DEFINITIONS
1. In these General Terms and Conditions the following terms have the meaning below:
- TOTECH: the private limited liability company, under the Laws of the Netherlands, Totech Europe B.V. having its legal seat in Zwolle, being TOTECH and supplier of the Product:
- Buyer: the counterparty with whom TOTECH concludes an agreement, respectively wishes to conclude such, or to whom TOTECH issues a designated offer, as well as his successor(s).
- Contract: the Written agreement between the parties
with regard to delivery of the Product and all exhibits, inclusive of changes agreed In Writing of and additions to the documents referred to; - Gross Negligence: an act or omission of Buyer that is characterised by wilful intent or conscious negligence;
- Written/In Writing: communication in the form of a document signed by
both parties or in the form of a letter, telefax, electronic mail and other means agreed by the parties; - the Product: mechanical, electrical, electronic products, including especially but not solely: hardware standard components, standard programs and individual software.
APPLICABILITY
2.1 These General Terms and Conditions are applicable if the parties agree this In Writing or otherwise. Each change or deviation thereof must be agreed In Writing.
2.2 These General Terms and Conditions are applicable to the entire execution of the commission. TOTECH is never bound by deviations from, additions to and stipulations contrary to these General Terms and Conditions, unless and insofar these have been accepted explicitly and In Writing by TOTECH. If the General Terms and Conditions of TOTECH are contrary to the general terms and conditions of the Buyer, then the General Terms and Conditions of TOTECH shall always prevail.
PRODUCT INFORMATION
3. Information and specifications included in general product documentation and price lists are only binding insofar the one and the other has been stipulated explicitly by Written reference in the Contract.
DRAWINGS AND TECHNICAL DOCUMENTATION
4. All drawings and technical documents with regard to the Product or the production thereof, made available by TOTECH to the Buyer before or after the conclusion of the Contract, remain fully property of TOTECH. Drawings, technical documents or other technical information received by Buyer from TOTECH may not be used without permission of TOTECH for any other purpose than for which they have been made available. This information may not without permission of TOTECH otherwise be used or be photocopied, reproduced, published, handed over or communicated to a third party, whereby it applies that all intellectual property rights continue to belong to TOTECH.
5. In case of violation of an intellectual property right or other acts that are in violation of the present General Terms and Conditions, Buyer shall forfeit a contractual fine of € 50,000 per violation, whereby TOTECH explicitly reserves its right to claim additional compensation of damages. Buyer is explicitly familiar with the high level of the aforementioned contractual fine and is aware thereof.
6. The documents, mentioned in article 4, that are attached to the designated offer, shall solely prevail insofar these have been established by TOTECH and Buyer as binding.
7. TOTECH is not obliged to provide production drawings of the Product or of spare parts.
DELIVERY & RISK TRANSFER
8. These General Terms and Conditions of TOTECH and the Contract will be interpreted according to the INCOTERMS©, as in force at the time of the conclusion of the Contract. If no specific trade condition is agreed, then the delivery takes place at all times “Ex Works” on the place referred to by TOTECH.
DELIVERY TIME
9. If the parties have agreed no specific delivery date, but a certain term for the delivery, then this term starts as soon as the Contract is concluded and all agreed terms and conditions, to be fulfilled by the Buyer firstly, have been complied with, such as official formalities and payments and sureties due at the conclusion of the Contract.
10. If TOTECH foresees that it shall not be able to deliver the Product in accordance with the agreed delivery time, then it will notify the Buyer hereof immediately In Writing, stating the reason and if possible the date on which delivery can be expected.
11. If exceeding of the delivery time is the consequence of Force Majeure, such as described hereafter, of an act or omission of the Buyer, or of other circumstances imputable to the Buyer and default of obligations at the side of Buyer, then TOTECH may extend the delivery time with a term that, all circumstances taken into account, is necessary. This stipulation applies irrespective of whether the cause of the delay has emerged before or after the agreed date of delivery.
12. TOTECH is not liable for direct or indirect (consequential) damage as a consequence of exceeding of delivery time, unless TOTECH has committed Gross Negligence.
13. If the Buyer foresees that he shall not be able to receive the Product in accordance with the agreed delivery time, then he will report this immediately In Writing to TOTECH, stating the reason and, if possible, the date on which he shall be able to receive the Product. If the Buyer does not take the Product into receipt in accordance with the agreed delivery time, then he must nevertheless pay that part of the purchase price that would have been due upon delivery in accordance with the agreed delivery time, as if delivery in accordance with the agreed delivery time had taken place. TOTECH will arrange for storage of the Product for the account and the risk of the Buyer. Upon request of the Buyer TOTECH shall furthermore insure the Product for the account of the Buyer.
14. Unless the Buyer as a consequence of Force Majeure, such as described hereafter, is impeded to take the Product into receipt, TOTECH can demand In Writing that the Buyer takes the Product into receipt within a last, reasonable term. If the Buyer, because of a circumstance not imputable to TOTECH, does not take the Product within this term into receipt, then TOTECH can dissolve the Contract by Written notification in whole or in part. TOTECH has then right to compensation of the damage that it incurs as a consequence of the default of the Buyer, including possible consequential and indirect damage. The compensation is at the most the part of the purchase price that concerns the part of the Product with regard to which the Contract is dissolved (partial dissolution).
PRICES AND PAYMENT
15. The prices are expressed in euros, exclusive of the packaging, to be increased with the turnover tax that applies on the day of the placing of the order, as well as the possible other lawful costs of delivery.
16. If the price is not stated explicitly on the order confirmation, then the prices shall apply that are stated in the latest version of the TOTECH price list.
17. In case of partial deliveries an invoice will be composed for each partial delivery in the amount of the value of the goods delivered.
18. Payments will be executed no later than within 30 days after date of the invoice, unless agreed otherwise.
19. Irrespective of the manner of payment, payment is not deemed to have taken place until after the due amount has been credited irrevocably on the account of TOTECH. 20. If the Buyer has not paid on the agreed date, then TOTECH has a right to 1% interest per month from the day that the amount is payable upon demand and to compensation of collection costs in accordance with the Besluit Vergoeding Buitengerechtelijke Incassokosten, with a minimum of €250,00. In the absence of payment and if an agreed surety is not set on the stipulated time by the Buyer, then TOTECH can, after Written notification to the Buyer, suspend the execution of the Contract till it has received he payment or, if applicable, until the Buyer has set the agreed surety. If the Buyer has not paid the due amount within three months, then TOTECH is authorised to terminate the Contract by means of a Written notification to the Buyer and it has, next to the accumulated interest and the compensation of out-of-court collection costs in accordance with this article, right to compensation of all direct and indirect (consequential) damage that it has suffered and yet shall suffer. This compensation amounts to no more than the agreed purchase price.
RETENTION OF PROPERTY
21. The Product remains property of TOTECH until fully payment of the purchase price has taken place, insofar this retention of property is valid in accordance with the concerned applicable laws. Upon request of TOTECH the Buyer grants cooperation in taking measures for the protection of the property right of TOTECH concerning the Product. The retention of property leaves the risk transfer unaffected.
LIABILITY DEFECTS & WARRANTY
22. TOTECH is obliged to the repair of each defect or non-conformity (hereafter: “defect(s)”), deriving from wrong design or material or as a consequence of improper expertise.
23. TOTECH is not liable for defects that derive from materials delivered by the Buyer or from a design stipulated or specified by the Buyer.
24. TOTECH is only liable for defects that emerge at circumstances of use that are foreseen in the Contract and upon adequate and careful use of the Product.
25. The liability of TOTECH does not include defects that are caused by circumstances that emerge after transfer of the risk to the Buyer upon deliveries has taken place (Ex Works), such as defects as a consequence of bad maintenance, incorrect assembly or incorrect repair by the Buyer, or as a consequence of modifications executed without Written permission of TOTECH. The liability of TOTECH neither includes normal wear and tear and quality reduction.
26. The liability of TOTECH is limited to defects emerging within one year after delivery. If the degree of use of the Product is higher than agreed, then this term will be reduced proportionally.
27. After repair of a defect in a part of the Product, a warranty term of six months applies, whereby this warranty term is never is shorter than the warranty term of the original Product. The warranty term with regard to aforementioned repairs will be extended with the duration of work interruptions that do not relate to the repair of the defects and errors. For the other parts of the Product the term referred to before will only be extended with the duration that and to the degree in which the Product could not be used by the defect.
28. Emerging defects shall be reported as soon as possible In Writing by the Buyer to TOTECH. This notification must in each case take place no later than two weeks after the term referred to before or referred to in last mentioned article, if applicable. The notification contains a specific description of the defect. If the Buyer does not report a defect within the terms referred to in the first paragraph of this article In Writing to TOTECH, then he forfeits his right to the repair of the defect. If the defect can cause damage, the Buyer will notify TOTECH immediately In Writing. The Buyer bears the risk of damage to the Product that derives from the omission of such notification. The Buyer takes reasonable measures to limit the damage as much as possible and will act in this connection in accordance with the instructions of TOTECH.
29. As soon as TOTECH receives a reclamation, it must repair the defect for its own account and as soon as possible. The time of the repair activities will be chosen so that the activities of the Buyer shall not unnecessarily be impeded. Repair will be executed on the place where the Product is located, unless TOTECH deems it more suitable that the Product will be sent to him or to a destination designated by it. If the defect can be repaired by replacement or repair of the concerned part and disassembly and reassembly of that part require no special knowledge, then TOTECH can require that the concerned part will be sent to him or to a destination designated by it. In that case TOTECH has fulfilled its obligations with regard to the defect by delivering to the Buyer a properly repaired part or a replacement part, whereby the costs of transport will be for the account of Buyer.
30. The Buyer shall arrange for his own account for the reachability of the Product and for the possible temporary bringing to a halt of other means of enterprise than the Product, insofar this is necessary for the removal of the defect.
31. Unless otherwise is agreed, the necessary transport of the Product or parts of the Product for the repair of defects, to TOTECH and back, takes place for the account of Buyer. The Buyer must observe the directions of TOTECH with regard to this transport.
32. Costs that emerge at the repair of the defect for TOTECH, because the Product is located in another place than the place of delivery stated to TOTECH, will be for the account of Buyer.
33. Defective parts will upon replacement be made available to TOTECH and become its property.
34. If after a reclamation by the Buyer no defect is found, for which TOTECH is liable, then TOTECH has a right to compensation of the costs that it has made as a consequence of this notification.
35. If TOTECH does not comply with its obligations after receipt of a reclamation, then the Buyer can, by means of a Written notification of default set a last reasonable term for the compliance by TOTECH with its obligations, which term shall not be shorter than two weeks, unless it concerns an exceptionally serious defect whereby direct serious (consequential) damage is threatening. In that case TOTECH shall (let) repair the defect in the shortest possible term. If TOTECH without foundation and unjustified does not comply within the set (reasonable) term with its obligations, then the Buyer can execute or let execute by a third party for the account and the risk of TOTECH the necessary repair activities. If repair activities were executed with success by the Buyer or by a third party, then TOTECH is by compensation of the reasonable costs made by the Buyer discharged from all liability for the defect referred to.
36. If the Product is not repaired with success, then the Buyer has a right to a discount on the purchase price proportional to the reduction of value of the Product, it being understood that this discount in no case can amount to more than 15 percent of the purchase price.
37. TOTECH is during no more than a year from the end of the liability period or from the end of another liability period agreed by parties liable for defects in any part of the Product.
38. Delivered goods must, even if they show small defects be accepted by Buyer, without that such has an influence on his warranty rights. TOTECH is authorised to making partial deliveries. 39. The liability of TOTECH for defects is limited to what has been stipulated in these General Terms and Conditions and in all instances applies that for liability for defects or direct or indirect (consequential) damage deriving from deliveries of the Product of TOTECH, the liability of TOTECH will be limited to the amount, to which the liability insurance concluded by it in prevalent instances gives a pay-out. Limitation of liability also concerns any other damage deriving from the defect, including loss of production, missed profits and other consequential damage. This limitation of liability does not apply in case of Gross Negligence.
LIABILITY FOR DAMAGE CAUSED BY THE PRODUCT
40. TOTECH is not liable for any damage caused by the Product to properties that emerges from the moment that the Product is sold. All deliveries take place “Ex Works” (EXW). TOTECH is furthermore not liable for damage to products manufactured by the Buyer or to products from which the products of the Buyer form part. In case of liability of TOTECH towards a third party damage to properties described in the previous paragraph, the Buyer is obliged to indemnification, assistance in court and safeguarding of TOTECH. If a third party instigates a claim to indemnification described in this article against one of the parties, then this party must inform the other party immediately about it In Writing. TOTECH and the Buyer are mutually obliged to let themselves be sued before the court or arbitration entity that treats a claim to compensation of damages, which has been submitted against one of the parties on the basis of damage allegedly caused by the Product. The limitation of the liability of TOTECH for whichever reason, does not apply if TOTECH has committed Gross Negligence.
FORCE MAJEURE
41. Each party has the right to suspend the execution of its contractual obligations insofar this execution is hindered or made unreasonably cumbersome by Force Majeure, being one of the following circumstances: labour conflicts and each other circumstance outside the control of the parties, such as fire, war, extensive military mobilisation, uprising, requisitioning, attachment, embargo, limitations to the use of energy, currencies and export limitations, epidemics, disasters of nature, exceptional matters of nature, terrorist actions, as well as defects or delay in the deliveries by TOTECH that are the consequence of one of the circumstances referred to in this article. A circumstance referred to in this article, irrespective of whether this occurs before or after the conclusion of the Contract, gives only right to suspension if its consequences on the execution of the Contract could not be foreseen at the time of the conclusion of the Contract.
42. The party that makes a claim under Force Majeure must notify the other party without delay In Writing of the emergence and the ending of such circumstance. If a party omits to issue this notification, then the other party has a right to compensation of its additional costs that it could have prevented if it has received the notification referred to. If Force Majeure hinders the compliance with the obligations by the Buyer, then he will compensate the costs made by TOTECH for the securing and protection of the Product.
43. Irrespective of the other consequences that would derive from these General Terms and Conditions, each party has the right to terminate the Contract by Written notification to the other party, if as a consequence of Force Majeure as described in this article, the execution of the Contract is suspended longer than six months.
FORESEEN NON-COMPLIANCE
44. Notwithstanding other stipulations in these General Terms and Conditions with regard to suspension, each party has the right to suspend the execution of its contractual obligations, if from the circumstances it shows clearly that the other party shall not comply with its obligations. A party that suspends the execution of the Contract, will give notification hereof immediately In Writing to the other party.
CONSEQUENTIAL DAMAGE
45. Unless stated otherwise in these General Terms and Conditions, TOTECH is towards the Buyer not liable for loss of production, missed profits, reduction of possibilities of use, commercial damage or for whichever consequential damage or indirect damage.
DISPUTES AND APPLICABLE LAW
46. All disputes that arise from or are connected with the Contract shall in the first and highest instance be handled by the Courts of the Netherlands.
47. The Contract is subject to the material laws of the country of TOTECH.
APPLICABILITY GENERAL TERMS AND CONDITIONS DRY TOWER
48. If and insofar TOTECH sells Dry Tower products (Totech®), like Buyer purchases TOTECH Dry Tower products (Totech®), shall on those that agreements both the above “General Terms and Conditions Totech Europe B.V.”, and the below “Dry Tower General Terms and Conditions” be applicable.
49. Solely in the case of contradictions between the Dry Tower and “General Terms and Conditions Totech Europe B.V.” the General Terms and Conditions least cumbersome for Buyer shall prevail, either “Dry Tower General Terms and Conditions” to be mentioned hereafter, or the above “General Terms and Conditions Totech Europe”.
50. In the present Dry Tower General Terms and Conditions the definitions have the same meaning and description as in the “General Terms and Conditions Totech Europe B.V.”
DRY TOWER GENERAL TERMS AND CONDITIONS
Article 1: Conflicting General Terms and Conditions
In case of contradictions between on the one hand the General Terms and Conditions of Buyer and on the other hand the “General Terms and Conditions Totech Europe B.V.” and “Dry Tower General Terms and Conditions”, shall at all times prevail the “General Terms and Conditions Totech Europe B.V.” and “Dry Tower General Terms and Conditions”. That applies also, if TOTECH has not explicitly objected against the applicability of the General Terms and Conditions that Buyer applies and has made available to TOTECH.
Article 2: System solution
System solutions consist mostly from of the following components:
1. Hardware-standard components
2. Standard programs
3. Individual software
4. If the following General Terms and Conditions for individual components deviate, then that shall be represented separately.
Article 3: Scope of the delivery
For the delivery the Written order confirmation of TOTECH shall be decisive. Additional verbal changes or changes proposed In Writing, must at all times be accepted and confirmed In Writing by TOTECH.
Article 4: Subject of the delivery
1. The subject of the delivery is the system solution described in the Written order confirmation of TOTECH with the components referred to in the Written order confirmation.
2. If the system component-software forms part of the subject of the delivery, then the Buyer confirms that the software, in view of the present state of the technique, cannot be tested with regard to all possible problem situations and risks. The Buyer agrees with the following warranty agreements that are applicable to the software.
Article 5: Terms of use
If the system solution contains the component software, then the rights of the Buyer with regard to the use of the software will be determined in accordance with the terms of use that from part of the present General Terms and Conditions.
Article 6: Warranty Hardware
1. All parts that within a period of six months after having been taken into use as a direct consequence of an event prior to the transfer of the risk, including a construction error, bad materials or defective expertise, have become unusable or not substantially less usable, must be repaired or replaced free of charge by TOTECH, provided that TOTECH has been given the opportunity to assess the alleged defects in advance in reasonableness and has qualified these as defects. Aforementioned defects must immediately, but no later than within fourteen days after receipt of the parts, be reported In Writing to TOTECH, in the absence of which Buyer forfeits the right to make a reclamation.
2. The right of the Buyer to instigate claims deriving from defects, shall expire in all instances after six months to be counted from the moment of registration by TOTECH of the defect reported In Writing, but not sooner than the expiry of the warranty period.
3. No warranty is given for damage, that has emerged by the following causes: unsuitable or inexpert use, incorrect assembly or incorrect taking into use by Buyer or third parties, natural wear and tear, incorrect or negligent treatment, unsuitable equipment, incorrect or defective replacing materials, defective construction activities, unsuitable foundations, chemical, electro-chemical or electrical influences, insofar these cannot be traced to gross negligence or a serious error by TOTECH.
4. After Written reclamation by the Buyer, to TOTECH a reasonable term must be granted to assess and accept as defect the alleged defect, during which term TOTECH is exempt from of obligations to repair or replacement. Solely if the operational safety comes into danger, or serious (consequential) damage to be foreseen, Buyer is authorised to let the defect be repaired by an expert third party on the costs of TOTECH, to such a degree that because of it the operational safety or serious (consequential) damage is no longer at risk. Subsequently TOTECH must after all be enabled to arrange by itself –within a reasonable term- for repair in general or, if necessary, replacement, after TOTECH has accepted the defect, whereby applies that solely TOTECH may assess whether the defect is eligible for repair.
5. The emerged direct costs for the repair or replacement of the delivery will be borne by TOTECH, provided that the complaint proves to be founded. The same applies for the costs of the replacement part inclusive of the shipment and the reasonable costs of the disassembly and assembly. The costs of the deployment of its technicians and assistants will be for the account of the Buyer.
6. For replacement parts and repairs applies a warranty term, whereby applies that this continues at least till the three months after the expiry of the original warranty period for the delivered Product. The warranty term for the liability for defects to the Product will be extended with the period of the work interruption that has been caused by the defect of the Product.
7. For the repair or maintenance activities executed by Buyer or third party incorrect or without permission of TOTECH, the liability for the consequences emerged because of it is excluded.
8. Further claims of the contracting party, especially the claim consisting of compensation of damages, that are not direct or indirect connected with defects of the delivered Product, are excluded, unless they have been caused by wilful intent or gross negligence on the side of TOTECH.
Article 7: Warranty Software
1. TOTECH obliges to no later than within six weeks after delivery of the Product to make an utmost effort to amend defects, which defects must be traceable to the hardware-configuration specified by the Buyer. If it is not possible to repair the defect, then Buyer receives the user’s fee back in exchange for the software and materials being in his possession.
2. The warranty with regard to software components applies solely for hardware-configurations that are available at TOTECH. If it proves necessary to investigate an error in the system of Buyer, then all travel costs made and other costs in relation thereto will be calculated in accordance with the applicable price list of TOTECH that will come for the account of Buyer.
3. Damage claims of whichever nature that exceed the warranty referred to before, are excluded from compensation, insofar the sum of all claims to be submitted exceeds the value of the purchase sum (for the system component software in accordance with the order confirmation of TOTECH), unless there is an instance of wilful intent or gross negligence on the side of TOTECH.
Article 8: Service agreements
1. With regard to the hardware and software TOTECH provides its maintenance obligations by means of a service agreement.
2. This service agreement is concluded for the duration of at least one year.
3. Buyer is obliged to no later than one month before the expiry of the service year to cancel the agreement In Writing to TOTECH, or to extend the service agreement In Writing, after which the service agreement is terminated, or will be extended.
4. If TOTECH, no later than one month before the end of the period, has not received a Written cancellation or a Written extension, then the service agreement will be extended with a period of one year.
Article 9: Price and payment conditions
1. All prices are stated in euros, exclusive of the packaging, to be increased with turnover tax, as well as other (lawful) delivery costs.
2. If the prices are not mentioned explicitly on the order confirmation of TOTECH, then for the components of the system solution the prices of the latest version of the TOTECH-price list shall apply.
3. The payment for the hardware components takes place as follows:
a. 30% upon order confirmation
b. 60% direct before delivery
c. 10% after FAT
3B The payment for the software component takes place as follows:
a. 50% upon order confirmation
b. 50% upon FAT
4. In case of partial deliveries an invoice will be composed for each partial delivery in the amount of the goods delivered.
5. The payment term is direct payment after date of the invoice.
6. In case of delinquent payments, the amounts due by Buyer in that instance will be directly payable upon demand, irrespective of whether TOTECH has already invoiced.
7. The claims of TOTECH towards Buyer shall immediately become payable upon demand in the case that (i) Buyer is liquidated, dissolved, declared bankrupt or suspension of payment is granted, (ii) attachment is put on the capital of Buyer, or (iii) Buyer starts an insolvency procedure or in another manner becomes subject thereto, or – where relevant – in the case that one or more of the aforementioned has been requested by Buyer or a third party. Buyer shall immediately inform TOTECH of the taking place of one or more of the events to which reference is made before.
8. TOTECH is authorised to allocate payments made by Buyer as follows: firstly, for the reduction of on the costs, subsequently for the reduction of the interest and as the last for the reduction of the principal amount and the current interest, in accordance with article 6:44 (Netherlands’) Civil Code.
9. TOTECH has at all times the right to demand sufficient surety for payments that (yet) have to be made by Buyer. If Buyer refuses to provide sufficient surety, then TOTECH has the right to dissolve the agreement, without that Buyer has a right to any compensation of damages.
Article 10: In-court and out-of-court costs
a. If Buyer remains in default to timely comply with his obligations or is in default is, then all reasonable costs for satisfaction in and out-of-court will be for the account of Buyer.
b. If TOTECH deems it necessary to instruct a third party to collect an amount that is due to TOTECH, then all-in-court and out-of-court costs that have been made will be charged onward to Buyer. The due out-of-court costs shall be equal to at least 10% of the total due amount to TOTECH, with a minimum of € 250.00 exclusive of turnover tax.
c. If TOTECH can demonstrate that it has made higher expenses that were necessary in all reasonableness, then also these expenses will be for the account of Buyer.
Article 11: Liability
1. TOTECH is never liable for direct and indirect damage, including, but not limited to consequential damage, enterprise damage, damage to goods of third parties, missed profits, and delay damage and personal or non-material damage.
2. TOTECH is never liable for the damage as a consequence of delay or omission of delivery of Goods by supplier(s) to TOTECH, including the circumstance that delay or omission of delivery is caused by not or not timely delivery by the supplier(s) to TOTECH, so that TOTECH cannot yet dispose over the Goods.
3. Solely if – undisputed by TOTECH – it is established that TOTECH is liable for the aforementioned damage, then this liability is limited to the maximum of the purchase sum of the sold and goods delivered.
4. The exclusion of liability and limitation of liability are not applicable in the case that Buyer can prove that the damage was caused by wilful intent or conscious negligence by TOTECH.
Article 12: Risk-transfer
1. The risk is transferred no later than with the shipment of the goods to the Buyer (“Ex Works”), each time when there is an instance of a partial delivery of if TOTECH has received a commission to the execution of (extra) services or activities. Upon request of Buyer the shipment shall be insured on his own costs by TOTECH against insurable costs of transport.
2. If the shipment is delayed by circumstances that can be imputed to Buyer, then the risk is transferred on the day of the availability of the shipment to Buyer. TOTECH shall cooperate to change of the insurance–or the account of Buyer, if the Buyer requests so. Goods delivered must, even if they have small defects be accepted by the Buyer – notwithstanding his warranty rights. Partial deliveries are permitted.
Article 13: Termination
1.If Buyer with regard to the software components that form part of the system solution, violates the terms of use, mentioned in these General Terms and Conditions, then TOTECH is authorised to dissolve the software-licence agreement directly, without further notification of default.
2. In the aforementioned instance, Buyer is obliged to send back all goods transferred to him in the framework of the present General Terms and Conditions, on his own costs to TOTECH. All software components delivered (along) must be removed.
Article 14: Contractual fine
In case of violation of the copyright or other acts that are in violation of these General Terms and Conditions and render an obligation to payment of compensation of damages, including the circumstance that Buyer without Written permission of TOTECH transfers his rights to a third party, Buyer is obliged to payment of a contractual fine of 50.000,00 Euro to TOTECH per event causing damage. The right to claim other damage remains reserved. Copyright stipulations of the manufacturers remain applicable on all software that is not produced by TOTECH.
Article 15: Export and re-export
All deliveries of TOTECH take place in accordance with the export licence, according to the Laws of the Federal Republic of Germany, which is available for knowledge for the Buyer. Products and technical knowledge delivered by TOTECH are determined on the basis of existing license and copyrights of Germany and must remain in Germany. For re-exporting, separately or integrated in a system, permission In Writing by TOTECH is required.
Version March 2016