General Terms and Conditions of TMX Automation GmbH, Gerasdorf
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1. Area of application
These General Terms and Conditions (hereinafter referred to as "GTC") of TMX Automation GmbH (hereinafter referred to as "Seller") shall apply to our offers, order confirmations, deliveries and services that an entrepreneur (hereinafter referred to as "Customer") enters into with the Seller. Amendments, supplements or conflicting terms and conditions of the Buyer shall only apply if they are expressly confirmed in writing by the Seller in individual cases. An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity which, when concluding a legal transaction, is acting in the exercise of its commercial or independent professional activity.
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2. Offer and conclusion of contract
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1. Offers made by the seller are binding for 30 days, unless a different binding period is expressly stated in the offer text. Documents attached to an offer are part of this offer, unless they are expressly and exclusively intended for information purposes.
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2. All dimensions, weights, data and illustrations in catalogs, brochures and other documents issued by the seller for information purposes are given to the best of our knowledge, but may change for technical reasons - even at short notice. Therefore, only the values stated in the order confirmation are authoritative for the technical data.
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3. Our written order confirmation shall be decisive for the scope of the contractual obligations. Invoicing shall be deemed to be an order confirmation if no separate order confirmation has been sent to the customer prior to invoicing.
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4. Subsequent additions, amendments or ancillary agreements must be made in writing.
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5. If the buyer does not provide the part of the concurrent performance incumbent upon him, the seller is entitled to refuse to fulfill the contract until the buyer has provided the consideration or security for it. If the buyer does not provide the consideration or the security within a reasonable period, the seller is entitled to withdraw from the contract.
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6. Transfers of rights and obligations of the buyer under the contract require the written consent of the seller.
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3. Carrying out consultations / application tests
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‍1. The seller shall prepare a quotation for consulting and application tests to be carried out. The offer shall describe the content and scope of the consulting service, the task of the application study and the processing period. If the order placement contains deviations from the quotation, these shall only be deemed to have been agreed upon upon express written confirmation by the Seller.
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2. All consultations and application tests are carried out by the seller with the utmost care. However, the achievement of a predetermined consultation or examination goal cannot be guaranteed.
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3. We shall only be liable for damage to objects or items of any kind that are handed over or provided to the seller by the client/customer for application tests if they were caused by intent or gross negligence. TMX Automation GmbH expressly points out that damage to objects handed over / provided cannot be ruled out even if the greatest possible care is taken, as this is a technology in which the application results cannot be estimated in advance.
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4. Prices / Terms of payment
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1. The prices according to the seller's order confirmation valid at the time of conclusion of the contract shall be decisive.
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2. The prices quoted are fixed prices and ex works prices. These are net prices in euros excluding VAT, for delivery ex works excluding costs for packaging, shipping and insurance. VAT is shown separately, with the applicable statutory VAT, if applicable.
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3. Invoices from the seller are due for payment without discount and free of charges, if applicable according to a payment plan agreed in writing, otherwise within 14 days of the invoice date.
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4. If the term of payment is exceeded, § 284 para. 3 BGB shall apply. After the occurrence of default within the meaning of Section 284 (3) BGB, default interest shall be payable in accordance with Section 288 BGB.
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5. Bills of exchange or checks shall only be accepted by special agreement and only on account of performance. The buyer shall bear the costs of collection and discounting.
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6. The retention of payments is only permitted in legally recognized cases. Offsetting against unrecognized or not legally established counterclaims of the buyer is excluded.
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7. If, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer, the seller shall be entitled to perform outstanding services only against advance payment or provision of security and to withdraw from the contract after the ineffective expiry of a deadline set for this purpose.
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8. Several clients are jointly and severally liable.
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5. Scope of delivery / delivery time

1. The written order confirmation from TMX Automation GmbH shall form the basis for the scope and time of delivery. In the absence of a separate order confirmation approved by us, the offer accepted by the customer shall be the basis for determining the scope and time of delivery.
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2. The delivery date is not a fixed date unless a fixed delivery has been expressly agreed with the seller. In the absence of such an agreement, the notified delivery period shall represent an estimated date of receipt; a delivery grace period of 4 weeks, calculated from this date, is hereby agreed. Compliance with the notified delivery period requires that all information and plans necessary for processing to clarify all commercial and technical details are provided by the customer in good time and that the agreed terms of payment - in particular the provision of agreed advance payments - are complied with. The delivery period advised by the Seller may be extended appropriately if changes are agreed after conclusion of the contract or unforeseeable obstacles occur which are beyond our control. In the event of delays due to strikes and lockouts, the waiting period agreed above shall apply. If the delivery time notified in writing and the waiting period are exceeded, TMX Automation GmbH shall be in default of delivery as soon as the customer has set a reasonable period of grace and at the same time declared that he intends to withdraw from the contract after expiry of the period of grace, to terminate the contract or to claim damages for non-performance.
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3. All deliveries are ex works, in disposable packaging, which the seller charges at cost price.
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4. Partial deliveries are permissible. However, fulfillment shall not occur until all parts of the order have been delivered in full. If the partial delivery is made at the customer's request, the delivery costs shall be borne by the customer.
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5. If the customer is in default of acceptance, the seller is entitled to dispose of the subject matter of the contract elsewhere or to demand compensation for the resulting damage, including any additional expenses, insofar as the customer does not accept the goods despite a written grace period with the threat of legal consequences.
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6. Commissioning / acceptance
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1. Before commissioning the delivered goods by the customer, the enclosed installation instructions and operating instructions must be read carefully - especially in the case of laser beam devices - and all safety regulations for their use must be observed.
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2. Each time a laser beam device is delivered to a buyer for the first time, the seller will provide instruction and install and commission the device if it has been ordered by the buyer.
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3. If the seller is active outside the company premises, the customer shall be responsible for all measures necessary for the fulfillment of traffic safety obligations, unless otherwise agreed with the customer. The seller is entitled to refuse to perform the service as long as the necessary measures are not taken. Any resulting waiting times shall be regarded as working time and charged to the customer.
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4. Minor defects which do not significantly impair the suitability of the service for the contractually agreed purpose shall not entitle the customer to refuse acceptance, without prejudice to its right to demand that these defects be rectified within a reasonable period of time.

5. If the customer uses the service or part of the service, acceptance shall be deemed to have taken place upon commencement of use, unless otherwise agreed.

6. Intellectual services shall be deemed to have been accepted unless the customer expressly raises a reservation in writing within 10 days of receipt. In the event of a reservation declared by the customer, TMX Automation GmbH shall review its performance. If a reservation by the customer proves to be unjustified, the customer shall bear the additional costs incurred.
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7. Transfer of risk
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TMX Automation GmbH shall deliver ex works at the Buyer's risk and expense. The risk shall pass to the Buyer as soon as the goods have left the Seller's works for shipment. If dispatch is delayed or impossible due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer on the day following notification of readiness for dispatch.
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8. Warranty
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1. TMX Automation GmbH's warranty shall extend to compliance with the generally recognized rules of technology. In the case of research and development orders, the seller shall not assume any warranty for the actual achievement of the intended contractual objective within the planned time.
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2. If quality parameters/properties have been expressly warranted by the Seller, we guarantee compliance with them at the time of acceptance or transfer of risk on condition that the Customer strictly observes the instructions given by the Seller. The assurance of quality parameters/properties does not extend to whether the result of the seller's performance can be used by the customer for the intended purpose. This applies in particular to the marketability and usability of the products that are produced and offered on the basis of the results supplied by the Seller.

3. For warranty claims, the customer must give us the opportunity to rectify the defect within a reasonable period of time. If the rectification fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal) and compensation within the scope of the limitation of liability instead of performance. However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract.

4. The goods delivered by the seller must be inspected immediately. The seller shall not be liable for obvious defects that are not notified to the seller in writing within 5 days of delivery.

5. Any warranty is void for defects caused by the actions of the customer, his representative or a third party commissioned by him (e.g. carrier) due to the fact that the installation instructions and / or operating instructions were not observed, the delivered goods were handled negligently or improperly or unauthorized repairs were carried out on the item.

6. The warranty period is 1 year beginning with the handover to the carrier for the purpose of delivery to the buyer. The limitation period does not apply to claims for damages in accordance with clause 9. Optical components and wearing parts are not subject to a warranty period.

9. Claims for damages

1. TMX Automation GmbH shall only be liable for damage or loss of profit that has not arisen in the subject matter of the order itself:
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a) in the event of intent
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b) in the event of gross negligence on the part of the owners or senior executives
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c) in the event of culpable injury to life, limb or health
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d) for fraudulently concealed defects
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e) in the event of defects in the subject matter of the contract, insofar as liability exists under product liability for personal injury or property damage to privately used objects

2. Furthermore, the Seller shall not be liable for damage resulting from the improper use of the goods delivered by the Seller.

3. The limitation of claims for damages according to the above paragraphs also includes claims arising from tortious acts of the seller, unless the tortious act was committed intentionally or through gross negligence. The Seller shall not be liable for tortious acts of its employees and contractors.
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10. Retention of title

1. The delivered goods shall remain the property of TMX Automation GmbH until all claims arising from the delivery contract have been paid in full. The contracting parties agree that title shall automatically pass to the customer upon payment of the last purchase price installment (or the full purchase price, including VAT). TMX Automation GmbH shall be entitled to take back the goods if the customer acts in breach of contract.

2. The customer is obliged to treat the goods with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. The customer is obliged to notify the seller immediately in writing of any seizures or other interventions by third parties in the subject matter of the contract. Any costs and damages arising from the access or planned access shall be borne by the buyer.

3. In the event of any resale of the seller's goods, TMX Automation GmbH shall remain the owner until full payment has been made. Processing shall always be carried out for the seller as manufacturer. The purchaser shall be entitled to process and sell the object of purchase in the ordinary course of business as long as he is not in arrears with payment of the purchase price. By way of security, the Buyer hereby assigns to the Seller in full the claims resulting from the resale or further processing and agreed with TMX Automation GmbH (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The seller hereby revocably authorizes the buyer to collect these claims. The revocation can only be exercised if the securing of the purchase price claim is jeopardized.

4. In the event that our goods are combined or mixed with other items, § 947 BGB shall apply without restriction.
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5. Agreement of a current account reservation: The goods shall remain the property of TMX Automation GmbH by way of security until all claims, including all balance claims to which the Seller is entitled from current account credits, to which the Seller is entitled against the customer for any legal reason now or in the future, have been fulfilled. TMX Automation GmbH undertakes to release the securities to which the Seller is entitled at the Buyer's request if the value of the security property exceeds the amount of the claims by 20% on a sustained basis.
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11. Confidentiality / copyrights
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1. Unless expressly agreed otherwise in writing, customer information disclosed to the seller shall not be deemed confidential. TMX Automation GmbH reserves the right to publish and otherwise use the results of investigations carried out free of charge.

2. All information, written and verbal, which the customer receives via TMX Automation GmbH shall be deemed confidential, irrespective of the manner in which it was obtained, unless TMX Automation GmbH expressly authorizes its disclosure. This confidentiality obligation shall only apply to information that is generally accessible.

12. Place of jurisdiction and applicable law

1. The place of jurisdiction for all disputes arising from the contractual relationship is the Korneuburg Commercial Court.
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2. Austrian law shall apply to all transactions, even if the contract is not written in German. If a foreign-language contract has been concluded, it shall be based on a German version of the contract, which shall prevail in the event of a legal dispute.

13. Other provisions

1. TMX Automation GmbH is entitled to make changes to the general terms and conditions and other conditions. The Seller shall only make such changes for valid reasons, in particular due to new technical developments, changes in case law or other equivalent reasons. If the change significantly disturbs the contractual balance between the parties, the change will not be made. We will inform the customer of any change. The amendment shall become part of the contract if the customer does not object to its inclusion in the contractual relationship in writing to the seller within six weeks of receipt of the notification of amendment.

2. These terms and conditions shall remain binding for both parties, even if individual clauses are legally invalid. The legally invalid clause shall be replaced by a provision that comes closest to the purpose pursued by TMX Automation GmbH.3 The place of performance for payments as well as services and deliveries of TMX Automation GmbH shall be Lower Austria.
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Valid from January 01, 2022
TMX Automation GmbH
Kegelgasse 18/5
2201 Gerasdorf
Austria