1. The following standard terms and conditions of delivery and service of the company THOMAS SYS TECH GmbH shall be applicable to any deliveries and services of THOMAS toward companies in the meaning of § 14 BGB [German Civil Code], legal entities under public law, or public‐law special funds. Any – including future – legal relationships between THOMAS and the Ordering Party shall be subject to standard terms and conditions of sale of THOMAS, each as amended. Any deviating terms and conditions of business of Ordering Party shall not become content of contracts, not even when accepting an order.
2. Provided individual agreements have been closed, those shall prevail. They shall be amended by the present standard terms and conditions of delivery and service where no more specific regulations have been agreed upon.
3. Any declarations or notifications of customer toward THOMAS, e.g. fixing of time‐limits, notification of defects, declaration of withdrawal or reduction, shall only be valid and effective, if they are made in writing.
1. Any offers are always subject to change, provided they are not limited in time.
2. Any records and documents associated with an offer, such as images, descriptions and drawings, measurements and weights, shall only be considered estimates, provided they have not been expressly described as binding.
3. THOMAS shall reserve any property rights and copyrights relating to cost estimates, drawings, samples and other records, both tangible and intangible – also in electronic form – they shall not be made available to or disclosed towards any third party without consent of THOMAS, and returned immediately upon request. THOMAS shall agree to disclose toward any third party information and records of Ordering Party labelled as confidential only with consent of Ordering Party.
4. A contract shall be considered closed – for lack of specific agreement – upon confirmation of an order by THOMAS in text form. For contents of contract such order confirmation, in connection with a product specification agreed with THOMAS, if applicable, shall be authoritative.
1. Delivery term shall commence upon date of order confirmation, however, not prior to agreement on and clarification of any necessary technical issues and records. Compliance with delivery term on part of THOMAS requires that Ordering Party has fulfilled any relevant obligations, such as obtaining of any records, approvals and releases, or making advance payments. If such is not the case, delivery term shall be extended accordingly. This shall not apply if THOMAS is responsible for a delay.
2. Compliance with delivery terms shall be subject to the condition that correct and timely self‐delivery has occurred. THOMAS shall notify any foreseeable delays as soon as possible.
3. Delivery term shall be considered kept if the goods to be delivered have left premises of THOMAS prior to expiry, or if the other party was informed of readiness for shipment. In the event acceptance has to take place, the date of acceptance shall be authoritative –except in cases of justified refusal to accept – or alternatively notification of readiness for acceptance.
4. In the event shipment or acceptance of an item to be delivered shall be delayed for reasons the Ordering Party is responsible for, any expenses of such delay, in particular storage costs, shall be invoiced to Ordering Party starting from the month after notification of readiness for shipment/acceptance. In case of storage at premises of THOMAS, THOMAS may invoice 0.1 of one hundred of the invoice amount per commenced month, however, 10 % of the contractual value of items to be delivered, but not accepted at a maximum. Ordering Party shall be entitled to claim and prove toward THOMAS that they incurred lower storage costs. THOMAS shall be entitled to dispose of the items to be delivered after fruitless expiry of an appropriate time‐limit, and to deliver to Ordering Party within a reasonably extended delivery term. Any further claims, in particular rights under § § 293 et seq (304) BGB shall remain unaffected in favour of THOMAS while taking into account any performances and services of Ordering Party. The same applies relating to Ordering Party’s rights under §§ 280 et seq BGB, and relating to claim for performance.
5. Compliance with delivery terms requires fulfilment of contractual obligations on part of Ordering Party.
6. Ordering Party may withdraw from contract without having to set a time‐limit if THOMAS is definitely unable to render the entire services prior to transfer of risks. Furthermore, Ordering Party may withdraw from contract, if a share of rendering of services/delivery becomes impossible, and if Ordering Party has a justified interest in refusing partial delivery. If such is not the case, Ordering Party shall pay the purchase price allocated to such partial delivery. The same applies in case of inability on part of THOMAS. In the event impossibility or inability occur during delay in acceptance, or if Ordering Party is responsible for these circumstances, Ordering Party shall be obligated to perform.
7. If Ordering Party refuses acceptance of contractual goods, delivery or services in an unauthorized manner, THOMAS may fix a reasonable time‐limit for acceptance. In the event Ordering Party did not accept contractual goods within the fixed time‐limit, THOMAS shall be entitled to withdraw from contract, or claim damages for non‐fulfilment, regardless of its right to claim performance. In any case, in such case THOMAS may claim lump‐sum damages of an amount of 25 % of net contractual value relating to non‐accepted standard goods, and of an amount of 100 % relating to specially manufactured goods which cannot be utilized otherwise, without proof of actually incurred damage, and regardless of the opportunity to claim higher actual damage. Ordering Party shall be free to claim and prove lower actual damage incurred by THOMAS.
1. Risk shall be transferred upon Ordering Party when the goods to be delivered have left the plant, even if delivery is being made in form of partial deliveries, or if THOMAS has taken on other services, e.g. shipment costs, or delivery and installation. To the extent acceptance needs to be conducted, it shall be authoritative for transfer of risks. It shall be conducted immediately on the date of acceptance, alternatively after notification by THOMAS of readiness for acceptance. Ordering Party shall not be allowed to refuse acceptance in case of occurrence of a defect which is not material. Shipped goods shall be insured by THOMAS at Ordering Party’s expense against transportation damage, and upon request of Ordering Party at its own expense against any other insurable risks.
2. In the event shipment or acceptance are delayed, or do not occur due to circumstances THOMAS is not responsible for, risk shall be transferred upon Ordering Party on the date of notification of readiness for shipment or acceptance, respectively. THOMAS shall agree to provide for insurance cover at Ordering Party’s expense as requested by Ordering Party.
3. Partial deliveries shall be allowed as far as they are fair and reasonable for Ordering Party.
1. THOMAS shall offer warranty for defects of goods according to its own choice either in form of subsequent improvement, or substitute delivery. Replaced parts shall become property of THOMAS.
2. For conduct of any subsequent improvements and substitute deliveries deemed necessary by THOMAS, Ordering Party shall grant reasonable time and opportunity after mutual understanding with THOMAS. Only in urgent cases, e.g. danger for operational safety or defence against unproportionally great damage – in which case THOMAS must be notified immediately – Ordering Party shall be entitled to remedy a defect itself or through any third party, and may claim reimbursement of necessary expenses from THOMAS. If claims are being made toward THOMAS by Ordering Party by way of recourse, after Ordering Party itself has been claimed by its customers due to defects, § 445a BGB shall apply to any legal claims.
3. Relating to costs incurred for subsequent improvement or substitute delivery, THOMAS shall bear costs of spare parts or subsequent improvement of a defective component, as well as costs for installation and removal and transportation and disposal, provided claim for remedy was justified. There shall be no basis for a claim for removal and installation expenses pursuant to § 439 (3) sentence 1 BGB toward THOMAS, if Ordering Party either installed the defective item itself, in spite of being aware of the defect, or had the defective item installed by any third party. The same applies, if Ordering Party was unaware of the defect prior to or during installation of such item due to gross negligence. In such case, Ordering Party may only lodge claims if and to the extent THOMAS maliciously concealed a defect, or accepted guaranty relating to nature and quality of an item which is defective. In any case, THOMAS has a choice as to conduct removal and installation works plus disposal itself, or to reimburse reasonable expenses, provided, Ordering Party does not claim prevailing protective interest in conducting removal and installation works itself, or have them conducted by any third‐party company commissioned by Ordering Party.When assessing whether expenditures – in particular for transport – are reasonable, the contractually agreed or foreseeable place of performance shall be taken into consideration. If Ordering Party has unforeseeably conducted relevant installation works of goods delivered by THOMAS at a remote place, THOMAS shall only be obligated to reimburse expenses which would have incurred had installation works been conducted at the contractually agreed place of performance, or at a foreseeable place of installation.
4. Ordering Party shall be entitled to withdraw from contract within the boundaries of statutory provisions, if THOMAS – taking into account statutory exceptions – let fruitlessly expire a reasonable time‐limit set toward THOMAS for subsequent improvement or substitute delivery due to defect. If it is merely about a non‐material defect, Ordering Party shall only be entitled to reduce the contractual price.
5. No warranty is granted, in particular in the following cases:
a) Assembly or commissioning by staff that has not been certified by manufacturer. Unsuitable or improper use, defective assembly or commissioning on part ofOrdering Party, or any third party, usual wear and tear, defective or negligent treatment, non‐compliant maintenance, unsuitable production equipment and facilities, defective construction works, unsuitable construction foundation, chemical, electrochemical, or electrical influences, provided THOMAS is not responsible for it.
b) Improper subsequent improvement of contractual item on part of Ordering Party, or any third party commissioned by it. Any warranty claims and rights shall remain with Ordering Party if it is able to prove that the circumstances set forth above have not been the cause for the incurred damage.
c) Conduct of maintenance by staff that has not been certified by manufacturer. In case of non‐compliance with maintenance periods stipulated by manufacturer (at least once per year).
d) Use of spare parts which have not been approved by and bought from manufacturer THOMAS.
6. Prerequisite for assertion of warranty claims is furthermore that Ordering Party has properly exercised its obligations to inspect and notify defects under § 377 HGB [German Commercial Code].
7. If Ordering Party chooses withdrawal from contract due to legal defect and/or defect as to quality after failed subsequent improvement, it shall not be entitled to additionally claim damages due to this defect. If Ordering Party chooses damages after failed subsequent improvement, goods shall remain at Ordering Party’s site, if this is reasonable for them. Damages shall then be limited to the balance between purchase price and the value of the defective good. This shall not apply if THOMAS maliciously caused this breach of contract.
8. For assessment of nature and quality of goods shall only basically be used the precise product description of manufacturer contained in the contract. Public statements, praise, or advertisements of manufacturer or any third party shall not be considered as contractually agreed information on quality of goods.
9. In the event Ordering Part receives incorrect assembly instructions, THOMAS shall only be obligated to deliver correct assembly instructions, and even this only in case the error in assembly instructions is in the way of proper assembly. In case of assembly problems which are due to incorrect assembly instructions, Ordering Party shall contact THOMAS by telephone which shall be available during usual and known opening hours as a consultant.
10. Guarantees in the legal sense shall not be granted to Ordering Party by THOMAS as a rule. Any possible guarantees of third‐party manufacturers shall remain unaffected.
11. With respect to tradability and actual and legal operationability, THOMAS grants warranty for any use of deliveries and services in the territory of the Federal Republic of Germany, unless deliveries and services of THOMAS are expressly meant for another country under contract. Insofar it is the sole responsibility of Ordering Party to take care that in case of intended further delivery to, or use in countries outside the Federal Republic of Germany, any relevant applicable import regulations, embargo rules, approval provisions and any other regulations for use and operation of deliveries are complied with. This shall also apply to compliance with typical national operational requirements (e.g. voltage and frequency of power grid, compliance with safety regulations etc.). For deliveries and services within the contractual territory, Ordering Party shall be responsible that any necessary records, including documentation, are being translated into the relevant language.
12. In case of used goods, liability of THOMAS for defects shall be excluded, except for cases under item VII 2.
13. Warranty period shall be 1 year starting from delivery/acceptance of goods/services, except for claims under the Product Liability Act for which statutory periods shall apply. In the event of defects of a building, or defects of goods which are typically used for a building, which cause defectiveness of this building, warranty period shall be 2 years. If Ordering Party is in default with acceptance of goods/works, warranty period shall commence at the time when THOMAS offered the goods/works to Ordering Party in an acceptable manner. Upon substitute delivery only warranty period relating to spare part delivery shall commence, not for the other defect free components.
14. In case of warranty claims for defects asserted by Ordering Party through recourse pursuant to § 445a BGB toward THOMAS, period of limitation of § 445b BGB shallbe applicable without limitation.
15. THOMAS shall be entitled to deliver to Ordering Party spare parts of same quality instead of original spare parts, if original spare parts cannot be delivered any longer. This shall in particular apply in case the production of contractual goods has been discontinued.
(VI) Liability
1. THOMAS shall only be liable – regardless for what legal reason – for wilful acts and gross negligence. In case of simple negligence, THOMAS shall only be liable
a) for damage resulting from injuries to life, limb or health;
b) for damage resulting from violation of a material contractual obligation, limited to compensation of foreseeable, typical damage. Material contractual obligations are obligations the fulfilment of which make implementation of the contract possible in the first place, and in compliance with which Ordering Party trusts and is entitled to trust.
2. The foregoing limitations of liability shall not apply to the extent THOMAS maliciously concealed a defect, or has accepted guarantee for nature and quality of goods. Also, liability of THOMAS under the Product Liability Act shall remain unaffected.
(VII) Statute of Limitation
As far as statutory limitation for claims for defects under item VI. 13. has not already been regulated, statutory provisions of §§ 195 et seq BGB, or applicable provisions of specific laws shall apply to limitation of actions.
(VIII) Reservation of Title
1. Any deliveries and services shall be with reservation of title. Any delivered goods shall remain property of THOMAS until full payment of purchase price / fees, and any other receivables of THOMAS toward Ordering Party under the ongoing business relationship.
2. If goods are being processed or utilized by Ordering Party, processing / utilization shall be made for THOMAS which acquire ownership in any interim and finished goods as manufacturer in the meaning of § 950 BGB. In case of processing together with other goods which are not property of Ordering Party, THOMAS shall acquire co‐ownership in the new good in the proportion of the value of goods delivered by THOMAS relatingtothe value of the third‐party goods at the time of processing.
3. Ordering Party shall be revocably entitled at any time to further dispose of delivered goods and further licencing under the contract in the context of its usual business transactions. Ordering Party shall already now assign to THOMAS as security any receivables associated with further disposal and business relations to its customers, including any additional rights, in the amount of the value of delivered goods. THOMAS shall be authorized to inform customers of Ordering Party at any time of this assignment of claims.Ordering Party shall notify THOMAS immediately upon request of any names and addresses of customers.
4. Ordering Party agrees to insure delivered goods at its own expense against theft, damage, fire, water and other insurable damage for as long as THOMAS is conditional owner of title with regard to delivered goods, and shall present respective proof toward THOMAS upon request.
5. Ordering Party must neither pledge nor transfer delivered items as security. In case of levy of execution, or confiscation, or other disposal by any third party, Ordering Party shall immediately notify THOMAS. Should THOMAS incur any damage due to lack of notification, or delayed information (e.g. through loss of rights), Ordering Party shall be liable to pay compensation.
6. In case of breach of contract on part of Ordering Party, in particular delayed payment, THOMAS shall be entitled to take back goods after sending a reminder, and Ordering Party agrees to hand over goods.
7. Assertion of reservation of title as well as levy of execution relating to delivered goods by THOMAS shall not be considered as withdrawal from contract, provided regulations on consumer loan agreements (§§ 491 ‐ 498 BGB) are not applicable.
8. THOMAS agrees to release any securities they are entitled to upon request of Ordering Party insofar as the realizable value of a security exceeds relevant receivables by more than 20 %. Choice of securities to be released is up to THOMAS.
(IX) Proprietary Rights, Copyrights, Secrecy
1. Any rights relating to patents, utility models and registered designs, trademarks, equipment and other protective rights as well as copyrights relating to the contractual goods and services shall remain with the owners of these rights. This shall, inparticular, apply to product descriptions, software, and name and labelling rights.
2. Contractual parties agree to treat as business secrets any not generally known commercial and technical details which become known to them in the course of the business relation.
3. Drawings, tools, software, forms, appliances, models, pattern designs, samples and similar items which have been delivered, used or provided by or to THOMAS, shall be and remain property of THOMAS. They shall not be made available to or disclosed toward unauthorized third parties. If these aforesaid items are manufactured for THOMAS, they shall be property of THOMAS already upon preparation and manufacture, respectively. Reproduction of these items shall only be permitted in the context of operational requirements and under patent law, labelling law, copyright and competition law.
4. Any contractual partners of Ordering Party shall be bound by according terms and conditions.
5. Ordering Party shall only be allowed to inform of its business relation with THOMAS after prior written consent.
(X) Contradicting Third‐Party Rights
1. In the event claims are being asserted by any third party toward Ordering Party for direct violation of proprietary rights, including copyrights, basing on deliveries and/or services provided by THOMAS, THOMAS shall indemnify Ordering Party against any such claims for damages relating to claims recognized by court, or determined in court settlements, as well as regarding court fees and legal expenses; however, with the following conditions:
a) Ordering Party immediately notifies THOMAS of such claims or warnings given by any third party without having priorily initiated any steps for defence and/or having used a lawyer. Excluded shall be any instant measures which needed to be initiated before THOMAS could be notified.
b) Only THOMAS shall be authorized to initiate defence measures and commission lawyers to initiate defence measures, and/or make declarations, and/or conduct negotiations. Upon request of THOMAS, Ordering Party shall commission a lawyer for defence at THOMAS‘ expense.
c) Ordering Party immediately notifies THOMAS and keeps them updated with regard to this matter, and in particular provides any necessary information and records.
(XI) Data Security
THOMAS collects, processes and uses personal data of contractors in compliance with applicable data privacy provisions. Consequently, personal data of contractor shall only be used with statutory approval, or after consent has been obtained.
(XII) Place of Performance and Place of Jurisdiction
Place of performance and place of jurisdiction relating to any claims resulting from business relations, in particular deliveries to Ordering Party, shall be D‐37308 Heilbad Heiligenstadt, even if sales or deliveries have been conducted by one of the company’s branches. This place of jurisdiction shall also be applicable to disputes regarding creation and validity of this contractual relationship. Furthermore, THOMAS may also file a lawsuit at the business seat of Ordering Party, or in any other statutorily competent court. Exclusively the laws of the Federal Republic of Germany shall apply, with exclusion of the UN law on sale of goods (CISG).
(XIII) Severability
1. Should one or more than one provision of the present terms and conditions be or become invalid, the validity of the remaining clauses shall remain unaffected.
2. Instead of an invalid provision, statutory provisions shall be applicable. The same shall apply accordingly in case of unintended legal gaps.
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