General Terms & Conditions
syskomp gehmeyr GmbH
General Terms and Conditions of syskomp gehmeyr GmbH, 92224 Amberg, Germany
Section 1 General Provisions
These General Terms and Conditions in the version valid at the time of contract conclusion apply to all business relationships between syskomp gehmeyr GmbH, Max-Planck-Straße 1, 92224 Amberg, Germany, represented by its managing director, Jan-Hendrik Aschmann, and the customer. Contrary general terms and conditions of the customer are hereby expressly rejected.
b) Contract Agreement
The contract language is German. Customers of syskomp gehmeyr GmbH are exclusively entrepreneurs (Unternehmer) in the sense of Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB].
c) Subsequent Changes to These General Terms and Conditions
syskomp gehmeyr GmbH may make subsequent adjustments or additions to these General Terms and Conditions for existing business relationships if required by changes in law or case law or if other circumstances affect the contractual balance more than insignificantly. Subsequent changes to these General Terms and Conditions will become effective if the customer does not object within 6 weeks of receiving notice of the changes. At the beginning of the notice period, syskomp gehmeyr GmbH will expressly inform the customer about the interpretation of silence as consent to the contractual changes and will allow the customer to submit a clear statement during the notice period. If the customer objects in time, both syskomp gehmeyr GmbH and the customer may terminate the contractual relationship extraordinarily.
Section 2 Contract Conclusion
a) General Provisions
Contracts concerning the purchase of goods and custom orders may not be concluded over the Internet, but individually through an offer and acceptance. The contract text will not be saved. The contents of contract will follow the individual agreement.
b) Offers & Acceptance Deadlines
Unless expressly specified as binding, offers of syskomp gehmeyr GmbH are non-binding. Such specification may also follow from a specified acceptance period. syskomp gehmeyr GmbH may accept orders within 10 days.
Contracts must be concluded in writing. All contractual agreements must therefore be concluded in written form.
Section 3 Place of Performance
The place of performance for obligations under the contractual relationship is the registered office of syskomp gehmeyr GmbH in Amberg, Germany.
Section 4 Delivery
a) General Provisions
Deliveries will be made ex works (Incoterms 2000). If goods are sent to a location other than the place of performance at the customer’s request, risk will be transferred to the customer when syskomp gehmeyr GmbH hands the goods over to the forwarder, carrier or person designated for shipping. The start of and compliance with agreed delivery periods require compliance with the customer’s cooperation obligations. These especially include providing necessary documents and permits and settling agreed payments in time.
b) Minimum Order Value
The minimum order value is 50 euros.
c) Tolerance for Contracts
Deviations from ordered quantities of goods of up to 10% must be tolerated.
d) Partial Deliveries
syskomp gehmeyr GmbH may make partial deliveries if reasonable for the customer. Partial deliveries will not result in additional shipping costs for the customer.
e) Delivery and Service Delays
syskomp gehmeyr GmbH is not responsible for delivery or service delays caused by force majeure or extraordinary and unforeseeable events (especially strikes, administrative or court orders and cases of incorrect or improper self-delivery despite a corresponding covering transaction) that cannot be prevented despite syskomp gehmeyr GmbH’s utmost diligence. Such circumstances allow syskomp gehmeyr GmbH to postpone delivery for the duration of the impeding event.
In case of non-availability for the above-stated reasons, syskomp gehmeyr GmbH may withdraw from the contract. In such cases, syskomp gehmeyr GmbH will inform the customer about the non-availability and refund any corresponding payments without undue delay.
g) Late Acceptance
If the customer does not accept ordered goods in time, syskomp gehmeyr GmbH may withdraw from the contract and claim damages for non-performance after an appropriate grace period. As long as the customer does not accept the ordered goods in time, the customer must bear the risk of random destruction or deterioration.
syskomp gehmeyr GmbH packages deliveries professionally. Packaging and shipping costs must be borne by the customer.
Section 5 Payment
a) Prices & Shipping Costs
Prices do not include VAT. Packaging and shipping costs stated separately must also be added, unless the customer picks up the order at syskomp gehmeyr GmbH’s registered office in Amberg, Germany, or establishment in Regensburg, Germany, Auerbacher Str. 2. Prices are specified by syskomp gehmeyr GmbH’s price list.
b) Purchase Contract Discounts
If the customer pays the purchase price of a purchase contract within 14 days of receipt of the invoice, syskomp gehmeyr GmbH may grant a 2% discount.
c) Purchase Contract Payment Default
The customer will default on payments that are not received by syskomp gehmeyr GmbH within 30 days of receipt of the corresponding invoice. In case of default, interest of 9% above the base interest rate of the European Central Bank will be charged. Should the customer default on payments, syskomp gehmeyr GmbH may charge a EUR 2.50 payment reminder fee. The exercise of further damages will remain unaffected. The customer may prove that syskomp gehmeyr GmbH incurred no or fewer damages.
d) Service Contract Settlement
The following payment conditions apply to service contracts whose order volume exceeds EUR 25,000:
50% of the price must be paid upon receipt of the order.
40% of the price must be paid upon delivery / completion of the service.
10% of the price must be paid following acceptance.
e) Rights of Retention
The customer may only exercise rights of retention for counterclaims that are due and based on the same legal relationship as the customer’s obligations.
Section 6 Goods Returns
At the customer’s request, syskomp gehmeyr GmbH may take back delivered and defect-free goods. This requires the otherwise usable goods to be in the same flawless condition as delivered and the customer to bear an appropriate deduction for the assessment and restocking by syskomp gehmeyr GmbH’s supplier. Warranty rules will remain unaffected by this regulation.
Section 7 Customer’s Responsibility for Service Contracts
a) Contents of Customers Orders
The customer is responsible for the content and accuracy of transmitted data and information for customer orders. The customer may not transfer data whose content infringes on third-party rights or applicable laws. By transferring data to syskomp gehmeyr GmbH, the customer confirms the customer’s compliance with copyright regulations.
b) Third-Party Claims
The customer must hold syskomp gehmeyr GmbH harmless of any claims exercised by third parties against syskomp gehmeyr GmbH due to such infringements. This includes refunding necessary legal defense costs.
c) Data Security
The customer shares responsibility for securing transmitted information. Because syskomp gehmeyr GmbH does not provide a general data security guarantee, syskomp gehmeyr GmbH cannot be held responsible for the loss of information transmitted by the customer.
d) Legal Compliance
syskomp gehmeyr GmbH performs service contracts on the basis of the customer’s specifications. These specifications must especially include all measures for legal compliance and accident prevention and security regulations that syskomp gehmeyr GmbH must cover as part of the order.
e) Property Rights Establishment
Only syskomp gehmeyr GmbH will be entitled to property rights (e.g., copyrights) established for syskomp gehmeyr GmbH through service performance.
f) Preparatory Work of the Customer
To begin order performance undisturbed (e.g., setup, assembly and commissioning), the customer must do the following at the customer’s expense by the agreed performance date:
• Prepare the construction site, equipment and facilities ready for assembly.
• Provide the necessary manpower, material and tools as agreed with syskomp gehmeyr GmbH for required ancillary work not included in the order.
• Supply power, water, light, fuel, lubricants, lifting devices, scaffolding and other equipment for assembly and commissioning.
• Provide appropriate work, recreational, storage and sanitary rooms for syskomp gehmeyr GmbH’s assembly staff, delivery objects and tools.
• Ensure appropriate security for syskomp gehmeyr GmbH’s assembly staff and property.
• Perform any additional work for regulations concerning syskomp gehmeyr GmbH’s services about which syskomp gehmeyr GmbH informs the customer.
g) Additional Costs for Assembly and Service Work
Unless agreed otherwise between syskomp gehmeyr GmbH and the customer, syskomp gehmeyr GmbH will invoice assembly and service work at the respectively applicable rates. If setup, assembly or commissioning are delayed by conditions for which the customer is responsible, syskomp gehmeyr GmbH will invoice the costs for downtime and additional travel of the assembly staff in accordance with the respectively applicable rates.
h) Acceptance Agreement
If acceptance is agreed, the customer must accept the service within 14 days of its reported completion. Otherwise, the service will be considered accepted, unless the customer unlawfully refuses acceptance due to service defects. The same applies if the customer uses delivery objects without acceptance.
Section 8 Information & Documents
Weights and measures, drawings, explanations, descriptions and figures transmitted by syskomp gehmeyr GmbH to the customer are non-binding unless expressly confirmed by syskomp gehmeyr GmbH. syskomp gehmeyr GmbH reserves the right to make changes to delivery objects or the offer’s underlying technical concept insofar as the performance and quality of the offered services will not be impaired thereby.
Section 9 Retention of Title
a) General Provisions
Goods, services and material delivered by syskomp gehmeyr GmbH will remain the property of syskomp gehmeyr GmbH until all current and future claims under the business relationship have been fully settled. The customer must treat objects subject to retention of title diligently at all times. The customer must assign to syskomp gehmeyr GmbH any claims or compensation the customer receives for damage to or the destruction or loss of these objects. Unless agreed otherwise hereafter, the customer may not use as collateral, sell, gift or pledge delivered objects.
b) Seizure and Other Impairments
If an object subject to retention of title is seized or otherwise impaired by third parties, the customer must notify syskomp gehmeyr GmbH without undue delay to file suit in accordance with Section 771 of the German Code of Civil Procedure [Zivilprozessordnung, ZPO]. If a third party is unable to refund the court and out-of-court costs of a suit under Section 771 of the German Code of Civil Procedure, the customer will be liable to syskomp gehmeyr GmbH for the resulting deficit.
Goods subject to retention of title may only be resold by the customer through the ordinary course of business. The customer already hereby assigns to syskomp gehmeyr GmbH any claims of the buyer for the final invoice amount (incl. VAT) from the resale of goods subject to retention of title. This assignment applies irrespective of whether the purchase object is sold without or in accordance with an agreement. The customer will remain authorized to collect the claim even after its assignment. The authorization of syskomp gehmeyr GmbH to collect the claim by itself will remain unaffected thereby. However, syskomp gehmeyr GmbH will not collect the claim as long as the customer satisfies the payment obligations for the generated income and is not in default and, especially, insolvency applications are not requested and payments are not suspended.
d) Modification, Editing & Processing
Any editing, processing or modification of the purchase object by the customer will be performed in the name and on behalf of syskomp gehmeyr GmbH. In this case, the customer’s expectant rights to the purchase object will continue to apply to the modified object. If the purchase object is processed with other objects that do not belong to syskomp gehmeyr GmbH, syskomp gehmeyr GmbH will acquire co-ownership of the new object for the ratio of the objective value of syskomp gehmeyr GmbH’s purchase object to the other processed objects at the time of processing. The same applies in case of mixing. If mixing is performed in a manner that requires the customer’s object to be considered the main object, the customer must transfer proportional ownership to syskomp gehmeyr GmbH and keep the resulting sole ownership or co-ownership for syskomp gehmeyr GmbH. To secure claims against the customer, the customer must also assign claims to syskomp gehmeyr GmbH that are established for the customer against a third party by combining the reserved goods with real estate property; syskomp gehmeyr GmbH already hereby accepts this assignment.
If the customer acts in breach of contract, especially through payment default, but also if insolvency proceedings are requested for the customer’s assets, syskomp gehmeyr GmbH may withdraw the object. Withdrawal of the object does not represent withdrawal from the contract, unless declared expressly by syskomp gehmeyr GmbH in writing.
f) Collateral Release
If the value of collateral exceeds the value of secured claims by more than 15%, syskomp gehmeyr GmbH must release the collateral if requested by the customer.
Section 10 Rights to Catalogs, Drawings and Models
The contents of catalogs, drawings, models and other documents, including authorized copies, prepared by syskomp gehmeyr GmbH are the real and intellectual property of syskomp gehmeyr GmbH. Reprints of catalogs or drawings and reproductions of models, including excerpts, require the written authorization of syskomp gehmeyr GmbH.
Section 11 Warranties (Purchase Contracts / Delivery Contracts)
a) Warranty Claims
Warranty rights are granted. Warranty claims may only be established for goods’ condition. Reasonable differences among goods’ aesthetic characteristics are not subject to warranty claims. If guarantees are granted in addition to warranty claims, the exact conditions may be found with the product. Possible guarantees will not affect warranty rights. In case of defects, syskomp gehmeyr GmbH will, at its discretion, either remedy the defect or provide a replacement delivery. Risk of random destruction or deterioration of the object will be transferred upon the handover to the person designated for transport. Warranty claims will expire within 1 year of the specified transfer of risk.
b) Rights for Insignificant Defects
In case of merely insignificant defects, the customer may only appropriately reduce the purchase price under exclusion of withdrawal rights.
c) Compensation for Defects
Warranties do not cover damage caused by improper treatment or use of the goods. syskomp gehmeyr GmbH will only provide compensation for defects of goods in case of intent or gross negligence. This exclusion does not apply to liability for damage resulting from injuries to life, limb or health. This exclusion also does not apply to the regulations of the German Product Liability Act [Produkthaftungsgesetz, ProdHaftG].
d) Reporting Obligations
Customers must report any obvious defects in writing without undue delay and any hidden defects without undue delay upon discovery; otherwise, warranty claims cannot be exercised. The deadline will be met if the report is sent in time. The entire burden of proof for any claims, especially for the defects, the time of discovery and the accuracy of the report, must borne by the customer.
e) Warranty for Used Goods
Warranties are not provided for used goods. However, this does not include liability for damage resulting from injuries to life, limb or health. This exclusion also does not apply to the regulations of the German Product Liability Act.
Section 12 Warranties (Service Contracts)
a) Warranty Claims
Warranty rights are granted. If a service is defective and the customer demands subsequent performance, syskomp gehmeyr GmbH may, at its discretion, either remedy the defect or perform another service. If defects are not remedied after 2 attempts, the customer may withdraw from the contract or reduce the price.
b) Rights for Insignificant Defects
In case of merely insignificant defects, the customer may only appropriately reduce the service fee under exclusion of withdrawal rights.
c) Compensation for Defects
Warranties do not cover damage caused by improper treatment or use. syskomp gehmeyr GmbH will only provide compensation for defects of goods in case of intent or gross negligence. This exclusion does not apply to liability for damage resulting from injuries to life, limb or health. This exclusion also does not apply to the regulations of the German Product Liability Act.
d) Transfer of Risk
Risk of random destruction or deterioration of the object will be transferred to the customer upon the handover to the person designated for transport.
Warranty claims will expire within 1 year of the transfer of risk.
Section 13 Liability
Information about possible processing and applications of products sold by syskomp gehmeyr GmbH and technical consultation and other information are provided to the best of syskomp gehmeyr GmbH’s knowledge. The liability exclusions and limitations of the following regulations apply.
b) Liability Exclusion
syskomp gehmeyr GmbH and its legal representative and vicarious agents will only be liable for intent or gross negligence. In case of grossly negligent violations of non-essential contractual obligations, syskomp gehmeyr GmbH will only be liable for the amount of foreseeable direct average damage typical to the contract. Liability for simple negligence only applies where essential contractual obligations (obligations on whose compliance achievement of the contract’s purpose depends or that are of special importance) are affected. Such liability is limited to foreseeable direct average damage typical to the contract.
c) Liability Limitation
The above liability exclusion does not apply to liability for damage resulting from injuries to life, limb or health. This exclusion also does not apply to the regulations of the German Product Liability Act.
Section 14 Other
a) Data Protection
Section 15 Final Provisions
a) Place of Jurisdiction
The exclusive place of jurisdiction for any legal disputes under the contract is the registered office of syskomp gehmeyr GmbH in Amberg, Germany, if the customer is a merchant, legal person under public law or a special fund under public law or if the customer has no place of jurisdiction in the Federal Republic of Germany.
b) Choice of Law
Unless prevented by applicable national laws of the customer, German law applies under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
c) Severability Clause
The invalidity of individual regulations will not affect the validity of the remaining regulations of these General Terms and Conditions.
syskomp gehmeyr GmbH - emico
General Terms and Conditions syskomp gehmeyr GmbH - emico - emico, 92224 Amberg
§ 1 General
a) Scope of Application
These general terms and conditions apply to all business transactions between syskomp gehmeyr GmbH - emico, Max-Planck-Straße 1, 92224 Amberg, represented by Managing Director Jan-Hendrick Aschmann, and the customer. The version valid at the time the contract was entered into shall apply. Any contradicting terms and conditions issued by the customer are expressly excluded.
b) Contractual Agreement
c) Retrospective Changes tot he Terms and Conditions
syskomp gehmeyr GmbH - emico is permitted to carry out retrospective changes to the general terms and conditions for existing business relationships, insofar as changes to the law or jurisdiction or other circumstances mean that the contractual balance has been considerably affected. Retrospective changes to the terms and conditions shall be valid as long as the customer does not contest the changes within six weeks of being informed of intended changes. syskomp gehmeyr GmbH - emico shall remind the customer of the consequences of remaining silent at the beginning of this contesting period, and allow the customer the chance to provide an express declaration. If the customer contests within the deadline, both syskomp gehmeyr GmbH - emico and the customer are permitted to extraordinarily terminate the contract.
§ 2 Registration / Conclusion of Contract
In order to fully use this website, it is first necessary to create a customer account. You will be asked to enter data necessary for syskomp gehmeyr GmbH - emico to carry out its services. Entries must be confirmed by clicking on the ‘register’ button. The customer will receive a confirmation email with information required for logging in. Registration is complete once the customer has used this information to log into the syskomp gehmeyr GmbH - emico website.
The customer must keep his/her password, which allows the customer access to the personal area, strictly confidential and must not transfer it to third parties. The customer shall carry out suitable and reasonable measures to prevent third party access to his/her password. A customer account may not be transferred to another user or any other third party.
b) Conclusion of Contract
The presentation of goods in the syskomp gehmeyr GmbH - emico online shop is non-binding. The order process on this website is made up of four steps. Firstly, the customer selects the desired wares. Secondly, he/she enters data, including the billing address and a separate shipping address if applicable, insofar as these are not saved to the customer account. Thirdly, the customer selects a payment method and delivery option. Finally, the customer can check all entries (e.g. name, address, payment method, order products) and correct any errors if necessary, before clicking on ‘order’ to confirm the order. By ordering, the customer creates a binding offer. syskomp gehmeyr GmbH - emico will immediately confirm receipt of the customer’s offer. This confirmation does not constitute an acceptance of the offer. syskomp gehmeyr GmbH - emico is permitted to bindingly accept the order offer within two days of receiving the order by issuing a notification via email, fax, telephone or post, or by dispatching the ordered wares. Once the order is accepted, a contract is created between the customer and syskomp gehmeyr GmbH - emico.
c) Saving the Contract Text
The contractual text is saved by syskomp gehmeyr GmbH - emico and sent to the customer along with the relevant terms and conditions and customer information texts (e.g. via email, fax or post). The customer cannot access the contractual text via the website again once the order has been placed. The customer can use their browser’s printing function to print out the relevant web page with the contractual text.
d) Conclusion of Contract for Custom Products
Customers can commission syskomp gehmeyr GmbH - emico with the production of custom products. The contract in this case takes the form of an individual contract and a related declaration of acceptance. This contract must be concluded in writing. All contractual agreements must be made in writing.
§ 3 Delivery
a) Minimum Quantity Surcharge
If the customer lives within Germany or the EU and his/her order does not exceed EUR 25, there shall be a minimum delivery charge of EUR 10. If the customer lives outside the EU and his/her order does not exceed EUR 50, there shall be a minimum delivery charge of EUR 50.
b) Tolerance for Business Contracts
Any deviations in the ordered amount of wares of up to 10% shall be acceptable as a tolerance if the contract is with a business.
c) Partial Deliveries
syskomp gehmeyr GmbH - emico is permitted to carry out partial deliveries if this is reasonable to the customer. The customer shall not incur additional delivery charges for partial deliveries.
d) Delivery and Service Delays
syskomp gehmeyr GmbH - emico is not responsible for delays in deliveries or services due to force majeure or unusual and unforeseeable circumstances that were not able to be prevented by syskomp gehmeyr GmbH - emico (this especially includes strikes, governmental or judicial injunctions and cases of incorrect or improper self-delivery in spite of hedging transactions). Such circumstances allow syskomp gehmeyr GmbH - emico to delay the delivery for the duration of the obstacle.
If wares are not available due to the circumstances outlined above, syskomp gehmeyr GmbH - emico may withdraw from the contract. syskomp gehmeyr GmbH - emico is obliged to immediately inform the customer about the lack of availability and to immediately refund any payment already received.
f) Delivery Exclusion
We do not deliver to PO boxes.
g) Default of Acceptance
If the customer is in default of acceptance of the ordered wares, syskomp gehmeyr GmbH - emico is permitted to set a reasonable deadline and, if this deadline passes unobserved, to demand damage compensation either for default or for non-fulfilment. During this default of acceptance, the customer shall bear the risk of accidental loss or deterioration.
h) Performance Time
Unless otherwise expressly agreed in writing, syskomp gehmeyr GmbH - emico shall deliver within 5 days. This deadline begins the day after the transferring bank has provided a notification of payment if the order is being paid for in advance, and the day after the contract was concluded if the order is to be paid for by invoice or cash on delivery. This period shall end on the fifth following day. If this last day falls on a Saturday, Sunday or public holiday at the delivery destination, the deadline shall be moved to the next valid delivery day.
§ 4 Place of Fulfilment for Business Contracts
The syskomp gehmeyr GmbH - emico head office in Amberg is agreed as the place of fulfilment for all obligations arising from a contractual relationship with a business. All deliveries are ex works. If the wares are being sent to a different location than the place of fulfilment at the customer’s request, risk shall be transferred to the customer as soon as syskomp gehmeyr GmbH - emico has transferred the wares to the courier, freight service provider or any other delivery agent.
§ 5 Payment
a) Prices and Delivery Costs
All prices stated in contracts with consumers include VAT. In business contracts, prices do not include VAT. Costs for postage and packaging are listed separately, unless the customer has arranged to pick up the order from syskomp gehmeyr GmbH - emico in Amberg. For international deliveries, the customer is responsible for settling any applicable customs charges and tax.
syskomp gehmeyr GmbH - emico reserves the right to agree on a discount with the customer.
c) Default of Payment
d) Right of Retention
The customer may only exercise the right of retention for counterclaims that are payable and relating to the same contract as the customer’s obligation.
§ 6 Right of Withdrawal Explanation for Consumers in Distance Sales Contracts
Right of Withdrawal
You have the right to withdraw from this contract within fourteen days without providing a reason.
The right of withdrawal is valid for fourteen days from the day on which you or a third party named by you that is not the carrier received possession of the wares/the last wares.
In order to honour the withdrawal deadline, it is sufficient that you dispatch the notification before the end of the deadline.
Repercussions of Withdrawal
If you withdraw from this contract, we will refund all payments already received from you including delivery costs (excluding additional costs if you selected a different delivery option than our cheapest standard delivery option) within fourteen days of the day we received your notification of withdrawal. For this payment, we shall use the same payment method you used for the initial transaction unless otherwise agreed with you. You will not be charged by us for this transaction. We can refuse refunds until we have received the wares or until we have received evidence that you have dispatched the wares, whichever is earlier.
You must dispatch or hand over the wares to us within fourteen days from the day you sent the notification of withdrawal. This deadline is considered honoured if you dispatch the wares by the end of the deadline. You will cover the costs of returning the wares.
You must only cover any loss of value to the wares if this loss can be traced back to you during an inspection of the ware’s quality, properties and function.
- End of Withdrawal Explanation -
Exclusion of the Right of Withdrawal
The right of withdrawal does not apply to contracts for the delivery of wares that are not prefabricated and whose manufacture is based on an individual decision or requirement issued by the consumer, or that are obviously adapted to suit the consumer’s personal requirements.
§ 7 Return of Ordered Wares
Customers can return ordered products (apart from custom products) within 30 days of receipt as long as the product is complete, new and not damaged. In this case, syskomp gehmeyr GmbH - emico shall refund the purchase price minus 30% of the product value. The customer’s right of withdrawal and guarantee are generally not affected.
§ 8 Customer Obligations for Custom Products
a) Custom Products
The customer is solely responsible for the content and correctness of the transferred data for custom orders. He/she is also obliged to not provide any data that infringes third party content rights (e.g. personal rights, naming rights, trademark, copyright etc) or that violates any applicable laws.
The customer shall indemnify syskomp gehmeyr GmbH - emico from all third party claims relating to such infringements against syskomp gehmeyr GmbH - emico. This also includes reimbursing costs for necessary legal representation.
c) Data Security
The customer is responsible for ensuring transferred information is secure. syskomp gehmeyr GmbH - emico cannot be held liable for the loss of information transferred by the customer, as syskomp gehmeyr GmbH - emico does not offer a general data security guarantee.
§ 9 Retention of Ownership
Insofar as the customer is a business, any wares, works and materials shall remain property of syskomp gehmeyr GmbH - emico until all present and future claims arising from the transaction have been fulfilled. If the customer is a consumer, only the delivered product from the concrete contract shall remain property of syskomp gehmeyr GmbH - emico until the purchase price has been received in full. The customer must treat any items affected by retention of ownership with due care. The customer transfers any claim and/or compensation he/she would receive for the damage, loss or destruction of these items to syskomp gehmeyr GmbH - emico. Unless otherwise agreed, the customer is not permitted to sell, give away, pledge or transfer the goods affected by retention as collateral.
b) Pledging and Other Impairments
If the object subject to retention of ownership is pledged or impaired by third parties in any other way, the customer must inform syskomp gehmeyr GmbH - emico immediately so a case can be opened in accordance with §771 of the ZPO (Code of Civil Procedure). If the third party is not in a position to reimburse judicial and extra-judicial costs in accordance with §771 of the ZPO, the customer shall be held liable to syskomp gehmeyr GmbH - emico for any losses incurred.
c) Further Sale
Insofar as the customer is a business, he/she shall be permitted to further sell the reserved wares within the realms of normal business transactions. The customer transfers all claims against the purchaser in advance to syskomp gehmeyr GmbH - emico to the sum of the final invoice amount (including VAT). This transfer shall apply regardless of whether the purchased item was sold on after being processed in any way. The customer is still permitted to exercise the claim even after the transfer of rights. syskomp gehmeyr GmbH - emico’s right to exercise the claim itself remains unaffected. However, syskomp gehmeyr GmbH - emico will not exercise this claim as long as the customer fulfils his/her payment obligations from the proceeds received, is not in default of payment, there has been no cessation of payment and no insolvency proceedings have been initiated against the customer.
d) Remodelling, Processing and Editing
Insofar as the customer is a business, any editing and processing or remodelling shall take place in the name of and on behalf of syskomp gehmeyr GmbH - emico. In this case, the customer’s expectant right to the purchased product continues to the remodelled object. Insofar as the purchased product has been processed with other items not belonging to syskomp gehmeyr GmbH - emico, syskomp gehmeyr GmbH - emico shall receive joint ownership of the new item proportionate to the objective value of the purchased object to other items used at the time of processing. The same applies if items have been combined. If this combination was carried out in such a way that the customer’s item is the main item, it is agreed that the customer shall transfer proportional partial ownership to syskomp gehmeyr GmbH - emico, and shall ensure syskomp gehmeyr GmbH - emico’s either sole or partial ownership. In order to ensure claims against the customer, the customer transfers to syskomp gehmeyr GmbH - emico all such claims that the customer is granted against third parties via the combination of the reserved wares with a site. syskomp gehmeyr GmbH - emico accepts this transfer of rights in advance.
If the customer violates the contract, especially by default of payment but also if insolvency proceedings are initiated against the customer’s assets, syskomp gehmeyr GmbH - emico is permitted to take the item back. Retraction does not constitute a withdrawal from the contract unless otherwise expressly declared in writing by syskomp gehmeyr GmbH - emico.
f) Release of Collateral
If the value of collateral exceeds the value of the claim by more than 15 percent, syskomp gehmeyr GmbH - emico is obliged to release this collateral at the customer’s request.
§ 10 Rights to Catalogues, Drawings and Models
The content of all catalogues, drawings and models created by syskomp gehmeyr GmbH - emico, including all authorised copies, are the material and intellectual property of syskomp gehmeyr GmbH - emico. Re-printing excerpts from catalogues and drawings, and copying parts of models, is only permitted with syskomp gehmeyr GmbH - emico’s written permission.
§ 11 Warranty
a) Warranty Claim
Statutory rights of warranty apply. A warranty claim can only arise in relation to the product’s quality; reasonable aesthetic deviations are not covered by a warranty. If a guarantee has also been issued alongside warranty claims, the applicable conditions can be found with the product. Guarantees do not affect rights of warranty.
b) Transfer of Risk
The risk of accidental loss and deterioration of the purchased wares is transferred to the customer when the wares are transferred.
If the customer establishes that the outer packaging is damaged and/or establishes damage after receipt of the wares, he/she is asked to inform syskomp gehmeyr GmbH - emico immediately. However, this is not an obligation and failure to do so does not affect the customer’s rights of warranty.
d) Supplementary Performance
If the wares are defective, the customer can request supplementary performance either in the form of improvement or replacement. If defects are not rectified after two attempts, the customer may withdraw from the contract or request a reduction in payment.
e) Rights Concerning Considerable Defects
If the product has a significant defect, the customer has the right to a reduction of the purchase price under exclusion of their right of withdrawal.
f) Damage Compensation for Defects
There is no warranty for damages caused by improper handling or use. syskomp gehmeyr GmbH - emico only offers damage compensation for defects in the case of intent or gross negligence. This limitation does not affect liability for damages to life, body or health. Product Liability regulations also remain unaffected from these liability limitations.
g) Business Warranty
Contrary to statutory warranty regulations, the following applies to businesses: syskomp gehmeyr GmbH - emico shall provide supplementary performance in the form of either replacement or repair at its discretion if a product is defective. The risk of accidental deterioration or loss of the item is transferred to the customer once the order has been transferred to the delivery agent. Warranty claims expire within one year after this transfer of risk.
h) Business Obligation to Inspect
Businesses must declare any obvious defects immediately in writing; warranty claims shall otherwise not apply. Timely dispatch is sufficient to honour deadlines. The business is obliged to provide evidence for all claim requirements, especially the defect itself, the time the defect was established, and that the defect was declared in good time.
i) Warranty for Used Items
If the purchaser is a business, there is no warranty for used items. For consumer, there is a 1-year warranty for used items. This does not exclude liability for damages to life, body or health. Product Liability regulations also remain unaffected.
§ 12 Liability
Information about the processing and use applications of the products sold by syskomp gehmeyr GmbH - emico, as well as technical advice and other entries, are provided to the best of our knowledge and belief. Liability limitations and reservations apply as outlined below.
b) Liability Limitation
syskomp gehmeyr GmbH - emico and its legal representatives and vicarious agents shall only be held liable for intent or gross negligence. If any cardinal obligations (obligations integral for the fulfilment of the contract) are affected, we shall also be held liable for slight negligence. However, liability shall be limited to the foreseeable, typical, direct average damages.
c) Liability Provisions
The above liability limitations do not affect liability for damages to life, body or health. Product Liability law also remain unaffected by these liability limitations.
§ 13 Final Provisions
a) Place of Jurisdiction
The exclusive place of jurisdiction for all legal disputes arising from this contract is agreed as the syskomp gehmeyr GmbH - emico head offices in Amberg insofar as the customer is a business, a legal entity under public law or a special fund under public law or insofar as the customer does not have a place of jurisdiction within Germany.
b) Applicable Law
Unless otherwise strictly required by the legal regulations of the customer’s residence, German law shall apply, with the exclusion of the UN Sales Convention.
c) Severability Clause
If individual provisions are ineffective, all other provisions in these general terms and conditions shall remain unaffected.
General Terms and Conditions of Sale and Delivery of BFM GmbH, 2752 Wöllersdorf, Austria
1. Application and Changes to These GTC
1.1. These General Terms and Conditions (“GTC”) apply to all current and future business relationships between BFM GmbH (“BFM”) and its customers. These GTC therefore especially apply to any order placed by a customer, even if the application of these GTC is not expressly agreed in each case. These GTC will also apply after any contract ends until it has been fully settled. The version of these GTC valid at the time of contract conclusion applies, unless subsequent changes under Point 1.4 are made by BFM.
1.2. Contrary or supplementary agreements agreed individually by both parties will have priority if confirmed by BFM in writing.
1.3. General terms and conditions of the customer, especially conditions of purchase, are excluded; this exclusion is agreed through the application of these GTC. Notices concerning the application of general terms and conditions of the customer, especially those in the customer’s business documents, are irrelevant. In case of disputes about whether these GTC or the general terms and conditions of the customer apply, it is agreed that the general terms and conditions of the customer are excluded.
1.4. BFM may make changes to these GTC at any time. The customer will be notified about changes to these GTC and has the right to object to the changes in writing within 4 weeks of receipt of the corresponding notice. Otherwise, the changes will be considered approved. The meaning of the customer’s conduct will especially be noted.
2. Offer and Contract Conclusion
2.1. Offers of BFM are non-binding and may be changed, supplemented or withdrawn by BFM at any time before contract conclusion or receipt of cost estimates.
2.2. The customer’s order will be made on the basis of BFM’s order forms. Contract conclusion requires written order confirmation of the customer’s order or order performance by BFM. BFM may withdraw or refuse the customer’s order. Upon receipt of the customer’s order by BFM, the customer will be bound to the order until it is confirmed in writing, refused or performed by BFM.
2.3. Order performance instructions of the customer are only binding for BFM if confirmed by BFM in writing.
2.4. Statements of BFM’s employees who cannot demonstrate corresponding authorization in writing are not legally binding for BFM.
3. Prices and Expense Rates
3.1. All services of BFM are fee-based. Unless agreed otherwise in writing, the prices of BFM’s price list valid at the time of order performance apply. In case of changes to the price list, the prices of the updated price list apply.
3.2. All services of BFM are fee-based. Unless agreed otherwise in writing, the prices of BFM’s price list valid at the time of order performance apply. In case of changes to the price list, the prices of the updated price list apply.
3.3. Every order has a minimum order value of EUR 150 (excluding VAT)..
3.4. Even after contract conclusion, BFM may also make reasonable adjustments to prices and expense rates in consideration of all circumstances relevant to pricing (especially changes to the market situation or material or personnel costs).
4. Due Dates and Payments
4.1. Unless another payment deadline is agreed in writing, all payments must be received without deductions on BFM’s account specified on the invoice within 14 days of the invoice date. Any discount periods will also commence on the invoice date. If BFM suspects the customer of being unwilling or unable to pay, BFM may demand payments on account for the agreed payment amount; if the customer does not make the requested payments on account, BFM will not be required to perform the corresponding service.
4.2. BFM may invoice its services at any time after service performance or, in case of partial performance, before performance of all services (right to partial invoices).
4.3. BFM may demand advance payments for all costs and expenses (e.g., transport costs); for this, BFM may demand payment on account at any time. If BFM demands advance payment for upcoming services, BFM may delay or refuse performance until the customer makes the advance payment.
4.4. In case of payment default, BFM may charge default interest of 1% per month and obtain reimbursement of the out-of-court intervention costs of its credit protection agency. Claims to compensation for damages exceeding default interest or the out-of-court intervention costs of BFM’s credit protection agency will remain unaffected.
4.5. Incoming payments will first be credited to charges, fees, collection costs, default interest and, finally, to open capital. In case of enforced and non-enforced claims, incoming payments will first be used to settle to non-enforced claims.
4.6. The customer may not offset claims of BFM or withhold due payments unless the customer’s claims are court-enforced or expressly recognized by BFM.
4.7. All goods delivered by BFM will remain the property of BFM until the total price has been fully settled. Before the transfer of title, the customer may only resell, pledge or otherwise transfer reserved goods to third parties with BFM’s prior written authorization. If the customer defaults on payments, all claims against the customer from the business relationship will become due and BFM may withdraw from the contract immediately. BFM may also demand the handover of all delivered and unpaid goods without declaring its withdrawal from the contract.
5. BFM Services
5.1. BFM strives to meet delivery deadlines; however, agreed delivery dates are not fixed. Deliveries are only late if a grace period of at least 1 month to be granted by the customer in accordance with BFM’s procurement possibilities passes unsuccessfully.
5.2. Goods are shipped at the expense and risk of the customer by a forwarder and to a location determined by BFM. BFM is not required to choose the least expensive shipping method. Any shipping method chosen by BFM is considered approved by the customer.
5.3. BFM may make unilateral, justified and reasonable changes to services commissioned by the customer; this especially applies to exceeding delivery deadlines.
5.4. BFM may use third parties (especially forwarders) to perform the customer’s orders. Liability and guarantees by BFM for services performed by third parties are excluded; however, BFM will assign all of its claims against such third parties to the customer if requested. Any transaction fees must be borne by the customer.
5.5. The customer must conclude any necessary contracts directly with the third party if requested by BFM.
6.1. The customer must review whether BFM’s goods correspond to the order upon delivery and must report any defects to BFM in writing without undue delay, at the latest within 10 days (date of receipt first by fax). Without such a report, the service will be considered accepted. Guarantee claims, compensation claims and avoidance on account of mistake are excluded.
6.2. Defects may not be remedied by the customer or third parties. The customer must provide BFM with an opportunity to remedy the defect within an appropriate period.
6.3. Claims to withdrawal or price reductions will not be established, unless BFM is unable to remedy the defect or provide a replacement delivery.
6.4. Removal, installation, travel time and travel costs must be borne by the customer.
6.5. BFM’s guarantee obligations will cease to apply if the delivery object is altered by a third party or by the customer by installing parts of external origin, failing to follow installation or treatment instructions or not using the product as intended. Natural wear and damage caused by improper treatment or overuse are not covered by the guarantee.
6.6. The guarantee period lasts 6 months and will commence upon the shipping of the goods from BFM’s warehouse or designated location. In case of extraordinary use, e.g., when using the goods for multiple-shift operations, the guarantee period will be shortened to half the remaining period after the start the extraordinary use. Following maintenance by BFM, the guarantee period will restart only for the replaced parts.
6.7. G If not recognized by BFM, guarantee claims of the customer must be exercised in court within the guarantee period. After payment obligations become due, guarantee claims may only be exercised after the payment obligations are fully settled.
6.8. If guarantee claims are not established for the remedying of a defect, BFM’s services must be settled.
6.9. The customer must grant BFM unrestricted access to the location of the parts for which objections were raised.
7.1. BFM will only be liable for damage caused through gross negligence or intent; liability is otherwise excluded. Liability for lost earnings, immaterial damage, subsequent damage of any kind or third-party claims is also excluded for gross negligence. The basis of any claim, especially gross negligence by BFM, must be proven by the customer.
7.2. Damage claims against BFM will expire within 6 months of learning of the damage and injuring party or, in any case, 3 years after the incident.
7.3. Product liability claims must be exercised exclusively against the manufacturer who will be disclosed to the customer by BFM if requested by the customer.
8. Goods Returns
8.1. BFM will only cancel or take back ordered and delivered goods for a cancelation or restocking fee of 30% of the total purchase price and only with a written return order of the customer.
9. Place of Performance, Choice of Law and Place of Jurisdiction
9.1. The place of performance for both contract parties is Vienna, Austria.
9.2. The business relationship and all contracts and mutual claims between BFM and its customers are governed by Austrian substantive law. The United Nations Convention on Contracts for the International Sale of Goods and conflict of law rules are excluded.
9.3. The exclusively competent court for any disputes under or in relation to the contract is the competent court of the 1st District of Vienna, Austria. Nonetheless, BFM reserves the right to sue the customer at the customer’s general place of jurisdiction.
10. Severability Clause
10.1. The invalidity or unenforceability of individual regulations of these GTC will not affect the validity or enforceability of the remaining regulations. In place of the invalid or unenforceable regulation, a valid and enforceable regulation that most closely approximates the invalid or unenforceable regulation economically will be considered agreed.