Terms and Conditions of CompuRAM GmbH - Business customers

§ 1 Miscellaneous

  1. The deliveries, services and offers of CompuRAM GmbH are exclusively on the basis of these General Terms and Conditions. Thus, the latter apply to all future business relationships, even if they are not expressly agreed again. At the latest with acceptance of the goods or the service these provisions are considered accepted. Herewith, the buyer’s General Terms and Conditions, in particular his Conditions of Purchase, are expressly objected against, that is they are not acknowledged even if we do not object expressly upon receipt. Deviations from these General Terms and Conditions only take effect, if we confirm such deviations in writing.

§ 2 Deliveries and services

  1. The offers of CompuRAM GmbH are subject to confirmation and non-binding and are subject to suppliers delivering our supplies.
  2. CompuRAM GmbH is entitled to withdraw from contracts if facts emerge, which prove that the customer is not creditworthy.
  3. CompuRAM GmbH reserves the right of reasonable deviations in technology and design from details in brochures, catalogues and written documents of the manufacturer, as well as changes of models, constructions and materials within the scope of the technical progress and further development without any rights resulting from the same.
  4. Unless otherwise agreed prices are quoted plus costs for packaging, transport, insurance, plus Value Added Tax as applicable on the day of delivery ex warehouse München or for direct shipping from the German boarder and the German port of entry respectively.
  5. CompuRAM GmbH expressly reserves the right of reasonable partial deliveries and billing.
  6. The agreed delivery times are considered met if the contractual product is handed over to the transport carrier, unless other express agreements have been concluded in writing. If the shipping of goods that are ready for dispatch is delayed for reasons outside the sphere of influence of CompuRAM GmbH the contractual goods may be stored at the customer’s expense and risk.
  7. The delivery times stated by CompuRAM GmbH are non-binding and are subject to timely delivery on our suppliers and subject to unforeseen circumstances and impediments, irrespective of the fact if these occur at the part of CompuRAM GmbH or of the manufacturer, in particular subject to force majeure, regulatory actions, non-granting of official authorisations, industrial actions of all kinds, sabotage, shortage of raw materials, inculpably delayed supplies of materials. Such events extend the delivery times accordingly, and that is even if they occur during a delay that has already occurred. In such an event the period of respite possibly stipulated by the customer is also extended by the duration of the unforeseen event. If CompuRAM GmbH is in delay with its deliveries by more than four weeks the customer may withdraw from the contract after a period of respite stipulated in writing with exemption from any other claims in accordance with §§ 280 ff. BGB (Civil Code). The customer’s claim for damages on the basis of delayed deliveries is excluded at any rate. CompuRAM GmbH reserves the right to withdraw from the contract if the delivery delay lasts longer than 6 weeks due to one of the above-mentioned events and if this is outside the sphere of influence of CompuRAM GmbH.

§ 3 Inspection and transfer of risks

  1. The customer must inspect the goods immediately after receipt for their completeness and conformity with the invoice. If there is no written complaint within 3 days the good is considered as delivered orderly and completely, unless the defect is of a kind, which is not noticeable during the inspection.
  2. Insignificant defects, which do not affect the functionality of the good delivered do not entitle the customer to refuse acceptance.
  3. Delivery is made "ex works" and this is the place of performance. At the customer's request and cost, the goods may be shipped to another destination (delivery to a place other than the place of performance). Unless otherwise agreed, we may ourselves select the kind of shipping (particularly forwarders, route and packaging).
  4. The risk of accidental loss and the deterioration of goods is transferred to the customer at the latest at the time of transfer. In cases where delivery is made to a place other than the place of performance, the risk of accidental loss and deterioration of goods and the risk of a delay is transferred at the time of delivering the goods to the forwarder, carrier or other person or organisation assigned with shipping. If an acceptance has been agreed, this is determining for the transfer of risk. Furthermore, any agreed acceptance is subject to the legal provisions of the law on contracts. If a customer is in default of acceptance, this is equivalent to delivery or acceptance.

§ 4 Retention of title

  1. To the fulfilment of all claims, which for whichever legal reason against the buyer CompuRAM GmbH is entitled to now or in future the buyer grants CompuRAM GmbH the following securities, which CompuRAM GmbH will release upon the buyer’s request at his discretion, as far as the amount exceeds the value of the claims sustainably by more than 20%.
  2. To their complete payment the goods remain the property of CompuRAM GmbH (goods subject to retention of title). Any processing or manipulation is for CompuRAM GmbH as manufacturer in the sense of § 950 BGB (Civil Code) without binding CompuRAM GmbH. In the event of processing or combination of the goods subject to retention of title with other goods CompuRAM GmbH principally acquires a co-ownership share of the new good; that is in the event of processing in relation of the value of the goods subject to retention of title to the value of the new good; in the event of combination in relation of the value of the goods subject to retention of title to the value of the other goods. If the consumer becomes sole owner herewith, he already grants us the co-ownership in the relation of the values mentioned and stores the goods for us free of charge. If the goods resulting from the processing or combination are sold on the advance assignment agreed hereafter only applies to the amount of the value of the goods subject to retention of title.
  3. The buyer is entitled to process and sell the goods subject to retention of title in orderly business transactions as long as he is not in arrears. Pledges or assignments of securities are not permissible. Herewith, as security the buyer already assigns to us to their full extent the claims resulting from the sale or from any other legal reason (insurance, impermissible action, etc.) regarding the goods subject to retention of title (including all balance claims from the open account). We authorise the buyer revocably to collect the claims assigned to us for his account in his name. This collection authorisation is definitely not connected with an authorisation in accordance with § 185 Para. 1 BGB (Civil Code), in particular with the consent to dispose of the claim by means of other assignments. The assignment is impermissible in principle, unless this is an assignment by means of true factoring, which we are notified of and where the revenues of the factoring exceeds the value of our secured claim. Our claim is immediately payable with the crediting of the revenue of the factoring. The collection authorisation may only be revoked if the buyer does not orderly meet his payment obligations against CompuRAM GmbH.
  4. In the event of third parties accessing the goods subject to retention of title the buyer will inform about the property rights of CompuRAM GmbH and will notify the latter immediately.
  5. If the buyer is in arrears with payments or if he culpably does not fulfil any other significant contractual obligations CompuRAM GmbH is entitled to take back the goods subject to retention of title or, where applicable, to demand the assignment of the buyer’s claims for surrender against third parties. As a rule, redemption is at the current daily rate, however, at the maximum amount of the original purchase price. The redemption and pledge of the goods subject to retention of title does not represent the withdrawal from the contract unless the Abzahlungsgesetz (Redemption Act) applies.

§ 5 Payment

  1. Unless otherwise agreed the invoices are payable as agreed by prepayment, cash on delivery, collection only cheque or upon collection. As a rule the delivery is subject to charges, that is at the buyer’s expense by parcel service, freight carrier or in the buyer’s own vehicle, unless any other arrangement has been expressly agreed.
  2. Despite the buyer’s other provisions CompuRAM GmbH is entitled to offset payments with the buyer’s older debts by means of open account payments. If costs and interest have already incurred we are entitled to offset the payment against the costs, then against the interest and finally against the main claim. The buyer must be notified thereof.
  3. A payment is considered made as soon as we can dispose of the amount. Cheques are only accepted for fulfilment and are considered payment after their clearance.
  4. If the buyer falls in arrears we are entitled to calculate interest from the relevant point in time on the basis of § 247 Para. 1 BGB (Civil Code). CompuRAM GmbH is permitted to prove higher damages.
  5. All claims are payable immediately if the accepter is in arrears with the fulfilment of one or several obligations, if other significant obligations from the contract are culpably not met or if we learn about circumstances, which are suited to lessen the accepter’s creditworthiness, in particular amongst others suspension of payments, pendency of settlement or insolvency. In such events we are entitled to retain any outstanding deliveries or to undertake the latter against prepayments or securities.
  6. The buyer is only entitled to offset or to execute a right of retention if the counter-claims are legally acknowledged or undisputed.

§ 6 Warranty

  1. If the good is defective in the sense of § 434 BGB (Civil Code) the buyer may demand supplementary performance under the conditions of § 437 Clause 1 BGB (Civil Code). The good is defective if it deviates from the contractually agreed state. If the state is not contractually agreed the good is free of defects if it is suitable for its use as stipulated in the contract or if it shows a state, which is typical of goods of the same kind and which may be expected of the kind of goods. However, the parties are aware that on the basis of the state of technology it is not possible to exclude faults of the products in all conditions of use.
  2. Excluded from the warranty are any defects and damages respectively, which result from: operational and normal wear and tear, improper use, operating errors and the customer’s negligent behaviour, operation with wrong electricity type or voltage as well as from connection to unsuitable electricity sources, fire, lightning stroke, explosion or excess voltage related to network, humidity of all kinds, wrong or faulty program, software and/or processing data as well as any consumable parts, unless the customer proves that these circumstances are not causative for the defect. Furthermore, the warranty is not applicable if the series number, type labelling or similar identification numbers have been removed or made illegible as well as in the event of breach of the manufacturer’s warranty conditions as far as they have not already been mentioned.
  3. The legal statute of limitation for new products is 2 years and commences with the transfer of risk in the sense of Clause 3.3. The warranty for used products, so-called B goods items is excluded.
  4. The buyer must contest obvious defects immediately in writing, that is without culpable delay, at the latest, however, within 3 days. The legal regulations apply to concealed defects. In the event of justified defects CompuRAM GmbH may choose between providing repair services or replacement deliveries. CompuRAM GmbH may refuse the supplementary performance if in actual fact it is impossible or unreasonable or connected with excessive costs. CompuRAM GmbH reserves the right to a term of respite of 4 weeks from the delivery of the defective product for the provision of the supplementary performance. At a second instance only the buyer may choose between withdrawing from the contract or reducing the purchase price. However, the buyer may only demand the revocation of the purchase agreement after two failed attempts to provide the supplementary performance. The buyer’s withdrawal is excluded if the defect is minimal only.
  5. In the event of warranty claims the defective part or device and the exact description of the defect providing model and series number and a copy of the invoice sent with the device must be sent or returned for repair to CompuRAM GmbH, Serviceabteilung (service department), Geisenhausenerstr. 18, 81379 München. The devices must be received free of charge. In the event of devices subject to charges CompuRAM GmbH will refuse acceptance. With the exchange of parts, component groups or entire devices no new terms of warranty will take effect. When sending the devices to be repaired the buyer must ensure that the data stored on the devices that are important to him are saved in copies, as they might get lost in the course of repair works. CompuRAM GmbH does not accept any liability for lost data stock and the resulting consequential damages.
  6. In the event of repair services CompuRAM GmbH bears the labour costs. CompuRAM GmbH bears all other costs incurring in connection with the repair service as well as the additional costs related with a replacement delivery, in particular the costs for transport of the replacement part, as far as these costs are not disproportionate to the order value.
  7. The replaced parts become the property of CompuRAM GmbH.
  8. If the inspection of the notification of defect shows that no warranty claim is justified CompuRAM GmbH is entitled to demand compensation for all expenses. The costs of the inspection and the repair are calculated in accordance with the respective applicable service prices of CompuRAM GmbH. For the rest, the respective relevant service conditions of CompuRAM GmbH apply.

§ 7 Legal disclaimer and limitation of liability

  1. CompuRAM GmbH does not pay damages for defects in the sense of Clause 7 of these General Terms and Conditions.
  2. CompuRAM GmbH is not liable for any quality assurances of the manufacturers and pre-suppliers. This last sentence also applies to advertisement declarations in the manufacturers’ and suppliers’ brochures. Insofar the buyer’s claims for damage – no matter for which legal reasons, in particular due to guiltiness upon conclusion of the contract as well as breach of secondary obligations – are excluded.
  3. CompuRAM GmbH is not liable for the buyer’s loss of profits or other financial losses. The warranty assurances on the part of a manufacturer are only passed on by CompuRAM GmbH without accepting the same legally bindingly.
  4. This exemption from liability does not apply if the cause of damage results from intention or gross negligence.
  5. The above legal disclaimers and limitations of liability do not apply to claims in accordance with the Produkthaftungsgesetz (Product Liability Law). As far as our liability is excluded or limited this also applies to the personal liability of our staff, employees, co-workers, representatives and vicarious agents.

§ 8 Export and import licences

  1. Products and technical know-how supplied by CompuRAM GmbH is intended for the use and retention in the country of delivery agreed with the buyer. The re-exportation of contractual products – individually or integrated in systems – is subject to licensing for the buyer and as a rule is subject to the export regulations of the Federal Republic of Germany and of the other country of delivery agreed with the buyer. The buyer personally must get informed about these regulations according to the German provisions. Irrespective of the fact if the customer provides the final destination of the supplied contractual products it is the buyer’s responsibility where applicable to obtain necessary licences of the respective relevant export offices before exporting such products.
  2. Any forwarding of contractual products on the part of the buyer to third parties, with or without the knowledge of CompuRAM GmbH, is subject to the assignment of exportation licensing conditions. The customer is liable towards AG for the orderly compliance with these conditions.

§ 9 EC import sales tax

  1. If the customer is based outside Germany he is obliged to comply with the regulations of the import sales taxes as stipulated by the European Community. This includes, in particular, notifying CompuRAM GmbH of the Value Added Tax identification number without special request. The buyer is obliged upon request to provide the necessary information regarding his status as entrepreneur, regarding the use and transport of the supplied goods and regarding the statistical obligation to report to CompuRAM GmbH.
  2. The customer is obliged to pay back any expenses – in particular handling fees – which CompuRAM GmbH incurs due to the buyer’s inadequate and incorrect details regarding the import sales taxes.
  3. CompuRAM GmbH does not accept any liability resulting from the buyer’s details regarding the import sales taxes and the relevant data thereto respectively, as far as there is no intention or gross negligence on the part of CompuRAM GmbH.

§ 10 Applicable Law

  1. The customer is entitled to assign his claims from the contract.
  2. The Law of the Federal Republic of Germany applies to the General Terms and Conditions and the entire legal relationships between CompuRAM GmbH and the buyer. The German Law is exclusively applicable to the contractual relationships between the contracting parties. Where there are several versions of these General Terms and Conditions, e.g. translations into other languages, the documents in the German languages apply exclusively. As far as the buyer is a merchandiser in the sense of the HGB (Commercial Code) or a corporate body under public law the Fernabsatzgesetz (FernAbsG, Distance Selling Act) as pure consumer protection law does not apply. The exclusive place of jurisdiction for all disputes directly or indirectly resulting from the contractual relationship is Gießen. In the event of legal disputes in connection with or resulting from these General Terms and Conditions and the contracting partners’ relationships the German wording of policies, regulations, contracts and any other documents applies and takes legal effect. Furthermore, the place of fulfilment and delivery in the sense of the Verpackungsordnung (Packaging Ordinance) is München.
  3. If individual or several provisions of these General Terms and Conditions are or become legally invalid or if there are gaps in these regulations the contracting parties are obliged to enter negotiations with the aim to replace or amend the legally invalid or incomplete provisions with such provisions that achieve or nearly achieve the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected thereby.
  4. The order processing within CompuRAM GmbH is with the help of automated data processing. The customer herewith grants his express consent for the processing of the data made available to CompuRAM GmbH within the scope of the contractual relationships and required for the order processing. The customer also agrees that CompuRAM GmbH uses the data collected within the scope of the business relationship with CompuRAM GmbH within the sense of the Datenschutzgesetz (Data Protection Act) for the business purposes of CompuRAM GmbH.

Valid from the 1st of February 2012