TERMS OF DELIVERY, PAYMENT AND SOFTWARE USE
All deliveries and services of IFC – this also includes the provision of software – are exclusively subject to the following terms of delivery and payment. Any deviating terms and conditions of purchase of the customer are hereby expressly rejected. They shall only be binding on us if we have accepted them in writing. By placing the order and accepting the goods delivered by us, the customer confirms his agreement with our terms and conditions.
2 OFFER AND DELIVERY
Our offers are always subject to change, unless they are limited in time; our written order confirmations are decisive for the scope of delivery. Purchase orders and orders are accepted when the order confirmation is available; in the case of components, this is deemed to have been issued in good time if it is issued at the same time as invoicing and delivery. In the case of quotations with a time commitment and a specific acceptance period, the quotation shall be authoritative if no timely order confirmation is received. Ancillary agreements and changes must be confirmed by us in writing.
We reserve the right to make changes in design and weight in the interests of technical progress. Obvious errors, misprints, miscalculations, typographical errors and calculation errors shall not be binding on us and shall not give rise to any claim for performance or damages. Drawings and documents enclosed with the offer are for the personal use of the recipient only and may not be reproduced or made available to third parties without our express permission.
3 PRICE AND PAYMENT
Prices are ex IFC works warehouse Oedheim. The prices do not include the statutory value added tax. The costs of dispatch and packaging shall be borne by the customer. If the basis of calculation changes, we reserve the right to adjust prices. In the event that the delivery date is exceeded, we reserve the right to claim damages for delay in the amount of the bank credit claimed by us, but at least the statutory interest on arrears.
Assembly costs, repair costs, costs for product information and seminar fees are payable net immediately. Withholding of payments or offsetting on account of any counterclaims is only permissible with recognised or legally established counterclaims of the purchaser.
4 DELIVERY TIME
The delivery period shall commence on the date of the order confirmation. However, this shall only apply if all technical and commercial details have been clarified at that time. The delivery period shall be deemed to have been complied with if, before its expiry, the delivery item has left the factory or the customer has been notified that it is ready for dispatch. The delivery period shall be extended appropriately in the event of hindrances due to force majeure. This also includes strikes and lockouts. This shall also apply if unforeseen obstacles and circumstances have occurred at sub-suppliers.
Compliance with the delivery period is subject to the fulfilment of the contractual obligations of the purchaser. If dispatch is delayed at the request of the customer, we are entitled to dispose of the delivery item elsewhere after a reasonable period, to supply the customer with a correspondingly extended period and to charge for any storage costs incurred.
5 TRANSFER OF RISK AND ACCEPTANCE
Even in the case of partial deliveries, the risk shall pass to the customer upon dispatch. This shall also apply if we have assumed delivery and installation. If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for shipment.
At the request of the purchaser, we shall take out insurance for the consignment against theft, breakage, transport, fire and water damage as well as against other insurable risks at the purchaser’s expense. Partial deliveries are not permitted.
6 RESERVATION OF TITLE
The delivered goods shall remain our property until full payment of all present and future claims arising from the business relationship with the customer, irrespective of the legal grounds. The assertion of our rights of retention of title is not to be regarded as a withdrawal from the contract. Rather, in addition to the claim to surrender of our property, our rights from the purchase contract, in particular to compensation for damages and lost profit, shall remain with us.
The customer is revocably entitled to resell the delivered goods in the ordinary course of business. The customer hereby assigns to us all claims to which he is entitled from the resale, including ancillary rights, in the amount of the value of the goods subject to retention of title.
The assigned claims serve as security for all claims according to para. 1.
At our request, the customer shall be obliged to notify third parties of the assignment for the purpose of payment to us and to provide us with the information and hand over the documents necessary to assert our rights. The customer is permitted to process, transform and combine the goods subject to retention of title with other objects. The processing or transformation shall be carried out for us. We shall become the direct owner of the goods subject to retention of title resulting from the processing or transformation.
IFC Intelligent Feeding Components GmbH Paul-Böhringer-Str. 8 74229 Oedheim Tel.: +497136/96395-0 in proportion to the value of the delivery. The processed or transformed item shall be deemed to be goods subject to retention of title. In the event of processing, transformation or combination with other items not belonging to us, we shall be entitled to a leasehold title to the new item in the amount of the share resulting from the ratio of the value of the processed, transformed or combined goods subject to retention of title to the value of the new item. The share of the claim assigned to us has priority over the other claims.
If our goods subject to retention of title are combined by the purchaser with real estate or movable property, the purchaser shall also assign to us by way of security its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, without any further special declarations being required. The preceding paragraph shall apply accordingly to the amount of the assigned claim.
We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%. The customer is not authorised to dispose of the goods subject to retention of title other than the aforementioned, in particular not to pledge or assign them as security. He must inform us immediately of any impairment of the rights to the items to which we retain title.
If the customer is in default with his payment obligation towards us or if he violates one of the obligations resulting from the agreed retention of title, the entire remaining debt shall become due immediately. In these cases, we are entitled to demand the return of the goods and to collect them from the customer. The customer has no right of possession.
7 IFC SOFTWARE
The customer receives a non-exclusive, non-transferable right to use IFC software of any kind and the associated documentation on a specific hardware product or on a hardware product to be determined in the individual case, in return for payment. IFC remains the owner of the copyright as well as all other industrial property rights. The right to make copies is given only for the purpose of data backup. Copyright notices may not be removed.
The transfer to third parties requires our consent. If software is transferred for the purpose of resale, the acceptance of these conditions by the third party must be ensured. Modifications are not permitted. In the event of a breach of these terms and conditions, the customer shall pay a contractual penalty amounting to 10 times the order value. This contractual penalty shall not be offset against any claim for damages. The software and the associated documentation shall be returned immediately upon request.
The above provisions shall not apply to application programs developed exclusively on a customer-specific basis on the basis of specifications provided by the customer. IFC shall transfer to the Purchaser the non-exclusive, spatially and temporally unlimited right of use/exploitation and reproduction of such software programs upon full payment of the purchase price. IFC retains a simple right of use for internal purposes.
Before transferring the software for test purposes or for commissioning the system, all necessary preparatory work by the Purchaser must be completed. Delays resulting from this and all costs associated with this shall be borne by the customer.
We shall be liable for defects in our deliveries and services, including the absence of warranted characteristics, as follows: All parts or services which become unusable or whose usability is considerably impaired within 12 months after the transfer of risk in single-shift operation due to a circumstance occurring before the transfer of risk, in particular due to faulty design, poor material or defective workmanship, shall be repaired or provided again by us free of charge.The warranty period for the repaired item or the replacement item or the newly provided service shall be 3 months. However, it shall run at least until the expiry of the original warranty period. The period of liability for the delivery item shall be extended by the duration of the interruption of operations caused by the rectification work. If the complaint is justified, we shall bear the costs of the replacement part, the shipping and the necessary dismantling and installation costs to the extent that these are incurred or would have been incurred at the place of the customer’s residential or commercial headquarters in the Federal Republic of Germany, up to a maximum of the value of the part complained about. The purchaser shall provide the time and opportunity required for rectification or replacement delivery. Only in urgent cases of danger to operational safety and the prevention of major damage shall the customer have the right, with our prior consent, to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary costs from us. The same shall also apply in the event that we are in default with the rectification of the defect. The purchaser shall only be entitled to rescission or reduction if the rectification or replacement delivery was not made in time after a reminder or has definitively failed.
Further claims of the purchaser, in particular a claim for compensation for damage that has not occurred to the delivery item itself, are excluded. For third-party products, our warranty is limited to the assignment of the corresponding claims to which we are entitled against the supplier of the third-party product, as long as and insofar as warranty claims against our supplier still exist. Furthermore, we do not assume any warranty for damage caused by the following reasons: unsuitable and improper use or storage, faulty assembly by the purchaser or third parties, unauthorised repair attempts and modifications, natural wear and tear, faulty or negligent handling, chemical influences, electrical influences, etc., over which we have no control, as well as in the case of improper use and non-compliance with our operating instructions and data sheets.
The above limitations of liability shall apply mutatis mutandis to advice or suggestions as well as any claims of the customer arising from the breach of ancillary contractual obligations.
IFC Intelligent Feeding Components GmbH Paul-Böhringer-Str.8 74229 Oedheim Tel.: +497136/96395-0We provide the following warranty for software products: IFC software is properly duplicated. IFC software is executable on hardware products specified by IFC. The warranty shall be fulfilled by replacement delivery. If this finally fails after several attempts despite the setting of an appropriate deadline, the customer shall have the right to rescission or reduction. In all other respects, no warranty is given for the faultlessness of the software and its data structure, unless otherwise agreed in writing.
9 IMPOSSIBILITY, DEFAULT, ADJUSTMENT OF THE CONTRACT
The customer may withdraw from the contract if the entire performance is impossible for us before the transfer of risk. The customer shall also be entitled to withdraw from the contract if, in the case of an order for similar items, it becomes impossible to execute part of the delivery and the customer has a justified interest in refusing a partial delivery. If this is not the case, the customer may reduce the consideration accordingly.
If we are in default of performance within the meaning of clause 4 and the customer grants us a reasonable period of grace which is not complied with, the customer shall be entitled to rescind the contract. If a delay in acceptance occurs through the fault of the purchaser, he shall remain obliged to counter-performance. If the purchaser suffers damage due to a delay for which we are responsible, the purchaser shall be entitled to claim compensation for the delay. This compensation shall amount to 0.5% for each full week of delay to the exclusion of any further claims, but not more than 5% of the value of the part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
This limitation of liability shall not apply if the customer proves gross negligence or intent on our part. In the event of unforeseen events within the meaning of clause 4, insofar as they change the economic significance or the content of the performance or have an effect on our operations and in the event that it subsequently proves impossible to perform, the contract shall be adjusted accordingly. Insofar as this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part.
10 Claims for damages
Claims for damages by the purchaser arising from positive breach of contract, from breach of obligations during contract negotiations and from tort are excluded, except in cases of intent and gross negligence, as well as in cases in which liability is mandatory under the Product Liability Act for personal injury and property damage to privately used objects in the event of a product defect.
In the case of designs or manufacture according to mandatory specifications of the customer, the latter shall indemnify us against any claims of third parties arising from patent rights or the like. For third-party products, our liability shall be limited to the assignment of the claims to which we are entitled against the supplier of the third-party product, insofar as no further-reaching liability arises from the Product Liability Act from the point of view of manufacturer’s liability.
11 Place of Jurisdiction
For all disputes arising from the contractual relationship, if the customer is a registered merchant, a legal entity under public law or a special fund under public law, or has its residence or business headquarters outside the Federal Republic of Germany, the court of our business headquarters in Heilbronn shall have jurisdiction. However, we shall also be entitled to bring an action at the customer’s/buyer’s principal place of business.
12 Applicable Law
The contractual relationship between us and the customer / purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of all bilateral and / or multilateral agreements concerning the purchase of movable goods, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
13 Other provisions
Should individual parts of these terms and conditions be or become invalid, the remaining terms and conditions and the contract in its other existence shall not be affected. Should any provision of these Terms and Conditions or of the contract be invalid with regard to mandatory foreign law, the Supplier undertakes, upon request, to agree with us on such amendments to the contract and to make such declarations to third parties or authorities as will ensure the validity of the provision concerned and, if this is not possible, its economic content even under foreign law.
IFC Intelligent Feeding Components GmbH
Tel.: +49 7136 / 96395-0