Terms and Conditions of Sale
Comstex GmbH & Co. KG
Legal Company Name / Business name: Comstex GmbH & Co. KG
Legal Address: Am Wall 22, 14979 Grossbeeren, Brandenburg, Germany
Warehouse Address: Am Wall 22, 14979 Grossbeeren, Brandenburg, Germany
VAT ID: DE265082150
Possible fraud prevention
The genuine domains of our company is comstex.com and comstex.de, no other variations possible, unless confirmed by our company via official letter (written confirmation) and verified by phone call with our accounting department and trusted sales representative from our company.
For all incoming transfers, our company using financial accounts that are located and registered in Federal Republic of Germany (Bundesrepublik Deutschland) only.
Please verify each invoice before initiating any financial transfer.
Comstex GmbH & Co. KG will not accept any responsibility in case of incorrect or fraudulent transfer to accounts not belonging to Comstex GmbH & Co. KG.
- “Terms” – these Terms and Conditions of Sale.
- “Seller” – the seller of the Goods, Comstex GmbH & Co. KG, as described in Section 1 of these Terms.
- “Buyer” (or “Customer”) – the entity purchasing the Goods, including any successors.
- “Goods” – the goods, products, digital products, hardware, software, licenses, documentation, subscriptions, installations, integration, access to digital resources, services and/or materials manufactured, imported, supplied and/or delivered for or by Seller to Buyer.
- “Point of Sale” (or “POS”) – the Seller’s Warehouse Address location, as described in Section 1 of these Terms.
- “Purchase Order” (or “PO”) – a legally binding document created by Buyer and presented to Seller with a request to order Goods, indicating Buyers information, date, part numbers, types, item conditions, quantities, agreed prices and discounts for Goods, shipment dates, payment and delivery terms, shipping and billing address, including any other relevant information. When accepted by the Seller, a legally bound Contract is formed between Buyer and Seller.
- “Contract” (or “Agreement”) – a legally binding agreement concluded between Seller and Buyer for the supply of Goods, creating mutual obligations enforceable by law.
- “Sales Confirmation” (or “Order Confirmation”) – an optional document that Seller may choose to send to Buyer, or can be requested by Buyer from Seller to confirm that an Purchase Order has been received and accepted by Seller.
- “Force Majeure” – an event beyond the Seller’s reasonable control, including (without limitation) accidents, severe weather events, acts of God, actions of any government agency, pandemic, epidemic, supply chain issues, energy supply issues, war, military operations, hostilities (whether war be declared or not), invasion, act of foreign enemies, requisition, embargo, acts of terrorism, rebellion, revolution, insurrection, or military or usurped power, or civil war, riot, strikes, disorder, or the stability or availability of the Internet or a portion thereof.
- These Terms apply exclusively; any terms and/or conditions of other parties conflicting with or deviating from these Terms are only recognized insofar as we expressly agreed to them in writing.
- All additional or special Agreements reached between Seller and Buyer must be accompanied by a written confirmation.
- These Terms shall also apply to all future deals and transactions with Buyer, unless Seller and Buyer entered into another Agreement confirmed in writing and such Agreement is in effect at the time of transaction.
- Seller and Buyer are independent contracting parties and nothing in this Terms shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
- Our Offers shall always be subject to alteration without any notice and without any commitment. Orders shall not be deemed to have been accepted until they have been confirmed by us in writing no later than within a period of two weeks or through delivery of the ordered Goods. In this case the delivery note or the invoice shall be the Order Confirmation.
- All prices stated or stored in our price lists, electronic media, printed media, digital resources, and not limited to, are subject to change and non-binding.
- Seller reserve the right to change prices after the conclusion of the Contract in the event of currency fluctuations, changes in customs duties or taxes, or changes in the prices of our own suppliers and manufacturers.
- In case of maintenance and service Contracts, our services can be remunerated on the basis of the work hours involved plus travel time, expenses and traveling costs.
- Our price quotations do not include support. However, there is a possibility to conclude a service or maintenance Agreement for additional price.
- Our prices exclude shipping costs, insurance costs and taxes. For orders from abroad and deliveries, our prices are exclusive of VAT. Exceptions are deliveries within the European Union, if the recipient does not specify a VAT ID number when ordering.
- In case of Force Majeure event, Seller can’t be held responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by such event and occurring by reason of circumstances beyond its control. Seller shall use reasonable efforts to remove or mitigate the Force Majeure consequences.
Payment and Delivery
- Unless otherwise provided for in the Order Confirmation, the purchase price shall be payable net (without deduction) within a period of 14 days from the date of invoice. The Buyer is obligated to accept delivery of the ordered Goods within a period of two weeks. This two-week period shall begin the day following Seller’s receipt of the ordered Goods from its supplier.
- The deduction of a discount shall be subject to prior written Agreement.
- If the Buyer is not Consumer in accordance within the meaning of Section 13 of the German Civil Code, Buyer shall only be entitled to offsetting if his counterclaims have been declared final and absolute by a court decree, if they are uncontested, or have been recognized by Seller. Furthermore, Buyer shall only be entitled to exert a right of retention if his counterclaim is based on the same contractual relationship.
- Furthermore, the Buyer’s timely and proper fulfillment of his obligations shall be a condition for our obligation to effect delivery. We reserve the right of plea of non- performance.
- If the Buyer is in default of acceptance or in culpable breach of other duties to cooperate, we are entitled to claim the damage suffered, including any additional costs incurred. We reserve the right to claim damages beyond this extent.
- If Goods transfered from POS, the risk of accidental loss or of accidental deterioration of the purchased Goods shall pass onto the Buyer on the date of his being in default of acceptance or of his being in default as obligatory.
- The provisions concerning our event of default are according to the legal regulations. In any case a late notice by the Buyer is necessary. Should we be in default the Buyer can charge us with all-inclusive (generalized) compensation for his damage caused by default. All-inclusive (generalized) compensation will amount to 0,5 % of the delivery value for each completed week of default, up to a maximum of 5% of the delivery value. We reserve the right to prove, that the Buyer has no damage caused by default or his damage is significantly less than the aforementioned all-inclusive (generalized) compensation. Unless otherwise provided for, as a rule our shipments will be effected collect on delivery (cash) or against advance payment (bank transfer). Delivery against outstanding account shall only be possible if Hermes credit insurance confirms that a sufficient credit line in our favor exists at the time of delivery.
- Seller shall be entitled to deny the Buyer removal the Goods as long as the purchase price has not been settled. Any discounts that may have been agreed upon shall not be granted if the Buyer is in delay of payment regarding earlier shipments.
- If it is stated in the description of the goods in the order that the purchased goods are hardware, the object of the contract will be exclusively hardware. The shipment shall by no means involve the assignment of software, licenses, or rights of use for software. Software shall only be the object of the contract if this has been expressly stated in Seller order confirmation. Especially in the case of used or refurbished hardware, it is possible that the respective items include installed software or that such software has not been completely deleted. It is exclusively the Buyer’s responsibility to know for certain if there are such software installations, rights and limitations of use, and licenses and the like. Seller shall not assume any liability in this regard. Should third parties assert claims against the Buyer regarding software installed on the bought item, this shall by no means give rise to any claims of the Buyer against Seller. Seller shall provide exclusively hardware and shall not assume any liability for the quality and/or availability of the manufacturer’s services.
Consequences for non-acceptance of the ordered Goods
- If a Buyer who is not a consumer within the meaning of Section 13 of the Civil Code rescinds the contract, he shall pay a damage penalty in the amount of 20% of the net purchase price (restocking fee). The Buyer shall, however, be free to prove that the damage suffered was inferior to such amount. This shall not affect our right to claim damages beyond this extent. Rescission of the contract shall be excluded if the ordered goods are software, or goods we have ordered ourselves directly from the manufacturer, or if the goods have been adapted to the customer’s specific requirements. The consumer’s right of cancellation pursuant to clause 2 b) shall remain unaffected.
- Hardware or software products sold through Seller are free of any vendor service coverage (unless otherwise agreed). This shall be valid for a period of 90 days from product delivery by Seller. Please note that once a vendor has been processed by the manufacturer, it may not be canceled or returned.
- Change of Performance/Partial Shipments/Reservation of Title
- In the case of an impediment to performance for which we are not responsible, we are entitled to deliver changed or adapted products other than those ordered, provided that this does not substantially affect their fitness for use.
- We shall be entitled to make partial shipments and invoice them separately (partial invoices). If any goods or services are no longer available, we reserve the right of non-performance and the right to rescind the contract. We shall, however, give prompt notice whenever the goods/services are no longer available. Any advance performance/payments made by the customer shall be promptly refunded.
- Deliveries shall be effected only on the basis of the reservation of title described below. This shall also apply to all future shipments, even if we do not each time expressly make reference to the reservation of title.
Title to the delivered goods shall be reserved until complete settlement of the items of the delivery contract. We shall be entitled to recall the purchased goods if the customer acts in breach of the contract, in particular if he is in default of payment.
- The Buyer shall treat the purchased goods carefully as long as title to the goods has not passed to him. Especially for goods of considerable value, he shall take out, at his own expense, sufficient insurance against theft, fire and water damage equivalent to the replacement value. In the event that maintenance and inspection are required, they shall be carried out by the customer in due time and at his expense. As long as title to the Goods has not passed to the customer, he shall inform us promptly in writing whenever the delivered items are pledged or subject to third-party claims. If such third party is not able to reimburse us for the court and out- of-court costs for bringing an action pursuant to Section 771 of the German Code of Civil Procedure, the customer shall be liable to us for the loss incurred.
- The customer is entitled to resell the reserved goods in the ordinary course of business. The customer shall here and now assign to us his claims against the buyer from the resale of the reserved goods in the amount of the invoice total (including VAT) agreed upon with us. his assignment shall apply whether the purchased goods have been resold without processing or following processing. The customer shall be authorized to collect such claims also after their assignment. This shall not affect our right to collect the claims ourselves. We shall, however, not collect such claims as long as the customer meets his payments from the proceeds obtained, is not in delay of payment, has not filed a petition for insolvency, or has not suspended payments. In such case, however, we may demand that the customer inform us of the claims assigned and of his debtors, provide us any data necessary for the collection of such claims, furnish us with the relevant documents, and inform the debtors (third parties) of the assignment.
- Any processing or modification of the purchased items by the customer shall always be made on our behalf. If the item subject to our retention of title are processed with other objects not belonging to us, then we shall acquire co-ownership of the new item in proportion to the ratio of the value our item (the final invoice amount including Value Added Tax) to the other processed objects at the time of processing. In addition, the provisions concerning the items sold under reservation of title shall apply analogously to the items resulting from such processing.
- If the item subject to our retention of title are irrevocably mixed with other objects not belonging to us, then we shall acquire co-ownership of the new mixed item in proportion to the ratio of the value our item (the final invoice amount including Value Added Tax) to the other processed objects at the time of mixing. If the items are combined in a way that the item of the customer will be considered as the main item, it is understood that we shall be assigned a proportionate co- ownership by the customer. The customer shall hold the independently or jointly owned item that has come into existence in custody for us.
- Upon the Buyer’s request, we shall undertake to release the securities provided to us to the extent that the realizable value of such securities exceeds the claim to be secured by more than 10%; the securities to be released shall be selected by us.
- In order to exert its rights under the reservation of title in compliance with the above provisions, Seller shall be allowed to enter all of the Buyer’s premises and seize the reserved Goods.
Export controls; Compliance with Laws
- If the delivery of Goods contain technologies, software, licenses and subscriptions that are subject to the export control regulations of the Federal Republic of Germany and import/export control regulations of the United States of America or any other countries to which the Goods are delivered or where the Goods are used. The Buyer shall undertake to observe such regulation. Seller will not take any responsibility or liability in case of consequences for breaching such regulations. Seller may even terminate any Agreement related to such Goods, without incurring any liability towards Buyer if such regulations are breached.
- Pursuant to the above export regulations, the Goods must not be delivered or licensed to specifically defined users, countries, or users engaged in activities involving weapons of mass destruction or genocide. The customer knows that there are varying restrictions, depending on the Goods acquired, provided for by the export control regulations and that these regulations are regularly modified. The Buyer declares that he will observe the valid regulations prior to each export or re-export.
- If an end-user statement is required, Seller will inform Buyer immediately and Buyer shall provide Seller with required documentation upon Seller’s written request. Buyer shall inform Seller immediately if an import license is required, and Buyer shall provide Seller with the applicable document as soon as it is available. By accepting Seller’s Offer, entering into any Agreement and/or accepting any Goods, Buyer agrees that it will not deal with the Goods, and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
- Because of possible limitations, Buyer is not authorized by these Terms to resell or provide (in any form) Goods to any Federal Government, State Government, Country Government, Local Government, Foreign or International Governments and any other similar Government entity, including all Government Organizations, Government Companies and Government Agencies of all kinds, any Terrorists or related Organizations, any Armed Forces, Special Forces, Air Forces, Space Forces, Military Forces, Navy Forces, Private Military, any similar or so called Army or Defense entities, any non-financial risk management entities, Global or Intergovernmental Organizations, or to any entity that acting on behalf of previously mentioned entities. In case of such deal or transaction in contradiction with these Terms, Seller will not accept any responsibility for any possible consequences, including but not limited to warranty void, service termination, serial number gray-listing, any financial or legal claims, and will invalidate any possibility of Goods return and refund. Any possible sale to mentioned entities must be agreed in advance in accordance with local and international laws, ethics and other possible regulations, and can also require manufacturer authorization and other pre-approvals.
- The risk shall pass onto Buyer in any case as soon as the Goods are delivered to the forwarding agent, the carrier or any other person in charge of the transportation, or as they leave the Seller’s POS for shipment. In case of return shipments to Seller, the risk shall pass onto Seller upon acceptance of the Goods in Seller’s POS.
Warranty and Liability
- Buyer’s warranty claims shall be subject to proper fulfillment of inspection and notification of defects according to Section 377 of the German Commercial Code.
- If the purchased Goods is defective, Seller may choose between subsequent performance by remedying the defect or delivery of a new Goods without defects. In case of remedying the defect Seller shall bear all costs for the remedy of the defect up to the amount of the purchase price.
- If subsequent performance is unsuccessful, the customer may either rescind the contract or demand reduction of the price.
- Seller provides 30 days money back guarantee or replacement in case of defective Goods.
- We shall assume liability provided by law for any damage claims – not depending on the legal basis – in the scope of fault-based liability in cases of intent or gross negligence. We shall assume liability provided by law in cases of simple negligence under reserve of a more lenient liability standard in case of injury to life, limb or health and in cases of culpable breach of an essential contract duty. In the latter case our liability is limited to the foreseeable damage that will typically occur.
- The limitation of liability under 4. shall also apply in case of breach of duty by our representatives or persons for who’s fault we are liable by law. The limitations shall not apply, if we have intentionally withheld a defect or have assumed a guarantee for the quality of the good. The limitations also not apply in case of claims based on product liability law (Produkthaftungsgesetz).
- The buyer shall not be able to rescind or resign because of a breach of duty which is not a defect, if the breach of duty is not our fault. A free right of the buyer to rescind or resign (e.g. §§ 651,649 BGB) shall not apply. Liability shall be excluded except as otherwise provided for hereunder.
- Unless otherwise stipulated above, liability is excluded.
- The period of limitation for warranty claims shall be 12 months from the date of passage of risk.
- The period of limitation for delivery recourse claims pursuant to Sections 478, 479 of the German Civil Code shall remain unaffected; it shall be five years from the delivery of the defective item.
- The termination of an already activated service contract by manufacturer during its agreed run-time does not entitle the Buyer – for no reason – to get a credit note (Refund) neither in whole nor partly.
- The indication of the correct Smart Account must be provided by the Buyer. If the information is incorrect and the smart account is activated, we cannot change it anymore.
- The following applies, if the product is not registered on correct end user smart account, the Buyer does not provide us with usable smart account data or the manufacturer deletes the products from the existing Smart account, no guarantee can be given about the functionality of the products.
- Seller and its affiliates shall not be liable to Buyer for any lost profits or lost savings, indirect, incidental, punitive, special or consequential damages whether or not such damages are based on tort, warranty, contract or any other legal theory, even if Seller or its affiliates have been advised, or is aware, of the possibility of these damages.
- Liability for damages beyond the extent provided, regardless of the legal nature of the asserted claim, shall be excluded. This shall apply in particular to damage claims based on fault regarding the conclusion of a contract or on other breach of duty, or to claims for compensation of damage to property based on tort pursuant to Section 823 of the German Civil Code.
- The limitation shall also apply if instead of claiming damages the customer claims compensation of useless expenses.
- Any exclusion or restriction of damage claims towards Seller shall apply analogously to personal liability for damages of our employees, staff members, representatives and persons employed in performing our obligations.
Jurisdiction, Governing Law
- If the Buyer is an entrepreneur in the sense of Section 14 of the German Civil Code who has concluded this Contract in carrying on his commercial business, place of performance shall be Potsdam, Brandenburg, Germany. For any present and future claims arising from a business relationship with entrepreneur, the courts of Potsdam shall have exclusive jurisdiction. The courts of Potsdam shall also have jurisdiction if the Buyer has no general jurisdiction in Germany, transfers his habitual residence or domicile to a place outside Germany after the conclusion of the Contract, or if his habitual residence is not know at the time of filing an action.
- These Terms and entire legal relationships between Seller and Buyer shall be governed by the laws of the Federal Republic of Germany. The application of the United Nations conventions shall be excluded.
Except for non-confidential documentation provided to Buyer for distribution with a corresponding Goods, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by Seller or its Affiliates is the confidential information of Seller or its Affiliates. Buyer shall not disclose any confidential information to any third party and shall not use any of the confidential information for any purpose other than in conformance with the purchase transactions under these Terms.
Right of Revocation For German Consumers
Only applicable if Buyer is a Consumer in the sense of Section 13 of the German Civil Code
There is no right of withdrawal in the case of distance Contracts for the supply of Goods that are not prefabricated and for which individual selection or specification by the Consumer is decisive for their production or that are clearly tailored to the personal needs of the Consumer.
Right of Revocation
Consumers are entitled to the following right of withdrawal when acting as Buyer:
Consumer have the right to withdraw from this Contract within (14) fourteen calendar days without stating any reasons. The withdrawal period amounts to (14) fourteen calendar days from the date on which Consumer, or a third party that Consumer have nominated and who is not the carrier, took possession of the Goods. In the case of a Contract for multiple Goods that Consumer ordered as part of a single order but that were delivered separately, the period commences the day on which Consumer, or a third party that Consumer have nominated and who is not the carrier, took possession of the item delivered last.
In order to exercise Consumer’s right of withdrawal, Consumer must inform Seller (see Section 1 for contact details) of this decision to withdraw from this Contract by means of a clear declaration (e.g. in a letter sent by mail, fax or email). In order to comply with the withdrawal period, it is sufficient to send the notification stating Order details and notice to exercise the right of withdrawal before the withdrawal period expires.
Consequences of withdrawal
If Consumer withdraw from this Contract, Seller must reimburse all payments which have been received from Consumer, including delivery costs (except for additional costs resulting from choosing a type of delivery other than the standard delivery offered by Seller), without delay and no later than (14) fourteen calendar days from the date of receipt of Consumer notice of withdrawal from this Contract. For this refund, Seller will use the same means of payment which Consumer used for the original transaction unless otherwise expressly agreed with Consumer; Seller will not charge Consumer any fees for this refund in any case.
Seller may refuse to issue a refund until Goods have been received or until Consumer have provided proof that Goods was returned whichever occurs earlier.
The Goods need to be sent back to Seller immediately, in any case within (14) fourteen calendar days after Consumer have informed Seller about the withdrawal of the Contract. The deadline is secured if Consumer ship the Goods within those (14) fourteen calendar days. Consumer will bear the direct costs of return of Goods.
Consumer must pay for any deterioration of the Goods only if such deterioration was caused by handling them beyond what was necessary for examining the quality, features, and functioning of the Goods.