1. Standard Terms and Conditions
1.1 All deliveries, services and offers by SeKON Software GmbH are carried out exclusively on the basis of these business terms and conditions. These are valid for the present and for those agreements without any explicit new agreements future business relations. These conditions are valid at the latest upon receipt of delivered good or parts of the delivery. These are also valid when the customer refers to their own business conditions unless these are explicitly expressed.
1.2 Basis for the privity of contract are also the license conditions demonstrated upon purchase of the software.
2. Offers and Contract Conclusions
2.1 The offers of SeKON are subject to confirmation and are non-binding. Acceptance statements and the entire orders of the customer require legal effect of the written confirmation from SeKON including those transmitted electronically. This is also true for completion, modification and additional agreements. Written confirmation may be replaced by the bill of payment in cases requiring immediate deliveries.
2.2 Drawings, illustrations, measurements, technical data, program descriptions, demo programs and other services are only estimations or approximations and have no warranty on the quality, unless these are expressed in writing as binding.
2.3 At the conclusion of a delivery comprising of partial deliveries, each partial delivery is considered a special transaction.
3. Prices and Payments
3.1 Unless otherwise stated, SeKON will adhere to its offerings and equivalent prices 14 days from the date of offer. The prices mentioned in the sales confirmation will be used as the standard price.
3.2 Unless otherwise stated, all prices listed are in EUR without the Added Value Tax valid on the day of delivery from the warehouse or by direct shipment from German port of entries exlusive of all costs for shipment, packaging and transport.
3.3 All payments may be cash, check or bank transfers, respectively debit mandates. Unless otherwise stated, cash discounts are not guaranteed. Discount of draft is not accepted.
3.4 Payment is deemed complete when the amount is at SeKON's disposal. Payment by check is deemed valid only after its redemption.
3.5 Should payment fall behind schedule, SeKON has the right to charge interest on any amount outstanding at the rate of 2% set by the German Federal Bank from the due date of payment to the actual date of payment. They are to be kept lower if the customer can prove lower cost.
3.6 Should the customer be a merchant, any retention of payment due to the customer's counter-claims which SeKON does not recognize, is not admissible, nor is the compensation for those claims.
4. Period of Delivery and Service
4.1 Deadlines and delivery due dates are non-binding, unless otherwise agreed.
4.2 Shipments and delivery may be prolonged due to labour disputes, strikes and lock-outs as well as unforseen hindrances which SeKON can not control including business disturbances or withholding of delivery of essential materials, as long as such hindrances demonstrably and considerably influence the delivery of delivered items. This is also valid in cases involving sub-suppliers. Due date of delivery will be prolonged in the same measure needed to overcome such incidences and hindrances. However, should delay of shipment exceed 3 months, after a reasonable prolongment of the grace period (at least 14 days), the customer has the right to end the entire or part of the contract.
4.3 SeKON has the right to make partial deliveries and partial services. Each partial delivery or partial service qualify as independent service as long as there are no disadvantage of usage.
5. Default in Acceptance
5.1 For the duration of the customer's default in acceptance, SeKON is entitled to store the delivery items at the risk and cost of the customer. To this SeKON has the right to use a shipping company or other storage facilities.
5.2 During the period of default in acceptance, the customer must compensate SeKON without further evidence for the storage costs of 1% of the purchase price per month not exceeding 150 EUR. In cases of higher costs, SeKON has the right to demand payment for these costs with proof of evidence.
5.3 In the case of the customer's dalliance and refusal to receive ordered goods, SeKON has the right to withdraw from the sales contract and demand compensation due to incomplete contracts. Should SeKON be entitled to withdraw from the contract make use of this right, SeKON can demand payment indemnity of 50% of the purchase price without being required to specify the details, or to demand replacement of effectively resulting damage.
6. Delivery Quantity
Possible visible difference in quantity must be immediately reported upon receipt of goods; concealed difference in quantity must be reported within 3 days after receipt of goods to SeKON and the freight carrier in written form or may be conveyed through fax, EDI or email. The acceptance of goods through a shipping or transport company is proof for the quantity, efficient packaging and shipment.
Die Gefahr geht sofort auf den Kunden über, sobald die Sendung an die, den Transport ausführende Person übergeben wurde oder zwecks Versendung das Lager von SeKON verlassen hat. Falls der Versand sich ohne Verschulden von SeKON verzögert oder unmöglich wird, geht die Gefahr mit der Meldung der Versandbereitschaft auf den Kunden über. Eine, im Einzelfall vereinbarte, Übernahme der Transportkosten durch SeKON hat keinen Einfluss auf den Gefahrenübergang.
8. Transfer of Risks
8.1 SeKON guarantees its products free from manufacturing and material defects. The warranty period required by provision is six months, unless otherwise agreed upon.
8.2 The warranty period begins as soon as the goods are dispatched from place of origin. Should the operating manual or wait instructions not be observed, as well as changes made, parts exchanged, or usage of other component materials that do not meet original specifications, all guarantees will no longer be applicable as long as defect can be traced back. This is also true when defects can be traced back to improper usage, storage and application of the product as well as interference from non-SeKON applications. Changes made in the construction and execution correspond to the respective state of the technique. Changes made by SeKON and its sub-suppliers after the conclusion of the contract that do not impair the functions of the delivered good are not subject to reproof. Insignificant changes to the program description, data specifications and/or other quality and performance characteristics of the good do not activate guarantee claims.
8.3 Possible defects must be reported by the customer immediately, at the latest within a week after the entry of the delivered item, through a written notification. Concealed defects, those which are not immediately recognizable during a careful examination and could not discovered during the duration of this term, must be immediately reported upon disclosure to SeKON.
8.4 Guarantee claims are excluded when the good is not timely reported as unsatisfactory even if the buyer discovered the defect, all or part further reallized in processing or usage.
8.5 In case of a justified immediate notification of defects, SeKON may choose to replace defective parts or supply improvements. For claim warranty, the customer must return the delivered good with exact description of the defect along with the product name and revision number, serial number and copy of the delivery invoice or when applicable the receipt. The products must arrive freight collect and SeKON will deliver it back freight collect, unless the transport cost is disproportionate to the contract value. No new warranty claim comes into effect from such exchanges. Warranty is limited exclusively to repairs or exchange of the alleged defected delivered item.
8.6 The buyer has to ascertain that the data on the rebuked product has to be secured in copies. SeKON does not give a guarantee for lost data of any kind.
8.7 If in the case three modification or improvements after a reasonable time frame and grace period fail, or if replacements are not possible, the customer has the right to choose between reduction of purchase price or demand to rescind the contract.
8.8 Warranty claims for software products are subject to the license terms of the software developer. SeKON does guarantee that program functions satisfy the customer's demands or that the other programs chosen by the customer be compatible with the SeKON software products. Considering the current state of technology, it is not possible to exclude errors in dataprocessing programs. Thus, items included in agreements with SeKON, one software which according to the program description is basically viable. SeKON does not guarantee the selection, installation and utilisation, as well as intended result of the software. The customer is solely responsible for the duly installation of the software. Not only the installation but also the orientation and training of the customer or his/her employees are not included in the scope of services of SeKON. Such services require their own written agreement and will be separately compensated.
8.9 Warranty with SeKON is valid only to its direct customer and is not transferable.
9. Retention of Title
9.1 SeKON reserves the right to ownership of the delivered item until the complete payment is carried out.
9.2 Any actions taken by the customer contrary to the contract, especially those involving payment delay, give SeKON the right to reclaim goods after a reminder of payment and oblige the customer to return the goods.
9.3 The assertion of retention of title as well as the garnishment of the delivered item through SeKON is not considered as cancellation of contract, unless the provisions of VerbrKG are to be applied, or SeKON explicitly declares it in writing.
9.4 In accordance to the general terms and conditions concerning a buyer: the buyer is entitled to resell the delivered items in proper business transactions; upon purchase, buyer assigns all claims up to an amount due to SeKON (including Value Added Tax) not exceeding the price allocable to the product or service which gives rise to the claim.
9.5 SeKON commits itself to release the security deposit in as far as the value of the security deposit does not exceed the value of the product by more than 20%.
10. Third-Party Trademark Rights
10.1 SeKON believes that in the Federal Republic of Germany there are no infringements on trademark rights for delivery goods, especially affecting third-party copyrights.
10.2 The parties involved will immediately inform each other of copyright or trademark infringements.
10.3 If the usage is causing an infringement to a third party then SeKON has the right, in accordance with special circumstances of the buyer, to choose if the license of the third party will be acquired or the software will be changed or partially exchanged.
10.4 If SeKON is unable to clear the rights with the third party, the buyer is entitled to redhibitory action or abatement of the purchasing price.
11. Limitation of Liabilities
11.1 SeKON is not liable for defects, delay and violations of trade mark rights beyond the rights that are deemed to buyers in the same measure as in the conditions mentioned above, especially not for compensation for damages.
11.2 This is not valid for direct damages that are intended gross negligence or due to the lack of guaranteed quality.
11.3 In no event is SeKON liable for loss of use of the product software or equipment, loss of profit or revenues, reduction of costs, collateral and consequential damages.
12.1 SeKON is not liable for copyrights or other rights of a third party. The buyer is bound to honor license and user agreement.
13. Privacy / Database
13.1 The buyer is bound to unlimited secrecy with confidential business matters associated with accessible information and data necessary in business transactions and deliveries. The buyer is forbidden to record the data, give the data to a third party or in any way exploit the data, unless appropriate for the fulfillment of contractual purposes.
13.2 SeKON is entitled to handle the client's specific data which are generated out of the business transaction, regardless of whether these are from the client himself or from a third party, in accordance to the protection of data privacy act.
SeKON is entitled to enclose advertisement dispatch and other print media such as comparative tests or newspaper reports whether these originated from SeKON or from a third party.
15. Applicable Law / Place of Jurisdiction
15.1 For all business transactions between SeKON and its customers the law of the Federal Republic of Germany shall apply.
15.2 In as far as the client is commercially trained in accordance to the German Commercial Code, a juridicial person whose separate estate is governed by public law, or his domicile not in the Federal Republic of Germany, then Bonn is the exclusive place of jurisdiction for all directly or indirectly related business disputes.
16. Reinterpretation of Invalid Provisions
16.1 Should individual or several provisions of this contract be invalid or contain loopholes, contractual parties will agree to negotiate with the objective of replacing or supplementing those ineffectual or incomplete provisions through adequate agreements reached individually which further the economical purposes of the originally-intended arrangement. The validity of the other provisions remain intact.