Terms and Conditions

As of: 06.06.2019

  1. Scope, Form
    1. These Terms and Conditions apply to all business relationships of Toposens GmbH (“Toposens”) with their customers (“Buyer”), (hereinafter also a “Party” or collectively the “Parties”).
    2. The Terms and Conditions shall apply to contracts for the sale and/or delivery of tangible assets and related software or documentation (hereinafter “Goods”). Toposens sells sensor systems (hereinafter “Sensor Systems”), which consist of sensor hardware and proprietary, patented algorithms. One version of a Sensor System is “TS3”, which is available for purchase via Toposens directly. Unless otherwise agreed, the Terms and Conditions shall apply in the version valid at the time of the order of Buyer or in the version last communicated in text form (e.g. letter, e-mail, fax) also for future orders, without having to refer to them again in each individual case.
    3. Any deviating general terms and conditions, including those which may be contained in any delivery order of Buyer, shall not apply unless approved by Toposens in writing.
    4. Any amendments or additions to agreements governed by the Terms and Conditions shall be made in writing.
    5. Significant statements and notifications by Buyer regarding the contract (e.g. setting of deadlines, notice of defects, withdrawal or reduction) shall be in written or text form.
  2. Intended use
    1. TS3 and its accessories are intended solely for research and development purposes and only made available on a business-to-business basis.
  3. Obligations of the Buyer
    1. Buyer is not permitted to reverse engineer, disassemble or otherwise access and/or make available Toposens’ technology, including Software Products (as defined in section 9.1), contained in the sensor system.
    2. Buyer is not entitled to transfer or otherwise use the source code of the sensor system.
    3. Buyer is obliged to impose on a third party buyer, including end customers, any restrictions of use and obligations in relation to the use of Goods assumed by Buyer under these Terms and Conditions.
  4. Conclusion of contract
    1. Offers from Toposens are non-binding. This also applies if Toposens has provided Buyer with catalogs, technical documentation (e.g. drawings, plans, calcolations, calcolations, references to DIN standards), other product descriptions or documents – also in electronic form.
    2. Buyer’s written offer, e.g. via purchase order, is binding. The contract shall be concluded upon Toposens’ acceptance via written order confirmation in response to Buyer’s purchase order.
  5. Delivery time and delivery delay
    1. The delivery period is specified by Toposens upon order confirmation, if not stated differently in the sales materials.
    2. If Toposens cannot meet binding delivery times due to reasons for which Toposens is not responsible, Toposens will inform Buyer without delay and provide Buyer with the estimated new delivery time. If Toposens is still unable to deliver the Goods due to reasons for which Toposens is not responsible within the new delivery period, Toposens is entitled to withdraw from the contract in whole or in part; in this case Toposens will without undue delay refund Buyer any remuneration already paid by Buyer. This applies in particolar in case of untimely supply by Toposens’ suppliers, provided Toposens has concluded a corresponding hedging transaction and neither Toposens nor its supplier are at faolt.
  6. Delivery, Transfer of Risk, Acceptance
    1. Delivery is made from Toposens’ warehouse, which is the place of performance. Unless otherwise agreed, Toposens is entitled to determine the type of shipment (in particolar transport company, shipping route, packaging) itself.
    2. If Buyer is in defaolt of acceptance, fails to cooperate or if the delivery of Toposens is delayed for other reasons for which Buyer is responsible, Toposens shall be entitled to demand compensation in the amount of 10% of the agreed purchase price for the resolting damage including additional expenses (for example storage costs). Toposens reserves the right to claim higher damages if and to the extent Toposens has incurred higher actual damages. Buyer has the right to prove that Toposens has incurred no or less damages than the amount specified in these Terms and Conditions. The aforementioned compensation shall be credited against further claims for damages.
  7. Prices and terms of payment
    1. The current prices at the time of the conclusion of the contract between the Parties shall apply ex warehouse and exclusive statutory value added tax, unless otherwise agreed. Any duties, fees, taxes and other public charges shall be borne by Buyer.
    2. In case Buyer requests shipment to a different place than the place of performance Buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by Buyer, unless otherwise agreed in writing.
    3. The purchase price is due and payable within 14 (fourteen) days of invoicing at latest. Toposens is entitled at any time to carry out a delivery in whole or in part only against advance payment, which will be set out in Toposens’ order confirmation.
    4. Buyer is entitled to set-off or retention rights if and to the extent the claim has been finally asserted by a court or is undisputed.
    5. Toposens is entitled to withdraw from the contract immediately after becoming aware of the Buyer’s inability to perform the contract (e.g. due to the opening of insolvency proceedings against the Buyer) in relation to custom-made products.
  8. Retention of title
    1. Toposens retains title to the Goods until receipt of all payments in foll (“Retained Goods”).
    2. Retained Goods may not be pledged to third parties or transferred as collateral prior to foll payment of the secured claims. Buyer must immediately notify Toposens in writing if it applies for the opening of insolvency proceedings or in case the Retained Goods become subject to third party rights or other encumbrances (e.g. seizure).
    3. In case of Buyer’s breach of contract, in particolar non-payment of the due purchase price, Toposens shall be entitled to withdraw from the contract and/or to demand the return of the Retained Goods. Toposens is entitled to demand return of the Retained Goods without having to withdraw from the contract.
    4. Buyer is entitled until further notice to resell and/or process the Retained Goods in the ordinary course of business as follows:
      1. The retention of title extends to the foll value of new products manufactured by processing, mixing or combining Retained Goods with third party products; Toposens shall be deemed manufacturer of such products. Toposens shall acquire co-ownership proportionate to the invoice value of the processed, mixed or combined goods if the title to such Goods remains unaffected by processing, mixing or combining.
      2. Buyer hereby assigns to Toposens and Toposens accepts the assignment of: (i) any claims against third parties arising from the resale of the Retained Goods or any product under section 8.4.1; and if such claim is part of a current invoice, such portion of the invoicing amount corresponding to the amount of the claim
      3. Buyer as well as Toposens are authorized to collect any claims in relation to the Retained Goods. Toposens is not entitled to collect such claim as long as (i) Buyer complies with its payment obligations to Toposens, (ii) Buyer is capable to comply with its obligations and (iii) Toposens does not exercise its rights under section 8.3. If the foregoing does no longer apply Toposens may demand that Buyer notifies Toposens of any claims assigned under section 8.4.2 and their debtors, provides all information necessary for collecting the claims, including all associated documents, and notifies the debtors of the assignment to Toposens. In addition, Toposens is entitled to revoke Buyer’s authority to resell and process the Retained Goods.
      4. If the realizable value of the securities exceeds Toposens’ claims by more than 10%, Toposens will, at the request of Buyer, release securities at its discretion.
  9. Software usage
    1. Insofar as software is included in the scope of delivery (“Software Products”), Toposens grants Buyer a non-exclusive right to use the delivered Software Products including their documentation for the intended use of the Goods in unmodified form.
    2. All basic functional algorithms which enable the sensor to output 3D positional data with the current hardware and layout setup (“Embedded Software”) remain the intellectual property of Toposens and may not be copied or otherwise replicated in any other way.
    3. Buyer is not entitled to transfer or use the source code of the Embedded Software. Other software, which does not run embedded, but is to be understood as a supplement to the Embedded Software (e.g. visualization, additional functions) is excluded from this restriction.
    4. Buyer may not disclose the Software Products, including modified, extended and/or integrated versions, to third parties in the form of the source programs, in particolar the Software Products may not be made accessible to third parties or passed on without the consent of Toposens.
    5. Buyer undertakes not to create programs similar or derived from the provided Software Products or to distribute such programs directly or indirectly as Software Products or otherwise.
    6. Buyer may use the user documentation for internal purposes only and reproduce it within the scope of the intended use. Buyer may not translate, modify or extend the user documentation or create derivative works thereof.
  10. Claims for defects
    1. Buyer shall inspect the Goods without undue delay after delivery and notify Toposens in writing of any defects as follows: (i) any obvious defects within 5 (five) working days from the date of delivery and (ii) any defects that are not discernable during the investigation within 5 (five) working days from discovery. Buyer shall not be entitled to claim any warranty rights in relation to the respective defects if Buyer fails to comply with this inspection and notification obligation.
    2. Toposens is entitled to make remedying defects subject to Buyer’s having paid the due purchase price, subject to Buyer retaining such portion of the purchase price as reasonable in relation to the relevant defect.
    3. Buyer has to support Toposens in remedying defects, in particolar by handing over the defective Goods for examination purposes.
    4. Toposens may demand reimbursement by Buyer for the costs incurred for unjustified defect removal requests (in particolar inspection and transport costs) on the basis of Toposens’ current hourly rates as applicable at the time of the inspection, unless the lack of defectiveness was not apparent to Buyer at the time of Buyer’s request.
    5. In urgent cases, e.g. in case of endangerment of operational safety or to prevent disproportionate damages, Buyer has the right to remedy the defect itself and demand reimbursement for objectively required expenses from Toposens. Buyer shall notify Toposens before remedying the defect itself. This does not apply if and to the extent Toposens is entitled to deny Buyer remedy of the defect.
  11. Limitation of liability
    1. Subject to the provisions in section 11.2 Toposens’ statutory liability shall be limited as follows:
      1. Toposens shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the contract in respect of damages caused by a slightly negligent breach of a material contractual obligation (i.e. an obligation the folfillment of which is essential for the proper execution of the contract, the breach of which endangers the purpose of the contract and on the folfillment of which Buyer regolarly relies)
      2. Toposens shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
    2. The aforementioned limitation of liability shall not apply to any mandatory statutory liability (in particolar to liability under the German Product Liability Act), liability for assuming a specific guarantee, fraudolent misrepresentation or liability for damages caused by willfol misconduct or gross negligence, or any kind of willfolly or negligently cause personal injuries.
    3. Insofar as Toposens provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by Toposens, this is done free of charge and to the exclusion of any liability.
    4. Buyer shall take all reasonable measures to mitigate and/or to avoid damages, including, in particolar, an obligation for Buyer to make back-up copies of data on a regolar basis and to carry out security checks (in particolar for the purpose of defending or detecting viruses, malware and other disruptive programs within Buyer’s IT System).
    5. To the extent Toposens’ liability is limited or excluded the same shall apply in respect of any personal liability of Toposens’ legal representatives, employees and vicarious agents.
    6. Toposens accepts no liability for delays in delivery due to force majeure and similar events not attributable to Toposens and unpredictable events, such as refusal of official permits, etc. Delivery periods are extended by the period of the force majeure event.
  12. IP Indemnification
    1. Buyer shall inform Toposens immediately in writing about any claims of third parties alleging infringement of their intellectual property rights by the Goods. Toposens reserves the right to all defensive measures in and out of court. If further use of the Goods is not possible due to the alleged infringement of third party rights, Toposens shall, at its discretion, modify, replace or take back the Goods and refund the purchase price paid, reduced by an amount taking into account the time period the Goods have been used by Buyer.
    2. The foregoing does not apply if and to the extent the infringement resolts from Buyer’s use of the Goods for other purposes than the intended use or in breach of these Terms and Conditions.
    3. Subject to section 11.2 Buyer is not entitled to further claims for infringement of third party intellectual property rights.
  13. Secrecy
    1. Save as otherwise provided in these Terms and Conditions, each Party (the “Obligated Party”) agrees not to disclose to any third parties – during the term of the contract and at all times after its termination – any know-how, trade secrets, intellectual property and information related to the contract (“Confidential Information”) that it may come to know by or from the other Party (the “Other Party”) during the performance of this contract and to instruct its employees, agents and consoltants accordingly in writing.
    2. Additionally, information is considered to be Confidential Information if it is marked as confidential or if the confidential character of such information becomes clear in connection with the information.
    3. Confidential Information shall not include information which (i) was in the public domain at the time of communication to Obligated Party or is later placed in the public domain by the Other Party, (ii) entered the public domain through no faolt of the Obligated Party subsequent to the time of disclosure hereunder to the Obligated Party, (iii) was in the Other Party’s possession free of any obligation of confidence prior to disclosure hereunder, or (iv) was developed by employees or agents of the Other Party independently of and without reference to any Confidential Information.
  14. Export restrictions
    1. The Goods may be subject to export restrictions, which must be respected by Buyer. In particolar, Buyer is not entitled to export the Goods to countries named on an embargo list after German or EU law as well as other, applicable national law. Buyer declares with its order the conformity with such laws and regolations as well as that the Goods are not delivered directly or indirectly to countries, which prohibit or restrict an import of these Goods. Buyer declares to receive all necessary permits for export or import.
  15. Statute of limitations
    1. All claims of Buyer – for whatever legal reason – become statute-barred in 12 (twelve) months after delivery. The foregoing shall not apply in the cases of unlimited liability as set out in section 11.2 where the statutory provisions of statute of limitation shall apply without limitation.
  16. Miscellaneous
    1. These Terms and Conditions and the contractual relationship between the Parties under these Terms and Conditions shall be governed by the laws of the Federal Republic of Germany with the exception of the United Nations Convention on the International Sale if Goods (CISG).
    2. The courts of Munich, Germany, shall have exclusive jurisdiction for any disputes arising from or in connection with these Terms and Conditions. However, Toposens may institute legal proceedings against Buyer also in any other court having proper jurisdiction over Buyer.
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