General Terms and Conditions of Comstex GmbH & Co. KG
Purchasing
I. Scope
(1) Our General Terms and Conditions for Purchases apply exclusively; we do not acknowledge conflicting or differing conditions from our General Terms and Conditions for Purchases unless we have expressly agreed in writing to their validity. Our General Terms and Conditions for Purchases also apply if we accept the supplier’s delivery unconditionally, being aware of conflicting conditions or conditions differing from our General Terms and Conditions for Purchases.
(2) All (special) agreements made between us and the supplier for the execution of a contract must be recorded in writing.
II. Offer – Offer Documents
(1) The supplier is obliged to accept our order within a period of 2 weeks.
(2) We reserve ownership and copyright for all offer or order documents transmitted by us, especially images, drawings, calculations, and other documents; these may not be made accessible to third parties without our express written consent. They are to be used exclusively for manufacturing based on our order; after processing the order, they must be returned to us unsolicited. They are to be kept confidential from third parties; the provision in § 9 c) applies additionally.
III. Prices – Payment Terms
(1) The price stated in the order is binding. Unless otherwise agreed in writing, the price includes delivery “free domicile,” including packaging.
(2) The statutory VAT is included in the price.
(3) We can only process invoices if they state the order number indicated in our order, following the specifications in our order; the supplier is responsible for all consequences resulting from non-compliance with this obligation, unless he proves that he is not responsible for it.
(4) Unless otherwise agreed in writing, we pay the purchase price within 30 days of receiving the invoice.
(5) We have offsetting and retention rights to the extent provided by law.
IV. Delivery Time, Withdrawal
(1) The delivery time stated in the order is binding.
(2) The supplier is obliged to inform us immediately in writing if circumstances occur or become apparent to him, from which it becomes evident that the agreed delivery time cannot be met.
(3) If the delivery time agreed with the supplier is exceeded by 5 working days or more, we have the right to immediately withdraw from the contract by written declaration (sufficient in text form, § 126 b BGB), provided that the supplier was informed by us before contract conclusion (sufficient in the order) that strict adherence to the delivery time is essential for us. Other legal claims in case of delay in delivery remain unaffected. In particular, we are entitled to demand compensation instead of performance after the fruitless expiration of an appropriate period. If we demand compensation, the supplier has the right to prove to us that he is not responsible for the breach of duty.
V. Transfer of Risk – Documents
(1) Unless otherwise agreed in writing, delivery must be made free domicile.
(2) The supplier is obliged to precisely indicate our order number on all shipping documents and delivery notes; if he fails to do so, we are not responsible for delays in processing.
VI. Defect Investigation – Liability for Defects
(1) We are obliged to inspect the goods within a reasonable time for any quality and quantity deviations; the complaint is timely if it reaches the supplier within 5 working days from receipt of goods or in the case of hidden defects from discovery.
(2) We have the full legal claims for defects; in any case, we are entitled to demand either remedy of defects or delivery of new goods from the supplier at our discretion. The right to damages, in particular the right to damages instead of performance, is expressly reserved.
(3) We are entitled to remedy defects ourselves at the supplier’s expense if there is a risk of delay or special urgency.
(4) The limitation period is 36 months from the transfer of risk.
VII. Product Liability – Indemnification
(1) If the supplier is responsible for a product defect, he is obliged to indemnify us from third-party damage claims upon first request insofar as the cause is within his control and organizational area and he is liable in external relations.
(2) Within the scope of his liability for damage in the sense of a), the supplier is also obliged to reimburse any expenses according to §§ 683, 670 BGB or according to §§ 830, 840, 426 BGB arising from or in connection with a recall action carried out by us. We will inform the supplier about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to respond. Other legal claims remain unaffected.
VIII. Intellectual Property Rights, Plagiarism
(1) The supplier warrants that no third-party rights are violated in the Federal Republic of Germany in connection with his delivery. Should we find that the supplier has sold us stolen or counterfeit goods (plagiarism), we will report this immediately to the authorities.
(2) If we are claimed by a third party in this regard, the supplier is obliged to indemnify us from these claims upon first written request; we are not entitled to make any agreements with the third party – without the supplier’s consent – especially to reach a settlement.
(3) The indemnification obligation of the supplier extends to all expenses that arise from or in connection with a third-party claim.
(4) The limitation period is ten years from the conclusion of the contract.
IX. Retention of Title – Provision – Confidentiality
(1) If we provide parts to the supplier, we retain ownership of them. Processing or transformation by the supplier is carried out for us. If our retained goods are processed with other items not owned by us, we acquire co-ownership of the new item in proportion to the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
(2) If the item provided by us is inseparably mixed with other items not owned by us, we acquire co-ownership of the new item in proportion to the value of the retained item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the supplier’s item is regarded as the main item, it is deemed agreed that the supplier transfers proportional co-ownership to us; the supplier keeps the sole ownership or co-ownership for us.
(3) The supplier is obliged to keep all received order documents, images, drawings, calculations, and other documents and information strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation also applies after the completion of this contract; it expires if and to the extent that the manufacturing knowledge contained in the provided images, drawings, calculations, and other documents becomes generally known.
(4) To the extent that the security rights accruing to us according to a) and/or b) exceed the purchase price of all our unpaid retained goods by more than 10%, we are obliged to release the security rights at the request of the suppliers at our discretion.
X. Jurisdiction – Place of Performance – Choice of Law
(1) If the supplier is a merchant, our place of business is the jurisdiction; however, we are entitled to sue the supplier at his place of residence court as well.
(2) Unless otherwise stated in the order, our place of business is the place of performance.
(3) For these General Terms and Conditions for Purchases and the entire legal relationship between us and the supplier, the law of the Federal Republic of Germany applies. The application of the UN Sales Convention is expressly excluded.
Sales
I. General
(1) Our General Terms and Conditions for Sales apply exclusively; we do not acknowledge conflicting or differing conditions from our General Terms and Conditions for Sales unless we have expressly agreed in writing to their validity. Our General Terms and Conditions for Sales also apply if we execute the delivery to the customer unconditionally, being aware of conflicting conditions or conditions differing from our General Terms and Conditions for Sales.
(2) All (special) agreements made between us and the customer for the execution of a contract must be recorded in writing.
(3) Our General Terms and Conditions for Sales also apply to all future transactions with the customer.
II. Offers and Contract Conclusion / RIGHT OF WITHDRAWAL FOR CONSUMERS
(1) Our offers are always non-binding and subject to change, meaning they are to be understood as an invitation to submit an offer. Orders are considered accepted only when they are confirmed by us in writing within a maximum of two weeks or henceforth accepted through the delivery of the ordered goods. The delivery note or the invoice serves as the order confirmation.
(2) Customers who are consumers within the meaning of § 13 BGB can revoke their contractual declaration within two weeks without specifying any reasons in text form (e.g., letter, fax, email) or by returning the goods. The period begins at the earliest with the receipt of the product and this instruction. To comply with the withdrawal deadline, it is sufficient to send the withdrawal or the goods in time. The withdrawal is to be addressed to: Comstex GmbH & CO. KG, Potsdamer Str. 12B, 14513 Teltow.
(3) Consequences of Returns: In the event of an effective withdrawal, the benefits received by both parties must be returned, and any benefits derived (e.g., interest) must be surrendered. If the customer cannot return the performance received from us in whole or in part or only in a deteriorated condition, he must compensate us accordingly. This does not apply when the deterioration of the item is solely due to its examination – as could have been possible for the customer in a retail outlet. In other respects, the customer can avoid the obligation to compensate if he does not use the item as his own and refrains from doing anything that affects its value. The customer bears the costs of return if the delivered goods correspond to the ordered ones and if the price of the goods to be returned does not exceed 40 euros or if the customer has not yet provided consideration or a contractually agreed partial service at the time of withdrawal for an item with a higher price. The customer must fulfill obligations to refund payments within 30 days after sending his withdrawal declaration. The customer’s right of withdrawal expires prematurely if we begin to perform the service/delivery with the explicit consent of the customer before the withdrawal period has expired.
III. Prices
(1) All printed or stored price information in our price lists, electronic media, printed materials, and the like are non-binding.
(2) Our prices generally apply plus shipping and insurance costs as well as taxes. For orders from abroad and deliveries to such, our prices apply exclusive of VAT. Exceptions are deliveries within the EU, provided the recipient does not state a VAT ID number when ordering.
(3) We reserve the right to change our prices accordingly if, after the conclusion of the contract, currency fluctuations, new customs duties or taxes, as well as price changes from suppliers occur.
(4) For maintenance and service contracts, the remuneration is based on the time worked, plus travel time and all expenses and travel costs incurred.
(5) Our printed prices do not include any entitlement to support. However, you have the option of concluding a paid service or maintenance contract.
IV. Payment and Delivery Terms, Rights of Comstex in Case of Breaches of Duty by the Customer
(1) Unless otherwise stated in the order confirmation, the purchase price is due net (without deduction) within 14 days from the invoice date. The customer is obliged to accept the ordered goods within two weeks. The two-week period begins the day after Comstex receives the ordered goods from its supplier.
(2) The deduction of discounts requires a special written agreement.
(3) Unless the customer is a consumer within the meaning of § 13 BGB, he has offsetting rights only if his counterclaims are legally established, undisputed, or acknowledged by us. Also, he is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
(4) Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s obligations. The objection of non-fulfilled contracts remains reserved.
(5) If the customer is in default of acceptance or culpably violates other cooperation obligations, we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved.
(6) If the conditions of e) are met, the risk of accidental loss or deterioration of the purchased item passes to the customer at the point in time when he is in default of acceptance or debtor default.
(7) The occurrence of our delivery delay is determined by the statutory provisions. However, a reminder by the buyer is required in any case. If we are in delivery delay, the buyer may demand lump-sum compensation for his default damage. The lump-sum compensation is 0.5% of the net price (delivery value) for each completed calendar week of delay, but a maximum of 5% of the delivery value of the late delivered goods. We reserve the right to prove that the buyer has suffered no damage or only a significantly lesser damage than the above lump sum.
(8) Unless otherwise agreed, we initially deliver against cash on delivery (cash) or prepayment (bank transfer). Delivery against open invoice is only possible if Hermes Kreditversicherung confirms a sufficient credit limit in our favor at the time of delivery.
(9) Comstex is entitled to prohibit the customer from removing the goods until the purchase price has been paid. Any agreed discounts will not be granted if the customer is in default of payment for previous deliveries.
(10) If the subject of purchase, according to the description in the order, is hardware, the contractual object is exclusively hardware. The delivery does not in any case involve the transfer of software, or licenses and usage rights to software. Software is only part of the contract if this is explicitly stated in the order confirmation from Comstex. Especially in the case of used hardware, it is possible that software is installed on the respective devices or has not been completely deleted. It is solely the customer’s responsibility to ensure certainty regarding corresponding software installations, usage rights and restrictions, licenses, etc. Comstex assumes no liability in this respect. If the customer is claimed by third parties due to software on the purchased item, he cannot assert claims against Comstex under any circumstances. Comstex delivers exclusively the raw hardware and assumes no liability for the quality and/or availability of (service) services from the manufacturer.
V. Legal Consequences of Non-acceptance of Ordered Goods/Services
(1) If the customer, who is not a consumer within the meaning of § 13 BGB, withdraws from the contract, a lump-sum compensation of 20% of the net purchase price is due, whereby the customer retains the possibility of proving a lower damage. Conversely, the assertion of further damage claims by us remains unaffected. Withdrawal from the contract is excluded if the ordered goods are software, if they are goods that we have already ordered directly from the manufacturer, or if they are goods individually made for the customer. The consumer’s right of withdrawal according to section 2 b) remains unaffected.
(2) Hardware and software products distributed by Comstex are generally free from service coverage by the respective manufacturer. This applies for a period of 90 days after product delivery by Comstex. Please note that service cannot be canceled or returned after activation by the manufacturer.
VI. Change of Performance/Partial Delivery/Retention of Title
(1) In the event of a performance obstacle not caused by us, we are entitled to deliver changed or adjusted products deviating from the order, as long as the functionality is not significantly impaired.
(2) We have the right to make partial deliveries and invoice these separately (partial invoices). If a good or service is no longer available, we reserve the right not to provide this and to declare withdrawal from the contract. We will inform you immediately about the unavailability of the corresponding goods/services. Any services/payments made by the customer in advance will be refunded immediately.
(3) We only deliver on the basis of the retention of title described in detail below. This applies also to all future deliveries, even if we do not always refer to it explicitly.
We reserve ownership of the delivered item until all payments from the purchase contract have been received. We are entitled to take back the purchased item if the customer behaves contrary to the contract, especially if he falls into payment default.
(4) The buyer is obliged to handle the purchased item with care until ownership has passed to him. In particular, he is obliged to adequately insure this, if it is a high-quality purchase item, against theft, fire, and water damage to its new value at his own expense. If maintenance and inspection work is necessary, the customer must carry this out at his own expense in a timely manner. As long as ownership has not yet passed, the customer must notify us immediately in writing if the delivered item is seized or subjected to other third-party interventions. To the extent that the third party is not in a position to reimburse us for the judicial and extra-judicial costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by us.
(5) The customer is entitled to resell the retained goods in the ordinary course of business. The claims against the purchaser arising from the resale of the retained goods are hereby assigned to us in the amount of the invoice total agreed with us (including VAT). This assignment applies regardless of whether the purchased item is resold without or after processing. The customer remains entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer fulfills his payment obligations from the proceeds collected, is not in payment default, and in particular, no application for the opening of insolvency proceedings has been filed or payment suspension is present. If this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment.
(6) The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other items not owned by us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice amount, including VAT) to the other processed items at the time of processing. For the item resulting from processing, the same applies as for the item delivered under retention of title.
(7) If the purchased item is inseparably mixed with other items not owned by us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer’s item is regarded as the main item, it is deemed agreed that the customer transfers proportional co-ownership to us. The customer keeps the sole or co-ownership thus created for us.
(8) We undertake to release the securities owed to us at the request of the customer to the extent that the realizable value of our securities exceeds the secured claims by more than 10%; the choice of which securities to release is up to us.
(9) To assert the retention of title according to the above provisions, Comstex may enter all business premises of the customer and take possession of the retained goods.
VII. Export
(1) The delivered products may contain technologies and software that are subject to the applicable export control regulations of the Federal Republic of Germany, as well as the import/export control regulations of the United States of America or the countries to which the products are delivered or in which they are used. The customer undertakes to observe these provisions.
(2) According to the above-mentioned export provisions, the products must not be delivered or licensed to defined users or in defined countries or to users involved in activities related to weapons of mass destruction or genocide. The customer is aware that the export control regulations provide different restrictions depending on the acquired goods and are regularly changed. The customer declares to observe the current relevant regulations before each export or re-export of the products.
VIII. Transfer of Risk
(1) The risk passes to the customer in any case as soon as the goods have been handed over to the carrier, freight forwarder, or any other person executing the transport, or have left our warehouse for shipment. In the case of returns to us, the transfer of risk occurs upon acceptance of the goods at our warehouse.
IX. Warranty and Liability
(1) The customer’s claims for defects require that he has properly fulfilled his inspection and complaint obligations according to § 377 HGB.
(2) If there is a defect in the purchased item, we are entitled, at our discretion, to remedy the defect or to deliver a new defect-free item. In the case of remedying defects, we will bear all costs necessary to remedy the defect only up to the amount of the purchase price.
(3) If the supplementary performance fails, the customer is entitled to demand withdrawal or reduction at his discretion.
(4) We are liable for damages – regardless of the legal reason – within the framework of liability for blame in cases of intent and gross negligence. In the event of simple negligence, we are liable subject to a milder standard of liability according to statutory provisions (e.g., for care in our own matters) only for damages resulting from injury to life, body, or health, for damages resulting from the not insignificant breach of an essential contractual obligation (obligation whose fulfillment enables the proper execution of the contract at all and on which the contracting partner regularly relies and may rely); in the latter case, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(5) The liability limits arising from section 4 also apply in case of breaches of duty by or in favor of persons whose fault we are liable for according to statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
(6) Due to a breach of duty that does not consist of a defect, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination for the buyer (especially according to §§ 651, 649 BGB) is excluded.
(7) Unless otherwise provided for above, liability is excluded.
(8) The limitation period for claims for defects is 12 months from the transfer of risk.
(9) The limitation period in the case of a supplier regress according to §§ 478, 479 BGB remains unaffected; it is five years from the delivery of the defective goods.
(10) It is clarified: The termination of an already active service contract (SMARTnet) with third parties during the agreed term – regardless of the reason – does not entitle to a credit or partial credit (“refund”) towards us.
X. Overall Liability
(1) Any further liability for damages than provided for in section 8 is excluded, regardless of the legal nature of the asserted claim. This particularly applies to claims for damages for fault in the conclusion of the contract, for other breaches of duty, or for tort claims for the compensation of property damage according to § 823 BGB.
(2) The limitation in subsection a) also applies if the customer demands reimbursement for useless expenses instead of a claim for damages.
(3) To the extent that liability for damages against us is excluded or limited, this also applies to the personal liability of our employees, workers, representatives, and agents.
XI. Place of Performance, Jurisdiction, and Applicable Law
(1) If the customer is a merchant and the conclusion of the contract is part of his commercial business, the place of performance is Munich. For all present and future claims from the business relationship with merchants, the exclusive jurisdiction is Munich. The same jurisdiction applies if the customer has no general jurisdiction in the country, relocates his residence or usual place of abode abroad after conclusion of the contract, or if his residence or usual place of abode is unknown at the time of filing the lawsuit.
(2) For these General Terms and Conditions for Sales and the entire legal relations between Comstex and the customer, the law of the Federal Republic of Germany applies. The application of the UN Sales Convention is excluded.