General Delivery and Payment Terms and Conditions (GTCs) of TECTUS Technology GmbH
1. The terms and conditions set out below apply to all contracts concluded between the Buyer and ourselves relating to the delivery and/or provision of goods, software and/or other services. They also apply to all future business relationships even if they are not expressly agreed again. Any differing terms of the Buyer that we do not explicitly recognise are not binding for us, even if we do not expressly contradict them. The following conditions of sale shall also apply if we carry out the Buyer’s order without reservation in the knowledge of a Buyer’s adverse or deviating terms and conditions.
2. The contracts set out in writing all agreements that were made between the Buyer and ourselves for the execution of the contracts of sale. All ancillary agreements, supplements and amendments shall be valid only if these were agreed in writing.
3. Individual agreements that are made between the Contracting Parties on an individual basis (including ancillary agreements, supplements and amendments) shall take priority over these General Terms and Conditions in any case.
4. Our offers are intended for commercial customers only. We do not supply consumers within the meaning of Section 13 German Civil Code.
5. The German text of the GTCs is authoritative. In the event of discrepancies between the German text and the foreign-language text, the German text shall take priority.
II. Offer and Conclusion of Contract
1. We can accept a purchase order from the Buyer that is to be qualified as an offer for the conclusion of a contract of sale within two weeks by sending an order confirmation or by sending the products ordered within the same time period.
2. Our offers are provisional and non-binding unless we have expressly designated them as binding. A contract is concluded only when delivery is executed or services are provided, or when we confirm the order in writing. If no contradictions to our order confirmation are received within five working days, our GTCs shall apply and our order confirmation shall be deemed to be accepted. Subsequent objection is excluded.
3. We shall retain our property, copyright and other intellectual property rights to all images, calculations and drawings as well as to software and other documents. The Buyer may forward these to third parties only with our written consent regardless of whether we have designated these as confidential. We shall grant the customer a non-transferable right of use to software and corresponding documentation that is provided to our customer. Our customer may not make the software and associated documentation available to third parties, neither in its original form nor in the form of complete copies or extracts.
III. Pricing and Terms of Payment
1. Our prices are ex works excluding packaging unless agreed otherwise in the order confirmation. Our prices do not include statutory value added tax. This is stated separately in the statutory amount on the day when the invoice is issued.
2. The terms of payment with our customers are made in consultation with our credit insurance. Unless specified otherwise in our order confirmation, the purchase price is due for payment without deductions within 30 days of the invoice date. After the order confirmation and before delivery, if we become aware of circumstances leading to the Buyer having a negative credit rating, we reserve the right to modify and to change our confirmed payment terms to meet the new circumstances.
3. In the case of delivery against advance payment, the agreed purchase price shall become due for payment within 10 days from the date of invoice. If the customer should fall into arrears with the advance payment, we are entitled to withdraw from the contract and to claim compensation for expenses and damages in the amount of 15% of the net order value, but at least €500. In this case, no right to a refund of advance payments exists.
4. For customer-specific products or for special production orders, an advance payment is due within 10 days pursuant to the offer. If the Customer should fall into arrears with the advance payment, we are entitled to withdraw from the contract and to be reimbursed for expenses in the amount of 15% of the net order value, but at least €500.
5. A payment is deemed to have been made once the amount is at our disposal. In the case of payments by cheque, the payment is deemed to have been made once the cheque has cleared.
6. Statutory regulations shall apply in the event of default of payment. Furthermore, we are entitled to charge interest on arrears in the amount of at least 7.0% p.a. above the above the base interest rate.
7. The Buyer is entitled to exercise a set-off, even if complaints or counterclaims have been asserted, only if the counterclaims have been legally established, recognised by us, or are undisputable. The Buyer is entitled to exercise a right of retention only if its counterclaim is based on the same contractual relationship.
IV. Delivery and Performance
1. Delivery dates or periods that have not been expressly agreed and confirmed as binding are deemed to be exclusively non-binding information. The delivery time specified by us shall not begin until all technical issues have been clarified. Similarly, the Buyer has to fulfil all of its obligations properly and in good time.
2. If the underlying contract of sale is a fixed date transaction within the meaning of Section 286 Par. 2 No. 4 German Civil Code or of Section 376 German Commercial Code, we shall be liable in accordance with statutory regulations. The same shall apply if the Buyer is entitled to assert its lack of interest in the further fulfilment of the contract as a result of a delay in delivery for which we are responsible. In this case, our liability shall be limited to the foreseeable damage that typically occurs if the delivery delay is not due to an intentional breach of contract by us, whereby any fault of our representatives or vicarious agents shall be deemed to be attributable to us.
Similarly, we shall be liable to the Buyer under statutory regulations in the event of a delay in delivery if this is due to an intentional or negligent breach of contract by us, whereby any fault of our representatives or vicarious agents shall be deemed to be attributable to us. In this case, our liability shall be limited to the foreseeable damage that typically occurs if the delivery delay is not due to intentional breach of contract by us.
3. In the event that a delay in delivery for which we are responsible is based on culpable violation of an essential contractual obligation, whereby any fault of our representatives or vicarious agents shall be deemed to be attributable to us, we shall be liable in accordance with the applicable statutory regulations provided that in this case, the liability for compensation is limited to the foreseeable damage that typically occurs.
4. Otherwise, in the event of a delay in delivery for which we are responsible, the Buyer can claim payment of a flat-rate compensation in the amount of 3% of the delivery value, but no more than a maximum of 15% of the delivery value, for each full week of delay.
5. All further liability for a delay in delivery for which we are responsible is excluded. The foregoing is without prejudice to the Buyer’s other statutory claims and rights to which it is entitled, in addition to the claim for damages due to a delay in delivery that is attributable to us.
6. We are entitled to partial deliveries and to provide partial performance of services if this is acceptable for the customer. Furthermore, we are entitled to deviate slightly from the agreed delivery quantity due to production or technical issues, but up to a maximum of five per cent of the ordered quantity.
7. If the Buyer is in default of acceptance, we are entitled to demand compensation for the ensuing damage and for any additional expenditure. The same shall apply if the Buyer culpably breaches its obligations to cooperate. In the event of a default of acceptance or a debtor’s default, the risk of the accidental deterioration and accidental loss of the goods is transferred to the Buyer.
V. Transfer of Risk, Shipping, Packaging
1. The goods are loaded and shipped uninsured at the Buyer’s risk. We will endeavour to take into consideration the Buyer’s requests and interests regarding the mode of transport and transport route; additional costs caused thereby – even when delivery is arranged carriage paid – shall be at the expense of the Buyer.
2. We do not take back transportation or any other packaging under the terms of the Packaging Ordinance. The Buyer is responsible for the disposal of the packaging at its own expense.
3. If the dispatch is delayed, either because this was requested by, or at the fault of the Buyer, we shall store the goods at the Buyer’s cost and risk. In this case, the notification of readiness for shipment is the same as the shipment.
4. At the Buyer’s request and cost, we will take out transport insurance to cover the delivery.
VI. Material Defects and Defects of Title, Liability
1. Claims for defects asserted by the Buyer shall exist only if the Buyer has duly complied with its inspection and complaint obligations owed pursuant to Section 377 of the German Commercial Code.
2. In the event of justified complaints and excluding the rights of the Buyer, we are entitled to withdraw from the contract or to reduce the purchase price (reduction), to supply a replacement or to repair the defect (subsequent performance). Without delay, the Customer shall grant us the opportunity to convince ourselves of the defect and to make the goods that are the subject of the complaint, or samples thereof, available to us. Otherwise, no claims can be made on the basis of defects.
3. In the event of subsequent performance, the Buyer shall grant us an appropriate grace period to provide the subsequent performance. In the event of a rectification of a defect, we shall bear the necessary costs provided that these do not increase because the contractual item is located at a place other than the place of performance. If the subsequent performance has failed, the Buyer may, at its option, request a reduction in the purchase price (reduction) or declare its withdrawal from the contract. The subsequent performance shall be deemed to have failed with the second futile attempt, unless further attempts are appropriate and reasonable to the Buyer in view of the nature of the goods. The Buyer cannot assert claims for damages due to the defect and subject to the following conditions until the subsequent performance has failed. The Buyer’s right to assert further claims for damages subject to the following conditions shall remain unaffected by this.
4. The Buyer’s warranty claims shall lapse one year after the delivery of the goods to the Buyer, unless we have fraudulently concealed the defect; in this case, the statutory regulations apply.
5. Irrespective of the following limitations of liability pursuant to the statutory provisions, we shall be liable for damage to life, limb and health that is based on a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage that is covered by the German Product Liability Act.
6. Any further liability shall be excluded, regardless of the legal nature of the asserted claim. If our liability is excluded or limited, this shall also apply to the personal liability of our staff members, contractors, employees, representatives and vicarious agents.
7. Claims for damages by the Buyer due to a defect shall lapse one year from the delivery of the goods. This shall not apply in the event of any damage to life, limb or health caused by ourselves, our legal representatives or vicarious agents, or if we or our legal representatives have acted with intent or gross negligence, or if our simple vicarious agents have acted intentionally.
VII. Retention of Title
1. Until all of the receivables to which we are entitled from the Buyer have been paid, either now or in the future, the goods supplied (retained goods) shall remain our property. In the event that the Buyer is in breach of contract e.g. default of payment, we have the right to take back the retained goods after first setting an appropriate grace period. If we take back the retained goods, this constitutes a rescission from the contract. If we repossess the retained goods, this constitutes a rescission from the contract. We are entitled to utilise the retained goods after taking them back. After the deduction of an appropriate amount for the utilisation costs, the utilisation proceeds are to be set off with the amounts owed to us by the Buyer.
2. The Buyer shall take care of the retained goods and insure these sufficiently, at its own cost, against damage by fire, water and theft at replacement value. Maintenance and inspection work that is necessary shall be performed in good time by the Buyer at its own cost.
3. The Buyer is entitled to sell and/or to utilise the retained goods in the ordinary course of business, provided it is not in default of payment. Pledges and transfers of security are not permitted. The Buyer shall now assign to us all receivables arising from the resale or any other legal grounds (insurance, inadmissible act) with regard to the retained goods; we hereby accept the assignment. Subject to revocation, we hereby entitle the Buyer to collect the claims assigned to us for the Buyer’s account and on the Buyer’s own behalf. This authorization to collect may be revoked at any time if the Buyer does not properly meet its financial obligations.
4. Any processing or alteration of the retained goods by the Buyer shall in all cases be deemed to be carried out on our behalf. If the retained goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the retained goods (final invoice amount including value added tax) to the other processed items at the time of processing. The same conditions apply to the new item arising from the processing as to the retained goods. In the event that the retained goods should be inextricably linked with other items not belonging to us, we shall acquire co-ownership rights of the new item in the ratio of the value of the retained goods (final invoice amount including value added tax) to the other linked items at the time when they became linked. If the Buyer’s item is considered the main item as a result of this linking, then we and the Buyer agree that the Buyer shall proportionally transfer co-ownership of this item to us; we herewith accept the transfer. The Buyer shall keep our sole or co-ownership arising from this in safe custody for us.
5. If third parties access the retained goods, particularly in the case of pledging, the Buyer shall draw attention to our ownership and immediately notify us so that we can assert our right of ownership. If the third party is not able to reimburse us for the legal or out of court costs arising in this connection, then the Buyer shall be liable for these.
6. We are bound to release the securities to which we are entitled as far as the realisable value of our securities exceeds the receivables to be secured by more than 10%, the securities released shall be at our discretion.
VIII. Place of Performance, Place of Jurisdiction, Applicable Law
1. The place of performance and place of jurisdiction for all deliveries and payments and all disputes arising between ourselves and the Buyer from the contracts of sale concluded between us and the Buyer shall be our company headquarters. However, we are also entitled to sue the Buyer at its residential address and/or place of business.
2. The relationships between the Contracting Parties are subject exclusively to the laws of the Federal Republic of Germany. The application of the United Nations Sales Convention shall be excluded.
Bergisch Gladbach 1st May, 2022