General Terms and Conditions of Sale – TIMMER GmbH
Section 1: Scope of Application, Form
(1) These general terms and conditions of sale apply exclusively to traders in the exercise of their trade, business or profession and to legal persons incorporated under public law. They shall apply to all business transactions between Timmer GmbH (“TIMMER”) and the buyer, even if they are not mentioned in subsequent contracts. These general terms and conditions of sale shall apply in particular to contracts for the sale and/or delivery of movable objects (“goods” or “products”), regardless of whether TIMMER manufactures the goods itself or purchases them from suppliers.
(2) TIMMER’s general terms and conditions of sale apply exclusively. Any conflicting, additional or deviating terms and conditions of the buyer shall not form part of the contract, unless TIMMER consents to their validity in writing. These general terms and conditions of sale shall apply even if TIMMER makes a delivery to the buyer without reservation despite being aware of the buyer’s conflicting, additional or deviating terms.
(3) Any legally relevant declarations and notifications to be submitted by the buyer in relation to the contract (e.g. deadlines, notification of defects, withdrawal from the contract or reduction in fees) must be made in writing. For the purpose of these general terms and conditions of sale, the term “in writing” also includes text form (e.g. letter, email, fax). Notwithstanding the above, the statutory provisions apply with regard to formal requirements and additional evidence, especially in case of doubt regarding the authority of the person submitting a declaration.
(4) Any agreements between TIMMER and the buyer for the execution of a contract that conflict with, supplement or deviate from these general terms and conditions of sale must be recorded in writing. This also applies to the cancellation of this written form requirement.
(5) Any references to the validity of statutory provisions are only made for clarification purposes. The statutory provisions shall therefore also apply without such clarifying references, unless they are directly amended or explicitly excluded by these general terms and conditions of sale.
Section 2: Conclusion of Contract
(1) Any offers made by TIMMER shall be non-binding and subject to change.
(2) Any illustrations, drawings, weights, dimensions, performance and consumption data and other product descriptions contained in the documents accompanying an offer shall only be approximations, unless they are explicitly designated as binding. They shall not constitute any agreement or guarantee regarding a certain product quality or durability, unless they are explicitly agreed as such in writing. Furthermore, the buyer’s expectations regarding the products or their use shall not constitute an agreement or guarantee.
(3) TIMMER shall retain ownership and reserve all copyrights and intellectual property rights in relation to all documents accompanying an offer, in particular with regard to any illustrations, drawings, calculations, brochures, catalogues and tools. Any such documents must not be made available to third parties. The buyer shall immediately return all documents accompanying an offer to TIMMER upon request if they are no longer required in the normal course of business. The same applies in particular to all other documents, drafts, samples and models.
(4) An offer shall only become binding if TIMMER issues a written order confirmation within two weeks or if TIMMER executes the order, particularly if TIMMER fulfils the order by sending the ordered products. An order confirmation created by automated means without a signature and name shall be deemed to have been issued in writing.
(5) TIMMER’s silence in response to any offers, orders, requests or other declarations from the buyer shall only be deemed to constitute consent if this has been previously agreed in writing.
(6) If the buyer’s financial situation deteriorates significantly, or if a justified application to open insolvency or similar proceedings in relation to the buyer’s assets is rejected due to a lack of assets, TIMMER shall be entitled to withdraw from the contract in whole or in part.
Section 3: Scope of Delivery
(1) Any changes to the scope of delivery by the buyer must be confirmed by TIMMER in writing to be effective. TIMMER reserves the right to make changes to the design and shape of the products, provided that the deviations are customary in the industry, or provided that the deviations fall within DIN tolerances, or provided that the changes are not significant and are reasonable for the buyer. The same applies to the choice of materials, specifications and models.
(2) TIMMER shall only be entitled to make partial deliveries if they can be used by the buyer for the contractually intended purpose, if the delivery of the remaining ordered goods is ensured and if the buyer does not incur any significant additional effort or costs as a result.
Section 4: Delivery Time, Transfer of Risk, Acceptance, Delay in Delivery, Default in Acceptance
(1) Any agreements on delivery times (delivery dates and deadlines) must be made in text form.
(2) Each delivery period shall begin when the contract is concluded, but not before all materials, approvals and releases to be obtained by the buyer have been submitted in full, and not before all technical issues have been clarified and the advance payment to be made has been received (see Section 7 (3) below). If a delivery date is agreed, it shall be postponed appropriately if the buyer does not submit the relevant documents, approvals and releases in a timely manner, if the buyer does not grant approvals in a timely manner, if all technical issues are not fully clarified in a timely manner, or if the advance payment to be made is not received in full by TIMMER (see Section 7 (3) below). In order for TIMMER to adhere to the delivery time, the other obligations must be fulfilled by the buyer in a timely manner.
(3) Unless otherwise agreed by the parties, the goods shall be delivered ex works (Incoterms 2020) from Dieselstraße 37, 48485 Neuenkirchen, Germany, which shall also be the place of performance for the delivery and any rectification measures. The goods shall be shipped to another destination at the buyer’s request and expense (sale involving the carriage of goods). Unless otherwise agreed, TIMMER shall be entitled to choose the type of shipping itself (particularly the transport company, shipping route and packaging). All delivered goods must be accepted by the buyer – without prejudice to the buyer’s claims for defects – even if they have insignificant defects.
(4) The risk of accidental loss and deterioration shall be transferred to the buyer, at the latest, when the goods are handed over to the buyer. In the case of sales involving the carriage of goods, however, the risk of accidental loss and deterioration and the risk of delay shall be transferred to the forwarding agent or carrier – or any other person or institution assigned to carry out the shipment – as soon as the goods are handed over. If a formal acceptance procedure is agreed, this shall determine when the risk is transferred. The statutory provisions on contracts for work and services shall also apply accordingly to any agreed acceptance procedure. The goods shall be deemed to have been handed over or accepted if the buyer fails to accept them on time.
(5) TIMMER shall not be held liable for any delivery delays or its inability to deliver goods as a result of force majeure or any other events that are not caused by TIMMER and that were unforeseeable at the time the contract was concluded (e.g. any kind of operational disruption, difficulties in procuring raw materials or energy, transport delays, strikes, lawful lockouts, labour shortages, lack of energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or missing, incorrect or late deliveries from suppliers despite a congruent hedging transaction being concluded by TIMMER). If any such events make it highly difficult or impossible for TIMMER to deliver the products, and if the hindrance is not just temporary, TIMMER shall be entitled to withdraw from the contract. In the case of temporary hindrances, the dates and deadlines proposed for TIMMER’s deliveries and services shall be postponed or extended by the amount of time for which the hindrance persists plus a reasonable start-up period. If the buyer cannot reasonably be expected to accept the products or services as a result of the delay, the buyer may withdraw from the contract by immediately issuing a written declaration to TIMMER.
(6) In the event of a delay in delivery, the buyer shall be entitled to withdraw from the contract after a reasonable grace period granted to TIMMER following the delay in delivery has expired to no avail.
(7) If TIMMER has entered into a framework agreement with the buyer for future deliveries with fixed delivery times and the buyer does not call off the products on time, and after a reasonable grace period set by TIMMER has expired to no avail, TIMMER shall be entitled to deliver and invoice the products, to withdraw from the contract or to claim compensation for damages or reimbursement of expenses. The obligation to pay damages or reimburse expenses shall not apply if the buyer is not responsible for failing to call off the products on time.
(8) If the buyer defaults on acceptance, TIMMER may demand compensation for the damage incurred as well as reimbursement of any additional expenses, unless the buyer is not responsible for failing to accept the products. In particular, TIMMER shall be entitled to store the products at the buyer’s expense during the delay in acceptance. The costs for storing the products shall be calculated at a flat rate of 0.5% of the net invoice value per calendar week or part thereof. This shall be without prejudice to TIMMER’s further claims. The buyer shall be entitled to prove that TIMMER has incurred lower costs or no costs at all. The same shall apply if the buyer violates any other obligations to cooperate, unless the buyer is not responsible for the violation of the other obligations in question.
(9) Notwithstanding the above, the buyer may exercise the rights described in Section 10 below and TIMMER may exercise its statutory rights, particularly if it is released from its obligation to perform the contract (e.g. due to the impossible or unreasonable nature of the service and/or rectification measures).
Section 5: Delivery of Software
(1) If TIMMER provides the buyer with standard software for temporary or unlimited use as part of or in connection with a delivery of associated hardware (“software”), the following provisions shall apply to the entire delivery and to the extent that a breach of duty or default is occasioned by the software. The hardware itself shall also be subject to the other provisions set out in these general terms and conditions of sale. Unless otherwise agreed, TIMMER shall assume no obligation to provide services.
(2) At the time the risk is transferred to the buyer, the software shall be in the agreed condition and shall be suitable for the contractually agreed use or, in the absence of such an agreement, it shall be suitable for its customary use. It shall meet the criterion of practical suitability and shall have the quality that is customary for software of its type; however, it shall not be without errors. Any functional impairment of the programme resulting from hardware defects, environmental conditions and/or incorrect operation by the buyer shall not constitute a defect.
(3) The software shall be legally protected. All copyrights, patent rights, trademark rights and other property rights related to the software or any other items that TIMMER transfers or makes available to the buyer during the initiation and execution of the contract shall be owned exclusively by TIMMER in the relationship between the contracting parties. If any such rights belong to third parties, TIMMER shall have corresponding exploitation rights.
(4) TIMMER shall grant the buyer the non-exclusive right to use the software once the purchase price has been paid in full. Unless otherwise agreed, this right of use shall apply in the country where the hardware is delivered. The buyer shall acquire the same rights to any modified, expanded or newly created software as to the standard software.
(5) The right of use shall be limited to the agreed period; in the absence of such an agreement, the right of use shall be granted for an unlimited period. If the right of use is granted for a limited period, the following additional provisions shall apply: The buyer may only use the software with the hardware specified in the contract documents (e.g. software product certificate) or, in the absence of such specifications, with the associated hardware delivered alongside the software. The software may only be used with another device with TIMMER’s express written consent and, if the software is used with a more powerful device, TIMMER shall be entitled to an appropriate additional fee; this shall not apply if and for as long as the buyer temporarily uses the software with a replacement device to the agreed extent due to a defect in the agreed device.
(6) In the case of software for which TIMMER only has a derived right of use and which is not open-source software (third-party software), the terms of use agreed between TIMMER and its licensor shall apply in addition to – and shall take precedence over – the terms set out here in Section 5, insofar as they concern the buyer (e.g. end user licence agreement); TIMMER shall inform the buyer of the relevant terms of use and shall make them available to the buyer upon request.
(7) In the case of open-source software, the terms of use to which the open-source software is subject shall take precedence over the provisions set out here in Section 5. TIMMER shall only release or make the source code available to the buyer to the extent required by the terms of use of the open-source software. TIMMER shall inform the buyer of the existence and terms of use of the open-source software provided and shall make the terms of use available to the buyer or, if required by the terms of use, shall transfer them to the buyer.
(8) In order to use the software on multiple devices or simultaneously at multiple workstations, the buyer must obtain the relevant rights of use to be agreed separately. The same applies to the use of the software in networks, even if the software is not reproduced.
(9) The buyer may produce back-up copies of programmes to the extent required for secure operations. The back-up copies must be stored securely and, as far as technically possible, must contain the copyright notice of the original data carrier or the online version of the software. Copyright notices, trademarks and product labels must not be deleted, altered or suppressed. Any copies that are no longer required must be deleted or destroyed. The user manual and other documents provided by TIMMER may only be copied for in-house purposes.
(10) The buyer may only decompile the programme interface information within the limits set out in Section 69 of the German Act on Copyright and Related Rights (UrhG) and only after informing TIMMER of its intention in text form and after asking for the necessary interface information to be provided with at least two weeks’ notice.
Section 6: Export Control
(1) The buyer agrees to comply with all applicable export and foreign trade law provisions of the Federal Republic of Germany, the European Union and the United States of America, as well as all other applicable national and international export control regulations and foreign trade laws.
(2) In the case of cross-border deliveries, the buyer must provide the competent authorities with all declarations necessary for export from Germany and import into the country of destination in a timely manner and must take all actions necessary in this regard, in particular by obtaining the documents required for customs clearance and meeting the requirements of any export controls or other restrictions on marketability.
(3) Any delays due to export controls shall result in an appropriate extension of delivery times; delivery dates shall be postponed as appropriate. In the case of deliveries requiring approval, TIMMER shall be entitled to delay the services until an export licence has been issued – and the buyer has provided TIMMER with evidence of this – or to withdraw from the contract. In such cases, TIMMER shall not be held liable for delayed performance or non-performance.
(4) The buyer agrees to refrain from using any products manufactured by TIMMER (including software), parts of such products and/or technologies used by TIMMER in weapons and/or weapon systems; the buyer also agrees to refrain from selling such products, parts and/or technologies for use in weapons and/or weapon systems.
(5) If the buyer breaches an obligation under Section 6 above and/or if a business transaction is completely or partially prohibited, TIMMER shall be entitled to refuse the contractually agreed delivery or to withdraw from all or part of the contract for compelling reasons without notice. This shall be without prejudice to any further claims that TIMMER may hold against the buyer.
Section 7: Prices and Payment
(1) Unless otherwise agreed in a specific case, the prices valid at the time the contract is concluded shall apply ex works (Incoterms 2020) from Dieselstraße 37, 48485 Neuenkirchen, Germany. The prices shall not include shipping or packaging costs, insurance, statutory taxes, customs duties or other charges. The buyer shall be invoiced separately for any costs incurred in this regard, in particular for product packaging and transport costs. If the net order value is less than EUR 50.00, TIMMER shall be entitled to charge an additional fee for small quantities. Value added tax shall be shown separately on the invoice at the statutory rate applicable on the day the invoice is issued.
(2) In the case of sales involving the carriage of goods (see Section 4 (3) above), the buyer shall cover the costs incurred to transport the goods ex works from Dieselstraße 37, 48485 Neuenkirchen, Germany, and the cost of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) Unless otherwise agreed, the delivery price must be paid without deductions as soon as the goods have been delivered and an invoice has been received. The payment shall be deemed to have been made on the day on which TIMMER finally has the delivery price at its disposal. However, TIMMER shall be entitled to make all or part of a delivery subject to a prepayment at any time, even during an ongoing business relationship. TIMMER shall announce such a proviso, at the latest, when issuing the order confirmation.
(4) If the buyer defaults on a payment, the statutory rate of default interest shall accrue on the purchase price. TIMMER reserves the right to assert further claims for damages caused by the late payment.
Section 8: Material Defects
(1) The buyer may only assert its rights in relation to defects if the buyer has inspected the products upon receipt – processing or using samples where reasonable – and has notified TIMMER of any obvious defects in text form (e.g. by letter, fax or email) immediately after receiving the products. Any hidden defects must be reported to TIMMER in text form as soon as they are discovered. The buyer must describe the defects in text form when reporting them to TIMMER. The buyer must also observe the specifications, information, guidelines and conditions in TIMMER’s technical information and other documents relating to individual products, in particular those contained in assembly and operating instructions.
(2) If any products are defective, TIMMER shall be entitled to rectify the situation at its own discretion by remedying the defect or delivering a non-defective product. In the event of rectification measures, TIMMER shall be obliged to bear all expenses required for such purposes – in particular any transport, travel, labour and material costs – in accordance with the statutory provisions and these general terms and conditions of sale, provided that such costs do not increase as a result of the products being transported to a location other than the delivery address. Any labour and material costs claimed by the buyer in this context shall be calculated at cost. Any replaced products shall become TIMMER’s property and must be returned to TIMMER.
(3) If TIMMER is not willing or able to take rectification measures, the buyer may withdraw from the contract or reduce the delivery price at its own discretion; this shall be without prejudice to any claims for damages or reimbursement of expenses. The same applies if TIMMER fails in its attempt to rectify the defects, or if the rectification measures are unreasonable for the buyer or are delayed beyond a reasonable period for reasons attributable to TIMMER.
(4) The buyer shall not be entitled to withdraw from the contract if the buyer is unable to return the service received and this is not due to the fact that a return is impossible due to the nature of the service received or is not due to the fact that TIMMER is responsible or that the defect only became apparent during the processing or transformation of the products.
(5) Any future wear and tear caused by the intended use of the products and any wear and tear or damage caused by the improper use or inadequate storage and/or care and/or maintenance of the products shall not constitute a material defect. The same applies, for example, if the change in the goods is due to unusual chemical, physical or thermal influences that the buyer has not reported to TIMMER in writing.
(6) The buyer shall not be entitled to reimbursement of expenses instead of damages in lieu of performance unless the expenses would also have been incurred by a reasonable third party.
(7) TIMMER shall not provide any guarantees, in particular with regard to quality or durability, unless otherwise agreed in writing in a specific case.
(8) The buyer shall not be entitled to reimbursement of expenses pursuant to Section 445a (1) of the German Civil Code (BGB). The buyer may only assert claims for damages or reimbursement of futile expenses (Section 284 BGB), even in the case of defects in the goods, in accordance with Sections 10 and 11 below.
Section 9: Defects in Title
(1) TIMMER guarantees that the contractually agreed use of the software by the buyer shall not conflict with any third-party rights. In the event of any defects in title, TIMMER guarantees that it shall enable the buyer to use the software or equivalent software in a legally compliant manner at its own discretion.
(2) The buyer shall immediately inform TIMMER in writing if third parties assert any intellectual property rights (e.g. copyrights or patent rights) in relation to the software. TIMMER shall provide the buyer with information and advice to help defend the buyer against such third-party attacks.
(3) The provisions of Section 8 above and Sections 10 and 11 below shall otherwise apply accordingly in the event of any defects in title.
Section 10: Other Liability
(1) Unless otherwise stated in these general terms and conditions of sale, including the following provisions, TIMMER shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) TIMMER shall be liable to pay damages, regardless of the legal reason, as part of its liability for intent and gross negligence. In the case of simple negligence, and subject to the statutory limitations of liability (e.g. care in one’s own affairs, insignificant breach of duty), TIMMER shall only be liable for:
a) damages resulting from injury to life, limb or health; and
b) damages resulting from the breach of an essential contractual duty (an obligation that must be observed to enable the proper execution of the contract in the first place and on the observance of which the contractual partner may regularly depend) – in such cases, however, TIMMER’s liability shall be limited to compensation for the typically foreseeable degree of damage.
(3) The limitations of liability indicated in (2) above shall also apply in relation to third parties and if breaches of duty are committed by persons (also in their favour) for whose actions TIMMER is held accountable under the statutory provisions. They shall not apply if a defect is fraudulently concealed, if the qualities of the goods have been formally guaranteed, or if the buyer asserts claims under the German Act on Liability for Defective Products (ProdHaftG).
(4) In the event of a breach of contract that does not relate to a defect, the buyer may only terminate or withdraw from the contract if TIMMER is responsible for the breach of duty. The buyer shall not have a free right of termination (particularly excluding the rights described in Sections 650 and 648 BGB). The statutory requirements and consequences shall otherwise apply.
Section 11: Limitation Period
(1) By way of derogation from Section 438 (1) No. 3 BGB, any claims arising from material defects and defects in title shall generally expire within one year of delivery. If a formal acceptance procedure has been agreed, the limitation period shall begin once the goods have been accepted.
(2) If the goods are buildings or objects that have been used for a building in accordance with their normal use and have caused defects in the building (construction materials), any claims for such defects shall expire within 5 years of delivery, as stipulated by law (Section 438 (1) No. 2 BGB). Other special statutory regulations on limitation periods shall also remain unchanged (in particular Section 438 (1) No. 1, Section 438 (3), Section 444 and Section 445b BGB).
(3) The above limitation periods under sales law shall also apply to any contractual and non-contractual claims for damages held by the buyer due to a defect in the goods, unless the application of the regular limitation period (Sections 195 and 199 BGB) would result in a shorter limitation period in a particular case. Any claims for damages held by the buyer in accordance with the first sentence and second sentence (a) of Section 10 (2) above, or any claims for damages under the ProdHaftG, shall expire exclusively within the legally prescribed periods.
Section 12: Modification of Goods, Product Warnings, Product Recalls
(1) The buyer shall not modify the products; in particular, the buyer shall not alter or remove any warnings about dangers resulting from the improper use of the products. If this obligation is breached, the buyer shall indemnify TIMMER internally against any product liability claims asserted by third parties, unless the buyer is not responsible for the modification of the products.
(2) If TIMMER is prompted to recall a product or to issue a product warning due to a product defect, the buyer shall use its best efforts to cooperate in the measures that TIMMER deems necessary and appropriate and shall provide TIMMER with assistance, in particular in determining the necessary customer data. The buyer shall be obliged to bear the costs of the product recall or warning, unless the buyer is not responsible for the product defect according to product liability principles. This shall be without prejudice to TIMMER’s further claims.
(3) The buyer shall immediately inform TIMMER in text form (e.g. by letter, fax or email) if it becomes aware of any risks associated with the use of the products or if it suspects any product defects.
Section 13: Retention of Title
(1) The delivered products shall remain TIMMER’s property until the delivery price and all claims to which TIMMER is entitled from the business relationship with the buyer have been paid in full. The buyer shall be obliged to treat the products subject to retention of title with care for as long as they remain subject to retention of title. In particular, the buyer shall be obliged to adequately insure the products at its own expense against fire, water and theft damage at the relevant invoice value. The buyer must provide proof of insurance if requested by TIMMER. The buyer hereby assigns to TIMMER all compensation claims arising from such insurance. TIMMER hereby accepts the assignment. If the assignment is not permissible, the buyer shall instruct the insurer to make any payments exclusively to TIMMER. This shall be without prejudice to TIMMER’s further claims.
(2) The buyer shall only be permitted to sell the products subject to retention of title in the normal course of business. Furthermore, the buyer shall not be entitled to pledge the products subject to retention of title, to assign them as security or to make any other dispositions that would jeopardise TIMMER’s title. In the event of any seizures or other interventions by third parties, the buyer must immediately notify TIMMER in text form (e.g. by letter, fax or email) and provide all necessary information, inform the third party in question about TIMMER’s property rights and cooperate in TIMMER’s measures to protect the products subject to retention of title. If the third party is unable to reimburse TIMMER for the judicial and extra-judicial costs incurred in enforcing TIMMER’s property rights, the buyer shall be obliged to reimburse TIMMER for the resulting loss, unless the buyer is not responsible for the breach of duty.
(3) The buyer hereby assigns to TIMMER the claims resulting from the resale of the products together with all ancillary rights, regardless of whether the products subject to retention of title are resold without or after processing. TIMMER hereby accepts the assignment. If an assignment is not permissible, the buyer shall instruct the third-party debtor to make any payments exclusively to TIMMER. The buyer shall be revocably authorised to collect the claims assigned to TIMMER in trust for TIMMER in its own name. The collected amounts must be transferred to TIMMER immediately. TIMMER may revoke the buyer’s authorisation to collect the claims and to resell the products subject to retention of title for compelling reasons, particularly if the buyer does not properly meet its payment obligations to TIMMER, if the buyer defaults on payments or stops making payments, if the buyer files for insolvency or a comparable debt settlement procedure in relation to its assets, or if a justified application by a third party to open insolvency proceedings or a comparable debt settlement procedure in relation to the buyer’s assets is rejected due to a lack of assets. The claims assigned to TIMMER shall be explicitly excluded from any blanket assignment by the buyer.
(4) If requested by TIMMER, the buyer shall be obliged to immediately inform the third-party debtor of the assignment and to provide TIMMER with the information and documents needed to collect the claims.
(5) In the event of a breach of contract, particularly if the buyer defaults on payment, TIMMER shall be entitled to withdraw from the contract after a reasonable grace period set by TIMMER has expired to no avail; this shall be without prejudice to its other rights. The buyer must immediately grant TIMMER or its representatives access to the products subject to retention of title and hand them over. After appropriate, timely notice, TIMMER may otherwise exploit the products subject to retention of title to satisfy its outstanding claims against the buyer.
(6) If the buyer processes or transforms the products subject to retention of title, this shall always be done for TIMMER. The buyer’s expectant right to the products subject to retention of title shall continue to apply to the processed or transformed item. If the products are processed or transformed with other items that do not belong to TIMMER, TIMMER shall acquire co-ownership of the new item in the ratio of the value of the delivered products to the other processed items at the time of processing or transformation. The same applies if the products are combined or mixed with other items that do not belong to TIMMER in such a way that TIMMER loses its full ownership. The buyer shall store the new items for TIMMER. Otherwise, any items resulting from processing, transformation, combination or mixing shall be subject to the same provisions as those applicable to products subject to retention of title.
(7) If requested by the buyer, TIMMER shall be obliged to release the securities to which TIMMER is entitled to the extent that the realisable value of the securities, taking into account customary bank valuation haircuts, exceeds TIMMER’s claims from the business relationship with the buyer by more than 10%. The valuation shall be based on the invoice value of the products subject to retention of title and the nominal value of claims. TIMMER shall be responsible for selecting the securities to be released.
(8) In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the buyer shall grant TIMMER a corresponding security right. If further measures are required for this purpose, the buyer shall do everything possible to grant TIMMER such a security right without undue delay. The buyer shall cooperate in all measures that are necessary and beneficial for the effectiveness and enforceability of such security rights.
Section 14: Assembly
(1) If TIMMER is entrusted with assembly in addition to delivery, this shall be done on the basis of a separate contract for work and services that is independent of delivery.
(2) The assembly contract shall be subject to TIMMER’s special written terms and conditions of assembly.
Section 15: Confidentiality
(1) The parties shall be obliged to maintain confidentiality with regard to any information that is made available to them, that is designated as confidential or that is otherwise recognisable as a trade or business secret for a period of five years from delivery and to refrain from recording, disclosing or exploiting such information unless this is necessary for the business relationship.
(2) This obligation to maintain confidentiality shall not apply if the information was demonstrably already known to the receiving party before the contractual relationship began or was generally known or accessible before the contractual relationship began or subsequently becomes generally known or accessible through no fault of the receiving party. The burden of proof shall lie with the receiving party.
(3) The parties shall establish suitable contractual agreements with their employees and agents, in particular with their freelancers, contractors and service providers, to ensure that they too refrain from exploiting, disclosing or recording such trade and business secrets without authorisation for a period of five years from delivery.
Section 16: Data Protection
(1) The parties shall be obliged to observe the statutory data protection provisions, in particular the General Data Protection Regulation (GDPR) when performing the contract; they shall also impose the same obligations on their employees.
(2) The parties shall process any personal data they receive (names and contact details of the relevant contacts) exclusively for the purpose of performing the contract and shall protect such data by implementing technical security measures (Art. 32 GDPR) that reflect the current state of the art. The parties shall be obliged to delete the personal data as soon as it no longer needs to be processed. This shall be without prejudice to any statutory retention requirements.
(3) If TIMMER is to process personal data on behalf of the buyer when performing the contract, the parties shall enter into a data processing agreement in accordance with Art. 28 GDPR.
Section 17: Legal Compliance
(1) Within the scope of their corporate responsibility, each party agrees to comply with the relevant legal provisions during or in connection with the conduct of their business operations (including environmental protection laws and labour laws and regulations, in particular those relating to the health of employees); they acknowledge that child and forced labour shall not be tolerated.
(2) The buyer shall be obliged to properly dispose of delivered products at its own expense when the products are no longer in use in accordance with the statutory provisions, in particular those set out in the German Electrical Equipment Act (ElektroG). The buyer hereby releases TIMMER from the obligation imposed on manufacturers to take back old electrical appliances under Section 19 (1) ElektroG, and from any related claims by third parties. If the buyer passes on the delivered products to any commercial third parties, the buyer must contractually oblige the third parties in question to properly dispose of the products at their own expense when the products are no longer in use in accordance with the statutory provisions, in particular those set out in the ElektroG, and the buyer must ensure that corresponding obligations are imposed in the event that the products are passed on again. If the buyer breaches its duty to impose such obligations on its customers, the buyer must take back the delivered products at its own expense when the products are no longer in use and must properly dispose of them in accordance with the statutory provisions, in particular those set out in the ElektroG.
(3) The buyer shall be obliged to properly dispose of any used, empty packaging from TIMMER at its own expense in accordance with the statutory provisions, in particular those set out in the German Packaging Act (VerpackG). The buyer hereby releases TIMMER from the obligation imposed on packaging distributors to take back old packaging under Section 15 (1) VerpackG.
(4) When entering into each contract, both parties shall also confirm that they do not engage in or tolerate any form of bribery or corruption.
Section 18: Final Provisions
(1) The buyer’s rights and obligations may only be transferred to third parties with TIMMER’s prior written consent.
(2) The buyer shall only be entitled to exercise a right to offset claims or a right of retention if its counterclaims are undisputed or legally established. This shall be without prejudice to the buyer’s counterclaims in the event of defective deliveries.
(3) The legal relationship between the buyer and TIMMER shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(4) If the buyer is a “merchant” within the meaning of the German Commercial Code (HGB), a legal person incorporated under public law or a public investment fund, the exclusive place of jurisdiction for any disputes arising from the business relationship between TIMMER and the buyer shall be TIMMER’s registered office (Dieselstraße 37, 48485 Neuenkirchen, Germany). However, TIMMER shall also be entitled to take legal action through the buyer’s local courts and at any other permissible place of jurisdiction. This shall be without prejudice to the prioritisation of certain statutory provisions, particularly those relating to exclusive competences.
(5) Unless otherwise agreed in writing, TIMMER’s registered office shall be the place of performance for all contractual obligations to be performed by the buyer and TIMMER.
(6) If any provision of these general terms and conditions of sale proves to be fully or partially ineffective or unenforceable, or if a loophole is found in these general terms and conditions of sale, this shall have no bearing on the validity of the remaining provisions. In such cases, the ineffective or unenforceable provision shall be replaced by an effective and enforceable provision that comes as close as possible to the purpose of the ineffective or unenforceable provision. In the event of a loophole, the provision agreed shall be the one that corresponds to what the parties would have agreed according to the purpose of these general terms and conditions of sale if they had considered the matter from the outset.
Last updated: February 2025