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.
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.
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 Conventionon Contracts forthe 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.