GENERAL TERMS AND CONDITIONS FOR DELIVERIES AND SERVICES
1. General and Subject Matter
1.1 For all deliveries or services of System-D GmbH, Dieselstr. 11, 85757 Karlsfeld, Germany (hereinafter referred to as "We") to entrepreneurs as defined in Sect. 1.2 below (hereinafter referred to as "Buyer"), our General Terms and Conditions (hereinafter referred to as "GTCs") shall apply exclusively, unless We and Buyer agree otherwise in text form as defined in Sect. 126b German Civil Code/BGB (hereinafter referred to as "Text Form") on the basis of an offer or order and its acceptance (hereinafter referred to as "Contract").
1.2 An “Entrepreneur” within the meaning of these GTCs is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a Contract.
1.3 These GTCs shall also apply exclusively if We carry out the deliveries or services without reservation in the knowledge of conflicting general terms and conditions of business or purchase of the Buyer. If the Buyer does not wish to accept individual conditions of our GTCs, the Buyer must expressly object in writing; otherwise the Buyer accepts our GTCs at the latest upon acceptance of our delivery or service.
1.4 These GTCs shall also apply exclusively to all future contracts with the Buyer regarding further deliveries or services.
2. Offers / Scope of Deliveries and Services
2.1 Our offers are subject to change without notice unless We expressly mark the offer as binding. We are entitled to accept offers made by the Buyer within four (4) weeks of receipt by us. We therefore reserve the right to make changes of any kind, in particular price or quantity changes, until We have submitted a binding offer or until the Contract has been concluded.
2.2 Offers and acceptances must be in Text Form in order to be effective. Any ancillary and additional agreements to a Contract, details of the nature of the delivery items, which We may make before, during or after conclusion of a Contract, must also be made in Text Form in order to be effective, as well as an express reference to the Contract in question, insofar as they are made after conclusion of the Contract.
2.3 If We offer the Buyer in an offer the delivery of different delivery items and/or the delivery of a number of the same delivery items and/or deliveries and services at prices which can be allocated to the respective delivery item or service item (individual and unit prices), a legally independent Contract exists for each of these delivery items and services, unless it is expressly stated in the offer that We want to offer a single contract for the entirety of all delivery items and services. If a total price is stated in our offer in addition to individual and unit prices, this alone is not sufficient for construing a single Contract for the entirety of all delivery items.
2.4 We are not the manufacturer of the delivery items, but trade with them worldwide. Any descriptions and technical data of the delivery items are provided by the respective manufacturers of the delivery items and not by us. Due to the nature and complexity of the delivery items (semiconductors), We will only check them for functionality, quality or originality if expressly offered or agreed in the contract. In the absence of such an agreement or in the case of a direct delivery from our supplier to the Buyer, the inspection of the delivery items by us shall be limited to the absence of obvious transport damage, a quantity check and a statistical identity check according to purely optical criteria. The Buyer will therefore carry out the necessary checks on the delivery items in accordance with these GTCs or in accordance with our current Guidelines for the Use of Contractual Products (available at www.system-d.de) prior to their use.
2.5 Insofar as We offer services such as product tests, product analyses or assessments, We do not carry these out ourselves but have them carried out by external test houses/labs. In this respect, We generally broker these services of the external test houses/laboratories to the Buyer and are liable to the Buyer for any grossly negligent or intentional selection fault in accordance with Sect. 9 of these GTCs. Should We exceptionally offer and perform these services in our own name and on our own account, the respective terms and conditions of the test house/laboratory shall apply accordingly in the relationship between the Buyer and us and shall take precedence over these GTCs insofar as reference is made to these terms and conditions in our offer.
3. Delivery Quantities
3.1 If stated in our offers, the Buyer can only order the minimum quantities or lot sizes stated.
3.2 In the case of divisible deliveries, We may deliver in partial quantities.
3.3 If an additional delivery is expedient due to customary packaging or batch sizes, We may deliver the corresponding additional quantity to the Buyer without a surcharge.
4. Delivery Dates / Reservation of Self-Supply
4.1 Delivery dates and delivery periods are non-binding planning data, unless explicitly otherwise agreed in the Contract in individual cases.
4.2 If a binding delivery date is determined in days, a delivery window of +/- three (3) working days shall be deemed agreed. If the delivery date is determined in weeks, delivery on the last working day of the week in question shall suffice.
4.3 If We are prevented from delivering on time due to procurement, manufacturing or delivery disruptions - also at our suppliers - through no fault of our own, binding delivery dates and periods shall be extended by the same period. We shall notify the Buyer immediately in writing of any extension of the delivery dates or periods.
4.4 Delivery periods and delivery dates bindingly agreed with the Buyer are furthermore subject to the proviso that We are also supplied in all other respects in accordance with the supply contract (with regard to delivery quantities or quality) (“Selbstbelieferungsvorbehalt”). In the event of any failed or non-compliant self-delivery, We shall be entitled to rescind from the Contract with Buyer (“zurücktreten”) if
- We have informed the Buyer immediately about the non-compliant or failed self-delivery, unless the Buyer already has prior knowledge, and
- We are not responsible for the non-compliant or failed self-supply and We have concluded a concrete covering transaction with the supplier and can prove it with due diligence, and
- all reasonable efforts to procure the products elsewhere at reasonable prices remain unsuccessful.
Our declaration of rescission (“Rücktritt”) must be made in Text Form.
4.5 The Buyer may request us in Text Form to deliver within a reasonable period of time two (2) weeks after binding delivery dates or periods have been exceeded. If the grace period expires without success, the Buyer is entitled to rescind from the contract, whereby the rescission must be made in Text Form.
4.6 If We are in default with the delivery, the Buyer may, if he can credibly demonstrate that he has suffered a damage as a result, demand compensation of 0.5 % for each completed week of default, but no more than a total of 5 % of the price for that part of the delivery which could not be used for its intended purpose due to the default. Both claims for damages by the Buyer due to delayed delivery and claims for damages in lieu of performance which exceed the aforementioned limits shall be excluded in all cases of delayed delivery, even after expiry of the deadline set for delivery. This limitation shall not apply in cases of intent, gross negligence or injury to life, limb or health.
5. Order Cancellation by the Buyer
5.1 The Buyer is not entitled to cancel a Contract for convenience (“stornieren”).
5.2 Only if We obtain the delivery items requested by the Buyer from a supplier who grants us a cancellation/return free of charge within certain periods of time shall We notify the Buyer thereof, with the proviso that he must comply with these periods of time in the event of cancellation/return on his part vis-à-vis us, otherwise cancellation/return is excluded.
6. Shipping and Prices
6.1 Shipment is at the Buyer´s risk. The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for dispatch.
6.2 Insurance shall only be taken out upon special agreement. Any packaging required for transport shall be invoiced by us at cost price.
6.3 Unless otherwise agreed, the prices shall apply ex our place of business.
6.4 Prices are always calculated in Euro (€). If, however, We agree on a price and a payment in foreign currency, the following currency sliding clause shall apply: If the exchange rate of the foreign currency against the euro deteriorates by more than 3% between the order and invoicing, We shall be entitled to adjust the price in foreign currency accordingly. In the reverse case, the Buyer shall be entitled to the same right.
6.5 In the event of other cost increases between the conclusion of the contract and delivery (cost increases for supplies, customs duties or other public charges) which are not due to exchange rates, We shall be entitled to increase the agreed prices accordingly. At the Buyer's request, We shall be obliged to prove the cost increases for the contractually agreed delivery. The Buyer is entitled to rescind from the Contract if the price increase exceeds 5% of the price (net) and We have a corresponding rescission right towards our Supplier. The Buyer's right of rescission expires if it is not exercised in Text Form within two weeks of receipt of the notification of the price increase, insofar as We have referred in this notification to the Buyer's claim to proof, his right of rescission and the applicable deadline. If the Buyer requests proof of the cost increase within the week period, the rescission period shall be extended by the time We need to prove the cost increase.
6.6 The assertion of the Buyer's rights of retention and offsetting against counterclaims of the Buyer are excluded unless the counterclaim has been acknowledged by us in Text Form or has been finally awarded by the competent courts.
6.7 If the Buyer refuses to accept deliveries or partial deliveries for an unjustified reason within his sphere of risk, We may store the products at the expense and risk of the Buyer.
7. Retention of Title
7.1 The delivered products shall remain our property until unconditional payment by the Buyer (“Eigentumsvorbehalt”). This retention of title shall also remain in effect for all claims which We have against the Buyer in connection with the entire Contract and from other transactions, also on the basis of spare parts deliveries or other services.
7.2 As long as the retention of title exists, the Buyer may only sell the delivered products in the normal course of business, and in turn only under retention of title. At the same time, the Buyer hereby assigns his payment claims or other remuneration rights including his own claims from retention of title against his customer to us as security until full payment of the purchase price claim plus ancillary claims. We hereby accept the assignment. In the event that the Buyer's claims from the resale are included in a current account, the Buyer hereby also assigns to us his claim from the current account vis-à-vis his customer, namely to the amount invoiced by us for the resold products subject to retention of title, including value-added tax. We hereby accept the assignment.
7.3 As long as the retention of title exists, the Buyer may process or combine the reserved products within the meaning of §§ 947 and 950 German Civil Code/BGB with other products or items not belonging to us within the framework of normal business operations. We shall then be entitled to a co-ownership share in the new product/item in the amount of the price charged to the Buyer for the reserved products including value-added tax. The Buyer shall keep the products in safe custody for us free of charge. If the Buyer sells the combined or newly manufactured products, the above paragraph shall apply mutatis mutandis.
7.4 The Buyer's right to resell the products delivered under retention of title or to process or combine them with other products/items or to resell them shall lapse if the Buyer ceases payments or falls into arrears with payments to us. In this case, the Buyer may only dispose of the products or the new items upon our express instructions. In this case, We may also rescind from the Contract and demand the return of the products; for this purpose, We may enter the premises of the Buyer or the recipient at any time.
7.5 The Buyer is obliged to mark the delivered products subject to retention of title as such and to keep them separate from other goods. Furthermore, he must insure them against any possibility of damage with the proviso that We are entitled to the rights from the insurance or that the Buyer hereby assigns the claims against the insurer to us, whereby We hereby accept this assignment.
7.6 The Buyer may neither pledge nor assign by way of security the delivered products subject to retention of title. If the delivered products are seized or confiscated, the Buyer must inform us immediately in Text Form and support us in any way in an intervention.
7.7 Until revoked, the Buyer is entitled to collect the claims assigned to us. An assignment or pledging of these claims is only permissible with our written consent. Should circumstances arise at the Buyer which in our opinion no longer justify the granting of a payment term, the Buyer shall, at our request, notify the debtors of the assignment in Text Form. Furthermore, the Buyer must provide us with all information, submit and send documents and, if necessary, grant us access to the documents. In addition, the Buyer hereby authorises us to assert the claims directly against third parties in our own name.
7.8 The costs for the fulfilment of all aforementioned obligations, for the pursuit of all rights from the reservation of title as well as for all uses made for the purpose of preservation and storage of the delivered products shall be borne by the Buyer.
7.9 We undertake to release the claims assigned as security at the request of the Buyer to the extent that their total exceeds 110 % of the total of all unpaid invoices or other claims on our part against the Buyer.
8. Liability for Defects / Warranty (“Mängelhaftung/Gewährleistung”)
8.1 The Buyer must inspect and examine the delivered products immediately after delivery and at the times specified in our current Guidelines for the Use of Contractual Products (available at www.system-d.de). The Buyer shall examine and test the delivered products for their suitability for the use planned by him and his customers. In addition § 377, 381 German Commercial Code/HGB shall apply.
8.2 If a defect becomes apparent at the time of delivery, the aforementioned inspection or at any later point in time, We must be notified of this in Text Form immediately after becoming aware of it. In any case, obvious defects (including wrong or short delivery) must be reported in Text Form immediately, at the latest within five (5) working days of delivery and defects not recognisable during the inspection within the same period of discovery.
8.3 Batch differences in the sense of unavoidable process tolerances due to material and surface conditions as well as product-typical properties of the delivered products, which only represent a minor optical complaint criterion, do not constitute a defect. If contractual items have been sold by us with reference to an expired storage or processing date, this shall also not constitute a defect.
8.4 If the Buyer fails to properly inspect the products and/or to report the defect, the delivered product shall be deemed to have been approved with regard to the defect not reported or not reported on time or not properly, which is why the Buyer cannot assert claims for defects in this respect.
8.5 If the Buyer gives notice of defects in the delivered products in a timely and proper manner, he shall be obliged to provide us with at least one unit of such product complained about for the purpose of examining the complaint and to allow us to examine the products complained about within a reasonable period of time. In the event of refusal by the Buyer, We shall not be obliged to accept a request for subsequent performance on the part of the Buyer.
8.6 Until our inspection in accordance with the above paragraph has been completed, the Buyer may not, after discovery of the defect, continue to dispose of the delivered product complained of or process or install it, otherwise he forfeits his claims for subsequent performance under this Section.
8.7 In the case of justified and timely notice of defects, We shall be given a reasonable period of time to remedy the defect at our discretion by any form of subsequent performance (generally by replacement delivery, if available). The Buyer is aware that a replacement delivery is generally not possible in the case of stock or remaining stock transactions and/or in the case of delivery items discontinued by the manufacturer (EoL). We are entitled to make subsequent performance dependent on the Buyer paying the full purchase price due. The Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect only subject to the conditions of Sect. 8.8 below.
8.8 In the event of subsequent performance, We shall generally be entitled to two attempts at subsequent performance. The Buyer shall not be entitled to a reduction of the purchase price as long as We fulfil our obligations to subsequent performance and subsequent performance has not failed. If a second supplementary performance also fails, the Buyer may - without prejudice to any claims for damages - reduce the remuneration or, in the case of considerable defects and given proportionality, rescind (“zurücktreten”) from the Contract at his discretion.
8.9 Claims for damages and reimbursement of expenses of the Buyer due to a defect, including possible expenses of the Buyer for the removal of the defective and the installation or attachment of the repaired or delivered defect-free product according to § 439 para. 3 German Civil Code / BGB are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, limb or health and in the event of wilful or grossly negligent breach of duty on our part. A change in the burden of proof to the disadvantage of the Buyer is not associated with the above provisions.
8.10 Claims for damages and reimbursement of expenses on the part of the Buyer due to a defect shall also be excluded in particular if the Buyer was aware of the defect in the delivery items before installation or attachment to the other item or if the Buyer should have been aware of it due to the inspections required by these GTCs or our Guidelines on the Use of Contractual Products.
8.11 No claims for defects shall arise for impairments of the delivered products as a result of natural wear and tear, in particular in the case of wearing parts, improper handling, installation, use or storage as well as improper modifications or repairs carried out by the Buyer or third parties.
8.12 Claims of the Buyer for breach of the warranty and resulting subsequent performance granted under this Section shall become statute-barred twelve (12) months after the statutory commencement of the limitation period (i.e. in general the date of delivery); the same shall apply mutatis mutandis to rescission (“Rücktritt) and price reduction. This period shall not apply, if longer periods are prescribed by mandatory law pursuant to §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) German Civil Code / BGB, in the case of intent; in the case of fraudulent concealment of a defect and in case of any non-compliance with a guarantee.
9. Limited Liability
9.1 Claims for damages on the part of the Buyer, irrespective of the legal basis, in particular due to breach of contractual or non-contractual obligations by us, shall be excluded unless We are liable under the Product Liability Act or for intentional or grossly negligent conduct; in the case of simple negligence, We shall only be liable for damages resulting from injury to life, limb or health or for damages resulting from the breach of essential contractual obligations (an essential contractual obligation (“Kardinalpflichten”) is an obligation the fulfilment of which is essential to the proper performance of the Contract and the observance of which the Buyer regularly relies on and may rely on). In the event of a breach of such essential contractual obligation, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
9.2 The limitations of liability resulting from the preceding paragraph shall also apply in the event of breaches of duty by or for the benefit of persons whose fault We are responsible for in accordance with statutory provisions. They shall not apply if We have fraudulently concealed a defect or assumed a specific guarantee for the quality of the products.
9.3 The liquidated damages and the associated exclusion of liability in the event of default as per Sect. 4.6 as well as the limitation to gross negligence or wilful misconduct in the selection of service providers in accordance with Sect. 2.5 shall prevail over this Section.
10. Export
10.1 The products delivered by us are intended to remain in the country in which the Buyer is seated, unless expressly agreed otherwise.
10.2 The resale or other use of the delivered products and the technology and documentation associated therewith may be subject to the export control regulations (e.g. laws, regulations, directives, decisions and administrative acts) of the countries in which the contracting parties are seated, i.e. the Federal Republic of Germany, the European Union and the United States of America and may also be subject to the export regulations and/or country-specific laws, regulations etc. of other states.
10.3 It is the responsibility of the Buyer to inform himself about these provisions, to observe them and, if necessary, to apply for the corresponding export, re-export or import permits himself.
11. Miscellaneous
11.1 Place of performance for payment, delivery and service is Karlsfeld, Germany.
11.2 The place of jurisdiction shall be Munich, Germany, if the Buyer is a registered trader, a legal entity under public law or a special fund under public law, or if he moves his seat abroad after conclusion of the Contract, or if his seat is unknown at the time the action is filed. This place of jurisdiction is exclusive only for the Buyer.
11.3 All agreements shall be made in Text Form. This also applies to supplemental agreements as well as to subsequent changes to the Contract.
11.4 The invalidity or nullity of an individual provision of the Contract shall not affect the validity of the remainder of the Contract. German law shall apply exclusively apart from its conflict of laws provisions and apart from the UN Convention on Contracts for the International Sale of Goods (CISG).
System-D GmbH, 01.03.2023
