General Terms and Conditions For TommaTech GmbH

 

General

1. These General Terms and Conditions shall apply to all purchase and delivery contracts of TommaTech GmbH, Angerlweg 14, 85748 Garching, (hereinafter referred to as "TommaTech"), with its customers. They shall apply in their respective version as a framework agreement also for future purchase and delivery contracts with the same customer without TommaTech having to refer to them again in individual cases; TommaTech shall inform the customer without undue delay of any changes to the General Terms and Conditions in this case.
2. Deviating regulations of the customers do not apply, unless TommaTech has agreed to them in writing. This requirement of consent shall apply in any case, for example even if TommaTech executes the delivery to the customer without reservation in knowledge of the customer's GTC. Agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall always take precedence over these Terms and Conditions of Sale. A written contract or written confirmation by TommaTech shall be authoritative for the content of such agreements. Legally relevant declarations and notifications to be made by the customer to TommaTech after the conclusion of the contract (e.g. setting of deadlines, reminders, declaration of rescission) must be made in text form to be effective.
3. The business relations between TommaTech and the Customer shall be governed by the laws of the Federal Republic of Germany. The validity of international uniform law, in particular of the UN Sales Convention, is excluded.
4. The place of performance and the place of jurisdiction for deliveries and payments, as well as for all disputes arising between the parties from the contracts concluded between them, shall be the registered office of TommaTech in Garching. TommaTech shall also be entitled to sue the Customer at its registered office.

Conclusion of contract

5. TommaTech's offers are always subject to change and non-binding. This shall also apply if TommaTech has provided the Customer with catalogs, documentation (e.g. drawings, plans, calculations, computations), other product descriptions or documents, also in electronic form, to which TommaTech reserves ownership rights and copyrights. Furthermore, the technical data and cell colors may deviate from the representations and information on data sheets, homepage, catalogs, etc. due to natural processes. Especially with our PERC monocrystalline solar modules, there may be color differences between the cells and the back foil due to the natural structure of the cells. Customer expressly acknowledges that color variations sometimes occur in the manufacturing of Finishing Items. Customer hereby accepts any such color variation resulting from the manufacturing process without the right to reduce the purchase price and in full performance of TommaTech's obligations herein.
6. Such documents referred to in the conclusion of the contract are entrusted only for the purposes of the respective offer and may not be reproduced or made available to third parties, even in part, without the express consent of TommaTech. This applies in particular to such documents which are designated as "confidential"; the customer must obtain TommaTech's express written consent before disclosing them to third parties. For the purposes of the Terms and Conditions, all information handed over or disclosed in connection with the Agreement by the other party, as well as its representatives after the signing of the Agreement, throughout the term of the Agreement, including but not limited to business plans, strategies, financial information, patented, licensed, copyrighted and/or trademarked information, and technical information relating to the design, operation and maintenance of TommaTech's products and ideas, shall be treated as Confidential Information.
7. A contract and other agreements shall in any case only be concluded upon confirmation by TommaTech in writing or by e-mail. The documents belonging to the offer, e.g. illustrations, drawings, weights and dimensions are, unless expressly agreed otherwise, only approximate.
8. After confirmation of the order by TommaTech, the customer is bound to the order and the customer can only withdraw from the respective contract according to the legal provisions.
9. TommaTech's employees or other sales intermediaries are not authorized to make any representations or warranties that differ in content.

Prices, VAT and payment

10. Unless the prices are agreed upon in an individual contract, the current prices of TommaTech at the time of the conclusion of the contract shall apply. The prices do not include the statutory value added tax, if applicable.
11. The costs for packaging, customs clearance if applicable, freight, transport as well as VAT on the sale shall be borne by the customer, unless otherwise agreed in writing.
12. Unless otherwise agreed in individual cases, TommaTech's invoices shall be paid in advance. The payment is due immediately after conclusion of the contract, payments have to be made in the currency agreed upon with the order. In case of bank transfers from abroad, the customer shall always bear the bank charges incurred.
13. If TommaTech separately agrees with a customer on payment of the invoice amount by credit card, a payment fee of 3% shall apply, which shall be borne by the customer.
14. If the customer is in default of payment, TommaTech shall be entitled to default interest in the amount of 9 percentage points above the base interest rate. The customer is obligated in accordance with section 288 paragraph 5 BGB (German Civil Code) to reimburse TommaTech for reminder expenses in the amount of a lump sum of EUR 40.00; these will be credited against any costs of legal action. TommaTech reserves the right to claim further damages caused by default. For you as consumer in the sense of section 13 BGB (German Civil Code) the legal regulations apply.
15. If, after the conclusion of the contract, it becomes apparent that TommaTech's claim to the purchase price is jeopardized by the Customer's inability to perform, TommaTech shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline.
16. Customer shall bear all costs for return deliveries that were not caused by a defective delivery by TommaTech.
17. TommaTech shall always issue an invoice to Customer, which shall be handed over to Customer or otherwise received in text form.

Delivery time and delay

18. The delivery time shall be agreed individually or stated by TommaTech upon acceptance of the order. TommaTech's compliance with the delivery period shall be conditional upon the Customer's performance of its contractual obligations.

19. Delivery times stated by TommaTech are only non-binding information, even if communicated in writing. The expiration of certain dates does not release Customer from the obligation to set a reasonable grace period for performance and to declare that it will reject performance after expiration of the grace period. This shall not apply insofar as TommaTech has expressly designated a deadline or a date in writing as a so-called "binding delivery date".
20. If TommaTech is unable to meet binding deadlines for reasons for which it is not responsible (non-availability of performance), TommaTech shall inform the customer thereof without delay and at the same time notify the customer of the expected new deadline.
21. The delivery period may be delayed in the event of measures within the scope of labor disputes as well as in the event of the occurrence of unforeseen obstacles beyond the control of TommaTech; strike, force majeure, ship, accident. Likewise commercial policy measures; war, pandemics. This also applies if circumstances occur at sub-suppliers; shortage of raw materials, fire, pandemic-related work stoppage, energy shortage and other operational disruptions for which TommaTech is not responsible.
22. If the service is still not available within the new period, TommaTech shall be entitled to withdraw from the contract in whole or in part; TommaTech shall immediately refund any consideration already paid by the customer. The customer's rights of rescission and termination pursuant to clause 8 of these General Terms and Conditions shall also remain unaffected.
23. TommaTech shall be entitled to make reasonable partial deliveries.
24. The occurrence of default by TommaTech shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required.

Transfer of Risk and Shipment

25. In case of shipment of the goods, the risk shall pass to the Customer as soon as TommaTech has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment, even if partial deliveries are made.
26. If shipment is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the date of readiness for shipment, but TommaTech shall, at the Customer's request and expense, effect such insurance as the Customer may require.
27. Unless the Customer specifies the mode of shipment, TommaTech is entitled to choose the mode and route of shipment at its discretion, without being obliged to choose the least expensive mode of shipment. If Customer is a consumer, the risk of loss and/or deterioration of the goods shall pass to Customer as soon as the goods are handed over to Customer or a person attributable to Customer.
28. The place of performance for all obligations arising from the contractual relationship is the registered office of TommaTech, unless otherwise specified.

Counter rights, retention of title

29. The customer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter rights shall remain unaffected, in particular his right to retain an appropriate part of the remuneration in relation to the defect.
30. TommaTech retains title to the goods until full payment of the remuneration. The following provisions shall apply only in commercial transactions: The customer may neither pledge the delivery item nor assign it as security. In the event of seizure or confiscation or other dispositions by third parties, the customer must notify the seller immediately.

31. In the event of the Customer's conduct in breach of contract, in particular in the event of nonpayment of the remuneration due, TommaTech shall be entitled to rescind the contract in accordance with the statutory provisions and to demand return of the goods on the basis of the retention of title and the rescission. If the customer does not pay the due remuneration, TommaTech may assert these rights only if TommaTech has previously unsuccessfully set the customer a reasonable deadline for payment or if such setting of a deadline is dispensable according to the statutory provisions.

Warranty, quality and liability for defects  

32. The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title, unless otherwise stipulated below. In any case the legal regulations of Section  478, 445a, 445b German Civil Code (BGB) remain unaffected.
33. The basis of TommaTech's liability for defects shall be, above all, the agreement reached on the quality of the goods. As agreement over the condition of the commodity the product descriptions designated as such, which were left to the customer before acceptance of the offer or in the same way as these sales conditions into the contract were included, are considered. Samples shall only be considered as type samples which are intended to illustrate the approximate quality of the goods. They do not justify any claim of the customer that the delivered goods correspond to this sample in all details. TommaTech expressly reserves the right to minor deviations customary in the trade.
34. The customer's claims for defects presuppose that he has complied with the statutory duties of examination and notification of defects (Section 377, 381 German Commercial Code (HGB)). If a defect becomes apparent during the inspection or later, TommaTech shall be notified thereof in writing without undue delay. The notification shall be deemed to have been made without delay if it is made within 2 days, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to examine and to give notice of defects, Customer shall notify TommaTech in writing of obvious defects (including wrong and short deliveries) within 2 days after delivery, whereby the timely dispatch of the notice shall suffice to meet the deadline. If the customer neglects the proper examination and/or notice of defect, the liability of TommaTech for the undisclosed defect is excluded. For you as a consumer in the sense of Section  13 German Civil Code (BGB) the legal regulations apply.
35. In the event of a justified and timely notice of defect, TommaTech shall remedy the defects by way of subsequent performance pursuant to Section  439 German Civil Code (BGB)  by way of subsequent delivery or remedy of defects. TommaTech is not obligated to subsequent performance if interventions in or changes to the goods are made without the consent of TommaTech, unless the customer proves that the defect was not caused by these interventions and changes. TommaTech is also not obligated to subsequent performance in the case of commissioning of inverters and other goods by unrecognized installers. In case of refusal of the subsequent performance, its failure or its unreasonableness for the customer, the customer is entitled to the resignation or to the reduction. In the case of an insignificant defect, there is no right of withdrawal. Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with Section 8 and are otherwise excluded. For you as a consumer within the meaning of Section 13 German Civil Code (BGB), the statutory provisions shall apply.
36. In the event of fraudulent concealment of a defect or the assumption of a guarantee for the quality of the object of purchase at the time of the transfer of risk within the meaning of Section 444 German Civil Code (BGB) (declaration by TommaTech that the object of purchase has a certain quality at the time of the transfer of risk and that TommaTech intends to assume liability for all consequences of the defect irrespective of fault), the rights of the Customer shall be governed exclusively by the statutory provisions.

Exclusion of liability

37. Except for liability for defects of quality and title, TommaTech shall have unlimited liability to the extent that the cause of damage is based on intent or gross negligence. TommaTech shall also be liable for the slightly negligent breach of essential obligations (obligations, the breach of which endangers the achievement of the purpose of the contract) as well as for the breach of cardinal obligations (obligations, the fulfillment of which makes the proper performance of the contract possible in the first place and on the observance of which the customer regularly relies), but in each case only for the foreseeable damage typical for the contract. TommaTech shall not be liable for the slightly negligent breach of obligations other than the above as well as for consequential harm caused by a defect and loss of profit due to slight negligence.
38. Irrespective of whether TommaTech employees, sales partners or other persons associated with the company are involved, TommaTech cannot be held liable for incorrect information provided by the above-mentioned persons. TommaTech accepts no liability for any resulting damage due to the information provided. Claims for damages cannot be asserted against TommaTech in this regard.
39. The limitations of liability of the preceding paragraphs shall not apply in case of injury to life, body and health, for a defect after assumption of a guarantee for the quality of the product and in case of fraudulently concealed defects. Liability under the Product Liability Act shall remain unaffected.
40. If the liability of TommaTech is excluded or limited, this shall also apply to the personal liability of TommaTech's employees, representatives and vicarious agents.
41. All claims for damages against Seller, irrespective of their legal basis, shall become statutebarred at the latest one year after delivery of the goods to Customer or after acceptance, in the case of tortious liability after knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and of the person liable to pay compensation. The provisions of this paragraph shall not apply - and the statutory provisions shall then apply - in the event of liability for intent and in the cases specified in paragraph 2. Any shorter statutory limitation periods shall take precedence.  
42. If the final purchaser of the goods is a consumer, the statutory provisions shall apply to the limitation period of any recourse claim of the customer against the seller.

Cancellation policy & right of withdrawal

43. You have the right to cancel this contract within fourteen days without giving any reason. The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the last goods.
44. To exercise your right of withdrawal, you must inform us (Angerlweg 14 Garching b. München, +49 89 1250 36 860, PLZ-85748, head@tommatech.de) by means of a clear declaration (e.g. a letter sent by post or an e-mail) of your decision to withdraw from this contract. You can use the attached sample revocation form for this purpose, which is, however, not mandatory.
45. To comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
46. Consequences of revocation If you revoke this contract, we shall return to you all payments that we have received from you (if TommaTech paid for the transport), including the delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without undue delay and no later than within fourteen days from the day.
47. The customer is obliged to repay the amount due on the day on which we receive the notification of cancellation of this contract. For this repayment, we will use the same means of payment that you used in the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment. We can refuse the repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.

48. You must return or hand over the goods to us immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days. 
49. The right of withdrawal does not apply to the following contracts:
    1. Contracts for the delivery of goods for the manufacture of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer,
    2. Contracts for the delivery of sealed goods if their seal has been removed after delivery.

Property rights

50. TommaTech reserves the industrial property rights and copyrights to all delivered products, packaging, illustrations and other documents. The Customer may use such documents only with the prior express written consent of TommaTech without acquiring any independent rights in the advertising material.
51. The Customer undertakes not to infringe any third-party industrial property rights (patents, licenses, trademarks, etc.) when reselling the goods purchased from TommaTech. Furthermore, the customer is prohibited from making and using his own visual material of the products and packaging.

Data Protection

52. For the purpose of processing orders, inquiries and offers made by customers or by third parties commissioned by them on their behalf, TommaTech is entitled to store and further process the data electronically. TommaTech is also entitled to pass on data to third parties, in particular to credit institutions and contractual partners serving the order processing. The legal regulations are kept. Further details are regulated by the privacy policy of TommaTech.

Severability Clause

53. If any provision of these General Terms and Conditions is invalid, the remaining provisions shall remain unaffected. The invalid provision shall be deemed to be replaced by a provision that comes as close as possible in economic terms to the meaning and purpose of the invalid provision in a legally effective manner. The same shall apply to any loopholes.

Other Terms and Conditions

54. These General Terms and Conditions have been executed in duplicate in equally authentic originals in English, German and Turkish. In the event of any discrepancy between the German, English and Turkish texts of these General Terms and Conditions, the German text shall prevail.
55. The place of jurisdiction for all disputes arising out of or in connection with the contractual relationship shall be the Amtsgericht (Local Court) Munich. TommaTech shall also be entitled to bring an action at any other place of jurisdiction permitted by law.

Last amended: 10.04.2023