General Terms and Conditions

December 2019

  1. General Provisions, Applicable Law, Contract Language

1.1 These General Terms and Conditions apply to all Delivery and Service Contracts between

TREAMS GmbH

In den Brückenäckern 3

07751 Großlöbichau/Germany

 

Majority Shareholders and Managing Director:

Jens Bergner

(hereinafter “TREAMS”)

and its Customers, where these Customers are entrepreneurs or legal persons under public law.

1.2 Any Delivery and Service Contracts between TREAMS and its Customers are governed in the first instance by the written agreements entered into in the specific case. To the extent that no individual agreements have been made, these General Terms and Conditions form the exclusive basis for all Delivery and Service Contracts between TREAMS and its Customers. Any other terms and conditions than these, and, in particular, the purchasing terms of the Customer, will be invalid even if they have not been explicitly refused – TREAMS hereby explicitly rejects such terms. These General Terms and Conditions also apply to future Delivery and Service Contracts with the Customers, even if they are not expressly agreed on again.

1.3 All Delivery and Service Contracts between TREAMS and the Customers entered into and the realization, validity, interpretation and implementation of such contracts as well as all additional legal relationships existing between TREAMS and the Customers shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

1.4 Contract language is German. The German version of these General Terms and Conditions is legally binding. Any translations of these General Terms and Conditions into other languages are not legally binding and only for informational purposes.

1.5 Depending on the business model, the following supplementary terms and conditions have to be inserted in the Delivery and/or Service Contracts between TREAMS and the Customers:

    • supplementary terms and conditions specific to the repair and maintenance.
  1. Conclusion of Contract

2.1 The offers made by TREAMS are subject to change and non-binding. A contract shall only be deemed concluded, if TREAMS has confirmed the Customer’s binding order in writing or has delivered the goods and/or the services.

2.2 Customer is obliged to check the order confirmation from TREAMS and shall contact TREAMS immediately should any discrepancies be detected. This applies in particular to project contracts laying down price calculations and performance specifications made by TREAMS.

  1. Condition of Goods and Services

 3.1 Particulars appearing in catalogue, folders etc. as well as any oral or written statements concerning the condition and properties like technical details shall only be binding, if TREAMS makes express reference to them in the confirmation of the order. Data which appears in technical documents shall likewise only then be binding, if TREAMS makes express reference to them in the confirmation of the order.

3.2 TREAMS reserves the right up to delivery to carry out standard technical changes, in particular improvements, if as a result only minor changes to the condition and properties arise and the Customer is not unreasonably affected, however upon prior agreement with the Customer.

  1. Prices

 4.1 The prices shall be ex warehouse Großlöbichau, without VAT/sales tax, packing and any deductions. Any additional costs of, for example, freight, insurance, licenses for export, transit, import and other authorizations, as well as for certifications, shall be at the customer’s charge. In addition, the Customer shall bear any kinds of taxes, duties, levies, tolls and the like which are imposed in connection with the Delivery and Service Contract, and is obliged to refund TREAMS for any such cost borne by TREAMS against corresponding proof.

4.2 An appropriate price adjustment shall apply in case

    • the delivery time has been subsequently extended due to any reason which is the fault of the Customer,
    • or the nature or the scope of the agreed deliveries or services has changed,
    • or the material or the execution has undergone changes because any documents furnished by the Customer were not in conformity with the actual circumstances, or were incomplete.
  1. Terms of Payment, Default in Payment

 5.1 Payments have to be fulfilled according to the conditions imprinted in the order confirmation or in the invoice.

5.2 With transfers the timeliness of the payments is in accordance with the credit entry on the account of TREAMS. At submitted cheques are raised processing fees of EUR 40.00.

5.3 If the Customer is in default with a payment, TREAMS is entitled according to § 288 German Civil Code to charge late payment interest at 9 percentage points above the base interest rate. This does not affect the rights to assert further claims for compensation.

  1. Confidentiality

 6.1 TREAMS and the Customer undertake to treat strictly confidential all mutual information in relation to its goods and customers (trade secrets, know-how and secrets of any production process) (hereinafter “confidential information”), to which they receive access or which become known to them otherwise. Such information may not be disseminated, published or disclosed to a third party either directly or indirectly, in full or in part, and shall only be used for the contractual purpose. Any reproduction of machines, installations, components or parts of the object of delivery notably through reverse engineering is not permitted.

6.2 TREAMS and the Customer also undertake to place all necessary sub-contractors and other third parties under an obligation to maintain confidentiality by having these sign a non-disclosure agreement.

6.3 TREAMS and the Customer agree that the existence of a business relationship (pre-contractual negotiations, conclusion of contract, etc.) shall also be treated as confidential.

6.4 This obligation to observe confidentiality does not apply to information

    • which are already known, without any obligation to observe confidentiality, to the recipient of the confidential information;
    • which are or will be generally known without any responsibility of the recipient;
    • which are legally communicated or handed over to the recipient by a third party without any obligation to observe confidentiality;
    • which have been developed independently by the recipient, as can be shown;
    • which have been released in writing by the holder of the confidential information for a disclosure;

6.5 In cases where TREAMS and the Customer at the time of the conclusion of the Delivery and/or Service Contract are affected by valid non-disclosure agreement, the conditions of this non-disclosure agreement shall override the conditions of this section. The conditions of such non-disclosure agreement may be complemented by the conditions of this section.

  1. Retention of Title

7.1 The goods delivered by TREAMS shall remain the property of TREAMS until all claims from the respective Delivery and/or Service Contract to which TREAMS is entitled have been met (hereinafter “reserved goods”).

7.2 The retention of title also remains valid for any debts TREAMS acquires later against the Customer in connection with the reserved goods, for example because of repairs, deliveries of spare parts or any other services.

7.3 The Customer shall store the reserved goods for TREAMS at no charge. The Customer is also obliged, during the retention of title period, to keep the reserved goods in proper condition and to implement all maintenance work and necessary repairs recommended by TREAMS without delay at its own expense.

7.4 Until settlement of the claims of TREAMS mentioned above the reserved goods may not be resold, leased, lent or given away and not be handed to any third parties whosoever. Other disposal, in particular the pledging or assignment as security of reserved goods, is not permitted without approval of TREAMS in writing. If third parties take hold of the reserved good, in particular by seizure or initiation of insolvency proceedings, the Customer has to advise immediately of the property of TREAMS and also to inform TREAMS to enable the assertion of the property rights.

7.5 Upon the combining and mixing of the reserved goods, TREAMS acquires co-ownership in the new item in the proportion of the invoice amount of the reserved goods to the other processed items at the time of processing.

7.6 During the duration of the Retention of Title, the Customer shall be entitled to have and to hold and to use the reserved goods provided that he fulfils his obligations under the Retention of Title in accordance with the Delivery and/or Service Contract and these Terms and is not in default of payment.

7.7 In the event that the Customer fails to fulfill its obligations under the Retention of Title or should be in default of payment, TREAMS is entitled to demand the surrender of the reserved goods once it has rescinded from the Agreement. TREAMS may utilize the reserved goods in the best possible way through private sale after setting an appropriate period.

7.8 The costs of repossession and utilization of reserved goods are to be borne by the Customer.

7.9 TREAMS undertakes to release the collateral security to which it is entitled to the extent that its value exceeds the debts to be secured, in so far as they are not yet discharged, by more than 10%.

  1. Delivery Period

8.1 The delivery period shall begin with the dispatch of the confirmation of order, however not before the Customer has submitted any documentation, authorizations or releases which may be required, or before receipt of an agreed down payment. The term of delivery shall be deemed as fulfilled, should a notification of readiness for delivery be conveyed to the Customer by the due date.

8.2 The delivery period can only be respected if the Customer fulfils his obligations resulting from the Delivery and/or Service Contract. If advance payment has been agreed, the delivery period shall commence upon receipt of the purchase price.

8.3 The delivery period shall be extended by a reasonable period if hindrances occur which are beyond the TREAMS’s control despite taking due care, irrespective of whether the cause rests with TREAMS, the Customer or a third party. As soon as the cause for delay has been removed, the delivery period shall be rescheduled in writing.

8.4 If dispatch is delayed at the request of Customer, Customer shall bear a lump sum charge of 0.5 % of the invoice amount per month for storage, beginning one month after notification of readiness for dispatch. TREAMS is however, authorized after reasonable time and with due notice to dispose of the delivery item elsewhere.

  1. Transfer of Risk, Acceptance

 9.1 Risk is deemed to pass to the Customer as soon as the delivery item has been passed on to the carrier/forwarder. This also applying where partial deliveries are made or where TREAMS has assumed other forms of performance, e.g. forwarding charges or delivery and installation.

9.2 As far as an acceptance must take place, this is relevant for the transfer of risk. Acceptance must be performed without delay at the time agreed for the acceptance inspection, or alternatively after notification by TREAMS that the goods are ready for inspection. The Customer may not refuse acceptance due to an insignificant defect.

9.3 In the event of delay or failure of the dispatch or acceptance on grounds, for which TREAMS is not responsible, the risk will be transferred to the Customer from the day of notification of the dispatch or readiness for acceptance on part of TREAMS. TREAMS is obligated to obtain the insurances at the request and costs of the Customer, which he has demanded in writing.

9.4 Partial deliveries are permitted as far as this is reasonable to the Customer.

9.5 As far as being normal practice, TREAMS shall inspect the deliveries and services before dispatch. Should the Customer require more detailed scrutiny, this must be specifically agreed and paid for by the Customer.

  

  1. Export

 The Customer shall be solely responsible for the compliance with all applying national and international export provisions. TREAMS is not obliged to export or to re-export the goods to any country or any end user that is prohibited by any export regulations. The customer shall otherwise according to choice of TREAMS collect the product from the address of TREAMS himself or to provide an alternative address.

  

  1. Warranty

 TREAMS shall grant a warranty for material defects in the delivery as follows:

11.1 The Customer is obligated, immediately and with the required care, to examine the goods for deviations in terms of quality and quantity, and notify TREAMS of any apparent defects in writing within 7 days from receipt of the goods; a timely mailing is sufficient for adhering to the deadline. The same notification period shall apply to latent defects or defects occurring at a later point in time, calculated from such defects’ discovery. In the event of infringement of the above obligation to inspect and complain, the assertion of warranty claims is excluded.

11.2 Replacement of deficiencies or their repair, as chosen by TREAMS, will be made free of charge, of all those parts identified as defective as a result of circumstances prevailing before the transfer of risk. In the event of a rectification, TREAMS is not obligated to bear the increased costs incurred by the transport of the goods to a location other than the place of performance, if the transport does not correspond to intended use of the goods. Replaced parts remain the property of TREAMS.

11.3 Of the costs incurred as a result of the repairs or replacement delivery, TREAMS shall –provided that the complaint proves justified – bear the costs of the replacement part including dispatch.

11.4 TREAMS shall not grant any warranty in the following cases: unsuitable or improper use; unauthorized or incorrect assembly or commissioning of the delivery item by the Customer or a third party, if this leads to the warranty case; subsequent modifications carried out by the Customer or a third party; normal wear and tear; negligent or incorrect handling, maintenance or servicing; failure to comply with the operating manual; unsuitable operating materials; inadequate construction work by the Customer; unsuitable soil; chemical, electrochemical or electrical influences and extreme temperature and climatic influences beyond responsibility of TREAMS.

11.5 The customer is not entitled to remedy a defect himself or to have it remedied by third parties. Should the Customer or a third party improperly undertake remedies, TREAMS shall not be liable for any consequences resulting therefrom.

11.6 Warranty claims become time-barred one year upon delivery of all sold new delivery items.

11.7 TREAMS is not liable for defects arising out of devices and/or materials provided, or a design stipulated or specified by the Customer. The Liability for defects arising out of devices and/or materials provided by the Customer will apply to TREAMS only in cases where TREAMS has verifiably caused such defects during treatment or processing intentionally or through gross negligence. The Customer is obliged to provide credible proof that the cause of the defect lies in TREAMS’s area of responsibility.

 

  1. Liability

12.1 For damages not affecting the contractual object, TREAMS shall only be liable – for whatever legal reason – in the following cases:

a) in case of intentional damage;

b) in case of gross negligence;

c) in case of any culpable loss of life, injury or adverse effect on health;

d) in case of defects maliciously concealed or whose absence was guaranteed by TREAMS;

e) in case of contractual object defects where TREAMS is liable for personal injury or damage to privately used objects according to the Product Liability Act;

12.2 In the event of culpable violation of essential contractual obligations, TREAMS shall also be liable for slight negligence, but limited to damage which is reasonably foreseeable and typical for this kind of contract.

12.3 Further claims are excluded.

  1. Software Usage

 13.1 If software is included in the scope of delivery, the Customer is granted a non-exclusive right from the delivery contract to use the software supplied including its documentation. It is provided for use with the specified delivery item. Usage of software on an additional system is not allowed.

13.2 Usage of software by the Customer is restricted to the extent permitted by law (Sections §§ 69 a ff. UrhG [Copyright Act]) i.e. reproduction, editing, translation or conversion of the object code to the source code. The Customer agrees not to remove manufacturer details – in particular, copyright notations – or not to change them without TREAMS prior approval. All other rights to the software and the documentation including copies thereof shall remain with TREAMS or with the software supplier. The awarding of sub- licenses is not permissible.

  1. Right of Return

 The Customer shall not have the right of return. Returns of goods are rejected without exception.

  1. Services

15.1 Services provided by TREAMS include measuring, helpdesk and training services.

15.2 The results achieved by TREAMS by services will be stored in TREAMS’s internal databases. Such service data shall serve as the basis for analysis purposes and may be published by TREAMS in anonymous form.

15.3 TREAMS accepts no liability for defects of the items given to TREAMS for purposes of services, in so far as these have not been caused by TREAMS intentionally or through gross negligence. The Customer is obliged to provide credible proof that the cause of the defect lies in TREAMS’s area of responsibility.

15.4 If the contractual object is consultancy service, which shall be provided by TREAMS, the Customer explicitly acknowledges, that TREAMS shall be under no obligation for its consultancy to bring about any specific success.

  

  1. Place of Jurisdiction

 The place of jurisdiction shall be the court having jurisdiction for place of business of TREAMS; however TREAMS shall also be entitled to appeal to the court having jurisdiction for the Customer’s place of business.

  1. Miscellaneous

17.1 Should one or more provisions in these General Terms and Conditions be invalid or should this be the case in the future, this has no effect on the validity of the remaining provisions.

17.2 The Customer shall only be entitled to a right of set-off provided that his counter claims have been judicially determined, or are uncontested or acknowledged by TREAMS in writing. Withholding of payments because of any Customer’s counterclaims, the rightfulness of which is contested by TREAMS, shall not be acceptable.

17.3 All documents provided to the Customer, particularly data carriers, documentations, images, drawings, calculations remains property and copyright of TREAMS; they may not be used for purposes not specified in the contract, or be passed on to third parties, and shall be returned to TREAMS immediately on termination of the Delivery and/or Service Contract; or when the purpose of their usage under the Delivery and/or Service Contract has been fulfilled. This applies in particular to documents and information marked “confidential”. TREAMS may demand any documents to be returned with immediate effect whenever their confidentiality is at risk.

 

Terms and Conditions specific to the Repairs and Maintenance

December 2019

  1. General Provisions

 1.1 These Terms and Conditions (supplementary and/or substitute terms and conditions) serve the purpose of adapting the General Terms and Conditions to the repair services and maintenance.

1.2 These Terms and Conditions shall apply for items delivered by TREAMS and for items already existing at the Customer.

  1. Conclusion of Contract

 2.1 The Customer shall inform TREAMS on conclusion of the contract at the latest about all circumstances relevant to the repair and maintenance, in particular about contaminations in writing. Regardless of whether repair or maintenance is provided in or outside the TREAMS factory, the Customer shall complete declaration of contamination provided by TREAMS. Should the item to be repaired and/or maintened be sent to TREAMS, declaration of contamination shall be attached to the outside of the package in a visible, adequately protected manner. If the Customer does not send the declaration of contamination, TREAMS is authorized to return the package at the expense of the Customer. The Customer is liable for the completeness and accuracy of the data stated in declaration of contamination as well as for all damages, which arise in relation to the incorrect and/or incomplete declaration of contamination. TREAMS reserves the right in the event of certain contaminations to reject acceptance of item to be repaired and/or maintened or to invoice the Customer additional costs of decontamination.

  1. Prices, Estimate

 3.1 Where possible TREAMS shall indicate on the estimate the expected price of the repair and/or maintenance when the agreement is concluded.

3.2 If the repair and/or maintenance cannot be carried out at the indicated price or additional work is necessary, the consent of the Customer shall be obtained if the price indicated will be exceeded by more than 15 %.

3.2 If the Customer wishes to receive an estimate with binding price rates before the repair and/or maintenance is carried out, it must expressly request this. Such an estimate is (unless otherwise agreed upon) binding only if it is submitted in writing and is expressly declared as binding.

3.3 Services rendered to tender an estimate as well as other costs that arise and can be substantiated (error location time equals working time) are charged to the Customer, if the repair and/or maintenance cannot be carried out by TREAMS for reasons beyond its control, particularly because of:

    • the objected error did not occur during check-up;
    • the replacement part needed can no longer be supplied;
    • the Customer was not present at the agreed date due to its own fault;
    • the contract was cancelled during its execution;

3.5 TREAMS shall be entitled to ask for a prepayment if this is required due to a practical reason.

3.6 When calculating the repair and/or maintenance the prices for parts and materials used and other special services as well as prices for work services, travel and transport costs shall be listed separately.

3.7 Possible adjustment of the invoice on the part of TREAMS and objection on the part of the Customer shall take place in writing not later than two weeks after invoice.

  1. Retention of Title, Lien

 4.1 TREAMS retains title to all accessories, replacement parts and equipment assemblies used until receipt of all payments arising from the contract for repairs and/or maintenance. It shall be possible to enter into more far reaching agreements on collateral.

4.2 For its receivables under the repair and/or maintenance contract, TREAMS is entitled to a lien on the Customer’s repair and/or maintenance item in its possession on account of the contract. The lien may also be asserted from claims on receivables based on previously provided work, spare parts deliveries and other services performed, as far as they relate to the item to be repaired and/or maintained. For other claims the lien applies only to the extent that they are uncontested or legally binding.

  1. Repair and/or maintenance period

 5.1 Information given on the periods required for repair and/or maintenance is estimated and thus not binding.

5.2 The Customer shall not be entitled to demand the agreement of a binding repair and/or maintenance period, which shall be indicated in writing as being binding, until the scope of the work shall have been able to be precisely ascertained. That binding repair and/or maintenance period shall be deemed to have been satisfied, if by the expiry of that repair and/or maintenance period the item to be repaired and/or maintained is ready to be handed over to the Customer. If a test run is planned according to the repair and/or maintenance contract, the time of completion is considered fulfilled if the test run is ready to be carried out by the expiry of the binding repair and/or maintenance period.

5.3 If additional orders and orders for the extension of the scope of orders are placed later or additional repair and/or maintenance becomes necessary, the repair and/or maintenance period shall be extended accordingly.

5.4 If the repair and/or maintenance is delayed due to circumstances not caused by TREAMS, irrespective of whether the cause rests with TREAMS, the Customer or a third party, the repair and/or maintenance period shall be, as far as possible, extended appropriately.

  1. Acceptance

6.1 The Customer shall be obligated to accept the repair and/or maintenance work as soon as he is notified of its completion and as soon as any contractually agreed pre-commissioning inspection (test run) of the repaired and/or maintained item has taken place.

6.2 If the repair and/or maintenance work is not in accordance with the contract, TREAMS is obligated to remedy the defect. Such shall not apply, though, should the defect only be of minor importance with regard to Customer’s interests or should its cause fall within Customer’s responsibility. When there are no considerable defects, the Customer cannot refuse to sign off and accept the carried out repair and/or maintenance.

6.3 Should acceptance be delayed without the fault of TREAMS, the acceptance shall be considered given after a period of two weeks following the notification of completion of the repair and/or maintenance has been given.

6.4 With the acceptance of the repair and/or maintenance work, the liability of TREAMS for recognizable defects shall no longer apply in as far as the Customer has not reserved the assertion of a certain defect.

  1. Warranty

7.1 After acceptance of the repair and/or maintenance work TREAMS shall be held liable for repair and/or maintenance defects in such a manner that defects shall be remedied by TREAMS. The Customer shall inform TREAMS immediately in writing of any defects ascertained.

7.2 TREAMS shall not be held liable if the defect is irrelevant for the interests of the Customer or is based on circumstances for which the Customer is to be held responsible. This applies particularly with reference to parts provided by the Customer.

7.3 In the case of modifications or repair and/or maintenance work undertaken inappropriately on the part of the Customer or any third parties, for example, without the prior consent of TREAMS, liability of TREAMS is nullified for consequences that arise.

7.4 Only in urgent cases of jeopardy to the operational safety and to prevent disproportionate damage, whereby TREAMS shall be notified immediately, shall the Customer in the framework of the statutory provisions be entitled to correct the fault himself or to have the fault corrected via a third party and to charge the necessary costs to TREAMS.

7.5 If the complaint turns out justified, TREAMS shall bear the costs required for the purposes of the correction of defects to the extent this does not incur any unreasonable expenses on TREAMS’s part.

7.6 Any and all claims for defects of the Customer come under statute of limitation after 12 months commencing from time of acceptance.

  1. Liability

8.1 In the event that any parts of the object on which the repair and/or maintenance work is performed are damaged due to the fault of TREAMS, TREAMS shall at its discretion either repairs or replace said parts at its own expense. The Customer is obliged to provide credible proof that the cause of the damage lies in TREAMS’s area of responsibility.

8.2 Point 12 of General Terms and Conditions shall apply accordingly.

  1. Cooperation and technical Assistance of Customer outside the Factory of TREAMS

 9.1 The Customer has to support the repair and/or maintenance personnel of TREAMS at his own expense while repairs and/or maintenance are being carried out.

9.2 The Customer has to take necessary special measures for protection of persons and property at the repair and/or maintenance site. The Customer also has to inform the person in charge of repairs and/or maintenance about existing safety regulations to the extent that these matter to the repair and/or maintenance personnel.

9.3 The Customer is obligated to provide technical assistance at its expense and in particular shall be able to do:

    • The provision of the required appropriate auxiliary personnel in for repair and/or maintenance required numbers and for the required time; the unskilled workers shall follow the instructions of the person in charge of repairs and/or maintenance;
    • The provision of tools (where necessary);
    • The provision of heating, lighting, power, water, including the required connections;
    • The Provision of required dry and lockable rooms for storing the tools of the repair and/or maintenance personnel;
    • The protection the repair and/or maintenance site and materials from harmful influences of any sort, cleaning the repair and/or maintenance site;
    • Providing suitable, thief-proof day rooms and working rooms (with heating, lighting, washing and sanitary facilities) and first aid for the repair and/or maintenance personnel;
    • The provision of materials and execution of all remaining measures necessary for the installation of the repair and/or maintenance item and the execution of a contractually agreed trial operation;

9.4 The technical assistance on the part of the Customer shall ensure that the repair and/or maintenance can be commenced directly upon the arrival of TREAMS’s repair and/or maintenance personnel and carried out without delays until the final inspection be the Customer. If special plans or instructions of TREAMS are required, TREAMS shall provide the Customer with them in good time.

9.5 In the event that following the setting of a deadline the Customer fails to fulfil its duties TREAMS is entitled, but is however not obligated to perform the duties of the Customer on its behalf and at the expense of the Customer. The statutory rights and claims of TREAMS shall otherwise remain unaffected.

9.6 Should the equipment or tools provided by TREAMS be damaged at the repair and/or maintenance site or lost without fault on the part of TREAMS, the Customer shall be obliged to compensate for such damages. Damages that can be traced back to normal wear and tear remain out of consideration.

  1. Transport and insurance in case of repair at TREAMS‘s Factory

10.1 Unless otherwise agreed in writing, the Customer shall, at its own expense, deliver the item to be repaired and/or maintained to the address indicated by TREAMS and collect them there upon completion of the repair and/or maintenance work.

10.2 The Customer shall bear the risks of transportation. The Customer has to insure any perils of transportation.

10.3 During the repair and/or maintenance period at TREAMS’s factory there shall be no insurance. The Customer has to provide for the maintenance of the existing insurance protection for the item under repair and/or maintenance, e.g. with respect to insurance against fire, tap water, storm and breakdown of machinery. Only at the express request and at the expense of the Customer can insurance protection be effected for these perils.

10.4 If the Customer delays acceptance, TREAMS may assess warehousing charges for storage at its factory. The repair and/or maintenance item may also be stored at a different location at the discretion of TREAMS. The costs and risk of storage are for the account of the Customer.