shindiag.com
General Terms and Conditions of Simon, Evers & Co. GmbH for the sale of SHINDIAG products to commercial customers (B2B).
The German version of these Terms & Conditions is legally authoritative; this English translation is provided for convenience (see § 12.4).
1.1 These General Terms and Conditions (hereinafter “T&C”) apply to all business relationships between Simon, Evers & Co. GmbH, Katharinenstraße 9, 20457 Hamburg, Germany (hereinafter “Supplier”) and its customers, provided that such customers are entrepreneurs (Unternehmer) within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law, or special funds under public law.
1.2 Sales to consumers (Verbraucher) within the meaning of section 13 BGB are expressly excluded. By placing an order, the Customer confirms that the products are purchased exclusively for business purposes.
1.3 These T&C apply exclusively. Conflicting, deviating, or supplementary terms and conditions of the Customer shall not become part of the contract unless the Supplier has expressly consented in writing to their validity. This shall apply even if the Supplier performs deliveries without reservation in the knowledge of conflicting terms of the Customer.
1.4 These T&C, in the version valid at the time of the order, also apply as a framework agreement for future contracts, without the Supplier having to refer to them again in each individual case.
2.1 Offers made by the Supplier are non-binding unless expressly designated as binding or unless they contain a specific acceptance period.
2.2 The Customer’s order constitutes a binding offer. The contract is concluded upon order confirmation by the Supplier or upon delivery of the goods.
2.3 For orders placed via the website, acceptance of these T&C by ticking a checkbox during the ordering process is a prerequisite for conclusion of the contract.
2.4 Technical information in catalogues, data sheets, advertising materials, and on the website is non-binding unless expressly designated as binding. Minor technical deviations and production-related tolerances are reserved.
3.1 The listed price of USD 3,850 is the maximum list price for worldwide delivery and includes packaging, transport, and insurance to the named place of destination (DAP – Incoterms 2020). Import duties, import taxes, and customs formalities in the country of destination are the responsibility of the Customer unless otherwise agreed in the individual quotation; where assumed by the Supplier, they are itemized transparently in the quotation. The final country-specific price is confirmed in the individual quotation and will not exceed the list price. Invoices are issued in EUR at the exchange rate applicable at the time of invoicing. Statutory value-added tax will be added separately where applicable under German law.
3.2 Payments shall be made in advance. The full invoice amount is due without deduction to the account designated by the Supplier prior to dispatch of the goods. Delivery takes place only after receipt of full payment. Deviating payment terms require express written agreement.
3.3 Where payment against invoice has exceptionally been agreed, the following applies: in the event of default in payment, the Supplier is entitled to charge default interest of nine (9) percentage points above the base rate as well as a lump sum of EUR 40.00 in accordance with section 288(5) BGB. The assertion of further damages caused by default remains reserved.
3.4 Set-off against counterclaims by the Customer is permitted only insofar as such claims are undisputed or have been established by final court judgment. The Customer may only exercise a right of retention if the counterclaim arises from the same contractual relationship.
3.5 If, after conclusion of the contract, facts become known which call into question the Customer’s creditworthiness, the Supplier is entitled to make further deliveries only against advance payment or to withdraw from the contract.
4.1 Delivery shall be made DAP (Delivered at Place) to the place of destination named by the Customer in accordance with Incoterms 2020, unless otherwise agreed in individual cases. The Supplier bears the costs of transport and insurance to the named place of destination; import clearance, customs duties, and import taxes are the responsibility of the Customer unless otherwise agreed.
4.2 Delivery dates are only binding if expressly agreed as binding. Otherwise, they constitute non-binding delivery targets.
4.3 In the case of DAP delivery, the risk of accidental loss or deterioration passes to the Customer when the goods are placed at the Customer’s disposal ready for unloading at the named place of destination. Where a different delivery clause has been agreed, the transfer of risk is governed by the respective Incoterms 2020 clause agreed.
4.4 Partial deliveries are permitted to a reasonable extent.
4.5 In the event of delivery delays for reasons beyond the Supplier’s control (in particular supplier default, transport disruptions, force majeure), delivery periods shall be extended appropriately. The Supplier will inform the Customer without undue delay.
5.1 The Supplier retains title to the delivered products until full payment of all claims arising from the ongoing business relationship (extended and prolonged retention of title).
5.2 The Customer is entitled to resell the goods subject to retention of title in the ordinary course of business. The resulting claims are hereby assigned to the Supplier in the amount of the outstanding invoice amounts; the Supplier accepts the assignment.
5.3 In the event of default in payment or justified doubts about the Customer’s solvency, the Supplier is entitled to revoke the authorization to collect and to demand the return of the goods subject to retention of title, without this constituting a withdrawal from the contract.
6.1 The Supplier warrants that the products delivered are free from material defects and defects of title at the time of transfer of risk and conform to the agreed specifications.
6.2 The warranty period is twelve (12) months from transfer of risk. This does not apply to damages arising from injury to life, body, or health, nor to damages caused intentionally or by gross negligence; in this respect, the statutory limitation periods apply.
6.3 The Customer is obliged under section 377 of the German Commercial Code (HGB) to inspect the goods without undue delay after delivery and to notify any apparent defects in writing or by email within ten (10) business days. Hidden defects must be notified without undue delay after discovery. If timely notification is omitted, the goods shall be deemed approved.
6.4 In the event of justified notification of defects, the Supplier shall, at its option, provide supplementary performance by means of rectification or replacement delivery. If supplementary performance fails twice, the Customer is entitled to withdraw from the contract with respect to the defective goods or to reduce the purchase price appropriately.
6.5 Claims for damages due to defects are governed by section 7 (Liability).
6.6 Warranty claims are excluded in the event of: improper use; unauthorized modifications or repair attempts by the Customer or unauthorized third parties; use in conjunction with unsuitable accessories or software; normal wear and tear; and damage due to improper storage or force majeure.
7.1 The Supplier is liable without limitation for damages arising from injury to life, body, or health; for damages based on intentional or grossly negligent breach of duty by the Supplier, its legal representatives, or its vicarious agents; for fraudulently concealed defects; and pursuant to the mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz / ProdHaftG).
7.2 In the event of a slightly negligent breach of material contractual obligations (so-called cardinal obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the compliance with which the Customer regularly relies), the Supplier’s liability is limited in amount to the typical, foreseeable contractual damage.
7.3 Otherwise, the Supplier’s liability for slight negligence is excluded.
7.4 Subject to the unlimited liability under section 7.1, the Supplier’s total liability per damage event is limited to the net purchase price of the specifically affected, defective product.
7.5 Liability of the Supplier for indirect damages, consequential damages, loss of profit, loss of production, loss of data, damage to reputation, and third-party claims is – outside the cases of section 7.1 – excluded.
7.6 The above limitations of liability apply accordingly in favour of the Supplier’s legal representatives, vicarious agents, and employees.
8.1 SHINDIAG products are professional diagnostic tools exclusively for use by qualified specialist personnel in commercial workshops, fleet operations, and industrial enterprises. The products provide fault codes, live data, and diagnostic information to support assessment by the specialist.
8.2 The evaluation of the diagnostic information as well as all repair, maintenance, or modification decisions based thereon lie exclusively within the professional responsibility of the user. The user is obliged to critically review the diagnostic results and to apply them in accordance with vehicle and manufacturer-specific repair specifications.
8.3 The Customer ensures that the products are used exclusively by persons who have the necessary qualifications, experience, and expertise in the field of vehicle diagnostics and repair, and who are familiar with the supplied product manual as well as the applicable local safety and occupational health regulations.
8.4 The Supplier is not liable for damages arising from improper use, misinterpretation of diagnostic data, use by unqualified personnel, or failure to comply with the product manual. The provisions of section 7.1 remain unaffected.
9.1 All rights to the SHINDIAG trademark as well as to the associated products, hardware designs, software, firmware, documentation, and databases belong to the Supplier or the licensor designated by it. With the purchase of the products, the Customer acquires a simple, non-transferable right of use within the scope of the intended use.
9.2 Reverse engineering, decompilation, and disassembly of the software or firmware are not permitted unless mandatory law provides otherwise.
9.3 Confidential information obtained in the course of the business relationship (e.g. prices, technical details, business strategies) shall be treated as confidential by the Customer and shall not be disclosed to third parties. This obligation continues for three (3) years after the end of the contract.
10.1 Fulfilment of orders is subject to the proviso that no obstacles arise due to national or international foreign trade regulations or due to embargoes or other sanctions.
10.2 The Customer undertakes not to deliver the products to countries or persons subject to sanctions of the EU, the United Nations, the USA, or any other applicable sanctions regime, and to comply with all applicable export control regulations.
10.3 The Customer indemnifies the Supplier against all claims, sanctions, and fines resulting from the Customer’s breach of export control and sanctions regulations.
11.1 The Supplier processes the Customer’s personal data in accordance with the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG) exclusively for the performance of the contract and for the fulfilment of statutory obligations.
11.2 Detailed information on data processing is set out in the Supplier’s privacy policy, available at shindiag.com/privacy-policy.html.
12.1 Should individual provisions of these T&C be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic purpose of the lapsed provision.
12.2 These T&C are governed exclusively by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding the conflict of law rules of private international law.
12.3 The exclusive place of jurisdiction for all disputes arising out of or in connection with contracts to which these T&C apply is Hamburg, Germany. The Supplier is also entitled to sue the Customer at the Customer’s general place of jurisdiction.
12.4 The contract language is German. In the event of conflict between translations, the German version shall prevail.
12.5 Amendments and supplements to these T&C must be made in writing. This also applies to the waiver of the written form requirement itself.