This is an English translation from the Spanish original.
Only the SPANISH ORIGINAL VERSION applies.
General Terms and Conditions of Business, Delivery and Payment of tonik24 trading SL
Deliveries and services (hereinafter: Deliveries) of tonik24 trading SL (hereinafter: TONIK24) shall be performed on the basis of the following terms and conditions, unless TONIK24 and the Customer agree otherwise in writing in individual cases:
Conclusion of the Contract
1. The general terms and conditions of the customer shall apply to TONIK24 only to the extent that TONIK24 has expressly accepted them in writing.
2. All offers made by TONIK24 are non-binding. TONIK24 shall be entitled to accept the Customer's orders within two weeks after receipt by TONIK24.
3. Subsidiary and additional agreements, quality specifications of the Products, guarantees of quality or durability and other agreements made before, during or after the conclusion of a supply contract shall only be valid if they are made in writing.
Scope and subject matter of the Supply
1. If the object of the Supply consists of software, TONIK24 may, insofar as is feasible and reasonable for the Customer, choose to effect the Supply in the following manner: by sending it by e-mail or by referring the Customer to a download service via the Internet.
2. If the installation and use of the software supplied is dependent on the possession of a licence key, TONIK24 shall also deliver a licence key enabling the operability of the software supplied to the agreed extent. Section 1 above shall apply accordingly to the delivery of such a licence key.
3. If the subject matter of the delivery consists of accompanying material for the Software (e.g. user manual, data sheets, etc.), TONIK24 shall, at its choice, deliver the accompanying material in printed form, as content accessible via the Internet or in accordance with section 1 above.
4. TONIK24 reserves the right to make changes to the agreed delivery items, in particular in the course of new developments, until delivery to the Customer, provided that the agreed performance data and quality specifications are achieved.
5. All deliveries shall be ex works (EXW) in accordance with Incoterms 2020.
6. Partial deliveries are admissible insofar as they are reasonable for the Customer.
7. Items delivered for test and demonstration purposes shall remain the property of TONIK24. The customer shall be obliged to take care of proper and secure storage against access by third parties and may use the goods beyond the purpose of testing and demonstration only on the basis of a separate agreement with TONIK24.
Delivery dates and delays
1. Delivery dates shall not be binding unless they are expressly agreed in writing to be binding. In the case of binding delivery dates, TONIK24 shall only be in default if the delivery is overdue, the Customer has unsuccessfully granted TONIK24 a reasonable period of grace in writing and TONIK24 is responsible for the delay.
2. Compliance with binding delivery dates by TONIK24 shall be subject to punctual fulfilment of all acts of cooperation by the Customer and compliance with the agreed payment terms and other obligations of the Customer. If these requirements are not met in time, binding delivery dates shall be postponed accordingly.
3. If delivery deadlines are not met due to force majeure, such as mobilisations, war, pandemics, riots or similar events, such as strikes or lockouts, the delivery deadlines shall be postponed accordingly for the duration of the aforementioned delivery hindrances.
4. In the event of slight negligence, the customer's claim for damages due to the delay in delivery is excluded, otherwise limited to the amount of the foreseeable damage, however, to a maximum of 5% of the value of the delivery affected by the delay. The customer shall only be entitled to withdraw from the contract within the scope of the statutory provisions if TONIK24 is responsible for the delay in delivery. At the request of TONIK24, the customer shall declare within a reasonable period of time whether he withdraws from the contract due to the delay in delivery or insists on delivery. The above limitations of liability shall not apply in the event of intent or gross negligence on the part of TONIK24.
5. A change in the burden of proof to the detriment of the customer is not related to the above provisions.
Prices, terms of payment and retention of title
1. The agreed prices shall be ex works, excluding packaging, plus the applicable statutory value added tax.
2. Deliveries shall be against prepayment (by credit card, if applicable, Paypal) or cash on delivery as indicated/available in the shop.
3. All deliveries shall be made under reservation of title until all payment obligations of the customer in respect of the delivery in question have been fulfilled in full. Notwithstanding the aforementioned retention of title, the customer is not authorised to resell the delivery items in the course of his business. The customer hereby assigns to TONIK24 all claims arising from such sales transaction in the amount of the price agreed with TONIK24 for the delivery items on account of performance. TONIK24 may disclose this assignment at any time in order to secure its claims for payment. At TONIK24's request, the Customer shall inform TONIK24 of the name and address of its customers concerned and the nature and extent of its claims against them. In the event of attachment, seizure or other dispositions or interventions by third parties, the Customer shall immediately notify TONIK24.
4. The Customer shall only be entitled to set off claims that are undisputed or have become res judicata. The Customer may only exercise the right of retention for counter-claims based on the same delivery contract.
Rights to the Software and its additional material
1. In return for payment of the agreed licence fee, TONIK24 grants the Customer a non-exclusive and non-transferable right in accordance with clauses 11 and 12. to install and use the Software for internal purposes together with the accompanying material and the licence key. The rights are granted either (i) to software created by TONIK24 itself and/or offered under this trademark (TONIK24 Software); or (ii) to software that is not TONIK24 software (Third Party Software).
2. A TONIK24 system is the totality of software components which are technically or logically linked to each other and which, as such, are managed within an administration instance. Each TONIK24 system contains one or more end-user organisations (company, authority, association). The various TONIK24 software products and modules that can be installed on a TONIK24 system contain installation and user licences. Each of these licences is issued specifically for the end-user organisation that has purchased the software. Unless otherwise stated, the licence is valid only for members of that organisation.
3. If the customer has purchased a domain licence, the software may only be installed on this single server that resolves to this domain name. A domain licence cannot be operated on more than one server.
4. When ordering, the customer has indicated the domain on which he wants to install the software. The licence key is only valid for the domain name (www.) indicated by the customer in the order process.
5. If the customer wishes to use the software on multiple servers under multiple domain names, he must purchase an individual licence for each domain name.
6. The names and trademarks used for the software, as well as the industrial property rights and copyrights existing in the software and the accompanying material, shall remain the exclusive property of the manufacturer TONIK24 trading SL and/or its licensors, unless otherwise stipulated in these General Terms and Conditions.
7. The software and the licence key shall remain the property of TONIK24 trading SL. Furthermore, the software, the licence key and the accompanying material (user manual, data sheet, etc.) may not be modified, edited, disassembled, decompiled, reconstructed, redesigned or used in any way other than as intended.
9. The Customer may provide third parties with the latest version of the software, including accompanying material, for a limited period of time, provided that (i) this is not done by way of rental for acquisition purposes (e.g. lease, ASP service); and (ii) the third party agrees to licence terms and conditions with the Customer that are at least as restrictive as the relevant provisions of these Terms and Conditions; and (iii) the third party is willing to obtain a new licence key from TONIK24 at its expense; and (iv) the Customer transfers to the third party all copies of the Software and accompanying material, including backup copies, or destroys any untransferred copies. The Customer shall have no right to use the Software during the period in which the Software is transferred to the third party. The transfer of the delivered software to third parties for a limited period of time for acquisition purposes (e.g. leasing, ASP service) shall require the prior written consent of the manufacturer TONIK24 trading SL.
10. The rights of use of the software, accompanying material and licence key shall terminate with immediate effect if the customer exceeds his rights of use in accordance with this section or infringes the above provisions.
TONIK24 shall be liable for material defects exclusively in accordance with the following clauses.
1. The Customer shall inspect the delivered Products immediately upon receipt for completeness, conformity with the delivery documents and defects, as is customary in the trade. If no written complaint is made within 5 days from the date of the delivery note, the object of delivery shall be deemed to have been delivered correctly and in its entirety, unless it is a defect that could not be recognised in a customary inspection. If the deliverable is a computer program, the inspection shall require the installation and use of the program, unless this is not customary in the industry.
2. TONIK24 warrants that the Products are free from material defects and are suitable for the use intended in the individual Supply Agreement. If the object of delivery consists of software, TONIK24 warrants that the software does not deviate materially from the performance data and specifications of the published data sheet for the software (e.g. www.TONIK24.com or TRANSOLUTION24.com or TRASO24.com).
3. Deliveries that show a material defect within the period of limitation shall, at TONIK24's option, be repaired, replaced or supplied again free of charge, provided that the cause of the defect already existed at the time of delivery. TONIK24 shall also be entitled to fulfil its obligation of subsequent performance in the event of material defects in the Software on the part of TONIK24.
a. provide an updated version of the Software, or
b. provide remedies, provided that this is reasonable for the Customer in each individual case and the agreed performance data and quality specifications for the Software are met. If the supplementary performance fails, the Customer may terminate the contract or reduce the remuneration. In the event of termination of the contract, the Customer shall, at the request of TONIK24, destroy the original data carriers, including the accompanying written material provided.
4. Claims for material defects shall become time-barred 12 months after delivery. This shall not apply if longer periods are prescribed by law and in cases of injury to life, body or health, in the event of intentional or grossly negligent breach of duty on the part of TONIK24 and in the event of fraudulent concealment of a material defect. The statutory provisions on suspension of expiry, suspension and resumption of periods shall remain unaffected.
5. The customer shall immediately notify TONIK24 in writing of any material defects.
6. In particular, no claims for material defects shall exist in the following cases
- in the case of insignificant deviation from the agreed quality, or
- only an insignificant impairment of usability, or
- if written notification of the material defect has not been given or has been delayed, or
- if the material defect of the software material is not reproducible or cannot be indicated on the basis of the overall results by the machine, or
- if the delivery of the software is part of a service provided by TONIK24 (maintenance service), insofar as such software is essentially comparable to the software to be maintained.
7. The customer shall immediately notify TONIK24 in writing of any material defects.
8. In particular, claims for material defects shall not exist a. in case of insignificant deviation from the agreed quality, or b. only insignificant impairment of usability, or c. if the written notification of the material defect has not been made or has been delayed, or d. if the material defect of the software has not been made or has been delayed, or d. if the material defect of the software has not been made or has been delayed, or e. if the material defect of the software has not been made. if the material defect in the software is not reproducible or cannot be indicated on the basis of the results generated by the machine, or e. if the delivery of the software is part of a service provided by TONIK24 (maintenance service), insofar as such software is essentially comparable to the software to be maintained.
9. Claims for damages and reimbursement of expenses are limited to the purchase price of the respective goods or product. Further claims for damages are excluded.
Defects of title
TONIK24 shall be liable for defects of title exclusively in accordance with the following clauses.
1. TONIK24 shall deliver the Products in such a way that they can be used at the time of delivery free of industrial property rights and copyrights of third parties existing at the agreed place of delivery (hereinafter: the Property Rights).
2. To the extent reasonable for the Customer in each individual case, TONIK24 shall be entitled, in the event of an alleged infringement of the Property Rights, to provide the Customer, within a reasonable period of time, with a delivery item in exchange for the infringing delivery item which does not infringe the Property Rights and which has essentially the performance data and characteristics described in the data sheet attached to the infringing software.
3. Claims for defects of title become time-barred 12 months after delivery.
4. Any liability of TONIK24 for defects of title shall be excluded if and insofar as the infringement is not caused by the Deliverable itself, but by the application or use thereof, unless such application is expressly provided for in the accompanying written material. Any liability of TONIK24 shall be excluded if the Customer fails to notify TONIK24 in writing without undue delay after becoming aware of a possible infringement of IPR.
5. Claims for damages and reimbursement of expenses are limited to the purchase price of the respective goods or product. Further claims for damages are excluded.
Further claims for damages
1. Claims for damages and reimbursement of expenses by the customer (hereinafter referred to as claims for damages), irrespective of the legal grounds, in particular for breach of obligations arising from the delivery contract and tort, are excluded. In particular, claims for damages for loss of stored data are excluded if the damage would not have occurred in the event of a reasonable and adequate data backup.
2. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of a condition that goes to the root of the contract. However, a claim for damages for breach of essential contractual obligations shall be limited to foreseeable damage typical of the contract, unless there is intent or gross negligence or liability for injury to life, body or health. The above provisions do not imply a shift in the burden of proof to the detriment of the customer.
3. Insofar as the customer is entitled to claims for damages hereunder, these shall become time-barred upon expiry of the limitation period applicable to claims for material defects in accordance with the clause "Defects of title". In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
1. Supply contracts with the customer and their conclusion shall be governed by the laws of Spain, in particular the laws of the Canary Islands, Gran Canaria, Las Palmas. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The exclusive place of jurisdiction for disputes arising out of or in connection with these contracts is Las Palmas de Gran Canaria.
2. Should any provision of this contract be or become invalid, this shall not affect the validity of this contract, unless adherence to it would constitute an unreasonable hardship for one of the parties. The parties shall replace the invalid provision with one that comes as close as possible to the intention of the parties at the time of conclusion of the contract.
Digital content is content, such as software, video as well as audio content, e-books or apps, files, if it is provided digitally, e.g. as a download or stream (i.e. not delivered on data carriers, such as CDs or BlueRays).
The provisions of these General Terms and Conditions shall apply accordingly to the sale of digital content.
The provisions of these General Terms and Conditions shall apply mutatis mutandis to the sale of physical data carriers that serve exclusively as carriers of digital content.
The digital content is made available to the customer in the form of an option to download it.
The digital content is sent to the customer by means of an e-mail to the e-mail address provided.
The seller is entitled to subsequently adapt and change digital content, provided that this is necessary for the seller (e.g. updates of a technical nature, corrections of a linguistic nature or compelling legal reasons that make it necessary to adapt content) and is reasonable for the customer and the contractual use of the products and the contractual balance are not impaired.
For the use of the digital content, access to the Internet as well as common and usual display options that are reasonable for the customer (e.g. a browser or PDF display software) are assumed. The Seller assumes no responsibility for any impediments to accessing or retrieving Digital Content if such impediments are the responsibility of the Customer (this applies in particular to the Customer's access to the Internet).
Digital services exist if they enable the customer, the creation, processing or storage of data in digital form or access to such data or enable the sharing of data uploaded or created in digital form by the customer or other users of the relevant service or other interactions with this data.
The provisions of these General Terms and Conditions shall apply to digital services accordingly.
Sale of license keys
These General Terms and Conditions apply accordingly to the sale of license keys.
When purchasing license keys, the customer is granted the rights to use the respective product, for example software or content, which are evident from the product description.
The ordered license keys will be sent to the customer at the specified e-mail address.
Unless stated in the product description, the license key may only be used after payment of the fee.
Cancellation policy and cancellation form for consumers
A consumer within the meaning of this cancellation policy is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed.
Right of withdrawal
You have the right to cancel this contract within 14 days without giving any reason.
The revocation period is 14 days from the day on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the last goods.
To exercise your right of withdrawal, you must inform us (tonik24 trading SL, C/los Geranios, 3 --Los Patios, 35100 San Bartolomé de Tirajana (Las Palmas) Gran Canaria, Spain, e-mail address: traso [AT] tonik24.com, telephone number: +34 644807080) by means of a clear statement (e.g. a letter or e-mail sent by post) of your decision to withdraw from this contract. You can use the attached sample withdrawal form for this purpose, which is, however, not mandatory.
To comply with the withdrawal period, it is sufficient that you send the notice of exercise of the right of withdrawal before the expiry of the withdrawal period.
Consequences of the revocation
If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your revocation of 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 for this repayment.
We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us without undue delay and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days.
You shall bear the direct costs of returning the goods.
You will only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for testing the condition, properties and functioning of the goods.
Exclusion or premature expiration of the right of revocation
The right of withdrawal expires prematurely when we have started the execution of the contract (e.g. for digital products). The right of withdrawal expires with the start of the execution.
Sample cancellation form
(If you want to cancel the contract, please fill out this form and send it back).
tonik24 trading SL, C/los Geranios, 3 --Los Patios, 35100 San Bartolomé de Tirajana (Las Palmas) Gran Canaria, Spain, e-mail address: traso [AT] tonik24.com
Herewith I/we (*) revoke the contract concluded by me/us (*) for the
purchase of the following goods (*)/provision of the following service (*)
Ordered on (*) ____________ / received on (*) _________________
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only in case of paper communication)
(*) Delete where not applicable
Last updated: 03.01.2023