Company information – Terms of Business

General Terms and Conditions

Validity, additional contract terms
Offers, contract formation
Delivery, shipment, transfer of risk
Remuneration, terms of payment
Reservation of title and rights
Notices of defects and duty of the customer to cooperate
Liability
Statute of limitations
Setting of deadlines, threatening of damage compensation, withdrawal and cancellation
Secrecy, confidentiality
Miscellaneous

1. Validity, additional contract terms

1.1 The General Terms of Business of SEAL Systems AG (“AGB”) apply to all contract relations with customers in connection with deliveries and services of SEAL Systems AG (“SEAL Systems”) and are considered part of the contract unless agreed otherwise in writing in an individual agreement between SEAL Systems and the customer. The GTB also apply for future business relations with the same customer without SEAL Systems needing to refer to their applicability for every single contract with this customer.

1.2 These GTB apply exclusively. Different, opposing or supplementary general terms of business of a customer shall become part of the contract only when and insofar as SEAL Systems agrees to their applicability expressly and in writing. This requirement for consent applies in every case, and especially when SEAL Systems provides a delivery or service to the customer without reservation in knowledge of the general terms of business of the customer.

1.3 The GTB are supplemented by the software license and maintenance conditions. The above rulings apply in particular for the validity of these contract terms.

1.4 The following references to the validity of legal regulations are for clarification purposes only. The legal regulations therefore apply even without such clarification insofar as they are not directly amended by the following GTB.

2. Offers, contract formation

2.1 The offers of SEAL Systems are subject to confirmation and non-binding. This also applies if SEAL Systems, in the run-up to a contract formation, has handed over catalogs, product descriptions or technical documentations (e.g. user manuals, figures, calculations) to the customer for which SEAL Systems reserves title and copyright.

2.2 Every software program order or contracting of some other service by the customer constitutes a binding contract offer unless stated otherwise in the order or commission or other agreements. SEAL Systems is entitled to accept this contract offer within four weeks of receipt by SEAL Systems. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the software programs or provision of the other services to the customer.

3. Delivery, shipment, transfer of risk

3.1 Deliveries of software programs (data media, user manuals, other documentation – if available) or other goods are made ex warehouse which is also the place of fulfillment. The software programs or other goods will be sent to another destination on demand by the customer. Insofar as no self-collection or collection by a third party has been agreed and the customer has given no special instructions, SEAL Systems is entitled to determine the type of shipment (especially transport company, shipping route, packing) themselves.

3.2 The risk of accidental destruction or impairment is transferred to the customer upon handover This also applies if the customer is in default with acceptance. In case of shipment, the risk of accidental destruction or impairment is transferred already with its delivery to the shipping agent, the freight carrier or another individual or institution engaged to handle the shipment.

3.3 Agreed delivery deadlines are only binding if these are expressly promised as binding by SEAL Systems in writing. If binding delivery deadlines are agreed, SEAL Systems shall not be in default without a written reminder by the customer.

3.4 Compliance with delivery deadlines assumes that the customer provides all of the information necessary for the delivery in time and especially fulfills his duties to cooperate. If this prerequisite is not fulfilled, the delivery deadline shall be extended appropriately. This does not apply if SEAL Systems is responsible for the delay.

3.5 If non-compliance with delivery deadlines is due to force majeure, e.g. war, insurgence or similar events, e.g. strike, lockout, self-delivery by the supplier, the delivery deadlines shall be extended appropriately.

3.6 SEAL Systems is entitled to provide partial deliveries and services. This does not apply if the customer has no interest in the respective partial delivery or service.

3.7 If SEAL Systems gets into default, the customer – provided that he can present reasonable proof that he has suffered a damage – can demand compensation for every full week of the delay of three (3) per cent but maximum fifteen (15) per cent of the net order value for that part of the deliveries that could not be incorporated into useful operation due to the delay. The customer is only entitled to withdraw from the contract within the scope of the legal regulations if SEAL Systems is responsible for the delayed delivery. The customer is obliged upon demand by SEAL Systems to declare within a reasonable period of time whether they wish to withdraw from the contract due to the delayed delivery or whether they insist on the delivery.

3.8 If the delivery proves impossible, the customer is entitled to demand damage compensation unless SEAL Systems is not responsible for the impossibility. However, the customer’s claim to damage compensation is limited to twenty five (25) per cent of the net order value of that part of the delivery that could not be incorporated into useful operation due to the impossibility. The customer’s right of cancellation of contract remains unaffected.

3.9 Both damage compensation claims by the customer due to delay in delivery, impossibility of delivery and also damage compensation claims instead of the service which exceed the limits stated in sections 3.7 and 3.8 are excluded in all cases of delayed delivery as well as in cases of impossibility. The limitations of liability in sections 3.7 and 3.8 do not apply, however, where liability is mandatory in case of willful intent, gross negligence, breach of an essential contractual obligation or injury to life, body or health. The limitation of liability of SEAL Systems to the contract-typical, foreseeable damage in accordance with section 7.2 in the case of negligent breach of an essential contractual obligation remains intact, however.

3.10 A service is considered rendered when the software and documentation have been delivered and the software provides the specified result for the test data records provided by the customer. The software is considered accepted insofar as the customer does not claim for defects within 2 weeks after delivery.

4. Remuneration, terms of payment

4.1 Unless fixed prices are expressly agreed, the price for the respective delivery or service will be based on the respective SEAL Systems price list valid at the time of the order confirmation. All prices are net, ex warehouse, without deductions and plus legal sales tax.

4.2 SEAL Systems expressly reserves the right to refuse checks or bills of exchange. They will be accepted always only for processing. Discount and exchange charges are for the customer’s account and are due immediately.

4.3 Invoices are due payable without deductions within 14 days of receipt of the invoice unless agreed otherwise in the order confirmation. The customer is in default with expiry of the payment deadline. If the customer is in default with the payment, the annual default interest rate is eight (8) per cent above the basic interest rate in accordance with § 247 German Civil Code.

4.4 If no fixed prices are agreed, SEAL Systems reserves the right to make appropriate price adjustments if reductions or increases in costs occur after conclusion of the contract. SEAL Systems will prove these to the customer on demand.

4.5 The customer has a right of set-off only when his counter-claims are determined without further legal recourse or acknowledged by SEAL Systems in writing. Furthermore, the customer may only exercise a right of retention if his demand on which his withholding of payment is based is covered by the same contract relationship and is either determined without further legal recourse or acknowledged by SEAL Systems.

4.6 If the customer gets into default with payments to a not inconsiderable amount, SEAL Systems is entitled to temporarily suspend other services from the same legal relationship for which SEAL Systems have committed themselves and to declare all open amounts from this relationship due immediately. Any agreed dates or deadlines for the execution of pending deliveries and services on the part of SEAL Systems are obsolete in this case without the need for special notice by SEAL Systems.

5. Reservation of title and rights

5.1 SEAL Systems reserves all rights to the deliveries or services until full payment of all and also future demands from an ongoing business relationship. This applies especially for the title to objective deliveries (e.g. data media, user manuals, other documentation etc.) and for intellectual property rights (e.g. rights of use for software programs and user manuals for copyright reasons).

5.2 Deliveries or services of SEAL Systems may neither be pledged to third parties nor pledged as security before full payment of the assured demands. The customer must inform SEAL Systems immediately by registered mail if and insofar as third parties gain access.

5.3 In case of behavior of the customer in breach of contract, especially non-payment of the due demands, SEAL Systems is entitled in accordance with legal regulations to withdraw from the contract and to demand, as appropriate, the delivered objective goods (e.g. data media, user manuals, etc.) by force of the retention of title and cancellation and to revoke the customer’s rights to use the intellectual property (e.g. rights to use software programs), as applicable.

5.4 Insofar as the customer is entitled to resell the deliveries received from SEAL Systems in the orderly course of business, which may be the case, for example, for sales partners of SEAL Systems, the customer already assigns to SEAL Systems all demands to the total invoice amount (including sales tax) of the demand of SEAL Systems which arise for the customer against their buyers or third parties from the resale. The customer remains authorized to collect this demand even after the assignment. SEAL Systems’ authorization to collect the demand themselves remains unaffected. SEAL Systems undertakes, however, not to collect the demand as long as the customer satisfies his payment obligations, does not get into default with payment and, in particular, no application for institution of insolvency proceedings or suspension of payment exists. If this is the case, however, SEAL Systems can demand that the customer reveal the assigned demands and his debtors to SEAL Systems, provide all the information necessary for collection, hand over the appropriate documents and notify the debtors of the cession. SEAL Systems undertakes to release the existing securities upon demand by the customer to the extent that the viable values of the securities exceeds the demands to be secured by more than ten (10) per cent; the responsibility for choosing the securities to be released lies with SEAL Systems.

6. Notices of defects and duty of the customer to cooperate

6.1 The customer is obliged to examine deliveries and services immediately for completeness and obvious defects and especially for obvious shortfalls or damages and to notify SEAL Systems of these immediately, at the latest within two weeks after receipt of the delivery or service. In the case of unobvious (concealed) defects, the customer is obliged to notify SEAL Systems of these in writing after their discovery, at the latest within the statute of limitations in accordance with section 8. Timely forwarding of the respective complaint suffices to keep the term. If the customer fails to report the defects as described above, liability for the unreported defects shall be excluded. The customer carries the burden of proof for compliance with and timeliness of the obligation to give notice of defects as well as for the existence and time of discovery of a defect.

6.2 In order to avoid damages, the customer is bound to ensure that his database is backed up daily according to the state of the art.

6.3 The customer shall provide the necessary cooperative actions free of charge within the scope of the provision of services owed by SEAL Systems. This includes especially that the customer communicates all of the necessary information, e.g. about the customer’s objectives and requirements, in good time of his own accord. Furthermore, the customer shall provide any equipment necessary for installation or operation of the deliveries or services in good time.

7. Liability

7.1 The liability of SEAL Systems or a representative or agent complies with legal regulations in cases of willful intent or gross negligence.

7.2 Moreover, SEAL Systems is only liable for ordinary negligence in the following cases:

for damages from injury to life, body or health;
when the regulations of the product liability act come into force;
breach of an essential contractual obligation; in this case, the liability of SEAL Systems is limited, however, to the compensation for foreseeable, typically occurring damage.

The liability of SEAL Systems is also limited in case of gross negligence to the contract-typical foreseeable damage if none of the aforementioned exceptional cases exists. There is no change in the burden of proof to the customer’s disadvantage in connection with the above rulings.

7.3 In case of a breach of duty not related to a defect, the customer – in the presence of the other legal prerequisites – may only withdraw from the contract if SEAL Systems is responsible for the breach of duty. Cancellation is excluded if the breach of duty is negligible.

7.4 SEAL Systems is not liable for loss of data if the damage would not have occurred in the case of proper backing up of data under the responsibility of the customer. Proper data backup can be assumed when the customer can prove to have backed up his database daily in machine-readable form and therefore guarantee that these data can be recovered with reasonable effort. SEAL Systems’ liability for data loss – unless SEAL Systems is guilty of willful intent or gross negligence – is limited to the typical recovery effort which would have occurred with proper data backup.

7.5 SEAL Systems carries equally limited liability when software errors have occurred after changing the application and operating conditions, after operating errors, after intervention in the software program such as modifications, adaptations, links to other programs and/or use in breach of contract unless the customer can prove that the errors already existed when the delivery or service was handed over or have no causal connection with the aforementioned events.

7.6 Insofar as the liability of SEAL Systems is excluded or limited, this also applies for the personal liability of staff and employees of SEAL Systems. The objection of shared responsibility remains open.

7.7 Insofar as damage compensation claims in accordance with the above paragraphs are ruled out or limited, this exclusion or limitation also extends respectively to damage compensation in addition to the service and damage compensation instead of the service, for whatever legal reason, especially due to competing claims from defects, breach of duties from the obligation, unlawful acts as well as claims for reimbursement of expenses in accordance with § 284 German Civil Code. In addition, the rulings cited in section 3.7 apply for liability for default and the rulings in section 3.8 for liability for impossibility.

8. Statute of limitations

Damage compensation claims of the customer – for whatever legal reason – come under the statute of limitations one year from the beginning of the warranty period, otherwise from emergence of the claim. This does not apply where legal regulations foresee shorter terms. However, the legal statutes of limitations apply in the following cases:

for claims for defects if SEAL Systems has fraudulently concealed the defect or has accepted a warranty for the quality;
for damage compensation claims from injury to life, body or health;
for other damage compensation claims due to willful or grossly negligent breach of duty;
for damage compensation claims from breach of other essential contractual obligations;
for claims according to the product liability act.

9. Setting of deadlines, threatening of damage compensation, withdrawal and cancellation

9.1 Insofar as the customer has the legal right to demand damage compensation instead of the service or reimbursement of expenses after a reasonable term set by him has expired without success, the setting of such a deadline must additionally contain an express threat that he will seek legal remedy upon expiry of the deadline.

9.2 The above sections apply accordingly insofar as the customer has the legal right to cancel the contract relationship with SEAL Systems or terminate it without notice for cause after a reasonable term set by him has expired.

10. Secrecy, confidentiality

10.1 Insofar as confidential information of a commercial or technical nature is exchanged between the contract parties or becomes known to a party from the area of the other party, which is normally considered to be a trade secret, such as customer data, they undertake to treat this information strictly confidentially and neither to disclose it to third parties without the consent of the respective other party nor to use it in any other way outside of the execution of this contract. Excepted from the mutual obligation for secrecy is such information that, provenly a) is general common knowledge or becomes common knowledge without the involvement of a contract party; b) is known to a contract party from some other source who is not obliged to secrecy to the other contract party; c) must be disclosed by a contract party (especially to courts, law enforcement agencies and authorities) due to mandatory legal regulations.

10.2 Each contract party pledges to return all confidential information handed over physically by the respective other party at any time on appropriate demand to the other contract party or, by their choice, to destroy it without retaining any copies or recordings. Own records, lists and evaluations that contain confidential information must be destroyed immediately on demand by the other contract party; electronically transferred and/or stored confidential information must be erased. The executed destruction/erasure must be confirmed to the other contract party in writing on demand. The above regulations in this paragraph do not apply, however, to copies that are retained by a contract party in a confidential file for purposes of proof.

10.3 The life of this obligation for secrecy exceeds the life of this contract by five (5) years.

10.4 However, SEAL Systems remains entitled to transfer research files which may contain trade secrets, e.g. customer data, to licensors to solve customers’ questions and problems in connection with the software provided by SEAL Systems. In this case, SEAL Systems will also place the licensor under an obligation for secrecy.

11. Miscellaneous

11.1 Insofar as the customer is a merchant in the sense of the German Commercial Code, a corporate entity of public law or public separate estate, Erlangen will be the place of jurisdiction. The same also applies when the customer has no general place of jurisdiction in Germany. However, SEAL Systems is also entitled to file a suit at the customer’s headquarters.

11.2 The law of the Federal Republic of Germany with exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) applies for the legal relations between SEAL Systems and the customer.

11.3 All amendments and supplements to these GTB must be put in writing. Electronic documents, such as E-mails, without a qualified electronic signature in accordance with the Digital Signature Act do not satisfy the written form.

11.4 The contract relationship between SEAL Systems and the customer also remains binding in its other conditions even if an individual condition should become legally invalid. This does not apply if adherence to the contractual relationship would constitute an unreasonable hardship for one of the parties.