TFC – Simulatoren und Technik GmbH
Bonsfelder Strasse 71b-73
phone:+49 (0) 2052-81586-0
fax: +49 (0) 2052-81586-33
Amtsgericht Wuppertal HRB 21729
Hammer Strasse 156
TFC Simulatoren und Technik GmbH General Terms and Conditions
Issued 1st of May 2017
1. Scope of Application
1.1. The general terms and conditions for sales contained herein (the “Terms”)
shall apply to all quotations and sales made by TFC Simulatoren und
Technik GmbH, a Gesellschaft mit beschränkter Haftung (GmbH) created
and existing under the laws of the Federal Republic of Germany,
registered at the Local Court in Wuppertal, Germany, under the Company
Registration No. HRB 21729, with its Head Office at Bonsfelderstr. 71b-73,
42555 Velbert, Germany (hereinafter “TFC Simulatoren und Technik
GmbH”) concerning the products and services directly or indirectly
supplied by TFC Simulatoren und Technik GmbH (the “Products” and
1.2. The validity of any customer (the “Customer”) general terms and
conditions, especially Customer’s standard terms and conditions of
purchase, is herewith expressly refuted.
1.3. Deviations from these Terms require the explicit written approval of TFC
Simulatoren und Technik GmbH.
2. Offer and Acceptance
2.1. The Products and/or Services shall be subject to due ordering (offering) by
the Customer and order acceptance by TFC Simulatoren und Technik
GmbH in writing. In case TFC Simulatoren und Technik GmbH’s order
acceptance differs from the offer of the Customer, such acceptance
constitutes a new non-binding offer of TFC Simulatoren und Technik
2.2. An order is a binding offer, which can be confirmed in writing by TFC
Simulatoren und Technik GmbH within four (4) weeks. The contract is
concluded with receipt of order confirmation by TFC Simulatoren und
2.3. Scope of delivery and/or performance (hereinafter “subject of the
contract”) by the TFC Simulatoren und Technik GmbH is determined after
the order confirmation and any related technical specifications.
3.1. Any documents such as pictures, drawings, details of weights and
dimensions, calculations, etc. that TFC Simulatoren und Technik GmbH
has transferred or made available to the Customer shall not be deemed to
be a constituent part of the accepted order, unless it is expressly stated by
TFC Simulatoren und Technik GmbH that they are included. TFC
Simulatoren und Technik GmbH also reserves the right to make changes
in the technical concept underlying the subject-matter of the relevant
order, if this will not impair the quality and specification profile of the
Products and/or Services defined in the order.
3.2. All documents remain at the sole property of TFC Simulatoren und
Technik GmbH even if the subject of contract is transferred to the
Customer. They shall be used confidential and should be not forwarded to
third parties without written agreement by TFC Simulatoren und Technik
GmbH and should be returned to TFC SImulatoren und Technik on their
4.1. Prices and charges shall apply exclusively as quoted in TFC Simulatoren
und Technik GmbH’s order acceptance. All prices shall be understood net
and in accordance with the trade term agreed in the contract. Such trade
term (hereinafter “Trade Term”) shall be interpreted in accordance with the
INCOTERMS 2010. Prices are exclusive of any taxes, packaging, loading
and freight charges.
4.2. Unless quoted as a fixed price for a specific period or agreed otherwise in
writing, TFC Simulatoren und Technik GmbH may adjust all prices to the
general cost trend (in particular to labor agreements, material and
manufacturing costs alteration as well as significant exchange rate
5. Terms of Payment
5.1. Payment shall be made no later than twenty (20) calendar days from the
date of invoice. All payments shall be deemed to have been effected if and
when they have been irrevocably credited for TFC Simulatoren und
Technik GmbH’s free disposal to TFC Simulatoren und Technik GmbH’s
5.2. Failure to pay the purchase price by the due date causes the Customer to
be in default without any further reminder by TFC Simulatoren und
5.3. If any payment due to TFC Simulatoren und Technik GmbH is not
received on the due date, without prejudice to TFC Simulatoren und
Technik GmbH’s other rights at law, TFC Simulatoren und Technik GmbH
shall be entitled:
a) to cease deliveries to the Customer until all outstanding and due
payments arising under the business relationship have been effected, and
b) to claim default interest at the amount of eight (8) percentage point
5.4. The Customer shall not be entitled to retain or set off payments due to
TFC Simulatoren und Technik GmbH in respect of counterclaims except
such claims are undisputed or legally valid. The Customer is entitled to
exercise its retention rights only to the extent such rights are based on the
5.5. If a substantial deterioration occurs in the financial circumstances of the
Customer after the contract has been concluded or if circumstances
become known to TFC Simulatoren und Technik GmbH that put at risk
payment by Customer in total or in due time, TFC Simulatoren und
Technik GmbH may, notwithstanding its other rights provided for by law,
refuse to perform its obligations under the contract until full payment of
due debts has been effected or Customer has provided sufficient security
for debts not yet due.
5.6. TFC Simulatoren und Technik GmbH is allowed to fix a time limit in which
the customer has to decide to meet performance obligations or to provide
security. After the time limit has expired, TFC Simulatoren und Technik
GmbH may withdraw from the contract.
6.1. Delivery shall be effected as agreed in the contract. General Trade Terms
shall be interpreted in accordance with the INCOTERMS 2010. Term of
delivery is fulfilled with having the Product ready for delivery and
Customer being informed.
6.2. Unless otherwise agreed, the delivery shall be made “ex works” (EXW),
Velbert. If delivery is agreed, TFC Simulatoren und Technik GmbH will
redistribute the cost for packaging, loading and freight. TFC Simulatoren
und Technik GmbH will take out an insurance policy for transportation,
which will be redistributed to the Customer as well. Any damage occurred
during transportation has immediately to be announced from the
Customer to the forwarder.
6.3. Adherence to the lead time shall be subject to clarification of all
commercial and technical questions by Parties and Customer having
fulfilled in due time all its obligations under the contract. The delivery time
will be extended – notwithstanding TFC Simulatoren und Technik GmbH’s
other rights due to delay of the Customer – by the specific period for which
the Customer falls short of its obligations under the contract.
6.4. TFC Simulatoren und Technik GmbH is entitled to make partial deliveries
provided that this is reasonable for the Customer.
6.5. In the event of dispatch being delayed at Customer’s request, TFC
Simulatoren und Technik GmbH will demand reimbursement of any
expenses incurred. If the Products are stored at TFC Simulatoren und
Technik GmbH’s premises, the storage fee shall amount to 0,5% of the
total purchase price per week of storage or part thereof.
6.6. If TFC Simulatoren und Technik GmbH delays delivery, the Customer
shall be entitled to claim liquidated damages for delayed delivery in so far
as it can be proved that the delay has been caused through the fault of
TFC Simulatoren und Technik GmbH and that the Customer has suffered
a loss as a result of such delay. The liquidated damages shall be 0,3% for
each full month of delay, with a maximum liability of 3% of the purchase
price corresponding to such part of the Products or Sevices in delay. TFC
Simulatoren und Technik GmbH’s liability shall be limited to compensation
for typical, foreseeable damages.
Any further liability on the part of TFC Simulatoren und Technik GmbH on
account of delay shall be excluded subject to the provisions in clause 10.1.
7. Transfer of Risk
7.1. The risk of loss or random deterioration will be transferred to the Customer
on date of handover of Products and/ or Services from TFC Simulatoren
und Technik GmbH to the forwarder.
7.2. In the event of delivery being delayed due to circumstances attributable to
the Customer, the risk shall be transferred on the date of TFC Simulatoren
und Technik GmbH’s notification of the readiness for shipment
respectively readiness for acceptance.
7.3. TFC Simulatoren und Technik GmbH is entitled to contract insurance
against storage risk for Products stored at TFC Simulatoren und Technik
GmbH at the expense of the Customer.
7.4. If Customer delays acceptance of the Product or returns the Product
unjustifiable, TFC Simulatoren und Technik GmbH demands
compensation. This compensation will be in the amount of 10% of the net
contract value, or higher if TFC Simulatoren und Technik GmbH proves a
higher cost of damage or lower if Customer proves that no financial
8.1. Without prejudice to its rights under clause 10 of these Terms, the
Customer shall take delivery, respectively acceptance, even if the
Products and/or Services show minor deficiencies.
9. Retention of Title
9.1. Until fulfilment of all claims existing from the entire business relationship
between Customer and TFC Simulatoren und Technik GmbH, TFC
Simulatoren und Technik GmbH will release Products or Services pro rata
as soon their realizeable value of the claim exceeds 10%. During current
account the securities serve as collateral for the claim.
9.2. If a third party acquires rights to the subject of contract, the Customer now
cedes all ensuing rights according to the subject of contract to TFC
Simulatoren und Technik GmbH. Herewith TFC Simulatoren und Technik
GmbH accepts the assignation. The Customer is obligated to inform TFC
Simulatoren und Technik GmbH immediately, if distraint, confiscation or
any other order of a third party is done with respect to the subject of
9.3. Is the Customer in whole or partially in default of payment, exists an
excessive indebtedness, stop of payment or bankruptcy, TFC Simulatoren
und Technik GmbH is entitled to withdraw from the contract and to
demand immediately all still under title retention given subjects of contract
to TFC Simulatoren und Technik GmbH´s property. TFC Simulatoren und
Technik GmbH is as well allowed to immediately enforce all additional
rights from retention of title; the same applies to other essential
deterioration of Customer´s economic conditions. The Customer grants
TFC Simulatoren und Technik GmbH and its representatives access to
Customer´s business premises during daily business hours. TFC
Simulatoren und Technik GmbH is entitled to utilize the subject of the
contract with diligence of a prudent businessman to satisfy its pending
claims from the proceeds. Any retention rights of the Customer are
10.1. The Customer shall examine the supplied Products and Services
immediately after delivery in order to identify any defects. The Customer
shall notify TFC Simulatoren und Technik GmbH in writing within one (1)
week of discovery by Customer of such apparent defect. If the Customer
fails to provide notification within the exclusion period, the Products and
Services shall be deemed to be approved and Customer thus waives its
warranty rights hereunder.
10.2. In the event of a defect, TFC Simulatoren und Technik GmbH undertakes
to first, at its option, repair or replace the defective Products or Services.
Product´s or Service´s repair depends on Customer´s payment of
reasonable proportion of the remuneration taking into account the defect.
10.3. The Customer may within the frame of its statutory rights define a
reasonable period for TFC Simulatoren und Technik GmbH – subject to the
statutory exceptions – to repair or replace the defective Products or
Services and after effectless expiry of such period of time or two (2) failes
of supplementary performance by TFC Simulatoren und Technik GmbH,
the Customer may rescind the contract. The Customer´s right for price
reduction shall be excluded. To rescind from the contract is prohibited for
the Customer, if the failure is significant, but does not effect operational
10.4. Only the Customer is allowed to put in a warranty claim against TFC
Simulatoren und Technik GmbH. Assignment of a claim to a third party is
10.5. The Customer shall not be entitled to any rights as a result of defects that
are due e.g. to nonconforming storage, operation, maintenance or
excessive or inappropriate use of the subject of the contract, by the use of
unsuitable tooling and resources, improper changes, corrective
maintenance work and damage to seals in the subject of the contract or by
other breach of contractual specifications and product regulations on the
Parts and/ or Services of the Customer or a third party.
10.6. TFC Simulatoren und Technik GmbH shall not be liable for defects
resulting from normal wear and tear.
10.7. For defects based on provisions or constructions explicit requested by
Customer, TFC Simulatoren und Technik GmbH is not liable.
10.8. Liability is also excluded for failure or insufficient backup of databases by
the Customer. Failure or insufficient review of programs and data on
computer viruses or maintenance of the simulators by the Customer (such
as in paragraph 12.3. defined), unusual impacts of any kind (e.g.
vibrations of foreign units, intrusion by unauthorized third parties) that are
not caused by the TFC Simulatoren und Technik GmbH.
10.9. Warranty will be limited to those defects, which become apparent twenty-
four (24) months after delivery to the Customer. For Products and
Services which are found defective within such period and are replaced or
repaired by TFC Simulatoren und Technik GmbH the warranty period shall
be extended to twelve (12) months from the date of such repair or
replacement. However, the warranty period so extended shall at the latest
expire twelve (12) months after the original warranty period has expired.
10.10. With regard to claims for compensation and reimbursement of
expenses on a defect, clause 10. shall apply.
11. Industrial Property Rights, Defects in Title
11.1. In no event shall TFC Simulatoren und Technik GmbH be liable for
infringement of patents or any industrial or intellectual or other similar
proprietary rights under these terms.
11.2. Should other defects in title occur, clause 10. shall apply mutatis mutandis.
12. Limitation of Liability
12.1. The Customer shall be solely liable for and shall indemnify and hold
harmless TFC Simulatoren und Technik GmbH from and against all
liabilities, claims, damages, costs and expenses (including legal expenses
and attorney fees) in respect of loss of or damage to the Customer’s
property and/or injury to or death of the directors, officers, agents or
employees of the Customer and/or for any loss or damage caused by the
Customer to third parties arising out of, caused by or in any way
connected with the use of any Services or Products of TFC Simulatoren
und Technik GmbH.
12.2. Any liability of TFC Simulatoren und Technik GmbH towards the customer
in relation to any of the services or otherwise under these terms (whether
arising in contract, tort, delict or other) shall be limited to 10% of the value
of the respective product and/ or service under the relevant order.
12.3. Disclaimers or restrictions do not apply, to a statutory liability regardless of
negligence or fault (according to the product liability law), liability
regardless of strict guarantee or liability due to fraudulent concealed
12.4. Liability for data loss is confined to the recovery effort, which would have
typically occurred for regular backup of the Customer. If the Customer
violates his duties according clause 12.3., TFC Simulatoren und Technik
GmbH will not be liable for any occurring damages.
12.5. As far as TFC Simulatoren und Technik GmbH´s liability is excluded or
limited under this provisions, this applies also to the personal liability of its
employees, representatives or subcontractors.
13. Utilization of Software
13.1. If software is included in the scope of delivery,Customer is conceded a
non-exclusive and non-transferable right to use supplied software only
with its included documentation. Using the software on more than one
system is prohibited.
13.2. The Customer is only allowed to copy, revise, translate or convert the
object code to the source code as regulated by law (§§ 69a ff. UrhG). The
Customer undertakes – in particular copyright notices – not to remove or
alter without prior written approval of TFC Simulatoren und Technik
GmbH. All other rights to the software and the documentation including the
copies remain with TFC Simulatoren und Technik GmbH or the software
supplier. The granting of sublicenses is not permitted.
13.3. The Customer is obliged to protect against data loss due to computer
viruses to the independent and regular backup data. The Customer is also
obliged to prevent the unauthorized access of its employees and/ or other
third parties on the provided software and accompanying documentation
through appropriate arrangements.
14. Force Majeure
14.1. In cases of force majeure (such as but not limited to strike, legal lock-out,
war, civil unrest, acts of terror, natural disasters, prohibitions on import and
export, US-restrictions, shortage of energy and raw materials) and in all
other circumstances (including late self-delivery) that are beyond TFC
Simulatoren und Technik GmbH’s control, even if such event occurs on
the part of TFC Simulatoren und Technik GmbH’s upstream supplier, and
which make shipment impossible or unreasonably difficult for third party
forwarder, TFC Simulatoren und Technik GmbH shall be entitled to
postpone the shipment for the duration of the event and a reasonable
period for restart of its business activities and be freed from the obligation
to deliver for such extended period.
14.2. If performance of TFC Simulatoren und Technik GmbH’s obligations is
suspended under this clause for more than six (6) month such period is to
be understood as unreasonable and TFC Simulatoren und Technik GmbH
may withdraw from the contract in whole or in part.
14.3. The Customer shall have no right to compensation in such event of Force
15.1. The Customer is obliged to treat the subject of contract with care and
proper service. In particular the Customer has to insure this at his own
expense against fire, water damage, damage, theft and destruction to the
value of a new Product or Service. Hereby the Customer transfers the title
to insurance benefits to TFC Simulatoren und Technik GmbH. Herewith
TFC Simulatoren und Technik GmbH accepts the assignation. The
Customer shall conclude and maintain adequate insurance policies to
cover its liabilities under the respective contract with TFC Simulatoren und
Technik GmbH. The Customer shall provide certificates of such
insurances on request of TFC Simulatoren und Technik GmbH at any
16.1. Any and all author rights, copyrights, industrial proprietary rights of
whatever nature relating to quotations and cost estimates, as well as
illustrations, drawings, calculations, brochures, catalogues, patterns,
prototypes, tools or any other documentation or means provided by TFC
Simulatoren und Technik GmbH under a binding order shall remain the
property of TFC Simulatoren und Technik GmbH.
16.2. The Customer shall not make accessible or disclose to any third party, use
itself or through any third party or copy the contents of any information or
documentation provided by TFC Simulatoren und Technik GmbH under
these Terms, in whole or in part, without the prior agreement of TFC
Simulatoren und Technik GmbH, save as is obligatory pursuant to any
governmental or legal requirement imposed on the Customer. In such
event, the Customer having become aware of such a requirement shall
inform TFC Simulatoren und Technik GmbH of its obligation to disclose if
possible prior to such disclosure. If TFC Simulatoren und Technik GmbH
wishes to counter such requirement, the Customer shall assist it in doing
16.3. Upon reasonable written request of TFC Simulatoren und Technik GmbH,
the Customer shall return or destroy and irretrievably delete any
confidential information furnished to it by TFC Simulatoren und Technik
GmbH and any copy made of it and give TFC Simulatoren und Technik
GmbH written notice about such destruction and deletion.
17.1. The Customer acknowledges that the Products and/or Services to be
provided by TFC Simulatoren und Technik GmbH under these Terms may
be subject to export control laws and regulations, and any supply or use of
such Products and/or Services contrary to such laws and regulations is
17.2. Customer shall indemnify and hold TFC Simulatoren und Technik GmbH
harmless against any losses, damages, fees or monetary sanctions
imposed on TFC Simulatoren und Technik GmbH as a result of
Customer’s failure to comply with any applicable export control law or
18.1. Should any of the above provisions be or become void, illegal or
unenforceable, or should they contain a gap, the validity of the remaining
provisions shall not be affected.
19. No Assignment
19.1. The customer shall not assign, transfer or otherwise deal with any of its
rights or obligations arising under its business relation to TFC Simulatoren
und Technik GmbH (including the right to receive delivery) without the
prior written consent of TFC Simulatoren und Technik GmbH.
20. Governing Law and Arbitration
20.1. All disputes arising out of or in connection with the transaction governed
by this Terms, shall be finally and conclusively based on this Terms with
resort to German law excepting its rules for the conflict of laws and United
Nations Convention on Contracts for the International Sale of Goods
21. Miscellaneous Provisions
21.1. Changes and additions to the contract as well as additional agreements
require the written form. This also applies to a waiver of this written form