GTC – Sales & Services

Applicable to supply and works contracts

§1 General Provisions

The following terms and conditions apply to all business transactions of Tykma Markiersysteme GmbH. They shall also apply to future business relationships even if the terms and conditions are not expressly agreed again. Any deviating terms and conditions of the Buyer shall not apply unless Tykma Markiersysteme GmbH has expressly agreed to their applicability in writing. Our terms and conditions shall also apply if Tykma Markiersysteme GmbH, being aware of conflicting or deviating terms and conditions of the Buyer, carries out deliveries to the Buyer without reservation. The foregoing sentences 1 and 2 of this paragraph shall also apply upon acceptance of partial deliveries.
No further agreements have been made between us and the Customer and no assurances have been given.
Tykma Markiersysteme GmbH may allow affiliated companies to enter into the contract with the Buyer in its place. In such case, these General Terms and Conditions shall continue to apply in full.

§2 Offers, Conclusion of Contract, Copyright

Our information and offers are subject to change and non-binding, i.e. they do not constitute offers to conclude a contract, but merely invitations to the Customer to submit offers. They are non-binding unless an express assurance is given. In view of the continuous technical development and improvement of our products, we reserve the right to make changes in design and execution compared with the information provided in our offers, provided that the value of the offered products is not impaired thereby. This shall also apply to changes serving to maintain the deliverability of the products offered by us. To this extent, we are also entitled to change performance to the extent that such changes are reasonably acceptable to the Buyer for the best possible order fulfillment.
Contracts are concluded upon our order confirmation.
We reserve all ownership rights and copyrights to all documents belonging to the offer and the order. Such documents may not be made accessible to third parties without our prior written consent and must be returned without delay upon request if the order is not placed. Development work and designs for the creation of marking systems and equipment and other products remain our intellectual property and may neither be made accessible to third parties nor used for the Customer’s own purposes. The Customer is obliged to maintain comprehensive confidentiality, even if no order is placed.

§3 Prices, Terms of Payment

We are bound by the prices stated in our offers for 90 days from the date of the offer, unless otherwise agreed. The prices stated in the order confirmation plus the statutory value added tax (VAT) applicable at the time shall apply. Our prices are ex works Wuppertal and exclude packaging and insurance. Packaging costs shall be charged at cost price. Installation, training or other ancillary services are not included.
Unless otherwise stated in the order confirmation, our invoices are payable within 14 days from the invoice date without deduction. Any cash discount requires a separate written agreement.
Cheques are accepted in all cases only on account of performance. All actual collection charges shall be charged to the Customer.

§4 Default in Payment, Assignment of Receivables, Creditworthiness

If a fixed payment date and/or the 30-day payment period is exceeded, we are entitled to charge default interest in the amount of 5% above the respective discount rate of the Deutsche Bundesbank, but at least 8% p.a. The assertion of further damages is expressly reserved. We are entitled to assign the claims arising from our business relationship.
The assignment of receivables against Tykma Markiersysteme GmbH to third parties is excluded unless Tykma Markiersysteme GmbH has expressly consented.
In the event of justified doubts as to the Buyer’s creditworthiness, e.g. dishonour of cheques and bills of exchange, cessation of payments, application for the opening of composition or bankruptcy proceedings, unsuccessful attachment, we are entitled to declare the entire remaining debt due, even if we have accepted cheques. In this case, we are also entitled to demand advance payment or the provision of security.
The Customer shall only be entitled to a right of retention insofar as it is based on the same contractual relationship. The Customer may only set off counterclaims that are either undisputed or have been finally adjudicated.

§5 Retention of Title

The products shall remain the property of Tykma Markiersysteme GmbH until full payment of all claims; bills of exchange and cheques shall only be deemed payment upon redemption.
The Customer must safeguard our property until full payment has been made. Pledging or transfer by way of security is prohibited to the Customer to that extent. Resale is permitted only in the ordinary course of business. In the event of resale of goods subject to retention of title, the Customer hereby assigns to Tykma Markiersysteme GmbH, in full, its purchase price claims against the purchasers.
In commercial transactions, an extended retention of title shall arise for goods that are resold or handed over to third parties by the Customer. The Customer shall inform the third party of its payment obligations and of the existing retention of title of Tykma Markiersysteme GmbH. The Customer hereby assigns to Tykma Markiersysteme GmbH the claims to which it is entitled from the resale of the goods subject to retention of title against its customers, together with all ancillary rights, and, in the event of processing, combining and mixing, in the amount of the value of the products supplied by Tykma Markiersysteme GmbH.
For the duration of the retention of title, the equipment owned by Tykma Markiersysteme GmbH must be insured by the Customer against fire, water, theft and burglary theft. The rights arising from this insurance are assigned to Tykma Markiersysteme GmbH. Tykma Markiersysteme GmbH accepts this assignment.
Special contractual provisions regarding the extended retention of title with processing clause of Tykma Markiersysteme GmbH. Tykma Markiersysteme GmbH reserves title to the delivered item until receipt of all payments – including any additionally owed ancillary services – arising from the supply contract. In the event of default in payment, Tykma Markiersysteme GmbH is entitled, after reminder, to take back the delivered item and the Customer is obliged to surrender it. This also applies in the event of other breaches of contract by the Customer. On the basis of the retention of title, Tykma Markiersysteme GmbH may only demand surrender of the delivered item if it has withdrawn from the contract. In the event of seizures or other interventions by third parties, the Customer shall notify Tykma Markiersysteme GmbH without delay. The filing for the opening of insolvency proceedings over the Customer’s assets entitles Tykma Markiersysteme GmbH to withdraw from the contract with immediate effect and to demand immediate return of the delivered item. The Customer is entitled to resell the delivered item in the ordinary course of business. However, the Customer hereby assigns to Tykma Markiersysteme GmbH all claims that arise from the resale against the purchaser or against third parties. The Customer remains authorised to collect these claims even after the assignment. This does not affect the right of Tykma Markiersysteme GmbH to collect the receivables itself.

The authority to collect expires if:

the Customer is in default with its payment obligations towards Tykma Markiersysteme GmbH
it has been revoked
an application for the opening of insolvency proceedings has been filed.

In that case, Tykma Markiersysteme GmbH may require that the Customer
discloses the assigned receivables and their debtors,
provides all information required for collection,
hands over the relevant documents, and
notifies the debtors of the assignment, insofar as this has not already been done by Tykma Markiersysteme GmbH.

If the delivered item is resold together with other goods not belonging to Tykma Markiersysteme GmbH, the Customer’s claim against the purchaser shall be deemed assigned in the amount of the delivery price agreed between Tykma Markiersysteme GmbH and the Customer. The processing or transformation of goods subject to retention of title is always carried out by the Customer for Tykma Markiersysteme GmbH. If the goods subject to retention of title are processed with other items not belonging to Tykma Markiersysteme GmbH, Tykma Markiersysteme GmbH acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing. The Customer shall keep the property or co-ownership in custody for Tykma Markiersysteme GmbH. Otherwise, the same shall apply to the item resulting from processing or transformation as applies to the goods subject to retention of title.

§6 Transfer of Risk, Shipping, Freight

Risk shall pass to the Customer as soon as the shipment has been handed over to the company carrying out the transport or has left our warehouse for dispatch, even if delivery free of freight has been agreed. This shall also apply to deliveries including installation / assembly / commissioning. Risk shall also pass to the Customer if the Customer fails to accept the ordered goods that have already been segregated, despite our readiness and ability to perform. If dispatch is delayed at the Customer’s request despite readiness to perform and due date, risk in the purchased items shall pass to the Customer. In addition, we are entitled to charge, as damages for delay, a flat-rate storage fee of 10% of the invoice amount per month.
Shipping shall be at the Customer’s expense. Unless shipping instructions are provided by the Customer, the choice of means and route of transport shall be at our discretion.
Tykma Markiersysteme GmbH is entitled, but not obliged, to insure deliveries against transport risks in the name and for the account of the Customer.

§7 Delivery Time, Delivery Periods

Agreed delivery periods shall commence only after all details of execution have been fully clarified and the order has been confirmed by Tykma Markiersysteme GmbH. Delivery periods shall always be understood as excluding transport time.
We are entitled to make partial deliveries and to deliver early.
Delays in delivery and performance due to force majeure and due to circumstances and events that substantially impede or prevent delivery release us from the obligation to deliver and are not attributable to us, even in the case of bindingly agreed periods and dates. The same shall apply in the event that a supplier fails to supply us through no fault of Tykma Markiersysteme GmbH. In such cases, we shall be entitled, at our option, to postpone our deliveries and services by the duration of the impediment plus a reasonable start-up period, or to withdraw in whole or in part from the contract with respect to the part not yet performed.
Force majeure is an extraordinary, unforeseeable and unavoidable event (e.g. natural disasters, war, revolution, fire) the consequences of which cannot be averted by economically reasonable precautions. This also includes strikes, lockouts and governmental interventions, insofar as these are unforeseeable or are not caused or co-caused by any act or omission attributable to the supplier.
If our delay in delivery exceeds three months, the Customer shall be entitled, after setting a reasonable grace period with notice of refusal, to withdraw from the part of the contract not yet performed. The Customer may not derive any further claims for damages from a delivery delay, provided that the Customer was notified by us without undue delay.
Proper and timely fulfillment of the Customer’s obligations is a prerequisite for compliance with our delivery and performance obligations. If the Customer is in default of acceptance, the Customer undertakes to reimburse our resulting expenses.
In the event of a breach of ancillary obligations, no liability shall apply in cases of slight negligence.

§8 Installation and Assembly

The following provisions shall apply to any kind of installation or assembly:

The Customer shall, at its own expense, assume and provide in due time:

Suitable skilled personnel as assistants, as well as the tools required by them in the necessary quality and quantity.
All necessary preparatory and ancillary work (preparatory assistance) so that assembly can be started promptly and carried out without interruption.
All necessary operating resources (electricity, compressed air, etc.) including the required connections up to the point of use.
If installation, assembly or commissioning is delayed due to circumstances within the Customer’s sphere of risk, the Customer shall bear all costs for waiting time and any further necessary travel expenses of our assembly personnel.

§9 Warranty

We warrant warranted characteristics and freedom from defects in accordance with the respective state of the art. The warranty period shall commence upon transfer of risk and shall be 24 months. Any rectification work shall not trigger a new warranty period. Changes in design or execution that neither impair functionality nor the value of the ordered product remain reserved and do not entitle the Customer to complain. Any warranty of characteristics requires, in all cases, our written declaration or confirmation.
If the delivered item lacks a warranted characteristic or there is a defect in the product for which we are responsible that impairs the value or usability more than insignificantly, we shall be entitled, at our option, to remedy the defect or to make a replacement delivery. If, at the Buyer’s request, warranty work is to be performed at the place of performance and delivery address of the Buyer and we comply with this request, the Buyer shall bear the costs for travel time and travel expenses at our standard rates, while parts and labor time covered by warranty shall not be charged. Replaced parts shall be returned to us free of charge upon request.
Warranty obligations for Tykma Markiersysteme GmbH shall only take effect if the Customer has notified identifiable defects in writing, specifying the defects, within a period of 14 days after receipt of the products. Defects that occur later must be notified without undue delay after discovery, in writing and specifying the defects. This shall not affect the duties of merchants to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
If our operating or maintenance instructions are not followed, changes are made to the product, parts are replaced, or consumables are used that do not correspond to the original specifications, any warranty shall be void. A warranty obligation for self-contained device systems shall only exist if such systems were delivered by us at the same time and in full (all parts). Commissioning of the machine component(s) is prohibited until, after installation in a main machine and/or after the necessary safety devices have been installed, all requirements of the EC Machinery Directive (EC 89/392) regarding safety and health have been met. Warranty claims of the Customer shall not exist if the Customer itself or third parties, without our written consent, make changes beyond the necessary adaptation of the delivered items to the Customer’s operating process and the defect is based on such changes.
Warranty for optical elements and normal wear and tear is generally excluded.
Warranty claims against us shall only belong to the direct Customer and are not assignable.
If we fail to meet our warranty obligations within reasonably set time limits for reasons for which we are responsible, the Customer shall be entitled to withdraw from the contract or demand a reduction in the purchase price.
Further claims, in particular liability claims for consequential damages of any kind or claims for damages regardless of legal grounds, do not exist and may not be asserted by the Customer.

§10 Warranty for Software

We warrant that the software operates essentially in accordance with our program specifications, provided that the software is installed on the device systems intended by us in accordance with our guidelines. The warranty applies only to such software defects that are reproducible at any time. The warranty for software is limited to 6 months.
We undertake to remedy all defects that are not insignificant for contractual use, but reserve the right to remedy defects, depending on the significance of the defect, at our option either by installing an improved software version or by providing instructions for remedying or bypassing the defect.
If we provide the Customer with software and adaptation components (e.g. interfaces, etc.) as third-party products, we assume no warranty or liability for them. In such case, the limited license and warranty provisions of the respective manufacturer shall apply as additionally agreed. The Customer must be informed of these terms of use and warranty and must be given the opportunity to take note of them in a reasonable manner.
We assume no warranty that the software will operate error-free in all combinations selected by the Customer but not specified by us.
According to the current state of the art, it is possible that even original disks of the software manufacturers are infected by so-called computer viruses. Tykma Markiersysteme GmbH assures that it will exercise all due care to ensure that the Customer’s devices are not infected with such computer viruses by Tykma Markiersysteme GmbH. However, according to the current state of knowledge, it is not possible to detect and combat all mutations of these viruses. Should a computer virus nevertheless be demonstrably transmitted to a Customer device by Tykma Markiersysteme GmbH, Tykma Markiersysteme GmbH shall only be liable insofar as it has disseminated the virus intentionally or with gross negligence. The Customer releases Tykma Markiersysteme GmbH from examining originally packaged software for virus infection and releases it from any liability for damage caused by virus infection of such software. The foregoing disclaimer of liability shall not apply insofar as the cause of damage is based on intent or gross negligence.

§11 Rights to Software

With respect to programs and related documentation that belong to the intended use of our systems, as well as updates/upgrades, the Customer shall receive a non-exclusive and non-transferable right of use for the internal operation of each individual delivery. The Customer shall not be entitled to any further rights to programs and documentation.
Tykma Markiersysteme GmbH remains the sole holder of the copyrights. The Customer does not acquire ownership of the programs and is not entitled to reverse engineer, decompile or disassemble the software.
The Customer is not permitted to make programs, documentation and any supplements delivered later accessible to third parties, to copy them or otherwise reproduce them without our prior written consent.
Source code is generally not provided; it is only provided on the basis of a separate written agreement.

§12 Limitation of Liability

Further claims, in particular claims for damages arising from warranty including warranty claims in the absence of warranted characteristics, fault at the time of contract conclusion, tort, etc., are excluded unless they are based on at least gross fault of the legal representatives or executive employees of Tykma Markiersysteme GmbH. If the Customer is not a merchant within the meaning of the German Commercial Code (HGB), claims for damages are excluded unless they are based on intent or gross negligence of Tykma Markiersysteme GmbH or its vicarious agents. Insofar as Tykma Markiersysteme GmbH is obliged to pay damages, the obligation shall, insofar as legally permissible, be limited to compensation for the direct damage that has occurred to the item of delivery and performance itself. In this respect, Tykma Markiersysteme GmbH shall not be liable for lost profit or other pecuniary losses of the Customer.

§13 Industrial Property Rights

If goods are to be manufactured or delivered according to specifications, designs, drawings, models or samples provided by the Customer, the Customer warrants that industrial property rights or copyrights are not infringed by the manufacture or delivery. If manufacture or delivery is prohibited by third parties invoking an industrial property right or copyright, we shall cease manufacture or delivery. We are not obliged to examine the legal situation. At the same time, we exclude claims for damages by the Customer insofar as the Customer is responsible for the infringement of the industrial property right or copyright.

§14 Compensation in the Event of Contract Cancellation

If a contract is cancelled for reasons for which the Customer is responsible, the Customer must pay Tykma Markiersysteme GmbH compensation in the amount of 25% of the net order value, without prejudice to the possible assertion of a higher actual damage.

§15 Data Protection and Data Storage

Tykma Markiersysteme GmbH is entitled to process data of Customers, whether originating from the Customer itself or from third parties, within the meaning of the German Federal Data Protection Act. Customer data will be stored within the scope of statutory provisions.

§16 Jurisdiction, Place of Performance, Governing Law

If the Customer is a registered merchant (Vollkaufmann) or a legal entity under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of our company.
The place of performance for delivery and payment is our registered business address in Wuppertal.
German law shall apply exclusively to all transactions between the contracting parties (to the exclusion of international sales law). The applicability of foreign law to the contractual relationship is excluded.

§17 Severability Clause

Should provisions of these General Terms and Conditions be or become invalid in whole or in part, a provision shall replace them that comes as close as possible to the economic purpose of the invalid provision. The remaining contractual provisions shall remain unaffected.