General Terms and Conditions

General Terms and Conditions of Sale and Delivery of TOPREGAL US Corp.


§ 1 General

1. All deliveries, sales and offers of goods and services by Topregal US Corp. (hereinafter: "we, "us" or "TOPREGAL") to a customer ("Buyer") are made exclusively on the basis of these General Terms and Conditions of Sale and Delivery ("GTC"). Our GTC shall also apply to all future business relations with the Buyer, even if they are not expressly agreed again.
2. By placing an order for goods or services with TOPREGAL, you hereby accept these GTC.
3. We hereby reject any general terms and conditions of the Buyer that contradict or supplement our GTC. Our GTC shall also apply if we carry out the delivery or performance without reservation in the knowledge that the Buyer's terms and conditions contradict or deviate from our GTC.
4. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of our goods and services, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these GTC.

§2 Offer and conclusion of contract

Our offers, quotes and quotations are subject to change and non-binding. If we wish to deviate from this principle of non-bindingness in an offer, we shall expressly designate our offer as binding. Any order placed by the Buyer shall be deemed to be a binding offer to TOPREGAL and shall be subject to our acceptance, in our sole discretion. All orders require our written acceptance, which can also be made by e-mail, or implied acceptance by delivery of the goods or performance of the services. Our written acceptance, or if acceptance was implied pursuant to the foregoing sentence, our offer, quote and quotation, and our invoice (collectively, the "Sales Confirmation") and these GTC (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, Buyer's terms and conditions of purchase, negotiations, representations and warranties, and communications, both written and oral.

§ 3 Prices, payment, offsetting restrictions

1. The Buyer shall purchase goods and services from Seller at the prices and shipping costs, if any, set forth in our Sales Confirmation or, if silent, our published price list in force as of the date of the Sales Confirmation.
2. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind. The Buyer shall be responsible for all such charges, costs and taxes.
3. Unless expressly set forth otherwise in the Agreement, Seller shall make delivery in accordance with the terms and conditions, and at the location designated on the face of the Sales Confirmation or the Delivery Note (our warehouse or such location, as the case may be, the "Delivery Point").
4. Unless expressly set forth otherwise in the Agreement, the purchase price and the fees for services shall be due prior to performance of the services and shall be in addition to any reasonable travel and out-of-pocket expenses incurred by TOPREGAL in connection with the performance of the services.
5. Unless expressly set forth otherwise in the Agreement, the Buyer shall pay all invoiced amounts due to TOPREGAL on receipt of TOPREGAL's invoice. Buyer shall make all payments in US dollars.
6. The Buyer may not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with TOPREGAL, whether relating to TOPREGAL‘s breach, bankruptcy or otherwise.
7. In addition to all other remedies available under these GTC or at law (which TOPREGAL does not waive by the exercise of any rights hereunder), TOPREGAL shall be entitled to suspend the delivery of any goods or performance of any services if the Buyer fails to pay any amounts when due hereunder. The Buyer shall reimburse TOPREGAL for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

§ 4 Delivery Time

1. The goods ordered will be delivered within a reasonable time of TOPREGAL’s acceptance of an order pursuant to § 2. References to delivery dates in the Agreement shall be estimates only. Seller shall not be liable for any delays, loss, or damage in transit.
2. We may, in our sole discretion, without liability or penalty, make partial shipments of the goods ordered. Each shipment will constitute a separate sale, and the Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Buyer's order.
3. We will use reasonable efforts to meet any performance dates to render the services specified in the Sales Confirmation, and any such dates shall be estimates only. The Buyer shall (i) cooperate with TOPREGAL in all matters relating to the services and provide such access to its premises as may reasonably be requested by TOPREGAL, for the purposes of performing the services; (ii) respond promptly to any TOPREGAL request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for TOPREGAL to perform services in accordance with the requirements of this Agreement; (iii) provide complete and accurate materials or information as TOPREGAL may request to carry out the services in a timely manner; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the services before the date on which the services are to start.
4. Deadlines and dates shall be extended by the period during which the Buyer fails to fulfil its obligations towards TOPREGAL, without prejudice to further statutory rights of TOPREGAL.
5. In addition to any other remedy contemplated in this Agreement or at law, if the Buyer fails to take delivery or otherwise violates the terms of the Agreement, including failure to cooperate, we shall be entitled to compensation for all damages and costs incurred by us, and the Buyer will indemnify and hold harmless TOPREGAL, for any damages resulting from such failure or violation, including any additional expenses. Further claims or rights remain reserved.

§ 5 Delivery, transfer of risk, unloading

1. Delivery and the transfer of risk of loss or damage to the Buyer shall take place when the goods are made available at the Delivery Point pursuant to § 3.3 above.
2. The compliance with our delivery obligation is conditioned upon the timely and proper fulfilment of the customer's obligation.
3. The Buyer shall take delivery of the goods on the date set forth in our written notice that the goods have been delivered (or made available for delivery) in accordance with § 3.
4. If for any reason the Buyer fails to accept delivery of any of the goods on the date such goods are delivered by TOPREGAL, or if TOPREGAL is unable to deliver the goods because the Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the goods shall pass to the Buyer; (ii) the goods shall be deemed to have been delivered; and (iii) TOPREGAL shall be entitled to retain at least 25% of the purchase price for the goods to cover shipping costs; (iv) TOPREGAL, at its option, may store the goods until the Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. The Buyer shall be responsible for all loading and unloading costs. The Buyer is obliged to have the appropriate loading and unloading equipment and personnel ready between 8 a.m. and 6 p.m. on the delivery date. To unload the goods, a dock is required if not otherwise selected or specified in the applicable order. In case of doubt, the information required for this must be requested from us by the Buyer when executing the order.
   If delays occur in the loading or unloading of goods and we are charged additional costs or expenses as a result, these additional costs and expenses shall be reimbursed by the Buyer.

§ 6 Title; Security Interest

1. Title to the goods shall transfer to the Buyer upon delivery of the goods at the Delivery Point in accordance with § 5.1.
2. As collateral security for the payment of the price of the goods, Buyer hereby grants to TOPREGAL a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under any goods sold by TOPREGAL to Buyer, for which title has transferred to Buyer, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
3. In the event the goods subject to a security interest are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing.

§ 7 Inspection and Rejection of Nonconforming Goods

1. The Buyer shall inspect the goods upon receipt and will be deemed to have accepted the goods unless it notifies TOPREGAL in writing that the products shipped are different than the goods identified in Sales Confirmation ("Nonconforming Goods") within 7 days of delivery and furnishes the order number, the serial number, the date of purchase and an exact description and photos of the Nonconforming Goods.
2. If the Buyer timely notifies TOPREGAL of any Nonconforming Goods, TOPREGAL shall, in its sole discretion,
   (i) replace such Nonconforming Goods with conforming goods, or
   (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by the Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to TOPREGAL.
3. If the Buyer timely notifies TOPREGAL of any Nonconforming Goods, TOPREGAL shall, in its sole discretion,
   (i) replace such Nonconforming Goods with conforming goods, or
   (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by the Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to TOPREGAL.

§ 8 Assembly, assembly instructions

1. Unless expressly set forth otherwise in the Agreement, goods that require assembly shall be delivered to the Buyer in an unassembled state. The Buyer shall bear sole responsibility for the selection of a suitable location (in particular for checking the condition of the ground), for the proper assembly and operation of the delivered goods, including compliance with the relevant legal provisions and safety regulations at the location, and for carrying out testing and inspection work.
2. The Buyer shall receive from us, together with the goods, the assembly instructions and guidelines. The Buyer shall observe all guidelines, assembly instructions, safety warnings and other materials provided by TOPREGAL (collectively, the "TOPREGAL Guidelines"), including information signs attached to the goods or the packaging. If goods are delivered with missing or incomplete TOPREGAL Guidelines, Buyer shall promptly notify TOPREGAL and TOPREGAL shall deliver such missing Guidelines as soon as possible. Buyer shall not assemble any goods prior to receiving the assembly instructions or use the goods prior to receiving the TOPREGAL Guidelines for use of such goods. TOPREGAL shall not be liable for any damages resulting from Buyer’s assembly or use of goods prior to its receipt of the applicable TOPREGAL Guidelines.
3. The TOPREGAL Guidelines correspond to the latest status of our technical tests and experience. They are general notes/guidelines which do not release the Buyer from his own duty of inspection. In the unlikely event that local requirements go beyond and contain stricter guidelines than the TOPREGAL Guidelines, the local requirements take precedence and must be observed by the Buyer in any case.
4. Unless TOPREGAL performs the assembly work, TOPREGAL shall not be liable under the Agreement for any damages resulting from the Buyer's failure to comply with its obligations under § 8, including any failure to comply with the TOPREGAL Guidelines.

§ 9 Limited Warranty

1. TOPREGAL warrants to Buyer that for a period of 12 months from the date of shipment of the goods set forth in the Sales Confirmation ("Warranty Period"), that such goods will materially conform to the specifications set forth in the Sales Confirmation or, if none are referred to in the Sales Confirmation, such good‘s technical data sheet subject to deviations customary in the industry.
2. TOPREGAL warrants to Buyer that it shall perform any services set forth in the Sales Confirmation in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
3. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS § 9, TOPREGAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
4. The Buyer shall notify TOPREGAL of any defect in writing including at least the product name, order number, serial number, date of purchase and an accurate description and photos and videos of the defect.
5. TOPREGAL shall not be liable for a breach of the limited warranty set forth in § 9 if:
   (i) Buyer makes any further use of such goods after giving such notice;
   (ii) the defect can be considered wear and tear;
   (iii) the defect arises because Buyer failed to follow TOPREGAL's oral or written instructions as to the storage, assembly, installation, commissioning, inspection, use or maintenance of the goods, including any TOPREGAL Guidelines; or
   (iv) Buyer alters or repairs such Goods without the prior written consent of TOPREGAL.
6. Subject to the terms of this § 9, with respect to any such goods that fail to comply with the warranties set forth in this § 9, during the Warranty Period, TOPREGAL shall, in its sole discretion, either:
   (i) repair or replace such goods or
   (ii) credit or refund the price of such goods at the pro rata contract rate provided that, if TOPREGAL so requests, Buyer shall, at TOPREGAL's expense, return such goods to TOPREGAL.
7. Subject to the terms of this § 9, with respect to any such services that fail to comply with the warranties set forth in this § 9, TOPREGAL shall, in its sole discretion,
   (i) repair or re-perform the applicable services or
   (ii) credit or refund the price of such services at the pro rata contract rate.
8. The Buyer shall grant us the possibility of at least two attempts to repair, replace or re-perform, as applicable the goods or services, which shall be subject to the warranties in this § 9.
9. THE REMEDIES SET FORTH IN THIS § 9 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND TOPREGAL'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN § 9
10. Any goods which must be returned to TOPREGAL pursuant to this § 9 must be returned by the Buyer in the original or equivalent packaging for inspection. The Buyer is obliged to pack the goods to be sent securely against any transport damage and to document any previous damage. The Buyer shall be responsible for the proper return of the goods, at its sole cost and expense. The transfer of risk from the Buyer to us takes place upon receipt of the goods in our warehouse.

§ 10 Limitation of Liability

1. IN NO EVENT SHALL TOPREGAL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA OR VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TOPREGAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL TOPREGAL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TOPREGAL FOR THE GOODS AND SERVICES SOLD HEREUNDER.

§ 11 Force Majeure

We shall not be liable or responsible, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond our control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"):
(a) acts of God;
(b) flood, fire, earthquake, storm or explosion;
(c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
(d) government order, law, or actions;
(e) embargoes or blockades in effect on or after the date of this Agreement;
(f) national or regional emergency;
(g) strikes, labor stoppages or slowdowns, or other industrial disturbances or disputes;
(h) epidemics or pandemics;
(i) shortage of adequate materials, power or transportation; and
(j) other events beyond our control, irrespective of whether these Force Majeure Events affect our suppliers or subcontractors.

We shall give notice within a reasonable period of the Force Majeure Event and will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that the Force Majeure Event and failure or delay remains in place for a period of 60 days following written notice given by it under this § 11, either party may thereafter terminate this Agreement upon no less than 30 days' written notice.

§ 12 Covid 19 Clause

The Parties are aware of the impact of the Covid-19 disease ("Covid-19"), which was classified as a pandemic by the World Health Organization on 11 March 2020. Therefore, the parties agree that in the event that TOPREGAL is unable or temporarily unable to deliver the ordered goods due to one or more of the following events related to Covid-19, TOPREGAL's obligations shall be suspended for the duration and to the extent of the impact of the relevant event: a.the business operations at the relevant location of TOPREGAL or the business operations at the relevant location of the supplier of TOPREGAL are temporarily suspended in whole or in part due to a governmental and/or regulatory order or due to the laws or regulations in force at the relevant location at that time; or b.a significant number of TOPREGAL employees at the site or of employees of the supplier at its affected site or of employees of the assembly team have contracted Covid-19 or are in quarantine in accordance with the laws or regulations applicable at the site. Any of the foregoing shall be deemed a Force Majeure Event and the terms of § 11 shall apply to these accordingly.

§ 13 Supplementary Terms and Conditions for Orders via the Online Shop 

1. Our offers in our online shop represent a non-binding invitation to the Buyer to order from us. The ordering process consists of three input steps. In the third and final input step, the Buyer has the opportunity to check and, if necessary, correct his or her information. By clicking the "Buy" button, the Buyer submits a binding purchase offer to us and agrees to the terms and conditions of these GTC. We reserve the right to accept or reject it. After the order has been placed, the Buyer will receive an automatically generated e-mail from us confirming receipt of the order. This confirmation of receipt does not constitute our acceptance nor is it considered the Sales Confirmation. Your offer shall only be deemed accepted if we send you a pro-forma invoice (advance payment) or if we hand over the ordered goods to the dispatch department together with information by e-mail to the Buyer. The foregoing will constitute a Sales Confirmation for purposes of this Agreement.
2. Unless otherwise agreed, we accept prepayment, PayPal, EC and credit card payment, payment on collection, iDeal, Klarna and immediate bank transfer for orders in the online shop. In the case of a bank transfer, the goods will only be delivered to the Buyer after they have been credited to our account.

§ 14 Termination

In addition to any remedies that may be provided under these GTC, TOPREGAL may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:
(a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of these GTC, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

§15 Miscellaneous

1. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
2. No waiver by TOPREGAL of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by TOPREGAL. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
3. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TOPREGAL. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
4. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
5. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these GTC.
6. These GTC may only be amended or modified in a writing stating specifically that it amends these GTC and is signed by an authorized representative of each party.
7. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
8. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Status: July 2023