1. Scope of Application
1.1 Subject to the Terms and Conditions (hereinafter referred to T&C) set forth in a specific contract the Client acquires the services and the contractual objects from SKS-Kinkel Elektronik GmbH (hereinafter referred to SKS).
1.2 Clients within the meaning of this T&C are businessman only in accordance with § 14 BGB.
1.3 All services and offers by SKS are exclusively provided in accordance to this T&C. They are an integral part of all contracts which SKS concludes with the Client regarding the services and contractual objects offered by SKS. This may also apply if the application of this T&C is not declared separately once more.
1.4 Conflicting or deviating T&C or any limitations by the Client will not be part of the contract, unless SKS has explicitly and individually accepted them in advance and in writing.
2. Subject Matter of the Agreement
2.1 The Client acquires the mechanical or technical equipment (hereinafter referred to hardware) specified in the contract respective to the particular purpose.
2.2 The agreed quality of the hardware is finally set forth in the provided product description. The technical data, specifications, explanation of the functions and the usage possibilities as well as other information shall be deemed exclusively as a description of the quality in accordance with § 434 Abs. 1 BGB and not as an independent guarantee of quality or duration.
2.3 The installation of the hardware and the preparation of the technical operational availability are not part of the contract.
2.4 SKS provides services of hardware repair as agreed in the individual contract.
3. Contract Conclusion
3.1 All offers by SKS are non-binding and without obligation.
3.2 There shall be no binding conclusion of contract unless the Client has explicitly accepted the offer of SKS in writing. Verbal subsidiary agreements are void.
4. Prices and Terms of Payment
4.1 The issued price list of SKS is without obligation.
4.2 The prices mentioned in the offer of SKS are decisive and valid up to 30 days.
4.3 Services of hardware repair will be invoiced due to actual expense based on an hourly rate. A nonobligatory estimate of costs will only be compiled in case of an explicit request by the Client.
4.4 The remuneration is due and payable after invoice.
4.5 The Client is entitled to set off or retain a payment against claims that are uncontested or subject of a binding decision by a court. In the event of defects, the Client may only retain a part of the payment to an extent corresponding to the seriousness of the defect and only if the defect exists beyond any doubt. The Client shall have no right of retention if his claim for defect has become time-barred.
4.6 SKS is entitled to offset payments by the Client against older debts first. If costs and interest have already emerged, SKS is entitled to offset payments against costs first, then against interest and finally against principal claim.
4.7 The Client declares his agreement to receive the invoice in digital form (via e-mail, my-SKS).
5. Delivery and Other Costs
5.1 If the order exceeds the value of 150,00 EUR, the delivery is free of charge.
5.2 If the order deceeds the value listed in 5.1, the Client has to pay a delivery charge in the amount of 7,90 EUR net as well as a minimum quantity surcharge in the amount of 6,00 EUR net.
5.3 In cases of repair, separate delivery charges which are listed in the specific offer will arise, if the service is not provided at the Client´s place of business. All delivery charges irrespectively of the amount invoiced shall be payed by the Client.
5.4 In cases of return, the arising delivery charges shall be payed by the Client as well.
5.5 Traveling costs will be invoiced by 0,60 EUR net plus VAT per driven kilometer.
5.6 Travel time shall be regarded as working time. The hourly rate per working hour will be invoiced by 69,00 EUR net plus VAT.
6. Time of Delivery and Time of Performance
6.1 The delivery takes place on account and risk of the other contract party without any insurance ex works (Hof).
6.2 The delivery period starts with the dispatch of the order confirmation and after receipt of all documents which are necessary for the execution of the order as well as agreed deposit and potential consents to the execution documents. The delivery period ends the day the contractual object leaves the work of SKS or gets placed into stock because of the impossibility of dispatch or nonpayment in case the contract parties agreed upon advance payment. If the other contract party demands a change in contract after received order confirmation, the new delivery period starts only after received confirmation of that change at SKS.
6.3 If SKS does not comply with the agreed deadlines because of its own fault, the other contract party is obligated to set an appropriate grace to provide delivery. After the expiration of this period the Client may withdraw from the contract. Compensation can only be demanded up to the order value.
6.4 SKS shall not be responsible for delays in delivery and service as a result of events which impede the delivery or make it impossible – including subsequently occurring difficulties in material or procurement, disruptions, strikes, lockouts, official orders et cetera, even if they occur within the supplier´s or sub supplier’s area of responsibility. This also applies for binding deadlines. SKS may extend any delivery and service deadlines by the duration of the impediment plus an appropriate initial period or may withdraw from the contract partially or completely with regard to the incomplete part of the contract.
6.5 If the impediment lasts longer than three (3) months, the other contract party is – after setting an appropriate grace - entitled to withdraw from the contract with regard to the incomplete contract. Compensation cannot be demanded.
6.6 SKS is entitled to provide part-delivery, unless the Client is disadvantaged inappropriately.
7.1 SKS takes back the contractual objects within a period of one (1) month after delivery (as dated in the delivery note) as far as agreed upon. The Client is obligated to announce the return in advance via the return-form provided by SKS. Credit advice ensues the complete invoice value of goods, plus VAT if the seal is unbroken. If the seal is broken, credit advice will be reduced by 20 % of the original invoice value of goods plus VAT.
7.2 SKS only takes back contractual objects which are unused and boxed as new.
7.3 Contractual objects which are exclusively manufactured on behalf of the Client cannot be returned.
8. Obligation of Examination and Notification
The Client is obligated to examine and notify defects of all services in accordance with § 377 HGB.
9. Defects in Rem and Title
9.1 In the event of defects in rem SKS initially warrants supplementary performance. Hereto SKS provides a new and defect-free product or removes the defect; It may also be considered as a removal of defects as SKS points out a reasonable opportunity to avoid the impact of the defect in rem.
9.2 In the event of defects of title SKS initially warrants supplementary performance. Hereto SKS provides a legally flawless opportunity for use of the delivered hardware or of the exchanged or modified equivalent hardware.
9.3 SKS is entitled to condition the subsequent performance on payment of a reasonable part of remuneration.
9.4 The Client is obligated to accept the new hardware if the contractual functional extent maintains and if acceptance does not entail significant disadvantages.
9.5 Should two (2) attempts of subsequent performance fail, the Client is entitled to set a reasonable grace for removal of defects. He has to expressly point out in writing that he reserves the right to terminate the contract in case of failure and / or to demand compensation.
9.6 Should subsequent performance also fail in grace, the Client may withdraw from the contract or reduce the remuneration, except in case of an irrelevant defect. SKS shall provide compensation or reimbursement of wasted expenditures due to a defect within the boundaries defined in this T&C.
9.7 When SKS performs a troubleshooting, without a legal obligation to do so, SKS may demand a customary remuneration. This applies especially when a defect is not traceable or SKS is not responsible for. Additional costs of SKS, which might occur with regard to any breaches of the Client´s obligation, shall be reimbursed separately.
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 12 working days, unless otherwise stated by the customer. This period starts at the time the customer is informed in writing by SKS.
9.9 The Client can only derive any rights from other breaches of duty, when he has given written notification and grace to remedy. This shall not apply as far as - with regard to the relevant duty - the remedy is impossible. The limits described in this T&C shall apply to compensation and reimbursement of wasted expenditures.
9.10 The Client shall not be entitled to warranty defects in rem in case of an insignificant deviation from the contractual agreed quality. Claims for defects shall also be invalid in the case of excessive or improper use, natural wear, failure of components in the system environment, software defects which are not reproducible or otherwise provable by the Client, or in the case of damages arising from particular external influences not foreseen in the terms of the contract. This may also apply in case components are used with products not supplied by SKS, which thus do not comply with the system (especially integrating third-party components into the SKS BUS system or powering third-party components using the SKS BUS systems power supply), as well as for subsequent changes or repair by the Client or a third party, unless this does not complicate the analysis and the remedy of the defect in rem.
10. Statute of Limitation
10.1 The statute of limitation for all guarantee claims shall be 24 months beginning with the delivery of hardware.
10.2 The statute of limitation periods shall apply for intent or gross negligence, for fraudulent concealment of the defect, for damage to persons, for the liability pursuant to the product liability law or defects in title with the meaning of § 438 Abs. 1 Nr. 1 a BGB as well as for guarantees (§ 444 BGB).
11. Retention of Title
11.1 All contractual objects shall remain the property of SKS, until the principal claim and the assessory claim of the service of the contract, compensation, cheques and drafts are provided by the Client.
11.2 The Client assigns to SKS all claims against third parties arising from resale or on another legal basis including all ancillary rights in their entirety as a security as far as reserved goods are processed or system-incorporated. In the latter case the assignment covers the part of the value of the reserved goods in relation to the contractual scope of delivery.
11.3 As long as the Client fulfills his payment obligations he is entitled to recover the assigned claims in his own name for the account of SKS. The Client will inform SKS on request about the status of the assigned claims at any time. SKS accepts the assignment of claim.
11.4 SKS bears the risk of non-delivery as far as the order by the supplier was not in time or SKS can be held responsible otherwise.
12.1 Documents such as operation manuals, illustrations, graphics and product sheets which are left to the Client are copyright reserved.
12.2 The Client may only use those copyright-protected works in accordance to the contractional use. Further usages such as corporal utilization or public playback contrary to the purpose of the contractual use are prohibited.
12.3 Operation manuals, illustrations, graphics and product sheets, specifically produced for the Client shall be surrendered immediately and without explicit request if a contract is not concluded. The Client has to bear the costs of the surrender – especially delivery charges.
13.1 The liability of SKS for whatever legal reason is limited to intentional and gross negligently violation of duty up to the value of the respective invoice total.
13.2 SKS reserves the right of defense of contributory negligence.
13.3 The legal regulations shall apply to limitation period.
14. Data Protection
14.1 The contract partners shall be obligated to keep all information - especially trade secrets - obtained within the context of the contract and it´s execution for an unlimited period of time confidential. The receiver of confidential information must not disclose or make this knowledge available to third parties.
14.2 The Client has to ensure that the data protection regulations and especially the formal requirements of processing according to Art. 28 GDPR are adhered.
15. Concluding Provisions
15.1 The place of performance shall be the Place of Business of SKS.
15.2 The law of the Federal Republic of Germany shall apply excluding the United Nations Convention on Contracts for the International Sale of Goods.
15.3 The exclusive jurisdiction for all disputes in connection with contracts between SKS and the Client shall be the Place of Business of SKS.
15.4 Should an individual provision of this T&C be invalid or become invalid, contain an unacceptable deadline or a gap this shall not affect the validity of the remaining provisions.