General Business Terms
of the company Samsys GmbH
of the company Samsys GmbH
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
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.
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)
1.2.3 Hotline support
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
1.3.4 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
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 Friday from 8.00 am to 12.00 pm and from 12.45 pm to 4.45 pm. This corresponds to a 39-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.
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.
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.
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.
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
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.
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.
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
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.
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
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%.
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
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.
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.
Delivered items and materials shall remain the property of SAMSYS until receipt of all payments under the installation contract.
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
SAMSYS shall carry out maintenance on the Principal’s machines/equipment listed in the contract once a year.
Maintenance is covered by the agreed flat-rate price. Any spare parts required will be charged separately.
SAMSYS will announce the maintenance in good time. SAMSYS is entitled to combine special operations due to reported malfunctions with regular maintenance.
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.
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
The customer shall report any malfunctions or damage to the machines/equipment without delay.
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
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.
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
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.
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.
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.
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.
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.
If the order value is less than €50.00 (net), a minimum quantity surcharge of €20.00 will be levied.
Items with a retail price of less than €10.00 (net) cannot be returned.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
Compliance with our delivery obligation requires the timely and proper fulfilment of the customer’s obligations.
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
The risk shall pass to the customer upon dispatch of the delivery ex works/warehouse, even if carriage paid delivery has been agreed.
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.
Transport insurance shall only be taken out at the request and expense of the customer.
Partial deliveries and early deliveries are permissible.
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.
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.
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
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.
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.
The customer must notify us immediately of any seizures or other interventions by third parties.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
Claims for defects due to software errors shall only exist insofar as the defect in the subject matter of the licence restricts its usability.
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
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.
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.
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.
The place of performance is our place of business, unless otherwise stated in the order confirmation.
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).