General Terms and Conditions of Sale
Article 1 Scope
(1) All deliveries, services and offers made by the Seller Syncronorm GmbH regarding hardware and software are exclusively subject to these General Terms and Conditions of Sale. They are a component of all contracts entered into by the Seller with its contractual partners (hereinafter referred to as the “Customer”) in connection with the deliveries or services it offers. These Terms and Conditions shall apply for all future deliveries, services or offers to the Customer, even if not explicitly agreed to again.
(2) The Seller shall not recognize terms and conditions of the Customer which conflict with, or deviate from, its own General Terms and Conditions of Sale, unless the Seller has expressly agreed to their validity in writing. These General Terms and Conditions of Sale also apply if the Seller implements an order without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these General Terms and Conditions of Sale.
(3) For the purposes of these General Terms and Conditions of Sale, (i) “consumer” means every natural person who enters into the contract for purposes that predominantly are outside their trade, business or profession (Section 13 of the German Civil Code – BGB), and (ii) “entrepreneur” means a natural or legal person or a partnership with legal personality who or which, when entering into the contract, acts in exercise of their or its trade, business or profession. (Section 14 Para. 1 BGB).
Article 2 Offer and contract conclusion
(1) All offers made by the Seller are subject to change and nonbinding unless they have been expressly designated as binding or they include a specified term of acceptance. The Seller is able to accept orders and commissions within fourteen days from receipt. The date on which the notification of acceptance is issued to the Customer shall be decisive for determining compliance with the deadline. Dispatch of the goods shall also be deemed acceptance of the order.
(2) Insofar as the Customer uses the Seller’s online shop https://shop.syncronorm.com/ the following regulations shall apply with regard to entering into a contract:
The products offered in the online shop are intended for both consumers and entrepreneurs, but in both cases only to end users. The offers in the online shop are nonbinding. By placing an order in the online shop (which is subject to prior registration and acceptance of these General Terms and Conditions of Sale), the Customer is making a binding offer to buy the particular product. This offer is binding for the Customer until the end of the third working day after the day on which the order was placed. Upon receiving the order, the Seller will immediately send a confirmation of receipt of the offer to the Customer, which, however, does not constitute acceptance of the offer. The offer shall be deemed accepted only when the Seller explicitly informs the Customer that the offer has been accepted. Any customer who counts as a consumer is entitled to cancel the order and to return the goods in accordance with the specific terms relating to cancellation and return of the goods about which they will be notified via the Seller’s website during the order process.
(2) The only determining factor for the legal relationship between the Seller and the Customer shall be the contract of sale that has been entered into, including these General Terms and Conditions of Sale. This constitutes the entire agreement regarding the object of the contract between the parties to the contract.
(3) Any supplements or amendments to the agreements entered into, including these General Terms and Conditions of Sale, must be made in writing in order to be valid. Members of the Seller’s staff other than the managing directors or authorised signatories are not entitled to enter into any oral agreements that deviate from these Terms and Conditions. Transmission via telecommunication, especially email, shall suffice to meet the requirement regarding the text form.
(4) The Seller retains proprietary rights and copyright to images, drawings, calculations and other documentation. This also applies to written documents which are marked as “confidential”. The Customer must obtain express written agreement from the Seller before transferring them to third parties.
Article 3 Pricing – Payment terms
(1) Unless explicitly agreed otherwise, the Seller shall only make delivery against payment in advance.
(2) The prices apply for the scope of performance and delivery listed in the order confirmations. Additional or special services will be invoiced separately. Prices are to be understood in EURO and "ex works" excluding packaging, legally applicable VAT at the rate applicable at the time the invoice is drawn up, and customs duty as well as fees and other public dues for export deliveries.
(3) Discounts are subject to special written agreement.
(4) Unless otherwise provided for in the order confirmation, the net purchase price (with no deductions) is due immediately from the invoice date.
(5) The offsetting of counter-claims on the part of the Customer or the withholding of payments on grounds of such claims is only permitted insofar as the counter-claims are not contested or if they have been legally endorsed.
(6) If, deviating from Section 3 Para. 1, deliveries on account are agreed to, payment of invoices issued by the Seller shall be due as per the information on the invoice within a specified period from the goods being dispatched and the invoice being received by the Customer. Should the Customer fail to make the payment by the deadline stipulated on the invoice, the Customer shall be deemed to be in default of payment. For as long as the Customer remains in default, the debt is subject to interest. The rate of default interest for the year is five percentage points above the base interest rate as per the currently applicable version of the BGB. For legal transactions in which no consumer is involved, the rate of interest for remuneration claims is nine percentage points above the base interest rate. Where a Customer who is not a consumer is in default of payment, the Seller is further entitled to payment of a flat-rate fee in the amount of €40. This flat-rate fee must be taken into account in any compensation payments owed insofar as the damage is based on costs of legal prosecution.
Article 4 Delivery and delivery times for the hardware
(1) The Seller shall dispatch the hardware to the Customer no later than the dispatch date (date on which the goods are handed over to the shipping company by the Seller) shown at the time the order was confirmed. Insofar as advance payment has been agreed between the parties to the contract, the goods shall be dispatched once payment of the sales price has been received in full by the Seller.
(2) The place of performance for all obligations under this contractual relationship is the Seller’s business headquarters, unless otherwise agreed. If the Seller is also responsible for installation, the place of performance shall be the place in which the installation is to take place.
(3) The choice of shipping method and packaging are at the Seller’s due discretion.
(4) Where the Customer is a consumer, the risk of accidental destruction, accidental damage to or accidental loss of the object supplied transfers to the Customer on the date on which the goods are delivered to the Customer or on which the Customer becomes in default of acceptance. In all other cases, the risk transfers, at the latest, upon handover of the delivery item (whereby the start of the loading process is determinative) to the forwarding agent, carrier or other third party contracted to carry out shipment to the Customer, if the latter is not a consumer.
(5) Where the Customer is in default of acceptance or culpably violates other obligations to cooperate, the Seller shall be entitled to demand compensation for damages that are incurred, including any additional expenses, from the Customer. The Seller reserves the right to make further claims or to more extensive rights.
(6) The dispatched items shall only be insured against theft, breakage, transport, fire or water damage or other insurable risks at the explicit request of the Customer and at their expense.
(7) The Seller shall not be liable for impossibility of delivery or delays in delivery, insofar as these are caused by force majeure or other events unforeseeable at the time of entering into the contract for which it is not responsible (e.g. operational disruptions of all kinds; difficulties with procuring materials or energy; transportation delays; strikes; lawful lockouts; shortage of labour, energy or raw materials; administrative measures or no delivery, incorrect delivery or untimely delivery by suppliers). Insofar as such events make delivery or performance significantly more difficult or impossible for the Seller, and the impairment is not merely temporary, the Seller shall be entitled to withdraw from the contract. This only applies when dealing with consumers if the Seller informs the Customer in good time about the difficulty and reimburses the Customer for any considerations that it has already received in return. An impairment is not merely temporary if dispatch of the goods by the Seller has to be delayed for more than four weeks beyond the originally agreed date. For hindrances of a temporary nature, the delivery or performance periods shall be extended or delivery or performance deadlines postponed by the duration of the hindrance plus an appropriate grace period. Where the Customer cannot reasonably accept the delivery or performance as a result of the delay, they can withdraw from the contract by immediately informing the Seller of this in writing.
(8) Furthermore, the Seller shall be liable in accordance with the statutory provisions insofar as the default in delivery pertains to intentional or grossly negligent breach of contract for which it is responsible; fault on the part of its representatives or agents is to be attributed to the Seller. Insofar as the default in delivery is not caused by a grossly negligent contractual violation on the part of the Seller, its liability for damages shall be limited to foreseeable, typically-occurring damages.
(9) Further statutory claims and rights of the Customer remain reserved.
Article 5 Retention of title
Insofar as the purchased goods are sent to the Customer as performance on account rather than against payment in advance, the following shall apply:
(1) The Seller shall retain the title to the purchased good(s) until it has received all payments as per the Supply Agreement. Where the Customer acts contrary to contractual agreements, particularly where the Customer is in default of payment despite a deadline for payment having been set, the Seller shall be entitled to demand that the Customer return the purchased good(s). Seizure of the object purchased by the Seller always constitutes withdrawal from the contract.
(2) The Customer undertakes to handle the object purchased with care; in particular, it undertakes to insure the said object at its own expense against fire or water damage and theft at a level sufficient to cover its replacement value.
(3) In the event of seizure or other action by third parties, the Customer must inform the Seller of this immediately in writing, so that the latter is able to file a complaint under Section 771 of the German Code of Civil Procedure (ZPO). Where the third party is not able to reimburse the Seller for the judicial and extra-judicial costs of the Seller’s complaint pursuant to Section 771 ZPO, the Customer shall be liable for the resultant costs incurred by the Seller.
(4) Insofar as the Customer has been explicitly authorised by the Seller to resell the goods, the Customer shall immediately assign to the Seller all receivables from their customers, or third parties accrued from the resale in the amount of the final invoiced amount (including VAT). The Customer shall continue to be entitled to collect the assigned receivables even after said assignment. The Seller’s right to collect the receivables itself remains unaffected thereby. However, the Seller undertakes not to collect the receivables, so long as the Customer continues to meet their payment obligations from the proceeds collected, does not enter into default of payment and, in particular, is not the subject of an application for the initiation of settlement or insolvency proceedings and has not suspended payments. Nonetheless, where this is the case, the Seller can require the Customer to notify it of the assigned receivables and the relevant debtors, to provide the Seller with all necessary information to collect the receivables and with the accompanying documentation, and to notify the debtors (third parties) of the assignment.
(5) Processing or modification of the object purchased by the Customer is always undertaken on behalf of the Seller. Insofar as the purchased good(s) is/are processed with other objects that do not belong to the Seller, the Seller shall acquire proportional co-ownership of the new item in the ratio of the value of the purchased good(s) (final invoiced amount, including VAT) to the other processed objects at the time of processing. The same provisions shall apply to the object resulting from such processing as to the good(s) purchased under reservation of title.
(6) The Seller undertakes to release securities available to it, upon the Customer’s request, if the realisable value of the securities exceeds the value of the receivables being secured by more than 10%; the Seller is entitled to choose which securities to release.
Article 6 Software licensing
Regarding use of the software, reference is made to the End User License Agreement (EULA) which can be found at https://www.syncronorm.com/fileadmin/Public_Downloads/Depence_EULA.pdf
Article 7 Liability for defects
(1) Insofar as the purchased good(s) has/have a defect, the Customer may choose between supplementary performance in the form of remedying of the defect or delivery of a new non-faulty item within an appropriate time frame. The Seller can refuse the kind of supplementary performance chosen by the Customer if execution thereof would entail unreasonable costs for the Seller. If the Customer is an entrepreneur, the Seller is entitled to choose between remedying the defect or supplying a new non-faulty item.
(2) In particular, if the Customer is unable to utilise the Seller’s hardware or software because the Customer has not met the system requirements for use thereof on its terminals, this shall not be deemed a defect. In this respect, reference is made to the continuously updated system requirements listed on the Seller’s website at https://www.syncronorm.com/products/depence2/system-requirements
(3) In the event of defects being remedied or a replacement supplied, the Seller is obliged to bear all necessary expenses incurred to remedy the defect, in particular transportation and shipment costs, labour costs and material costs, insofar as these are not increased by virtue of the object purchased being taken to a place other than the place of performance.
(4) The warranty period shall be two years from delivery if the Customer is a consumer, otherwise twelve months from delivery.
(5) The following applies exclusively for entrepreneurs: The Customer is obliged to meet their obligation to inspect the goods and submit complaints in compliance with Section 377 of the German Commercial Code (HGB) as a pre-requisite for making any claim on the basis of defects. The goods supplied must be inspected carefully immediately after delivery to the Customer or to the third party nominated by the Customer. The goods supplied are deemed to have been accepted by the Customer if no defect is reported to the Seller (i) within five days of delivery in the case of obvious defects or (ii) within five days of the defect being discovered.
(6) If the supplementary performance pursuant to Section 7 Para. 1 fails or is unreasonable for the Customer, or if the Seller is entitled to refuse supplementary performance, then, depending upon the applicable laws, the Customer is entitled to withdraw from the contract, reduce the purchase price or demand compensation or reimbursement of any wasted expenditure. In the case of claims to compensation on the part of the Customer, the following particular provisions of these General Terms and Conditions of Sale shall apply.
(7) The Seller shall be liable in accordance with the statutory provisions insofar as the Customer asserts claims for damages which pertain to wilful intent or gross negligence, including wilful intent or gross negligence by the Seller or its representatives or agents. Insofar as the Seller can be held responsible for a negligent violation of the contract, its liability for damages shall be limited to foreseeable, typically occurring damages.
(8) Where the Seller culpably violates a fundamental contractual obligation, it shall accept liability in accordance with statutory provisions; in such cases, however, its liability for damages shall be limited to foreseeable, typically occurring damages.
(9) Liability for culpable injury to life, limb or health, or for a guarantee of the quality of the object, in the meaning intended by Section 444 BGB, remains unaffected; the same shall apply to mandatory liability under the German Product Liability Act.
(10) Unless stipulated otherwise above, liability is excluded.
Article 8 Joint liability
(1) Liability for damages beyond the scope of liability provided for in Article 7 is excluded, regardless of the legal nature of the claim made. This shall apply in particular to claims for damages arising out of fault at the time the contract was concluded, out of other breaches of obligations, or because of claims in tort for compensation of damages under Section 823 BGB.
(2) The limitations under Para. (1) shall also apply if, instead of a claim to compensation for damages in lieu of performance, the Seller opts for compensation of wasted expenditure.
(3) To the extent that the Seller’s liability for damages is excluded or restricted, such exclusion or restriction shall also apply with regard to personal liability for damages by its employees, workers, personnel, representatives and agents.
Article 9 Place of jurisdiction – Place of performance
(1) Where the Buyer is a merchant in the meaning intended in Section 1 Para. 1 HGB, the place of jurisdiction shall be the Seller’s business headquarters; the Seller is, however, entitled to initiate legal proceedings against the Customer at the Customer’s headquarters. Any mandatory statutory provisions regarding the exclusive place of jurisdiction are unaffected by this provision. In all other cases, the Seller or the Customer can take legal action at any court which has jurisdiction pursuant to statutory provisions.
(2) The contract of sale entered into between the Seller and the Customer shall be governed by the laws of the Federal Republic of Germany subject to mandatory regulations under international private law. The UN Contract on the International Sale of Goods (CISG) shall not apply.
Article 10 Severability Clause
(1) Should these General Terms and Conditions of Sale either partly or in their entirety cease to be part of the contract or become invalid, the remainder of the agreement shall be unaffected thereby.
(2) Insofar as provisions have not become part of the contract or become invalid, the content of the contract will follow the statutory provisions.
(3) The contract shall be deemed invalid if adherence to it, even taking into account the changes provided for under Para. 2, would constitute an unreasonable hardship for a party to it.