General Business Terms

of the company Samsys GmbH

Status: 04/2024

The following
terms and conditions apply to all services, in particular

 

One-off repair, assembly or maintenance services

 

 (hereinafter referred to as One-Time Service
Contract -I-)

 

and permanent service contracts

 

(hereinafter
referred to as Continuous Service Agreement -II-)

 

and General Provisions for All Services

 

(hereinafter
referred to as General Provisions -III-)

 

These
terms and conditions shall also apply if we perform our services without
reservation in the knowledge of terms and conditions of the customer that
conflict with or deviate from our terms and conditions of service. The
customer’s general terms and conditions shall not apply.

 

Our
Terms and Conditions of Service apply only to entrepreneurs (§ 14 BGB);
application to (end) consumers (§ 13 BGB) is excluded. These General Terms and
Conditions of Service shall also apply to future orders.

 

 

I. Conditions for one-time service
contract

 

The
following conditions apply to all one-off service contracts.

 

1. subject matter of the contract

 

1.1  

 

The
subject matter of a one-time service contract is the assumption of
repair/assembly or maintenance services of the customer’s machine or system
(hereinafter: “contractual equipment”) by SAMSYS.

 

1.2  

 

SAMSYS
shall provide the services listed below within the scope of this one-time
service contract:

 

1.2.1    Repair (including remote diagnosis and maintenance)

1.2.2    Maintenance

1.2.3    Hotline support

 

 

1.3

 

At the request of
the Principal, SAMSYS shall provide the following services on the basis of
separate agreements and remuneration:

 

1.3.1 Setting
up/first installation of the Client’s machine/plant at the Client’s premises
(assembly)

1.3.2    On-site support

1.3.3    Training

1.3.4    Consultation
regarding plant expansion and renewal

 

 

2 Conclusion of contract

 

A
one-time service contract shall be concluded after the customer/client has
placed an order by telephone or in writing by receipt of our corresponding
confirmation by fax or by email, whereby receipt shall be deemed to have been
effected one day after dispatch at the latest. The date of the conclusion of
the contract shall be the date of our confirmation.

 

 

3. scope of services

 

3.1

 

Unless
otherwise agreed, the duration of normal working hours shall be governed by the
statutory provisions of the Federal Republic of Germany. SAMSYS work is usually
carried out from Monday to Thusday from 8.00 am to 12.00 pm and from 12.45 pm to
4.45 pm. Also Fridays from 8.00 am to 12.00 am and from 12.45 am to 2.45 am.

This corresponds to a 38-hour week and includes working, travelling
and waiting times. SAMSYS maintains or repairs the customer’s machine/plant
according to the customer’s (fault) report. In addition, SAMSYS provides
on-site fault diagnosis, usually by means of a test programme, special tools
and test equipment.

 

3.2

 

The
repair or maintenance service shall be carried out at the discretion of SAMSYS either
by repair and, if necessary, replacement of defective components. A
machine/system is repaired when it is ready for its intended use again.

 

3.3

 

The
SAMSYS service does not cover the power and water supply or any other work that
does not affect the system/machine. It also does not include the disposal of
defective or old components. If SAMSYS provides spare parts exclusively against
return of the removed part, the removed part shall become the property of SAMSYS.
Otherwise, removed parts shall remain the property of the customer.

 

3.4

 

SAMSYS
is entitled to refuse a service in individual cases if the machine/plant is no
longer repairable or worthy of repair at its own discretion or if required
spare parts can no longer be procured. In the event of a safety risk, SAMSYS
shall also be entitled to interrupt the service until the risk has been
eliminated.

 

3.5

 

If
components are used by the customer for the repair of a machine/plant, SAMSYS
shall not be liable for the faultlessness and/or serviceability of the
component provided by the customer. SAMSYS is also not obliged to check the
suitability of the component prior to repair.

 

 

4. cooperation of the customer in repair/assembly or
maintenance services

 

4.1

 

The
customer shall support SAMSYS in the performance of the contractual
repair/assembly and/or maintenance services at its own expense. The customer
shall in particular be obliged to provide the following technical assistance at
its own expense:

·        
Provision
of the necessary suitable auxiliary staff in the number required for the work
performance. SAMSYS shall not assume any liability for the assistants,

·        
Provision
of the necessary devices and tools as well as the required commodities and
substances;

·        
Provision
of heating, lighting, operating power, water, including the necessary
connections;

·        
Provision
of suitable, theft-proof recreation rooms and work rooms and first aid for SAMSYS
staff.

 

4.2

 

The
customer shall take the special measures necessary to protect persons and
property at the repair/assembly or maintenance site. The customer shall also
inform SAMSYS of any existing special safety regulations.

 

4.3

 

If
the customer fails to comply with its obligations, SAMSYS shall be entitled,
but not obliged, after setting a deadline, to perform the actions incumbent
upon the customer in its place and at its expense.

 

 

5. industrial property rights of third parties

 

If
the item to be repaired or maintained is not supplied by SAMSYS, the customer
shall point out any existing industrial property rights with regard to the
item; provided that SAMSYS is not at fault, the customer shall indemnify SAMSYS
against any third-party claims arising from industrial property rights.

 

6. repairs that cannot be carried out

 

6.1

 

The
services rendered for the purpose of submitting a cost estimate as well as any
further expenses incurred due to troubleshooting shall be charged to the
customer if the repair cannot be carried out for reasons for which SAMSYS is not
responsible, in particular because:

 

·        
the
defect complained of did not occur during the inspection, i.e. a false error
message is present.

·        
the
spare parts cannot be obtained,

·        
the
client has culpably missed the agreed appointment.

·        
The
customer has caused an incorrect intended use and/or scope through defective or
incorrect information.

 

 

6.2

 

The
object of repair need only be restored to its original condition at the express
request of the Client against reimbursement of the costs, unless the work
carried out was not necessary.

 

 

7. cost information

 

7.1

 

As
far as possible, the Client shall be given the estimated repair price when the
contract is concluded. If the repair cannot be carried out at this price or if
additional work is necessary after the start of the repair, the Client’s
consent shall only be obtained if the price is exceeded by more than 15%.

 

7.2

 

If a
cost estimate with binding price estimates is desired before the repair is
carried out, this must be expressly requested by the customer. Only written
cost estimates shall be binding.

 

 

8. special regulations for assemblies

 

8.1

 

Installations
shall be invoiced in accordance with the price list for service conditions
according to time calculation – as published on the SAMSYS homepage – unless a
lump sum price has been expressly agreed.

 

8.2

 

The
required material shall be invoiced according to the actual consumption. The
parts used shall be invoiced at SAMSYS’ prices valid at the time of delivery in
accordance with SAMSYS’ general terms and conditions of delivery and payment.

 

8.3

 

Delivered
items and materials shall remain the property of SAMSYS until receipt of all
payments under the installation contract.

 

8.4

 

Assembly
deadlines shall only be binding deadlines if this has been expressly agreed. If
an assembly part supplied by SAMSYS is damaged during assembly through the
fault of SAMSYS, SAMSYS shall, at its option, either repair it or supply a new
one at its own expense.

 

 

II. Conditions for permanent
service contracts

 

In
the event that a continuous service contract is concluded, SAMSYS shall take
over the maintenance and servicing of the customer’s machine/plant in
accordance with the following conditions:

 

1. performance of SAMSYS

 

1.1

 

SAMSYS
shall carry out maintenance on the Principal’s machines/equipment listed in the
contract once a year.

 

1.2

 

Maintenance
is covered by the agreed flat-rate price. Any spare parts required will be
charged separately.

 

1.3

 

SAMSYS
will announce the maintenance in good time. SAMSYS is entitled to combine
special operations due to reported malfunctions with regular maintenance.

 

1.4

 

SAMSYS
shall remedy faults that occur outside the regular maintenance after being
notified by the customer. SAMSYS shall invoice these repairs separately
according to working time, travel costs and necessary spare parts.

 

1.5

 

SAMSYS
shall not be obliged to repair malfunctions or failures caused by third
parties, force majeure, machines/systems not maintained by the customer or
improper handling (non-compliance with operating instructions and
non-functional use) by the customer or its employees within the scope of the
long-term service contract. If SAMSYS nevertheless carries out a corresponding
repair, SAMSYS shall be entitled to invoice the services rendered for this
separately, whereby the price list for service conditions shall apply. SAMSYS shall
be entitled to refuse a repair in individual cases if the device is no longer
repairable or worthy of repair at its own discretion or if required spare parts
can no longer be procured. In this case, the existing long-term service
contract shall also end with the rejection.

 

 

2. obligation of the customer

 

2.1

 

The
customer shall report any malfunctions or damage to the machines/equipment
without delay.

 

2.2

 

The
customer is obliged to cooperate properly in the performance of the service. In
this respect, I. 4. applies accordingly.

 

 

3. duration of the contract

 

3.1

 

The
permanent service contract is concluded for a fixed period of 2 years. It is
automatically extended by 1 year at a time if no contractual partner terminates
it beforehand.

 

3.2

 

The
contract may be terminated by either party with one month’s notice to the end
of the respective term. The termination must be in writing.

 

 

III General provisions

 

The
following shall apply to all services, in particular service contracts (I) and
permanent service contracts (II), as well as including advice, planning,
provision of information and the like:

 

1. offer and offer documents

 

1.1

 

All
offers are non-binding with regard to price and delivery possibilities.
Illustrations, drawings, weights and other dimensions are only authoritative
unless they have been expressly designated as binding.

 

1.2

 

When
initiating and executing a contract, it is necessary to process contact and
interaction data of the customer’s contact persons. SAMSYS GmbH processes this
personal data on the basis of a legitimate interest in ensuring the
traceability of the business relationship and supporting communication during
the execution of the contractual relationship. If the contractual service
requires the involvement of other SAMSYS companies, the information is also
passed on to them. This may also include SAMSYS companies outside Europe. An
appropriate level of data protection in compliance with Art. 44 ff DS-GVO is
ensured within SAMSYS GmbH.

 

1.3

 

 For the purpose of initiating and processing
the contracts as well as subsequent services, SAMSYS transmits employee contact
data to the customer in order to enable orderly communication and service
processing. The customer may only use this data for the execution of the
respective contractual relationship with SAMSYS.

 

1.4

 

We
reserve the property rights and copyrights to illustrations, drawings,
calculations and other documents; they may not be made accessible to third
parties. Quotation documents must be returned immediately on request if the
order is not placed with us.

 

 

2. prices

 

2.1

 

Unless
otherwise stated in the order confirmation, our prices shall apply “ex
works” or “ex warehouse”, excluding packaging, which shall be
invoiced separately.

 

In
the event that, after conclusion of the contract, the net purchase prices to be
paid by the contractor for the contractual materials = (in particular wood,
insulating materials, metals) should rise or fall by more than ……percent at
the time of their delivery, each of the two contracting parties shall have the
right to demand that the other enter into supplementary negotiations with the
aim of bringing about, by agreement, an appropriate adjustment of the
contractually agreed prices for the contractual materials concerned to the
current delivery prices.

 

2.2

 

If the order value
is less than €50.00 (net), a minimum quantity surcharge of €20.00 will be
levied.

 

2.3

 

Items
with a retail price of less than €10.00 (net) cannot be returned.

 

2.4

 

Statutory
value added tax is not included in our prices; it will be shown separately in
the invoice at the statutory rate on the date of invoicing.

 

2.5

 

Packaging
materials and pallets are charged at cost price. Special packaging will be
charged on in the amount of the pre-charge by our supplier. Packaging goods
cannot be taken back.

 

 

3. remuneration/payment

 

3.1

 

The
services – with the exception of maintenance services (see III. 3.2) – shall be
invoiced by SAMSYS according to working time, travel costs and required spare
parts immediately after the service has been performed on the basis of the
applicable service price list plus the applicable VAT. The customer shall sign
a corresponding performance record after completion of the service work.

 

3.2

 

SAMSYS’s
maintenance services shall be invoiced directly after the service has been
rendered on the basis of the applicable flat rates. Additional services that
are not covered by the flat rates shall be invoiced by SAMSYS after the service
has been rendered on the basis of the applicable price list for services.

 

3.3

 

In
the case of services that are terminated prematurely at the request of the
customer, the customer shall pay SAMSYS for all expenses already incurred or
commenced.

 

 

3.4

 

The
services invoiced by SAMSYS are payable net immediately after receipt of the
invoice. Cheques, bills of exchange and other means of payment shall only be
accepted by special agreement and only on account of payment subject to cover.
Any costs and fees incurred shall be borne by the customer.

 

3.5

 

In
the event of default in payment on the part of the customer, we shall be
entitled to claim the statutory default interest in accordance with § 288 BGB.
This does not exclude the assertion of further damage caused by default.
However, the customer shall be entitled to prove that a lesser damage has been
incurred.

 

3.6

 

Set-offs,
reductions and rights of retention shall be excluded unless the alleged
counterclaims or rights of the customer/client have been legally established or
recognised by SAMSYS.

 

 

4. delivery deadlines

 

4.1

 

Delivery
deadlines are non-binding. The customer is not entitled to assert claims for
damages if delivery deadlines are exceeded, unless exceptions are regulated in
individual contracts or in the following.

 

4.2

 

A
binding deadline shall be deemed to have been met if, by the time of its
expiry, the delivery item has left the factory/warehouse or notification has
been given that it is ready for dispatch (in the case of collection by the
purchaser) or if, by the time of its expiry, the repair/assembly item is ready
for acceptance by the customer.

 

4.3

 

If
the delivery/repair/assembly/maintenance is delayed in the event of force
majeure, effects of industrial disputes as well as due to circumstances for
which SAMSYS is not responsible, a reasonable extension of the deadline shall
occur. This shall also apply if such circumstances occur after SAMSYS was in
default on its part. In addition, we may withdraw from the contract in whole or
in part.

 

4.4

 

If
the customer with its place of business within the European Economic Area (EEA)
suffers damage during assembly or repair as a result of a delay on the part of SAMSYS,
the customer shall be entitled to demand a lump-sum compensation for the delay.
This shall amount to 0.5% for each full week of delay, but not more than a
total of 5% of the installation/repair price for that part of the equipment to
be installed/repaired by SAMSYS which cannot be used in time due to the delay.
If the customer claims this lump-sum compensation for delay, this is final;
further claims are excluded.

 

4.5

 

Compliance
with our delivery obligation requires the timely and proper fulfilment of the
customer’s obligations.

 

4.6

 

If
the customer is in default of acceptance or violates other obligations to
cooperate, we may demand compensation for the damage incurred by us, including
any additional expenses.

 

 

5. transfer of risk in case of shipment

 

5.1

 

The
risk shall pass to the customer upon dispatch of the delivery ex
works/warehouse, even if carriage paid delivery has been agreed.

 

5.2

 

If
dispatch is delayed due to circumstances for which the customer is responsible,
the risk shall pass to the customer from the date of readiness for dispatch.

 

5.3

 

Transport
insurance shall only be taken out at the request and expense of the customer.

 

5.4

 

Partial deliveries
and early deliveries are permissible.

 

 

6. acceptance

 

6.1

 

The
customer shall be obliged to accept the repair/assembly/maintenance work as
soon as SAMSYS has notified the customer of its completion. If the
repair/assembly/maintenance proves not to be in accordance with the contract, SAMSYS
shall only be obliged to remedy the defect if the defect is not merely
insignificant for the customer’s interests and is also not due to a
circumstance attributable to the customer. If there is a non-essential defect,
the customer may not refuse acceptance.

 

6.2

 

If
the customer does not object to significant defects in written and
comprehensible form, acceptance shall be deemed to have taken place after one
week has elapsed since notification of the completion of the
repair/assembly/maintenance or provision of the work performance. The
operational use of the repair work/assembly/maintenance or work performance
shall also be deemed to be acceptance.

 

6.3

 

Upon
acceptance, SAMSYS shall no longer be liable for recognisable defects, unless
the customer has reserved the right to claim for a specific defect.

 

 

7. retention of title

 

7.1

 

We
reserve title to the delivery item until receipt of all payments arising from
the business relationship (current account reservation). In the event of
conduct by the customer in breach of contract, in particular in the event of
default in payment, we shall be entitled to take back the goods. The taking
back of the object of sale by us does not constitute a withdrawal from the contract,
unless the law on payment by instalments applies, unless we expressly declare
this in writing. If, after taking back the delivery item, we are authorised to
realise it, the realisation proceeds shall be set off against the customer’s
liabilities less reasonable realisation costs.

 

7.2

 

The
customer is obliged to treat the goods subject to retention of title with care,
in particular to insure them adequately at replacement value at his own
expense. The customer shall carry out maintenance and inspection work in good
time at its own expense.

 

7.3

 

The
customer must notify us immediately of any seizures or other interventions by
third parties.

 

7.4

 

The
customer is entitled to resell the object of sale in the ordinary course of
business; however, he now assigns to us all claims in the amount of the final
invoice amount (incl. VAT) which accrue to him from the resale against his
customers or third parties, irrespective of whether the object of sale has been
resold without or after processing. The customer remains authorised to collect
this claim even after the assignment. Our authority to collect the claim
ourselves remains unaffected by this. However, we undertake not to collect the
claims as long as the customer duly meets his payment obligations from the
proceeds collected. If the customer is in default of payment or if an
application for the opening of insolvency proceedings has been filed or if payments
have been suspended, we may demand that the customer informs us of the assigned
claims and their debtors, provides all information necessary for collection,
hands over the relevant documents and informs the debtors of the assignment.

 

7.5

 

The
processing or transformation of the delivery item by the customer is always
carried out for us. If the delivery item is processed with other items not
belonging to us, we shall acquire co-ownership of the new item in the ratio of
the value of the delivery item to the other processed items at the time of
processing. The same shall apply to the item created by processing as to the
goods delivered under reservation.

 

7.6

 

The
customer also assigns to us the claim to secure our claims against him which
arise against a third party as a result of the connection of the object of sale
with a plot of land.

 

7.7

 

We
undertake to release the securities to which we are entitled at the customer’s
request insofar as the value of our securities exceeds the claims to be secured
by more than 20%; the selection of the securities to be released is incumbent
on us.

 

 

8. rights in the event of defects/warranty

 

8.1

 

The
customer’s warranties are subject to the condition that the customer has duly
complied with its obligations to inspect and give notice of defects pursuant to
§§ 377, 378 of the German Commercial Code (HGB). If a joint acceptance has been
agreed and carried out, a subsequent complaint regarding defects that could
have been detected during acceptance is excluded.

 

8.2

 

One-off
benefit:

 

If
services within the scope of one-off services (I.) do not lead to the
elimination of faults or if, in the case of a maintenance service, this was
faulty, the customer must report this immediately in writing.

SAMSYS
shall have the right to rectification, for which sufficient time shall be
granted and which may be claimed again if it fails for the first time. If SAMSYS
also fails or refuses to rectify the defect, the customer may demand a
reduction of the price paid.

 

8.3

 

Permanent
service contracts:

 

In
the case of continuous service contracts (II.), the provision pursuant to III.
8.2 shall apply accordingly, whereby in the event that a subsequent improvement
fails again or if a subsequent improvement is refused by SAMSYS, the customer
may demand the cancellation or reduction of the repair price and – if a
continuation of the contract despite the reduction is demonstrably not in the
customer’s interest – may terminate the continuous service contract
prematurely.

 

8.4

 

Purchase
of goods:

 

In
the event of the purchase of goods, we shall be entitled to choose between
subsequent delivery or repair, also with regard to parts of the delivery item,
in the event of justifiable defects within the scope of subsequent improvement.
If a new repair also fails or is refused by SAMSYS, the customer may, at its
discretion, withdraw from the contract or demand a reduction (abatement) of the
price paid.

Liability
for defects is excluded in the case of the purchase of used goods.

 

8.5

 

Work performance:

 

Insofar
as there is a defect in the work performance for which we are responsible, we
shall be entitled to choose between rectification of the defect or new
production, also with regard to parts of the work item. If we are not prepared
or not in a position to remedy the defect/reproduce, if the remedy of the
defect/reproduction fails in any other way or if it is unreasonable for us, the
customer may choose to reduce the remuneration,

cancellation
of the contract and claim damages within the scope of the limitations of liability
stipulated in these GTC and in individual contracts instead of performance. In
the event of only minor defects/significant breach of contract, the rescission
of the contract is excluded. The same applies if we are not responsible for the
breach.

 

8.6

 

Further
rights and claims of the customer, in particular for damages including loss of
profit and other financial losses are excluded, unless the cause of damage is
based on intent, gross negligence or fraudulent misrepresentation, furthermore
not if a guarantee for the quality has been assumed in writing.

 

8.7

 

SAMSYS
shall not be obliged to remedy defects if the defect is insignificant for the
interests of the customer or is due to a circumstance attributable to the
customer. This applies in particular to defects in parts provided by the
customer.

 

8.8

 

Of
the direct costs arising from the rectification of the defect, SAMSYS shall
bear the costs of the replacement part including shipping – insofar as the
complaint proves to be justified. SAMSYS shall also bear the costs of
dismantling and installation as well as the costs of providing the necessary
fitters and assistants, including travel costs, insofar as this does not result
in a disproportionate burden for SAMSYS.

 

 

8.9

 

SAMSYS
shall provide a warranty of 12 months for newly manufactured goods and services,
otherwise of 6 months starting from the date of acceptance by the customer. In
the case of the purchase of goods, the warranty period shall be one year from
the date of delivery or acceptance; the warranty for the delivery of used goods
to entrepreneurs shall be excluded.

 

 

9 Liability on the part of SAMSYS

 

9.1

 

SAMSYS
shall be liable for damages in the event of intent and gross negligence,
culpable injury to life, body, health and a guarantee of quality, in accordance
with the Product Liability Act and in the event of fraudulently concealed
defects.

 

9.2

 

In
other respects, our liability for slight negligence is limited to the breach of
essential contractual obligations (cardinal obligations) as well as
contract-typical foreseeable damage. Any further liability is excluded.

 

9.3

 

The
total liability of SAMSYS – with the exception of intent – shall be limited to
the payments made by the customer to SAMSYS within the last twelve months. SAMSYS
shall only be liable for direct damage; liability for indirect damage such as
loss of profit is excluded.

 

9.4

 

In
the event of direct claims against our bodies, employees and vicarious agents
by the customer, these limitations of liability shall also apply in favour of
our bodies, employees and vicarious agents.

 

 

10. statute of limitations

 

All claims of the
customer, on whatever legal grounds, shall become statute-barred in twelve
months for claims for damages, unless a different period has been agreed. The statutory
periods shall apply to claims under 9.1.

 

 

 

11. special regulations for software

 

11.1.

 

Insofar
as software is included in the scope of delivery of a machine tool or other
system, the customer is granted a non-exclusive right to use the software for
use on the specific subject matter of the contract. Use of the software on more
than one system is prohibited.

 

11.2

 

The
customer may only reproduce, revise, translate or convert the software from the
object code to the source code to the extent permitted by law (§§ 69a ff.
UrhG). The customer undertakes not to remove manufacturer’s details – in
particular copyright notices – or to change them without the prior express
consent of SAMSYS.

 

11.3

 

Claims
for defects due to software errors shall only exist insofar as the defect in
the subject matter of the licence restricts its usability.

 

11.4

 

If
the customer is prohibited from further use of the subject of the licence by SAMSYS,
the customer shall return to SAMSYS the licence material owned by SAMSYS,
including any software data carrier handed over to the customer. The licensed
item stored at the customer’s premises and all backup copies existing at the
customer’s premises shall be deleted.

 

 

12. transfer of rights and obligations

 

SAMSYS
shall have the right to transfer rights and obligations under this contract to
third parties, in particular to have services, maintenance and installation
carried out by third parties, provided that the performance of the contract is
guaranteed by them.

 

 

13 Further provisions

 

13.1

 

All
agreements made between us and the customer for the purpose of executing this
contract shall be set down in writing in the contract. Negotiated collateral
agreements, verbal agreements and assurances etc. require our written
confirmation to be effective.

 

 

13.2

 

Should
a provision be or become partially or wholly invalid, this shall not affect the
validity of the remaining provisions, which shall continue to apply as a
contract. The invalid provision shall be deemed to be replaced by a valid
provision which comes as close as possible to the economic purpose of the
contract. This shall also apply in the event of a loophole in the contract.

 

13.3

 

In
the event of any disputes arising from a contract, legal action shall be
brought before the court having jurisdiction for SAMSYS at the registered
office of SAMSYS, provided that the customer/client is a merchant, a legal
entity under public law or a special fund under public law. SAMSYS shall also
be entitled to sue the customer/client at the latter’s place of business.

 

13.4

 

The
place of performance is our place of business, unless otherwise stated in the
order confirmation.

 

13.5

 

The
substantive law of the Federal Republic of Germany shall apply to the exclusion
of private international law and the UN Convention on Contracts for the
International Sale of Goods (CISG).