1. General Provisions
(1) These General Terms and Conditions shall apply to all purchase and delivery contracts, provided or rendered by TommaTech GmbH, Angerlweg 14, 85748 Garching (Germany), (hereinafter, “TommaTech”) vis-à-vis its customers and purchasers (hereinafter, “Customers”). They shall as a general agreement also apply, as amended, to future purchase contracts and supply contracts that are concluded with the same Customer, without TommaTech being obliged to make express reference to these Conditions in each individual case; in any such case, TommaTech shall inform the Customer promptly of any amendments of the General Terms and Conditions.
(2) These General Terms and Conditions do not apply to orders by consumers.
(3) Any deviating provisions of the Customers do not apply, unless TommaTech has consented to these in writing. This requirement to grant consent shall apply in any case, for instance also when TommaTech, being aware of the General Business Conditions of the Customer, carries out the delivery to the Customer without reservations. Agreements concluded with the Customer on a case-by-case basis (including subsidiary arrangements, supplements and amendments) in any case take precedence over these General Terms and Conditions. For the contents of such agreements, a written contract or the written confirmation by TommaTech shall be authoritative. Legally relevant declarations and notifications that have to be made by the Customer vis-à-vis TommaTech after the conclusion of the contract (e.g. setting of time limits, reminders, cancellation), must be made in writing be to legally valid.
(4) The business relations between TommaTech and the Customer are subject to the laws of the Federal Republic of Germany. The validity of international uniform law, in particular UN sales law, is excluded.
(5) With regard to the place of performance and the place of jurisdiction for any and all deliveries and payments as well as for any disputes arising between the parties from the contracts concluded between them the seat of TommaTech in Garching (Germany) shall be relevant. TommaTech shall also be entitled to sue the Customer at the Customer’s place of business.
2. Conclusion of the Contract
(1) Offers of TommaTech are always subject to change without notice and non-binding. The same applies, if TommaTech has provided the Customer with catalogues, documentation (e.g. drawings, plans, calculations, and cost estimations), other product descriptions or documents – including in electronic form – to which TommaTech retains title and copyrights. Any such documents have been entrusted to the Customer solely for the purposes of the relevant offer and must not be copied or disclosed to any third parties, including excerpts thereof, without the express consent of TommaTech. This shall apply in particular to such documents which have been designated as “Confidential”; prior to their disclosure to any third parties, the Customer is obliged to obtain the express, written consent of TommaTech.
(2) A contract and any other agreements are concluded in any case only when the order is confirmed in writing or by email by TommaTech. The documents belonging to the offer, e.g. illustrations, drawings, indications of weight and measures are, unless otherwise expressly agreed upon, only approximately authoritative.
(3) After the order has been confirmed by TommaTech, the Customer is bound by its order and the Customer is able to withdraw from the respective purchase contract only in accordance with the legal provisions.
(4) The employees or other sales intermediaries of TommaTech are not entitled to make any commitments which deviate in terms of content or to give any guarantees.
3. Prices, VAT and Conditions of Payment
(1) Unless prices are agreed upon on an individual contract basis, the prices of TommaTech in force and effect at the time of conclusion of the contract apply. Prices are subject to VAT at the respective statutory rate, if VAT has to be charged.
(2) Forwarding costs, costs of transport and packaging as well as turnover tax on sales shall be borne by the Customer, unless explicitly agreed in writing.
(3) Unless otherwise agreed upon on a case-by-case basis, TommaTech’s invoices have to be paid in advance. The payment is immediately after the conclusion of the contact, payments have to be made in the currency agreed upon in the order. In the case of bank transfers from other countries, the Customer shall always bear the fees charged by the bank.
(4) Should TommaTech separately agree payment of the invoice amount by credit card with a Customer, a payment fee in an amount of 3 per cent is applicable, which has to be borne by the Customer.
(5) Should the Customer fail to pay on the due date/default in payment, TommaTech is entitled to charge default interest in an amount of 9 percentage points over the base interest rate. According to section 288 subsection 5 of German Civil Code (BGB) the Customer is obliged to reimburse TommaTech for dunning costs in an amount of EUR 40,00; these shall be counted towards any legal costs. Assertion of a further damage caused by delay is reserved.
(6) Should it become discernible after the conclusion of the contract that TommaTech’s claim to the purchase price is jeopardised by the Customer’s inability to honour its commitments, TommaTech shall be entitled, in accordance with the statutory provisions, to refuse delivery/ performance and – after setting a time limit, if appropriate – to withdraw from the contract.
(7) Any costs fees, taxes and other public charges in connection with return shipments, which are not caused by material defects and defects of title, shall be borne by the Customer.
(8) TommaTech shall always issue an invoice to the Customer, which shall be handed over to the Customer or otherwise received in text form.
4. Period of Delivery and Delay in Delivery
(1) The period of delivery is individually agreed upon or specified by TommaTech upon the acceptance of the order. Compliance with the period of delivery by TommaTech in this connection requires the performance of the contractual obligations by the Customer.
(2) The periods of delivery indicated by TommaTech, even if notified in writing, constitute only non-binding information. The expiry of certain periods does not relieve the Customer from its obligation to define an appropriate grace period for the performance of the service and the declaration that it will refuse the performance after the expiry of the deadline. This does not apply, if and to the extent that TommaTech has expressly and in writing designated a period or a deadline as a so-called „verbindlichen Liefertermin“ (binding delivery date).
(3) If TommaTech is not able to comply with binding periods for reasons beyond its control (non-availability of performance), TommaTech will inform the Customer accordingly and at the same time inform it of the expected new period. If performance is also not possible during the new period, TommaTech shall be entitled to withdraw from the contract in full or in part; any consideration by the Customer will be reimbursed promptly by TommaTech. The right of cancellation of the Customer in accordance with section 7 of these General Terms and Conditions shall remain unaffected.
(4) TommaTech shall be entitled to make reasonable partial deliveries.
(5) The occurrence of delay in performance by TommaTech is determined in accordance with the statutory provisions. In any case, however, the Customer is required to send a reminder.
5. Passing of the Risk and Dispatch
(1) When the goods are dispatched, the risk passes to the Customer as soon as TommaTech has handed over the goods to the forwarding agent, the freight carrier or to any other person or entity entrusted with performing the dispatch, namely also in the event that partial deliveries are made.
(2) If delivery is delayed due to circumstances within the control of the Customer, the risk passes to the Customer from the date of readiness for dispatch; TommaTech shall however be obliged, at the request and cost of the Customer, to effect the insurance required by the Customer.
(3) If the Customer does not require a specific mode of dispatch, TommaTech shall be entitled to choose the mode of dispatch and the dispatch route at its own discretion, without being obliged to choose the most inexpensive mode of dispatch.
6. Counterclaims, Retention of Title
(1) The Customer shall be entitled to exercise rights of setoff or rights of retention only to the extent that its counterclaim has become res judicata or is undisputed. In the event of defective delivery the counterclaims of the Customer shall remain unaffected, in particular its right to withhold a share of the price that is commensurate with such defect.
(2) TommaTech retains title to the goods until payment in full of the price. The rules and regulations specified below shall be applicable in commercial operations only: The Customer must not pledge the delivery item or transfer title to the item as security. In the event of seizure and attachment or any other orders or dispositions by third parties, it shall promptly inform TommaTech accordingly.
(3) In the event that the Customer behaves in a way which is not in conformity with the contract, in particular in the case of non-payment of the price that is due and payable, TommaTech shall be entitled to revoke the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the revocation. If the Customer does not pay the price that is due and payable, TommaTech may exercise these rights only, if TommaTech has previously granted the Customer an appropriate deadline for payment which has not been complied with, or if the setting of such deadline is unnecessary in accordance with the statutory provisions.
7. Warranty, condition of the goods and Liability for Defects
(1) As regards the rights of the Customer in the event of any material defects and defects of title (including incorrect and short delivery) the statutory provisions apply, unless otherwise provided for in the following. The special statutory provisions applying in the case of final delivery of the goods to a consumer shall remain unaffected (recourse against supplier in accordance with sect. 478, 479 BGB/ German Civil Code) in any of these cases.
(2) The liability of TommaTech for defects is primarily based on the agreement relating to the condition of the goods. The product descriptions designated as such, which have been handed to the Customer prior to the placement of its order or which have been included in the agreement in the same way as these General Terms and Conditions, are regarded as the agreement relating to the condition of the goods. Samples in this regard are regarded only as specimens of types, which shall illustrate the approximate condition of the goods. They do not give rise to any right of the Customer to demand that the delivered goods in detail correspond to this sample. TommaTech expressly reserves customary deviations or minor deviations.
(3) The claims of the Customer for defects require that it has complied with its statutory obligations to examine the goods and to make a complaint in respect of a defect immediately on receipt of the goods (sec. 377, 381 HGB/ German Commercial Code). Should any defect be detected upon examination or at a later time, this fact has to be notified promptly in writing to TommaTech. Such notification is deemed to have been made promptly, if it is made within two days, with the timely dispatch of the notification being sufficient to observe the time limit. Irrespective of this obligation to examine the goods and to make a complaint, the Customer must notify obvious defects (including incorrect delivery and short deliveries) within two days after delivery in writing, with the timely dispatch of the notification also in this case being sufficient to observe the time limit. Should the Customer fail to perform a due and proper examination and/or fail to make a complaint, TommaTech’s liability for any defect that has not been notified is excluded.
(4) In the event of justified notification of defects given within the specified deadline, TommaTech will promptly reimburse the shipping costs and remedy the defects by means of subsequent performance in accordance with sec. 439 BGB by subsequent delivery or removal of defects. TommaTech is not obliged to make subsequent performance, if any actions have been taken or changes made to the goods without the consent of TommaTech, unless the Customer proves that the defect has not been caused by such actions and changes. In the event that subsequent performance is refused, fails or is unreasonable for the Customer, the Customer shall be entitled to rescind the purchase contract or to reduce the purchase price. No right of rescission applies in the case of an insignificant defect. Claims of the Customer for damages or reimbursement of expenses incurred to no avail exist only in accordance with the provisions of section 8 and are excluded in all other respects.
(5) In the event of fraudulent concealment of a defect or of assumption of a warranty for the characteristics of the object of purchase at the time the risk has passed in accordance with sec. 444 BGB (declaration by TommaTech to the effect that the object of the purchase has certain characteristics at the time at which the risk passes and that TommaTech intends to assume liability, regardless of negligence or fault, for any and all consequences of the absence of warranted characteristics) the rights of the Customer are exclusively determined by the statutory provisions.
8. Exclusion of Liability
(1) Over and above the liability for material defects and defects of title, TommaTech shall be liable without limitation, if the damage has been caused intentionally or by gross negligence. TommaTech shall also be liable for negligent violation of material contractual obligations (obligations whose violation jeopardises the attainment of the purpose of the contract) as well as for the violation of essential obligations (“Kardinalpflichten“) (obligations, whose performance will enable the due and proper performance of the contract in the first place and on whose performance the Customer as a rule relies), in each case however only for the foreseeable damage that is typical for this type of contract. TommaTech shall not be liable for the negligent violation of obligations other than those mentioned above.
(2) The limitations of liability specified in the preceding paragraphs do not apply in the case of death, bodily injury or damage to health, any deficiency occurring after the assumption of warranty for the characteristics of the product and in the case of defects that have been fraudulently concealed. Liability in accordance with the German Product Liability Act (“Produkthaftungsgesetz”) shall remain unaffected.
(3) If the liability of TommaTech is excluded or limited, this shall also apply to the per¬sonal liability of the employees, representatives and vicarious agents of TommaTech.
(4) Any and all claims for damages asserted vis-à-vis TommaTech, irrespective of their legal ground, shall be barred by the statute of limitations at the latest one year after delivery of the goods to the Customer or after his acceptance, in the event of liability in tort from the time of becoming aware of or grossly negligent ignorance of the circumstances giving rise to the claim and of the person liable for damages. The rules and regulations of this paragraph do not apply – and in that event, the statutory provisions shall apply – in the case of liability for intent and in the cases mentioned in paragraph 2. Any shorter statutory periods of limitation take precedence.
(5) If the ultimate buyer of the goods is a consumer, the statutory provisions apply to the period of limitation of any right of recourse of the Customer vis-à-vis TommaTech.
9. Intellectual Property Rights
(1) TommaTech reserves the intellectual property rights and copyrights to all products, images and other documents provided by it. The Customer may utilise any such documents only with TommaTech’s prior express written consent, without any independent rights to any such advertising materials accruing to it.
(2) The Customer undertakes and warrants that it will not violate any intellectual property rights of third parties (patents, licenses, trademarks, etc.) when selling on the goods purchased from TommaTech. The Customer is further prohibited from making and utilising own photographic materials of the products and packaging.
10. Data Protection and Data Privacy
11. Severability Clause
Should any of the provisions of these General Terms and Conditions be invalid, the validity of the other provisions shall remain unaffected thereby. The invalid provision shall be deemed to be replaced by a provision which, in a legally effective manner, comes closest in economic terms to the intent and purpose of the invalid provision. The same applies to any gaps in the provisions of these General Terms and Conditions.
Last amended: July 27, 2022