General Terms and Conditions
GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF PRODUCTS AND SERVICES FOR COMMERCIAL TRANSACTIONS (DOMESTIC) OF IFA TECHNOLOGY GMBH
1. SCOPE
a) All deliveries and services (uniformly 'services') of IFA Technology GmbH (hereinafter 'creator') are uniformly subject to the following printed conditions. Deviating conditions are only binding if they have been expressly recognized in writing by the creator. They only apply to companies within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law (hereinafter 'client').
b) By accepting these General Terms and Conditions without objection, the client declares his agreement to their exclusive validity for the respectively agreed service and any follow-up business. If agreements are made that deviate from these General Terms and Conditions for a specific service, the present General Terms and Conditions shall apply subordinately and supplementarily.
c) The validity of any deviating general terms and conditions of the client is hereby expressly rejected, even in the event that these are transmitted to the creator in commercial letters of confirmation or in any other way.
2. QUOTE AND ORDER
a) Quotes are subject to change and non-binding. Acceptance of the creator's offers is only possible within 60 days.
b) The type and scope of the services are determined by the written order confirmation of the creator. In the case of an offer with a time limit and its timely acceptance by the client, the offer of the creator is decisive. Verbal contracts or other verbal agreements are only binding upon written confirmation by the creator. The same applies to any verbal ancillary agreements. The creator only assumes guarantees and provides a warranty for procurement risks if these are expressly designated as such. Otherwise, these are merely descriptions of the nature of the services provided by the creator.
c) Orders must be canceled in writing. In the event of cancellation, the creator may demand the agreed remuneration - less saved expenses - and taking into account what he has acquired or maliciously failed to acquire for other use of his labor.
d) The creator reserves the rights of ownership and copyright to illustrations, drawings, calculations, software and other documents. They may not be made accessible to third parties. This applies in particular to written documents that are marked 'confidential'; the client requires the express written consent of the creator before passing them on to third parties.
3. PRICES
a) Unless otherwise agreed, all prices are strictly net plus the statutory sales tax. They apply ex warehouse or factory, including loading, but excluding packaging and unloading.
b) Payment shall be made immediately (invoice date). Other payment terms (e.g. granting of discounts) shall require the written consent of the creator. The client shall be in default of payment of the invoice amount no later than seven days after the due date of the invoice amount. In the event of default in payment, the creator shall be entitled to charge default interest at a rate of nine percentage points above the base interest rate. Furthermore, the creator charges a flat-rate default fee of EUR 40.00. This also applies if the due claim is an advance payment or other installment payment. The flat rate will be credited by the creator to any claim for damages, insofar as the damage is based on the costs of legal proceedings. If the creator is able to prove higher damages caused by default, he is entitled to claim these. However, the client is entitled to prove that the creator has incurred no or significantly lower damages as a result of the default in payment.
c) Payment by bill of exchange or check is on account of performance. Discount charges, etc. shall be borne by the client. The client may only set off any counterclaims if these counterclaims have been acknowledged by the provider in writing, are undisputed or have been legally established. The same applies with regard to any right of retention on the part of the client.
d) If the client is in default of payment or if circumstances exist that indicate a significant deterioration in his financial circumstances or creditworthiness, the provider is entitled, after a reasonable grace period has expired without result, to perform outstanding services only against advance payment or the provision of customary bank securities or to withdraw from the contract and, in the event of default in payment, to demand compensation in lieu of performance.
e) If the Contractor generally increases its prices in the period between the order and the call for services, it shall be entitled to increase the agreed prices in the same way. The statutory value added tax, which is not included in the prices, shall be shown separately on the invoice at the statutory rate on the day of invoicing.
4. DELIVERY AND SERVICES
a) Unless otherwise stated in the order confirmation, all deliveries are agreed to be 'ex works'. The delivery date is ex works outgoing. Delivery times are only approximate, unless they have been expressly confirmed as binding. Adherence to delivery times requires the fulfillment of the customer's contractual obligations as well as the clarification of all technical and commercial questions between the parties. If the client has to procure documents, approvals and releases or make a down payment, the delivery period shall not begin until these obligations have been fulfilled. A delivery period shall be deemed to have been met if the services have left the creator's premises by the time of its expiry or if the client has been notified of the readiness to perform.
b) An appropriate extension of delivery times also occurs in the case of events beyond the control of the creator, such as strikes, industrial disputes, lockouts, epidemics, pandemics and the like, regardless of whether these occur directly at the creator or at the supplier. Furthermore, compliance with the delivery period is subject to correct and timely delivery by the supplier. The contractor shall provide notification of any emerging delays as soon as possible.
c) Unless otherwise agreed, the contractor is entitled to provide partial services, provided that these are reasonable for the client. In this respect, the client is obliged to accept or approve them.
d) An installation deadline is met if, by the time of its expiry, the installation is ready for acceptance by the client, or, in the event of a contractually agreed test, for the test to be carried out. If the installation is delayed by industrial action, in particular strikes and lockouts, or by circumstances for which the contractor is not responsible or for which the client is responsible, provided that such obstacles demonstrably have a significant influence on the completion of the installation, the installation period shall be extended by a reasonable period; this shall also apply if such circumstances arise after the Contractor has fallen behind schedule. If the Client sets the Contractor a reasonable deadline for performance after the due date - taking into account the statutory exceptions - and if the deadline is not met, the Client is entitled to withdraw from the contract within the framework of the statutory provisions. Further claims due to delay are exclusively subject to Section 7.a) of these General Terms and Conditions.
5. ASSUMPTION OF RISK
a) At the latest, when the subject of performance and/or partial deliveries are sent to the client, the price risk passes to the client, regardless of whether the creator has taken on additional services, such as shipping costs. At the client's request, transport insurance can be taken out for the respective shipment at the client's expense.
b) In the absence of special instructions from the client, the packaging and the choice of transport route and means of transport shall be at the discretion of the creator. Acceptance of the goods without complaint by the railway, postal service, freight forwarders or other transport companies shall be deemed confirmation of the proper condition of the packaging at the time of dispatch and shall exclude any liability of the creator for damages or losses incurred in transit due to improper packaging or loading, unless the creator is mandatorily liable due to intent or gross negligence.
c) Notwithstanding the provision of a), the price risk shall pass to the client at the point in time of notification of readiness for delivery if the performance is delayed due to circumstances for which the client is responsible. Again, appropriate insurance can be taken out at the client's request and expense to cover this risk.
d) If an acceptance is to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, or alternatively after the creator has reported readiness for acceptance. The client may not refuse acceptance on the grounds of an insignificant defect. If the client does not accept the work within a reasonable period set by the creator, although it is obliged to do so, this shall be deemed equivalent to acceptance.
6. RETENTION OF TITLE
a) The goods supplied remain the property of the contractor until the purchase price or the cost of the work has been paid in full and until all past and future deliveries within the business relationship - including all ancillary claims - have been paid. This also applies if the price for certain deliveries of goods designated by the client has been paid.
b) In the case of a current account, the retained ownership serves as security for the balance claim of the creator.
c) The client is permitted to sell the goods in the ordinary course of business (thus not, for example, as a transfer of ownership by way of security, pledging, en bloc sale or clearance sale) and only as long as he is not in default of his contractual obligations.
d) In the event of sale, the client hereby irrevocably assigns to the creator, by way of security, the claims to which he is entitled from the sale, processing or treatment or on any other legal basis, in the amount of the value of the reserved goods, as well as a claim for surrender based on reserved ownership. Insurance claims arising from damage, loss or theft are also assigned. The creator hereby accepts the assignment.
e) In the event of the resale of reserved goods that have been processed or combined with goods that do not originate from the creator, the client's claim against the creator is assigned in the ratio of the invoice value of the processed reserved goods to the purchase price of the other processed goods. Furthermore, the creator is entitled to ownership of the new item in the ratio of the invoice value of the processed reserved goods to the purchase price of the other processed goods. The creator is considered to be the manufacturer according to § 950 BGB. Otherwise, the same applies to the new item as to the reserved goods.
f) In the event of attachments or other interventions by third parties, the client must immediately notify the creator in writing so that the latter can file a suit in accordance with § 771 ZPO. Insofar as the third party is unable to reimburse the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the client is liable for the loss incurred by the creator.
g) If the client uses the goods delivered by the creator on the basis of a contract for work and services, he hereby assigns his claim for compensation for work against his client in the amount of the still existing claim to the creator, who hereby accepts the assignment. This assignment shall also apply if the goods subject to retention of title have previously been processed or treated by the client or if they are sold to several clients.
h) In the event of default or if the conditions for premature maturity are met, the creator is entitled to revoke the authorization to collect claims and to disclose their assignment.
i) The creator undertakes to release the aforementioned securities – at its discretion – if their value sustainably exceeds the claim to be secured by 10%.
j) If the client acts in breach of contract, in particular if it defaults on payment, the manufacturer is entitled to take back the purchased item. The manufacturer is entitled to enter the respective location. The client expressly guarantees this. Taking back the goods does not constitute a withdrawal from the contract, unless this is expressly declared in writing. In the event of a return, the manufacturer may issue credit notes for the total amount of the claim in the amount of the value of the goods that has decreased in the meantime (obsolescence).
k) The manufacturer is entitled to insure the goods subject to retention of title at the customer's expense against theft, breakage, fire, water and other damage, unless the customer can prove that he has taken out such insurance himself.
l) At the request of the creator, the client must at any time provide information about the whereabouts of the reserved goods and about the claims arising from the resale or other further disposal.
7. WARRANTY AND COMPLAINT
a) Unless otherwise agreed or stated otherwise in the following provisions, the general rules of the German Civil Code shall apply to the warranty of the creator. The author warrants that the services have the expressly agreed characteristics. If no characteristics have been agreed, the service shall be deemed to be for the contractually intended or customary use, which is usual for deliveries and services of this kind and which the client can expect for deliveries and services of this kind. Furthermore, it is guaranteed that the transfer of the agreed rights to the client does not conflict with any rights of third parties. However, the creator is not liable for his public statements or those of a manufacturer other than him if and to the extent that the client cannot prove that the statement was decisive for an order decision, that the creator was not aware of the statement or did not have to be aware of it, or that the statement was justified at the time of the order decision.
Furthermore, the provider shall not be liable for insignificant defects that only slightly reduce the value or suitability of the services. This is particularly the case if an error disappears by itself or can be remedied by the client with only a small amount of effort. If the client or a third party carries out changes or commissioning work without the prior written consent of the creator, the creator shall not be held responsible for any adverse consequences arising therefrom. Likewise, no liability is assumed for unsuitable or improper use, faulty assembly or commissioning by the client or third parties. Only in urgent cases of danger to operational safety, and for disproportionately large damages, whereby the creator is to be notified immediately, or if the creator has allowed a reasonable deadline set for him to rectify the defect to elapse, does the client have the right to rectify the defect himself or have it rectified by third parties and to demand reimbursement of the necessary costs from the creator.
b) Notwithstanding the provision in letter f) of this clause, the contractor shall be liable for defects in the service in such a way that the service, at his discretion, is rectified or replaced, which, within twelve months of delivery or acceptance, proves to be significantly impaired in its usability as a result of a circumstance that can be proven to have occurred prior to the transfer of risk.
c) The client must inspect the received goods for defects immediately upon arrival. The client must note recognizable defects in the performance, incorrect or incomplete delivery, deviations in quantity or dimensions, as well as transport and packaging damage on the consignment note or delivery note immediately upon arrival of the performance. The client shall submit complaints in writing without delay, but no later than within three days. The period shall commence upon delivery of the goods. Intended commissioning shall be deemed equivalent to acceptance. If the client fails to give notice of a defect in due time, the goods shall be deemed free of defects and approved in accordance with the contract, unless the defect is one that could not be detected during a proper inspection. If such a defect becomes apparent at a later date, the complaint must be made immediately after discovery, otherwise the goods shall be deemed to have been approved even in view of this defect.
This also applies to defects that occur within the warranty period of 12 months. If the client does not report such a defect in time, the warranty for this defect not reported in time shall no longer apply.
The client shall give the contractor a reasonable opportunity to examine the complaint with regard to its justification. The client shall be liable to the contractor for all disadvantages caused by the non-fulfilment of this obligation. The author undertakes to support the client in troubleshooting. The client shall bear the costs incurred in this connection, unless the error can be shown to be attributable to the author. The corresponding services shall be remunerated separately in accordance with the currently valid list of prices and conditions. Negotiations regarding complaints do not constitute a waiver by the author of the objection that the notification of defects was not made in due time or in the required form.
d) A rectification of defects is successful if the defect has been remedied or if the provider has demonstrated reasonable possibilities for minimizing the effects of the defect and thus limiting them to a level compatible with the intended use. The client shall give the contractor the necessary time and opportunity to carry out all replacement deliveries and rectifications that appear necessary; otherwise, the contractor shall be released from liability for the resulting consequences. Of the costs arising from the rectification or replacement delivery, the creator shall bear the costs of the replacement item, excluding shipping, dismantling and installation costs, as well as the costs of any necessary provision of fitters, in the event that the complaint proves to be justified. Claims for damages and reimbursement of expenses shall remain unaffected by this, unless they are excluded in accordance with clause 8 of this agreement.
e) All claims of the client due to defects shall become time-barred in all cases within twelve months from the date of delivery of the delivery item or – if contractually agreed or required by law – from the date of acceptance. This shall not affect the limitation period for claims under the Product Liability Act and for defects in a building or building materials, as well as for defects that lead to injury to body, life or health, and for such defects whose existence the manufacturer has fraudulently concealed or whose absence he has guaranteed.
f) If a rectification of defects ultimately fails, the client may, at his discretion and in accordance with the statutory provisions, withdraw from the contract, reduce the remuneration or terminate an existing continuing obligation. Any warranty claims to which the client may be entitled shall become time-barred twelve months after the commencement of the statutory warranty period in accordance with § 438 paragraph 2 BGB.
g) Further contractual and non-contractual claims by the client are excluded, notwithstanding the provision of Section 8 of these General Terms and Conditions.
h) If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the client shall in any case grant the contractor the opportunity to procure the right to further use for the client at his own expense or to modify the delivery item in a manner reasonable for the client such that the infringement of property rights no longer exists.
Only if this is not possible under economically reasonable conditions or within a reasonable period of time, is the client entitled to withdraw from the contract. Under the aforementioned conditions, the creator also has the right to withdraw from the contract.
In addition, the creator can release the client from undisputed or legally established claims of the relevant property right holders if he decides to rectify the defect.
The obligations of the provider mentioned in Section 7 of these General Terms and Conditions are final, subject to the provisions of Section 8, in the event of an infringement of property rights or copyrights.
They only exist if
- the client immediately notifies the provider of any asserted property right or copyright infringement,
the client supports the creator to a reasonable extent in defending against the asserted claims or enables the creator to carry out the modification measures in accordance with letter h,
the creator reserves the right to take all defensive measures, including out-of-court settlements,
the defect of title is not based on an instruction of the client and
- the infringement was not caused by the fact that the client has modified the delivery item on his own authority or has used it in a manner not in accordance with the contract.
In addition, the client and the creator enter into the mutual obligation not to infringe the rights of third parties, in particular patents, utility models, trademarks and other property rights and copyrights. The manufacturer guarantees that the sold device is free of defects. The client, for his part, guarantees that any means provided are free of third-party rights and do not interfere with their property rights. The client further undertakes to use the ordered goods only for the contractually agreed purpose. Any use in violation of the contract that goes beyond this shall result in the complete exclusion of any claims by the client against the manufacturer. The creator assumes no liability with regard to the property rights of third parties and, in addition, for such products, aids and other items that the client uses to operate the product and that are not part of the contract. The client assures that he will inform himself about any conflicting rights of third parties on his own responsibility.
If the purchased item or the work performance is provided according to a special design requested by the client, the client is responsible if the rights of third parties are violated by this special design. In this respect, the client indemnifies the creator from all claims of the rights holders.
8. COMPLIANCE WITH EXPORT CONTROL REGULATIONS
8.1 When passing on the goods delivered by the Contractor or the work and services provided by the Contractor (including technical support of any kind) to third parties, the Client shall comply with the applicable provisions of national and international (re-)export control law. In any case, when passing on such goods, work and services to third parties, the Client shall observe the (re-)export control regulations of the Federal Republic of Germany and the European Union.
8.2 Before passing on the goods delivered by the producer or the work and services provided by the producer to third parties, the client shall in particular check and ensure by means of suitable measures that
- he does not violate an embargo of the European Union and/or the United Nations by such a transfer to third parties, by brokering contracts for such goods, work and services or by providing other economic resources in connection with such goods, work and services - also taking into account any restrictions on domestic business and any prohibitions on circumvention;
such goods, work and services are not intended for use in armaments, nuclear technology or weapons, which is subject to prohibition or authorization, unless any required authorizations are available;
the regulations of all relevant European Union sanction lists regarding business transactions with companies, persons or organizations named therein are complied with.
8.3 If required for the purpose of export control checks by authorities or by the Provider, the Client shall, upon request, immediately provide the Provider with all information regarding the end customer, the end use and the intended use of the goods delivered by the Provider or the work and services provided by the Provider, as well as any applicable export control restrictions in this regard.
8.4 The client shall fully indemnify the contractor against all claims asserted by authorities or other third parties against the contractor due to the client's failure to comply with the above obligations under export control law, and the client shall be obliged to compensate the contractor for all damages and expenses incurred by the contractor in this connection. The provider is not obliged to fulfill this contract if the fulfillment is prevented by obstacles arising from national or international foreign trade or customs regulations or embargoes or other sanctions.
9. LIABILITY
a) Claims for damages arising from the contract, quasi-contractual relationships and from unlawful acts, which are based on the conduct of employees, agents or vicarious agents of the creator, are only given to the following extent:
- in the case of intent, in full;
- in the event of gross negligence and in the absence of a characteristic for which the creator has assumed a guarantee, only to the extent of the foreseeable and contractually typical damage that the violated obligation or guarantee was intended to prevent;
in other cases of negligence, only for breach of a material obligation (contractual obligations whose fulfillment is essential to the proper performance of the contract and on whose fulfillment the contractual partner may regularly rely), if this endangers the purpose of the contract, but always limited in amount to the damages foreseeable at the time of conclusion of the contract and typical for this type of contract, but not exceeding the amount of the respective order total;
The Contractor shall only be liable for indirect consequential damage caused by a defect and for damage that was not foreseeable at the time of the conclusion of the contract if there is gross negligence on the part of the Contractor or a senior employee of the Contractor.
- beyond that, insofar as the creator is insured against the damages that occur, within the scope of the insurance cover and subject to the insurance payment. If the client desires further insurance protection, the parties reserve the right to an individual agreement.
b) The limitation of liability according to letter a) of this provision does not apply to liability for injuries to body, life and health and to liability under the Product Liability Act.
c) The provider reserves the right to reduce the claim for damages by the contributory negligence of the client (§ 254 BGB).
d) The limitation period for all claims against the provider for damages or reimbursement of wasted expenses in the event of contractual and non-contractual liability is one year. This does not apply to intentional behavior or in the event of injury to body, life and health. The statutory provisions shall apply with regard to the commencement and duration of the limitation period.
e) If the client is unable to use the delivery item in accordance with the contract due to the fault of the creator as a result of omitted or faulty execution of suggestions and advice given before or after the conclusion of the contract, as well as other contractual secondary obligations, the provisions of sections 7 and 8 shall apply to the exclusion of further claims by the client.
f) Any further liability for damages than that specified in the above paragraphs a) to c) is excluded, regardless of the legal nature of the claim asserted.
10. GENERAL
a) The place of performance and jurisdiction for all obligations and disputes arising from the contractual relationship is 88641 Rain am Lech/Germany. However, the creator is entitled, at his discretion, to take legal action against the client at the client's place of business.
b) The law of the Federal Republic of Germany applies exclusively to all contractual agreements and to the entire legal relationship between the creator and the client. UN sales law is not applicable.
c) Should any individual provisions be modified or become invalid, the validity of the remaining provisions shall not be affected. In the event of the invalidity of a provision, the client is obliged to agree with the creator on a valid provision that comes as close as possible to the invalid provision in a legally permissible manner.