General Terms and Conditions of Business
Last amended: January 2020
§1 General Terms and Conditions
- The following provisions regulate the business relations between TIM GmbH (hereinafter called TIM) and its customers and suppliers, and their purpose is to ensure the smooth course of business. They apply to all services and goods supplied by TIM to the customer within the respective business relationship. In particular, this also includes all future contracts concluded between TIM and the customer or between TIM and suppliers.
- The latest version of the General Terms and Conditions always applies. The latest version of TIM’s General Terms and Conditions can be found online at https://tim-gmbh.de/general-terms-and-conditions/ .
- Other terms and conditions of the customer or verbal sub-agreements shall only apply if they have been accepted by TIM in writing.
- When the customer places an order for the first time, TIM’s General Terms and Conditions are also deemed to be included with binding effect in the contract if the customer accepts the contractual services of TIM without objection and TIM only draws the customer's attention to these General Terms and Conditions in the order acknowledgement.
- Offers sent by TIM are non-binding and subject to change. Prices or pricing structures are only valid at the time the order acknowledgement is issued. The customer shall be notified of any price increases immediately. This notification entitles the customer to withdraw from the contract within two weeks after receiving the notification as long as there are no contrary provisions in contracts, contract annexes or written agreements.
- Unless otherwise agreed, payment shall be made immediately and without deduction. If payment is delayed, all other claims from the business relationship shall also become due for payment immediately. No separate notification is required from TIM in this respect. TIM shall suspend the delivery of goods or services from current orders until full payment has been received. This also applies even if delivery dates have been confirmed in writing.
- TIM is entitled to demand interest on arrears. The amount of interest is based on the current base interest rate of the
ECB + 5%.
§2 Supply of goods and services
- TIM shall exclusively supply goods and services listed in the respective contract. Extending the scope of delivery and services requires written confirmation by TIM.
- Offers made by TIM are without obligation. A contract shall only be deemed to be concluded when TIM sends the customer a written order acknowledgement or when a contract is signed by both TIM and the customer.
- The customer is responsible for transporting the goods from TIM’s premises and must bear the cost of transport including any insurance accordingly. The risk of accidental loss shall pass to the customer at the time the goods leave TIM’s premises, in particular when they are handed over to the customer or the carrier (e.g. forwarding agent, railway, post office, etc.) or other person representing the customer. If delivery is delayed for reasons for which the customer is responsible, the risk of accidental loss shall pass to the customer when TIM notifies the customer that the goods are ready to be dispatched. TIM will package the goods for transportation to the best of its knowledge and belief and check them for intactness before they leave the premises. (Incoterms 2020:EXW)
- An agreed delivery time is deemed to have been met if the goods leave TIM’s factory by the agreed delivery date or if TIM has notified the customer that the goods are ready to be dispatched.
- Insofar as the customer is required to provide documents, records, approvals, etc. or to carry out other acts of cooperation, the period for delivery shall not commence until the customer has fulfilled the obligations assumed in this respect. If TIM has specified a delivery date, this shall be postponed by the same length of time by which the customer is late in providing or producing the documents, records and/or approvals or other acts of cooperation.
- A delivery date specified by TIM shall also be postponed if other circumstances occur for which TIM is not responsible, such as labour disputes (strike, lockout), official or judicial measures and events of force majeure (e.g. from fire, water, earthquake, storm damage, etc.). Furthermore, in the aforementioned cases, TIM shall be entitled to terminate the contract without notice if it is not considered reasonable for TIM to continue with the contract. TIM will inform the customer immediately if any of the cases mentioned above occurs.
- Claims for damages due to delay in delivery or non-fulfilment are excluded, except in the case of intentional or grossly negligent behaviour.
- The customer must observe the maintenance intervals specified in the operating instructions. Furthermore, the customer must always check the expiry date of relevant products and replace the product when the expiry date elapses. This shall also apply, in particular, in the event of further delivery of the equipment by the customer to its own customers.
- TIM’s warranty is exclusively governed by the following provisions. If TIM produces goods for the customer within the framework of a contract for work and services (in particular in the case of development contracts), the following warranty provisions shall only become applicable at the time when the goods are sent to the customer by TIM with the request for acceptance. Up to this point, only the general statutory regulations on malfunctions shall apply.
- TIM guarantees that the goods it delivers are free of defects. The warranty is subject to the condition that any defects or damage to the goods have not been caused by improper handling, incorrect storage (especially in the case of weather conditions and influences from the environment of the stored goods) or lack of or inadequate maintenance by the customer, or during transport. Furthermore, the warranty does not apply to normal wear and tear or usage (especially for disposable items).
- The warranty period generally lasts 24 months. The warranty period begins from the date the customer invoices its own customers, if the customer purchases the goods for resale. However, the warranty period ends at the latest at the end of the 30th month following the date on which the warranty period began in accordance with the statutory provisions. If the customer does not resell the goods delivered by TIM, the beginning of the warranty period shall be governed by the statutory provisions.
- Within the scope of the warranty, the customer initially only has the right to have defects rectified. Within the scope of the rectification, TIM has the right to remedy the defect or to send replacement goods. TIM shall assume the necessary expenses for the rectification, in particular the transport, travel, labour and material costs. TIM shall only agree to bear the transport costs as far as the place to which the originally delivered goods were to be delivered. Defects shall be rectified at the TIM factory. The customer must send the goods to TIM for the purpose of rectification. If the customer does not comply with this obligation, TIM is released from its warranty obligation.
- If defects cannot be rectified (after the second unsuccessful attempt at rectification) or if TIM refuses to carry it out, or if the rectification of defects is unreasonable for TIM or the customer or if the rectification of defects is impossible, the customer is entitled to a reduction in the purchase price or remuneration, or to withdraw from the contract with regard to the defective goods.
- If the customer is a merchant, the customer must inspect the equipment delivered to it by TIM immediately after delivery for obvious and hidden defects and damage as well as for shortages and then inform TIM of obvious and hidden defects, damage or shortages in writing immediately (but no later than 14 days after delivery). If the customer does not inform TIM within 14 days after delivery about missing items or obvious or hidden damage or defects, all claims from the customer are excluded in this respect. If the customer is not a merchant, its obligation to inspect the delivered goods shall be governed by the statutory provisions.
- If the customer is returning equipment delivered by TIM under warranty, it must use the special packaging used by TIM for the original delivery to avoid transport damage. The customer shall bear the transport risk.
- Claims for damages raised by the customer against TIM and/or its vicarious agents are not admissible and are excluded, except in the case of demonstrably indisputable intentional or grossly negligent behaviour.
§4 Approvals, compliance with legal requirements
- If official or other approvals are required, in particular but not exclusively for the authorisation, resale or operation of the goods etc., the customer shall not to sell or operate the equipment without the necessary approvals. The customer shall therefore obtain the necessary approvals before reselling and/or operating the goods. Furthermore, the customer must observe the relevant legal regulations, ordinances and other safety regulations within the scope of the resale or operation of the goods. If the customer does not comply with the obligations incumbent on it in this respect, it must indemnify TIM from all claims resulting from an infringement.
- TIM agrees to manufacture the goods in accordance with European Community Council Directive 93/42/EEC (MDD) or 2017/745 (MDR), whichever is applicable to the scope of the goods, insofar as the goods due are covered by the Directive and unless otherwise agreed by the parties.
§5 Due date, Payment Method and Delays
- Unless otherwise agreed between TIM and the customer, invoices from TIM are due for payment as soon as the customer receives the invoice. For TIM deliveries and services abroad, payment must be made by irrevocable and confirmed letter of credit from a major bank of the Federal Republic of Germany, payable in favour of TIM upon presentation of the documents at this major bank. Cheques, bills of exchange or other methods of payment are only accepted by way of provisional performance. The day on which the payment amount is credited to TIM’s account is considered the day the customer has paid. Any costs and/or fees arising when cashing bills of exchange, cheques or other payment methods, these shall be borne by the customer.
- Prices quoted by TIM do not include statutory value added tax (if applicable) or packaging. If customs duty and/or other charges are incurred, these shall be borne by the customer. If a delivery takes place within the European Union, the customer must inform TIM of their VAT identification number.
- Delays in payment and interest on arrears shall comply with the statutory provisions. If the customer is a merchant, the customer shall only be permitted to set off or exercise rights of retention against legally established or undisputed claims.
- The delivered goods are subject to TIM's extended retention of title. Ownership of the goods shall not pass to the customer until all claims (including future claims) arising from the business relationship with the customer have been settled by the customer, irrespective of the legal basis of these claims and irrespective of whether the customer has made payment for specified claims. In the case of open accounts, the retained title shall be deemed security for the TIM balance claim.
- The customer is permitted to process or use the delivered goods. This is done on behalf of TIM, which is to be considered the manufacturer and accordingly retains ownership. Processing or use is free of charge and without obligation for TIM. The same applies if the customer processes, combines or mixes the goods with other movable objects not belonging to TIM. In these cases, TIM is entitled to co-ownership of the new item in the ratio between the invoice value of the goods supplied by TIM to the customer and the other items used by the customer at the time the goods are processed, combined or mixed.
- The customer’s claims arising from a resale of the goods are already automatically assigned to TIM when the contract is concluded between TIM and the customer as security for all claims (including future claims) of TIM arising from the business relationship, regardless of whether the goods are sold without or after processing and whether they are sold to one or more purchasers. The customer is authorised to collect these assigned claims even after the transfer, unless TIM revokes the previously mentioned collection authorisation. The authority of TIM to collect the claim itself remains unaffected. However, TIM undertakes not to collect the claim as long as the customer properly fulfils its payment obligations and is not behind with payments. However, if this is the case, the customer is obliged, at the request of TIM, to inform TIM of the claim from the resale and to disclose the name and address of its end customer. Furthermore, in this case, TIM’s customer is obliged to hand over all documents and information to TIM which are necessary for the collection of the claim and to inform its end customer of the assignment.
- The customer is not entitled to pledge and/or assign the delivered goods as security. The customer shall inform TIM immediately of any seizure, distraint or other dispositions by third parties.
- If the value of the securities that exist for TIM exceeds its claims by more than 20% in total, TIM is obligated to release securities of TIM’s choice at the request of the customer or a third party affected by TIM’s excess security.
- TIM is only liable for damage or loss suffered by the customer, regardless of the cause, in the event of intent or gross negligence on the part of its legal representatives, executive employees or vicarious agents. This applies in particular in the event of an infringement of main, secondary or pre-contractual obligations, in the event of payment delay, in the event of damage caused by defects or consequential damage caused by defects, in the event of initial inability to perform as well as subsequent impossibility of performance and tortious act. The restrictions above shall not apply in the event of an infringement of a material contractual obligation.
- If TIM is liable for damages to the customer, TIM shall only be liable for the amount of the damages to the extent that they were foreseeable by TIM. In these cases, the liability of TIM is limited to € 1,000,000 (one million euros). This limitation of liability does not apply if the damage is due to the fact that a legal representative or executive employee of TIM has acted with intent or gross negligence or another subcontractor has violated a major obligation with intent or gross negligence. If the customer is not a merchant, the limitation of liability also does not apply if a TIM subcontractor has intentionally or grossly negligently breached a contractual obligation which is not a material contractual obligation.
- The above exclusions and/or limitations of liability shall not apply within the scope of the applicability of the Product Liability Act, or in the absence of warranted qualities. or in the case of damage resulting from injury to life, body and health.
- If business or trade secrets are disclosed and/or transferred to the customer by TIM (including information and knowledge about fundamentals, working methods, production, new developments, improvements, etc.), the customer must treat them as strictly confidential and may only make them accessible to third parties (including employees, suppliers, subcontractors) to the extent necessary to carry out the respective contract. Furthermore, the customer must inform the third parties that this information is confidential and obligate them to maintain confidentiality accordingly. The confidentiality obligation shall continue to apply for an indefinite period even after the contract has been terminated. Furthermore, the confidentiality obligation applies to all business and trade secrets, regardless of whether they have been identified as confidential or not.
- In each case of violation of Clause 7.1, the customer is obliged to pay TIM a contractual penalty in the amount of € 25,000. TIM reserves the right to claim further damages. The customer shall have the right to prove that no damage has been incurred or that the damage incurred has only been minor.
§8 Final Provisions
- The contract is exclusively subject to the law governing the Federal Republic of Germany. The applicability of the UN Convention on Contracts for the International Sale of Goods dated 11th April 1980 and the German conflict of laws provisions is excluded.
- Supplements and/or amendments to a contract must be made in writing. This applies equally to the waiver of the written form requirement.
- If a provision of a contract or of these General Terms and Conditions is or becomes invalid, this shall not affect the validity of the remaining provisions of the contract or of these General Terms and Conditions. Instead, the invalid provision shall be replaced by a legally effective provision by way of supplementary interpretation of the contract, which comes as close as possible to the commercial purpose recognisably intended by the contractual parties. The same applies to filling in any gaps in the contract.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is the registered office of TIM. The place of performance for all performance by TIM and the customer is the registered office of TIM.
- Copyright software is always delivered in accordance with the licence terms of the respective manufacturer or its representative. The respective licence terms of the manufacturer or representative automatically apply as part of the contract. By law, copyright belongs to the manufacturer of the software. The customer must take all measures to protect the copyright.
- Wenn als notwendig erachtet, behält sich TIM das Recht vor, vertragliche Informations- und Aufklärungsrechte an berechtigte Lieferanten abzutreten.
- These T&Cs are issued to the customer with each quotation and can be found online at https://tim-gmbh.de/general-terms-and-conditions/en/ .
Technologie Institut Medizin (TIM) GmbH
August-Thyssen Str. 30 • D-56070 Koblenz
Tel. +49(0) 261 899 689 00 • Fax +49(0) 261 899 689 09
www.tim-gmbh.de • firstname.lastname@example.org