General Terms of Sale and Delivery - Co. syskomp gehmeyr GmbH (As of 12/2022)
In case of inconsistencies in the interpretation of contradictions or disputes regarding the meaning of a provision between the English and the German language, the German version shall always have priority in this respect.
(1) Factual and Personal Scope of Application
The conditions listed below shall apply to the entirety of our deliveries and services (including incidental services, e.g., propositions, planning aids, counseling) directed at entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law. They do not apply to legal relationships with consumers within the meaning of § 13 BGB. Our general terms of sale and delivery can be accessed via https://www.syskomp-group.com/pdf/agb/agb122022_DE.pdf whence they can be printed or saved.
(2) Priority of Individual Agreements
Insofar as individual agreements are made, they take precedence over the general terms of sale and delivery. With respect to the circumstances, which are not regulated in such individual agreements concluded between the customer and us, these terms of sale and delivery shall apply in addition.
(3) Exclusion of Third-party Terms and Conditions
Herewith deviating terms and conditions of the customer are being contradicted. They are non-binding, even when we do not expressly refute them once again upon receipt. Provided that nothing else is stipulated, our conditions shall be deemed to be agreed upon order placement or receipt of the order confirmation, however, no later than upon acceptance of our delivery or service.
Should particular provisions be or become invalid, then this does not affect the validity of the remaining provisions of those general terms of sale and delivery. In case of invalidity of a provision, a valid provision coming closest to the economic intentions is deemed to be agreed upon.
(5) Written Form
Insofar as nothing else is or will be stipulated in terms of an individual agreement, deviations from the subsequent conditions, other amendments, or supplements to the order in written form are to be stipulated (§§ 126 b, 127 BGB).
(6) Copyright and Confidentiality
We reserve all our property rights and copyrights to illustrations, drawings, calculations, know-how and ideas that we have developed, as well as other documents. These documents may neither be disclosed to third-parties nor be utilized for non-contractual and/or one’s own purposes. This applies in particular to documents which are marked as “confidential”.
(1) Written Order Confirmation
Our offers are non-binding until an order (purchase order), that was placed following the offer, is confirmed by us in written form.
Each order (purchase order) requires our confirmation for its legally binding acceptance in written form as defined in § 126b BGB.
In the case of deliveries without a previous order confirmation, our delivery note, however, at the latest our invoice, shall be deemed to be an order confirmation.
(2) Order Content
Appropriate technical and creative alterations, in particular regarding design, form and color of the ordered goods, are reserved as long as the technical function, the ordinary use and the value of the goods is not or merely insignificantly impaired as a consequence. If the acceptance of goods becomes unreasonable for the customer in individual cases due to such an alteration, he can withdraw this order. Further rights are excluded.
(3) Product Data/Acceptability and Safety Standards
The product specifications indicated in our offers, brochures, catalogs, websites, drawings and illustrations only serve as a product description, as far as they are not explicitly marked with tolerance specifications as binding in writing and do not contain any offer to conclude a guarantee agreement. Solely the relevant technical acceptability and safety standards of the European Union and the Federal Republic of Germany are decisive for our deliveries.
III. Delivery Obligation
(1) Reservation of Self-delivery
The conclusion of the contract, regarding products that we do not produce ourselves as well as products in which we integrate or install components and materials that we do not produce ourselves, occurs under the reserve of correct and punctual self-delivery on the part of our suppliers, unless the non-delivery or the delay in delivery are caused by us. The customer will be informed immediately of the unavailability or delay in delivery.
(2) Force Majeure/Plagues
In case of an obstruction due to external, non-business related and unforeseeable circumstances which are beyond our control and are also inevitable by exercising reasonably expected due care, in particular in the event of an obstruction due to war (even without an official declaration of war), civil war, plagues and infectious diseases (especially pandemics and epidemics), import and export bans, transport obstruction, governmental interventions, strike, lockout and the consequential production and/or delivery obstructions, as well as in other cases of force majeure, the service obligations of the contracting parties affected by this are to be suspended for the extent and the duration of the obstruction. In the event of a permanent obstruction (more than 3 months), we are entitled to resign from the contract to the exclusion of any liability of damages. By reason of the far-reaching impact of armed conflicts, pandemics and epidemics, in particular due to sovereign orders, embargoes, quarantine regulations, production stops, supplier bankruptcies, supply shortages, delays in delivery, transport obstructions, import and/or export obstructions, massive sickness rates etc., as well as in other cases of force majeure, delays in production, start and delivery of contractual goods and/or services whose occurrence, extent and duration cannot be estimated, may transpire. Stipulated contract dates and deadlines apply on occurrence of force majeure and/or the before-mentioned circumstances in a non-binding way and will be appropriately extended considering the duration of the obstruction.
If the before-mentioned circumstances bring forth an increase in the costs calculated for our deliveries and services of more than 5 %, we are entitled to appropriately adapt the prices or the remuneration.
(3) Partial Shipment, Over- or Underdelivery
Partial shipments are permissible and are deemed to be an independent delivery in terms of payment and complaint. We are entitled to over- and underdeliveries of up to 10 % of the quantity ordered, as far as this is not unreasonable for the customer.
(4) Significant Deterioration of the Customer’s Financial Circumstances
In case of a significant deterioration of the financial circumstances and/or the conditions of liquidity of the customer after concluding the contract, or if such circumstances already existed prior to the conclusion of the contract and they become known later, we are entitled to resign from contract at our discretion or require immediate cash payment of all outstanding invoices, even if all invoice amounts had been partially or completely deferred or paid by bill of exchange before. In particular a worse credit rating by a credit rating agency, a protest of a check or bill of exchange, garnishments, suspension of payment, opening of insolvency proceedings as well as the refusal of opening of insolvency proceedings in the absence of assets are deemed to be such deteriorations. In the event that we do not resign from the contract in spite of a deterioration of our financial circumstances, we will only execute deliveries with advance payment.
IV. Delivery Date/Delivery Deadline
(1) General Terms for Delivery Dates/Delivery Deadlines
If nothing else is stipulated, our specifications for delivery dates and deadlines in our offers are to be understood as preliminary and still non-binding estimations. Provided that binding delivery dates and deadlines are stipulated, these are deemed as appropriately prolonged if they cannot be complied with due to circumstances for which we are not responsible. In principle, a deadline of one month is deemed appropriate for the prolongation, as far as no shorter or longer deadline is adequate on a case-by-case basis considering both parties’ interests or another deadline is stipulated in written form.
Delivery deadlines commence with the date of our written confirmation, however, not before clarifying all execution details and all the other prerequisites which the customers must create in order to ensure proper processing of the contract. The same applies to delivery dates.
(2) Firm Deals
The stipulation of binding firm dates or firm delivery deadlines requires an explicit designation as a firm deal and our confirmation in written form.
(3) Obligations to Cooperate
The customer is obliged to provide all the data, documents, and other specifications regarding the order, required for the execution of the contract, however, at least immediately after having placed the order.
If such documents and data are not provided in a timely manner, the customer cannot invoke the compliance with delivery dates or deadlines. In this case, the enforcement of damage caused by delay is excluded. The delivery date or the delivery deadline shall be deemed as adequately prolonged.
V. Transfer of Risk
(1) Transfer of Risk with Dispatch
As far as nothing else is stipulated, the risk of loss and deterioration of the delivery is transferred to the customer as soon as the delivery leaves the supplier’s premises. This also applies when the dispatch is executed at our expense or with our means of transport.
The dispatch is performed at the customer’s risk in all cases, even if a freight-paid delivery is stipulated.
(2) Transfer of Risk with the Notification for the Readiness of Dispatch
If the delivery is delayed upon request of the customer or due to reasons for which we are not responsible, the risk is transferred to the customer upon notification for the readiness of dispatch.
(1) General Price Terms
Insofar as nothing else is stipulated with the customer in an individual case, our prices are ex works including packaging, delivery, and dispatch costs, plus the current legal value added tax, and they are quoted in Euro for all deliveries, even for deliveries outside of the European Monetary Union.
(2) Price Adjustment/Increase, Agreement for Material Prices
Insofar as nothing else is stipulated, the prices indicated by us are non-binding. In the event that price increases, in particular in terms of costs for supplier products, material, commodity, energy and transport costs occur after the conclusion of the contract or if they occur due to the alteration of exchange rates of tariffs or similar fiscal burdens amounting to at least 5 %, we are entitled to adequately adjust the prices. The same applies if there is a period of more than 3 months between the order (call order) and delivery, as long as a new price list has obtained its validity in the course of this period.
A price adjustment/increase is excluded if this is deemed unacceptable for the customer.
(3) Packaging and Packaging Material/Duty to Dispose of Packaging/Remuneration
Insofar as we are legally obliged by the packaging ordinance to take transport and outer packaging back, the customer, who is not the final consumer, will comply with the take-back obligation incumbent on us as a third-party commissioned by us within the meaning of § 11 packaging ordinance. The preceding regulation applies accordingly for legal take-back obligations concerning transport and outer packaging in other member countries of the European Union.
VII. Terms of Payment
(1) Payment Deadlines
The invoiced amounts are to be paid 30 days net without deduction upon receipt of invoice if nothing else is stipulated. All payments are first credited against interest and costs and then against the respectively older claim. The right of the customer to specify the performance, in accordance with § 367 (2) BGB, is waived.
(2) Default Interest
In the event of default in payment by the customer, the latter shall pay interest at a rate of 9 percentage points above the base interest rate of the European Central Bank (ECB) on the outstanding payment claim, subject to the assertion of further damage caused by delay. In addition, we shall be entitled to refuse to provide deliveries and services on the basis of subsequent orders until the outstanding invoices have been settled in full.
(3) Exchange and Check Payment
Bills of exchange shall only be accepted by explicit stipulation and - like checks - only on account of payment and subject to acceptance in individual cases. Discount and other charges are to be borne by the customer.
(4) Other Interferences with the Consideration
The delivery is performed with the assumption of creditworthiness and solvency of the customer. In the event of default in payment, non-clearing of checks or bills of exchange, opening of debt regulations proceedings, non-compliance with terms of payment, worse credit rating by a credit rating agency and existence of circumstances which provoke a worsening of the customer’s creditworthiness, we are always entitled to appropriately adjust the contractual conditions and to resign from the contract after final performance refusal.
(5) Offset and Right of Retention
The customer shall only be entitled to an offset or retention right against our outstanding claims due to own counterclaims to the extent of synallagmatic receivables which originate from the same legal relationship as the receivable offset, or receivables which have been legally established or acknowledged in writing.
VIII. Retention of Title
(1) Stipulation of Retention of Title
The delivered goods (reserved goods) shall remain our property until all claims against the customer to which we are entitled under the business relationship have been complied with. The customer does not obtain partial ownership of the contractual object through partial payments but rather corresponding expectant rights. Bills of exchange and checks only apply after effected clearing as payment.
(2) Extended Retention of Title
In case of processing or combination with other goods, which do not belong to us, by the customer in order to form a new uniform item, we are entitled to co-ownership of the new item in relation to the value of the reserved goods to the value of the other processed and/or added goods at the time of processing and/or combination. Therefore, the co-ownership occurring for us shall be deemed to be reserved goods within the meaning of those terms.
(3) Sale and Assignment in Advance
The customer can only sell the goods which are under our retention of title in the ordinary course of business and only as long as he is not in default with the settlement of all our claims. The customer already cedes his claims on a further sale of the reserved goods to us in order to ensure all of our claims from the business relationship. We thereby accept this cession. If the reserved goods of the customer are sold together with other goods not belonging to us or with co-ownership rights, the claim of the further sale is only deemed to be ceded to us in the amount of the value of our reserved goods.
The value of the reserved goods is respectively measured by our invoice value. The customer is entitled to revoke the claims from the further sales ceded to us, until our revocation which can occur at any time.
(4) Endangerment of Ownership Rights
While the retention of title exists, the customer is prohibited from sale or transfer by way of security. In case of garnishments, confiscations or other court orders or interventions by third-parties, in particular by way of compulsory execution, the customer must immediately notify us in writing.
(5) Handover Obligation
If the customer completely or partially defaults on the settlement of our claims, we are entitled to require the handover of the reserved goods and/or to dispose of them at any time as well as to withhold outstanding deliveries, even if we did not cancel the purchase. A further reminder or deadline is not necessary for this. The enforcement of rights on retention of title by us is not deemed to be a resignation from the contract.
(6) Security Release
If the value of the securities, to which we are entitled in accordance with the above-mentioned stipulations, exceeds the outstanding invoice value by more than 20 %, we shall be obliged, at the request of the customer, to release excess securities at our discretion, subject, however, to the proviso that, with the exception of deliveries in a genuine current account relationship, the release must only be granted for those deliveries or their replacement values which have themselves been paid for in full.
IX. Material Defects
(1) Quality Specifications
The quality of the product, which we deliver, is concludingly described by the content of our written or electronic offer documents and/or our brochures, catalogs, CDs, or other data carriers. Insofar as nothing else is stipulated in written form, the use, arising from our offer, is deemed to be the only contract content. As far as they have not explicitly been denominated as being of guaranteed quality, the entire content included in our offer documents and other printed material as well as on data carriers merely constitutes a product description and do not include an offer on concluding a guarantee agreement. The same applies to the content of our advertising.
(2) Examination and Reprimand Duty of the Customer
The customer is obliged to immediately inspect the delivery object after receipt of goods within the framework of his regular course of business and to inform us promptly of possible defects in written form and preferably in a detailed manner as well as not later than three days after having received the goods. If the customer refrains from giving notice, the delivery object is deemed to be authorized, unless it involves a defect which was not recognizable during the examination. If such a defect appears later, then notice has to be given immediately, however, at the latest three days after detection; otherwise the delivery object is also deemed to be authorized in spite of the defect. The same applies to an incorrect or incomplete delivery unless the delivery object obviously deviates from the order in such a significant manner that we were obliged to consider the authorization of the customer to be excluded. § 377 HGB (German Commercial Code) applies.
(3) Insignificant Defects, Third-party Responsibility
Claims for defects do not merely exist in case of an insignificant deviation from the stipulated quality, insignificant impairment of the usability, natural wear or damages which come into existence following the transfer of risk due to faulty or negligent treatment, excessive use, inappropriate operating material, chemical, electrochemical, electronical or electrical influences or other particular external influences, that are not implied after the contract, as well as due to non-reproducible software errors.
If the customer or third parties carry out improper modifications or repair work, if serial numbers on delivered devices/components/systems are made unrecognizable, if date labels, CE or TÜV test seals or other security markings attached to the product are removed or destroyed, there shall also be no claims for defects for these and the resulting consequences.
The customer may not refuse the acceptance of deliveries due to insignificant defects. Claims for defects do not exist either if the customer does not meet his obligation to cooperate sufficiently or in a faulty manner in accordance with Section IV, sec. 3 of these terms, and a defect has at least partially been caused hereby.
(4) Liability for Material Defects
Our products and/or services are repaired or delivered in addition at our discretion and free of charge, if a material defect appears within the statute of limitation, as far as its cause had already been present at the time of the transfer of risk, for which the customer is obliged to provide proof and evidence. First, we are to be granted an appropriate deadline for that rectification. If our rectification attempts fail, if we are unwilling or incapable or if it experiences an undue delay, the customer can withdraw from the contract or demand the reduction of the purchase price. Possible damage claims remain unaffected by this.
(5) Warranty Period
Insofar as nothing else is stipulated, material defect claims come under the statute of limitations within twelve months. This does not apply insofar as the law, in accordance with §§ 445b, 445c BGB (recourse claim), prescribes longer deadlines or also in cases of injury to life, body or health, a premeditated or serious breach of duty on our part and malicious non-disclosure of a defect. The legal regulations concerning expiry suspension, suspension and restart of deadlines remain unaffected.
(6) Reimbursement of Expenses
The customer shall have no claim with respect to expenses incurred during supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the delivery object has subsequently been brought to another location than the customer's branch office, unless doing so complies with the intended use of the delivery.
(7) Restriction of Recourse Claims
Recourse claims of the customer only exist against us in accordance with §§ 445a sec. 1 and 2, 445b, 475b, 475c, 478 BGB (recourse of the entrepreneur) insofar as the customer has not made any stipulations with his purchaser exceeding the legal claims for defects and/or no further compensation scheme exists between us and the customer within the meaning of § 478 sec. 2 BGB.
(8) Return of Defective Products
Insofar as the customer makes use of our services on the basis of warranty, he is obliged to return the defective products of our choice to us carriage free or to have them ready for inspection and examination for defects at his branch office.
(9) Other Damages
Claims for damages shall otherwise be subject to sec. XI. (Other Claims for Damages) of these general terms and conditions of sale and delivery. Further claims or claims other than those regulated in sections IX and XI by the customer against us and our vicarious agents due to a material defect are excluded.
X. Defects of Title, Commercial Protective Rights, Copyrights
(1) Third-party Protective Rights
Insofar as nothing else is stipulated, we are obliged to perform the delivery merely within Germany either devoid of commercial protective rights and third-party copyrights (hereafter: protective rights) or on the basis of an effective license agreement. Insofar as a third-party lodges justified claims against the customer due to the violation of protective rights by deliveries made by us and utilized in accordance with the contract, we shall be liable to the customer within the deadline stipulated in sec. IX no. 5 as follows:
a) We will obtain either a right of use for the respective deliveries at our discretion and at our expense, or change them in such a way that the protective rights are not violated, or exchange them. If this is not possible for us under appropriate conditions, the customer is entitled to the legal rights to withdraw and rescind.
b) Our obligation to the potential performance of damages applies on the basis of sec. XI of these general terms and conditions of sale and delivery.
c) Our above-mentioned obligations only remain insofar as the customer immediately notifies us in written form of the claims lodged by third-parties, if he does not recognize a violation and all defensive measures and settlement negotiations remain reserved for us. If the customer suspends the use of the delivery on grounds of a mitigation of damages or other important reasons, he shall be obliged to indicate that no recognizance is included with the suspension.
(2) Accountability of the Customer
Claims of the customer are excluded insofar as he is accountable for the violation of protective rights.
(3) Other Grounds for Exclusion
Furthermore, claims of the customer are excluded, insofar as the violation of protective rights is caused by special requirements of the customer, a use which is not foreseeable for us, or due to modifications of the delivery made by the customer or that it is used in combination with products which were not delivered by us.
(4) Other Defects of Title
At sight of other defects of title, the regulations of section IX apply accordingly.
(5) Exclusion of Further Claims
Further or other claims than those regulated in section X as well as in section IX and XI of the customers against us and our vicarious agents due to a defect of title are excluded.
XI. Other Claims for Damages
(1) Exclusion of Liability
Claims for damages and reimbursement of expenses of the customer, irrespective of their legal grounds, in particular due to a breach of duty from the contractual obligation and from an unauthorized act, are to be excluded.
(2) Mandatory Liability
This does not apply as far as liability is mandatory, e.g., in accordance with the product liability law, in cases of willful intent, gross negligence, injury to life, body or health, the infringement of significant contractual obligations and due to the acceptance of guarantee.
However, the claim for damages and reimbursement of expenses for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability exists due to injury to life, body, or health. An alteration of the burden of proof to the detriment of the customer is not associated with the above-mentioned regulations.
(3) Statue of Limitation
Insofar as the customer is entitled to claims for damages, in accordance with section XI, these come under the statute of limitations upon expiration of the limitation period valid for material defect claims as per section IX sec. 5. The legal statute of limitation applies, in accordance with the product liability law, for claims for damages.
(1) Withdrawal by the Customer
The customer’s legal right to withdraw does not presuppose any fault at sight of a defective delivery. In all other cases, the customer can only withdraw at sight of a breach of duty for which we are accountable.
(2) Data Protection
In the course of the initiation and the performance of the contract, we will automatedly process personal data, if necessary. This occurs in accordance with the relevant legal regulations. We refer to our data protection information which you can see by clicking on the following link:https://www.syskomp-group.com/pdf/agb/Informationspflichten_13_DSGVO.pdf.
XIII. Place of Performance and Jurisdiction/Applicable Law
(1) Place of Performance
The place of performance for both services, due from the contract, is Amberg.
(2) Place of Jurisdiction
The sole place of jurisdiction for all disputes, arising directly or indirectly from the contractual relationship, is Amberg. However, we are also entitled to file a suit at the customer’s registered office.
(3) Applicable Law
Regarding the legal relationship between us and the customer, exclusively the right of the Federal Republic of Germany is valid, excluding the convention of the United Nations on Contracts for the International Sale of Goods (CISG).