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General Terms and Conditions for Shyam Telecom GmbH source September 15, 2009

comment s'habiller pour rencontrer sa belle famille General Terms and Conditions for Shyam Telecom GmbH General Terms and Conditions
Shyam Telecom GmbH, Aschaffenburg, Germany (dated as of January 01, 2009)

Stock trading business history 1. Scope

1.1 Any delivery of goods and services by Shyam Telecom GmbH (“Shyam”) is governed solely by the following General Terms and Conditions (”Terms“) which apply to all present and future business relations between the parties. The Customer accepts these Terms by placing its order.
1.2 The application of any other terms, particularly any of the Customer’s Terms and Conditions of Purchase or General Terms and Conditions of Business is excluded, even if Shyam does not expressly oppose such conditions.

2. Offer, Order Confirmation

2.1 All documents, including all offers, order forms and other contract documents of Shyam are non-binding and subject to confirmation.
2.2 Each Order is binding only after it has been confirmed by Shyam in writing or in text form. Warranties (“Garantien”) are binding on Shyam only if and to the extent expressly and literally designated as such in an order and that the warranties set forth the details of Shyam’s obligations, e.g., the content, duration and territorial scope of such a warranty.

3. Delivery, Packing

3.1 Delivery dates are only binding if expressly confirmed by Shyam in writing.
3.2 Shyam reserves the right to execute delivery at its discretion by using its own delivery organisation or third party suppliers. Shyam is entitled to make partial deliveries and render partial services if such actions do not unreasonably adversely affect the Customer’s interests. The delivery will be effected by using the cheapest route and cheapest means unless another route or mode of transport has been expressly agreed.
3.3 All goods shall be packed and dispatched as is normal practice in the trade at the discretion of Shyam. If special packaging is required, the additional costs incurred will be invoiced to the Customer.
3.4 Any unforeseen hindrances to delivery, such as Acts of God, shortage of raw materials, strikes, disruptions to Shyam’s own business operations or those of its suppliers, entitle Shyam to defer delivery for the duration of the hindrance. In the case of such unforeseen hindrances, Shyam may also refuse the contract to the extent that it has not already been fulfilled. This shall not give rise to claims for compensation on the part of the Customer.

4. Passing of Risk

4.1 Unless otherwise agreed in writing, delivery will always be carried out at the Customer’s risk. The risk passes to the Customer when the goods have been handed over to the person carrying out the delivery.
4.2 If a delivery is delayed for reasons for which the Customer is responsible, the risk of accidental deterioration, loss and destruction passes to the Customer on notification of Shyam’s readiness to deliver. Required storage costs after passing of risk are borne by the Customer. This does not affect any other claims.
4.3 If the Customer is in delay with accepting delivery, Shyam is entitled to claim for refund of any related expenditure, and the risk of accidental deterioration, loss and destruction will pass to the Customer.

5. Retention of Title

5.1 Shyam retains title to the goods until receipt of all payments in full. In case of breach of contract by the Customer including, without limitation, default in payment, Shyam is entitled to take possession of the goods.
5.2 The Customer will handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
5.3 As long as the purchase price has not been completely paid, the Customer will immediately inform Shyam in writing if the goods become subject to rights of third persons or other encumbrances.
5.4 The Customer may resell goods subject to the above retention of title only in the normal course of business. For this case, the Customer hereby assigns all claims arising out of such resale to Shyam, regardless of whether the goods have been processed or not. Notwithstanding Shyam’s right to claim direct payment, the Customer shall be entitled to receive payment on the assigned claims. To this end, Shyam agrees to not demand payment on the assigned claims to the extent the Customer complies with all of its obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any suspension of payments.
5.5 Insofar as the above security interests exceed the secured claim by more than 10%, Shyam is obligated, at its own discretion, to release such security interests upon the Customer’s request.

6. Prices, Payment

6.1 Prices are quoted in EURO, are ex works Aschaffenburg, Germany, exclusive of the respective statutory VAT (value added tax) and exclusive of costs for freight, packing and insurance unless expressly otherwise. Additional services will be invoiced separately.
6.2 Invoices are due and payable net within 30 days from date of invoice. Payment will only be deemed made when the amount credited has been received in Shyam’s account.
6.3 In the case of any delay in payment, Shyam is entitled to charge interest on arrears at a rate of 8 percentage points above the base interest rate of the European Central Bank (sec. 288 para. 2 German Civil Code – Bürgerliches Gesetzbuch). Shyam reserves the right to claim for any further losses or damages.
6.4 The Customer must raise objections to invoices immediately in writing upon receipt of the invoice and, in any event, within a preclusive period of six (6) months following receipt of the invoice. Any failure to object within this period is deemed as acceptance of the invoice. Shyam will expressly inform the Customer on each invoice about the consequences of any omission to raise objections within the preclusive period. Statutory claims of the Customer based on objections raised after the expiration of the preclusive period remain unaffected.
6.5 In the case of any delay in payment, all our claims existing at such time become due and payable immediately.

7. Software Rights

7.1 Regarding software, Shyam grants the Customer a non-exclusive, non-transferable right to use the software and its associated documentation; the usage on more than one system is not permitted. The Customer is only entitled to copy, revise or translate the software or to convert the source code from object code to the extent permitted by law (sec. 69a et seq. German Copyright Act – “Urheberrechtsgesetz”). All other rights in the software and the documentation, including copies, remain with Shyam or the software supplier. The issuance of sublicenses is not permitted. The license terms of the software supplier additionally apply; the terms will be provided together with the software.
7.2 The Customer, however, is entitled to transfer the software as well as the software rights granted to it to a third party provided that
(a) the third party accepts the license terms of Shyam and the software supplier in writing, and
(b) the Customer does not keep any copies of the software and ensures that all of its copies have been transferred and/or irrecoverably deleted.
7.3 The Customer undertakes to refrain from removing manufacturer’s markings, in particular copyright notices, or changing these without the prior express consent of Shyam.

8. Warranty

8.1 Shyam warrants that supplied goods at the time of the passing of risk are free of material or manufacturing defects constituting a material reduction in the product’s value or functionality, that the software delivered or provided complies with the functionality and features as described in the software manual or another written agreement valid at the time of the delivery of the software.
8.2 The Customer acknowledges that the installation and the usage of products such as repeaters and boosters are subject to European regulation as set forth in the R&TTE directive 1999/05/EC. The Customer acknowledges furthermore that the usage and/or operation of such products may be restricted by national regulations in its country. The Customer, therefore, is obliged to ensure that the national regulations are met and to obtain, as far as required by national law, a license and/or to achieve an equivalent authorization (e.g. from a license holder) for the usage and/or operation of repeaters and boosters.
8.3 The Customer is required to examine the goods delivered for obvious defects which an ordinary customer would observe without undue delay. Obvious defects such as missing components or missing materials for documentation as well as readily apparent damages must be notified to Shyam in writing within one week after the delivery of goods. The notice must contain a detailed description of the defects. Any defects which become apparent later before the ending of the limitation period for claims for defects (Mängelansprüche) as stipulated in para. 8.9 below must be notified to Shyam in writing within one week after the Customer has noticed them. If the Customer does not fulfil its obligation to examine goods or to object to defects, the goods delivered are deemed accepted, also with regard to the defect concerned.
8.4 Any goods claimed to be defective by the Customer must be returned to Shyam for examination in their original or equivalent packaging. Shyam will remedy defects if the warranty claim is valid and within the warranty period. Shyam has discretion about whether it remedies the defect by repair or replacement. Shyam only bears costs necessary to remedy the defect.
8.5 Specifications of goods, especially pictures, drawings, data about weight, measurements and capacity contained in offers and brochures are to be considered as average data. Such specifications and data in no way constitute a warranty on quality but merely a description or labeling of the goods.
8.6 Any warranty is void if operating or maintenance instructions are not observed, if changes are made to deliveries, if parts are replaced or materials are used that are not in accordance with the original product specifications, unless the Customer can show that the defect in question resulted from another cause.
8.7 Shyam warrants that the goods delivered and/or provided are free from third party rights which prevent the use in accordance with the contract. This does not apply to customary retentions of title.
If third parties are entitled to such rights and pursue them, Shyam shall do everything in its power in order to defend the software at its own expense against the asserted third party rights. The Customer will inform Shyam in writing without undue delay of the assertion of such rights by third parties and give Shyam all powers of attorney and authorizations which are necessary in order to defend the software against the asserted third party rights.
To the extent that there are defects in title, Shyam
(a) is entitled at its option to either (i) take legitimate measures to remove the third party rights which impair the contractual use of the software, or (ii) remedy the enforcement of such claims, or (iii) change or replace the software in such a manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of the software, and
(b) is under an obligation to reimburse the Customer for its necessary refundable costs incurred in the assertion of legal claims.
8.8 All rights of the Customer to receive damages or compensation are governed by the provision on liability in section 9 of these Terms and Conditions.
8.9 The limitation period for claims for defects is 24 months after the passing of risk for equipment produced by Shyam and 12 months for third party devices such as power supplies. This does not apply to Customer claims for damages based on physical injury or injury to health caused by a defect for which Shyam is responsible or claims for damages based on intentional misconduct or gross negligence.

9. Liability

9.1 Shyam is only liable for damages that have been caused by a grossly negligent or willful act of Shyam or any of its legal representatives, employees or vicarious agents.
9.2 Shyam’s liability for violations of essential contractual duties (cardinal duties) due to simple or minor negligence is limited to the amount of the typically foreseeable damages.
Typically foreseeable damages shall cover damages up to the amount of EUR 25,000.00.
Any liability for violations of other contractual duties due to simple or minor negligence shall be excluded.
9.3 Mandatory statutory provisions such as the German Product Liability Act and liability for personal injury remain unaffected.

10. Confidentiality

10.1 The parties agree to keep all information strictly confidential and only to use such information for the contractually agreed purposes. Confidential information for the purpose of this provision means information, documents, details and data, which are marked as such or which must be considered confidential because of their nature. The Customer agrees to allow only those employees access to the confidential information of Shyam who need access to such information in fulfillment of the contract (“need-to-know”). Both parties agree at the request of the other party to require their employees to sign an appropriate confidentiality declaration and to present this to the other party. The parties will not seek to register intellectual property rights in respect of confidential information of the other party.
10.2 If confidential information within the above definition is requested by a public authority, the other party shall be informed without undue delay and before the information is supplied to the public authority.

11. General Provisions

11.1 The contractual relationship between Shyam and the Customer is governed by the laws of the Federal Republic of Germany, excluding the Convention on Contracts for the International Sale of Goods (CISG).
11.2 Place of performance is Aschaffenburg. If the Customer is a commercial party, venue for all disputes arising out of or in connection with the contractual relationship is in Frankfurt/Main. However, Shyam has the right to bring legal actions against the Customer at its place of general jurisdiction.
11.3 Any set-off with counterclaims is permissible only to the extent that the counterclaims are undisputed or have been finally adjudicated. This also applies to any right of retention.
11.4 Any right of retention of the Customer is excluded unless its claim is based on the same contractual relationship.
11.5 In the event that any provision of these Terms is or becomes completely or partially invalid or unenforceable, the remaining provisions will remain in full force and effect. The invalid or unenforceable provision will be replaced by a new provision that comes as close as possible to the purpose of the old provision. This also applies if there is a gap in these Terms.