General Terms and Conditions

General Terms and Conditions

I. General

1. The following General Terms and Conditions shall apply to all purchase and delivery contracts of TommaTech GmbH, Zeppelinstrasse 14 – 85748 Garching, (hereinafter referred to as "TommaTech"), with its buyer (hereinafter referred to as "Buyer"). They shall apply as a framework agreement also for future sales and delivery contracts with the buyer without TommaTech having to refer to them again in individual cases. These General Terms and Conditions shall apply to all products sold by TommaTech to the buyer (hereinafter referred to as "Product(s)").
2. Deviating terms and conditions of the buyer only apply insofar as TommaTech has agreed to them in writing. This requirement of consent applies in any case, for example even if TommaTech carries out the delivery to the buyer without reservation in the knowledge of the buyer's general terms and conditions. Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) always take precedence over these Terms and Conditions of Sale. A written contract or written confirmation is required for the content of such agreements. Legally relevant declarations and notifications to be made by the buyer to TommaTech after the conclusion of the contract (e.g. setting of deadlines, reminders, declaration of rescission) must be made in text form to be effective.
3. The business relations between TommaTech and the Buyer shall be governed by the laws of the Federal Republic of Germany. The validity of international uniform law, in particular of the UN Sales Convention, is excluded.
4. The place of performance for all obligations arising from the contractual relationship is the registered office of TommaTech in Garching, unless otherwise agreed.

II. Conclusion of Contract

5. TommaTech's offers are always subject to change and non-binding. This shall also apply if TommaTech has provided the buyer with catalogs, documentation (e.g. drawings, plans, calculations, computations), other product descriptions or documents, also in electronic form, to which TommaTech reserves ownership rights and copyrights.
6. A contract and other agreements shall in any case only be concluded upon confirmation by TommaTech in writing or by e-mail. After confirmation of the order by TommaTech, the buyer is bound to the order and the buyer can only withdraw from the respective contract under the legal requirements.
7. The legal relationship between TommaTech and the buyer is governed solely by the written purchase contract, including these General Terms and Conditions of Sale and Delivery. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by TommaTech prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
8. Information provided by TommaTech on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. The buyer acknowledges that he is not entitled to a reduction of the purchase price due to production-related deviations.
9. The documents provided upon conclusion of the contract are only intended for the purposes of the respective offer and may not be reproduced or made accessible to third parties, not even in part, without the express consent of TommaTech. This applies in particular to documents designated as "confidential"; the buyer requires the express written consent of TommaTech before passing them on to third parties. Confidential information within the meaning of these General Terms and Conditions is deemed to be all information that is handed over or disclosed in connection with the contract by the other party and its representatives after conclusion of the contract during the entire term of the contract, including, but not limited to, business plans, strategies, financial information, patented, licensed, copyrighted and/or trademarked information and technical information relating to the design, operation and maintenance of TommaTech's products and ideas.
10. TommaTech's employees or other sales intermediaries are not authorized to make any representations or warranties that differ from the matters contained in this document.

III. Prices and Payment

11. Unless the prices are agreed in individual contracts, the current prices of TommaTech at the time the contract is concluded apply. The prices do not include the statutory value added tax.
12. The costs for packaging, customs clearance if applicable, freight, transport as well as VAT on the sale shall be borne by the buyer, unless otherwise agreed in writing.
13. Unless otherwise agreed in individual cases, TommaTech's invoices are to be paid in advance. Payment is due immediately after conclusion of the contract. Payment must be made in the currency agreed at the time of ordering. In the case of bank transfers from abroad, the buyer shall always bear the bank charges incurred.
14. If TommaTech agrees separately with the buyer to pay the invoice amount by credit card, the fees incurred will be borne by the buyer.
15. If the buyer defaults on payment, TommaTech is entitled to interest on arrears at a rate of 9 percentage points above the prime rate. In accordance with § 288 para. 5 BGB, the buyer is obliged to pay TommaTech reminder costs in the amount of EUR 40.00, which will be offset against any costs of legal action. TommaTech reserves the right to assert further claims for damages caused by default.
16. If, after conclusion of the contract, it becomes apparent that TommaTech's claim to payment of the purchase price is jeopardized by the buyer's inability to pay, TommaTech is entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline.
17. The buyer bears all costs for returns that were not caused by a defective delivery by TommaTech.
18. If a product is sold, TommaTech will issue an invoice to the buyer. Payments are only deemed to have been made when the amount is finally available in a TommaTech account.

IV. Delivery Time and Delay

19. Deadlines and dates for deliveries and services promised by TommaTech are always only approximate, unless a deadline or date has been expressly designated in writing as a "binding delivery date".
20. Compliance with the delivery period by TommaTech presupposes the fulfillment of the contractual obligations by the buyer. TommaTech may - without prejudice to its rights arising from default by the buyer - demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the buyer does not fulfill its contractual obligations to TommaTech.
21. TommaTech is not liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. epidemics/pandemics). epidemics/pandemics, operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, labor shortages, energy or raw material shortages, difficulties in obtaining official permits, official measures or the lack of, incorrect or untimely delivery by suppliers), provided that TommaTech is not responsible for them. In the event of hindrances of a temporary duration, the delivery or performance periods will be extended or the delivery or performance dates will be postponed by the period of the hindrance plus a reasonable start-up period. If such events make the delivery or service significantly more difficult or impossible for TommaTech and the hindrance is not only of a temporary nature, TommaTech is entitled to withdraw from the contract. TommaTech will immediately refund any consideration already provided by the buyer. If the delay means that the buyer can no longer accept the delivery or service, he has the right to withdraw from the contract by means of a written declaration to TommaTech.
22. The occurrence of default on the part of TommaTech is determined by the statutory provisions. In any case, however, a reminder from the buyer is required.
23. If the buyer is in default of payment or acceptance, TommaTech is entitled to demand compensation from the buyer for all damages incurred, including any additional expenses.

V. Transfer of Risk and Shipment

24. In case of shipment of the products, the risk shall pass to the buyer as soon as TommaTech has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment, even if partial deliveries are made.
25. If the shipment is delayed due to circumstances for which the buyer is responsible, the risk is transferred to the buyer from the day of readiness for shipment.
26. If the buyer does not determine the shipping method, TommaTech is entitled to choose the most favorable shipping method and the most favorable shipping route at its own discretion. If the buyer is a consumer, the risk of loss and/or deterioration of the goods passes to the buyer as soon as the goods have been handed over to the buyer or a person attributable to the buyer.

VI. Reserve of Ownership

27. The retention of title agreed below serves to secure all existing current and future claims of TommaTech against the buyer arising from the supply relationship between the contracting parties.
28. TommaTech retains ownership of the products until all claims arising from this contract have been paid in full.
29. The following provisions only apply to commercial business transactions: The buyer may neither pledge the object of purchase nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the buyer must inform TommaTech immediately.
30. If the buyer acts in breach of contract, in particular in the event of non-payment or only partial payment of the amount due, TommaTech is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the products delivered under retention of title. The prerequisite for exercising these rights is that TommaTech has set the buyer a reasonable grace period for payment, which has elapsed unsuccessfully, or that such a deadline is dispensable according to the statutory provisions.

VII. Warranty, Quality and Defect Liability

31. The statutory provisions shall apply to the buyer's rights in the event of material defects, unless otherwise stipulated below. In any case the legal regulations of Section 445a, 445b, 478 German Civil Code (BGB) remain unaffected,
32. The basis of TommaTech's liability for defects shall be, above all, the agreement reached on the quality of the products. As agreement over the condition of the commodity the product descriptions designated as such, which were left to the buyer before acceptance of the offer or in the same way as these sales conditions into the contract were included, are considered. Samples shall only be considered as type samples which are intended to illustrate the approximate quality of the products. They do not justify any claim of the buyer that the delivered products correspond to this sample in all details. TommaTech expressly reserves the right to customary or minor deviations.
33. If the buyer makes any claims for defects, the statutory duties of inspection and notification of defects as set out in Sections 377, 381 of the German Commercial Code HGB must be complied with. If a defect becomes apparent during the inspection or later, TommaTech shall be notified thereof in writing without undue delay. The notification shall be deemed to have been made without delay if it is made within 2 days of the delivery date, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to examine and to give notice of defects, Buyer shall notify TommaTech in writing of obvious defects (including wrong deliveries) within 2 days after delivery, whereby the timely dispatch of the notice shall suffice to meet the deadline. If the buyer neglects the proper examination and/or notice of defect, the liability of TommaTech for the undisclosed defect is excluded.
34. In the event of justified and timely notification of defects by the buyer, TommaTech will, at its own discretion, replace the products with defect-free ones or remedy the defects. TommaTech is not obliged to provide subsequent performance if the products have been tampered with or modified without TommaTech's consent, unless the buyer can prove that the defect was not caused by this tampering or modification. TommaTech is also not obliged to provide subsequent performance if the products sold under these General Terms and Conditions are put into operation by unauthorized installers. The buyer has no right of withdrawal in the case of minor defects.

VIII. Exclusion of Liability

35. Except for liability for defects of quality and title, TommaTech shall have liability to the extent that the cause of damage is based on intent or gross negligence. TommaTech shall also be liable for the slightly negligent breach of essential obligations (Obligations whose breach jeopardizes the achievement of the purpose of the contract) as well as for the breach of cardinal obligations (obligations which makes the proper performance of the contract possible in the first place and on the observance of which the buyer regularly relies). TommaTech is not liable for the slightly negligent breach of obligations other than those mentioned above or for consequential damages and loss of profit caused by slight negligence.
36. TommaTech is not liable for incorrect information provided by the buyer. TommaTech accepts no liability for damages resulting from the information provided. Claims for damages cannot be asserted against TommaTech in this respect.
37. TommaTech accepts no liability for products manufactured by third-party manufacturers as OEM products. Full responsibility for these OEM products lies exclusively with the respective manufacturer.
38. Insofar as TommaTech's liability is excluded or limited, this also applies to the personal liability of TommaTech's employees, representatives and vicarious agents.
39. All claims for damages against TommaTech, regardless of the legal grounds, expire at the latest one year after delivery of the products to the buyer or after acceptance of the products. The rights of the buyer under the relevant laws remain reserved.
40. TommaTech's total liability arises mainly from the contract concluded between the parties for the products to be sold, these General Terms and Conditions and any purchase contract. In any case, it does not exceed the sale price of the allegedly defective product by TommaTech to the buyer.
41. If the final purchaser of the products is a consumer, the statutory provisions shall apply to the limitation period for any recourse claim of the purchaser against the seller.

IX. Cancellation Policy & Right of Withdrawal

42. The following provisions apply only to consumers: The buyer has the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which the buyer or a third party designated by the buyer has taken possession of the products.
43. To exercise the right of withdrawal, the buyer must inform us (Zeppelinstrasse 14 Garching b. München, PLZ-85748, +49 89 1250 36 860, head@tommatech.de) by means of a clear declaration (e.g. a letter sent by post or an e-mail) of your decision to withdraw from this contract. The model withdrawal form can be used for withdrawal, but its use is not mandatory.
44. The timely dispatch of the revocation is sufficient to comply with the revocation period.
45. Consequences of withdrawal; If the Buyer withdraws from this contract, TommaTech shall immediately reimburse the Buyer for all payments TommaTech has received from the Buyer, including delivery costs (if the Buyer has paid the transportation costs) (with the exception of additional costs resulting from the Buyer choosing a delivery method other than the standard delivery offered by TommaTech).
46. For the refund, TommaTech will use the same means of payment that the buyer used for the original transaction, unless expressly agreed otherwise. TommaTech may refuse the refund until the goods have been returned in full or the buyer can prove that the goods have been shipped in full.
47. The complete return of the products must take place within fourteen days after TommaTech has been informed of the withdrawal. The deadline is met if the buyer sends the products before the end of the fourteen-day period.
48. The right of withdrawal does not apply to the following types of contracts:
    1. a. Contracts for the delivery of products that are manufactured according to the buyer's individual specifications or are clearly tailored to personal needs,
    2. b. Contracts for the delivery of sealed products if the seal has been removed after delivery.

X. Industrial Property Rights

49. TommaTech reserves the industrial property rights and copyrights to all delivered products, packaging, illustrations and other documents. The use of these materials by the buyer is only permitted with the prior express written consent of TommaTech, whereby the buyer is not granted any independent rights to the materials.
50. The buyer undertakes not to infringe any third-party property rights (patents, licenses, trademarks, etc.) when reselling the products purchased from TommaTech. The buyer is also prohibited from creating and using his own images of the products and packaging.

XI. Data Protection

51. TommaTech is entitled to collect the relevant data electronically and use it for further processing purposes in the course of processing orders, inquiries and offers submitted by buyers or by third parties on their behalf. In addition, TommaTech is entitled to pass this data on to third parties, in particular to credit institutions and contractual partners involved in order processing. The statutory provisions will be observed. Details can be found in TommaTech's privacy policy.

XII. Severability Clause

52. Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by a provision that comes as close as possible to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to any loopholes.

XIII. Other Terms and Conditions

53. These General Terms and Conditions are available in three equivalent original versions in English, German and Turkish. In the event of any inconsistencies between the German, English and Turkish versions, the German version shall prevail.
54. The place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Munich Local Court. However, TommaTech reserves the right to take legal action at any other legal place of jurisdiction.

Last amended: 27.03.2024