GTCS - General Terms and Conditions of Sale

§ 1 Basic Provisions

1) The following terms and conditions apply to sales contracts that you conclude with us as a supplier (Tonitrus GmbH, Teerhof 59, 28199 Bremen, Germany).  We expressly do not recognize any deviating or supplementary regulations or general terms and conditions, unless prior individual agreements take precedence.

2) These General Terms and Conditions apply equally to consumers and entrepreneurs.

§ 2 Contract Language, Contract Text

1) The contract language is English.

2) Before sending the order via the online shopping cart system, the contract data can be printed or electronically saved using the browser's print function.

3) In the case of requests for quotations not made via the website www.tonitrus.com, you will receive all contract data as part of a non-binding offer in text form, e.g. by e-mail, which you can print out or save electronically.

§ 3 Subject Matter of the Contract and Product Characteristics

1) The subject matter of the contract is the goods specified by you in the order (placed in the shopping cart and subsequently ordered) and stated in the order and/or order confirmation at the final prices stated therein.

2) We offer both new and used refurbished goods.

3) The article numbers of new goods always end with the digits 003. Goods that have not yet been used since production are considered new goods – regardless of the production date. This also applies to goods that are components (such as RAM modules, CPUs, hard disks) that have already been installed in systems by the manufacturer but have never been put into operation. These components are also considered new goods.

4) The article numbers of used refurbished goods always end with the digits 014. Used refurbished goods are goods that have already been used. Used refurbished goods may show signs resulting from previous use, minor defects or functional limitations that do not restrict normal use, and similar limitations typical of used goods.

5) The images on our website and in our catalogue may not accurately reflect the products offered; in particular colors may vary considerably for technical reasons. Images are for illustrative purposes only and may differ from the product; some are symbolic images or type images, not images of the actual product. Information such as drawings, technical data, weight, dimension and performance descriptions are standard approximate values and do not represent guaranteed properties.

6) We are not part of selective distribution systems, but we only purchase the products we offer from sources within the European Economic Area (EEA).

a) Devices purchased from us may already be registered under a customer name by the manufacturer. We can neither initiate nor influence a transfer of the registration to another customer name in the manufacturer's system. Only the respective manufacturer can do this.

b) Furthermore, we cannot foresee whether service contracts can be concluded with the respective manufacturers for the goods purchased from us. This decision lies with the respective manufacturer and we have no influence on this.

c) In the case of goods that are distributed thru selective distribution systems, it is neither the initial purchaser nor any subsequent purchasers of the goods - but the manufacturer itself - that is responsible for proving whether the goods were first placed on the market within the European Economic Area (EEA), so that so-called "exhaustion" has occurred in terms of intellectual property. The mere unsubstantiated assertion by a manufacturer that a specific product is not exhausted therefore does not mean that the user of the product or the supplying dealer has the obligation and burden of proof to disclose and prove the origin of the product and thus its exhaustion. For these reasons, proving that goods supplied by us from selective distribution systems are in fact exhausted goods is not part of the scope of delivery to be provided by us.

d) If we are unable to deliver the goods ordered by the customer, for example because they are not in stock, we will not accept the order. In this case, no contract will be concluded. We will inform the customer immediately and refund any payment received promptly.

§ 4 Conclusion of the Contract

1) The subject of the contract is the sale of goods.

2) Our offers are subject to change and non-binding. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - including in electronic form - to which we reserve ownership and copyrights.

3) For purchases via our online store tonitrus.com, the following applies:

a) The customer can select products from our range and collect them in a so-called shopping cart using the "add to cart" button. By clicking on the "order with obligation to pay" button, the customer submits a binding request to purchase the goods in the shopping cart. Before submitting the order, the customer can change and view the data at any time. Before submitting the order, the customer has the opportunity to review these GTCS and the revocation policy. Upon submission of the order by the customer, the GTCS and the revocation policy are then included in the request..

b) We will then send the customer an automatic confirmation of receipt by e-mail, in which the customer's order is listed again and which the customer can print out or save. The automatic confirmation of receipt merely documents that we have received the customer's order and does not constitute acceptance of the order.

c) The contract is only concluded once we dispatch the goods. The customer will then receive the text of contract (consisting of the GTCS and the cancellation policy). The text of the contract is stored in compliance with data protection regulations.

d) If delivery of the goods ordered by the customer is not possible, for example because the goods in question are not in stock, we will refrain from issuing an order confirmation. In this case, a contract is not concluded. We will inform the customer of this immediately and refund any consideration already received without delay.

§ 5 Prices and Payment Modalities

1) The prices listed in the respective offers as well as the shipping costs represent total prices. They include all price components including all applicable taxes.

2) The shipping costs incurred are not included in the purchase price. They are shown separately in the respective offer or - in the case of orders via the website - during the ordering process and are to be borne additionally by you, unless delivery free of shipping costs has been promised.

3) If the delivery is made to countries outside the European Union, further costs may be incurred for which we are not responsible, such as customs duties, taxes or money transfer fees (transfer or exchange rate fees of the credit institutions), which are to be borne by you.

4) Any costs incurred for the transfer of funds (bank transfer or exchange rate fees) shall be borne by you in cases where the delivery is made to an EU member state but the payment was initiated outside the European Union.

5) The payment methods available to you are shown under a correspondingly labelled button on our website or in the respective offer.

6) Unless otherwise stated for the individual payment methods, the payment claims arising from the concluded contract are due for payment immediately.

§ 6 Terms of Delivery

1) The terms of delivery, the delivery date and any existing delivery restrictions can be found under a correspondingly labelled button on our website or in the respective offer.

2) If you are an entrepreneur, the following also applies:

a) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the Customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

b) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a flat-rate compensation of 0.5% of the purchase price per calendar week, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.

Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

§ 7 Right of Retention, Retention of Title

1) The goods remain our property until the purchase price has been paid in full.

2) Claims by third parties - in particular the manufacturer - that the products sold by us were not intended for the European Economic Area and were therefore not "exhausted" do not lead to a right of retention, see § 3 Para. 6 c) above.

3) If you are an entrepreneur, the following applies in addition:

a) We reserve title to the goods until full settlement of all claims arising from the current business relationship (secured claims).

b) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).

c) If the Customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the Customer does not pay the purchase price due, we may only assert these rights if we have previously set the Customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

 d) The Customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with (cc) below. In this case, the following provisions shall apply in addition:

(aa) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

(bb) The Customer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer mentioned under b) shall also apply in consideration of the assigned claims.

(cc) The Customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with (c). If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer's authorization to resell and process the goods subject to retention of title.

(dd) We undertake to release the securities to which we are entitled at your request to the extent that the realizable value of our securities exceeds the claim to be secured by more than 10%. We shall be responsible for selecting the securities to be released.

§ 8 Customer's Claims for Defects

1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the customer under our separately issued guarantee remain unaffected.

2) If you are an entrepreneur, the following shall apply in deviation from the above warranty provisions:

a) The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including – if available – accessories and instructions). Only such information and product descriptions (from us or from the respective manufacturer) that we have used on our website tonitrus.com or in our offers or in our own advertising shall be deemed to be the usual quality of the goods. Information regarding product descriptions and guarantees provided by the respective manufacturer, which we have not used ourselves, are not binding for us. Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory provisions whether a defect exists.

b) The customer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations. If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not recognizable during the inspection within the same period from discovery. If the Customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the Customer shall in particular not be entitled to claim compensation for the corresponding costs ("removal and installation costs").

c) In the event of defects, we shall provide warranty at our discretion by repairs or replacement delivery. If the repair of a defect fails, you may, at your discretion, demand a reduction in price or withdraw from the contract. If the type of subsequent performance chosen by us is unreasonable for the customer in individual cases, he may refuse it. Our right to refuse subsequent performance under the statutory conditions remains unaffected. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or defect or other circumstances indicate otherwise.

d) We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer shall be entitled to retain a reasonable portion of the purchase price in proportion to the defect.

e) The Customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the defective goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Customer shall not be entitled to return the item. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, attachment or assembly of a defect-free item if we were not originally obliged to perform these services; the Customer's claims for reimbursement of corresponding costs (“dismantling and assembly costs”) shall remain unaffected.

f) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions and these GTCS, if a defect actually exists. Otherwise, we may demand compensation from the Customer for the costs incurred as a result of the unjustified request to remedy a purported defect if the Customer knew or could have recognized that there was in fact no defect.

g)   Claims of the customer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB).

§ 9 Other Liability

1) Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only

a) for damages resulting from injury to life, body or health,

b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

c) The limitations of liability resulting from paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Customer under the Product Liability Act.

§ 10 Statute of Limitations

1) Statutory warranty claims for the purchase of used or refurbished goods shall become time-barred within one year of receipt of the goods, in deviation from § 438 Para. 1 No. 3 BGB.

2) If you are an entrepreneur, warranty claims shall always expire within one year of receipt of the goods.

3) Paragraphs 1) and 2) shall not apply, however

–             for culpably caused damage attributable to us arising from injury to life, limb or health and for other damage caused intentionally or through gross negligence;

–             insofar as we have fraudulently concealed the defect or have assumed a guarantee for the quality of the goods;

–             for goods that have been used for a building in accordance with their normal use and have caused its defectiveness.

§ 11 Warranty

1) In addition to the statutory warranty rights, we offer our customers a warranty for our hardware under the warranty conditions available at the URL https://www.tonitrus.com/warranty/.

2) Any warranty promises made by the manufacturer or other third parties remain unaffected by our warranty. We have no influence on the warranty granted by the manufacturer or other third parties, so that this is not part of our scope of delivery.

§ 12 Choice of Law, Place of Performance, Place of Jurisdiction

1)  The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between us and the Customer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

2)   If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Bremen. The same applies if you are an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or an overriding individual agreement or at the customer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.

Revocation policy

Right of revocation for consumers

If you are a consumer, the following right of revocation applies:

You have the right to revoke this contract within 14 days without giving any reason.

The revocation period is 14 days from the day

•             of the conclusion of the contract, provided it is a service contract or a contract for the delivery of digital content that is not delivered on a physical data carrier;

•             on which you or a third party named by you, who is not the carrier, have taken possession of the goods, if it is a sales contract;

•             on which you or a third party named by you, who is not the carrier, have taken possession of the last goods, if it is a contract for several goods that the consumer has ordered as part of a single order and which are delivered separately;

•             on which you or a third party named by you, who is not the carrier, have taken possession of the last partial consignment or the last item, provided that it is a contract for the delivery of goods in several partial consignments or items;

•             on which you or a third party named by you, who is not the carrier, have taken possession of the first goods, if it is a contract for the regular delivery of goods over a fixed period of time.

To exercise the right of revocation, you must inform us (Tonitrus GmbH, Teerhof 59, 28199 Bremen, Telephone number: 04218967670, E -mail address: [email protected]) of your decision to revoke this contract by a clear statement (e.g. a letter sent by post or e-mail). You can use the attached sample revocation form, but this is not mandatory.

To meet the revocation deadline, it is sufficient for you to send your communication concerning your exercise of the right of revocation before the revocation period has expired.

Consequences of revocation

If you revoke this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to revoke this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this repayment. We may withhold reimbursement until we have received the goods back or until you have supplied evidence of having sent back the goods, whichever is the earliest.

You must return or hand over the goods to us immediately and in any case within fourteen days at the latest from the day on which you inform us of the revocation of this contract. The deadline is met if you dispatch the goods before the period of fourteen days has expired.

You shall bear the direct costs of returning goods that can be sent by parcel post and the direct costs of returning goods that cannot be sent by parcel post. The costs for goods that cannot be sent by parcel post are estimated at a maximum of around EUR 80.

You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.

If you have requested that the services should commence during the revocation period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the time at which you inform us of the exercise of the right of revocation with regard to this contract compared to the total scope of the services provided for in the contract.

Reasons for exclusion of the right of revocation

The right of revocation does not apply to contracts

•             for the delivery of goods which are not prefabricated and for the manufacture of which an individual selection or determination by the consumer is decisive or which are clearly customised to the personal needs of the consumer;

•             for the delivery of goods if they have been inseparably mixed with other goods after delivery due to their nature;

•             for the delivery of audio or video recordings or computer software in a sealed package if the seal has been removed after delivery.

The right of revocation expires prematurely in the case of contracts for the provision of services and in the case of a contract in which you have expressly requested us to visit you in order to carry out repair work if the service has been fully provided and we have only started to perform the service after you have given your express consent and you have simultaneously confirmed your knowledge that you will lose your right of revocation upon complete fulfilment of the contract by us.