General terms and conditions of business
§ 1 Validity of the terms and conditions
(1) The vendor's supplies, services and offers shall be effected exclusively on the basis of these terms and conditions of business. Consequently these apply to all future business relations, even if they are not expressly agreed once again. These terms and conditions are deemed as accepted once delivery of the good or service has been taken at the latest. Counter assertions on the part of the purchaser with reference to their terms and conditions of business or purchase are hereby opposed.
The terms and conditions of business apply in the currently valid version. These can be requested from the user in text form or viewed at the internet address www.samcon.eu and downloaded electronically.
(2) All agreements entered into by and between the vendor and the purchaser for the purposes of executing this contract shall be set down in writing in this contract.
§ 2 Offer and conclusion of contract
(1) Offers on the part of the vendor are subject to confirmation and non-binding. Declarations of acceptance and all orders must be confirmed in writing or via fax or e-mail by the vendor in order to have legal effect.
(2) Drawings, illustrations, dimensions, weights or other performance data are only binding if these have been expressly agreed in writing.
§ 3 Prices
(1) Unless stated otherwise, the vendor is bound by the prices contained in their offers for 30 days from the date thereof. Otherwise the prices stated in the vendor's confirmation of order plus the statutory applicable VAT are binding. Additional supplies and services shall be billed separately.
(2) Prices, unless otherwise agreed, are FCA SAMCON Prozessleittechnik GmbH (Incoterms 2010).
§ 4 Delivery and performance period
(1) For orders of devices or spare parts delivery shall be effected only once the invoice amount including packaging and shipping has been paid in full.
(2) Delivery dates or deadlines, which can be agreed in a binding or non-binding manner, must be stated in writing.
(3) The vendor is not liable for delays in delivery and performance on grounds of force majeure and on grounds of events which considerably impede or prevent delivery by the vendor not only temporarily – these include strike, lockout, orders by the authorities, etc. in particular, also if these occur with respect to the vendor's suppliers or their sub-suppliers – even if the dates or deadlines have been agreed in a binding manner. These entitle the vendor to postpone delivery or performance by the duration of the impediment plus a reasonable lead time or to fully or partially withdraw from the contract with respect to the part which has not yet been fulfilled.
(3) If the impediment lasts longer than three months, once a reasonable extension has been granted the purchaser is entitled to withdraw from the contract with respect to the part which has not yet been fulfilled. Should the delivery period be extended or the vendor be released from their obligation, the purchaser cannot derive any claim for damages herefrom. The vendor may only invoke the specified circumstances if they notify the purchaser forthwith.
(4) If the vendor is liable for the non-observance of deadlines and dates which have been guaranteed in a binding manner or is in default, the purchaser is entitled to compensation for default in the amount of 1/2% for every completed week of default, however totalling a maximum of up to 5% of the invoice value of the supplies and services affected by the default. Claims over and above this are excluded, unless the default is based on at least gross negligence on the part of the vendor.
(5) The vendor is entitled to undertake partial deliveries and partial performance at any time, unless the partial deliveries and partial performance are not of interest to the purchaser.
(6) The fulfilment of the vendor's delivery and performance obligations presupposes the timely and due fulfilment of obligations on the part of the purchaser.
(7) Should the purchaser be in default of acceptance the vendor is entitled to compensation for the damage arising for the latter; on occurrence of default of acceptance the risk of accidental deterioration and accidental loss passes to the purchaser.
§ 5 Passing of risk
Risk passes to the purchaser as soon as the shipment is handed over to the person carrying out transportation or has left the vendor's warehouse for the purposes of shipment. If shipment is postponed at the purchaser's request the risk passes to them upon notification of readiness for shipment.
§ 6 Purchaser's rights due to defects
(1) Products shall be delivered free of manufacturing and materials defects. The time limit for asserting claims arising from defects is one year from the delivery of the products.
(2) Should the vendor's operating or maintenance instructions not be observed, modifications be made to the products, parts be replaced or consumables be used which do not correspond to the original specifications claims arising from defects do not apply unless the purchaser refutes an appropriately substantiated assertion that one of these circumstances has brought about the defect.
(3) The purchaser must notify the vendor's customer service management of defects forthwith in writing, however within one week of receipt of the delivery item at the latest. Defects which cannot be detected within this time limit, even if careful inspection has been undertaken, are to be communicated to the vendor forthwith in writing.
(4) In the event of notification by the purchaser that the products have a defect, the vendor requires the following to be undertaken at their option:
a) the defective part or device is sent back for repair ("Bring In") and subsequent return to the vendor;
b) the purchaser keeps the defective part or device available and a service technician on the part of the vendor is sent out to the purchaser to undertake the repair.
Should the purchaser require rectification of defects at a location specified by them the vendor can fulfil this request, with the replaced parts not being billed, whilst working time and travel costs are payable at the vendor's standard rates.
(5) Should the rectification of defects come to nothing following a reasonable period, the purchaser can, at their option, claim reduction of the remuneration or withdraw from the contract.
(6) Liability for normal wear is excluded.
(7) Only the direct purchaser is entitled to claims due to defects against the vendor, and these may not be assigned.
§ 7 Retention of title
(1) Until all receivables are fulfilled (including all current account receivables), to which the vendor is entitled vis-à-vis the purchaser on any legal grounds, now or in the future, the following collateral will be granted to the vendor, which they shall release on request at their option in so far as the value thereof is 20% higher than the value of the receivables on a lasting basis.
(2) The good remains the property of the vendor. In processing or alteration the vendor always remains the manufacturer, however without any obligation on their part. Should the vendor's (co-)ownership come to an end due to combination, it is already agreed at this point in time that the purchaser's (co-)ownership of the item forming a unit passes to the vendor pro rata (invoice value). The purchaser shall keep safe the vendor's (joint) property free of charge. A good, to which the vendor is entitled to (co-ownership, is referred to as a good subject to retention of title in the following.
(3) The purchaser is entitled to process and dispose of the good subject to retention of title in the ordinary course of business as long as they are not in default. Pledging or assignments as security are not permitted. At this point the purchaser shall already assign receivables (including all current account receivables) arising from resale or another legal ground (insurance, tort) relating to the good subject to retention of title by way of security in their full scope to the vendor. The vendor irrevocably authorises them to collect the receivables assigned to the vendor on the latter's account in their own name. This authorisation to collect can only be revoked if the purchaser does not duly fulfil their payment obligations.
(4) With respect to third party attachment in relation to the good subject to retention of title, particularly pledging, the purchaser shall make reference to the vendor's ownership and notify the latter forthwith, so that the vendor can assert their ownership rights. In so far as the third party is not in a position to reimburse the vendor the court or out of court costs arising in this respect, the purchaser is liable herefor.
(5) In the event of the purchaser acting in breach of contract – particularly default in payment – the vendor is entitled to withdraw from the contract and to claim back the good subject to retention of title.
§ 8 Payment
(1) For orders, invoices including postage and shipping are payable immediately without deductions.
(2) Unless otherwise agreed, the vendor's invoices are immediately due without deductions. The payment is to be made within 14 days of invoice issue at the latest. The purchaser enters into default at the latest if they have not paid within 14 days of the due date and the invoicing date.
Despite provisions on the part of the purchaser to the contrary, the vendor is entitled first of all to offset payments against their older debts and shall inform the purchaser about the type of offsetting undertaken. If costs and interest have already arisen the vendor is entitled for the payment first of all to be offset in relation to costs, then interest and then finally the principal.
(3) A payment is deemed to have been effected if the vendor can have the amount at its disposal. For cheques, payment is only deemed as having been effected once the cheque has been cashed.
(4) Should the purchaser enter into default, the vendor is entitled to charge interest from the relevant point in time in the amount of 8 percentage points above the basic rate of interest as lump sum compensation for damages. It is to be set at a lower amount if the purchaser substantiates a lower expense incurred; substantiation of higher damage by the vendor is permitted.
(5) If the vendor is aware of circumstances which cast doubt on the purchaser's creditworthiness, particularly a cheque not being cashed or their payments stopping or if the vendor is aware of other circumstances which cast doubt on the purchaser's creditworthiness, the vendor is entitled to render the entire residual debt due even if they have accepted cheques. In this case the vendor is also entitled to request prepayments or the provision of security.
(6) The purchaser is only entitled to offsetting, retention or reduction of the purchase price, even if notifications of defects or counter claims are asserted, only if the counter claims have become res judicata or are undisputable.
§ 9 Patents
(1) The vendor shall hold the purchaser and their customers harmless against claims stemming from infringement of copyrights, trademarks or patents, unless the design of a delivery item originates from the purchaser. The vendor's indemnity obligation is limited to the foreseeable damage in terms of amount. An additional precondition for indemnification is that litigation is relinquished to the vendor and that the alleged infringement of rights is solely to be attributed to the construction of the vendor's delivery item without connection or use with other products.
(2) The vendor electively has the right to release itself from the obligations assumed in section 1 in that they either
a) procure the required licences with respect to the patents that have allegedly been infringed. or
b) make a modified delivery item or parts thereof available to the purchaser, which remedy the allegation of infringement relating to the delivery item if the infringing delivery item or part thereof is replaced.
§ 10 Confidentiality
Unless otherwise expressly agreed in writing, information presented to the vendor in connection with orders is not deemed to be confidential.
§ 11 Liability
(1) Claims for damages are excluded, irrespective of the type of violation of duty, including torts, in so far as there are no deliberate or grossly negligent actions.
(2) In the event of violation of major contractual duties the vendor is liable for every case of negligence, however only up to the amount of the foreseeable damage. Claims for loss of profits, saved expenditure, stemming from third party claims for damages as well as for other indirect and consequential damage may not be asserted, unless a characteristic feature warranted by the vendor specifically aims at safeguarding the purchaser against such damage.
(3) The limitations of liability and exclusions in sections 1 and 2 do not apply to claims which have arisen due to the vendor's fraudulent behaviour as well as in the case of liability for guaranteed characteristic features, for claims under Produkthaftungsgesetz [Product Liability Act] as well as damage stemming from injury to life, body or health.
(4) Insofar as the liability of the vendor is excluded or limited, this also applies to the vendor's officers, employees, representatives and vicarious agents.
§ 12 Warranty and material defects
(1) Our general warranty conditions are in accordance with § 438 BGB and solely refer to products sold by us. Excluded are any services or constructor services.
(2) If any defects are noted, the customer has to send a written reprimand immediately after the receipt of the equipment. In case that even after a thorough examination of the goods a defect is not immediately recognizable, a written reprimand has to be issued to us directly after the defect has been discovered. After we have received the notice of defect, the customer has to allow us, within a reasonable period, to examine the defect either in our factory or at the installation place in order to determine the legitimacy of the claim. For this purpose, we can ask for the contractual object to be transferred to our Production site.
(3) If a defect on the delivered item has been detected, we are entitled to either execute a supplementary performance in order to rectify the defect or to manufacture a new defect-free product. In case of a supplementary performance, all parts which have been determined defective prior to the transfer of risk will be repaired or exchanged free-of charge. Costs for the supplementary performance of defects are limited to the contractual prices. The exchanged parts will become our property.
(4) Our products are manufactured according to the current state-of-the-art. Excluded from warranty are wear and tear parts and any defects which have been caused by the customer. Also excluded are used delivery items that have been provided by the customer as part of a purchase order due to maintenance and repair measures.
(5) A recommencement of the defect liability because of supplementary performance measures is excluded.
(6) If asked for by us, the customer has to grant us access to the delivered item as well as sufficient time to allow us carrying out the necessary rectification measures. Otherwise we shall be freed of our liability for the consequences that arise thereof.
(7) If the supplementary performance of the defect fails, the ordering party is entitled to reduce the contractual price, to cancel the contract, or to claim compensation.
(8) The warranty shall expire if the customer does not notify us about the defect in the proper form and in due time. This is also valid if the customer disregards the instructions regarding the proper handling of the product (data sheet, ex-installation manual, operating manual, national and international installation regulations) or if our product was altered by a third party or by the installation of external parts of different origin.
(9) The limitation of warranty claims is 12 months, starting at the transfer of risk or the final acceptance, respectively.
(10) The customer is obligated to inform us about any claims for supplementary performance posed by his client. The processing of any warranty claims of our customers‘clients is based on our terms and conditions, particularly § 12 „Warranty and material defects“.
With the complete fulfillment of the customer’s client’s warranty claims by us, the customer loses the right for any recourse claims against us due to their own legal warranty obligations regarding their client.
§ 13 Guarantee
(1) Our guarantee commitment refer the product function as well as the explosion protection safety statements in terms of the Ex marking of our products.
(2) The guarantee period depends on the individual product.
(3) The customer has to reprimand the defect in the proper form and in due time.
The warranty shall expire if the purchaser disregards the instructions regarding the proper handling of the product (data sheet, ex-installation manual, operating manual, national and international installation regulations) or if our product was altered by a third party or by the installation of external parts of different origin.
(4) All guarantee claims will be checked by us in our factory; all guarantee commitments are understood as a so called „Bring-In“ guarantee. Any delivery charges are to be borne by the customer.
(5) The return delivery charges for accepted guarantee claims will be borne by us. If required, the repaired equipment can also be send to the applicable installation place, the delivery charges will then be covered by the customer, though.
(6) A guaranty extension is possible and can be purchased as a separate „Guarantee-Upgrade“ product. The extension of the standard guarantee period has to be purchased at the same time as the applicable product. The possibility to extend the guarantee period at a later time is excluded.
(7) The guarantee period commences at the transfer of risk. An interruption of the guarantee period because of storage or a delayed installation is excluded.
(8) Wear and tear parts such us bearings, sealings, or battery cells are generally excluded from guarantee claims.
(9) If not agreed upon differently, control and server cabinets, (Ex)Connection Rails and Racks are generally excluded from any guarantee claims. Any warranty claims remain unaffected thereof.
§ 14 General service conditions (Travel & Work)
(1) The invoicing of services is based on time sheets.
(2) Each started service hour is charged as a complete work hour.
(3) Travel and waiting time is charged as work time.
(4) For Overtime hours (weekdays 5 p.m. to 8 p.m. as well as Saturdays) a surcharge of 30% applies
(5) For night time as well as Sundays and holydays, a surcharge of 100% applies.
(6) Purchased services and materials are subject to a 15% business surcharge.
(7) Provided documents and acquired information are treated by us confidentially.
(8) Any contact with specialist and / or approval authorities are only done in coordination with the customer.
(9) If required, the customer can receive information regarding employee qualifications.
(10) With effect of January 1, 2015 the below hourly rates are valid:
CCTV Technician: 55.00 €
CCTV Engineer: 95.00 €
Qualified person ex-protection: 135.00 €
Company car: 0.55 €/km
§ 15 Authorized partners, distributors and project protection
a.) International customers and international resellers
cannot apply for project protection.
SAMCON cannot grant exclusivity.
The SAMCON Terms and Conditions apply.
b.) Authorized partners
The program for authorized partners is aimed at national and international resellers.
It serves the following purpose:
1. It legitimates the authorized partners to sell SAMCON products to the end user
2. It allows the authorized partners to apply for project protection (see below)
The authorized partner status is unilaterally awarded by SAMCON.
The status does not give a better discount.
Authorized partners are only appointed for one year, unless otherwise agreed.
The authorized partner status can be withdrawn without notice.
Authorized partners will not be published on www.samcon.eu.
Each authorized partner has a fixed contact in the SAMCON sales team.
All resellers undertake to comply with and implement the legal regulations on the placing on the market of ex-certified devices (eg Directive 2014/34/EU for the European Union).
Distributions are international trade representatives.
Ideally, distributors are competitors to constructors and not to constructors themselves.
Distribution contracts are bidirectional and call for marketing activities from the distributor.
Distributors also have no territorial exclusivity, unless otherwise agreed in the contract.
The task of the distributors is:
1. To make the SAMCON brand known to constructors (Marketing)
2. To sell SAMCON products (Sales)
3. If necessary, to give trainings to constructors and end customers (Training)
Distributors are only appointed for two orthree years, unless otherwise agreed.
Distributors are published on www.samcon.eu.
Distributors have the right to apply for project protection (see below).
Each distributor has a fixed contact in the SAMCON sales team.
All distributors undertake to comply with and implement the legal regulations on the placing on the market of ex-certified devices (eg Directive 2014/34/EU for the European Union).
d.) Project protection
Project protection, or "lead-protection" is used to protect the distribution network of partners or distributors as far as possible.
If SAMCON protects a project, SAMCON confirms to the partners or distributors the following:
Knowingly, SAMCON will neither directly nor via other distributors or partners participate in the tender concerning the protected project.
SAMCON cannot guarantee that other sales channels (distributors or international webshops) participate in the applicable tender, based on their regular discount conditions.
SAMCON does not confirm any exclusivity.
§ 16 Applicable law, venue, partial invalidity
(1) The law of the Federal Republic of Germany is applicable to these terms and conditions of business and the entirety of the legal relations between the vendor and purchaser. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are not applicable.
(2) If the purchaser is a businessperson, legal person governed by public law or a special fund under public law Marburg shall be the sole venue for all disputes directly or indirectly arising from the contractual relationship.
(3) Should a provision in these terms and conditions of business or a provision within the framework of other agreements be or become invalid the validity of all other provisions or agreements remains unaffected.