Terms and Conditions of Sale and Delivery

TCL-Solutions GmbH

Terms and Conditions of Sale and Delivery

of TCL-Solutions GmbH, Kruppstraße 196, D 45472 Mülheim an der Ruhr (hereinafter referred to as: "TCL"); valid from 1.9.2022

§ 1 Scope of application
TCL's Terms and Conditions of Sale and Delivery shall apply exclusively to all business relations between TCL and the contracting parties (hereinafter also referred to as "Buyer" or "Customer"), unless otherwise expressly stipulated in writing. They shall also apply to future business relations, even if they are not expressly agreed upon again. Deviating or conflicting general terms and conditions of the contractual partner, even if known, shall not become part of the contract, unless TCL has agreed to their validity in writing. The terms and conditions of sale and delivery do not apply to transactions with consumers in the sense of § 13 BGB (German Civil Code).

§ 2 Conclusion of Contract
(1) The contract shall only be concluded when TCL confirms the order to the Buyer in text form or upon delivery of the goods. In order to comply with the form, the transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient, provided that a copy of the declaration is transmitted. Order confirmations are generated by the system and are effective without signature.
(2) TCL shall only assume a warranty if this is expressly declared by TCL in text form.
(3) The documents provided by TCL within the scope of the contract initiation and the conclusion of the contract, such as illustrations and drawings, as well as the information provided by TCL regarding weight, space, dimensions, power requirements and performance shall be authoritative. Deviations customary in the trade and deviations resulting from legal regulations or representing technical improvements as well as the replacement of components by equivalent parts are permissible as far as they do not impair the usability for the contractually intended purpose.


§ 3 Scope of delivery, transport and transfer of risk
(1) Deliveries shall in principle be made ex works from the respective registered office of the place of business.
(2) Delivery periods shall commence at the earliest after receipt of all documents required for the determination of the content of the order, as far as the Buyer has to provide them as agreed, and as far as the Buyer has to make a down payment as agreed, after receipt of the agreed down payment by TCL.
(3) Deadlines and dates for deliveries and services announced by TCL are always only approximate and are outgoing dates, unless a fixed deadline or a fixed date has been expressly promised or agreed in text form. If shipment has been agreed upon, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party in charge of the transport and thus from the time of leaving the factory.
(4) TCL may - without prejudice to its rights arising from default of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the Customer does not meet its contractual obligations towards the Seller.
(5) TCL shall not be liable for impossibility of delivery or for delays in delivery as far as these are caused by force majeure or other events which were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in the procurement of necessary official permits, official measures or the lack of, incorrect or untimely delivery by suppliers, pandemics, wars or other influencing events for which TCL is not responsible. If the Customer cannot be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by immediate written declaration to the Seller.
(6) If shipment or delivery of the delivery item is delayed at the request of the Buyer or due to circumstances originating in the sphere of risk and/or responsibility of the Buyer, the Buyer shall reimburse TCL for the costs incurred by the storage as well as the costs of interest on the capital invested for the delivery item. In case of storage by TCL the claim shall amount to at least 0.5% of the outstanding invoice amount for each month or part thereof, starting one month after notification of readiness for shipment or from the agreed delivery date. the Buyer shall be entitled to prove a lower damage. TCL is, however, entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable period of time and to supply the Buyer as a substitute with a reasonably extended period of time.
(7) TCL is entitled to make partial deliveries if the stock quantities and delivery times are not sufficient for the Buyer's order or if other disruptive factors such as supply, raw material or other crises (pandemics, wars, strikes etc..) or force majeure have an influence.
(8) If TCL is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the liability of the Seller shall be limited to damages in accordance with § 7 of these Terms and Conditions of Sale and Delivery.
(9) Upon request of the Buyer expressed in writing or in text form (e-mail or fax) TCL shall take out transport insurance for the Buyer and for the Buyer's account on the basis of the general transport insurance conditions for the transport of the goods covered by the order ex works to the agreed place of destination.
(10) In the event that commercial clauses are agreed, the Incoterms as amended from time to time shall apply. The scope of delivery is specified in the order confirmation.
(11) Shipment shall be made freight collect. Shipping costs shall be borne by the Buyer by means of the specified shipping method including customary packaging. The packaging will not be taken back. Orders up to EUR 150.00 will be charged with a minimum quantity surcharge of EUR 25.00. Orders of the product series Prägo deviate from this and are subject to the following surcharges: Orders under EUR 65 with surcharge of EUR 20.00, orders under EUR 80 with surcharge of EUR 10.00.


§ 4 Warranty, material defects
(1) The warranty period shall be 6 months from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Buyer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
(2) The delivered items shall be inspected carefully immediately after delivery to the Buyer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognizable in case of an immediate, careful inspection, they shall be deemed to be approved by the Buyer if TCL does not receive a written notice of defects within five working days after delivery. With respect to other defects the delivered goods shall be deemed to have been accepted by the buyer if the notice of defect is not received by TCL within five working days after the point in time when the defect became apparent; if the defect was already apparent to the buyer at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the commencement of the period of notice. Upon request of TCL a rejected delivery item shall be returned freight prepaid. In case of a justified notice of defect TCL shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of the intended use.
(3) In the event of material defects of the delivered items TCL shall be obliged and entitled to choose between rectification of defects or replacement delivery within a reasonable period of time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reasonably reduce the purchase price.
(4) If a defect is based on the fault of TCL, the Customer may claim damages under the conditions stipulated in § 7.
(5) In case of defects of components of other manufacturers which TCL cannot remedy for licensing or factual reasons, TCL shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against TCL shall only exist in case of such defects under the other conditions and in accordance with these Terms and Conditions of Sale and Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute the limitation of the respective warranty claims of the Customer against TCL shall be suspended.
(6) The warranty shall lapse if the Customer modifies the delivery item or has it modified by a third party without the consent of TCL and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case the Customer shall bear the additional costs for the rectification of defects resulting from the modification.
(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.

§ 5 Delivery of Software
(1) If the delivery item is sold together with an electronic device, TCL grants the Buyer a non-exclusive, revocable and in principle non-transferable right of use to the associated software. The transfer is exceptionally permissible if the user proves a justified interest in the transfer to a third party while giving up his own use, e.g. in case of sale of the complete machine.
2) The scripts and programs required for the operation of the delivery item are regularly subject to copyrights and industrial property rights and remain the property of TCL or its subsidiaries.

§ 6 Prices
(1) The deliveries of TCL shall be made at the prices announced in the respective valid price lists, unless another price has been agreed between TCL and the Buyer and confirmed by TCL in writing or by telecommunication, in particular by fax or by e-mail. All prices are ex works or place of dispatch. Additional costs or remuneration or fees and taxes may be incurred for the processing of the delivery item. Furthermore, all prices, unless otherwise indicated, are in Euro and exclusive of transport, insurance, installation and instruction costs, as well as the statutory value added tax at the applicable rate. In the case of exports, any fees and customs duties incurred shall be passed on to the Buyer or otherwise borne by the Buyer.

(2) All price quotations in offers are subject to change and their validity expires 14 days after offer transmission.

(3) TCL shall be entitled to unilaterally adjust the prices if circumstances occur between the date of the order confirmation and the date of delivery which make the production or the procurement of the delivery item more expensive by more than 5% and TCL is not responsible for this price increase. This includes, in addition to changes in the raw material market, in particular exchange rate fluctuations and price increases of suppliers but also effects of logistic crises, wars, pandemics or other influences.
(4) Prices which are subject to errors or which have been communicated incorrectly may be corrected by TCL upon becoming known and they are only valid after the correction. This applies in particular in the offer phase and in case of an order confirmation. After invoicing a correction is no longer possible, unless the contractor was aware of the errors or mistakes and kept silent about them for personal benefit.

§ 7 Liability for damages due to fault
(1) Unless otherwise stipulated in these Terms and Conditions of Sale and Delivery including the following provisions, TCL shall be liable in case of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) In case of ordinary negligence TCL shall only be liable:
(a) for damages resulting from injury to life, body or health,
(b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, TCL's liability shall be limited to the compensation of the foreseeable, typically occurring damage, in the maximum amount, of the service provided by TCL. This also applies to damages which have not occurred to the delivery item itself. Any further liability is excluded.
(3) Indirect damages and consequential damages resulting from defects of the delivery item are excluded from liability, with the exception of injury to physical health or life.
(4) The limitations of liability resulting from § 7 (2) and (3) shall not apply if TCL has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same shall apply to claims of the Customer under the Product Liability Act.
(5) Insofar as TCL provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(6) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of TCL.

§ 8 Payment and Default
(1) Invoices of TCL are due and payable within 14 calendar days from date of invoice, unless otherwise agreed in text form. Payment shall be made exclusively to the bank account specified in the invoice. The deduction of a cash discount is only permissible with a separate written agreement.
(2) Payment for deliveries outside the EU shall be made exclusively by advance payment, unless otherwise agreed in writing.
(3) In case of default of payment interest on arrears will be charged at the statutory rate.
(4) In case of payment by installments TCL shall be entitled to demand immediate payment of the entire remaining purchase price if the Buyer is in default with two or more consecutive payment installments and the amount owed exceeds 10% of the purchase price.
(5) If after the confirmation of the order TCL becomes aware of circumstances which give rise to doubts about the solvency or the willingness to pay of the Buyer, as well as in case of default of payment of the Buyer, TCL shall be entitled to postpone the execution of further deliveries until full payment of the purchase price or an adequate security to be determined by TCL. If the Buyer does not comply within a reasonable period of time, TCL is entitled to withdraw from the contract in whole or in part.
§ 9 Retention of Title
(1) TCL shall only deliver on the basis of the retention of title described in more detail below. This shall also apply to all future deliveries, even if TCL does not expressly refer to this.
(2) TCL reserves the title to the delivery item until it has been paid in full. The retention of title shall furthermore continue until all claims arising from the business relationship with the Buyer have been settled or all bills of exchange have been honored. Upon request of the Buyer, TCL shall release the delivery item to the extent that the security interest of TCL ceases to exist. The security interest shall cease to exist to the extent that the realizable value of the delivery item exceeds the cover limit of 110% of the secured claims not only temporarily. It shall be presumed that the cover limit is reached if the appraised value of the delivery item at the time of the request for release corresponds to 150% of the secured claims. The proof of another realizable value of the delivery item remains possible.
(3) The Buyer shall be entitled to process and/or sell the delivery item in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The Buyer hereby assigns to TCL by way of security any claims arising from the resale or any other legal ground with regard to the delivery item up to the amount of the purchase price claim of the contractor. This assignment shall apply irrespective of whether the delivery item has been resold without or after processing. TCL revocably authorizes the Buyer to collect the claim assigned to TCL in his own name and for the account of TCL. This authorization to collect may only be revoked if the Buyer does not duly meet his payment obligations towards TCL.
(4) Any processing or transformation of the delivery item shall always be carried out for TCL, however without any obligation for TCL. If the (co-)ownership of TCL expires due to combination, mixing and/or processing, it is already now agreed that the (co-)ownership of the Buyer in the unified item shall pass to TCL in proportion of the value of the total claim according to § 9 para. 2 to the value of the other items. The Buyer shall keep the property of TCL free of charge.
(5) During the period of retention of title the following shall apply:
(a) TCL is entitled to take back the delivery item if the Buyer acts contrary to the contract.
(b) The Buyer shall keep the delivery item free from any access of third parties at his own expense and shall immediately notify TCL in writing of any threatened access, including such access affecting the business premises of the Buyer.
(c) In case of access of third parties to the delivery item, in particular in case of seizure, the Buyer shall point out TCL's ownership and notify TCL without undue delay so that TCL can enforce its ownership rights. To the extent that the third party is not in a position to reimburse TCL for any judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for such costs.
(d) A change of location of the delivery item requires the prior written consent of TCL and may only be carried out by employees of TCL or its agents.
(e) The Buyer shall keep the delivery item in perfect condition. Furthermore, he shall insure the delivery item at his own expense for the benefit of TCL against damage in transit, assembly, machine breakage, fire, burglary and mains water and provide TCL with the evidence of insurance and premium payment upon its request.
(f) The Buyer shall allow TCL or its agents to inspect the delivery item and for this purpose to enter the premises where it is located and undertakes to provide assistance if necessary without claiming compensation therefor.
(6) TCL shall retain its property rights and copyrights to offers, order confirmations, invoices, cost estimates, drawings and system concepts as well as to any other documentation supplied. Any duplication or transfer to third parties is prohibited without the written consent of TCL.

§ 10 Warranty Claims - Limitation Period
If a delivery item is defective, TCL shall be obliged to provide warranty exclusively in accordance with the following provisions.
(1) For consumables the following applies:
(a) The Buyer shall inspect the delivery item without delay. The Buyer shall notify TCL in writing of any obvious defects of the delivery item within a period of six days from receipt of the delivery item and of any hidden defects within a period of six days from discovery; otherwise the goods shall be deemed approved and the warranty shall be excluded. The Purchaser shall bear the full burden of proof for all claim prerequisites, in particular for the existence of a defect, for the time of discovery of the defect and for the timeliness of the notice of defect.
(b) Upon discovery of a defect, the consumables must be separated in the condition in which the defect was discovered, kept ready for inspection by TCL and sent to TCL. Otherwise they shall be deemed approved in the condition delivered without further liability of TCL. § 10 para. 1 a) shall apply accordingly.
(c) If the Buyer has fulfilled the requirements described in lit. a) and b) above, TCL shall be obliged to remedy the defect and shall do so by removal of the defect (rectification) or by delivery of a defect-free item (ineffective: the Buyer shall have the right to choose the warranty rights).
d) If the rectification fails, the buyer is entitled to withdraw from the contract or to reduce the purchase price. A failure of the rectification shall only be deemed to exist if TCL has unsuccessfully attempted the rectification at least twice. The withdrawal is excluded if the breach of duty by TCL is only insignificant.
(e) The Buyer shall give TCL the necessary time and opportunity to carry out all rectifications and replacement deliveries which TCL deems necessary after consultation with TCL.
(f) TCL shall bear the expenses necessary for the purpose of rectification, in particular transport, travel, labor and material costs only for the place of delivery, unless the delivery item has been moved to another business location of the Buyer pursuant to § 9 para. 5 d).
(g) Additional costs resulting from a shipment of the delivery item to a place other than the place of delivery not agreed with TCL shall be borne by the Buyer.
(h) If the Buyer requests the urgent dispatch of a technician or the performance of the work outside the normal working hours due to operational reasons involving additional costs for TCL, the Buyer shall bear the additional costs incurred thereby (e.g. overtime surcharges, costs of longer journeys).
(i) Replaced parts become property of TCL.
(j) The limitation period for claims for defects of consumables is limited in time to six months from the passing of risk (§ 4 para. 1).
(k) A defect of the delivery item does not exist,
(aa) if objects of purchase delivered by TCL are used in the business of the Buyer and in functional connection with hardware and software components acquired or existing from third parties and the malfunction is not caused by components delivered by TCL or their lack of compatibility. If TCL has expressly warranted compatibility with third party products, this only refers to the current product version at the time of this warranty, but not to older or future product versions (updates or upgrades) of this product.
(bb) if and to the extent that a malfunction is due to the fact that the customer has not ensured compliance with technical framework conditions specified in the documentation and documents supplementing the same.
(cc) In case of elimination of the malfunctions mentioned under k) aa) and bb) by TCL the Buyer shall reimburse TCL the usual remuneration and costs on corresponding invoice.
(2) In case of machines, machine-like equipment and software, all subsequent performance, services and the respective supply of parts shall be carried out directly by the manufacturers or suppliers of TCL. In case of a defect the Buyer is obliged to contact the respective manufacturer or supplier named by TCL directly. In this respect TCL assigns, as far as legally possible, all possible warranty claims against the manufacturers or suppliers of TCL to the Buyer.
(3) If a qualitative acceptance of a delivery or service has been agreed upon within the scope of a contract, this acceptance shall be checked and granted by the Customer within 2 days after delivery or rendered service. If defects are recognizable which contradict an acceptance, these defects shall be submitted to TCL in text form and with evidence within 2 days. In order to remedy such defects TCL must be given access to the defective goods or equipment. If the Customer does not provide access for the rectification of defects within 14 days, the goods or services shall be deemed accepted and released after this period without further written notice.

§ 11 Reversal of the purchase contract
(1) In case of rescission of the purchase contract (e.g. due to withdrawal of one of the contracting parties) the Buyer shall be obliged to return the delivery item to TCL in advance, without prejudice to the other handling according to the following paragraphs. TCL is entitled to have the delivery item collected from the premises of the Buyer.
(2) Furthermore, TCL is entitled to claim compensation from the Buyer for any deterioration, loss or impossibility of return of the delivery item which has occurred or is occurring for any other reason and which is within the sphere of risk or responsibility of the Buyer.

§ 12 Assignment
The assignment of the rights and/or the transfer of the obligations of the Buyer under the contract are not permitted without the consent of TCL in text form.

§ 13 Export Control Regulations
The delivery items as well as software may be subject to the export control regulations of the Federal Republic of Germany, the European Union, the United States of America or other countries. In the event of a subsequent export of the delivery item to a foreign country, the Buyer shall be responsible for compliance with the statutory provisions.

§ 14 Place of Jurisdiction, Applicable Law and Severability Clause
(1) For contracts with merchants as well as with legal entities under public law and special funds under public law, Mülheim is agreed as the exclusive place of jurisdiction.
(2) Insofar as the above conditions do not contain a conclusive provision, German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) Should any provision of these Terms and Conditions of Sale and Delivery be or become void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby. The void, invalid or unenforceable provision shall be deemed to be replaced by such valid and enforceable provision which comes closest to the economic purpose pursued by the void, invalid or unenforceable provision in terms of subject matter, extent, time, place or scope. The same shall apply to any loopholes in these Terms and Conditions of Sale and Delivery. Note: The Customer acknowledges that TCL stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) to the extent necessary for the performance of the contract.