Terms & Conditions

Our terms and conditions.
Valid from 09/2012

§ 1 Scope

1.1 These General Terms and Conditions form an integral part of all our contracts for deliveries or services. Our customers' terms and conditions of purchase shall not be binding upon us if they are contrary to these General Terms and Conditions, even if we have not objected to them expressly.

1.2 Our General Terms and Conditions shall also apply to future transactions, even if they should not be enclosed in individual cases.

1.3 Our General Terms and Conditions shall apply only in relation to businessmen within the meaning of Art. 14 of the German Civil Code (BGB).

§ 2 Conclusion of the Contract

Our written order confirmation in connection with the provisions of these General Terms and Conditions shall be decisive for the order. If the Customer has objections against the content of the order confirmation, he shall object to the order confirmation immediately. Otherwise, the contract shall be formed in accordance with the order confirmation in connection with the provisions of these General Terms and Conditions.

§ 3 Contents of the Contract

3.1 Change of model: If the contract relates to deliveries or services that are subject to further technical development, we shall be entitled to supply the newest model unless the Customer's interest has not been restricted to the ordered model clearly. The Customer shall inform us if we may not deviate from the ordered model in any case.

3.2 The information on the products distributed by us which is contained in brochures, lists of models, catalogues, advertising materials, in specifications, requirement specifications and other technical specifications, in certificates (e.g. certificates of compliance) or other forms shall not constitute any warranty for the quality or durability of the object going beyond the normal warranty for material defects. Without an express agreement, we will not give any warranty. Any type of use presupposed under the contract will only be taken into account if a relevant express agreement has been made. Especially in the case of the Customer having special application-specific requirements on the goods supplied or on particular properties of the goods, a relevant special agreement must be made. Also in the case of any obligation to supply unascertained goods, we will not assume any risk of procurement without an express agreement.

3.3 Deviating quantities: In order to form reasonable batch sizes, we reserve the right to supply quantities exceeding the ordered quantity by up to 10%, which will be invoiced, or being up to 5% below the ordered quantity. which will not be invoiced, provided that this is not unacceptable to the Customer.

3.4 Individual statements, information or warranties regarding our goods as well as information on delivery periods require the express written confirmation of our management in order to be effective unless for oral declarations, representative authority exists under commercial law or under rules concerning the appearance of rights or legal positions.

§ 4 Delivery, Blanket Orders

4.1 Delivery periods: Delivery periods shall only be binding if their binding character has been agreed expressly in writing. Delivery dates agreed in a binding manner shall not be fixed dates unless they have been agreed as such expressly in writing.

4.2 Partial deliveries shall be permitted.

4.3 Reservation of deliveries to ourselves: We shall be entitled to withdraw from the contract if our suppliers do not deliver to us properly or in time. Said right to withdraw shall apply only if we are not responsible for such failure to deliver, particularly if we have concluded a congruent hedging transaction with our supplier. We will inform the Customer of the non-availability of the goods immediately. Any consideration paid to us will be reimbursed by us immediately.

4.4 Express delivery clause: If, in connection with an express delivery, an increased carriage charge for express delivery has been agreed, the claim for said payment shall also exist if the dispatch is delayed due to circumstances for which we are not responsible and, as a result, the date requested by the customer has not been kept. These shall include delays due to force majeure, measures of public authorities (customs), industrial action, sabotage and shortage of raw materials.

4.5 Delay in delivery: Should our delivery be delayed for more than 8 weeks, the Customer may, after an adequate subsequent period for delivery has been determined in writing together with a warning of refusal, withdraw from the contract after the fruitless expiry of the period.

4.6 Blanket order: If a blanket order has been agreed, a request for delivery must - unless otherwise agreed - be made no later than 12 weeks before the delivery date requested by the Customer. Unless otherwise agreed, the Customer must request the goods within 12 months from the date of the order confirmation. If the goods are not requested by the Customer within the period of 12 months, we shall be entitled to deliver the goods not requested to the Customer after prior announcement. The risk of any deterioration of the goods for which we are not responsible shall be borne by the Customer. Storage costs for goods which are not requested in time shall be borne by the Customer.

§ 5 Pricing

5.1 The prices mentioned in the order confirmation shall be decisive. The prices apply to deliveries from our place of business. They exclude packing, freight, insurance, customs charges and turnover tax.

5.2 Foreign exchange risk: In case more than one month lies between the conclusion of the contract and the delivery date, particularly in the case of blanket orders, and our procurement costs increase by more than 10% after the conclusion of the contract and before the provision of the goods as a result of exchange rate changes, SHENG TENG GmbH reserves the right to increase the price by the same amount by unilateral declaration. In such case, the Customer shall be entitled to dissolve the contract (right to terminate or to withdraw).

§ 6 Passing of Risk, Dispatch

The risks of the accidental loss or the accidental deterioration of the goods shall pass to the Customer at the time of the handover of the goods or, in the case of dispatch, at the time of the delivery of the goods to the transport agent, carrier or other person entrusted with the dispatch. This shall also apply if, in individual cases, carriage-free dispatch by us has been agreed.

§ 7 Offset, Withholding and Right to Withdraw from Performance

7.1 After a delivery has been performed, the Customer shall not have any withholding right nor any right to offset with regard to SHENG TENG GmbH's relevant claim for payment. This shall apply unless the counterclaim is undisputed or has been determined in a final and absolute manner. The commercial withholding right under Art. 369 of the German Commercial Code (HGB) shall be excluded.

7.2 If the Buyer's financial circumstances worsen considerably after the conclusion of the contract, e.g. if composition or insolvency proceedings for his assets are applied for or if such worsening of the financial situation only becomes known after the conclusion of the contract, SHENG TENG GmbH need not perform the delivery until the Buyer makes his payment or has provided adequate security for the claimed purchase price. In addition, SHENG TENG GmbH Components shall be entitled to withdraw from the contract in such case.

§ 8 Reservation of Ownership

8.1 Until the definite payment of all of SHENG TENG GmbH's claims arising out of the business relationship, the goods will remain property of SHENG TENG GmbH (hereinafter referred to 'goods subject to reservation'). In the case of more than one claim or outstanding invoice, the reservation of ownership shall be considered as a security for the claimed balance, even if individual deliveries of goods have already been paid for.

8.2 The Customer shall be entitled to sell the goods subject to reservation as part of normal business transactions. The Customer may not pawn the goods or assign them as security prior to the acquisition of ownership. Now already, the Customer hereby assigns the claims related to the gods subject to reservation arising from their resale or from other legal causes (insurance, tort) - including any and all claims arising from open accounts - to SHENG TENG GmbH to their full extent by way of security, regardless whether the goods subject to reservation are sold unprocessed or after processing. SHENG TENG GmbH hereby revocably authorizes the Customer to collect the claims assigned to SHENG TENG GmbH in his own name. This authorization to collect shall expire if the Customer does not properly fulfill his payment obligations towards SHENG TENG GmbH which relate to the goods subject to reservation, if he is in financial difficulties, if a compulsory execution is performed against him or if insolvency proceedings are opened before court for his assets or the opening of such proceedings is rejected for lack of assets.

8.3 If third parties have access to the goods subject to reservation, the Customer shall inform them of SHENG TENG GmbH's ownership and notify SHENG TENG GmbH in writing immediately. The Customer shall also inform SHENG TENG GmbH of all damage that has occurred to the goods subject to reservation immediately.

8.4 The Customer may only treat or process the goods subject to reservation with our consent. If the goods subject to reservation are treated together with other items which are not our property, we shall acquire co-ownership of the new object in the ratio of the invoice value of the goods subject to reservation to the invoice value of the other processed goods.

8.5 If the Customer acts in a manner contrary to the contract, SHENG TENG GmbH may, after withdrawing from the contract, require the return of the goods subject to reservation or, if applicable, the assignment of the claims for surrender which the Customer may have against third parties. In this context, a withdrawal shall be possible after an appropriate period has been fixed.

§ 9 Material Defects, Limitation of Time, Right to Withdraw

9.1 We warrant that the products distributed by us have the characteristics that have been specified by the manufacturer or by mutual consent in writing in the form of testable technical parameters. Only the Customer himself shall be responsible for the products distributed by us being suitable for the Customer's application (responsibility for systems). If application advice has been agreed, the responsibility for it shall be limited to the offered products and their characteristics that have been specified, or can be specified, in the form of testable technical parameters (responsibility for components). Unless otherwise agreed in writing in individual cases, we will not assume any warranty for the quality or durability of the purchased goods. Any type of use presupposed under the contract will only be taken into account if a relevant express written agreement has been made.

9.2 Claims under a right of recourse: The Customer's claims under a right of recourse against SHENG TENG GmbH in accordance with Art. 478 of the BGB shall only exist insofar as the Customer has not made agreements with his purchaser which go beyond the statutory claims for defects.

9.3 Product safety: Only the Customer shall be responsible for the safety of the products supplied by us in the Customer's specific application.

9.4 Check on receipt: Upon acceptance or receipt of each delivery, the Customer shall check it for completeness and for damage to the packing. Any complaints shall be made to us in writing immediately. A written record of the matter by the carrier shall be caused.

9.5 Inspection and Complaints: The Buyer shall inspect the ordered goods immediately after receipt, after 10 days at the latest, insofar as it is possible as part of normal business operations, and shall inform SHENG TENG GmbH immediately if a defect is found. If the Customer fails to provide said information, the goods shall be considered approved unless a defect that could not be recognized during the inspection is concerned. In addition, Art. 377ff. of the HGB shall apply.

9.6 Statistical check on receipt: If the products distributed by us are supplied in batches that enable a statistical check on receipt according to the usual relevant principles, at least such check shall be performed as check on receipt. Unless otherwise agreed, the test conditions and test criteria specified in the relevant standard documentation shall apply to the check. A batch accepted during such check shall be considered free of defects. We shall replace any batch rejected during such check by a batch which is free of defects against the return of the entire batch. We reserve the right to replace the faulty parts of the rejected batch by faultless parts by agreement with the Customer.

9.7 Particularly in the case of semiconductor products, the Buyer shall perform a functional test of the goods supplied according to the current technical standard immediately, after 10 days at the latest, and shall inform SHENG TENG GmbH of any found defects immediately. If the Customer fails to provide said information, the goods shall be considered approved unless a defect that could not be recognized during the functional test is concerned.

9.8 Reliability information: Reliability information concerning the products distributed by us shall - unless expressly agreed otherwise - constitute averages determined by the manufacturer statistically which are intended to provide a general orientation to the Customer but do not relate to individual deliveries or delivered batches.

9.9 Subsequent performance: If the goods supplied by us are faulty, the Customer's claims shall be limited to the elimination of the defect or the delivery of a faultless object, at the choice of SHENG TENG GmbH. A prerequisite shall be that provably, the delivered object has become unusable, or that its usability has been diminished considerably, due to a circumstance existing prior to the passing of risk, particularly due to a faulty construction type, bad material or faulty workmanship. The detection of such defect shall be reported to SHENG TENG GmbH in writing immediately. For the elimination of the defects, the Buyer shall grant SHENG TENG GmbH the time and opportunity which it deems necessary according to its equitable discretion. If he refuses this, SHENG TENG GmbH shall be relieved of its obligation to eliminate the defects. If the defects are not eliminated within an appropriate period or if the elimination of the defects fails, the Customer shall be entitled to reduce the purchase price or withdraw from the Contract, at his choice.

9.10 The claims for defects shall not relate to natural wear and tear nor to damage that occurs after the passing of risk as a result of incorrect or improper handling, excess strain, unsuitable resources or chemical, electrochemical or electrical influence that is not envisaged according to the contract.

9.11 Any further claims of the Customer, particularly for consequential harm caused by defects, shall be excluded principally. This shall not apply in the case of wrongful intent, gross negligence or the violation of material contractual obligations of SHENG TENG GmbH nor in the case of any injury to life, body or health. The Buyer's right to withdraw from the contract shall remain unaffected.

9.12 Limitation of time: claims for defects shall become time-barred after the expiry of one year from delivery.

9.13 SHENG TENG GmbH shall be entitled to withdraw from the contract if the performance of the contract becomes impossible for reasons for which it is not responsible. Furthermore, SHENG TENG GmbH shall be entitled to withdraw from the contract if events that are unforeseeable at the time of the conclusion of the contract change the contractual relationship fundamentally at a later date so that it is unacceptable for it to keep up the contract.
In the above cases, SHENG TENG GmbH may require the Customer to pay compensation for all necessary expenses incurred for the order unless the goods can be used equivalently otherwise within an appropriate period or the impossibility of the performance of the contract was caused by an intervention of German state authorities.

§ 10 Limitation of Liability, Compensation for Damage

10.1 We shall be liable for wrongful intent and gross negligence. We shall be liable for ordinary negligence only in cases that concern the violation of contractual obligations which result from the nature of the contract or whose violation jeopardizes the achievement of the contractual purpose. Even in such case, the compensation for damage shall be limited to the foreseeable damage typical of such contracts. Furthermore, in the case of slight negligence, any damage claims of the Customer shall be excluded, regardless of the legal cause.

10.2 The aforesaid limitation of liability shall not apply to claims under the German Product Liability Act nor in the case of injury to life, body or health.

10.3 Furthermore, in the case of damage claims due to material defects, the limitation of liability shall not apply if we have concealed a defect maliciously or assumed a warranty. For the limitation of time for damage claims due to material defects, the provisions contained in item 9.9 shall apply accordingly.

§ 11 Place of Performance, Place of Jurisdiction, Applicable Law

11.1 Place of performance: For deliveries and payments as well as all other contractual or statutory claims, the place of performance shall be the place of business of SHENG TENG GmbH in Freising.

11.2 For all legal disputes resulting from the contractual relationship or concerning its creation or effectiveness, the place of jurisdiction for both Parties shall be Landshut if merchants are concerned. At our choice, we may also file a suit at the Customer's place of business.

11.3 The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply.

§ 12 Final Provisions

12.1 All agreements, regardless whether they are made at the time of the conclusion of the contract or afterwards, must be in writing. In any case, oral declarations made by the staff of SHENG TENG GmbH shall only be binding if they have been confirmed by SHENG TENG GmbH in writing.

12.2 In the case of individual provisions of the contract being ineffective, the remaining parts of the contract shall continue to be binding. Should a provision be ineffective in full or in part, the Parties shall immediately make an effort to achieve the intended business result in a different, legally permitted manner.

If individual provisions of these General Terms and Conditions are or become ineffective, the validity of the other provisions  shall remain unaffected.