General terms and conditions

Area of application

  1. These terms and conditions apply to the present business relationship (e.g. purchase-, delivery- or service contract, etc.) between the TomEnSo (short TES) and the customer and all specifications in brochures, price lists, advertisements, etc. made in this context whether oral, in writing or via the Internet.
  2. Unless expressly agreed in writing, any differing terms and conditions of the customer shall not apply.

Offer

  1. The offer of TES is in writing and is subject without obligation.
  2. The order will only be deemed accepted if it has been confirmed by the TES in writing.
  3. Warranties are only binding if and insofar as they are especially made ​​or referred to in an offer or otherwise by the TES as such.
  4. Weight and dimensions in documents (pictures, drawings, etc.) to which reference is made in the offer are not within customary tolerances required to be 100% accurate, unless they are expressly designated as binding.
  5. Due to the constant advancement in technology development, the products and the services, the TES reserves the right to change products and services at any time as long as an equivalent functionality and performance is ensured.

Scope of delivery

Even if an offer of TES with time commitment is accepted within the time frame, as long as no timely confirmation of order occurs, the scope of delivery depends on the written confirmation of the TES. All supplement agreements and changes that are made verbally, via phone or made with representatives need a written confirmation by the TES in order to be effective.

Prices

  1. Prices are stipulated in the offer letter and / or order confirmation.
  2. Unless otherwise - i.e. in the offer letter or order confirmation -agreed, prices apply ex works, including loading within the works, but excluding packaging and unloading. Sales tax at the statutory rate is added on top of the prices.

Payment

  1. The payment must be made in accordance with the terms & conditions stipulated in the offer letter or order confirmation.
  2. If payments are deferred or made later than agreed, interest at the rate of 8 percentage points are calculated on the base rate of the ECB for the period of delay. A special notice of default is not required.
  3. The customer has a right of retention or of potential counterclaims only if these counterclaims are undisputed or legally binding.
  4. If the customer does not fulfill his payment obligations, stops his payments or if the TES notices a significant deterioration in the situation of the customer that endangers the purchase price claim, the entire residual debt is due. If the entire debt is not paid immediately, the customer’s usage right of the delivery item expires. Until the residual debt is paid, the TES is entitled either to take the delivery item back without giving up their payment claim or to withdraw from the contract. If the customer is in debt and withdraws from the contract, the customer has to compensate the TES for use of the delivery item and additionally also has to replace any impairment and loss of profit, even if these were involuntary. Upon removal of the delivery item, all costs shall be borne by the customer.

Delivery period

  1. The delivery period begins upon receiving the order confirmation, but not before the customer has delivered all needed documents, permits, approvals and not before an agreed advance payment or security payment has been made.
  2. The delivery deadline is met if the delivery item has left the factory of the TES at the expiry of the delivery period or the delivery item has been reported ready for shipment. If approval of the final product is needed, the acceptance date shall - except in the case of justified refusal of acceptance - prevail, or alternatively the date of the notification of acceptance.
  3. The delivery period shall be extended appropriately in the context of labor disputes, in particular strikes and lockouts and in the occurrence of other unforeseen events that are beyond the control of the TES, insofar as such obstacles are relevant to the completion or delivery of the item concerned. The same applies if such circumstances occur at sub-suppliers. Furthermore, no delay in delivery exists, if licensing or documents and authorizations by third parties that are required for the services or information relevant for the execution of delivery provided by the customer is not delivered in time. Any changes requested by the orderer subsequently will result in a suspension of the delivery term which will begin to run again upon agreement on the desired change. The TES is also not responsible for the aforementioned circumstances if they occur during an already existing delay. In important cases the TES will communicate beginning and end of such hindrances as soon as possible.
  4. If the customer is responsible for a delivery delay for more than one month after notification of readiness for dispatch, he will have to pay for the storage; when stored in the work of the TES the storage fee is 0.5% of the delivery price for each month or part thereof up to a maximum of 5% of the contract price. The TES is at liberty to prove higher storage costs. However, after expiration of an effectless deadline of a reasonable time period, the TES is entitled to do with the delivery item as they please. Further claims due to delay in acceptance remain unaffected.
  5. Compliance with the delivery period presupposes the fulfillment of the contractual obligations of the customer.

Transfer of risk and insurance

  1. The risk shall pass to the customer at the latest when the goods are dispatched, even if partial deliveries are made or the TES has promised other services, e.g. has the shipping costs or delivery and exhibition taken care of. Insofar as acceptance of the goods is needed, this is definitive for the transfer of risk. This must be carried out immediately upon acceptance, alternatively, after notifying the TES of readiness for acceptance. The customer may not refuse acceptance in case of a minor defect.
  2. The shipment will be insured by the TES against theft, breakage, transport, fire and water damage and other insurable risks only upon the customer's request and at his own expense.
  3. If shipment is delayed due to circumstances for which the customer is responsible, the risk is transferred on to the customer from the date the goods are ready for shipment. However, the TES is required to finalize appropriate insurance at the request and expense of the customer.
  4. Delivered goods, even if they have minor defects, have to be accepted by the customer disregarding the rights as stated under § 9.
  5. Partial deliveries are permitted.

Title retention and insurance

  1. The TES retains title and the extended reservation of title to the goods delivered pending performance of all of the claims including costs and interest from the entire business relationship. The same applies to the extended retention of title. The foreign customer is obliged to respect as close as possible according to the local law the extended reservation of title and is obliged to negotiate on this issue with the TES. Even with the installation or fitting of the delivered goods in or on a machine or system. The retention of title remains in full even with the installation or fitting of the delivered goods in or on a machine or with connecting of the delivery item into a super ordinate system.
  2. The customer is obliged to treat the goods with care until ownership is transferred. The TES is entitled to insure the delivery item at the customer's expense against theft, breakage, fire, water and other damages, unless the customer proves he has himself taken out the insurance. The customer has to conduct necessary maintenance and repair work at his own in a timely manner, unless agreed different.
  3. Until full payment of the delivery item, the customer may not mortgage, rent of lend it, assign it as security, sell it to third parties, nor assign any rights thereto to third parties. In case of distraint, seizure or other dispositions through third parties, he must notify the TES immediately. The customer is obliged to reimburse justified in or out of court interventions, such as filing legal action in accordance with § 771 of the Code of Civil Procedure (ZPO).
  4. If the customer is in breach of contract, in particular in the case of a significant delay of payment, the TES may retrieve - after a warning - the goods as collateral.
  5. In the event of an unauthorized or approved resale by the customer, the resulting claim to remuneration to the amount of the purchasing price claim of the TES (including VAT) is transferred to them immediately in advance. The TES accepts the transfer. It is authorized to collect the assigned claim in case of default of the customer. The TES can also claim the extended retention of title. The customer has to notify the TES about all details of the assignment by providing him all necessary documentation and notifying the third party of the assignment.
    Handling, processing, or transformation of the purchased goods is always carried out for the TES; the TES shall acquire the co-ownership of the new corporeal thing at the ratio existing between the amount of the final invoiced sum of the purchasing item and replacement value of the other processed items at that time.
    If the customer processes the retained goods with other objects that do not belong to him, the TES shall acquire joint ownership of the new product in relation to the ratio of the sale object to the other processed objects at the time of processing.
    If the customer connects the object of sale with the property of a third party, he hereby transfers all resulting claims in the amount of the purchase price claim of the TES (including VAT) to the TES. The TES accepts the assignment.
  6. Retention of title and extended retention of title are conditioned in such a way that upon full payment on the reserved goods, the ownership is immediately transferred to the customer and the transferred receivables are returned to him.
  7. The TES is entitled to withdraw from the contract and demand the immediate return of the delivery item, if insolvency proceedings are opened.

Liability for defects of delivery

For delivery defects, which include the absence of expressly warranted character-istics, the TES shall be liable to the exclusion of further claims notwithstanding the provisions of paragraph4 as follows:

Material defect

    1. All such parts shall be repaired or replaced at the discretion of the TES, which within 12 months of putting it in operation are deemed due to a situation prior to the transfer of risk to be unusable or not insubstantially affected in their usefulness - in particular due to incorrect design, poor materials or defective workmanship.
      The deficiencies must be reported in writing immediately to the TES and the relevant parts sent immediately upon request to the TES. Replaced parts become the property of TES.
    2. The customer has to give the necessary time and opportunity to carry out all of the repairs and replacements deemed necessary by the TES; otherwise, the TES is exempt from liability for the consequences arising thereof. The customer has the right only in urgent cases of danger to operational safety or to prevent excessive damage, in which case the TES must be notified immediately, to remedy the defect themselves or by third parties and to demand reimbursement from the TES of the necessary expenses.
    3. The TES bears the immediate costs arising from the repair or replacement costs - if the complaint proves to be justified and timely - of the replacement part including shipping, and the reasonable installation costs. If the position of the spare part makes it reasonable to expect that fitters should perform the work, the costs for providing fitters and the Buyers auxiliary personnel are added. This reimbursement is limited to the domestic market. In all other cases, the customer shall bear the costs.
    4. The customer is in compliance with the statutory right to cancel the contract if the TES allows to let pass a reasonable period for repair or replacement delivery as a result of quality defects without remedying the situation.

If there is only a minor defect, the customer only has the right to reduce the contract price. The right to demand a reduction in the contract price is excluded in all other cases.

  1. No liability is assumed for expen-dable parts and in particular in the following cases:
    Unsuitable or improper use, faulty assembly or commis-sioning by the customer or third parties, natural wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable operating resources, substitute materials, or chemical, electro-chemical or electrical influences - unless they are not the responsibility of the TES.
    The TES is not liable for the corrosion resistance pertaining the materials used; corrosive influences are subject the individual changes during the period of operation.
  2. Liability is canceled for the consequences resulting of improper alterations or repair work by the customer or a third party without prior approval of the TES. The same applies to the use of spare parts not supplied by the TES, that are, however, genuine replacement parts required for the functionality of the delivered goods.
  3. In relation to repairs made without any legal obligation, the purchaser will only hold defect claims if expressly agreed on in writing.
  4. Defect of Title
    If the use of the product supplied causes a breach of commercial proprietary right or domestic copyright in Germany, the TES shall at their own expense in all cases either provide the customer with the right to continue use or modify the delivery item in such a way that is reasonable to the customer and ensures that the proprietary right is no longer breached. Outside Germany, this applies only with an appropriate written agreement.
    If it is not financially viable to do this or to do it in a reasonable period of time, then the customer shall be entitled to withdraw from the contract.
    Under the conditions mentioned above, the TES also has a right to rescind the contract.
    In addition, the TES shall release the customer from undisputed or legally established claims by third property right holders.
  5. The obligations referred to in paragraph 8 shall only exist if
    • the customer informs the TES immediately of any claims of breach of proprietary rights or copyrights,
    • the customer supports the TES to a reasonable extent in rebuttal of claims
    • the TES is entitled to all rebuttal measures including in- and out-of-court settlements,
    • the bad title is not based on an instruction from the customer and
    • the breach of rights was not caused by a change made to the delivery item by the customer himself or use which was not covered under the contract.

Liability

  1. If the delivery item cannot be used by the customer for the contractually agreed purpose, due to negligence or fault on the part of the TES in the execution of suggestions or advice before or after completion of contract or by breach of other contractual subsidiary obligations then the arrangements specified under § 9 and §10.2 shall apply correspondingly with the exception of further claims from the customer.
  2. For damage which is not to the delivery item itself the TES shall only be liable, for whatever legal reasons, in the following situations:
    • in the event of wrongful intent,
    • in the event of gross negligence unless in case of gross
      negligence of employees not being on the manager level or slight negligence,
    • in the event of culpable injury to life, body, health,
    • in the event of defects which the TES maliciously did not reveal or guaranteed would not be there,
    • in the event of defects in the delivery item, insofar as liability exists under the German Product Liability Act for personal injury or property damage (For claims arising from the Product Liability Act, the TES is entitled to cede their claims under the relevant contract of insurance, to the extent permitted by law. Upon acceptance of the transfer, all claims under the Product Liability Act are, therefore, finalized).
    • For culpable violation of essential contractual obligations (cardinal obligations), even in cases of gross negligence by employees without managerial or decision function or in case of slight negligence; in the latter case, liability shall be limited to reasonably foreseeable loss or damage typical of the contract.
      Within the scope of the TES’s coverage of product liability insurance for property damage, the afore mentioned exclusions and limitations of liability clauses do not apply.
  3. Further claims are excluded.

External product

If there are defects in products that were supplied but not manufactured by the TES, and were designated as such products to the customer, only the guarantee provisions of the respective product manufacturer apply. The TES will add required warranty statements to the products; the customer has to accept the guarantee terms.

Customer’s right of withdrawal

  1. The customer is entitled to cancel the agreement without notice, if the delivery of the object becomes impossible before passing the risk. The customer may also rescind the contract, if the execution of an order becomes partially impossible and if the customer has a legitimate interest to object to a partial delivery. Otherwise, the customer hast o pay the contractual price reflecting the partial delivery. The same applies if the TES is unable to deliver. Any further liability is exclusively subject to § 10.2.
    If the customer is in default with accepting delivery, when such situation of impossibility or inability of delivery arises (i.e. by not informing about shipment, delivery, assembly or operational hindrances) the customer’s right to cancel the agreement is waived, the payment obligation survives and continues to be in effect.
  2. If the TES is late with the performance of the contract and the customer sets a reasonable deadline, unless such is not required under the law, and Supplier fails to meet this deadline, the customer may rescind the contract in accordance with the statutory law.
    Any further rights and claims for default are exclusively subject to § 10.2.

Contract amendment, rescission of the TES

  1. Should unforeseen events according to § 6 paragraph 3 substantially change the economic importance or the content of the performance or has a significant impact on the operations of the TES, the contract shall be appropriately adjusted in good faith. If this is not economically viable, the TES may withdraw from the contract. If the TES wishes to make use of this right, the TES has to notify the customer immediately after recognizing the significance of the event and that even if already an extension of the delivery period was agreed.
  2. In the case of order deferrals and cancellations by the customer, the TES shall be treated as if the contract had been properly performed. Only the specific, foreseeable damage is recoverable. Lost profits and attorney fees and court costs are associated with these specific and predictable reimbursement claims.

Statute of Limitation

  1. All claims of the customer - regardless of the legal reason - shall lapse within 12 months, unless this contradicts mandatory statuary regulations.
  2. Obvious defects must be documented in writing at the time of receipt or installation of good to avoid loss of warranty claims. TES must acknowledge receipt of the document on that date.
  3. In case of repair or replacement, the limitation period is 6 months, however, does not end before the original period of limitation.

Software licensing

If the object of delivery includes software, the customer obtains a non-exclusive license to use the software on the basis of the enclosed manual. Provision of software is for use on the agreed hardware only. Provision of software is for use on the agreed hardware only. Use of software on more than one system requires written approval. Software delivered to the customer is not to be modified without written permission by the TES.

Assembly

  1. Assembly work is, unless otherwise agreed, paid for separately. If the erection or commissioning is delayed through no fault of the TES, then the customer has to bear the costs of the waiting time and other necessary trips.
  2. For defects in the assembly, the above provisions shall apply accordingly.

Confidentiality, intellectual property rights

  1. The TES reserves the right of property, copyright and all other industrial property rights and their know-how regarding all and any designs, plans, user manuals, technical descriptions, costs, estimates and other tangible, intangible or electronic information. Such documents are not to be copied, nor to be used for non-contractual purposes without written permission, nor to be made available to third parties (not even as part of enquiries), nor to be published. The same applies to any trade secrets, know-how or secrets in relation to the TES’s business or to any production process disclosed to the customer or otherwise having come to his knowledge.
  2. The customer acknowledges all patent rights, copyright and other industrial property rights of the TES, also regarding any software provided, irrespective of whether such rights are governed by the protection of any copies of any software provided. Sub-licencing to third parties is not permissible without written permission of the TES.
  3. Any reproduction of any machinery, plants, components or parts delivered by the TES is not permitted. The TES will exhaust every means under civil and criminal law available
  4. worldwide to pursue any violation without exception.

Export

The products which are delivered can contain technology or software governed by the export control laws of the Federal Republic of Germany applicable to them and by the export control laws of the countries in which the products are delivered or in which they are used. The same applies to import regulations. According to the import / export regulations listed above, the products may not be delivered or licensed in particular to defined users, in defined countries or for defined uses. The customer commits to comply with these provisions.

Place of performance and applicable law

  1. The seat of the TES is the place of performance for deliveries and for services.
  2. All written communications to the TES, provided for in these GTC, need to be sent directly the headquarters of the TES.
  3. In the event of any dispute arising out of or on relation to contractual relationship between the parties, the courts competent at the seat of the TES have jurisdiction and venue. The TES does, however, also have the right to bring an action against the customer at the courts with jurisdiction over the customer.

Final provisions

  1. For all legal relations between the TES and the customer, only German law under exclusion of the UN Sales Convention applies.
  2. Should one or more provisions of these General Terms and Conditions or a provision of another agreement be or become invalid the validity of the remaining provisions or agreements shall be unaffected. The parties undertake for this case to replace the wholly or partially invalid or unenforceable provision with a valid or enforceable provision which, in the context of the agreement as a whole, comes as close as possible in equivalence to the intended economic aim in whole or in part.
  3. Changes and additional agreements require written confirmation by the TES.

Berlin, May 2014

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