Standard Conditions of Sale

STANDARD CONDITIONS OF SALE

1 DEFINITIONS

1.1 In these Conditions:

BUYER means the person who buys or agrees to buy the Goods from the Seller;

CONDITIONS means the terms and conditions of sale set out in this document;

CONTRACT means a contract between the Seller and the Buyer for the sale and purchase of Goods

in accordance with these Conditions and shall include the order form and/or the invoice;

DATA PROTECTION LAWS -, all applicable data protection and privacy legislation in force from time to time which applies to Tama CE GmbH, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);

DELIVERY DATE means the date specified by the Seller when the Goods are to be delivered, or the

date on which delivery takes place, whichever is later;

DELIVERY DESTINATION means the location specified in a Contract for the delivery of the Goods;

GOODS means the articles which the Buyer agrees to purchase from the Seller; and

SELLER means Tama CE GmbH from An den Loddenbüschen 81a, 48155 Münster, Germany

SERVICES – means as defined in cause 14.1.

2 SCOPE, CONDITIONS APPLICABLE, PRODUCT DETAILS

2.1 These Conditions shall apply to all Contracts. All other deviating terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order, or similar document, in particular, the Buyer’s own terms and conditions of purchase shall not apply unless expressly agreed. This shall also apply if the Seller performs the Services to the Buyer without reservation in the knowledge that the Buyer’s terms and conditions of purchase conflict with or deviate from these Conditions.

2.2 All orders for Goods shall be deemed to be a binding offer by the Buyer to purchase Goods.

2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless expressly agreed by the Seller. Any deviations from these Conditions agreed between the Seller and Buyer shall take precedence over these Conditions. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which are not expressly agreed.

2.4 Mere price details issued by the Seller do not constitute an offer by the Seller to supply the Goods referred to therein.

2.5 The Seller’s quote shall prevail for the scope of Services and the delivery of Goods. The images and/or drawings of the Goods displayed on the website are for illustration purposes only and do not bind the Seller unless the contractually intended use requires exact conformity. The Seller may make images and data available to Buyer in individual cases.

2.6 The information provided on the website is only approximate and may contain inaccuracies. They do not constitute information regarding the quality of the Goods, unless they are expressly designated as such or the contractually intended purpose requires exact conformity. Seller reserve the right to make the necessary changes. Deviations that are customary in the industry, occur due to legal regulations, or represent technical improvements are permissible, provided they do not affect the Goods‘ usability for their intended purpose.

2.7 The Seller does not guarantee continuous availability of the Goods for which no Contract has been concluded.

3 PRICE

3.1 The price payable for the Goods shall be the price stipulated in the Seller’s published price

list.

3.2   The Seller may increase from time to time the current applicable price list without giving written notification to the Buyer. Prices agreed in existing Contracts will remain unaffected.

3.3   The price is exclusive of VAT (or any similar tax) or any tax or duty relating to manufacture, transport, export, import, sale or delivery of the goods which shall be due at the rate ruling on the date of the Seller’s invoice.

3.4   All prices are quoted in Euro (EUR) unless otherwise specified, and all payments must be made in EUR unless otherwise agreed in writing by the Seller.

4 DELIVERY

4.1   Subject to clause 5.2 and deviating agreements, Delivery shall take place by such method as the Seller may in its absolute discretion decide, to the location specified by the Buyer (the „Delivery Destination“). Unless a fixed deadline or fixed date has been expressly specified or agreed, all deadlines and dates for deliveries of Goods and Services stipulated by the Seller are always only approximate. If shipment has been agreed, the delivery period and Date refer to the time at which the Goods are handed over to the forwarding agent, carrier or other third party responsible for transportation.

4.2   Costs of packaging and delivery shall be included in the price of the Goods, unless agreed otherwise.

4.3   If, for any reason, the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer failing to fulfil his contractual obligations and/or acts of cooperation e.g. by providing missing delivery instructions, documents, licenses or authorizations, the Seller may demand an extension to the delivery and performance deadlines or dates by the period during which the Buyer fails to fulfil their obligations to the Seller. Additionally, the Seller may store the Goods at the Buyer’s risk until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). This provision is without prejudice to any of the Seller’s rights in relation to a failure by the Buyer to take delivery of the Goods or pay for them in accordance with the terms of the Contract.

5 PAYMENT

5.1   Unless the Contract provides otherwise, subject to 5.3, payment of the price, VAT and any other tax, duty, insurance, storage or delivery charges shall be due within thirty (30) days of the end of the month of invoice.

5.2   The Contract shall stipulate whether deposits or other interim payments shall be required prior to delivery.

5.3   In the event that payment is to be made by a letter of credit then it shall be an express condition of the Contract that the letter of credit is irrevocable and is drawn on or confirmed by a first class German bank paid over German counter and all the documentation is presented to the Seller when requested by the Seller or otherwise in accordance with the terms of the Contract.

5.5   Time for payment shall be of the essence. The timeliness of the payment depends on when the payment is received.

5.6   The Buyer, if he is an entrepreneur, may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatsoever.

6 LATE PAYMENT

6.1   In the event that the Buyer fails to make payment of any invoice within its due date for payment then the Seller shall be entitled to the following statutory rights, in particular:

6.1.1 charge interest on such invoice from the day following the due date at a rate of 5% points or 8% points if the Buyer is dealing as an entrepreneur (section 14 German Civil Code) above the base rate of interest and such interest shall accrue at such rate after as well as before judgment;

6.1.2 charge additional commercial maturity interest in accordance with the provisions of section 353 German Commercial Code if the Buyer is a merchant, at the Seller’s discretion instead of default interest maturity interest in accordance with section 353 German Commercial Code at such rates from the due date if the Buyer is dealing as a merchant;

6.1.3 suspend deliveries of any Goods due to the Buyer;

6.1.4 notwithstanding the rights to which he is otherwise entitled, the Seller may withdraw from the Contract and take back the Goods of the Contract to secure its rights if the Buyer defaults on payment. The Seller must have notified the Buyer of this measure and set a reasonable grace period for payment.

6.2   For the avoidance of doubt, the rights and remedies of the Seller set forth hereto are

not exclusive, and the exercise of one thereof shall not deprive the Seller of the right to exercise others.

7 RISK AND TITLE, RESERVATION OF TITLE

7.1   Risk in the Goods shall pass to the Buyer:

7.1.1 Risk of loss shall pass to Buyer according to agreed delivery terms (Incoterms 2020); or

7.1.2 if the Goods are kept at the Seller’s premises under the provisions of Condition 4.4, or   otherwise to the Seller’s order, upon collection of the Goods by the Buyer, or upon the   expiry of fourteen (14) days from the Seller’s written notice to the Buyer that the   Goods are ready for delivery, whichever is the earlier.

7.2   The Seller accepts no responsibility for any loss, damage or shortage which may occur to the Goods in transit after risk has passed to the Buyer, and in the event that the Buyer has a claim arising in respect of any such loss, damage or shortage, then such claim should be notified to both the Seller and the Carrier as soon as is reasonably practicable. The Buyer undertakes in such circumstances to comply in full with the carrier’s standard conditions for claims for damage, shortage or loss in transit, and agrees to indemnify the Seller against any loss resulting from a failure to comply.

7.3   Notwithstanding that delivery may have taken place and / or risk in the Goods may have passed to the Buyer, title to the Goods shall not pass to the Buyer until the purchase price for such Goods and the amount due in respect to any other goods sold by the Seller to the Buyer have been paid in full.

7.4   Until such time as title in the Goods passes to the Buyer:

7.4.1 the Buyer, if he acts as an entrepreneur, shall hold the Goods of the Seller, and shall keep the Goods separate from those of the Buyer and third parties, and shall keep the Goods properly stored, protected and insured against all normal risks, to the reasonable satisfaction of the Seller and identified as the Seller’s property and shall not destroy, deface or obscure any identifying mark or packaging on or related to the Goods;

 7.4.2 the Buyer shall – until revocation – be entitled to, re-sell or distribute the Goods in the ordinary course of its business (save that such entitlement may be terminated  forthwith by notice from the Seller to the Buyer, and shall automatically terminate without notice in the event of default of payment or that a receiver or administrator is appointed over any of the assets or the undertaking of the Buyer, or a winding up order is made against the Buyer, or the Buyer goes into voluntary liquidation (other than for the purpose of a solvent reconstruction or amalgamation) or calls a meeting of creditors or makes any arrangement or composition with its creditors or any act analogous to the foregoing in any jurisdiction, and in the event of a liquidator or receiver being appointed then they shall pay into a separate bank account any sums received from third parties in respect of the sales to them of Goods by the Buyer up to the amount of any indebtedness of the Buyer to the Seller for the sole benefit of the Seller); and

7.4.3 the Seller is entitled to withdraw from the Contract in accordance with the statutory provisions in the event of a breach of Contract by the Buyer, particularly if the purchase price is not paid, and/or demand the return of the Goods on the basis of retention of title. Demanding the return of the Goods does not automatically constitute a declaration of withdrawal; the Seller may merely demand the return of the Goods and reserve the right to withdraw from the Contract. If the Buyer does not pay the due purchase price, the Seller may only assert these rights if they have previously set the Buyer a reasonable deadline for payment without success, or if setting such a deadline is dispensable under the statutory provisions.

7.5   The Buyer shall not pledge in any way, charge by way of security for any indebtedness for any of the Goods which remain the property of the Seller. The Buyer must inform the Seller immediately in writing if insolvency proceedings are initiated against him or if third parties seize his Goods (e.g. seizures).

7.6   The provisions of these Conditions relating to payment for the Goods shall apply equally (and without limitation) to payment for fees or charges incurred by the Seller in undertaking any extra work, requirement, modification, test or inspection.

7.7   Upon termination of the Contract, howsoever caused, the Seller’s rights contained in this Condition 7 shall remain in effect.

7.8   Except in cases of statutory rights of withdrawal and where, prior to shipment, Seller agrees in writing to accept return of the Goods sold hereunder, Seller reserves the right to decline at its sole discretion requests from Buyer to return quantities of the Goods ordered but not utilized by Buyer for any reason. No returns may be made without Seller’s written approval. For approval and issuance of Goods return instructions, Buyer should contact Seller. Buyer shall pay all return shipping charges to the location designated by Seller in accordance with this Condition 7.8. Buyer may not set off from payments due to Seller any amounts for returns or expected returns except with Seller’s written permission. Seller shall not be obligated to issue any payments or credits for returned amounts where Buyer is in default of any of its payment obligations. Restocking fees may be charged at Seller’s discretion.

7.9   Conditions 7.1, 7.2, 7.4.2, 7.4.2 and 7.9 do not apply to Buyers who are consumers.

8 WARRANTY AND WARRANTY

8.1 Subject to the provisions of Condition 8 below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defect in both materials and workmanship for a period of twelve (12) months from the Delivery Date or, if acceptance is required, from the time of acceptance. The aforementioned limitation period shall not apply to damages arising from injury to life, body or health, or from damages caused intentionally or through gross negligence, or from fraudulent concealment of a defect, or from the Product Liability Act. In these cases, the statutory limitation periods shall apply.

These Conditions 8 and 9 shall not apply in cases where the Buyer is dealing as a consumer (section 13 German Civil Code).

8.2  The Buyer’s warranty rights require that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with section 377 German Commercial Code, provided that the purchase constitutes a commercial transaction for both parties. If the Buyer fails to carry out a proper and timely inspection and/or notification of defects, the Seller’s warranty obligation and any other liability for the defect in question shall be excluded.

8.3  If the Seller delivers Goods that are defective and this defect has been notified in good time (if the Buyer is acting as an entrepreneur), the Seller shall remedy the defect or deliver a defect-free Good („subsequent performance“), at the Sellers discretion, provided that the defect existed at the time of transfer of risk. The Buyer cannot claim expenses incurred for subsequent performance, particularly transport, travel, labour and material costs, if these costs increase because the delivery has been moved to a place other than the agreed delivery address, unless this transfer is in line with the intended use. Furthermore, the Seller may refuse subsequent performance if it would incur disproportionate costs. The Buyer may only withdraw from the Contract or demand a reduction in price if subsequent performance fails twice, or if the Seller allows a reasonable grace period set by the Buyer for subsequent performance to expire without success. In the case of only minor defects, the Buyer shall not be entitled to withdraw from the Contract. Condition 8.1 applies to claims for damages.

8.4  This Condition 8 does not apply to Buyers acting as consumers (section 13 of the German Civil Code). For Buyers acting as consumers, the statutory provisions shall apply.

9 LIABILITY

9.1   Without prejudice to the generality of Condition 8 above, the Seller shall be under no liability to the Buyer:

9.1.1 In respect of any defect arising from wear and tear, willful damage, negligence, abnormal working conditions, a failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;

9.1.2 whatsoever in the event that the full price (including, without limitation, those matters set out in Condition 7) for the Goods has not been paid by the due date for payment; 9.1.3 or otherwise be deemed to be in breach of the Contract by reason of any delay in

performing, or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

• act of God, explosion, flood, tempest, fire or accident;
• war or threat of war, sabotage, insurrection, civil disturbance or requisition, pandemic;
• acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
• import or export regulations or embargoes;
• strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
• difficulties in obtaining raw materials, labour, fuel, parts or machinery;
• power failure or breakdowns in machinery.

9.2   The Seller shall only be liable for gross negligence or intent, or in the event of a breach of essential contractual obligations. These are obligations that are crucial for the proper execution of the Contract, and that the Buyer can usually rely on being observed.

9.3   In the event of a slightly negligent breach of a cardinal obligation, the Seller’s liability shall be limited to foreseeable damages that are typical for the Contract at the time it is concluded. The Seller shall not be liable for any slightly negligent breach of a secondary contractual obligation that is not a cardinal obligation.

9.4   In the event of initial impossibility of performance, the Seller is only liable if he was aware of the impediment to performance, if his lack of knowledge was due to gross negligence, or if the initial impossibility constitutes a material breach of duty.

9.5   Insofar as the Seller’s liability is limited or excluded, this shall also apply to the personal liability of its employees, representatives and vicarious agents.

9.6   The above limitations and exclusions of liability shall not apply in the event of fraudulent concealment of defects, the assumption of a quality guarantee or procurement risk, or for claims arising from the Product Liability Act (Produkthaftungsgesetz). They also shall not apply in the event of physical injury (life, body or health). This does not imply a change in the burden of proof to the Buyer’s detriment.

9.7  With the exception of claims in tort, the Buyer’s claims for damages, if the Buyer is acting as an entrepreneur, for which liability is limited in accordance with this clause, shall become statute-barred within one year from the beginning of the statutory limitation period.

9.8  The Buyer is obliged to take appropriate measures to avoid and minimize damage.

10 INTELLECTUAL PROPERTY RIGHTS

10.1  All intellectual property rights and all other rights in the Goods and the Seller‘s website shall be owned or licensed by the Seller.

10.2 If the Buyer is an entrepreneur, the following shall apply, irrespective of any further statutory claims: The Buyer shall indemnify the Seller on a full indemnity basis against any and all actions, costs (including, without limitation, the costs of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Seller with the Buyer’s specific instructions relating to the use of the Buyer’s intellectual property rights.

11 DATA PROTECTION

11.1 The processing of the Buyer‘s personal details is carried out in accordance with the relevant Data Protection Laws and the Seller’s privacy notice available here:Privacy Policy. Personal data will be processed by and on the Seller‘s behalf in connection with the Goods (all in accordance with the applicable law and regulations).

12 TERMINATION

12.1 Irrespective of any statutory rights of withdrawal, revocation and termination, and unless otherwise agreed by Seller and Buyer or stipulated hereafter, no Contract or purchase order may be terminated by Buyer except by mutual agreement in writing.

12.2 Termination of a purchase order according to Condition 12.1 is subject to the following conditions: (i) Buyer will pay for all undelivered Goods which are completely manufactured and allocable to Buyer at the time of Seller‘s receipt of notice of termination; and (ii) Buyer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Goods which have not been completely manufactured at the time of Seller‘s receipt of notice of termination,
plus a pro rata portion of normal profit on the Contract in the amount of 5% of the net purchase price.

13 GENERAL PROVISIONS

13.1 These Conditions shall be governed by and construed exclusively in accordance with German

law with exclusion of CISG. If the Buyer placed the order as a consumer and his habitual residence was in another country at the time, the mandatory legal provisions of that country shall apply regardless of the choice of law made in the preceding sentence. The parties hereby submit to the exclusive jurisdiction of the courts at the registered seat of the Seller if the Buyer is an entrepreneur.

13.2 Any dispute, controversy or claim arising out of or in connection with the Contract, if the Buyer is an entrepreneur, whether in tort, contract, under statute or otherwise, including any question regarding its existence, validity, interpretation, breach or termination of the Contract shall be settled by consultation between the Parties. In the event of failure of such consultations within 60 days (unless otherwise extended by mutual agreement) after receipt by the respondent party of the written notice of such matter, then the matter shall be subject to the jurisdiction stated above.

13.3 No forbearance or indulgence by the Seller shown or granted to the Buyer whether in respect

of these Conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be regarded as any waiver of any of these Conditions.

13.4 The Seller reserves the right to sub-contract the whole or any part of the Contract.

13.5 Any provision of these Conditions or any Contract which is, or may be, void or unenforceable shall, to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision the Contract.

13.6 Any notice under or in connection with these Conditions or any Contract shall be in writing.

13.7 No one other than a party to this Contract shall have any right to enforce any of its provisions.

14. TECHNICAL ADVICE OR OBSERVATION

14.1 At Buyer’s request, Seller (or representative it may designate) may provide certain limited observation and/or technical advice associated with the sale and/or use of the Goods sold under this Contract (“Services”). Seller reserves the right to establish limits on the total time allocated to Buyer for such Services. Where Buyer and Seller contract in writing for additional or extended services, if any, those terms shall be controlled within the scope of those extended services described.

14.2 Services are offered in an advisory capacity only, and Buyer assumes full responsibility for its use or non-use of such Services and agrees that Seller shall have no liability for Buyer’s use or non-use thereof and Seller makes no expressed or implied guarantee.

14.3 When visiting each other’s premises, Buyer and Seller and their respective personnel shall observe all rules or regulations that are in force on such premises. Buyer shall inform Seller of hazards, reasonably associated with the provision of the Services. A Party may keep or withdraw its personnel from any site of the other Party without any liability for delay or otherwise if, in the opinion of the first Party, that site represents a danger to the safety of its personnel.