separately. Prices are quoted in EURO ex works plus the then applicable statutory value added tax, but excluding packaging, transport, insurance, customs, unloading and other public charges that may be incurred.
II. Unless otherwise agreed, payment shall be due payable in full and without deduction immediately upon receipt of the invoice. Depending on what the parties have agreed from case to case, payment shall be made by advance payment, SEPA business direct debit, bank transfer or using any other non-cash payment options offered by S.E.A.. In case of bank transfer, the crucial date for timely payment shall be the date on which the payment is credited to the bank account of S.E.A.. The Customer is permitted to offset claims only against undisputed claims or against claims determined by non-appealable court decision. Exercising or claiming retention rights is not permitted.
§ 6 Delivery of goods and delivery times
I. Delivery of the goods shall be ex warehouse of S.E.A. or of its agents. Unless agreed otherwise, Customer shall call off or accept delivery of the goods on notification by S.E.A. that the goods are available. If Customer fails to comply with the request for acceptance within one week from the date of issuance of the notification of availability by S.E.A., S.E.A. shall be entitled to store the goods at the expense and risk of Customer and to charge Customer for it.
II. Unless agreed otherwise, S.E.A. shall select the shipping method and the means of transport. The risk of accidental loss and accidental deterioration of the goods shall pass to Customer on handover of the goods by S.E.A. to the shipping company.
III. Enforcement and securing of claims for transport damages against the transport companies are the responsibility of Customer. S.E.A. will support the entrepreneur in asserting his/her/its claims by, including but not limited to, providing all necessary information and assigning all and any claims against the transport company, where appropriate. In the latter case, the entrepreneur shall assert such claims at his/her/its own expense and risk.
IV. The delivery date shall be as stated on the order confirmation. In case of failure to meet the non-binding delivery date, Customer may request S.E.A. in text form to deliver within a reasonable period of time; S.E.A. shall not be in default until receipt of the request.
V. S.E.A. shall be entitled to perform or deliver prior to the expiry of a stated or agreed delivery date. S.E.A. shall also be entitled to a reasonable extent to provide services in part to entrepreneurs.
VI. S.E.A. shall be entitled to cancel the contract in the event that, despite the prior conclusion of a corresponding purchase contract, S.E.A. on its part does not receive the delivery item; the responsibility of S.E.A. for intent or negligence shall not be affected according to § 9 of these Terms and Conditions. S.E.A. shall inform Customer without undue delay if the delivery item is not available on time and, if S.E.A. wishes to cancel, shall exercise the right to cancel without undue delay; in the event of cancellation. S.E.A. shall refund the corresponding consideration to the Customer without undue delay.
VII. The place of performance for all and any obligations shall be Emsbüren.
§ 7 Acceptance of import and export laws
S.E.A. and the Customer acknowledge and accept as binding for each and every transaction all of the national and international import and export control regulations and laws in effect in the Federal Republic of Germany. In addition, the provisions of US re-export law shall apply in all transactions.
§ 8 Duty to inspect goods
Where defects are obvious, the entrepreneur shall inform S.E.A. without undue delay and in text form about any defects of title and/or of material, the absence of any characteristics and/or quality of goods promised by S.E.A., of any deliveries of quantities exceeding the ordered quantity of items, incomplete deliveries, or deliveries of wrong items. Obvious defects means defects that are so evident at the time of delivery that an average non-merchant customer would notice them without making any special effort, i.e. in particular without conducting an expert inspection, as is incumbent on merchants under § 377 HGB (German Commercial Code). If S.E.A. is not immediately notified of any existing defects by Customer, all claims based on such defects shall be excluded. For all other defects, the provisions of § 377 HGB shall apply mutatis mutandis.
§ 9 Liability
I. All and any claims of Customer for performance against S.E.A. shall be excluded if non-performance is due to force majeure and/or an obstacle beyond S.E.A.’s control or in particular due to one of the following reasons: Natural disasters, war, fire, confiscation, export ban, embargo, epidemics, pandemics, COVID-19, or official measures, labour disputes, or where breaches of contract by suppliers are due to one of the foregoing reasons.
II. Furthermore, Customer's claim for performance shall be excluded if delivery to the entrepreneur is prevented by the regulations of US re-export law, or if export restrictions have been imposed by the European Union. In particular, there shall be no contractual obligation to perform any legal or other action that would infringe any such regulations or restrictions. All claims for damages based on the resulting non-performance or delayed performance shall be excluded.
(1) Liability for defects
III. In the event of a material defect and/or defect of title (including but not limited to wrong delivery, short delivery, improper assembly and/or defective assembly instructions), the Contractor's rights shall be governed by statutory law, unless stipulated otherwise below. In all events, the special statutory provisions shall apply in all cases where final delivery of unprocessed goods is to a consumer, even if the latter processes them (recourse to supplier, (ss 478 BGB). Claims arising from recourse to supplier shall be excluded if the defective goods are further processed by the entrepreneur or another entrepreneur, e.g. by installing them into another product.
IV. The basis of liability for defects is primarily the Parties’ mutual agreement of characteristics and/or quality of the goods. All and any product descriptions and manufacturer information that form part of the subject matter of the individual contract, or that has been made public by S.E.A. (especially in catalogues or on our Internet homepage) at the time of the conclusion of the contract, shall constitute such agreement of characteristics and/or quality.
V. Where no characteristic and/or quality has been agreed, the existence or not of a defect shall be determined according to statutory law (§ 434 (1) points (2) and (3) BGB). However, we do not and shall not accept any liability for public statements of the manufacturer or any other third party (e.g. advertising statements), unless the entrepreneur informed S.E.A. that such statements were crucial for entrepreneur’s decision to make the purchase.
VI. S.E.A. shall generally not be liable for any defects that the entrepreneur had knowledge of, or did not have knowledge of due to gross negligence, at the time of conclusion of the contract (§ 442 BGB).
VII. If the delivered item is defective, S.E.A. shall have the right to choose first whether the defect shall be remedied by repairing the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). The right to reject remedy in accordance with the provisions of statutory law shall not be affected.
VIII. S.E.A. shall be entitled to subject the owed remedy to the proviso that the entrepreneur pays the due purchase price. However, the latter shall be entitled to retain such portion of the purchase price that is reasonably in proportion to the defect.
IX. The entrepreneur shall give S.E.A. the time and opportunity needed for the owed remedy, and in particular to hand over the rejected goods for examination. In case of replacement delivery, the entrepreneur shall return the defective item to S.E.A. in accordance with statutory law. Remedy shall not include dismantling or re-installation of the defective item, unless S.E.A. was originally obliged to carry out installation.
X. Where the existence of a defect has been established, the expenses required for inspection and remedy, in particular the cost of transport, travel, labour and materials, and of dismantling and installation costs, if applicable, shall be borne or reimbursed by S.E.A. in accordance with statutory law.
XI. In cases of emergency, e.g. where operational safety is at risk or to prevent disproportionate damage/loss, the entrepreneur shall have the right to remedy the defect him-/her-/itself and to claim reimbursement of the objectively necessary expenses from S.E.A.. S.E.A. must be informed immediately, if possible in advance, about such own remedy. There shall be no right to perform own remedy if S.E.A. would be entitled to reject such remedy under statutory law.
XII. If remedy has failed, or a reasonable deadline to be set by the entrepreneur for remedy has expired unsuccessfully or is dispensable according to the legal regulations, the entrepreneur may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(2) Other liability
XIII. Unless the present Terms and Conditions, including the provisions below, provide otherwise, S.E.A.’s liability for any breach of a contractual and non-contractual obligation shall be according to statutory law.
XIV. S.E.A. shall be liable for damages – irrespective of the legal grounds – only within the scope of liability for intent and gross negligence. In the case of simple negligence, it shall be liable, subject to the limitations of liability (e.g. care in own affairs; insignificant breach of duty) under statutory law, only for
- damage/loss resulting from death, bodily harm or injury to the health,
- damage/loss resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which is conditio sine qua non for the proper execution of the contract and on the fulfilment of which the other party regularly relies and may rely); in this case, however, liability shall be limited to compensation of the foreseeable, typically occurring damage/loss.
XV. The limitation of liability under paragraph 2 "Other Liability" shall also apply vis-à-vis third parties and in cases of breaches of duty by persons (even if in their favour) whose negligence S.E.A. is responsible for under statutory law. They shall not apply in case a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed, nor to claims of the entrepreneur under the German Product Liability Act.
XVI. The entrepreneur may only cancel or terminate on the grounds of a breach of an obligation that does not constitute a defect if S.E.A. is responsible for the breach. The principle of the free right of termination of the contractor (according to § 650, 648 BGB, in particular but without limitation) is excluded. In all other respects, the requirements and legal consequences of statutory law shall apply.
XVII. Even in the case of a defect, the Contractor shall be entitled only to claim damages or reimbursement of futile expenses as provided in § 9, otherwise such claims shall be excluded.
(3) Limitation period
XVIII. Notwithstanding § 438 (1) point (3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If the Parties have agreed that the principle of acceptance of possession shall apply, the limitation period shall commence upon acceptance of possession. Other special provisions of law relating to the statute of limitations (in particular but not limited to § 438 paragraph (1) points (1) and (2), paragraph (3), § 444, 445b BGB) shall not be affected. In case S.E.A. sells used goods, and they were marked as such in the offer and/or confirmation of order, liability for defects shall be excluded.
XIX. The above limitation periods according to the laws of contracts on the sale of goods shall also apply to contractual and non-contractual claims for damages of the entrepreneur, where such claims are based on a defect of the goods, unless the application of the standard limitation period of statutory law (§ 195, 199 BGB) would result in a shorter limitation period in the individual case.
XX. S.E.A. shall not be liable for any damage or loss resulting from any of the following causes: non-compliance with technical instructions, inadequate or incorrect use, defective assembly or commissioning by the Customer or a third party, natural wear and tear, incorrect or negligent handling, the use of inadequate operating materials or substitute materials, electrotechnical or electrical influences, insofar as these are not the responsibility of S.E.A..
XXI. If Customer or a third party carry out inadequate modifications or repairs without S.E.A having given its prior consent in text form, S.E.A. shall not accept and/or assume any liability for any defect arising from such inadequate modification or repair.
§ 10 Unjustified notice of defects
If the examination of a notice of defect submitted by the Customer reveals that there was no defect, the Customer shall reimburse S.E.A. for the expenses incurred by such examination based on the then current rates of fees of S.E.A. or, in the absence of such rates, based on the costs actually incurred for the utilization of the examination service.
§ 11 Modification of the goods
S.E.A. may without prior notice to the customer change or improve the goods according to technical progress, provided that the function and/or form of the goods is/are not permanently impaired or changed. S.E.A. shall have the right to deliver the successor model of the ordered model, if the ordered model is no longer available and it does not substantially differ from the successor model in function or form. This shall also apply to remedy in the case of defect, however only if the improvement or modification leads to an increase in quality for the Customer.
§ 12 Retention of title
I. The purpose of the right of retention of title agreed herein-below is to secure all and any valid current and future claims of S.E.A. against the Customer arising from the delivery relationship in effect between the Parties relating to professional audio technology (including balance claims arising from a current account relationship that relates exclusively to the present delivery relationship).
II. Ownership of the goods delivered by S.E.A. to the Customer shall remain with S.E.A. until full payment of all secured claims. These goods as well as the goods covered by the retention of title, which take the place of the former as set out in the provisions below, are hereinafter referred to as "Retained Goods".
III. The Customer shall store Retained Goods free of charge for the seller.
IV. The Customer is entitled to process and sell Retained Goods in the ordinary course of business until collateral realisation occurs (see IX.). Pledging and transfers of ownership as collateral are not permitted.
V. If the Retained Goods are processed by the Customer, it is agreed that processing shall be carried out in the name and for the account of S.E.A. as the manufacturer and that ownership or co-ownership (“Fractional Ownership”) – in case processing is carried out with the materials of more than one owner or where the value of the goods resulting from processing is higher than the value of the Retained Goods - of the newly created goods shall pass directly to S.E.A. in the ratio of of the value of the Retained to the value of the newly created goods. In the event that S.E.A. does not acquire ownership in the foregoing manner, the Customer already herewith transfers his/her/its future ownership, or co-ownership in the above ratio, of the newly created goods to S.E.A. as collateral. If the Retained Goods are physically united or commingled with others such that their identity is lost in a product or mass and if one of the other goods is to be regarded as the main goods, the Customer shall, insofar as the main goods belong to him/her/it, transfer to S.E.A. pro rata co-ownership of the product or mass in the ratio set out in the first sentence hereof.
VI. In case Retained Goods are resold, the Customer already herewith transfers to S.E.A. as collateral the resulting claim against the purchaser; in case S.E.A. has co-ownership of Retained Goods resold, the resulting claim against the purchaser shall be transferred in proportion to the co-ownership share. The same shall apply to any other claims that may arise in the place of Retained Goods or otherwise arise in relation to Retained Goods, such as insurance claims or claims from tort in case of loss or destruction. S.E.A. revocably authorises the Customer to collect the claims transferred to S.E.A. in Customer’s own name. S.E.A. may revoke this power to collect only in the event the collateral is realised (see IX.).
VII. If any third party seizes or attempts to dispose otherwise over Retained Goods the Customer shall immediately inform such third party that S.E.A. is the owner and shall inform S.E.A. thereo to enable S.E.A. to enforce its ownership rights. If such third party is not able to reimburse S.E.A. for the resulting judicial or extrajudicial costs incurred the Customer shall be liable for such costs to S.E.A.
VIII. S.E.A. shall release Retained Goods and the goods or claims that take their place to the extent that their value exceeds the amount of the secured claims by more than 50%. The selection of the goods to be released shall be at S.E.A.'s discretion.
IX. If S.E.A. withdraws from the contract due to breach of contract by customer - in particular, but not limited to, default of payment - (realisation), S.E.A shall have the right to require that the Retained Goods be returned.
§ 13 Ancillary services
I. Where S.E.A. provides the customer with a separate piece of information relating to the use, positioning, and/or system (hereinafter: Note) that provides advice on how the purchased goods can be used or positioned for the customer's project or within the framework of a system, this shall be done with no increase of the purchase price and free of charge. As an ancillary service, such Note forms part of the present purchase contract. It shall be provided at the discretion of S.E.A.; the customer shall therefore have no entitlement to such Note. The Note shall have no binding effect in respect of implementation. It is compiled on the basis of the information provided by the Customer and does not claim to be complete or correct. The Customer shall remain obliged despite such Note to check whether the goods can be used, or positioned, better otherwise and whether the recommended use, positioning or system is wrong considering the project. Such Note shall not qualify as assembly or installation instructions.
II. The Customer may use the Note without limitation within the framework of the existing purchase contract.
III. § 377 HGB (German Commercial Code) shall also apply in the relationship between the Customer and S.E.A.
IV. Liability for the ancillary service is excluded. This shall not apply to the Customer's right to cancel the contract in the event of a breach of duty for which S.E.A. is responsible and which does not constitute a defect of the purchased goods. At the same time, liability for damage/loss resulting from death, bodily harm or harm to the health, resulting from an intentional or negligent breach of duty by S.E.A. or one of its legal representatives or agents is not excluded. Furthermore, S.E.A. shall be liable for other damage/loss resulting from a grossly negligent breach of duty on the part of S.E.A. or one of its legal representatives or agents. S.E.A. shall also be liable for intent.
§ 14 Final Provisions
I. In case any individual provisions in contracts of the Customer concluded with S.E.A., or in the present General Terms and Conditions, are or become invalid, the validity of the contract as a whole and the other provisions in the contract and the General Terms and Conditions shall not be affected. In the event that the contract or the GTC contain any gaps, it shall be deemed that the Parties agreed on such legally valid provisions to fill the gap that the Parties (S.E.A. and the Customer) would have agreed on, in view of the economic objectives of the contract and the rationale of the GTC, had they had knowledge of such gap(s).
II. The laws of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
III. The exclusive - and international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Emsbüren. However, S.E.A. shall also be entitled in all cases to bring legal action at the place of performance of the delivery obligation according to these GTC or a prior individual agreement, or at the general place of jurisdiction of the entrepreneur. Superseding provisions of statutory law, in particular, but without limitation, concerning exclusive jurisdiction, shall not be affected.
IV. All and any agreements that impose an obligation on S.E.A. shall be valid only if confirmed in text form, Internet or fax transmission being sufficient. This shall apply also to waiver of the present text form agreement.
