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Terms and Conditions

 

General Terms and Conditions

of SEMICON-PRO GMBH (Status 2009)

 

 

I. General Conditions:

 

These General Terms and Conditions for deliveries and business transactions apply to all offers, deliveries and services by SEMICON PRO GMBH GbR (hereinafter SEMICON) to their Customers (hereinafter CU). Deviations from the General Terms and Conditions of SEMICON apply only when expressly approved in writing by SEMICON.

 

Any regulations contradicting or deviating from the SEMICON General Terms and Conditions or contract-altering regulations from the CU are hereby rejected; these will only become valid for SEMICON if SEMICON agrees to these alterations in writing. This also applies particularly to orders made with reference to the CU’s general terms and conditions.

 

The SEMICON General Terms and Conditions are also the basis for all future business dealings between SEMICON and the CU.

 

The CU has the non-exclusive right to use the standard software and firmware with the agreed characteristics in unchanged form on the agreed devices. The CU may backup the standard software without express agreement.

 

Partial deliveries are acceptable as long as this can reasonably be expected from the CU.

 

 

II. Prices, Terms and Conditions of Payment and Invoicing

 

The prices are ex works excluding packaging plus the valid legal value added tax.

 

All payments shall be made according the agreements of invoicing without any deductions and free of transaction charges to SEMICON’s designated account. In the case of late payments or if the claims by SEMICON are at risk due to a considerable deterioration of the CU’s credit worthiness, SEMICON is entitled to call in all claims or demand adequate security. In such cases SEMICON is further entitled to make outstanding deliveries only on prepayment or provision of adequate security.

 

The CU has the right to offset or withhold payments only when the counterclaims have been legally determined and are undisputed. Should this not be the case, the CU’s right to withhold must originate from the same contractual relationship as the claim by SEMICON and be in reasonable proportion to it.

 

 

III. Retention of Title

 

The items of deliveries remain the property of SEMICON until all claims against the CU arising from the business relationship have been settled. Should the value of all security interests due to SEMICON exceed the amount of all secured claims by more than 10%, SEMICON will release a corresponding portion of the security interests on request from the CU; on release SEMICON can choose between the various security interests.

 

During the existence of the proprietary rights the CU is not permitted to pledge or assign the goods as security. It may only resell to the trade in the normal course of business and under the condition that the trade buyer receives payment from its customer or under the proviso that the title will only pass to the customer when it has settled its payment obligations.

 

The CU must inform SEMICON immediately in the case of attachment, seizure or any other act of disposal or intervention by third parties.

 

In the case of breach of duty on the part of the CU, particularly at delay of payment, SEMICON is entitled, after an adequate deadline set for the CU has expired without performance, to recission as well as returns. The legal provisions on the dispensability of setting a deadline remain unaffected. The CU is obligated to hand back goods. The return of goods or exercise of the retention of title or the attachment of conditional goods does not signify a recission of contract unless SEMICON has expressly declared this.

 

 

IV. Delivery Deadlines; Delay

 

Delivery deadlines and terms that can be either binding or non-binding require the written form. A prerequisite to complying with delivery deadlines is the receipt of the documentation, necessary permits, releases, timely clarification and approval of plans to from the CU, as well as particularly the adherence to payment terms in the case of prepayment and other obligations of the CU.  Should these preconditions not be fulfilled in time the delivery deadlines will be extended accordingly. This does not apply if SEMICON is responsible for the delay.

 

Should the non-compliance be due to force majeure such as mobilisation, war, riots or similar incidences, e.g. strikes, lockouts, the delivery deadlines will be extended accordingly. The same applies if SEMICON is not supplied on time or correctly.

 

Should SEMICON be behind schedule, the CU – as long as it has shown credibly that it has incurred damages - can demand compensation for each completed week of delay in the amount of 0.5% up to a maximum of 5% of the price for the part of the delivery that cannot be put into operation due to the delay.

 

All damages claims from the CU due to delay in delivery as well as damages claims in lieu of performance that go beyond the limits mentioned in No. 3 are excluded at all times for delayed deliveries, also after a possible deadline was set by SEMICON. This does not apply to mandatory liability due to intent, gross negligence or in the case of injury to life, body or health. The CU can only withdraw from the contract within legal provisions if SEMICON is responsible for the delay. These regulations do not constitute a change of the burden of proof to the detriment of the CU.

 

On demand by SEMICON, the CU is obligated to declare within a reasonable time period if will withdraw from the contract or insist on delivery in the case of delay of delivery.

 

If the CU requests a delay in shipping and delivery by more than one month after goods are declared ready for shipment, the CU can be charged storage fees for each additional month in the amount of 0.5% of the price of the delivery items up to a maximum of 5% (net). It is left up to the contract partners’ discretion to prove that the storage fees are higher or lower.

 

 

V. Transfer of Risks

 

The risk of accidental loss or accidental deterioration of the goods transfers to the CU when the goods are handed over, in the case of a contract involving delivery by carrier surrendered to the forwarding agent, the freight carrier or other persons or institutions charged with the shipping. This applies equally to partial deliveries. Packaging is done with customary care. Shipping will be done according to SEMICON’s best judgement. On written request and at the cost of the CU, SEMICON will insure the shipment against breakage, transport and fire damage.

 

Should the delivery or performance be delayed due to circumstances attributable to the CU, the risk transfers to the CU when the goods are ready for shipment.

 

 

VI. Warranty

 

The CU is obligated to check the delivered goods immediately on receipt for visible defects, in particular also for obvious quantity errors or damages and to inform SEMICON, before the goods are processed, treated or combined, in writing and detail without delay but at the latest within 8 days; otherwise the assertion of warranty claims is excluded. Punctual dispatch of the defect claim is sufficient for adherence to the deadline. Before any further use, the goods must be inspected with regard to quality and functionality according to manufacturer specifications. This applies particularly for solderability and contactibility as well as other hidden defects. Any differences between the actual quality and the stipulated quality of the delivered goods must be reported to SEMICON in writing without delay but at the latest within 8 days from receipt. Any defect claims received later cannot be accepted regardless if they are visible or hidden defects. The entire burden of proof as to all pre-conditions for claims rests with the CU, in particular as to the defect itself, the time of discovery of the defect and the punctual dispatch of the defect claim.

 

The conditions listed in VI. apply equally to possible defects in software for which the CU was granted a licence as well as to products that contain software and the defect is traceable to the software. 

 

If SEMICON grants the CU licences to use software, SEMICON can, on separate arrangement, make software available to the CU for test purposes. The CU is obligated to check this test software thoroughly for possible faults within 30 days of receipt. Should SEMICON not receive any written notification of errors within this time period, the software is considered fault-free and accepted by the CU. SEMICON will accept neither liability for faults reported after this deadline nor damages claims. This does not apply, however, for a fault that was objectively not detectable during tests.

 

Should the goods be defective, SEMICON reserves the right to remedy the defect through additional delivery or rectification (replacement). In the case of replacement, SEMICON is obligated to assume all costs necessary in particular transport, handling, labour and material costs as long as these are not increased by the goods having been moved to a location other than the originally destination. Should the remedy of defects not be possible or not economically reasonable, SEMICON is entitled to cancel the contract.

 

Should SEMICON be obligated to repair software it will deliver the necessary software patches to the CU free of charge as long as this is possible and economically viable. Should this not be possible or economically reasonable, SEMICON can deliver new software, grant licences for other software or cancel the contract at its discretion.  

 

If the replacement fails, is impossible, is seriously and finally refused by SEMICON in total or is unreasonable for the CU, the CU is entitled to reduce the purchase price (abatement) or withdraw from the contract (recission) at its discretion.

 

Should the CU decide to withdraw from the contract due to failed remedy of defect, it is not entitled to any further damages claims from the defect. The right for claims based on defects of goods is limited to 12 months after the delivery of the goods.

 

The CU is not given guarantees by SEMICON in the legal sense.

Any warranty beyond this paragraph or further claims for damages particularly for consequential damage or loss of income that is traceable to the defect on goods, can not be asserted except in the case of IV. 4.)

 

 

VII. Impossibility; Adaptation of Contract

 

Should delivery be impossible, the CU is entitled to claim damages unless SEMICON is not responsible for the impossibility. The claim for damages by CU, however, is limited to 10% of the value of that part of the delivery that cannot be put into its intended operation due to the impossibility. This limitation does not apply to mandatory liability due to intent, gross negligence or in the case of injury to life, body or health. This does not constitute a change to the burden of proof to the detriment of the CU. The right of the CU to withdraw from the contract remains unaffected.

 

Should unforeseen circumstances in terms of IV. 2.) significantly change the commercial intent or the content of the deliveries or have a significant impact on the business of SEMICON, the contract will be suitably amended in good faith. Should this not be commercially viable SEMICON has the right to withdraw from the contract. Should SEMICON wish to exercise this right of recission when recognising the implications of the circumstances, it must inform the CU accordingly without delay and this also, if an extension of the delivery deadline has been arranged with the CU. 

 

 

VIII. Confidentiality and Data Protection

 

The CU is obligated to keep all sales documentation, specifications and price lists received as well as other documents and information confidential and to obligate his performing and vicarious agents accordingly. Goods for which SEMICON retains title must be stored in such a way that unauthorised third parties do not have access to them. Confidential information and goods owned by SEMICON may only be disclosed to third parties with the express approval of SEMICON. The confidentiality obligation is valid for two years after the termination of this contract.

 

The information received by SEMICON in connection with orders is not considered confidential unless something else has been expressly agreed in writing.

 

SEMICON is entitled to process the personal data entrusted in connection with this business relationship and have it processed by third parties under due consideration of all data privacy directives.

 

 

IX. Place of Jurisdiction and applicable Law

 

If the CU is a merchant, the sole place of jurisdiction for all disputes arising indirectly or directly from the contractual relationship is the registered address of SEMICON. However, SEMICON also has the right to take legal action at the registered address of the CU.

 

Should individual provisions become invalid, the other provisions remain valid. The invalid provision will be replaced with a legal provision that comes closest to the economic meaning and purpose of the invalid one. The same applies to regulatory loopholes. All legal relationships between SEMICON and the CU are subject exclusively to the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

 

 

 

 

 

 


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