I.1. Our General Terms and Conditions of Sale shall apply exclusively. Contradictory terms or customer terms that deviate from our Terms and Conditions of Sale shall not be acknowledged, unless we expressly agree to their application in writing. Our General Terms and Conditions of Sale shall also apply if we make delivery to the customer without reservation in knowledge of contradictory terms or customer terms that deviate from our Terms and Conditions of Sale.
I.2. Any agreements concluded between TAMPOPRINT and the customer for the execution of an agreement that contradict, supplement or deviate from these General Terms and Conditions of Sale must be put into writing in the contract. This also applies to the waiver of this written form requirement.
I.3. Our General Terms and Conditions of Sale apply only in respect of entrepreneurs exercising their commercial or self-employed professional activities and in respect of legal entities under public law.
I.4. Rights going beyond these General Terms and Conditions of Sale to which TAMPOPRINT is entitled pursuant to the statutory provisions or under other agreements remain unaffected.
II. Registration and Data Protection
II.1. By registering to use our online shop at www.shop.tampoprint.de, customers can find out about our products and request a quote for the products presented there. The conclusion of contracts for the supply of goods by way of an online order is conditional upon the customer having registered on our website with the data requested there and agreeing to these General Terms and Conditions. Only legal entities, partnerships and individuals with unlimited legal capacity acting within the scope of their commercial or self-employed professional activity, are eligible to register as users. There is no right to registration. Upon registering through the registration form on our website, the customer receives a password which must then be changed when first logging in. The customer must keep the password secret and is not permitted to disclose it to third parties. Customers are permitted to share the password with their employees for business purposes.
II.2. With the exception of the obligations set forth in the foregoing point Il. 1. registering as a customer on our website does not entail any obligation and is free of charge for the customer. The customer can have their registration deleted again at any time. Amendments can be made online via the registration forms provided on our website.
II.3. The personal information provided by the customer in the course of the registration in accordance with point Il. 1. and 2. shall be used by us exclusively for the purposes of executing the contracts concluded between ourselves and the customer concerning the supply of goods and in compliance with the applicable provisions of data protection law. Any further use going above and beyond this for the purposes of advertising, market research, or for the provision of tailored offerings is subject to the customer’s express consent. The customer has the option to grant such consent prior to placing an order for goods but may withdraw it again at any time. Further information concerning the use of personal information is set forth in our data protection policy.
III. Offer and Conclusion of Contract
III.1. Our offers are always subject to alteration and non-binding. Details provided prior to the order placement within the scope of the offer, in particular details relating to performance specifications and other individual details, constitute binding agreements only if they have been stated and confirmed by us, in writing, in the order confirmation.
III.2. We reserve all ownership, copyright and other intellectual property rights in offer documentation, diagrams, drawings, calculations and other documents. This also applies to written documentation marked “confidential”. The customer requires our express written consent before forwarding such documentation to third parties.
III.3. We reserve the right to make non-material alterations to construction and form, provided the delivery item is not altered in a way that is unbearable for the customer and/or the changes are attributable to technical developments or equipment modifications by us or by our suppliers. We reserve the right to make non-material changes compared to any samples and materials supplied.
III.4. To place an order through the TAMPOPRINT online shop, the customer can select TAMPOPRINT products and place them in their “shopping cart”. The customer places a binding order by clicking on the “buy now” button at the end of the order process in the shopping cart page. Any data entered, and the contents of the shopping cart can be amended at any time before clicking on the “buy now” button and the order process can be terminated by leaving the online shop. The contract is stored by TAMPOPRINT upon placement of an order. The customer is not, however, able to access this. After placing an order, the customer shall receive an acknowledgement of receipt of the order. This does not constitute acceptance of the offer and merely serves to notify the customer that the order has been received.
III.5. An order becomes binding only once it has been confirmed by TAMPOPRINT by written order confirmation within two weeks or if TAMPOPRINT fulfils the order, in particular if it fulfils the order by delivering the products. An order confirmation issued by an automated system without a signature or name shall be deemed to be in writing. Order confirmations containing obvious errors, typing errors or miscalculations shall not be binding for TAMPOPRINT.
III.6. TAMPOPRINT’s silence in response to offers, orders, requests or other declarations by the customer shall be construed as consent only if this has been agreed upon in advance and in writing.
III.7. If the customer’s financial situation deteriorates significantly or if a legitimate application for the initiation of insolvency proceedings or comparable proceedings is refused due to lack of assets, TAMPOPRINT shall be entitled to withdraw from the agreement, in whole or in part.
III.8. Images, drawings, statements as to weight, measurements, performance and consumption indications, as well as other descriptions of the products contained in the documents that form part of the offer, are intended as an approximate guide only, unless they have been explicitly stated as binding. Such information does not constitute an agreement on or guarantee of corresponding condition or durability of the products unless this has been expressly agreed in writing. Customer expectations with regard to the products or the use thereof do not constitute an agreement or guarantee.
III.9. The customer is aware that installation plans, storage plans and drawings of the local conditions provided by them to us form the fundamental basis for our order processing, construction and manufacture. If changes prove necessary due to deviations on site, the customer must bear any resulting additional costs.
IV.1. Unless otherwise stated in the order confirmation, our prices apply “ex works”, excluding packaging, shipping, insurance, customs and other charges.
IV.2. Amendments to the specifications or adjustments to the products, amended workpiece specifications or technological processes following conclusion of the contract are subject to our written consent. We are entitled to invoice any additional costs incurred. In addition, agreed deadlines and dates shall be extended as appropriate.
IV.3. Our prices do not include VAT at the applicable statutory rate; VAT shall be stated separately in the invoice at the applicable statutory rate on the invoice date.
V. Payment Terms and Payment Deadlines
V.1. The deduction of early payment discounts is subject to special written agreement.
V.2. All payments are to be cashless in Euro by bank transfer to one of our business accounts without any deductions for expenses and charges. The customer shall bear the foreign exchange risk. Our sales representatives are not authorised to accept payments. Payment orders, bills of exchange or checks are accepted and forwarded as conditional payment on account of performance. Any expenses incurred shall be borne by the customer.
V.3. As a rule, and unless otherwise stated in the order confirmation, our invoices are payable in full within 30 calendar days from the invoice date. The following special payment terms and partial payment terms shall apply for the following products and services:
V.3.a. Services are payable immediately and without deduction from the invoice date.
V.3.b. Consumer goods (replacement parts, accessories, printing plates, ink, pads etc.) are payable within ten days from the invoice date.
V.3.c. For custom machinery 30% of the order value is due upon confirmation of the order, 30% of the order value upon approval of the construction, 30% of the order value following acceptance (Section XI.5.) by the customer at our premises and a test run at our premises prior to dispatch, in each case due immediately, and 10% of the order value no later than 14 days from dispatch. In the case of contractually agreed upon commissioning by TAMPOPRINT, the last partial payment is due following commissioning but no later than 14 days from dispatch.
V.4. If the customer is in default of acceptance (Section IX.4.) the residual amount in each case becomes due and payable immediately upon entry into default.
V.5. In the case of overseas transactions, in derogation from subsection 3, payment is to be made before delivery, unless otherwise agreed in writing.
V.6. If the customer is in default of payment of a due claim, we are entitled to charge default interest in the applicable statutory amount for transactions between merchants, which is currently 9% above the applicable base rate. This does not affect our right to claim any damage going above and beyond this caused by the default.
V.7. Payments received shall be set off first against any costs incurred, then against the interest, then against claims for any ancillary services and finally against the oldest purchase price/wages, unless the customer states explicitly the obligation they are paying for when remitting the payment.
V.8. The customer shall have the right to set off claims only if its counterclaims have been conclusively legally determined, are uncontested, or have been acknowledged by us. In addition, the customer is entitled to retention rights insofar as the counterclaim is based on the same contractual relationship.
VI. Transfer of Risk
VI.1. The risk of accidental loss and accidental deterioration shall pass to the customer as soon as the products are given to the party carrying out the transportation or as soon as the products leave the TAMPOPRINT warehouse for shipping. In the case of collection by the customer, the risk passes to the customer upon notification of readiness for collection. The foregoing sentence one and sentence two also apply if the delivery is made in parts or if TAMPOPRINT assumes additional services, such as costs of transportation or installation of the products at the customer’s premises.
VI.2. If the customer is in default of acceptance, TAMPOPRINT may demand compensation of the damage incurred unless the customer is not responsible for the non-acceptance of the products, as well as reimbursement of any additional expenses. TAMPOPRINT is entitled in particular to place the products into storage at the customer’s expense for the duration of the default of acceptance. The costs of the storage of the products shall be charged at a lump-sum fee of 0.5% of the net invoice value per calendar week commenced. Any further claims of TAMPOPRINT going above and beyond this remain unaffected. The customer is entitled to prove that TAMPOPRINT did not incur any costs or that such costs were lower. The same applies if the customer is in breach of other cooperation duties unless the customer is not responsible for the breach of such duties. The risk of the accidental loss or accidental deterioration of the products passes to the customer no later than at the time at which the customer enters into default of acceptance. Upon fruitless expiry of a reasonable deadline set by TAMPOPRINT, we shall be entitled to otherwise dispose of the products and to supply to the customer with a reasonably extended deadline.
VI.3. If dispatch is delayed on account of circumstances beyond the control of TAMPOPRINT, the risk shall pass to the customer upon notification of readiness for dispatch.
VI.4. Irrespective of customer’s claims for defects, the customer must accept delivered products that display non-material defects.
VII. Retention of Title
VII.1. We reserve the right of ownership of delivered goods until such time as the purchase price has been paid in full and all other payments relating to the business relationship with the customer have been received. If the customer is in breach of contract, in particular in default of payment, without prejudice to customer’s other rights, we are entitled on expiry of a reasonable additional deadline to be set by TAMPOPRINT, to withdraw from the agreement and to take back the delivered products. Having taken back such products, we are authorised to otherwise dispose of them. The proceeds of such disposal are to be deducted from the customer’s liabilities, minus any costs incurred in the disposal process.
VII.2. The customer is not entitled to resell the goods delivered by us prior to transfer of title unless they have identified themselves to us as a reseller. In the event of resale, however, the customer hereby already assigns to us all claims in the amount of the final invoice amount (including VAT) for our claim that accrue from the resale in respect of their customer or third parties, irrespective of whether the purchase item was resold without or after processing. The customer is required at any time to provide information to us and to furnish proof of resale and any claims established by such resale to the extent we are able to enforce the assigned claim. We hereby accept such assignment.
VII.3. The processing or transformation of the delivered items by the customer is always carried out on our behalf. If the delivered item is processed together with other items not owned by us, we acquire co-ownership in the new item proportionate to the value of the purchase item (final invoice amount including VAT) to the other processed items at the time of the processing. In addition, the same applies to the item created by the processing as to the items delivered subject to retention of title.
VII.4. If the purchase item is inseparably combined or mixed with other items not owned by us, we acquire co-ownership of the new item proportionate to the value of the purchase item (final invoice amount including VAT) to the other combined or mixed items at the time of the combining or mixing. If the combining or mixing is carried out such that the customer’s item is to be viewed as the main item, it is deemed agreed that the customer shall assign proportionate co-ownership to us. The customer shall keep the resulting title of sole ownership or co-ownership of the items created in this way on our behalf.
VII.5. The customer is required to handle the goods subject to retention of title with care, to store them properly and to insure them against fire, theft, water damage and vandalism at replacement value. With effect from today, customer assigns their claim to the insurance benefit in our favour in the amount of our total outstanding claim. We accept such assignment. Further claims of TAMPOPRINT remain unaffected by this. The customer is required to furnish proof of appropriate insurance against the aforementioned risks at any time on request.
VII.6. Insofar as maintenance and inspection work is necessary, the customer must carry out such measures in good time and at their own cost.
VII.7. In the case of seizures or other third-party interventions, the customer must notify us immediately and in writing so that such measures can be contested. If the third party is not able to reimburse in full the costs incurred in the course of asserting our claims subject to retention of title, whether in court (e.g., third-party proceedings pursuant to Section 771 German Code of Civil Procedure (Zivilprozessordnung, ZPO) or out-of-court, the customer shall be liable for the resulting loss uncured by us. Further claims of TAMPOPRINT shall remain unaffected by this.
VII.8. We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims they secure relating to the business relationship by more than 10%; we are free to select which securities are released.
VII.9. In the case of deliveries to other legal jurisdictions in which this retention of title clause does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants TAMPOPRINT a corresponding security right. If additional measures are required to this end, the customer shall do everything necessary in order to grant TAMPOPRINT such security right without delay. The customer shall participate in all measures which are necessary and expedient to ensure the validity and enforceability of such security rights.
VIII.1. The scope of delivery is determined exclusively by the contract or the order confirmation. Unless explicitly otherwise provided, printing ink and coloring chemicals are not included within the scope of delivery.
VIII.2. Our delivery obligation is subject to the proper and timely self-delivery to us (if applicable including installation and commissioning and optimisation) by our suppliers unless we are responsible for such non-delivery. The customer shall be notified without delay of any unavailability of the performance. In this case, any consideration rendered shall be reimbursed without delay.
VIII.3. Delivery in parts is permissible, unless delivery in parts is not reasonable for the customer, giving due consideration to the interests of TAMPOPRINT.
IX. Delivery Period
IX.1. Information relating to the delivery period is to be understood as an expected delivery period. If, as a result of force majeure or similar unavoidable events (e.g., strike, transport disruptions), we are unable to deliver on time, the agreed delivery dates or delivery periods are to be adjusted as appropriate. The customer shall be notified of this. If export of the agreed delivery becomes legally inadmissible following conclusion of the contract, this shall also be deemed to constitute a force majeure event.
IX.2. Compliance with our delivery obligation is furthermore conditional upon the timely and proper fulfilment of the customer’s obligations. We reserve the right to claim non-fulfilment of contract. Delivery periods are to be adjusted appropriately if the customer fails to fulfil cooperation duties in a timely manner, e.g., does not order print samples, fails to provide the information and instructions required for the manufacture and commissioning on time or fails to provide documentation in good time. The same applies if the customer subsequently demands change to the delivery item or the features thereof or subsequently amends instructions for the manufacture which, on account of their scope, result in increased costs. This also applies to changes to the specifications of the parts to be processed or the technology.
IX.3. The delivery period stipulated by us commences only once all technical questions have been resolved.
IX.4. If the customer is in default of acceptance or if the customer culpably breaches other cooperation duties, we are entitled to demand compensation of the resulting damage, including any additional expenses. Further claims or rights are reserved. Default of acceptance also exists if impediments relating to or in the domain of the customer (e.g., delays in construction) limit the operational capabilities of the delivered items.
IX.5. In the case of cross-border deliveries, the customer shall make all declarations and perform all actions necessary for export from Germany and import into the country of destination towards the competent authorities in due time, in particular the customer must procure the documents necessary for customs processing and comply with the stipulations of any export controls or other restrictions on marketability. The deliveries are subject to the condition that the fulfilment is not precluded by any impediments in the form of national or international rules, in particular export control regulations as well as embargos or other sanctions. Delays due to export controls shall extend delivery periods accordingly.
IX.6. If the preconditions set forth in IX.4. are fulfilled, the risk of the accidental loss or accidental deterioration of the purchase item passes to the customer at the time at which they enter into default of acceptance.
IX.7. In the event that we are in default, the customer can exercise its resulting rights only if it has provided us with a reasonable additional deadline of at least three weeks, and at least one month in the case of plant construction agreements pursuant to which the installation and commissioning is to take place at the customer’s premises.
X. Packaging and Shipping
X.1. Unless otherwise provided in the order confirmation, shipping of our machines (standard pad printing machines, automations, custom machines and ALFALAS laser systems) is carried out “EXW” within Germany in accordance with INCOTERMS 2020 at the customer’s risk. This also applies if “carriage-free” delivery has been agreed.
X.2. If the customer so wishes, we shall provide transport insurance for the delivery; the costs incurred in this connection shall be borne by the customer.
X.3. We do not assume any liability for delays to delivery relating to the shipping of the machines unless we are responsible for such delay.
X.4. Boxes, loading units and other packaging materials shall be charged at cost price and will not be taken back by us, unless otherwise stipulated by contractual agreement or in the applicable statutory provisions. In the latter case, they are to be returned to us by the customer free of charge.
X.5. The customer shall bear the risk of transport damage. If transport damage gives rise to compensation claims in our favour against the haulier/carrier, however, we assign these to the customer after complete payment of the agreed purchase price including all costs and expenses. The customer accepts the assignment.
X.6. Accessories, replacement parts, printing plates, inks, pads, etc. are delivered “EXW” in accordance with INCOTERMS 2020. If the customer has delivery requests (special requirements, express or similar), a lump-sum shipping fee can be calculated.
XI.1. We do not owe training and instruction of the customer, even if it has been agreed that we will install the system at the customer’s premises.
XI.2. Insofar as agreed, Installation by us is only required once all structural and technical preconditions for the installation of the system have been met. The customer must provide notice of this, in writing, in good time prior to the agreed installation date and must ensure unimpeded access and at its own cost provide the necessary lifting equipment and transport equipment on its business premises. We are not liable for employees and equipment of the customer used in this connection unless we are responsible for such damage. If these preconditions have not been fulfilled at the time of delivery and if it is not possible to render complete and defect-free performance or if this is possible only with significantly more effort, we are entitled to withdraw our installation staff from the installation site and/or in addition to demand payment of the additional costs for personnel and machinery. Any agreed installation deadlines and deadlines for operational readiness are to be adjusted accordingly.
XI.3. The customer must provide its own auxiliary and supervisory personnel as well as an individual responsible for the construction site at customer’s own cost and free of charge for the duration of the installation work.
XI.4. Each machine shall be tested by us prior to dispatch. On request, the customer shall provide us with the original material required to adjust and test the machine in good time and free of charge. If we are charged customs and/or freight charges for the transportation to us and/or return transport of the original material required for testing, such charges are to be reimbursed by the customer. We may use up the original material provided within the scope of the adjustment and testing and are not under any obligation to send back any residual amounts.
XI.5. The customer is obliged to formally accept installation services of TAMPOPRINT. Remote acceptance shall be deemed to constitute formal acceptance. The customer may not refuse formal acceptance based on non-material defects. The formal acceptance is carried out by the customer signing the acceptance protocol. It is deemed equivalent to formal acceptance in particular if TAMPOPRINT has set the customer on completion of the work a reasonable deadline for acceptance and the customer does not refuse acceptance within this deadline, citing at least one defect, if the customer does not accept the work within a reasonable deadline set by TAMPOPRINT despite being under an obligation to do so, or if the customer commences operation of the products or otherwise uses them. TAMPOPRINT is also entitled to request partial acceptance.
XII. Tools, Models
The tools, models, small parts and plans purchased or manufactured by us in order to execute orders – unless otherwise provided in the written order – remain our property, even if they were produced according to the customer’s specifications or the customer paid the costs of the purchase or manufacture in whole or in part. The customer requires our prior express written consent before passing them on to third parties.
XIII. Intellectual Property Rights, Patents
XIII.1. In the case of the special manufacture of machines based on customer orders (custom machines) we are not under any obligation to verify whether the custom production infringes patents or other intellectual property rights of third parties. If in such cases claims are brought against us by third parties based on the infringement of patents or intellectual property rights, the customer shall indemnify us against all claims and shall reimburse reasonable legal costs, unless no fault can be attributed to the customer.
XIII.2. The customer is under an obligation to respect the patents and intellectual property rights applied in the course of our manufacturing and technology and neither reproduce our machines nor their details and accessories for such machines itself, nor to make them available to third parties for reproduction.
If, in the course of establishing readiness for operation, we make samples available to the customer as reference samples for inspection and approval, the condition thereof shall be deemed to be proper and approved unless the customer raises objections, in writing, within two weeks of receipt. This shall apply only if we have expressly drawn the customer's attention to this deadline when sending the samples.
XV. Claims for Defects
XV.1. The customer’s claims for defects presuppose that the customer has duly fulfilled its inspection and objection duties pursuant to Section 377 German Commercial Code (Handelsgesetzbuch, HGB). In the event of any breach of this duty, there shall be no claims for defects. The customer is under an obligation to inspect systems and/or parts and materials immediately upon receipt and to commence operation of machines. Defects identified during this inspection or commissioning must be notified to us in writing without delay at the latest within fourteen days. The defects must be described in detail. Concealed defects must be notified to TAMPOPRINT immediately upon identification and in writing. The customer must provide a written description of the defects in the notice submitted to TAMPOPRINT. The customer’s claims for defects are also contingent upon the specifications, notes, guidelines and conditions set forth in the technical guidelines, installation, operating and instruction manuals, planning and design guidelines and other documents pertaining to the individual products having been complied with during the planning, construction, connection, installation, commissioning, operation and maintenance, in particular maintenance having been carried out correctly and maintenance records kept and recommended components having been used.
XV.2. As a rule, the machines supplied by us (standard machines and custom machines) are designed for single-shift operation. We are not liable for damage attributable to the following reasons:
XV.3. The limitation period for the customer’s claims for defects is one year unless a consumer goods purchase takes place at the end of the supply chain. If the defective products were used in line with their customary use for a building structure and have caused its defectiveness of or in the case of a defect in a building structure, the limitation period is five years. The one-year limitation period also applies to claims based on tort relating to a defect in the products. The limitation period commences upon delivery of the products or, insofar as this has been agreed, upon acceptance (Section XI.5.). The one-year limitation period does not apply to TAMPOPRINT’s unlimited liability for damage relating to the breach of a guarantee or to the injury of life, body or health, for intentional acts and gross negligence and for product defects or insofar as TAMPOPRINT assumed a procurement risk. Any statement by TAMPOPRINT in response to claims based on defects asserted by the customer shall not be construed as entry into negotiations concerning such claim or the circumstances establishing the claims, provided TAMPOPRINT rejects the claim based on defects in full.
XV.4. If there is a defect in the purchase item, we shall provide a warranty by way of subsequent performance. The decision as to whether to rectify the defect or deliver a new, defect-free item or manufacture a new, defect-free work shall be at our discretion. In the case of rectification of defects, we shall bear all expenses incurred in the course of the rectification of the defect, in particular transport, travel, labour and material costs, provided these are not higher as a result of the item being brought to a location other than the place of performance.
XV.5. If subsequent performance is unsuccessful twice, the customer is entitled at its discretion to withdraw from the agreement or demand a reduction in price. The customer’s right of withdrawal is excluded if it is unable to return the items received and this is not attributable to the fact that the return is not possible due to the nature of the items received, TAMPOPRINT was responsible for this, or the defect was only revealed during processing or transformation of the item. The right of withdrawal is furthermore excluded if TAMPOPRINT is not responsible for the defect and if the customer is required to compensate the value in lieu of return.
XV.6. Unless otherwise agreed in writing, in individual cases TAMPOPRINT does not assume any guarantees, in particular guarantees concerning condition or durability.
XVI. Product Liability
XVI.1. The customer shall not amend the products, in particular the customer shall not alter or remove any warning labels pertaining to the dangers of incorrect use of the products. In the event of any breach of this obligation, the customer shall in the internal relationship indemnify TAMPOPRINT against any third-party product liability claims, unless the customer is not responsible for the alteration of the products.
XVI.2. If TAMPOPRINT is required to carry out a product recall or warning due to a defect in the products, the customer shall to the best of their ability participate in the measures that TAMPOPRINT considers necessary or expedient and shall support TAMPOPRINT in this respect, in particular with the identification of the necessary customer data. The customer is obliged to bear the costs of the product recall or product warning unless it is not responsible for the product defect pursuant to product liability law principles. Further claims of TAMPOPRINT remain unaffected.
XVI.3. The customer shall notify TAMPOPRINT without delay and in writing of any risks involved in the use of the products of which the customer becomes aware.
XVII.1. TAMPOPRINT is liable without limitation for damages resulting from the breach of a guarantee or injury to life, body or health. The same applies to intentional acts and gross negligence or if TAMPOPRINT has assumed a procurement risk. TAMPOPRINT is liable for slight negligence only in the event of the breach of material duties inherent to the nature of the agreement that are of particular importance to the achievement of the purpose of the contract. In the event of the breach of such duties, as well as in the event of default and impossibility of performance, TAMPOPRINT’s liability is limited to such damage as can be typically expected within the scope of this agreement. Mandatory statutory liability for product defects remains unaffected.
XVII.2. Insofar as our liability for damages is excluded or limited, this also applies in respect of the personal liability for damages of our employees, staff, workers, personnel, representatives and vicarious agents.
XVIII.1. TAMPOPRINT grants the customer the non-exclusive, non-transferable right, unlimited as to time, to use the PLC Software installed on the marking system exclusively together with the marking system to which the agreement relates for their own commercial purposes. The customer does not acquire any rights to the PLC Software going above and beyond this. All rights in the software and all relevant rights in patents, copyright, trade secrets or other industrial property rights to the Software remain with TAMPOPRINT.
XVIII.2. If a copy of the PLC Software is delivered to the customer on a data carrier together with the marking system, the customer is entitled to use the delivered PLC Software exclusively in order to restore the original software installation on the relevant marking system (“Recovery Version”). Any further use of the recovery version, in particular the processing, distribution and/or duplication thereof is excluded. The Recovery Version is protected against unauthorised use by technical protective measures. Section 95 German Act on Copyright and Related Rights (Urheberrechtsgesetz, UrhG) remains unaffected by this.
XVIII.3. If the customer breaches the aforementioned granting of rights of use, in particular if it processes the Recovery Version or has it processed by third parties and uses this processed version of the PLC software with the marking system, any claims of the customer based on defects are forfeited. TAMPOPRINT does not assume any liability for the use of the Recovery Version in breach of the contract and the resulting damage.
XIX. Used Products
XIX.1. Claims for defects for used products are excluded. Used products are products that have already been put into operation.
XIX.2. TAMPOPRINT’s liability pursuant to Section XVIII. remains unaffected.
XX. Force Majeure
XX.1. If TAMPOPRINT is prevented by force majeure events from fulfilling its contractual obligations, in particular from delivering the products, TAMPOPRINT shall for the duration of the impediment and for a reasonable start-up period thereafter be released from the performance obligation, without being required to pay the customer compensation. The same applies if unforeseeable circumstances beyond the control of TAMPOPRINT, in particular industrial action, pandemic, epidemic, official measures, energy shortage, delivery obstacles of a sub-supplier or significant disruptions to operations, especially cyber-attacks, render the fulfilment of its obligations unreasonably difficult or temporarily impossible for TAMPOPRINT due to unforeseeable circumstances. This also applies if these circumstances occur to a sub-supplier. This also applies if TAMPOPRINT is already in default. If TAMPOPRINT is released from its delivery obligation, TAMPOPRINT shall reimburse any advance payments made by the customer.
XX.2. TAMPOPRINT is entitled upon expiry of a reasonable period to withdraw from the agreement if such obstacle lasts more than four months and TAMPOPRINT no longer has any interest in the fulfilment of the agreement as a result of the obstacle. On request by the customer, TAMPOPRINT shall declare on expiry of the deadline whether it intends to exercise its right of withdrawal or whether it will supply the products within a reasonable period.
XXI.1. The parties are under an obligation to keep confidential all information to which they become privy that is designated as confidential or which is recognizable as business or trade secrets based on other circumstances, for five years from delivery and, unless required in the course of the business relationship, neither to record, nor share nor utilize such information.
XXI.2. The confidentiality obligation does not apply insofar as the information was demonstrably already known to the receiving party prior to commencement of the contractual relationship or was already generally known or publicly accessible prior to commencement of the contractual relationship or becomes generally known or publicly accessible through no fault of the recipient party. The receiving party shall bear the burden of proof.
XXI.3. The parties shall ensure by means of appropriate contractual agreements with their employees and agents, in particular their freelancers, contractors and service providers, that they, too, for the duration of five years from delivery refrain from any and all own utilisation, disclosure or unauthorised recording of such business and trade secrets.
XXII. Final Provisions
XXII.1. The transfer of rights and obligations of the customer to third parties is subject to TAMPOPRINT’s prior written consent.
XXII.2. The customer is entitled to set-off of counterclaims only if such claims have been conclusively legally determined or are undisputed. The customer may assert a retention right only if the counterclaim is based on the same contractual relationship.
XXII.3. The legal relationship between the customer and TAMPOPRINT shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XXII.4. If the customer is a merchant defined in the German Commercial Code, a legal entity under public law or a special public fund, the exclusive place of jurisdiction for all disputes relating to the business relationship between TAMPOPRINT and the customer is Stuttgart. TAMPOPRINT is also entitled to bring an action at the customer’s place of business as well as at any other permissible place of jurisdiction. The application of arbitration clauses is hereby contested.
XXII.5. Unless otherwise agreed, the place of performance for both the customer and TAMPOPRINT is TAMPOPRINT’s registered seat.
XXII.6. The language of the contract is German.
XXII.7. Should any provision of these General Terms and Conditions of Sale be or become invalid or unenforceable in whole or in part or should there prove to be a gap in these General Terms and Conditions of Sale, this shall not affect the validity of the remainder of the provisions. In place of the invalid or unenforceable provision, the valid or enforceable provision is deemed agreed that comes closest to attaining the purpose of the invalid or unenforceable provision. In the event of a gap, the provision is deemed agreed that corresponds to what would have been agreed, in view of the purpose of these General Terms and Conditions of Sale, had the contracting parties considered the matter from the outset.
1. These General Terms and Conditions ("Terms") apply to the services performed by us (TAMPOPRINT), e.g., assembly, repairs, maintenance, training, process consulting of the Service Division. Depending on the type and scope of the services requested by the customer, the General Terms and Conditions of Sale for TAMPOPRINT GmbH, which can be viewed at www.tampoprint.com and which TAMPOPRINT will provide to the customer as a printed copy on request, shall become an integral part of the contract.
2. These Terms and Conditions shall only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch (“BGB”)) in the exercise of their commercial or independent professional activity, legal entities under public law or special funds under public law pursuant to Section 310 I Sentence 1 of the German Civil Code (BGB).
3. Any terms and conditions of the customer which deviate from or contradict these Terms and which we have not expressly agreed to in writing shall not become part of the contract. Even if TAMPOPRINT carries out the services without reservation in the knowledge of deviating or conflicting terms and conditions of the customer, these Terms shall apply.
4. Individual written agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) shall take precedence over these Terms.
5. Rights to which TAMPOPRINT is entitled in accordance with statutory provisions or other agreements beyond these Terms shall remain unaffected.
II. Subject Matter and Exclusions
1. The subject matter of the contract between TAMPOPRINT and the customer is defined in detail in the offer and order; or order and order confirmation; or remote service contract. The subject of the services are the TAMPOPRINT products provided by TAMPOPRINT, consisting of hardware and/or software. The exact designation of the products and systems for which services are provided by TAMPOPRINT is specified in the offer or order (hereinafter referred to as “Service Products”). TAMPOPRINT shall only owe a contractual success if this has been explicitly agreed.
2. TAMPOPRINT shall provide the agreed service in accordance with the state of the art recognized at the time of conclusion of the contract. The risk of use lies with the customer.
2.1. If repair work is the subject of the service and the item to be repaired was not delivered by TAMPOPRINT or if the system/machine was converted by the customer or if the condition of the system/machine does not correspond to the delivery condition or if the machine is older than 10 years, unforeseeable adjustment work may be necessary on site. In these cases, TAMPOPRINT cannot guarantee that the service can be carried out and reserves the right to withdraw from the contract if the customer has not previously pointed out the condition of the machine in detail.
3. Each service assignment is considered as an individual case. A service provided does not oblige TAMPOPRINT to provide further services to the customer.
4. Unless otherwise agreed, services are generally performed on weekdays (except Saturdays) during normal working hours (7.30 a.m. to 5.00 p.m.). The date for the performance of the service shall be agreed between the customer and TAMPOPRINT as a rule at least four weeks before the desired date. If a security risk for which TAMPOPRINT is not responsible arises for TAMPOPRINT personnel or for vicarious agents of TAMPOPRINT in connection with the contractual service, TAMPOPRINT may discontinue the service until the security risk has been eliminated. A safety risk in this sense is deemed to be, in particular, circumstances which constitute a breach within the meaning of the German Occupational Health and Safety Act (Deutsches Arbeitsschutzgesetz (ArbSchG)). Waiting times due to this will be invoiced.
5. TAMPOPRINT shall only provide telephone advice and support during the normal business hours of TAMPOPRINT for a separate fee in accordance with the current price list at the time the service is provided by TAMPOPRINT.
6. During the provision of the service, the TAMPOPRINT personnel must have free access to the machine; the machine is not available for production work during this time. Waiting times of the TAMPOPRINT personnel will always be invoiced unless TAMPOPRINT is responsible for them. Schedules and offers communicated in advance by TAMPOPRINT are based on estimates or assumptions based on information previously communicated by the customer. Invoicing for the respective service is based on the actual duration in accordance with the TAMPOPRINT service report.
7. The customer must ensure the following with regard to the use of TAMPOPRINT Services:
a) Cleaning of the Service Products (including extraction) before the start of the service so that the provision of the service is not delayed by cleaning work; cleaning work is not part of the scope of a service.
b) Free accessibility to the plant / Service Products for TAMPOPRINT personnel; in particular, no impairment of the service operation due to material storage in the area of the machine / Service Products.
c) Provision of support staff and support material as necessary.
8. Remote Service
Services can be provided under the following conditions by means of remote access to the service products of TAMPOPRINT:
8.1. A prerequisite for the provision of the Service by means of remote access is that a valid "Remote Service Agreement" has been signed.
8.2. Measures within the scope of remote services shall be performed by remote access to the Service Products during the business hours pursuant to Clause II.4. Measures outside these hours shall only be carried out on the basis of a separate agreement in individual cases and against separate remuneration at the Contractor's hourly rates valid at the time.
8.3 In detail, the following access and intervention options are used:
a) Remote Control
Remote control allows access to the applications and the operating system of the operating computer of service products. It is used to support the machine operator in the event of operating and input errors.
b) Remote Diagnosis
With the help of remote diagnosis, errors that lie within the access range of the operating computer can be detected. This includes the user interface and the operating system of the user interface, as well as parts of the NC and the PLC in the case of laser systems.
c) Remote Administration
Remote administration enables the elimination of errors, the updating of submodules of the NC and the PLC as well as the user interface, the adjustment and updating of configurations as well as the adjustment of network configurations.
d) Data Transmission
Data transmission enables the exchange of files. This includes system files of the operating system, application data of the user interface, NC and PLC as well as NC programs and customer-specific data.
8.4 Technical and Organizational Requirements for Remote Service:
The connection of a modem supplied by TAMPOPRINT with a laser or a machine takes place as part of the installation or commissioning at the customer’s premises and requires a telephone connection on the part of the customer via a telephone socket with an analogue interface in the installation area of the machine; the telephone connection must be directly dialable and offer a direct dialling option to the outside; for machines outside Germany, the connection point must have an international exchange authorization.
If a modem with a SIM card is to be used, the corresponding card / approval must be provided by the customer before the start of work.
Any expenses (administration, connection costs, etc.) incurred in connection with the performance of the Remote Service shall be borne by the Client.
The service product must be prepared for remote service via the Internet (hardware and software) and configured by the customer for access to the customer network via TCP-IP. It must be possible to establish a connection via the customer network to the TAMPOPRINT mbDIALUP portal via the Internet. The connection is made via the Internet using a VPN connection with the standard ports TCP 443, TCP 1194 and TCP 80. If possible, the firewall rules that control access should not be automatically deactivated due to prolonged non-use. The default setting in the modem is connection via DHCP. If it is necessary to change the connection type to a static IP address, the necessary data (IP address, subnet mask, gateway) must be transmitted by the customer before delivery of the service product, but at the latest before the SAT (Site Acceptance Test). All costs arising from a later change of the IP address will be invoiced.
c) Access Data
In order to establish a remote connection from the TAMPOPRINT service centre to the service product, a user ID, a password and - in the case of telephone-based remote service - a telephone number for modem access are required. The user ID and password are assigned by TAMPOPRINT. The telephone number for the modem connection is provided by the customer.
8.5. The customer is obliged to provide TAMPOPRINT with a detailed description of the fault without undue delay. On this basis, TAMPOPRINT shall decide whether remote service is possible and shall inform the customer of this decision.
8.6. If TAMPOPRINT decides in favour of the remote service, the customer must, after consultation with TAMPOPRINT, create all the necessary conditions for remote access in order to carry out the remote service (cf. Clause 3 of the Remote Service Agreement). The customer is not entitled to change the settings necessary for establishing a remote connection without prior instruction from TAMPOPRINT. The Remote Service as such may only be used by the customer's personnel who have been authorized by TAMPOPRINT to do so.
8.7. The customer must ensure that no viruses are transferred to TAMPOPRINT EDP systems. If viruses occur at the customer's premises which could impair the activities of TAMPOPRINT within the framework of the remote service or could be transmitted during the same, the customer shall be obliged to notify TAMPOPRINT immediately. If TAMPOPRINT suffers damage as a result of the transmission of viruses through the customer's software, the customer is obliged to compensate for this damage if he is at fault.
9. The disposal of defective or removed (replacement) parts is not part of the contractual services, unless otherwise agreed.
The customer must inform TAMPOPRINT before the conclusion of the contract if the service ordered is due to force majeure or to improper handling of the Service Products/systems/equipment/products to be serviced, to their overloading or to vandalism or is caused by the effects of fire, water, moisture on them or by overvoltage damage to electrical supply lines to them. If the customer does not notify TAMPOPRINT of this and if this becomes apparent after the arrival of TAMPOPRINT personnel, TAMPOPRINT reserves the right not to carry out the service and to invoice the customer for the costs incurred.
10. Unless otherwise expressly agreed with the customer, TAMPOPRINT shall not assume a performance guarantee or a procurement risk under the contract.
11. TAMPOPRINT reserves the right to implement a contractually defined service with a technically equivalent solution, provided that this deviates at most slightly from the contractually agreed service. If components are replaced by other or equivalent components due to availability, it cannot be ruled out that changed performance parameters will result.
12. As long as and insofar as the type of service does not require performance at a specific location, the services can be performed at a location of TAMPOPRINT's choice or also by remote access. Furthermore, it is the responsibility of TAMPOPRINT to decide in which way the service performance is to be carried out, unless otherwise agreed with the customer.
13. Services that go beyond the scope of services specified in the contract or service order, e.g. additional repair work, must be ordered separately by the customer.
III. Special Conditions for Works (Werkleistungen)
1. Acceptance of Works
a) The customer shall be obliged to accept work performance if acceptance has been agreed in writing or is required by law. A record of the acceptance shall be drawn up and signed by the customer and TAMPOPRINT. In this case, TAMPOPRINT is entitled to demand partial acceptance.
b) Written acceptance shall be deemed equivalent in particular if TAMPOPRINT has set the customer a reasonable deadline for acceptance after completion of the services and the customer does not refuse acceptance within this deadline, stating at least one defect. Furthermore, it is equivalent to written acceptance in particular if the customer uses or resells the object of repair/assembly or if the customer waives acceptance.
c) Acceptance may not be refused due to insignificant defects. In particular, the customer may not refuse acceptance if any agreed acceptance criteria have been met.
2. Liability for Defects in Works
a) TAMPOPRINT shall be liable for material defects in work performance in accordance with the provisions of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) for the contract for work performances with the proviso that the customer must first assert the rights to supplementary performance. If an attempt to rectify the defect fails but success cannot be ruled out in a further attempt, TAMPOPRINT may make a further attempt to rectify the defect. If this fails, the customer shall be entitled to the other statutory rights in respect of defects.
b) If the customer has carried out repair or assembly work or other changes to the work in question without the prior consent of TAMPOPRINT or has had such work carried out by a third party, TAMPOPRINT's liability for defects shall lapse. This also applies if the customer, at his own request, omits necessary repairs or renewals. The same applies to improper use or commissioning by the customer or third parties as well as natural wear and tear, faulty or negligent handling, improper maintenance, the use of unsuitable operating materials, unsuitable building ground, chemical, electrochemical or electrical external influences, insofar as TAMPOPRINT is not responsible for them.
3. The customer must notify TAMPOPRINT in writing without undue delay of any defect found.
4. TAMPOPRINT is liable exclusively for the works actually performed. Interactions with existing components which are affected due to the interaction of the installed components are excluded from this.
IV. Calculation of Services / Pricing
1. Basic Calculation of Services
Unless otherwise agreed, the following shall apply:
The remuneration of TAMPOPRINT shall be based on the prices stated in the offer plus statutory value-added tax (VAT). If there is no offer or if prices are not included in it, the remuneration shall be based on the prices of TAMPOPRINT valid on the day of the written order confirmation plus statutory value-added tax (VAT). If a performance period is defined in the offer or, if there is no offer, in the order confirmation, the prices are only valid for this period.
No discount shall be granted. Remuneration is due and payable immediately after invoicing.
Remuneration shall be based on the hours worked and the material costs incurred, unless a flat rate has been expressly agreed (e.g. for training or process consulting). The amounts are in euros plus value-added tax (VAT), which is to be paid additionally if provided for by law. Additional hours (assembly preparation / set-up time) may be charged as working time for the preparation of the services.
2. Flat-Rate Prices / Special Agreements
If TAMPOPRINT and the customer have reached a different agreement (e.g. a flat rate), the agreements reached in the offer and order, or remote service contract if one has been concluded, or order and order confirmation, if an offer has not been submitted, shall apply.
3. Travel Costs
TAMPOPRINT is free to choose the means of transport for the respective assignment and to invoice the customer. Air travel will be invoiced according to the proof of costs.
4. Price Adjustment
Subject to deviating contractual provisions, TAMPOPRINT is entitled to unilaterally increase the remuneration accordingly in the event of an increase in material production and/or material and/or product and/or service procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to environmental regulations, travel costs and/or currency regulations and/or changes in customs duties, and/or freight rates and/or public charges, if these directly or indirectly influence the goods production or procurement costs or costs of the contractually agreed services. After conclusion of the contract, the customer has a claim to the provision of the ordered service by TAMPOPRINT at the agreed price, provided that the service can be carried out within the period specified in the offer or order confirmation. In the event of a delay, TAMPOPRINT reserves the right to make the customer a new offer with updated prices and, if no agreement can be reached, to terminate the contract. This shall only apply if TAMPOPRINT is not responsible for the delay.
5. Use of Subcontractors
Unless otherwise expressly agreed, TAMPOPRINT is also entitled to have the contractual services provided by third parties, including legal successors or companies affiliated with TAMPOPRINT.
6. Proof of Performance
The customer shall confirm the proof of performance of the TAMPOPRINT personnel by signature upon presentation. If such confirmation is not made without reason, the proof of performance shall be deemed to have been accepted 2 weeks after handover unless the customer objects to the proof of performance in writing.
7. If the customer is in default with the acceptance of the service provisions by TAMPOPRINT, Section 615 Sentence 1, Sentence 2 of the German Civil Code (BGB) shall apply.
V. Participation of the Customer in Services (especially at the Customer's Site)
1. The customer must support the TAMPOPRINT personnel in carrying out the installation at his own expense. In doing so, the customer must, depending on the type of service, in particular ensure access for the TAMPOPRINT personnel to the place of performance as well as, if necessary, the provision of necessary documentation, maintenance histories and tools.
2. The customer shall take the special measures necessary for the protection of persons and property at the performance site and shall inform the TAMPOPRINT personnel on site of all relevant safety regulations, insofar as these are of importance to the TAMPOPRINT personnel.
3. To this end, the customer shall notify TAMPOPRING of existing industrial property rights with regard to the item; insofar as TAMPOPRINT is not responsible, the customer shall indemnify TAMPOPRINT against any claims by third parties arising from infringements of industrial property rights. Additional costs shall be invoiced to the customer.
4. The customer is obliged to provide the necessary technical assistance at his own expense, in particular:
a) Ensure that a liaison person is present during the performance of the services who is authorized to order any additional services that may be required (such as repairs) and to sign performance records, acceptance protocols, etc.
b) Provision of the necessary equipment and heavy tools (lifting/ground conveyors, compressors) incl. authorized operating personnel, as well as commodities and materials (e.g. underlays, cleaning and sealing materials, lubricants, fire extinguishers, etc.) including disposal of problematic materials, e.g. waste oil, used grease, etc.
c) Provision of electrical power, heating, lighting, operating power, water, including the necessary connections.
d) Provision of suitable rooms for the safe storage of the tools of the TAMPOPRINT personnel.
e) Unhindered transport of the assembly parts to and at the assembly site, protection of the assembly site and materials from harmful influences of any kind, cleaning of the assembly site.
f) Provision of suitable changing rooms (with heating, lighting, washing facilities with hot and cold water, sanitary facilities) and first aid for the TAMPOPRINT personnel.
g) Provision of the materials and performance of all other actions not owed by TAMPOPRINT which are necessary for the adjustment of the item to be assembled / repaired and for the performance of tests, insofar as this is provided for in the contract.
h) Free access to the customer's machine tool park and an operator trained for the relevant tool, if required for the services.
i) Provision of the valid documentation / operating instructions of the machine on which the service is to be performed.
j) Electrical work carried out by the customer in connection with the services may only be carried out by a qualified electrician.
k) If safety devices have been removed and/or modified by the customer, this must be actively notified to the TAMPOPRINT personnel prior the service is provided. TAMPOPRINT reserves the right to refuse to provide the service or to make further arrangements in the event of concerns regarding the safety equipment. All costs incurred up to that point will be invoiced to the customer.
l) All components on which services are provided must comply with the applicable standards and safety regulations.
5. The customer must ensure that during the agreed period for the performance of the services, the services can be started immediately after the arrival of the TAMPOPRINT personnel and can be performed without delay until the acceptance of the works / completion of the services.
6. If the customer does not fulfil his obligations in due time, TAMPOPRINT shall be entitled, but not obliged, after setting a deadline, to carry out the actions incumbent on the customer in his place and at his expense. Otherwise, the statutory rights and claims of TAMPOPRINT shall remain unaffected.
VI. Unfeasible Repair
1. The customer shall be invoiced for the expenditure incurred and to be substantiated, which was necessary to make the service possible (e.g. fault-finding time, travel times and costs, etc.) if the repair cannot be carried out for reasons for which TAMPOPRINT is not responsible, in particular because the claimed defect did not occur during the planned performance of the service, spare parts cannot be procured, the customer culpably missed the agreed upon appointment or the contract was terminated during performance.
2. The item to be repaired can be restored to its original condition at the express request of the customer against reimbursement of the costs after troubleshooting, provided that the item to be repaired is not totally damaged economically.
3. If, due to waiting times for which the customer is responsible, the service call has to be cancelled by TAMPOPRINT before completion, for example in order to carry out other calls or schedules, any claims on the part of the customer which are attributable to the waiting time are excluded.
VII. Time of Performance, Transfer of Risk
1. The time of performance shall be determined by the agreements between the contracting parties. TAMPOPRINT's adherence to this presupposes that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or approvals or the payment of a deposit. If this is not the case, the time of performance shall be postponed accordingly. This shall not apply if TAMPOPRINT is responsible for the delay.
2. Compliance with the agreed period for the performance of services is, insofar as cover transactions have to be concluded by TAMPOPRINT for the performance of the services, subject to correct and timely self-delivery.
3. If the customer is responsible for a delay, he shall bear the additional costs incurred for waiting times and any additional necessary travel times of the TAMPOPRINT personnel.
4. If the customer sets TAMPOPRINT - taking into account the statutory exceptions - a reasonable deadline for performance after the due date and if the deadline is not met, the customer is entitled to withdraw from the contract within the framework of the statutory provisions. At the request of TAMPOPRINT, he undertakes to declare within a reasonable period of time whether he will exercise his right of withdrawal.
VIII. Limitation of Liability of TAMPOPRINT
1. TAMPOPRINT shall be liable for damage without limitation
a) in the event of a breach of warranty,
b) in the event of injury to life, limb or health,
c) in the case of intent, gross negligence or insofar as TAMPOPRINT has assumed a procurement risk, as well as
d) according to mandatory statutory regulations, in particular the Product Liability Act (Produkthaftungsgesetz).
2. In the event of a slightly negligent breach of material contractual obligations, TAMPOPRINT's liability shall be limited to the reasonably foreseeable damage typical of the contract.
3. Any further liability on the part of TAMPOPRINT, in particular for indirect damage such as loss of production, loss of profit, etc., shall be excluded.
4. TAMPOPRINT shall not be liable for the loss of data or programs insofar as the damage is due to the fact that the client has failed to carry out regular data backups and thereby ensure that lost data can be restored with reasonable effort.
5. Insofar as the liability of TAMPOPRINT is excluded or limited in accordance with these Terms, this shall also apply to the personal liability of TAMPOPRINT's employees, representatives and vicarious agents.
IX. Statute of Limitations
The customer's claims shall become statute-barred 12 months after the performance of the service by TAMPOPRINT or, in the case of work services, 12 months after acceptance. This does not apply to the liability of TAMPOPRINT according to clause VIII., in this respect the statutory periods apply.
X. Intellectual Property, Industrial Property Rights, Software Use
1. All industrial property rights shall remain with TAMPOPRINT. TAMPOPRINT shall only grant the customer a non-exclusive, non-transferable right of use for an unlimited period of time, also in relation to samples, cost estimates, drawings and similar information of a tangible or intangible nature, insofar as this is necessary for the use of the services and service products.
2. Drawings, models, templates, training documents etc. remain the exclusive property of TAMPOPRINT. They are only entrusted for the agreed purpose and may not be used for any other purpose. Copies or other reproductions may only be made for the agreed purpose. Neither originals nor reproductions may be handed over to third parties or made accessible in any other way.
3. Insofar as software is made available to the customer within the scope of the provision of the services, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the service product intended for this purpose. Use of the software on more than one system is prohibited. The customer may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (Sections 69 a ff. Urheberrechtsgesetz (UrhG)). The customer undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without the prior express consent of TAMPOPRINT.
All other rights to the software and the documentation, including copies, remain with TAMPOPRINT or the software supplier. The granting of sub-licenses is not permitted.
XI. Force Majeure
1. Each contracting party shall be released from its obligation to perform if and to the extent that for reasons of force majeure it is prevented from performing a contractual obligation, or if performance is made unreasonably difficult or temporarily impossible. Force majeure shall be deemed to be any event unrelated to the operation of the contracting party and acting with unavoidable force from outside, such as wars, civil wars, embargoes (under trade law), import or export bans, political unrest, pandemics, natural disasters and events, also insofar as they affect the intended transport routes and unforeseeable and unavoidable official orders, strikes and lockouts. Force majeure also includes interruptions in the supply of raw materials and energy as well as significant operational disruptions, for example due to cyber attacks. The release from the obligation to perform shall continue for the duration of the impediment and a reasonable start-up period afterwards.
2. The party claiming force majeure shall notify the other party in writing without undue delay.
3. The parties shall determine by mutual agreement whether the services not rendered during this period shall be made up after the end of the impediment.
4. If the event of force majeure lasts for more than 90 consecutive calendar days, either contracting party shall be entitled to terminate the contract with respect to the part of the contract not yet performed within a reasonable period of time if the party is no longer interested in the performance of the contract as a result of the impediment.
XII. Official Approvals
Offers and order confirmations from TAMPOPRINT are subject to approval by the Federal Office of Economics and Export Control (BAFA) as well as all additionally required official approvals. In the case of cross-border service assignments, the customer shall make all necessary declarations to the competent authorities and take all necessary actions to enable the services to be provided. The services are subject to the proviso that there are no obstacles to their fulfilment due to national or international regulations, in particular export control regulations as well as embargos or other sanctions.
XIII. Retention, Set-Off, Assignment
1. The customer may only assert rights of retention or rights to refuse performance if his counterclaim is based on the same contractual relationship.
2. The customer may only set off counterclaims against the claims of TAMPOPRINT if these are undisputed or have been legally established.
3. The customer may only assign any claims against TAMPOPRINT which are not directed towards the payment of money to third parties with the prior written consent of TAMPOPRINT if an interest of TAMPOPRINT which is worthy of protection is opposed, unless a legitimate interest of the contractual partner outweighs this interest of TAMPOPRINT.
XIV. Machine Data
1. In the context of providing services, TAMPOPRINT collects non-personal data from machines, equipment, accessories, lasers and laser systems. This is use-independent data such as licensing data and software series status, as well as use-dependent data such as operating status, maintenance data and diagnostic data. The data may include confidential information of the customer, for example geometries, NC programs or other customer-specific data ("Confidential Customer Information").
2. This data is processed and stored by TAMPOPRINT for the provision of the service and for the purpose of general product development and improvement. Confidential Customer Information is used exclusively for the provision of the service. Confidential Customer Information will not be used for any other purpose.
XV. Confidentiality Obligation, Data Protection
1. The parties are obliged to keep secret all business secrets of the other party to which they have access for a period of five years from the date of performance, to protect them by suitable and appropriate measures and, unless required for the business relationship, neither to record them nor to pass them on to third parties, nor to use or exploit them. In particular, the parties shall ensure that the business secrets of the other party are only made accessible to such employees and other staff and only to the extent that this is required for the business relationship. Objects embodying business secrets are also subject to the duty of confidentiality. In particular, the receiving party is prohibited from obtaining the business secrets embodied therein by reverse engineering a product or item. Business secrets are all information that is designated as confidential or secret or is recognisable as a business secret according to other circumstances, in particular technical information (e.g. know-how, drawings, product and development descriptions, methods, procedures, formulas, techniques as well as inventions) and commercial as well as fiscal information (e.g. price and financial data as well as sources of supply) and other information (e.g. legal information and information concerning the employees or the management).
2. The confidentiality obligation shall not apply insofar as the business secrets are demonstrably already known to the receiving party prior to the commencement of the contractual relationship or were generally known or generally accessible prior to the commencement of the contractual relationship or become generally known or accessible through no fault of the receiving party. The burden of proof shall be borne by the receiving party.
3. The parties shall ensure by means of suitable contractual agreements with the employees, other staff and third parties working for them to whom the business secrets of the other party become accessible in accordance with the above paragraph 1 that they are also obliged to maintain corresponding confidentiality for a period of five years from the performance of the service.
4. The parties are obliged to observe the statutory provisions on data protection, in particular the EU General Data Protection Regulation ("GDPR") in the execution of the contract and to impose compliance with these provisions on their employees.
5. The parties shall process the personal data received (names and contact details of the respective contact persons) exclusively for the performance of the contract and shall protect them by security measures (Art. 32 GDPR) adapted to the current state of the art. The parties are obliged to delete the personal data as soon as their processing is no longer necessary. Any statutory retention obligations remain unaffected by this.
6. Should one party process personal data on behalf of the other party within the framework of the execution of the contract, the parties shall conclude an agreement on commissioned processing in accordance with Art. 28 GDPR. As far as personal data is processed by TAMPOPRINT as the order processor in accordance with Art. 28 GDPR, the regulations of the order processing contract, which is attached as annex, will apply.
7. The TAMPOPRINT data protection declaration can be accessed via the following link: https://www.tampoprint.com/en-en/privacy-policy/.
XVI. Final Provisions
1. The law of the Federal Republic of Germany shall apply exclusively under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction is the court responsible for the registered office of TAMPOPRINT, whereby TAMPOPRINT reserves the right to sue the customer at his general place of jurisdiction.
3. The contractual language is English.
4. Amendments and supplements to the contractual relationship between the parties must be made in writing. This also applies to the cancellation of this written form requirement.
5. Should a provision of the contract between TAMPOPRINT and the customer be or become wholly or partially invalid or unenforceable or should there be a loophole in the contractual provisions, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision, the valid or enforceable provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed. In the event of a loophole, that provision shall be deemed agreed which corresponds to what would have been agreed in accordance with the purpose of this contract if the parties had considered the matter from the outset.
The following terms and conditions of purchase shall apply exclusively to all our orders and contracts, including future orders and contracts. Conditions of the supplier require our written confirmation to become effective. Any conflicting terms and conditions are hereby expressly rejected. They shall not be recognized even if we do not expressly object to them again after receipt by us. The supplier acknowledges the sole validity of our terms and conditions of purchase upon acceptance, at the latest upon execution of the order, even if he refers to his own terms and conditions. The acceptance of deliveries and services or their payment does not imply consent to the supplier’s terms and conditions.
Offers of the supplier are non-binding and free of charge for us. Orders are only effective if they are made in writing or confirmed by us in writing. Verbal or telephone agreements require our written confirmation to be valid. Each order shall be confirmed immediately with an indication of the binding delivery time.
The agreed prices are fixed and include all ancillary costs. They apply free to the delivery address. Changes due to subsequent increases in any costs, taxes, etc. are excluded (with the exception of changes in VAT).
It is imperative that the delivery time is met. In particular, the reservation of timely self-delivery is also excluded. If the deadline is exceeded, the supplier shall be granted a reasonable period of grace. If he also fails to deliver within the grace period set, we shall be entitled either to withdraw from the contract or to claim damages in lieu of performance. This shall not affect our claim for compensation for damage caused by delay and, if applicable, payment of an agreed contractual penalty. If we claim damages in lieu of performance, any agreed contractual penalty shall be offset against this. If the supplier is unable to meet a delivery date as a result of force majeure or similar events, e.g. strike, he must inform us of this immediately after becoming aware of the reason for the impediment. In this case, we are entitled either to postpone the acceptance period or, if our interest in the delivery is substantially reduced, to withdraw from the contract in whole or in part and, if applicable, to claim damages. The supplier cannot derive any claims from this. If the supplier withdraws from the contract in the event of force majeure, it shall owe us a contractual penalty in the amount of 15% of the net order value plus the applicable VAT. The supplier reserves the right to prove that we have suffered no or less damage.
IV. Packaging and shipping
Delivery is regularly made free to the delivery address. All transport costs including packaging, insurance, etc. shall be borne by the supplier. The risk shall not pass to us before receipt of the goods. On the day of dispatch, a dispatch note must be sent to us for each consignment, stating our order number, exact details of the number of items, description of the items and the individual weight or dimensions. A delivery note must be enclosed with each consignment. All rail shipments are to be directed to the destination 70806 Kornwestheim. The supplier shall be liable for all damages, costs, demurrage, etc. resulting from non-compliance with this provision. Partial deliveries are only permissible if agreed in writing; in the absence of a written agreement, we may refuse acceptance.
The supplier is obliged to deliver only such goods which correspond to the respective state of science and technology and which have been subjected to an appropriate quality and function control by the supplier prior to dispatch to us. The goods delivered by the supplier must be suitable for the use planned by us with regard to the materials used, the manufacturing methods and processes used for their production as well as the specifications given by us. If the supplier does not receive a specification from us, the general technical standards (e.g. DIN/ISO) shall take the place of the specification. If the supplier has provided us with samples, specimens or descriptions prior to the conclusion of the contract, the quality and product-specific properties of these samples, specimens or descriptions shall constitute the minimum requirements for the goods to be supplied by the supplier. In the event of defects, we shall have the right to choose between rectification of the defect and replacement delivery of goods free of defects. If we choose to remedy the defect, we may also do so ourselves at the supplier’s expense or commission the remedy at the supplier’s expense if it is no longer possible to notify the supplier of the defect and the impending damage due to particular urgency and to give the supplier a period, albeit a short one, to remedy the defect itself. If we exercise our right to replacement delivery of defect-free goods or a right of withdrawal, we shall make the defective goods available for collection at the supplier’s expense and risk. We shall be entitled to our statutory rights to damages in full. The limitation period for defects is 36 months, unless a longer period applies by law. Notices of defects shall be deemed to have been given in due time if they are given within two weeks of delivery of the goods in the case of defects which are identifiable during an incoming goods inspection pursuant to § 377 HGB; in the case of defects which are not identifiable during such an incoming goods inspection, the period of two weeks shall apply from the time of discovery.
VI. General liability regulation
The supplier’s liability shall be governed by the statutory provisions. We shall be liable to the supplier in accordance with the statutory provisions insofar as the supplier asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents; insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage. We shall further be liable in accordance with the statutory provisions insofar as we culpably breach a fundamental obligation, the fulfillment of which is a prerequisite for the proper performance of the contract (material contractual obligation); liability shall be limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health remains unaffected.
VII. Transfer of ownership and assignment of claims
We agree with the supplier that ownership of ordered goods shall pass to us upon notification of readiness for dispatch. The handover shall be replaced by the supplier storing the ordered goods for us free of charge. They must be separately from other stock. However, the risk of fire, theft or other loss or deterioration of the goods shall be borne by the supplier and he shall insure against such risks until the time of the agreed transfer of risk. The supplier assures that any third party rights to the delivered goods do not exist. We do not recognize an extended or forwarded retention of title by the supplier. Assignments or pledges of claims against us are only permitted with our consent.
VII. Industrial property rights of third parties
The supplier shall be liable for ensuring that the goods, samples, trademarks delivered by him are free of third-party rights of any kind and that third-party property rights, in particular patents, are not infringed, and shall indemnify us against any claims for damages by third parties due to infringement of their rights, unless he is not at fault.
IX. Invoice issue
The invoice must be submitted separately in duplicate immediately after delivery. Monthly invoices shall also be sent in duplicate by the third of the month following delivery. We shall make payment within 14 days of receipt of the invoice with a 3% discount or in 30 days without discount exclusively at our discretion and by means of payment of our choice. All documents provided by us to the supplier in connection with an order and enquiries shall be returned to us without delay and free of charge.
X. Place of performance and court of jurisdiction
The place of performance is, if a delivery address is specified, the delivery address, otherwise Münchingen. The court of jurisdiction is Stuttgart. We may also, at our option, sue the supplier at the court having local jurisdiction for the supplier’s registered office.
XI. Applicable law
The contractual relationship shall be governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods shall not apply.
XII. Data protection
We store data within the scope of our mutual business relations in accordance with the Data Protection Act (BDSG).
XIII. Final clause
Our terms and conditions and the contract shall remain in full force and effect even in the event that individual parts are legally invalid. An invalid provision shall be replaced by a provision that comes as close as possible to the invalid provision. Should any provision of these terms and conditions or of the contract be invalid with regard to mandatory foreign law, the supplier shall, upon request, agree with us on such contractual supplements and make such declarations to third parties or authorities as will ensure the validity of the provision concerned and, if this is not possible, its economic content also under the foreign law.