GTC
TOMAMI GmbH General Terms and Conditions of Business, Delivery and Payment (hereafter referred to as TOMAMI)- 1 General – Scope of Application –
The following General Terms and Conditions apply to all deliveries and offers made by TOMAMI. Our terms of sale apply exclusively if the customer is a business owner, a legal entity or special asset fund governed by public law; we do not acknowledge any terms and conditions that conflict with or differ from our own terms of sale, unless we have explicitly consented in writing to the application of those terms.
- 2 Offers and Contract Conclusion
– Information about the online ordering process – (1) Putting individual products on display in TOMAMI’s online shop represents a no-obligation invitation to the customer to place an order. To place an online order, you put the items you wish to purchase in the shopping cart. Once you have assembled all the products you wish to purchase, please proceed to your shopping cart and confirm that you wish to continue. You will then be provided with a summary of your order. Here you can check all the details once again. At this point you are still able to change any details as well as the delivery/invoice address that you have provided, in order to correct any input errors that you identify. You also have the option of setting up a user account. To do so, you can register and log in before or while placing your order.
(2) By clicking on the “Order now” button, you are placing an order for goods that qualifies as acceptance of a binding offer, to which you are committed for two weeks from the date you placed the order. You receive an order receipt acknowledgement by email, and at the same time we check your order. You then receive further information about our acceptance of your order. This order acknowledgement, unless stated otherwise in the order acknowledgment, does not represent an acceptance of the binding offer, as submitted through the order, but is only intended as notification that TOMAMI has received the order. The contract is only concluded once TOMAMI has provided a statement of acceptance or shipped the product ordered within the 2-week commitment period.
(3) We reserve ownership rights and copyright to images, recipes, datasheets, usage descriptions and other documents; these may not be made available to third parties. This applies in particular to those written documents, which are labelled as “confidential”; the customer must obtain our express written consent before disclosing such documents to third parties.
(4) Amendments and alterations to the contract as well as subsidiary agreements are only valid, if the vendor has confirmed them in writing or by telex/fax.
(5) Characteristics of samples/prototypes are only deemed to be guaranteed, if this has been explicitly agreed in writing.
(6) The information and advice about our products that we provide is based on our previous experience. The figures detailed here, in particular as regards possible uses of our products, are merely average figures and do not represent any quality specifications. We do not accept any obligation to adhere to these figures and possible uses. Should the customer nevertheless be entitled to claim compensation, § 9 applies.
- 3 Prices – Payment Terms –
Unless agreed otherwise, TOMAMI invoices are due for payment immediately and with no deductions. The customer has a choice of various payment methods, which are offered dependent on the order total, type of delivery and shipping destination. The various options can be selected in the shopping cart function and are also described in the info section of our website. TOMAMI reserves the right to fulfil the order only against payment on delivery or against payment in advance in specific cases or if payment is rejected by banks or providers of the relevant payment method. Any costs that are incurred as a result of the reversal of a payment transaction caused by a lack of funds or by the customer providing incorrect details, will be charged to the customer. Cheques will only be accepted as conditional payment and can be returned at any time. Cheques will only be regarded as final payment once they have been cashed or negotiated. Offsetting amounts due against counterclaims is only permitted, if these counterclaims are undisputed or have been established as final and absolute. Furthermore, the customer may offset amounts due against a counterclaim that has superseded a right of retention to which they are entitled under the terms of this contractual relationship.
(1) Delivery is at the risk of the customer, if the customer is a business owner. As soon as the goods have been handed over by TOMAMI to a forwarder/shipping company, risk is transferred to the customer, provided they are a business owner. This also applies to partial deliveries, which TOMAMI is explicitly entitled to make, provided the customer can reasonably be expected to accept partial deliveries. Split deliveries, which are arranged or offered by TOMAMI, are undertaken free of shipping costs. Where customers specifically request deliveries to be split, shipping costs will also be billed for each partial delivery. A summary of the various shipping and payment options, as well as of the relevant basic prices, is published on our website. Specific reference is made to these prices. Delivery is made to a delivery address specified by the customer. If the customer/buyer is a consumer as defined in § 13 BGB (German Civil Code), the risk of accidental loss or accidental deterioration of the goods sold, even if purchased by mail order, is transferred once the customer has taken delivery of the goods. Delivery is deemed to have been made, even if the customer/buyer has delayed acceptance of the goods.
(2) All prices quoted are cash prices, incl. VAT plus any packaging and transport costs accruing. Shipping costs are dependent on the shipping and payment methods selected, consignment weight and destination. They are calculated and shown in the shopping cart function before an online order is placed, or stated when a telephone order is being placed and shown separately on the invoice. The choice of shipping method from the permitted options available is made at our discretion or at the customer’s option.
(3) The customer shall bear the costs of any returns, if the goods delivered correspond to those ordered. Any delivery deadlines stated by us do not commence until all technical issues have been clarified in advance. All dates and deadlines stated by the vendor are non-binding, unless specifically agreed otherwise in writing. The buyer can request the vendor to deliver the goods ordered if a non-binding delivery date or deadline has been exceeded by 2 weeks. The vendor is deemed to be in default, once they have received such a request.
(4) If we are delayed in making delivery on grounds for which we are responsible, the customer is entitled to demand flat-rate compensation for delayed fulfilment in the amount of 2% of the goods value for each completed week of delay. If the buyer is a consumer, the compensation shall be set at a higher or lower rate, if the buyer can prove that they have incurred a higher loss or the vendor proves that a lower loss or no loss at all was incurred. If the delay in fulfilment is due to intent or gross negligence or represents a material breach of contract, statutory liability applies. In the event of a negligent breach of contract, liability is limited to the maximum foreseeable loss as provided for in the contract. Furthermore, if the buyer wishes to withdraw from the contract and/or demand compensation in lieu of performance once default has occurred, they must set the vendor a reasonable delivery deadline, once the relevant period has expired, in accordance with Par.(2) of this section. The buyer is only entitled to claim compensation in lieu of performance in the amount of the foreseeable loss as provided for in the contract and only in the event of material breaches of contract attributable to gross negligence or intent. Moreover, exercising a claim for compensation in lieu of performance is limited to max. 50% of the verifiable loss. The liability limitations as per Par. (3) and Par. (4) do not apply if a commercial fixed-date transaction has been agreed; the same then applies if the customer is able to argue that the immediate exercise of a claim for compensation is being contemplated instead of an insistence on performance.
(5) Even if contract performance involves dates and deadlines that have been agreed as binding, we shall not be held responsible for delays to delivery and performance caused by force majeure and by events that significantly hamper delivery or make it impossible – these also include procurement difficulties, operational disruptions, strikes, lockouts, human resouce shortages, means-of-transport shortages, epidemics or pandemics, official directives etc., which occur at our suppliers or their subcontractors. Such occurences entitle us to postpone delivery or performance for the duration of the disruption plus a reasonable response time or to withdraw from the contract entirely or partially in respect of as yet unfulfilled portion of the contract. If the disruption lasts longer than three months, the buyer is then entitled, in respect of the as yet unfulfilled portion of the contract, to withdraw from the contract after having set a reasonable grace period.
- 5 Material Defect Liability – Commercial Defect Notification Requirement –
(1) Defects or damage, which are attributable to culpable or improper handling or usage by the customer or by a third party not commissioned by TOMAMI, are not covered by this material defect liability.
(2) If the customer is a business owner, all their material defect liability rights are based on the assumption that the customer has properly complied with their duties of examination and defect notification in accordance with § 377 HGB (German Commercial Code).
(3) If the customer is a business owner, all material defect liability claims lapse no later than 12 months after risk has been transferred. If the customer is a consumer, material defect liability claims lapse in accordance with statutory regulations. The legal statute of limitations always applies to claims for compensation in cases of intent or gross negligence, as well as in the event of a loss of life, personal injury or damage to health caused by a wilful or negligent breach of obligation by the user.
(4) Where the goods purchased exhibit defects for which we are responsible, we are entitled to rectify the problem by taking remedial action or delivering a replacement consignment at our discretion to meet our supplementary performance obligations. Where we opt to take remedial action, we are obliged to bear all the costs necessary to rectify the problem, in particular transport, delivery, labour and material costs. If supplementary performance is unsuccessful, the customer is entitled at their discretion to declare their withdrawal from the contract or demand a reasonable decrease in the purchase price (reduction).
(5) Unless indicated otherwise below, the customer is not entitled to make further claims – irrespective of the legal grounds. We are therefore not liable for any material defect liability-related damage or loss that did not originate on the delivery item itself; in particular we are not liable for the customer’s lost profit or other financial loss. If statutory regulations require the vendor to pay for damage or loss caused by ordinary negligence, the vendor has limited liability in this regard. Liability only applies in the event of verified breaches of fundamental contractual obligations, i.e. obligations that the contract of sale imposes on the vendor in accordance with its content and purpose, or the fulfilment of which enables the contract of sale to be properly executed in the first place, and compliance with which the buyer consistently relies and may rely on. This liability is limited to typical damage or loss as foreseen at conclusion of the contract.
(1) We reserve ownership of the item(s) purchased until receipt of all payments as specified in the contract of sale. If the customer breaches the contract, in particular if they are in payment default, we are entitled to take the item(s) purchased back. Our taking back the item(s) purchased does not mean that we are withdrawing from the contract, unless we explicitly state this in writing. Once we have taken the item(s) purchased back and declared our withdrawal from the contract, we are entitled to dispose of said item(s) at our discretion. The disposal proceeds – less reasonable disposal costs – shall be offset against accounts payable by the customer.
(2) The customer is entitled to resell the item(s) purchased in the ordinary course of their business; however, they shall assign to us all receivables due from their buyers or third parties accruing from the resale in the amount of the final invoice total agreed with us (including VAT), irrespective of whether the item(s) purchased was(were) resold without being or after being processed. The customer remains authorised to collect this receivable even after assignment. Our entitlement to collect the receivable ourselves remains unaffected. However, we undertake not to collect this receivable, provided that the customer meets their payment obligations from the proceeds received, is not in default and in particular no application for bankruptcy or composition proceedings has been filed or payment has not been suspended. However, should this be the case, we are entitled to demand that the customer discloses the assigned receivable and the identity of the debtor to us, provides all the details required for collection, hands over the relevant documentation and notifies the debtor (third party) of the assignment.
Where TOMAMI posts images of the various items it sells in its online shop, these images are to be regarded as examples or specimens, meaning that in the event of contract conclusion, other items of the same type and quality as the example shown will be delivered rather than the items actually displayed. TOMAMI has sole copyright on published, TOMAMI-created media. The reproduction or use of such graphics, audio documents, video sequences and texts in other electronic or printed publications is not permitted without the explicit consent of TOMAMI.
TOMAMI is entitled to withdraw from the contract if the customer provides incorrect details about their creditworthiness or there are other indications that the customer is, objectively speaking, not creditworthy and that this puts our entitlement to payment at risk.
TOMAMI stores and uses the customer’s personal data to process orders and possible complaints. TOMAMI only uses the customer’s email address for the purposes of providing written information about orders, and to send its Newsletter, if requested by the customer. TOMAMI does not disclose any personal customer data to third parties. The only exceptions are service providers with whom TOMAMI partners, who require data to be communicated for order processing purposes. In these cases the extent of the data communicated is however kept to a minimum. The customer has a right to information about, to the correction, blocking and deletion of any data of theirs that is stored by TOMAMI. You can obtain further details from our Privacy Policy. The text of the contract is not stored.
- 10 Right of Cancellation/Cancellation Policy
(1) A consumer as defined in § 13 BGB (German Civil Code) is any natural person that concludes a legal transaction, which is not primarily attributable to their commercial or their self-employed professional interests. The consumer has a right of cancellation as stated below.
(2) Right of cancellation You have the right to cancel this contract within 14 days without stating any reasons. The cancellation period is fourteen days from the date on which you or a third party appointed by you that is not the carrier took possession of the final items. To exercise your right of cancellation, you must inform us
– TOMAMI GmbH, Am Lichtetal 1, 61462 Königstein, Germany, email: info@tomami.eu fax: +49 6174 – 209322 about your decision to cancel this contract by making an unambiguous statement to that effect (e.g. in the form of a mailed letter, fax or email). You can use the attached cancellation form template for this purpose, but you are not obliged to do so. To meet the cancellation deadline, all you need to do is send the notification that you are exercising your right of cancellation before the cancellation deadline expires.
Consequences of cancellation If you cancel this contract, we are obliged to refund all payments that we have received from you, including delivery costs (with the exception of any additional costs incurred as a result of you choosing a different delivery method to the least expensive standard delivery option that we offer), without delay and definitely no later than fourteen days from the date on which we received your notification of cancellation of this contract. We shall use the same payment method for this refund as you used for the original transaction, unless explicitly agreed otherwise; you will definitely not be charged any fees for this refund. We can withold the refund until we have received the goods back from you or until you have verified that you have returned the goods to us, whichever occurs earlier. You are obliged to return the goods to us without delay and definitely no later than fourteen days from the date on which we received your notification of cancellation of this contract. The deadline is met if you dispatch the goods before expiry of the fourteen-day period. The direct costs of returning the goods are for your account. You must only pay for any loss in value of the goods, if this loss in value can be attributed to unnecessary handling of the goods beyond what is required to check their condition, characteristics and functionality.
Exclusion and expiry criteria Premature expiry of the right of cancellation applies to contracts – for the supply of sealed goods, which for health protection or hygiene reasons are not in a suitable condition to be returned, if their seals have been removed following delivery; – for the supply of goods, if, given their consistency or composition, they are inextricably mixed or blended with other goods after delivery; – for the supply of goods that are perishable or the use-by date of which would expire quickly;
Sample Cancellation Form If you wish to cancel this contract, then please complete this form and return it to us. TOMAMI GmbH
Am Lichtetal 1
64162 Königstein, Germany
E-Mail:
info@tomami.eu Phone: +49 6174 – 2093-20
Fax: +49 6174 – 2093-22
- I/we (*) herewith cancel the contract concluded with me /us (*) relating to the purchase of the following goods
- Ordered on (*) / received on (*)
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(*) Delete whatever does not apply.
The TOMAMI website may include links to the websites of third parties, over the content of which TOMAMI has no influence. Therefore TOMAMI does not assume or accept any liability for this third-party content. The relevant provider or operator of each website is always responsible for the content on the linked websites. However, TOMAMI cannot reasonably be expected to monitor the content of linked websites permanently without any actual indications of a breach of the law. TOMAMI will remove any offending links without delay, as soon as it becomes aware of any breaches of the law.
Information as per § 36 German Consumer Dispute Resolution Act (VSBG) The vendor is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration body as per the VSBG.
(1) This contract and all the legal relationships between the contracting parties is subject to the law of the Federal Republic of Germany. The terms of the UN Convention on Contracts for the Interantional Sale of Goods (CISG) do not apply.
(2) If the customer is a business owner, the place of fulfilment and exclusive place of jurisdiction for all disputes arising from this contract is our registered office/place of business. Should any of these terms be void, this does not affect the validity of the remaining terms. TOMAMI GmbH
Managing Director Georg Breuer
Am Lichtetal 1
64162 Königstein Germany Email:
info@tomami.eu Phone: +49 6174 – 2093-20
