1. Scope of Application and Contract Conclusion

The conditions stated below apply to all purchase, delivery and licence contracts concluded with us, including possible subsidiary agreements. Any deviating conditions of the purchasing party which we do not accept in writing, are not binding for us, even if we do not explicitly contradict. Our offers are without obligation. Subsidiary agreements, changes or amendments are only valid if we confirm them in writing. The same applies to the assurance of features.

2. Prices

The sales prices stated in our price lists are non-binding recommended prices. All former prices become invalid upon publication of a new price list.
Invoicing will be made on the basis of the prices valid on the day of delivery plus the statutory value-added tax. Postage, packaging as well as potential travel expenses and allowances at the licencee for the installation of programs will be invoiced separately, the same applies to staff training.

3. Delivery

The delivery dates and delivery periods stated by us are binding if they have been explicitly confirmed in writing to the orderer. In cases of force majeure or other unforeseeable, extraordinary circumstances which are not due to a fault of our own, such as operational disruptions, strikes, lockouts in our company or the company of a pre-supplier, the delivery period is stopped for the time of the blockage. If delivery becomes impossible or unacceptable due to the circumstances mentioned, then we are released from the obligation to deliver. In this case the purchaser is not entitled to damages. The risk is passed on to the purchaser even in case of carriage paid delivery, as soon as Thomatronik hands over the goods to the carrier or forwarding agent, or to any other persons ordered to perform delivery.

4. Payment/Retention of Title

Invoices of Thomatronik become due within 30 days after invoicing. The goods supplied by us remain our property until the purchaser has paid all claims arising from our business relationship, in particular a possible current account balance. The purchaser is entitled to resell the goods subject to retention of title in the normal course of business. In this case the purchaser already now assigns all claims arising from the resale of the goods subject to retention of title to assure all claims of Thomatronik from the business relationships to Thomatronik. Upon Thomatronik’s request the purchaser is obligated to inform his customers of the assignment and to hand over the documents to Thomatronik which are required toassert its claims.

5. Notice of Defect

Complaints due to bad or incomplete delivery have to be reported to Thomatronik immediately after receipt of the service and/or - in case of hidded defects - immediately after their detection; if this notification is not made, the service is considered to be faultless. The notice of defect has to be in written form and the defect has to be identified and documented precisely such that an inspection becomes possible. In case of computer programs the licencee is aware of the fact that in accordance with the state of the art the possibility of bugs cannot be completely excluded. Therefore these are no defects in a legal sense.

6. Warranty

a) If the purchaser reports material damage in shipments in due time, he is entitled to a replacement delivery or defect rectification. If the replacement delivery of defect rectification fails, the purchaser may request a reduction of the purchase price (abatement) or the cancellation of the contract (redhibitory action).

b) In case of a delivery of computer programs (software) the warranty of Thomatronik is limited to the criteria listed in the specification (Manual, User’s Guide) if used as defined in the contract in accordance with the program version bought. Thomatronik gives a warranty only for the operability and usability of the program on the software and hardware configurations recommended by Thomatronik at the time of contract conclusion.
Warranty claims are cancelled if the software is used, changed or expanded contrary to the conditions of this contract or without the agreement of Thomatronik. No warranty is given for self-made copies.
If the licencee reports defects in due time, Thomatronik will remedy them free of costs, but Thomatronik reserves the precise way of remedy and/or replacement delivery. If remedy is not possible or if more than two attempts to remedy are not successful, the licencee may request abatement or redhibitory action.

c) The warranty period for goods as well as computer programs is 2 years and starts on the day of delivery.

7. Limitation of Liability

Thomatronik is not liable for any damage, irrespective of the legal basis, including delay, impossibility of performance, fault at conclusion of contract as well as positive contract violation, if they do not result from a fault or only a slight negligence or are not due to the absence of an assured program feature or the violation of an essential contract obligation. This also applies to indirect damage, damage resulting from defects and lost profit as well as data loss. In any case the amount of possible damage claims is limited to such damage which could have been reasonably expected according to the circumstances known at the time of contract conclusion.
The limitation and/or exclusion of damage claims also applies to claims towards staff members and agents of Thomatronik.

8. Additional Conditions for Software

a) When delivering computer programs Thomatronik gives the licencee the nonexclusive and non-transferable right of use to the software and the relevant manuals, information and documentation. The licencee becomes the owner of the data carriers and materials delivered to him, however he is not entitled to use them apart from the terms of this licence contract.
The licencee must use the software exclusively for himself. The use in systems with several central units or computer networks is allowed if these are exclusively used by the licencee and concurrent use licences are acquired.
Copies of the software must only be produced for internal back-up purposes of the licencee and must include all copyright notices fixed on the products supplied. Marks, copyright notices and other proprietary notices of Thomatronik must not be changed by the licencee.

b) The licence is limited or not limited in time, depending on the purchase contract. It may be revoked by Thomatronik, if the licencee uses the contract product for other purposes than those agreed in the contract, in particular if he passes them on to third parties or multiplies them for other than internal purposes.
When the licence is revoked, the licencee has to hand over to Thomatronik immediately and completely the data carriers supplied, the information brochures, manuals and the like, including all possibly made copies and/or if these are stored on data carriers, he has to erase them.
Further claims remain unaffected.

c) The licencee is not entitled to make changes to the software supplied without the prior written consent of Thomatronik.
Thomatronik acquires all exclusive rights without compensation to all possible changes or improvements of the software immediately upon their introduction. Thomatronik will offer advancements to the licencee on an individual basis.

9. Final Clause

Should an individual provision of these general terms and conditions be unenforceable, it has to be replaced by a provision which serves the economic purpose intended as closely as possible.
The exclusive place of performance for delivery, licence and payment obligations isRosenheim. Place of jurisdiction is Rosenheim.