General Business Terms
General Business Terms of Cyrus Technology GmbH
The deliveries, services, and offers of Cyrus Technology GmbH (hereafter referred to as the ‘user’), ensue exclusively upon these general terms of business. They are therefore also valid for all future business relations, even if they are not explicitly reconfirmed. The following conditions also apply if the user renders service with full knowledge of conflicting or different terms and conditions stated by the customer without any reservation of rights. These Terms and Conditions shall be deemed accepted no later than upon receipt of the contracted goods or services. Possible deviations from the present terms may only be applied/considered if they are accompanied by a written confirmation made by the user.
1.Conclusion of contract
a. The user’s offers and quotations concerning the devices sold by the user are subject to change. Product descriptions as well as data and documents concerning the devices distributed by the user shall only be used as reference and do not represent guaranteed features.
b. Orders made by the customers are considered binding offers which may be accepted by the user either by sending a written confirmation or by sending the ordered products out to the buyer along with the corresponding invoice. In case goods ordered on demand have not been accepted within one month from the date of order confirmation, the user is no longer obligated to deliver the goods. The customer is still obligated to process and accept the ordered goods. .
c. In case a customer decides to order goods via the online shop, the user will confirm receiving the order request as soon as possible, The order confirmation does not represent a legally binding acceptance of the order. The legally binding is associated with the sales confirmation.
d. The order confirmation becomes part of the contract. The customer is obligated to check the order confirmation as soon as s/he receives it to ensure the content is correct.
2. Delivery deadlines and dates, right of withdrawal
Delivery dates or deadlines shall be agreed on in writing, regardless if they are binding or non-binding.
The conclusion of the contract shall be subject to the proviso that the user’s suppliers deliver the correct items to the user in a timely manner. This only applies if the user is not culpable for the non-delivery, in particular if a congruent coverage transaction was concluded with the supplier of the user. The customer will immediately be informed of the unavailability of the service/goods; if payment has already been made, reimbursement will be initiated without a delay.
Any delays of delivery and rendering of services which are a result of force majeure and any other events which were not foreseeable upon the conclusion of the contract or were not foreseeable in their actual scope that make the timely delivery or rendering of services substantially more difficult or impossible for the user – this includes, for example, strikes, lockouts, political unrest, governmental directives, subsequent changes in energy costs or material procurement difficulties that occur without our fault, unforeseeable operational disruptions, delivery costs, or other relevant associating costs, etc. – even if they affect our suppliers or their own suppliers – shall entitle us to suspend the delivery or rendering of the services for the duration of the hindrance plus an appropriate start-up period even if delivery dates and deadlines have been agreed with binding effect.
The aforementioned delays in delivery or service entitle both parties, within an appropriate time frame of three weeks from the time they were made aware of the delay and the reasons for the delay, to demand a change of the contract reflecting the changed circumstances or to demand that the contract will be cancelled in accordance with the contract rescission regulations as outlined in §§ 346 et seqq. BGB (German Civil Code).
Such circumstances shall entitle the user to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time, or to revoke the contract in full or in part for the part that has not yet been fulfilled. Should the hindrance continue for more than three months, the customer shall – after setting a reasonable grace period – be entitled to withdraw from the contract in respect of the un-fulfilled part. In case the delivery time needs to be postponed or if the user is discharged from the liability, the buyer is not entitled to claim charges.
The goods the user delivered to the customer may not be exported out of the agreed-on country of destination. In case the goods are still exported, the export is subject to approval in accordance with the foreign trade laws of the Federal Republic of Germany resp. the country of the goods’ origin. In this case, it is the customer’s sole responsibility to apply for the corresponding documentation and authorization.
All price offers and quotes not covered by the order confirmation are non-binding and without obligations and may be changed by the user at any time.
All prices include neither transport nor packaging or insurance costs.
4. Terms of payment
The purchase price and the prices for additional services are due immediately and without deduction when the object of purchase is handed over or when the invoice is received unless other terms of payment have been agreed on in writing prior to the transaction. A payment is considered as received and completed as soon as the amount due is fully available to the user. Despite contradictory provisions of the buyer, the user is entitled to initially offset payments against the former’s older debts and shall inform the buyer about the type of offsetting that has occurred. If costs and interest have already accumulated, the user shall be entitled to assign the payment first of all to the costs, then to the interest and last of all to the main debt. The vendor is entitled to transfer titles arising from business relationships. In case the customer ends up in default with the settlement of one or more claims, if the customer fails to comply with other essential contractual obligations or if circumstances become known to the user which are likely to reduce the creditworthiness of the customer, e.g. payment setting, reimbursement, pending settlement or insolvency, all claims will become due immediately. In addition, in the event of a default in payment, the user reserves the right to charge interest at bank rates, but at least a default interest rate of 8% above the base rate of the ECB. The right to make further claims for delay is reserved. If the customer is in arrears with the settlement of a claim, the user, without prejudice to their rights of §§ 286 ff., 324 ff. BGB has the right to withhold other agreed or future deliveries or, alternatively, to execute them only against prepayments or against cash on delivery. If a cash on delivery is not accepted by the customer, the user is entitled to sell the goods, without prejudice to his other contractual rights, otherwise for the account of the customer or for his own account, and the customer is entitled to charge the customer the difference between the agreed purchase price and the emergency sale purchase price. The customer can offset claims against the user only if the counterclaim of the customer is undisputed or a legally binding title exists; s/he can only assert a right of retention, insofar as it is based on claims from the purchase contract.
The customer shall bear all fees, costs and expenses incurred in connection with any legally successful legal prosecution outside of Germany.
5.Amendments to the contract and / or additions
The validity of amendments and / or supplements, as well as verbal agreements, requires a written confirmation by the user. The sales representatives of the user are not authorized to make verbal collateral agreements or to provide verbal insurances which go beyond the content of the written contract.
6. Transfer of risk
As soon as the user has handed over the goods to the cargo company, the freight forwarder, another shipping company, or any other person authorized for transport, the risk of accidental deterioration or accident occurs is transferred to the customer. The manner of dispatch, including packaging and the decision whether the goods are to be delivered to the customer from a domestic distribution warehouse or from a foreign manufacturer / supplier, is at the discretion of the user, unless another agreement was previously made. Transport, shipping and packaging costs are then billed to the customer.
7. Reservation of title
The goods delivered by the user remain the property of the user until all their current claims against the customer as well as the future ones, as far as they are related to the delivered goods, are fulfilled. If a bill or check procedure is made to compensate for the claims, the retention of title shall remain until the conclusion of this procedure.
The customer is entitled to resell the reserved goods on his own only subject to reservation of title and only within the scope of a proper business operation. As a safety measure the customer already transfers all due claims arising from the resale or from any other legal grounds related to the reservation commodity to the user.
Additionally, the user is not entitled to dispose the goods by ways of pledging or safeguarding the goods. The customer is entitled to collect the assigned claims in his own name. If the customer does not properly fulfill his payment obligations, this authorization to collect is revocable. The amounts collected as a result of the collection authorization are administered by the customer in a trustee and under separate storage and booking for the user.
The customer shall inform the user of any access or claims of third parties on reserved products immediately and handing over the necessary documents. At the same time, the customer shall be obliged to notify the third party of the proprietary rights of the user. The costs of any interventions by the user against the enforcement authorities or other third parties who access the reserved goods shall be borne by the customer.
If the customer is in breach of contract (particularly in the event of a delay in payment), the user is entitled to withdraw from the contract.
Any processing of the reserved goods with other goods which may be pending will be made by the customer on behalf of the user and without the legal obligation of the user. If the property right of the user concerning the reserved goods expires by processing, mixing or blending with other goods, it is now already agreed that the (co-) property is transferred from the user to the user in the case of a homogeneous thing or material link. This uniform item or material link created by the customer shall keep it free of charge for the user. In the event of the resale of the created uniform item or material connection, the above advance payment in the amount of the value of the reserved goods also applies to the claims of the customer from the resale.
The reserved goods must be adequately insured by the customer against all risks. The reserved goods must be treated carefully, stored separately, and marked as such at the user’s request. The customer assigns the contractual, in particular insurance-related or tortious claims resulting from damage, destruction or loss of the reserved goods already now in the amount of the value of the reserved goods (invoice value) to the user. The user shall, upon request, release the collateral granted to him/her under the provisions of this retention agreement as long as the value of the collateral exceeds the open claims of the user by more than 20%.
a. Within the scope of the statutory claims for defects, the user shall be liable for the duration of the statutory periods from the delivery of the goods to the customer for defects which are present upon delivery of the goods to the customer. The guarantee period stated in the article text applies to the sale of second-hand goods or RMA goods. Any further warranty or warranty claims are excluded. The goods delivered by the user are faultless in their execution and nature, which is customary at the time of delivery. Minor deviations from the object of purchase with respect to quality, color, form do not constitute a defect as far as they are customary and are reasonable for the customer. The customer shall not be liable for material defects if the product is altered, improperly installed, maintained, repaired, used or subjected to environmental conditions which do not correspond to the installation requirements of the manufacturers, unless the customer proves that these circumstances are not Are the cause of the complaint.
The user is not liable for the usability of the delivered goods for a specific purpose, even if the user has consulted us about possible uses of the goods in the case of contractual agreements. The user does not guarantee that the functions of software meet the requirements of the customer and that the contract products cooperate in the selection made by the customer. The warranty is excluded if the delivered goods are only defective to a percentage common to such products. The product liability is void if serial numbers, type names or similar marks have been removed or rendered illegible.
b. In the event of a defect in quality, the user shall be entitled to rectification or replacement delivery or credit distribution. The warranty obligation for goods which are defective or deviating from the agreed purchase object is, moreover, limited to the subsequent improvement or to the return of the goods against replacement delivery or credit of the returned value of the goods. In the event that the user has initially selected the rectification or the replacement delivery, the following shall also apply: If the user is not able to rectify the defect or replace the defect, this shall entail disproportionate costs or the user does not remedy the defects Within a reasonable period of time set in writing, the customer is entitled to reduce the purchase price or to withdraw from the purchase contract.
If the user supplies a replacement product for the purpose of supplementary performance, the customer shall issue the defective product. In the case of withdrawal, the customer is credited with an amount resulting from the purchase price minus the value-added benefits. For the purpose of determining the advantages of use, the ratio of the use of the object by the buyer to the foreseeable total-use-time is taken (see fair value credit list).
c. The user shall only pay expenses in connection with the supplementary performance insofar as they are appropriate in the individual case, in particular in relation to the purchase price of the goods. The reimbursement of expenses is limited to a maximum of 2% of the original value of the warrant.
d. The customer shall, with regard to the goods received, make an inspection obligation which is to be carried out without undue delay after the arrival of the goods, to any defects, to their condition and to the possible presence, if any, of their properties. Obvious defects must be reported to the user in writing immediately after they have been identified. If the defect notification is not made within 7 calendar days from the delivery date, the goods shall be deemed approved.
If the customer sells or processes the goods further, s/he recognizes the lack of freedom and the contractual nature of the delivery. As a result, a guarantee for goods which have already been processed or sold after expiry of the aforementioned period of notice of defects is excluded with regard to defects which can be ascertained in the course of a proper investigation.
e. The return of goods due to defective or other non-contractual delivery must be agreed on with the user and only permitted with specific reference to the respective delivery note / invoice number. The customer bears the risk of accidental deterioration and the accidental loss of the goods until the goods are returned to the user.
f. The wear of the goods is in any case excluded from warranty. This also applies to improper handling and installation errors caused by the customer and cleaning work. For the repair of the defect of the goods caused by this customer by the customer, the user calculates their services according to the currently valid prices. For repair work and replacement deliveries, the same warranty applies as for the original goods, and only until the expiry of the statutory period of limitation.
g. The customer may assert claims for defects for the parts installed for the correction of the defect until the end of the limitation period of the goods from the purchase contract.
h. If the verification of the defect indication shows that a defect in quality is not present, the costs of the inspection and repair are calculated by the user at the applicable valid rates of calculation.
i. Guarantees are exclusively for the manufacturer of goods and are to be asserted against them. Warranty claims against the user are only for the immediate customer and are not assignable. .
The user is liable for damages to the customer only to the extent that the company’s employees, agents and vicarious agents are subject to intent or gross negligence.
Liability for culpable injury to life, body or health shall remain unaffected; this also applies to the mandatory liability under the Product Liability Act. Any liability is limited to the typically foreseeable damage that can be foreseen at the time the contract is concluded. Unless stated otherwise, the liability is excluded.
10. Right of retention and set-off
The customer is not entitled to exercise a right of retention against the user’s claims, unless they are legally established claims or recognized by the user in writing. The customer is likewise not entitled to offset against existing claims against the user.
11. Copyright protection
Documents and drawings provided to the customer as well as constructive services and suggestions for the design and manufacture of ordered parts delivered by us may only be used by the customer for the intended purpose. The customer is not entitled to make these documents available to third parties without the consent of the user or to make them the subject of publications.
12. Jurisdiction / place of fulfillment
The obligations arising from the business relationship concluded with the user must be fulfilled at their place of business. Würselen is the exclusive court of jurisdiction for all current and future claims, including bills of exchange and checks, from the business relationship. Only the right of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods, is applicable.
13. Using the web analyzing service developed by Google Inc.
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14. Data protection and final provisions
The user is entitled to electronically store and process the data submitted to the company by the customer. Deletion of the data requires a written request. The user is then entitled to pass on customer data, which arise from the contract documents or which are necessary for the execution of the contract, to third parties, in particular to credit institutions and contract partners, if this serves the purpose of the order processing. The applicable provisions of data protection shall be observed by the user. Should individual provisions of these general terms and conditions or a stipulation be or become invalid under other agreements with the customer, the effectiveness of the remaining provisions remains unaffected. With regard to the invalid part, the contracting parties are already committed to settling a regulation that is as close as possible to the desired success, taking legal requirements into account. In this case, the invalid provision shall be replaced by a provision which is closest to the economic purpose of the invalid provision.