General Terms and Conditions

1. Scope of application
Deliveries by TUCANA Handels-GmbH are made exclusively under the following General Terms and Conditions and the provisions of the applicable trade price list, unless otherwise agreed in writing. The manufacturers’ license terms enclosed with the contractual products are additionally referred to. Terms and conditions of the customer that deviate from these are only effective if they have been confirmed in writing by TUCANA Handels-GmbH. The same applies to changes and additions to these General Terms and Conditions. Verbal assurances and collateral agreements require the written approval of TUCANA Handels-GmbH.
2. Deliveries and services
2.1 Offers by TUCANA Handels-GmbH are subject to change and non-binding. A contract is only concluded upon written order confirmation by TUCANA Handels-GmbH.
2.2 TUCANA Handels-GmbH is entitled to deliver modified and adapted contractual products that differ from the customer’s order, provided their functionality is not impaired thereby.
2.3 TUCANA Handels-GmbH expressly reserves the right to make partial deliveries and to invoice them.
2.4 Agreed delivery dates are deemed met if the contractual product has been handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing. If the shipment of goods ready for dispatch is delayed for reasons for which TUCANA Handels-GmbH is not responsible, the contractual products may be stored at the customer’s expense and risk.
2.5 The delivery date is agreed according to the anticipated capacity of TUCANA Handels-GmbH and is subject to unforeseen circumstances and obstacles, regardless of whether these occur at TUCANA Handels-GmbH or at the manufacturer, such as force majeure, government measures, failure to grant official permits, labor disputes of any kind, sabotage, shortage of raw materials, or delayed deliveries of materials through no fault of its own. Such events extend the delivery date accordingly, even if they occur during a delay that has already begun. Should TUCANA Handels-GmbH be in default with a delivery for more than four weeks, the customer may, after setting a reasonable grace period in writing, withdraw from the contract to the exclusion of further claims. If delivery delays last longer than six weeks, TUCANA Handels-GmbH is also entitled to withdraw from the contract in whole or in part.
2.6 Unless otherwise agreed, TUCANA Handels-GmbH is entitled, but not obliged, to insure the goods to be shipped against all kinds of transport risks at the customer’s expense. This, as well as any assumption of transport costs, has no influence on the passing of risk.
3. Cancellation and postponement of delivery dates
3.1 If the customer cancels a confirmed order in whole or in part, or agrees with TUCANA Handels-GmbH on a postponement of the delivery date for which the customer is responsible, TUCANA Handels-GmbH may claim damages corresponding to the list price of the order without separate proof.
3.2 The agreement on the postponement of delivery dates requires written form. In the event of default of acceptance, TUCANA Handels-GmbH has, in addition to the claim for payment, the right to either set a new delivery date or withdraw from the contract. Orders cannot be cancelled after delivery.
4. Acceptance and passing of risk
4.1 The customer must check the goods for completeness and conformity with the invoice immediately upon receipt. If no complaint is made within 8 days of receipt of the delivery, acceptance is deemed to have taken place.
4.2 Insignificant defects that do not impair the functionality of the delivered item do not entitle the customer to refuse acceptance.
4.3 Risk passes to the customer upon handover of the contractual product to the carrier, its agents or other persons designated by TUCANA Handels-GmbH, but at the latest upon immediate handover of the contractual product to the customer or its agents. If shipment is delayed or becomes impossible through no fault of TUCANA Handels-GmbH, risk passes to the customer upon notification that the goods are ready for shipment. The provisions of 4.3 also apply to returns after the remedy of defects or paid service work.
5. Prices and payment terms
5.1 The prices resulting from the applicable trade price list are FOB delivery warehouse; value added tax and other statutory charges in the country of delivery as well as packaging, transport costs and transport insurance are charged to the customer additionally in accordance with the trade price list.
5.2 Payments are due 10 days after invoicing without any deduction. Invoicing takes place upon delivery. If payment deadlines are exceeded, TUCANA Handels-GmbH is entitled, without further reminder, to default interest of 5% above the applicable discount rate of the Deutsche Bundesbank. The right to claim further damages for delay remains unaffected.
5.3 Notwithstanding any different stipulations by the customer, TUCANA Handels-GmbH is entitled to apply payments first to the customer’s older debts. If costs and interest have already arisen through default, TUCANA Handels-GmbH is entitled to apply the payment first to the costs, then to the interest and finally to the principal performance.
5.4 Set-off or the assertion of a right of retention on account of counterclaims not acknowledged by us or not finally established by a court is excluded.
5.5 If the above payment terms are deviated from without justifying reason, TUCANA Handels-GmbH may at any time, at its option, demand delivery against cash payment, advance payment or the provision of security. All outstanding claims, including those not yet due, become due immediately.
6. Retention of title
6.1 The contractual product remains the property of TUCANA Handels-GmbH until all claims, including future ones, arising from this contract and beyond that from the entire business relationship with the customer have been satisfied.
6.2 The customer is revocably entitled to pass on the goods subject to retention of title in the ordinary course of business under retention of title, but not to pledge them or assign them as security in any form. In the event of access by third parties to the goods subject to retention of title, the customer must point out the ownership of TUCANA Handels-GmbH and inform TUCANA Handels-GmbH immediately. In the event of resale to third parties, the customer is responsible for ensuring that the third party respects the rights of TUCANA Handels-GmbH.
6.3 If the goods subject to retention of title are combined or mixed with goods belonging to TUCANA Handels-GmbH, TUCANA Handels-GmbH acquires co-ownership in proportion to the invoice value of the goods subject to retention of title relative to the other goods. Processing and treatment of the goods subject to retention of title are carried out for TUCANA Handels-GmbH as manufacturer within the meaning of § 950 BGB (German Civil Code), without obliging TUCANA Handels-GmbH. TUCANA Handels-GmbH acquires co-ownership of the processed goods within the meaning of the foregoing provisions.
6.4 In the event of default in payment, including from other and future deliveries or services of TUCANA Handels-GmbH to the customer, or in the event of the customer’s insolvency, TUCANA Handels-GmbH may enter the customer’s business premises and take possession of the goods subject to retention of title in order to assert the retention of title.
6.5 The assertion of the retention of title or the seizure of the delivered item by TUCANA Handels-GmbH does not constitute withdrawal from the contract, provided the customer is a merchant.
6.6 The customer hereby assigns in advance to TUCANA Handels-GmbH, at the time of the order, its claims arising from the resale of the goods subject to retention of title in the respective invoice value of such goods. TUCANA Handels-GmbH is entitled and obliged to collect in the ordinary course of business. At the request of TUCANA Handels-GmbH, the customer will name the assigned claims. TUCANA Handels-GmbH may disclose this assignment at any time to secure its payment claims.
6.7 If the value of the securities exceeds the payment claims of TUCANA Handels-GmbH by more than 20%, TUCANA Handels-GmbH will, at the customer’s request, release the excess portion of the securities.
6.8 Items delivered for test and demonstration purposes remain the property of TUCANA Handels-GmbH. They may be used by the customer only on the basis of a separate agreement with TUCANA Handels-GmbH.
7. Warranty
7.1 TUCANA Handels-GmbH warrants that the contractual products are free from defects, which also includes the absence of warranted characteristics. The contractual products are manufactured with due care. The parties are aware, however, that according to the state of the art it is not possible to exclude errors in software under all conditions of use.
7.2 TUCANA Handels-GmbH warrants that the contractual products are generally described accurately in the product information and are in principle usable within that scope. The technical data and descriptions in the product information alone do not constitute an assurance of specific characteristics. An assurance of characteristics in the legal sense exists only if the respective statements have been confirmed in writing by TUCANA Handels-GmbH. TUCANA Handels-GmbH gives no guarantee that the program functions meet the customer’s requirements or work together in the selection made by the customer.
7.3 Excluded from the warranty are in particular defects or damage attributable to: wear and tear due to operation and normal wear / improper use, operating errors and negligent behavior of the customer / operation with the wrong type of current or voltage and connection to unsuitable power sources / fire, lightning, explosion or mains-related overvoltages / moisture of any kind / incorrect or faulty program, software and/or processing data and any consumables, unless the customer proves that these circumstances were not the cause of the defect complained of. The warranty is further void if serial numbers, type designations or similar markings are removed or made illegible.
7.4 These warranty claims against TUCANA Handels-GmbH begin with delivery to the customer and become time-barred after 90 days for software products and after one (1) year from delivery for hardware accompanying the software. They are not transferable. Irrespective of this, TUCANA Handels-GmbH passes on any further guarantee and warranty commitments of the manufacturers in full to its customers, without being liable for them itself.
7.5 In the event of a warranty claim, TUCANA Handels-GmbH will, at its option, rectify the defect or make a replacement delivery. Replaced parts become the property of TUCANA Handels-GmbH. If TUCANA Handels-GmbH does not remedy defects within a reasonable grace period set in writing, the customer is entitled to demand either rescission of the purchase contract or an appropriate reduction of the purchase price.
7.6 In the case of rectification, TUCANA Handels-GmbH bears the labor costs. All other costs of rectification as well as the incidental costs associated with a replacement delivery, in particular the transport costs for the replacement item, are borne by the customer, unless these other costs are disproportionate to the order value.
7.7 If the examination of a notice of defect shows that there is no warranty case, TUCANA Handels-GmbH is entitled to demand reimbursement of all expenses. Costs of examination and repair are charged at the respective applicable service prices of TUCANA Handels-GmbH.
7.8 All further or other claims of the customer than those provided for in these provisions, regardless of the legal basis, are excluded unless otherwise provided in these provisions.
7.9 When making use of the warranty/guarantee, as well as for chargeable repair orders and returns of any kind, the customer must observe the processing guidelines of the customer service in their current version or the corresponding procedures in the current TUCANA Handels-GmbH trade price list.
8. Industrial property rights and copyrights of third parties
8.1 TUCANA Handels-GmbH assumes no liability for the contractual products not infringing industrial property rights or copyrights of third parties. The customer must immediately inform TUCANA Handels-GmbH of all claims raised against it for this reason.
8.2 Where the delivered products were manufactured according to designs or instructions of the customer, the customer must indemnify TUCANA Handels-GmbH against all claims asserted by third parties on the basis of the infringement of industrial property rights and copyrights. Any legal costs are to be advanced appropriately.
9. Liability
9.1 The liability of TUCANA Handels-GmbH is limited to such damage as could reasonably have been expected to occur at the time of conclusion of the contract according to the circumstances known at that time. TUCANA Handels-GmbH is not liable for indirect damage, consequential damage caused by defects, or lost profit.
9.2 The liability of TUCANA Handels-GmbH for intentional and grossly negligent conduct, for warranted characteristics and under the provisions of the Product Liability Act remains unaffected by the aforementioned limitations of liability. The personal liability of members of TUCANA Handels-GmbH who acted as vicarious agents of TUCANA Handels-GmbH is excluded.
9.3 Claims for damages become time-barred upon expiry of three months from delivery or provision of the service.
10. Export and import permits
10.1 Products and technical know-how supplied by TUCANA Handels-GmbH are intended for use and retention in the country of delivery agreed with the customer. Re-export of contractual products – individually or in system-integrated form – requires a permit from the customer and is generally subject to the foreign trade regulations of the Federal Republic of Germany or of the other country of delivery agreed with the customer. The customer must inform itself independently about these regulations. Irrespective of whether the customer states the final destination of the delivered contractual products, it is the customer’s own responsibility to obtain any necessary permits from the competent foreign trade authorities before exporting such products.
10.2 Any onward delivery of contractual products by customers to third parties, with or without the knowledge of TUCANA Handels-GmbH, requires the simultaneous transfer of the export permit conditions. The customer is liable to TUCANA Handels-GmbH for proper observance of these conditions.
11. General provisions
11.1 The customer is not entitled to assign its claims arising from the contract.
11.2 The place of performance and place of jurisdiction for contractual partners within the meaning of § 24 AGBG (former German Standard Terms Act) is Wiesbaden. However, TUCANA Handels-GmbH is entitled to sue the distribution partner at any other statutory place of jurisdiction.
11.3 These General Terms and Conditions are governed by the statutory provisions in force in the Federal Republic of Germany. The Uniform Sales Act (EKG), the Uniform Act on the Conclusion of Contracts (EAG) and the Vienna UN Convention on the International Sale of Goods (UNCITRAL) are excluded.
11.4 Order processing within TUCANA Handels-GmbH is carried out with the help of automatic data processing. The customer hereby gives its express consent to the processing by TUCANA Handels-GmbH of data that become known in the course of contractual relations and are necessary for order processing.
11.5 Should one or more provisions of these General Terms and Conditions be or become invalid, or should this contract text contain a gap, the contracting parties will replace or supplement the invalid or incomplete provision with appropriate provisions that correspond as closely as possible to the economic purpose of the intended provision. The validity of the remaining provisions remains unaffected.