General Terms and Conditions SK Elektronik GmbH
All regulations between us an dour customers as well as all our official quotations are relvant on the basis of our general terms and conditions. It always starts with the contract proposition from the customer-site (Order) or the acceptance of our service, if not different from a written contract version. Different terms of our customers, which we did not formally accept, are noncomittal, even if we did not specificly reject these terms.
(a) Services related to these conditions are all deliveries executed from our site related to existing agreements of sale or in accordance with § 651 para.1 clause 1 BGB (work delivery) as well as through us executed services (other services related to service contracts).
(b) Guarantee claims related to these conditions are all claims of our customers depending on inadequate services from our site (§ 433 ff., 633 ff. BGB).
(c) Consumers related to these conditions are in § 13 BGB listed individuals, contractors and the in § 14 BGB described individuals and associations of individuals.
(d) Customer related to these conditions is everyone who requests our services or business partners who show interest if they are contractors (§ 14 BGB).
3. Conclusion of the contract
A contract concerning the execution of a service ordered by a customer (object of agreement) results, if we accept the formal order of a customer in a written or verbal way. The customer is bounded over a period of 10 days to the contractoffer from the date of arrival on. Our acceptance results latest with the transmission of our written confirmation of the order or the execution of the ordered service. The customer has to reject our written confirmation immediately in writing, if he does not agree with the content.
4. Prices and Payments, Securities
(a) If not changed within a written agreement, our prices are set with delivery ex works; the place of fulfilment can not be changed. The Prices do not include despatch. For the standard systems the original packing is included. Concerning the delivery of parts, there is a despatch fee of 10 €. Charges for requested extra services for our customer such as installation or insurances will be calculated seperately and are not included.
(b) Do we receive devices for repair, we should receive these ones back in the original packing. If this is not the case, we have related to our transportinsurance to charge our customers 100 € for the packing of the device with our original factory package. For a estimate of costs for repair items there is a general analysing charge of 250 €. If we then receive the order for repair the charge will be allocated with the total repair costs. If there is the situation of no order, we will charge the original fee of 250 € immediately to the account of the customer.
(c) If there is a delivery delay for any service of more than 4 months after the contract conclusion and the price was not explicit marked as a fixed term, the invoice will be based on the actual valid list-prices.
(d) If we are committed to paymnet in advance, we are legally entitled, even after the contract conclusion, to depend our services on the fact that our customer shows adequate securities in relation to the from him requested valuable consideration, even if the requirements for § 321 BGB are not existent.
(e) Unless otherwise especially agreed, the payment has to be made without any deduction to our bank account. We only accept papers if specificly agreed beforehand in writing. We only accept the bill or check for payment reasons and with charging of all discount and collection charges.
(f) Is the payable amount subdivided into installments or the purchase price has to be deferred, the complete remainder of debt, without notice of other payable papers, has to be payed immediately if the customer leaves out or gets behind more than 14 day with one of the payable installments. Furthermore teh situation of insolvency proceedings results as well in an immdetiate payment.
(g) The customer can only deny our payment claims with the existance of other indisputable or titled claims. The right of retention can only be asserted, if the counterclaim is based on the same contractual relationship.
5. Terms of delivery, Despatch
(a) Our quoted delivery terms are just a approx. statement if it is not declared as "fix" terms.
(b) Delivery terms start 3 days after the transmission of the official order confirmation and without one it starts with the contract conclusion. Furthermore there is the requirement so the delivery period starts, that the customers hand in the needed specific data to proceed. If there is an advanced payment agreement or a payment guarantee required we will no start before having the requested documents or payment securities.
(c) The customer can at the earliest after 4 weeks of exceeding a non-fixed delivery term hand in a written reminder to deliver within at least a deadline of 10 workkdays. If there then is an expiry of the tme-limit we are automatically defaulted.
(d) A delivery term can be qualified as adhered to, if the goods are handed on to a courierservice before the delivery date is reached. In the case of of a debt to be discharged at the domicile of the debtor the customer has to be informed that the goods are ready to be picked up from a representative of the customer. Finally in any case it is adhered as soon as the goods are at the requested customer site.
(e) If the ordered goods have to be send as the customer has requested, we are able, but without a direct order of the customer not obligated, to underwrite the transportrisks to the expense of the buyer.
6. Partail delivery, call orders
(a) If not all parts of the order are at stock we are allowed to put them into partial deliveries.
(b) If the customer has ordered goods, which are qualified as a call order, every called partial delivery has to be treated as a single isolated delivery as defined within these general terms and conditions.
(c) Within a call order the customer is committed to take the whole quantity he ordered within the determined period of time.
(d) If there is a default of payment from the custmomer site of more than 1000 € and the time has been expired by more than 4 weeks, we are enabled to deliver the whole remaining quantity of the call order immediately in one delivery. The customer has from there on a prepayment arrangement for the remaining goods or the goods ordered in the future.
7. Quantity variances
(a) Our customer has to accept the deliver or the fulfilment of the requested service within 14 days after the notice that the requested order is fulfilled. Insignificant defects are no reason to deny the acceptance.
(b) Within a tolerance of 3% of the total order quantity (concerning spare parts in little numbers) deviations caused by the production are accepted. The total amount payable will change accordingly to the deviation.
8. Retention of title
(a) The delivered goods subject to retention of title remain - if they do not become subject in other processes - in our ownership until the customer pays the total outstanding amount of the complete delivery. If the customer is a contractor, the goods remain in our ownership as long as there are outstanding claims between the customer and us. This is relevant, even if claims are part of a open accounts and we strike the balance.
(b) Measures of judicial execution of a third party concerning the goods as a subject to retention of title or in advance assigned book accounts need to be communicated immediately to us. Furthermore the involved documents and information for the following process of intervention need to be handed on as well.
(c) In case of a danger for our ownership or in case of a suspension of payment from the site of our customer, we are enabled, on the ground or the estate of the customer, to start investigations concerning our ownership of the goods delivered. In case of a default of payment we are enabled to make sure that on the customer's expense the goods will be returned into our possession or to take action for a adequate identification of our goods. We are able to involve help of third parties.
(d) If we are (§ 323 BGB) withdrawn from a treaty, we are enabled to start a resale to make the most out of the existing goods. The customer has the right to claim his costs and ask for an expert to value the goods. With this estimated amount there has to happen a clearing of our outstanding debits. In a case of doubt the expert has to be selected by the responsible chamber of commerce and industry.
(e) If the value of our securities following these general terms and conditions exceeds our claims against the customer by more than 20%, we are committed if requested by the customer, to release securities at our own option.
9. Liability on damages
(a) If there is an easy case of neglect of duty b ythe contract, our liability i slimite din any case according to the goods or service for a poper merchant to at the conclusion of contract calculable, inherent to such contract, forseeable direct damage. The average expected damage is the limit of our liability. The liability to pay damages or compensations for not immediate or not contracttypical consequential loss is in this case excluded. This applies as well to easy cases neglect of duty for our legal agents or vicarious liability for factors, servants and assignees.
(b) In case of any easy negligence of nin-contractial duty by us, our factors, servants or assignees our liability is totally excluded (disclaimer).
(c) The claim of damages as described before become time-barred after one year with the date of delivery. The delivery is not dependend on the default of acceptance by the customer or if the danger following § 447 BGB (mail order purchase) devolves to the customer.
(d) The protrusive liability limitations do not apply to any product liability claim or claims concerning the violation of life, body or health of a person.
10. Force majeure
Force majeure, labour dispute, riot and civil commotion, official directives, absence of supply of our suppliers and other unforseeable, inevitable and severe events release us as well as our customer (contractual partner) for the duration of the disruption and in the complexity of the effects from our obligations.This is as well the case, if the events occur at a time where the affected contractual partner defaults, except the default was caused deliberately or was wantonly negligent. The contractual partner is bound toact immediately as to hand on the necessary information and to adept their obligations to the unusual situtation in good faith.
(a) For the customer is clarified that the condition of the goods ha sto accord to the particular product description of us or the particulr manufacturer. Public ultrances or marketing acs of the particular manufacturers do not aplly for the definition of the condition of the goods. This applies as well to information published through us.
(b) Warranties are just taken over, if there exists a written document, if we use the expression "warranty" concerning quality insurances with the customer or the context shows without any doubt that there has to be taken over a warranty.
(c) Our details in catalogues, brochures etc. are customary approximation within the industry, except they are declared as explicit binding from our site.
12. Inspection of goods by the customer
(a) The customer has to inspect the delivered goods for evident faults within a limit of two weeks, beginning with acceptance of the service, and he has to give an official written declaration to us as the supplier or he has to inform us to inspect it at his site to confirm the faults ourselfes. In case of exceeding the deadline the warranty claims will cease, except we acted maliciously or we have overtaken another warranty. After the detection of a fault we immediately have the chance for a supplementary performance to correct our fault. The customer has to prove, that the evident fault was existant at the time of the passing of the risk and that his declaration was within the time limit. Furthermore he has to verify that the fault was caused by us.
(b) The regulation of the § 377 HGB remains unaffected.
13. Execution of the guarantee act
(a) If a defect is detected after the passing of the risk the customer has to advise us about the defect and the customer has to give us the chance to check the defect within an acceptable time limit. If the defect goods are changed by the customer within this period or the defect i ssolved by another third party, the warranty will cease.
(b) If we deliver with defects, the customer just has a right for rectification of defects. We can choose to deliver exempt from charges in exchange.
(c) If the customer has offered us a fruitless time limit, that should be more than 15 work days, the customer should immediately declare if they want to resign from the contract. They can decide to still wait for the rectifivation of the defects. With a written request from our site the customer ha sthe chance to do this within a priod of two weeks. If they do not request a completion of the contract within this period, the claim for performance will cease in the case that we advised the customer beforehand about the consequences.
(d) Cancelation of the contract and compensation instead of the ordered service are only accepted if our neglect of duty is not nonserious or it is unreasonable to expect from the customer to maintain the goods. There needs to be a mutual interest to cancel the contract.
14. Limitation of claim - except the claim for damages
(a) Guarantee claims - except the claim for damages - of the customer, that are subject to the limitation of the claim, become time-barred after a period of 12 months with the date of delivery, if we did not act malicious within the process. The delivery is not dependend on the default of acceptance by the customer or if the danger following § 447 BGB (mail order purchase) devolves to the customer. § 9 par. 3 (Limitation of claim for damages) stays unrelevant.
(b) In case of guarantee the limitation of claim is not extended, but follows as well par. 1: it starts with the date of delivery of the original goods and as the case may be with the fulfilment of the ersatzelement following par. 1 clause 2.
15. Right of recourse of the company
If the goods get delivered to a company, then delivered to another company, but finally delivered to an enduser, the company keeps the right of recourse against us as the producer following § 478 HGB. The described guarantee claims and restrictions of liability are still relevant following §478 BGB, but limited to the claims for damages. The regulation of §377 HGB stays unrelevant.
16. Place of fulfilment
The place of fulfilment for all liabilities based on the contract is our registered office, as it is Leverkusen.
17. Place of jurisdiction, selection of law
(a) For all disputes based on this agreement even if the effectiveness of the agreement is the dispute itself, in the case that both parties are merchant, it is a fact that apart from the common place of jurisdiction of the defendant Leverkusen is as well fo rthe particular claimant to be seen as the place ofthe gerneral jurisdiction. If not both parties are merchants, the described place of jurisdiction remains the same, even if the respondent party chnages the domicile to a place off the territory of the civil process order or the domicile is at the time of the commencement of action unknown. This results in the rquirement, that as a further place of jurisdiction the general place of jurisdiction of the claimant has to be accepted as to be within the national borders of Germany. For claims of this party the general place of jurisdiction of the company in Germany, in this case in Leverkusen, is relvant.
(b) The contractual relationship is liable to the law of the federal Republic of Germany with the exception of the uniformlaw on the internation sale of goods.
18. clause for effectiveness
(a) Changes of this agreement need to be irrespective of requirements as a written form (fax, telex or telegram) or an electronic form. Furthermore it is requested to have a special agreement (same form) that this agreement is generally or in individual cases not relevant. At last all related or within this agreement executed declarations need to be in the described form, except the case that before decribed regulations say something different from that or there exist preconcerted regulations.
(b) If one or more terms of this agreement are completely or in parts effectless or would become so, the effectiveness of the remaining terms stays intact. All parties concerned are bound to come to a new agreement (instead of the effectless terms), which should be commercially as clos as possible to the effectless agreement, considering an legitimate, acceptable and useful way.
19. Language of the agreement
As this is only a translation of german law into English, so there might be some problems with special terms, which can't be translated one to one. The actual agreement is therefore based on the german version of these general terms and conditions.