Terms and Conditions of COS Computer GmbH

1. Validity

This English translation of the General Terms and Conditions is provided solely for the convenience of customers. The translation is not binding. The German text (AGB) is the sole authoritative and binding version and prevails in case of any conflict.

Supplies, services, offers and sales are made solely on the basis of the following conditions. All contracts and future business are subject to these conditions, even if not expressly stipulated. These terms are accepted by the customer when placing an order, but no later than receipt of the goods or services. Contradictory Statements or conditions by the buyer will only be accepted if confirmed in writing by COS.

2. Offers

Written and verbal offers from COS are not binding also if not marked as such. COS employees are not authorized to make binding offers.

3. Prices

All verbal or written published prices are not binding. Errors and short-term price modifications are subject to change without prior notice. All prices are net, excluding postage, packing and insurance. If payment of the customer is delayed with more than one claim, all outstanding claims against the client are due immediately.

4. Transfer of risk

Shipping / Pick-up is at customer's risk. Once the goods leave the COS warehouse, the risk passes to the customer. COS insures goods in accordance with the value of the goods, if customer does not expressly contradict to this.

5. Delivery

All terms of delivery require written confirmation. All deliveries from COS are subject to proper and timely delivery by its suppliers. Partial deliveries are permissible. If delivery and service delays occur, COS cannot be held responsible in the event of force majeure and events that complicate or make the delivery impossible, such as strikes, breakdown, official directives and difficulties in obtaining materials etc., even if they occur to suppliers of COS and even if COS agreed to binding limits and appointments. The receipt of the ordered and delivered goods is a primary obligation of the buyer. If the buyer refuses to accept, or neglects to accept the goods, then the buyer is in default. After a second unsuccessful delivery attempt, COS reserves the right to demand up to 30% of the contract value as compensation for damages. This is without prejudice to the possibility of evidence of higher damages.

6. Payment

The first two deliveries are made by cash on delivery. After the first two deliveries, pending approval of the credit insurance, COS provides the possibility of payment by check on delivery. COS reserves the right to examine the customer by gathering information on his financial standing. In case of cash or check on delivery, the buyer is obliged to demand a receipt of payment from the carrier upon delivery and to retain it. Upon request the receipt, or a legible copy, must be presented to COS; in the event of default, the customer bears the burden of proof of payment. COS is not liable for timely presentation of the checks. In case of default by the customer, COS is entitled to demand interest rates at up to 3% above the prime rate of the European Central Bank. If any further damages by delay, these can be claimed by COS. In case of default, COS is also entitled to demand overdue fines amounting up to 10 EUR as well as to give the demand for the debt recovery to a collection agency. The customer is obligated to pay all costs for the use of a collection agency. The customer is only entitled to retain or offset part payments, if the counterclaims are legally established or recognized by COS. If after the conclusion of a contract the financial circumstances of the customer deteriorate, or if COS comes to know about insufficient liquidity, then COS reserves the right to make an appropriate security demand. If this is not complied with, COS reserves the right to withdraw from the contract. An imminent delivery can be delayed until the provision of security.

7. Retention of title

The goods delivered from COS to the buyer remain property of COS until COS has received payment of all secured claims of the supplier relationship (including all balance claims from a current account). The goods as well as the goods secured by retention of title in lieu of the original goods according to this provision will subsequently be referred to as conditional goods. Until the realization of the retention of title the buyer shall be entitled to process, alloy or sell the conditional goods within the regular course of business. Pledging and assignment of the conditional goods as security shall generally be inadmissible. In the event the conditional goods are processed by the buyer the contracting parties agree that the processing is done in the name and for the account of COS and COS shall immediately become owner or joint owner of the newly created product, (joint owner in case goods belonging to several owners are processed and the value of the processed good is higher than the value of the conditional goods used therein. In case COS does not become owner of the newly created product, the buyer hereby transfers his prospective ownership or joint ownership in the newly created product as security to COS and undertakes to store the product for COS until COS claims redelivery. COS hereby accepts the transfer of ownership. COS becomes joint owner in the new product proportional to the value of the conditional goods in relation to the value of the other alloyed goods at the time of intermixture in case the buyer inextricably alloys the conditional goods with objects COS has no ownership in. If the intermixtures carried out in a manner that the buyer's good is to be regarded as the principal object, then it is agreed that the buyer transfers proportional joint ownership to COS. The buyer undertakes to store the property or joint property for COS. In the event of a resale of the conditional goods, the buyer hereby assigns to COS claims against the buyer arising from such resale. In case COS has joint ownership in the conditional goods a proportionate assignment shall apply. This provision also applies to other claims in substitution of conditional goods or arising with regard to the conditional goods, e.g. insurance claims or claims in tort for loss or destruction. COS revocably authorizes the buyer to collect assigned claims in his own name and for the account of COS. COS shall revoke this authorization to collect only in the event of the realization of the security or in case of composition proceedings or insolvency proceedings. If third parties take up steps to dispose of the conditional goods, especially by pledge, the buyer shall immediately advert to the ownership of COS and notify COS to allow enforcement of ownership rights. In this context COS will be held liable for all expenses in and out of court in case the third party does not reimburse COS for costs and fees accrued. Upon request COS will release the conditional goods, or objects or claims in substitution of the conditional goods, at sole discretion of COS, insofar as their fair market value exceeds the value of the secured claims by more than 20%.

8. Complaints, warranty

COS guarantees under the statutory warranty provisions in respect of all goods supplied, not at liberty for material and manufacturer faults, the following conditions: The customer commits himself to check all deliveries upon receipt for defects and regularity for from COS. Insufficient or incorrect deliveries or obvious defects are to be reported in writing by the customer within 14 days of receipt of the shipment. The obligation of merchants for immediate notification of defects under §§ 377, 378 Commercial Law (German HGB) remains unaffected. This also applies to merchants in the case of perceptible wrong deliveries by COS, especially when products with a high depreciation rate (e.g. RAM, CPUs) are subject of the delivery. In these cases the goods will be returned immediately by return order arranged by COS. Damages in transit must be reported immediately to the conveyer. To secure any claims by the customer, the packaging must be stored until further notice. COS reserves the right to repair, also multiple times, and replacement. Should repair or replacement fail, the customer is entitled reduce the price or revoke contract of sale. Excepted from this warranty are all defects caused by improper treatment or intervention by customer or third parties. In the case of complaints, the customer is required to describe the defect precisely. The removal of labels, stickers and other required markings for the identification of the goods, leads to loss of claim on warranties.

9. Manufacturer warranty

COS is not obligated to customers in their use of a manufacturer's warranty, to accept thereof concerned goods for forwarding to the manufacturer. When receiving the goods in such cases, as a gesture of goodwill towards customers, COS is then only liable to intent and gross negligence. COS can, at any time, without notice and for any reason, send back the goods to the customer without COS being directly or indirectly liable to the manufacturer's warranty promise

10. Place of Fulfilment, Jurisdiction

Place of fulfilment is Aachen. Place of jurisdiction is Giessen.  Only German law prevails, even for deliveries abroad.

11. Final Regulations / Severability Clause

If any provision of these terms and conditions or a provision of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.  Instead of the invalid provision is to apply an appropriate provision that comes as close as possible to the invalid clause.

Special provisions for Software as a delivery item

  1. If software is the item of delivery, COS Computer GmbH provides rights under the terms of license of the manufacturer with the spatial, temporal and factual content which is granted by the manufacturer for the specific software product. If distribution rights of software are the item of delivery, COS Computer GmbH is only obliged to provide the distribution rights in accordance with the terms of license of the manufacturer with the spatial, temporal and factual content, which is granted by the manufacturer for the specific software product.
  2. COS Computer GmbH is not a vicarious agent of the manufacturer of the software product. COS Computer GmbH shall not be liable accordingly for fault of the manufacturer or its agents. The liability of COS Computer GmbH for own behavior remains unaffected under the concluded agreements.

Pohlheim, 2016-01-13

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