1.1 The customer receives from SKS-Kinkel Elektronik GmbH (hereinafter SKS) the contractual objects and services specified in the respective contract under the following general terms and conditions (hereinafter GTC).
1.2 Customers in the sense of these GTC are exclusively entrepreneurs according to § 14 BGB.
1.3 All deliveries and services are made exclusively on the grounds of these GTC as well as the individual order confirmations issued by SKS. These are part of all contracts, SKS conclude with their customers for the contractual objects and services offered. This also applies in the event that their validity is not separately agreed upon again.
1.4 Conflicting or deviating general terms and conditions or other restrictions of the customer do not become part of the contract, unless SKS has expressly agreed to them individually in writing before the contract is concluded.
2. Object of performance
2.1 The customer purchases from SKS the mechanical or technical equipment for the respective purpose as described in the contract (hereinafter hardware).
2.2 The agreed quality of the hardware finally results from the enclosed product description. The technical data, specifications, explanations of the functions and possible uses as well as any other information in the product description enclosed are to be understood solely as a description of the quality within the meaning of Section 434 (1) BGB and not as an independent guarantee, quality guarantee or durability guarantee. Guarantees are only valid as such if and to the extent that SKS expressly designates them as guarantees.
2.3 The provision of additional services is not part of the contract and requires a separate agreement. The applicable hourly rates, flat rates and contractual terms are communicated on request.
3. Conclusion of the contract
3.1 The offers from SKS are subject to change and non-binding.
3.2 The contract with SKS is concluded by a written confirmation of the offer from the customer. Additional oral agreements are ineffective.
4. Prices and terms of payment
4.1 The price list issued by SKS is non-binding.
4.2 The prices quoted by SKS in the respective offer are decisive. Unless otherwise agreed, these are valid for up to 30 days after the offer has been issued.
4.3 Repair services are invoiced according to the actual time needed on an hourly basis. A non-binding cost estimate is only issued on the customer‘s explicit request.
4.4 The amount invoiced is due immediately and payable on the day the invoice is issued.
4.5 The customer can offset undisputed or legally binding claims only or exercise a right of retention. Because of defects, the customer may withhold an appropriate amount of the remuneration and only if the defect is beyond doubt. The customer has no right of retention if his claim for defects has already lapsed.
4.6 SKS is authorized, to firstly offset the customer‘s payments with older debts. If costs and interest have already arisen, SKS is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.
5. Shipping and other costs
5.1 For orders over 150.00 EUR including VAT shipping within Germany (islands excluded) is free for the customer, as long as the consignment is suitable to be sent by regular post.
5.2 For orders lower than the amount stated under point 5.1 the customer is invoiced shipping costs of 7.90 EUR including VAT as well as a minimum quantity surcharge of 6.00 EUR including VAT.
5.3 For repairing services special shipping costs listed in the respective offer may apply, unless the service is rendered at the customer‘s site. Here the customer has to bear all shipping costs, regardless of the amount of invoice.
5.4 In case of return the customer has to bear all shipping costs incurring.SKS-Kinkel Elektronik GmbH General terms and conditions (GTC) Versionsnr. 1-3 Dokumenten Art. Nr. 97020000 2
6. Time of delivery and performance
6.1 Delivery shall be made at the risk and expense of the ordering party without insurance ex works Hof.
6.2 The delivery period begins with the dispatch of the order confirmation and after receiving all documents required for the execution of the order, agreed down payments and any consent of the other contracting party in the execution documents. It ends on the day on which the item of delivery leaves the SKS plant or is stored due to impossibility of delivery or in the event of non-payment in the case of an agreed advance payment. If the other contracting party requests changes to the order after the order has been confirmed, the new delivery period only begins when the modified order confirmation is sent by SKS.
6.3 If SKS does not meet an agreed deadline due to a circumstance for which SKS is responsible, the other contracting party is obliged to set a reasonable grace period for the delivery. After this expires, the other contracting party is entitled to withdraw from the contract. Damages can only be claimed up to the amount of the order.
6.4 SKS is not responsible for delays in delivery and performance due to events that make delivery significantly more difficult or impossible − this also includes subsequent difficulties in the procurement of materials, operational interruptions, strikes, lockouts, official orders, etc., even if they affect suppliers or sub-suppliers of SKS − even with bindingly agreed fixed dates. They authorize SKS to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
6.5 In case the impediment lasts longer than three months, the other contracting party is entitled to withdraw from the contract with respect to the part not yet fulfilled after setting a reasonable grace period. Compensation cannot be claimed.
6.6 SKS is entitled to partial deliveries and partial services at any time, unless the other contracting party would be unduly disadvantaged by this.
7.1 If agreed, SKS will take back the contractual items ordered by the customer within a maximum of 1 month after delivery (date of the delivery note). The return delivery must be registered using the SKS returns form. Credit is made for the entire value of the goods plus statutory value added tax if the seal is intact. If the seal is broken, the credit is reduced by 20% of the originally calculated value of the goods plus statutory VAT.
7.2 Only brand new, unused and originally packed contractual items can be taken back.
7.3 Contract objects specially manufactured for the customer are excluded from return.
8. Obligation of inspection and notification
With regard to all deliveries by SKS, the customer has an obligation to inspect and give notice of defects in accordance with § 377 HGB. Accordingly, the
9. Defects in quality and title
9.1 In the event of quality defects, SKS initially guarantee subsequent performance. For this purpose SKS either leave the customer with new and defect-free hardware or remedy the defect. Remedy of defects also applies if SKS show the customer reasonable options for avoiding the effects of the defect.
9.2 In the event of title defects , SKS initially guarantee subsequent performance. For this purpose SKS provide the customer with a legally flawless possibility to use the delivered hardware or of an exchanged or modified equivalent hardware.
9.3 SKS is authorized to make the subsequent performance dependent on the fact that the customer has paid at least a reasonable part of the amount invoiced.
9.4 The customer is obliged to accept the new hardware if the contractual scope of functions is retained and if the acceptance does not lead to significant disadvantages.
9.5 If two (2) attempts at subsequent performance fail, the customer is entitled to set a reasonable grace period to remedy the defect. Doing so he must explicitly and in writing point out that he reserves the right to withdraw from the contract and/or to claim damages if another failure occurs.
9.6 If the subsequent performance also fails in the grace period, the customer can withdraw from the contract or reduce the invoice amount, unless there is an insignificant defect. SKS pay compensation or reimbursement of futile expenses due to a defect within the limits specified in these terms and conditions.
9.7 In case SKS provide services to search for or eliminate defects without being obliged to do so, SKS can claim remuneration for this in accordance with the usual rates. This applies in particular if a defect cannot be proven or cannot be attributed to SKS. The additional effort on the part of SKS, which arises from the fact that the customer has not properly fulfilled his obligations, must also be reimbursed.
9.8 If, in case of a returning process, goods are returned to SKS as possibly defect and it turns out in the subsequent internal assessment that the criteria for a warranty case are not met, the goods will be disposed of free of charge after twelve (12) working days, unless otherwise stated in writing by the customer. This period starts at the time the customer is informed in writing by SKS.
9.9 From other breaches of duty by SKS the customer can only derive rights if he has notified SKS in writing and has granted a grace period for remedy. This does not apply if due to the nature of the breach of duty a remedy is out of the question. For damages or reimbursement of futile expenses the limits set out in these terms and conditions shall apply.
9.10 For just an insignificant deviation of the contractual agreed condition no claims because of quality defects may be put forward. Claims because of defects are also not legitimate in the case of excessive or improper use, natural wear and tear, failure of components in the system environment, non-reproducible or otherwise demonstrable software errors or damage caused by special external influences that are not condition of the contract. This also applies if components are used together with products that have not been supplied by SKS and are therefore not system-compliant (in particular the integration of third-party components into the SKS BUS system or powering third-party components with the system voltage supply of the SKS BUS), as well as for modification or repair by the customer or third parties or repair by the customer or third parties.
10 Statute of limitations
10.1 The statute of limitation for all warranty claims is twenty-four (24) months and begins with the delivery of the hardware.
10.2 In the event of intent or gross negligence on the part of SKS, fraudulent concealment of a defect, personal injury or defects of title in the sense of section 438 (1) no. 1a BGB as well as for guarantees in the sense of section 444 BGB the legal statute of limitation applies, as well as for claims under the Product Liability Act.
11 Retention of title
11.1 The objects of the contract remain the property of SKS until all claims, including secondary claims, claims for damages and cashing of checks and bills of exchange, have been paid in full.
11.2 The customer hereby assigns any claims, including accessory claims, of the customer against third parties arising from resale or any other legal ground to SKS for collateralisation, even insofar as the reserved goods are processed or installed. In the latter case the said assignment comprises the value of the reserved goods in proportion to that of the goods as a whole.
11.3 As long as the customer meets his payment obligations towards SKS, he is authorized to collect the claims assigned to SKS on behalf of SKS in his own name. At the request of SKS, the customer will inform about the status of the assigned claims at any time. SKS accept the assignment of claims.
11.4 SKS only bear the risk of non-delivery by third parties if the order has not been placed with the supplier in good time or if SKS can otherwise be held responsible for this.
12.1 The documents provided to the customer in the form of instruction manuals, illustrations, drawings and product descriptions are protected by copyright.
12.2 The customer may use the works protected by SKS only to carry out the contractual relationship. Further uses such as physical recycling or public display for purposes other than to carry out the contractual relationship are not permitted.
12.3 Instruction manuals, illustrations, drawings and product descriptions especially made for the customer must be returned unrequested if the contract is not concluded. The cost for the return – in particular shipping costs – must be paid by the customer.
12.4 The user has the non-exclusive right to use standard software and firmware in unchanged form with the agreed performance features and on the agreed devices. The purchaser may make a backup copy of the standard software without express agreement.
13.1 Insofar as nothing to the contrary arises from these terms and conditions including the following terms and conditions, SKS shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions up to the respective invoice amount and subject to the following provisions.
13.2 SKS is liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, SKS is liable, subject to statutory limitations of liability (e.g. diligence in own affairs, insignificant breach of duty), only in the following cases
for damage resulting from injury to life, body or health,
for damages resulting from the breach of a material contractual obligation (obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the liability of SKS shall be limited to compensation for the foreseeable, typically occurring damage.
13.3 The limitations of liability resulting from the above provisions shall also apply to third parties and in the event of breaches of duty by persons (also in their favor) for whose fault SKS is responsible according to statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee has been assumed for the quality of the goods and for customer claims under the Product Liability Act.
13.4 Due to a breach of duty that does not consist of a defect, the customer can only withdraw from terminate the contract if SKS is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 648, 650 BGB) is excluded. In all other respects the statutory requirements and legal consequences shall apply.
13.5 SKS is free to raise the objection to contributory negligence.
13.6 The statutory provisions apply to the limitation period.
14 Privacy and confidentiality
14.1 The customer and SKS are obligated to treat all confidential information obtained within the framework of the contractual relationship – especially business and trade secrets confidentially for an unlimited time. The recipient of confidential information is in particular prohibited making confidential information available to third parties or allowing third parties access to it.
14.2 The customer must ensure that the repair of hardware by SKS complies with the data protection regulations and in particular the formal requirements for order processing in accordance with Art. 28 GDPR.
15 Final clauses
15.1 Place of performance is the place of business of SKS.
15.2 German law applies exclusively, excluding the provisions of the UN Sales Convention.
15.3 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is the registered office of SKS.
15.4 Should a provision of this contract be or become ineffective, contain an inadmissible time limit or a gap, the legal validity of the remaining provisions remains unaffected.