General Terms and Conditions of TDT AG

The following General Terms and Conditions (GTC) of TDT AG, based in D-84051 Essenbach, apply to all our business relationships with our customers who are entrepreneurs (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law. Unless otherwise agreed, the GTC in the version valid at the time of the customer's order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case. Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer's terms and conditions. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.

I. Offer and order

§ 1
Our offers are subject to change. Orders and ancillary agreements require written confirmation.

§ 2
Our brochures, illustrations, data and the like are only approximate. Reasonable changes are permissible unless the usability for the contractually intended purpose requires exact conformity or such conformity is expressly agreed.

§ 3
The subject matter of the contract is, depending on the agreement, the delivery of telecommunications components/services and their maintenance through to complete network service. With regard to the scope and type of initial installation and commissioning at the customer's location, the respective order confirmation/agreement shall be decisive.
Extensions or adjustments to the standard firmware in our devices after the time of the order confirmation, which arise due to system functions at the customer's premises or due to changes in the regulations governing the use of public data networks, are not part of the service and require a special agreement on a case-by-case basis.

§ 4
All prices are net ex works Essenbach/Altheim. In the event of a repeat order, the price of the previous order shall only apply if this has been expressly agreed. If there is a period of more than 3 months between the order confirmation and the delivery date, we are entitled to make an appropriate price adjustment in the event of significant changes to the calculation basis.
In the case of repair orders, the labour required to determine defects shall be remunerated if no repair order is placed. If an order is not placed within one month of a cost estimate being drawn up, the appliance will be returned to the customer in an unrepaired, disassembled state and the labour costs will be charged.

§ 5
Our cost estimates, drawings, samples, drafts and other documents may not be used for any other purpose or made accessible to third parties. Orders based on drawings, sketches and other information provided shall be carried out at the customer's risk with regard to third-party property rights. Interference with third-party rights shall be at the expense of the customer, who shall indemnify us against any claims in this respect.


II Delivery and transfer of risk

§ 6
Stated delivery dates are not binding unless otherwise agreed. Partial deliveries by us are permissible if the partial delivery does not unreasonably impair the interests of the customer; in the event of an unforeseen event which makes it impossible or unreasonable for us to supply all customers, we may divide the existing stock between several customers.
If we are unable to meet binding delivery or performance deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery or performance deadline. If the service is also not available within the new period, we shall endeavour to offer alternative products or services. A case of non-availability of the service in this sense is in particular

  • the failure of our supplier (supplier or subcontractor) to deliver to us on time if we have concluded a congruent hedging transaction,
  • if neither we nor our suppliers (suppliers or subcontractors) are at fault,
  • in the event of unforeseeable and extraordinary obstacles to performance that are beyond our control, such as natural disasters, epidemics, pandemics, armed or terrorist conflicts, strikes, lawful lockouts, official orders or warnings, energy supply difficulties or supply bottlenecks on the global market for electronic components. We shall be released from our performance obligations for the duration and to the extent of the unavailability of the service.

The rights of the customer pursuant to § 23 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfillment), shall remain unaffected.

§ 7
Delivery shall be ex works Essenbach/Altheim, which is also the place of fulfillment for the delivery and any subsequent fulfillment. At the customer's request and expense, the goods shall be dispatched to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging, insurance) ourselves.

§ 8
The risk shall pass to the customer upon dispatch of the goods, even if we have assumed other services, such as delivery and/or installation. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the goods are ready for dispatch. Any storage of the customer's goods shall be at the customer's risk. If the goods are stored at our premises for longer than 2 weeks after notification of readiness for dispatch, we shall be entitled to store the goods externally at the customer's expense or to charge storage fees.

§ 9
The terms of payment are based on the conditions set out in offers, order confirmations and written agreements.
In the case of new customers, payment shall be made either in advance or cash on delivery, at the customer's discretion. Customers with whom a business relationship already exists shall be supplied by us on account, provided that they are creditworthy, whereby the payment shall in any case only become due after or upon provision of our service. However, we reserve the right at any time to make delivery only against payment in advance or cash on delivery, in particular if the customer is in arrears with a claim from us or if there are objectively justified doubts about the customer's creditworthiness.

§ 10
The customer may only offset undisputed or legally established claims against our claims. Similarly, the customer shall only be entitled to refuse performance or withdraw from the contract on the basis of undisputed or legally established claims which must arise from the same legal relationship from which our claim arises. In the event of defects in the delivery, the customer's counter-rights shall remain unaffected, in particular in accordance with § 20 sentence 3 of these GTC

§ 11
If bills of exchange or cheques are accepted on account of payment, we shall be entitled to charge the costs incurred. We accept no liability for the timely presentation, protest, notification and return of a bill of exchange in the event of dishonour.

§ 12
If the customer defaults on a payment, we shall be entitled, without prejudice to further rights, to refuse to fulfill our obligations arising from the entire business relationship with the customer until the default has been remedied or to withdraw from the contract after granting a reasonable grace period.
In the event of default, we shall be entitled to charge interest at a rate of 9 percentage points above the respective base interest rate.


III. Retention of title

§ 13
We reserve title to the delivered or installed items until all claims have been completely fulfilled.

§ 14
We are entitled to insure the reserved goods against theft, breakage, water and other damage at the customer's expense, unless the customer has demonstrably taken out appropriate insurance himself.

§ 15
The customer is authorised to process and resell the goods subject to retention of title insofar as this is done in the ordinary course of business. He is not permitted to pledge or assign the reserved goods as security. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access (e.g. seizures) to the reserved goods belonging to us.

§ 16
The customer hereby assigns to us as security all claims to which he is entitled in connection with the resale (extended reservation of title). Notwithstanding this, the customer shall be entitled and obliged to collect the claim from the resale as long as we do not revoke this authorisation. The customer undertakes to inform us at our first request against whom he has claims arising from the resale of the goods delivered by us subject to retention of title.  
The customer undertakes to hand over to us all documents required to assert the claim assigned to us.

§ 17
In the event of processing with other goods not belonging to us by the customer, we shall acquire co-ownership of the new item in the amount of the invoice amount including VAT of the reserved goods.

§ 18
If the customer defaults on payment or otherwise breaches his contractual obligations, we shall be entitled to take back the goods subject to retention of title and to suspend agreed services, even if we do not withdraw from the contract. The demand for the return of goods does not at the same time include a declaration of cancellation. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if this is dispensable due to statutory provisions.

§ 19
If the realisable value of all the above security interests exceeds the amount of all secured claims by more than 10%, we shall release security interests of our choice at the customer's request.


IV. Warranty

§ 20
For defects and for the absence of the contractually agreed quality of delivered items or services rendered, which are notified to us in writing by the customer immediately after their discovery and which are based on a circumstance prior to the transfer of risk, we shall provide a warranty exclusively in such a way that, within the scope of subsequent fulfillment, we shall initially, at our discretion, either repair the goods at the Essenbach/Altheim plant or deliver defect-free items or spare parts ex works Essenbach. We shall be entitled to make the subsequent fulfillment owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect. The warranty begins with the transfer of risk and ends after 24 months, regardless of the operating time of the devices. If the rectification has failed or a reasonable deadline set for the rectification or replacement delivery has expired without success or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the remuneration.
There is no right of cancellation in the event of an insignificant defect. Other claims of the customer due to defects or the absence of the agreed quality, in particular claims for compensation due to consequential damages, are excluded, unless otherwise stated in §§ 23 and 24 of these GTC.

§ 21
Our warranty obligation shall lapse if the delivered items or services rendered are modified, improperly handled, treated or processed, unless the treatment or processing is carried out in accordance with the technical guidelines specified by us. Proper handling includes the necessary compliance with the installation, operating and maintenance instructions, which must be proven by the customer. Furthermore, no warranty is assumed for damage resulting from natural wear and tear.

§ 22
If we are obliged to provide subsequent fulfillment and if, in the course of subsequent fulfillment, parts of the service are to be replaced which are not connected with a defect in our product (anyhow costs), we can make subsequent fulfillment dependent on the customer making a corresponding additional payment. Subsequent fulfillment does not include the removal of the defective item or reinstallation if we were not originally obliged to install it. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.


V. Liability

§ 23
We shall be liable for damages, irrespective of the legal grounds, within the scope of fault-based liability in the event of wilful intent or gross negligence. In the event of simple negligence, we shall only be liable for damages resulting from injury to life, limb or health and for damages resulting from a not insignificant breach of a material contractual obligation (obligation whose fulfillment enables the proper execution of the contract and on whose compliance the customer regularly relies and may rely). In the latter case, however, our liability shall be limited to compensation for the foreseeable, typically occurring foreseeable damage, in the case of delay to 5% of the value of the goods delivered late. The above limitations of liability shall also apply in the event of breaches of duty by or in favour of persons whose fault we are responsible for in accordance with the statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods or for claims of the customer under the Product Liability Act.

§ 24
If the customer has contributed to the occurrence of damage for which we are liable in accordance with § 23 through culpable behaviour (e.g. by violating his duties to cooperate or other obligations) or has failed to take necessary measures to minimise the damage, the extent to which we and the customer must bear the damage shall be determined in accordance with the principles of contributory negligence. Notwithstanding sentence 1, we shall only be liable for the loss of data or damage to recorded data under the conditions and to the extent of § 23 and up to the amount that would have been incurred if the data had been properly and regularly backed up in order to restore it.


VI Choice of law and place of jurisdiction

§ 25
The contractual relationship shall be governed in its entirety by German law to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

§ 26
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Essenbach, Germany. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, in all cases we shall also be entitled to bring an action at the customer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties undertake, within reasonable limits, to replace the invalid provision with a provision that comes as close as possible to the economic result of the invalid provision and which they would have agreed if they had been aware of the invalidity beforehand. The same applies in the event of a loophole.


VII Taking back old appliances

§ 28
The customer assumes the obligation to properly dispose of the delivered goods after the end of use at his own expense in accordance with the statutory provisions and to indemnify us against any obligation to take back the goods and any associated third-party claims.
If the customer passes the goods on to commercial third parties and does not contractually obligate them to take over the disposal and to continue the obligation, it is the customer's responsibility to take back the delivered goods after the end of use at his own expense and to dispose of them properly in accordance with the statutory provisions. Our claim for acceptance/release by the customer shall not expire before the expiry of two years after the final termination of use of the device. The two-year period of suspension of expiry shall commence at the earliest upon receipt by us of a written notification from the customer.