General Terms and Conditions

§ 1 Scope of application

(1) All orders for goods, services and other services as well as all deliveries, activities, provisions and offers of Thomas-Krenn.AG in the areas of hardware and software in accordance with § 2 para. 1 as well as associated services (hereinafter collectively referred to as "deliveries and services") are made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as "GTC"). These GTC are an integral part of all contracts that Thomas-Krenn.AG concludes with its contractual partners (hereinafter referred to as "customer"; Thomas-Krenn.AG and the customer hereinafter also referred to jointly as "contractual parties") for deliveries and services, in particular via the online store ("online store") on the website of Thomas-Krenn.AG at www.thomas-krenn.com (hereinafter referred to as "website").

(2) For certain deliveries and services, specific terms and conditions apply in addition to these GTC, which take precedence if provisions in the contractual documents contradict each other in whole or in part. These are in particular

- the specific terms and conditions of Thomas-Krenn.AG for cloud services ("SGB-Cloud") for the provision of virtual IT infrastructure components by way of Infrastructure as a Service/IaaS on the basis of flexible usage and billing models;

- specific terms and conditions for the use of software (SaaS) and cloud storage.

(3) Terms and conditions of the customer or third parties do not apply, even if Thomas-Krenn.AG does not separately object to their validity in individual cases. Even if Thomas-Krenn.AG refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute agreement with the validity of those terms and conditions.

(4) In the event that the contracting parties have concluded a framework agreement, the provisions contained therein shall take precedence over special terms and conditions and these GTC.

(5) Verbal commitments made by Thomas-Krenn.AG prior to the conclusion of the contract are not legally binding and there are no verbal agreements between the contracting parties. They are superseded by this contract, unless expressly agreed otherwise between the contracting parties.

(6) These GTC and all specific terms and conditions, offers, deliveries and services of Thomas-Krenn.AG are addressed exclusively to entrepreneurs (§ 14 BGB), legal entities under public law and special funds under public law. They do not apply to the business relationship of Thomas-Krenn.AG with customers who are consumers within the meaning of § 13 BGB.

§ 2 Subject matter of the contract

(1) The customer acquires from Thomas-Krenn.AG the hardware (especially IT systems such as rack servers, tower systems, workstations, industrial PCs, storage systems or thin clients as well as accessories such as external drives, UPS, switches, cables, fans and other IT system components and accessories; hereinafter collectively referred to as "hardware") and software (especially operating systems, virtualization software, backup applications) specified in the offer or in the order via the online store in accordance with § 4. The software is pre-installed in executable form (object code) on the respective hardware if the pre-installation of the software (e.g. a specific operating system) has become part of the contract during the ordering process by activating the corresponding checkbox. Source codes are not supplied.

(2) For hardware and operating system, the customer shall receive the documentation provided by the manufacturer (operating instructions/user manual) in electronic form (e.g. via a link in the customer area or via QR code on the server chassis).

(3) In the case of the provision of software, the license terms of the respective software manufacturer shall apply, in particular with regard to the scope of the rights of use of the respective software.

(4) The software license agreement with the license terms of the respective software manufacturer (e.g. Microsoft customer agreement) is generally concluded directly between the customer and the respective software manufacturer. Thomas-Krenn.AG provides various support services for this purpose, such as making the license terms accessible by linking or otherwise referring to them as part of the ordering process in the online store, sending them by e-mail with the order (e.g. for Proxmox and VMware) or making them available for retrieval in the online store under "Downloads". For individual applications (e.g. Microsoft OEM, Software Assurance and System Builder licenses), the customer receives the license sticker from the software manufacturer by mail or it is affixed to the hardware ordered in the online store. Thomas-Krenn.AG may change the type and scope of these support services at any time.

(5) If necessary, Thomas-Krenn.AG is authorized to transmit the MAC address, the serial number of the mainboard or another identifier of the respective hardware to the software manufacturer on behalf of the customer. In the event of a subsequent license purchase, the customer shall provide Thomas-Krenn.AG with the corresponding information.

(6) On the basis of a separate agreement, Thomas-Krenn.AG may, in addition to the services according to paragraph 1, provide further related (service) performances (such as installation of the hardware, training, consulting services) as well as provide the customer with supplementary service packages for an advance hardware replacement (such as Essential, Exclusive or Enterprise Package) or special options for the replacement of defective storage media (Keep Your Drive Service). Based on a separate agreement, Thomas-Krenn.AG also provides the customer with services for individual branding with a logo or other design elements of the customer as well as for white label deliveries.

§ 3 Login / registration in the online store, ordering, technical steps up to the conclusion of the contract, correction of input errors, storage of the contract text

(1) The customer must register or log in to place orders via the online store. It is not possible to place an order as a guest. A registered customer can log in to his customer account before or during an order with his e-mail address and the password he has freely chosen during registration. Registration alone does not constitute any obligation to purchase the goods and services offered by Thomas-Krenn.AG. As part of the registration process, information about the customer and the contact person as well as an e-mail address are required. This information must be true, current, complete and accurate. In a further step, the customer can also freely choose their password. He is obliged to keep the password secret and not to disclose it to third parties, i.e. persons outside his company or persons in his company who are not authorized to represent him. After verification of the e-mail address provided, the registration process is complete.

(2) Further information on the processing of a customer's personal data can be found in the privacy policy on the website.

(3) In particular in cases of § 4 para. 5, if an order is not placed via the website, Thomas-Krenn.AG may, in deviation from the above paragraphs 1 and 2, also carry out the account registration for a customer itself and send him the access data by e-mail.

(4) As part of the ordering process via the online store, the customer can configure the desired goods and/or services in several steps (e.g. selection of the specific basic hardware configuration, operating system / software, service & support, accessories; for cloud services, configuration of the IaaS environment) and place them in the shopping cart by clicking on the respective "Next" button. There, the customer can change the desired quantity and configuration of the selected goods and/or services or remove them from the shopping cart. The customer also has the option of having Thomas-Krenn.AG create an offer for the goods and/or services placed in the shopping cart, which will be sent to the customer by e-mail as a PDF. If the customer does not make use of this option and continues the ordering process in the online store, they can also select the billing and delivery address, the shipping options and the payment method in the subsequent steps. At the end of the order process, an overview page ("Last check") opens, on which the customer can check their details and correct input errors (e.g. regarding payment method, dates or the desired quantity) by using the "tabs" in the navigation to return to the previous steps of the order process and change their details there. If a customer wishes to cancel the order process completely, they can also simply close the browser window. Otherwise, after clicking on the confirmation button "Order with obligation to pay", his declaration becomes binding within the meaning of § 4 para. 3 of these GTC.

(5) The contractual provisions with details of the goods and/or services ordered, including these GTC, will be sent to the customer by email upon acceptance of the contractual offer or upon notification thereof. Thomas-Krenn.AG does not store the contractual provisions.

(6) A customer can delete the registration at any time. This requires a personal, written request to the responsible sales consultant. If the customer's personal details change, the customer is responsible for updating them. All changes of this kind can be made in the online store after logging in under "My account".

(7) Since the online store and these General Terms and Conditions are directed exclusively at entrepreneurs (§ 14 BGB), legal entities under public law and special funds under public law, Thomas-Krenn.AG may require customers to provide sufficient proof of their entrepreneurial status, e.g. by providing their VAT ID number when registering as a new customer or by providing other suitable evidence, such as an extract from the commercial register or a trade license. The data required for the proof must be provided completely and truthfully.

§ 4 Offer, order in the online store and conclusion of the contract

(1) All offers of Thomas-Krenn.AG as well as the information contained on its websites are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period.

(2) The presentation and advertising of goods and services in the online store or elsewhere on the website does not constitute a binding offer to conclude a contract, but rather an invitation to place an order (invitatio ad offerendum).

(3) An order placed by the customer via the online store by clicking on the "Order with obligation to pay" button in the last step of the ordering process constitutes a binding offer to Thomas-Krenn.AG to conclude a contract, in particular to purchase or book the goods, services and/or other services displayed in the order overview. Immediately after placing an order in the online store, the customer is shown a confirmation of receipt of the order or receives a confirmation of receipt of the order at the e-mail address provided by the customer. Such an order confirmation does not constitute acceptance of the customer's contractual offer, but is intended solely to inform the customer that the order has been received by Thomas-Krenn.AG. Unless otherwise stated in the order, Thomas-Krenn.AG is entitled to review the customer's contractual offer and to either accept or reject it (informing the customer of the cancellation of the order), usually within 5 working days of receipt by Thomas-Krenn.AG. The customer is bound to his contractual offer during this examination. The contract is concluded with a separate order confirmation or the dispatch of the goods by Thomas-Krenn.AG. The customer will be informed of the shipment by e-mail.

(4) The language provided for the conclusion of the contract in the online store is either German or English, depending on the language selection made by the customer in the online store. Translations into the other language or individual text modules in the other language serve only to inform the customer. In the event of contradictions between the text of the language selection made by the customer and the translation, the text of the language selection made shall take precedence.

(5) If and insofar as an order is not placed via the online store and Thomas-Krenn.AG submits a concrete offer to the customer in text form (e.g. as a PDF; including the option of having an offer automatically created as a PDF in the online store), the sending of the offer signed by the customer by hand or by means of a simple electronic signature (e.g. Skribble, DocuSign) constitutes a binding offer to Thomas-Krenn.AG to conclude a contract, whereby transmission by telecommunication, in particular by e-mail, is sufficient. Thomas-Krenn.AG is entitled to review the customer's contract offer and either accept or reject it within 5 working days of receipt by Thomas-Krenn.AG (information to the customer about canceling the order). The customer is bound to his contractual offer during this examination. The contract is concluded with a separate order confirmation or the dispatch of the goods by Thomas-Krenn.AG. The customer will be informed of the shipment by e-mail.

(6) Thomas-Krenn.AG reserves the right of ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. The customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of Thomas-Krenn.AG. At the request of Thomas-Krenn.AG, the customer must return these items in full to Thomas-Krenn.AG and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronically provided data for the purpose of standard data backup.

(7) Information provided by Thomas-Krenn.AG on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations, in particular on the websites of Thomas-Krenn.AG) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose. Thomas-Krenn.AG also has no influence on how texts and images are displayed in the respective browser on the customer's end device.

§ 5 Leasing

If the customer chooses the option "Leasing" instead of purchasing goods during the ordering process in the online store, Thomas-Krenn.AG will forward the customer's contract offer to the respective lessor to check whether the lessor wishes to purchase the goods from Thomas-Krenn.AG in order to transfer them to the customer within the framework of a leasing contract. Thomas-Krenn.AG will provide all necessary and reasonable cooperation for this purpose and, as a rule, inform the customer within one month of receipt of the contract offer whether the lessor is prepared to conclude a leasing contract, unless the customer and lessor are already in direct negotiations with each other. The customer is not entitled to conclude a leasing contract. The leasing contract is concluded directly between the lessor and the customer on the basis of the respective terms and conditions of the lessor. Therefore, no contract is concluded between Thomas-Krenn.AG and the customer for the respective goods. If the lessor refuses to conclude a leasing contract, Thomas-Krenn.AG will cancel the contract offer to the customer.

§ 6 Prices, payment, due date, price adjustments, invoicing

(1) The prices apply to the scope of delivery and services listed in the contract. Additional or special services shall be invoiced separately. If no price has been agreed for additional or special services, these services will be charged according to the current prices in the online store of Thomas-Krenn.AG at the time of the conclusion of the contract relevant to the services in question. Thomas-Krenn.AG is entitled to change the prices in the online store at any time.

(2) All prices are in euros (EUR) plus the applicable statutory value added tax.

(3) For the delivery of goods, the prices are ex works, excluding packaging and any shipping costs incurred. The shipping costs are shown separately in the online store or in an offer. In the case of deliveries outside Germany, the customer shall bear any customs duties, taxes, fees and other public charges incurred on export and/or import.

(4) Unless otherwise agreed, fees - with the exception of continuing obligations (see para. 5 below) - are due for payment upon provision of the goods and services, in the case of work services or if acceptance has been agreed, upon acceptance.

(5) In the case of continuing obligations, invoicing shall be monthly, in the case of pro rata temporis use on a pro rata basis. Usage-independent fees are due in advance at the beginning of the respective calendar month; usage-dependent fees are billed by Thomas-Krenn.AG at the end of the respective calendar month.

(6) In the case of continuing obligations, Thomas-Krenn.AG is entitled to adjust the prices to be paid on the basis of this contract at its reasonable discretion, taking into account the principles of this paragraph with regard to the development of the costs that are decisive for the calculation of the prices. Accordingly, an increase in prices may be considered in particular if, for example, the costs for the procurement and use of hardware and software (e.g. increased license costs by the software manufacturer), personnel costs or the costs of cloud and data center operation (space costs for server locations, energy costs) increase or other changes in the economic or legal framework conditions lead to a changed cost situation. Increases in one type of cost (e.g. personnel costs) may only be used for a price increase to the extent that they are not offset by any reduction in other types of costs (e.g. costs for hardware and software). Thomas-Krenn.AG will inform the customer of price adjustments in text form at least six weeks before the changes come into effect. If the customer objects to a price increase within four weeks of receipt of the notification, at least in text form, Thomas-Krenn.AG has the option of continuing the contract under unchanged conditions or terminating the contract with a notice period of three months. If the price adjustment only affects individual services and there is a partial right of termination for these, the above right of termination only applies to these affected services in the event of an objection by the customer.

(7) Unless otherwise agreed, invoices shall be issued by e-mail. The customer must ensure that the invoices are received correctly. The customer expressly agrees that no invoices will be sent to him by post. However, the customer may request that invoices be sent by post at any time. Thomas-Krenn.AG is entitled to charge EUR 1.45 per invoice for this.

(8) Invoice amounts are due for payment immediately, unless otherwise agreed in writing. The date of receipt by Thomas-Krenn.AG is decisive for the date of payment. If the customer fails to pay by the due date, the outstanding amounts are subject to interest at 9 percentage points above the respective prime rate of the European Central Bank p.a. from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.

(9) If payment by direct debit has been agreed, the customer is obliged to issue Thomas-Krenn.AG with a SEPA core direct debit mandate for this purpose. Thomas-Krenn.AG shall provide the customer with a corresponding form. The customer must ensure that the account has sufficient funds, provided that Thomas-Krenn.AG notifies the customer in text form of the amount and the execution date of the core direct debit at least three bank business days before the execution date. In the event of a returned direct debit for which the customer is responsible, in particular in the event of an unjustified objection or in the event of insufficient funds in the account despite timely notification of the direct debit by Thomas-Krenn.AG, the customer is obliged to reimburse Thomas-Krenn.AG for the bank charges incurred.

(10) The offsetting of counterclaims by the customer or the withholding of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery or service in question was made.

(11) Insofar as Thomas-Krenn.AG is obliged to make advance payments, it is entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if it becomes apparent after conclusion of the contract that Thomas-Krenn.AG's claim is jeopardized by the customer's inability to pay.

§ 7 Delivery and delivery time

(1) Deadlines and dates for deliveries and services promised by Thomas-Krenn.AG are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation, unless expressly stated otherwise by Thomas-Krenn.AG.

(2) Thomas-Krenn.AG may - without prejudice to its rights arising from default by the customer - demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the customer fails to meet its contractual obligations to Thomas-Krenn.AG.

(3) In the case of the payment method "advance payment", delivery deadlines only apply from the date of receipt of payment. Fixed dates can only be agreed for the "prepayment" payment method if the delivery date is after the date of receipt of payment. Delays in payment and any resulting delays in delivery, even after the fixed date, shall be borne by the customer. There is no right of withdrawal in the event of delayed delivery due to delayed payment.

(4) Thomas-Krenn.AG is not liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in the supply chain). operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the failure of suppliers to deliver, to deliver correctly or on time despite a congruent hedging transaction concluded by Thomas-Krenn.AG) for which Thomas-Krenn.AG is not responsible. If such events make delivery or performance significantly more difficult or impossible for Thomas-Krenn.AG and the hindrance is not only of a temporary nature, Thomas-Krenn.AG is entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance deadlines are extended or the delivery or performance dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by giving immediate written notice to Thomas-Krenn.AG.

(5) Thomas-Krenn.AG is only entitled to make partial deliveries if

a) the partial delivery can be used by the customer for the contractually intended purpose,

b) the delivery of the remaining ordered goods is ensured and

c) the customer does not incur any significant additional work or costs as a result (unless Thomas-Krenn.AG agrees to bear these costs).

(6) If Thomas-Krenn.AG defaults on a delivery or service or if a delivery or service becomes impossible for whatever reason, the liability of Thomas-Krenn.AG is limited to compensation for damages in accordance with § 12.

(7) Thomas-Krenn.AG is also entitled to have all services performed by third parties, in particular by commissioned service partners of Thomas-Krenn.AG.

§ 8 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship is Freyung, unless otherwise agreed. If Thomas-Krenn.AG is also responsible for installation, the place of performance is the place where the installation is to take place.

(2) The shipping method and packaging are subject to the dutiful discretion of Thomas-Krenn.AG.

(3) If shipment of the goods to a place other than the place of performance has been agreed and Thomas-Krenn.AG has not assumed responsibility for transportation or installation, the risk of accidental loss or accidental deterioration passes to the customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. If dispatch or handover is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and Thomas-Krenn.AG has notified the customer of this. Furthermore, the risk is transferred to the customer at the point in time at which the customer defaults by not accepting the offered item.

(4) Storage costs after the transfer of risk are borne by the customer. In the case of storage by Thomas-Krenn.AG, the storage costs amount to 1.5% of the invoice amount of the delivery items to be stored for each week that has elapsed. The right to claim and prove further or lower storage costs is reserved.

(5) Thomas-Krenn.AG will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer's expense.

(6) Insofar as a delivery or service involves work or services or otherwise has to be accepted, the delivery item or service is deemed to have been accepted when

a) the delivery and, if Thomas-Krenn.AG is also responsible for the installation, the installation has been completed,

b) there is no defect that makes the use of the purchased item or work impossible or significantly impairs it,

c) Thomas-Krenn.AG has informed the customer of this with reference to the fiction of acceptance in accordance with this § 8 para. 6 and has requested acceptance,

d) at least 6 working days have passed since the delivery and/or installation and the customer has started to use the purchased item (e.g. commissioning of the delivered hardware),

e) at least 12 working days have elapsed since delivery and/or installation and the customer has failed to accept the goods within this period.

§ 9 Obligations and duties of the customer to cooperate

(1) The customer is responsible for the selection of goods and services and their suitability for specific purposes of the customer, unless Thomas-Krenn.AG has expressly advised the customer in this regard.

(2) The customer is responsible for ensuring that the hardware can be properly delivered on the agreed delivery date.

(3) The customer is responsible for supporting Thomas-Krenn.AG as far as possible and reasonable in the rectification of defects or in the provision of services, in particular to provide necessary information, to create error logs if necessary, to grant access to service items and to provide other necessary information.

(4) The customer must remove all components not installed by Thomas-Krenn.AG if this is necessary for the provision of services or warranty (§ 10) by Thomas-Krenn.AG.

(5) Unless expressly agreed between the contracting parties (e.g. in the context of Veeam backup solutions), Thomas-Krenn.AG does not provide any data backup services. The creation of backup copies is the responsibility of the customer. The customer is responsible for backing up all data and programs at regular intervals. Thomas-Krenn.AG recommends that necessary backup copies of files and programs are also backed up on external data carriers.

(6) Before returning any goods, the customer shall submit the data protection declaration provided by Thomas-Krenn.AG and confirm that no personal data is stored on the hardware or hard disks. If the customer fails to provide this confirmation, Thomas-Krenn.AG is entitled to refuse to accept the goods.

(7) When downloading digital products (e.g. e-books, white papers, etc.) via the Thomas-Krenn.AG website, the customer must provide truthful information, in particular regarding their email addresses.

§ 10 Warranty, material defects

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by Thomas-Krenn.AG or its vicarious agents, which expire in accordance with the statutory provisions.

(2) The delivered items must be carefully inspected immediately after delivery to the customer or a third party designated by the customer. They are deemed to have been approved by the customer with regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection if the customer does not notify Thomas-Krenn.AG in text form of obvious defects within seven working days of delivery of the delivery item and of other defects within seven working days of discovery of the defect. At the request of Thomas-Krenn.AG, a defective delivery item must be returned to Thomas-Krenn.AG carriage paid. If the complaint is justified, Thomas-Krenn.AG will reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

(3) The customer's obligation to return the goods in accordance with paragraph 2 above shall not apply if the contracting parties have separately agreed special services for hardware replacement as part of service packages or special options for replacing defective storage media by way of the "Keep Your Drive Service" model, which shall then take precedence.

(4) In the event of material defects in the delivered items, Thomas-Krenn.AG is initially obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.

(5) If a defect is due to the fault of Thomas-Krenn.AG, the customer may demand compensation for damages under the conditions set out in § 12.

(6) In the event of defects in IT systems or components from other manufacturers that Thomas-Krenn.AG is unable to rectify for licensing or factual reasons, Thomas-Krenn.AG shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against Thomas-Krenn.AG for such defects only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the customer's relevant warranty claims against Thomas-Krenn.AG is suspended.

(7) The warranty does not apply if the customer modifies the delivery item or has it modified by a third party without the consent of Thomas-Krenn.AG and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must bear the additional costs of remedying the defect resulting from the modification.

(8) Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.

§ 11 Property rights

(1) Thomas-Krenn.AG warrants in accordance with this § 11 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party immediately in writing if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, Thomas-Krenn.AG shall, at its discretion and at its own expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement with the third party. If Thomas-Krenn.AG does not succeed in doing so within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer are subject to the limitations of § 12.

(3) In the event of infringements of rights by products of other manufacturers supplied by Thomas-Krenn.AG, Thomas-Krenn.AG will, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In these cases, claims against Thomas-Krenn.AG only exist in accordance with this § 11 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.

§ 12 Liability for damages

(1) The liability of Thomas-Krenn.AG for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this § 12, insofar as fault is involved in each case.

(2) The limitations of this § 12 do not apply to the liability of Thomas-Krenn.AG for damages caused intentionally or through gross negligence by Thomas-Krenn.AG or one of its vicarious agents or legal representatives, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

(3) Thomas-Krenn.AG is not liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer's personnel or to protect the customer's property from significant damage.

(4) Insofar as Thomas-Krenn.AG is liable for damages in accordance with § 12 para. 3, this liability is limited to damages typical for the contract which Thomas-Krenn.AG foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Liability for indirect damages and consequential damages is excluded.

(5) In the event of liability for simple negligence, Thomas-Krenn.AG's obligation to pay compensation for property damage and any resulting further financial losses is limited to an amount of EUR 50,000.00 per claim, even if this involves a breach of material contractual obligations.

(6) The above exclusions and limitations of liability apply to the same extent in favor of the executive bodies, legal representatives, employees and other vicarious agents of Thomas-Krenn.AG.

(7) Insofar as Thomas-Krenn.AG provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.

§ 13 Retention of title

(1) The retention of title agreed below serves to secure all existing current and future claims of Thomas-Krenn.AG against the customer arising from the supply relationship (including current account balance claims).

(2) The goods delivered by Thomas-Krenn.AG to the customer remain the property of Thomas-Krenn.AG until all secured claims have been paid in full. The goods and the goods covered by the retention of title that take their place in accordance with the following provisions are hereinafter referred to as "goods subject to retention of title".

(3) The customer shall store the goods subject to retention of title free of charge for Thomas-Krenn.AG.

(4) The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realization (para. 9) occurs. Pledges and transfers by way of security are not permitted.

(5) If the reserved goods are processed by the customer, it is agreed that the processing is carried out in the name and for the account of Thomas-Krenn.AG as the manufacturer and that Thomas-Krenn.AG directly acquires ownership or - if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at Thomas-Krenn.AG, the customer hereby transfers his future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to Thomas-Krenn.AG as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a single item and if one of the items is to be regarded as the main item so that Thomas-Krenn.AG or the customer acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership of the single item in the proportion stated in sentence 1.

(6) If the goods subject to retention of title are resold, the customer hereby assigns to Thomas-Krenn.AG by way of security the resulting claim against the purchaser - in the case of co-ownership by Thomas-Krenn.AG of the goods subject to retention of title in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. Thomas-Krenn.AG revocably authorizes the customer to collect the claims assigned to Thomas-Krenn.AG in its own name. Thomas-Krenn.AG may only revoke this direct debit authorization in the event of liquidation (para. 9). If the collection authorization is revoked, the customer is obliged to inform Thomas-Krenn.AG of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to inform the debtors (third parties) of the assignment.

(7) If third parties seize the goods subject to retention of title, in particular by way of attachment, the customer shall inform them immediately of Thomas-Krenn.AG's ownership and inform Thomas-Krenn.AG of this immediately in order to enable Thomas-Krenn.AG to enforce its ownership rights. If the third party is not in a position to reimburse Thomas-Krenn.AG for the judicial or extrajudicial costs incurred in this context, the customer is liable to Thomas-Krenn.AG.

(8) Thomas-Krenn.AG will release the goods subject to retention of title and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 10%. Thomas-Krenn.AG is entitled to select the items to be released.

(9) If Thomas-Krenn.AG withdraws from the contract in the event of breach of contract by the customer - in particular default of payment - (enforcement event), it is entitled to demand the return of the goods subject to retention of title.

§ 14 Data protection

(1) Thomas-Krenn.AG collects, processes and uses the customer's personal data in accordance with the statutory data protection regulations. Additional information on this can be found in the privacy policy on the Thomas-Krenn.AG website.

(2) The customer is subject to the obligations to cooperate contained in § 9 para. 6 for the protection of data privacy when returning goods.

§ 15 Export and import control

(1) The contracting parties are aware that products and services of Thomas-Krenn.AG may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of hardware, software and related technologies and services may be subject to restrictions abroad.

(2) The customer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.

(3) The fulfillment of the contract by Thomas-Krenn.AG is subject to the proviso that there are no obstacles to fulfillment due to national and international regulations of export and import (control) law and no other statutory provisions.

§ 16 Final provisions

(1) All amendments and additions to the agreements made, including these GTC, must be made in writing, as must the waiver of the written form requirement, unless another form (e.g. text form) is expressly provided for in the contractual agreements. Compliance with the written form requirement can also be ensured by using a simple electronic signature (e.g. Skribble, DocuSign) or by telecommunication, in particular by e-mail.

(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Freyung. Thomas-Krenn.AG is also entitled to sue the customer at his general place of jurisdiction.

(3) The substantive law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).

(4) Should a provision of the contract or these GTC be invalid or contain a loophole that needs to be filled, this shall not affect the validity of the remaining provisions. In place of the invalid provision and to fill a loophole, those legally effective provisions shall be deemed to have been agreed which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the loophole. The same applies to loopholes in the specific terms and conditions mentioned in § 1 para. 2.

(Status: 22.04.2024)

 

The print version of our GTCs:  AGBs_ThomasKrennAG.pdf

 

Thomas-Krenn.AG
Speltenbach-Steinäcker 1
94078 Freyung
+49 8551 9150 0  
+49 8551 9150 55

 

Passau District Court, HRB 6790

Registered Office: D-94078 Freyung

Executive Board:
Christoph Maier
Ralf Hohmann