Texas Instruments EMEA Sales GmbH
Standard Terms and Conditions of Sale for Education Technology Products
1. Offer and Acceptance:
1.1 Texas Instruments EMEA Sales GmbH offers to sell and deliver Education Technology products to buyer ("Buyer") solely in accordance with the terms and conditions set forth herein. These terms and conditions shall also apply to all future purchase orders by Buyer. TIET hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless TIET expressly agrees to such terms in writing. Such terms shall not apply even if TIET performs any purchase order in the knowledge of such conflicting terms without expressly rejecting them.
1.2 TIET's offers are non-binding. A contract shall only be made when TIET has acknowledged a purchase order in writing or has started performance thereof.
2. Prices:
2.1 TIET’s price as per TIET's price list in effect at the time TIET receives Buyer’s purchase order shall continue to apply if the quantity ordered is scheduled to be delivered within ninety (90) days. Otherwise, TIET's price as per TIET's price list in effect on the actual delivery date for the quantity actually delivered shall apply.
2.2 If prices of fuels, metals, raw materials, equipment or other production costs increase significantly, TIET shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, TIET shall have the right to terminate the respective purchase order.
2.3 All prices shall be carriage and insurance paid to (CIP Incoterms 2020) named place of destination.
3. Risk and Delivery:
3.1 Without prejudice to Clause 4 hereof, shipments shall be delivered carriage and insurance paid to (CIP Incoterms 2020) named place of destination.
3.2 TIET may deliver products in installments if this is commercially reasonable for Buyer.
3.3 Delivery dates are estimates and non-binding, unless TIET has confirmed them in writing as binding. TIET shall not be liable for any damages, losses or expenses incurred by Buyer if TIET fails to meet such non-binding delivery dates.
4. Retention of Title:
4.1 All products shipped to Buyer shall remain TIET’s property ("Products with Title Reserved") until the entire purchase price has been paid in full and all claims by TIET relating to business transacted with Buyer and outstanding at the time of delivery have been settled in full.
4.2 Buyer shall be entitled to resell Products with Title Reserved in the normal course of its business, provided it does not default on its payments to TIET. Buyer is not entitled to pledge or transfer as security title to any Products with Title Reserved.
4.3 Buyer hereby assigns to TIET all claims arising in relation to Products with Title Reserved either from resale thereof or on any other legal grounds (e.g. tort), in an amount equal to their invoiced value. This shall also apply to the balance of any agreed current account. TIET authorizes Buyer to collect in Buyer's name but on TIET’s account claims thus assigned to TIET. TIET shall be entitled to revoke such authorization to collect and require that Buyer discloses all such claims if Buyer is in delay with any payment due to TIET, if judgment enforcement proceedings are brought against Buyer, if Buyer’s assets deteriorate substantially or in case of insolvency proceedings. TIET will release securities it is lawfully entitled to in case their sum exceeds the unsettled payment claims by more than 20%.
4.4 If a third party attempts to seize Products with Title Reserved, Buyer shall inform the third party that such goods are the property of TIET and shall immediately notify TIET. If Buyer fails to notify TIET, TIET shall be entitled to claim all amounts outstanding immediately. To the extent that delivery has not taken place, TIET shall have the option to deliver immediately or to withhold delivery until payment is tendered.
4.5 If Products with Title Reserved are commingled or combined with other goods, TIET acquires pro rata joint ownership of the new product proportional to the value of the Products with Title Reserved as compared to that of the other goods at the time of commingling or combining. If another good is deemed the major item in the processing, it is hereby agreed that Buyer shall, to the extent that it owns the new product, grant TIET joint ownership in the new product proportional to the value of the Products with Title Reserved as compared to the value of the new product.
4.6 In case Buyer is in breach of any purchase order, in particular default in payment, TIET is entitled to recover the Products with Title Reserved without the need to set a grace period. Buyer is obligated to return the Products with Title Reserved. In order to recover the Products with Title Reserved, TIET may enter Buyer’s premises where these are stored, and subsequently store them or have them stored for TIET.
4.7 The recovery of Products with Title Reserved does not require that TIET rescinds the contract; a rescission requires TIET’s express statement to that effect.
5. Payment Terms:
5.1 Unless otherwise agreed in writing, payment shall be due upon delivery.
5.3 If Buyer fails to make any payment when due, TIET may suspend performance under any purchase order in which a term of payment was granted to Buyer and may cancel any such purchase order after the unsuccessful lapse of a grace period. TIET's suspension of performance may result in rescheduling delays for which TIET shall not be liable to Buyer.
5.4 If it emerges after the conclusion of a contract with Buyer that based on the financial condition of Buyer (particularly in the event of cessation of payments, application to initiate insolvency proceedings, seizure or compulsory enforcement measures, levy of note or check protests and refusals to honor direct debits, and also vis-à-vis or to third parties) the fulfillment of contractual obligations of Buyer is at risk, then TIET may, at its own discretion, withhold delivery until the entire purchase price has been prepaid in full or until appropriate security (such as irrevocable letter of credit or financially qualified and directly enforceable third party guarantee) has been provided. The same shall apply if, as a result of Buyer's default in payment, reasonable doubts as to Buyer's solvency or financial standing emerge.
5.5 In the cases of Clause 5.4, TIET may also withhold deliveries until the receipt of all payments on open accounts receivable against Buyer or until appropriate security has been provided. However, for claims that are not yet due for payment, including claims for which TIET is obligated to advance performance under previously concluded contracts, and claims without any inherent or economic connection to the delivery, this shall apply only to the extent that TIET has a justified interest therein.
5.6 If in the cases of Clause 5.4 the prepayment is not made or the security is not provided by Buyer within two weeks after TIET's request, then TIET may rescind the relevant contract.
5.7 Buyer may only exercise a right of retention or set off if its counterclaims are undisputed or res judicata. A right of retention may only be exercised by Buyer in relation to claims from the same contractual relationship.
6. Taxes:
TIET will add Value Added Tax (VAT) and all other applicable taxes and duties to the sales price where required by applicable law, and Buyer will pay the same unless Buyer provides TIET with a duly executed tax exemption certificate. Buyer shall not be entitled to withhold taxes for TIET’s account from any amounts owed to TIET, in particular withholding taxes that may apply under applicable laws. Any taxes withheld at source shall be paid by Buyer.
7. Contingencies:
7.1 TIET shall not be in breach of its obligations and shall not be liable for any non-performance or delay in performance if and to the extent such non-performance or delay is due to a force majeure event or other circumstances beyond TIET’s control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, pandemics or epidemics, natural disaster, fire, flood, earthquake, explosion, or terrorist act.
7.2 In the event of a shortage of products, TIET may allocate product production and deliveries in a manner and amount that TIET deems fair taking into account its own and its other customer's requirements.
8. Claims in Case of Defects in Material [Sachmängel]:
8.1 If during the limitation period in Clause 8.5 a product shows a defect which already existed at the time of transfer of risk, TIET will at its option and expense repair the defect or supply a replacement product ("Subsequent Performance"). Instead of Subsequent Performance TIET may offer Buyer to take back the products concerned and credit the purchase price to Buyer's account. Subsequent Performance shall be effected without recognition of a legal obligation.
8.2 A product is defective if it does not conform to the written agreement between TIET and Buyer the lack of a feature, which Buyer expects because of TIET’s public statements, in particular in advertising, only constitutes a defect if such feature was listed in such written agreement. In the absence of a written agreement a product is only defective if it does not conform to TIET’s specification.
8.3 TIET shall not be liable for any defects that are caused by neglect, misuse or mistreatment, including improper installation, operation, use, maintenance or testing, use in fields of application and environmental conditions other than those expressly specified by TIET, and use in combination with other products not approved by TIET for this purpose, excessive stress or normal wear and tear, or for any products that have been altered or modified in any way. Buyer's claims for defects shall also be excluded for development samples, prototypes and preproduction deliveries. Buyer's claims for defects shall also be excluded if Buyer fails to notify TIET of apparent defects within ten (10) business days of delivery and of hidden defects within ten (10) business days after they have been detected.
8.4 If Subsequent Performance fails, Buyer shall, without prejudice to its claims under Clause 10, if any, be entitled to rescind the respective purchase order or to claim a price reduction. Buyer’s claims for damages based on defects of the product are exhaustively regulated in Clause 10.
8.5 The limitation period for warranty claims in accordance with this Clause 8 is two (2) years from delivery. This limitation shall not apply if a defect was fraudulently concealed or a guarantee for the quality of a product [Beschaffenheitsgarantie] was given. In the event of claims for damages, this limitation shall also not apply in the following cases: willful intent, gross negligence of an officer or executive of TIET, and personal injury (i.e. the injury of life, limb or health). For repaired products the remainder of the original limitation period shall run from the return of the repaired product to Buyer. The same shall apply for replaced products.
8.6 The place of fulfillment for TIET's Subsequent Performance shall be TIET's place of business. Buyer’s claims for compensation for expenses necessitated by TIET’s Subsequent Performance, in particular transportation, travel, labor and material costs, are excluded as far as such are increased because the products have been moved from the original place of delivery other than in line with the regular use of the products known at the time the purchase order was placed.
8.7 If the analysis of an alleged defect shows that no defect exists, TIET is entitled to charge for the failure analysis at TIET’s then applicable rates. Shipment costs for the return of such products to TIET will not be reimbursed and their return to Buyer shall be at Buyer’s expense and risk.
8.8 Sections 445a, 445b and 478 of the German Civil Code [BGB] shall not apply in case of Buyer’s claims for damages based on defects. Sections 445a, 445b and 478 of the German Civil Code [BGB] shall also not apply insofar as Buyer grants to its customers rights beyond the applicable statutory warranty rights; the same shall apply insofar as Buyer does not restrict its warranty obligations towards its customers to the maximum extent permitted by applicable law.
9. Intellectual Property Indemnification, Defects in Title:
9.1 Subject to Clauses 9.2, 9.3 and 10 and during the time period in Clause 8.5, TIET will indemnify Buyer against any damages, liabilities or costs finally awarded against Buyer, or agreed to by TIET as settlement or compromise, insofar as such claim is based on an allegation that products manufactured and supplied by TIET to Buyer directly infringe any United States, Canadian, Japanese or European Union member state patent, copyright, or other intellectual property right, provided (i) TIET is promptly informed and, where applicable, furnished a copy of such claim, (ii) TIET is given all evidence in Buyer’s possession, (iii) TIET is given reasonable assistance in and sole control of the defense thereof, to which TIET is entitled but not obliged, and all negotiations for its settlement or compromise, and (iv) Buyer does not concede an infringement of intellectual property rights vis-à-vis third parties. If Buyer discontinues the use of the products for mitigation of damages or other important reasons, Buyer is obligated to point out to the third party claimant that the discontinuation of use does not constitute an acknowledgement of an infringement of such third party's intellectual property rights.
9.2 In the event of an allegation for which TIET is obligated to indemnify Buyer pursuant to Clause 9.1, TIET shall: (i) obtain a license that allows Buyer to continue the use of the products, (ii) replace or modify the products so as to be non-infringing, but in a manner that does not materially affect the functionality of the products, or (iii) if neither (i) nor (ii) is available to TIET at a commercially reasonable expense then TIET may refund to Buyer the purchase price and the transportation costs of such products. If TIET elects the option set forth in Clause (iii) above, Buyer shall return to TIET any and all products remaining in Buyer’s possession, custody or control. The foregoing shall be TIET's exclusive liability safe for any restricted claims for damages in accordance with Clause 10.
9.3 TIET shall have no liability for any costs, losses or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without TIET’s prior written consent. TIET shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer’s use of the products in combination with any other product, software or equipment; (ii) Buyer’s use of the products in a manner or for an application other than for which they were designed or intended, regardless of whether TIET was aware of or had been notified of such use (unless TIET has expressly approved such use); (iii) Buyer’s use of the products in a manufacturing or other process; (iv) Buyer’s modifications to the products; (v) TIET’s compliance with Buyer’s particular design, instructions or specifications; or (vi) TIET’s compliance with any industry or proprietary standard or Buyer’s use of the products to enable implementation of any industry or proprietary standard (such claims – i.e. those set forth in (i) through (vi) above – are individually and collectively referred to herein as “Other Claims”).
9.4 Buyer shall indemnify and hold TIET harmless against any damages, liabilities or costs finally awarded against TIET or agreed to by Buyer as settlement or compromise, and will defend any claim brought against TIET insofar as such claim is based on an allegation arising from Other Claims.
9.5 This Clause 9 states the sole liability of TIET and Buyer for intellectual property rights infringement.
9.6 Clause 8 shall apply to all other defects in title.
10. Limitation of Liability:
10.1 TIET is only liable for damages caused by slight negligence if such are due to a material breach of duty, which endangers the achievement of the objective of the respective contract, or to a failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of the respective contract.
10.2 In cases of Clause 10.1, the liability is limited to the damage, which is typical for such contracts and which could have been foreseen. This shall also apply to damage caused by the gross negligence of an agent or an employee of TIET, who is not an officer or executive of TIET.
10.3 The limitation period for Buyer’s claims for damages that are restricted pursuant to Clause 10.2 shall be two (2) years from the point in time the claim arose and Buyer became aware thereof. Regardless of Buyer’s awareness, the limitation period shall be three (3) years from the damaging event. The limitation period for Buyer’s claims for damages based on defects shall be one (1) year from delivery.
10.4 With the exception of liability under the German Product Liability Law, for willful intent, for gross negligence of an officer or executive of TIET, for defects after having given a guarantee for the quality of the products [Beschaffenheitsgarantie], for fraudulently concealed defects and for personal injury (i.e. the injury of life, limb or health), the above limitations of liability shall apply to all claims for damages, irrespective of their legal basis.
10.5 The above limitations of liability also apply in case of Buyer’s claims for damages against TIET’s officers, executives, employees or agents.
11. Rescheduling:
No rescheduling by Buyer within thirty (30) days of TIET's estimated delivery date will be accepted. Any rescheduling by Buyer more than thirty (30) but less than ninety (90) days before TIET's estimated delivery date may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by TIET based on factors such as whether the product was manufactured specifically for Buyer, TIET's ability to change its production schedule within the period of notice provided by Buyer, whether TIET acquired or allocated particular supplies or equipment to meet Buyer's purchase order and such other factors as reasonably determined by TIET. Purchase orders may be rescheduled by Buyer more than ninety (90) days before TIET's estimated delivery date at Buyer's discretion and without charge.
12. Governing Law and Venue:
The contractual relationship between TIET and Buyer shall be governed by and interpreted in accordance with German law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Venue for all disputes shall be Munich, Regional Court I [Landgericht München I]. TIET shall be entitled to commence proceedings against Buyer also at Buyer's registered office.
13. Export Control:
13.1 Exports, re-exports, and transfers of products, technology, software, or software source code (“Items”) may be subject to U.S. export controls and sanctions as well as to other applicable national or international export control laws and regulations. Buyer acknowledges and agrees that: i) it will comply with all applicable laws and regulations; ii) Items may not be exported, re-exported, sold or transferred to U.S. embargoed, sanctioned, or restricted destinations, persons, or entities without first obtaining any necessary governmental authorization; and iii) it will provide notice of these compliance obligations to any party obtaining Items from Buyer.
13.2 Buyer shall not sell, export or re-export, directly or indirectly, Items to Russia and Belarus, or re-export Items for use in Russia or Belarus. Buyer shall immediately inform TIET about any problems applying the aforementioned obligations.
13.3 Unless any necessary U.S. and other applicable government authorizations are obtained in advance, Buyer may not export, re-export, transfer, purchase, or sell any Item: (i) for a military end use; (ii) to a military end user; or (iii) for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology. For additional information, see Part 744 of the U.S. Export Administration Regulations.
13.4 Each party shall, at its own expense, secure export and import authorizations necessary to fulfill its obligations under this Clause 13. Buyer will indemnify and hold TIET (including its agents and representatives) harmless against any damages, costs, losses, and/or liabilities arising out of any Buyer non-compliance with this Clause 13. If any required authorization cannot be obtained, or in the event Buyer breaches this Clause 13, TIET may terminate, cancel, or otherwise be excused from any obligations that it may have under the respective purchase order. Item classifications are for TIET convenience only and shall not be construed as a representation or warranty of any kind; Buyer is responsible for its own compliance obligations.
14. Assignment:
Any individual purchase order to which these terms and conditions apply shall not be assignable by Buyer without TIET’s prior written consent. Section 354a of the German Commercial Code [HGB] shall remain unaffected.
15. Severability:
If any provision in these terms and conditions or part of any provision is or becomes invalid, the other provisions as well as the other part of the provision shall remain valid.
16. Entire Agreement:
These terms and conditions constitute the entire agreement and understanding of Buyer and TIET and supersede all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter hereof. No ancillary verbal agreements have been made. Any additions or modifications hereto must be made in writing and signed by a duly authorized TIET representative in order to be effective. This also applies to any waiver of this requirement of written form.
17. Language Clause:
These terms and conditions as well as their words and phrases are to be construed under German law paying regard to the use of English as language of convenience. Terms in brackets shall have their meaning under German law without recourse to English or any other law.
December 2024
Subject to Change