TÉRMINOS Y CONDICIONES GENERALES DE LA EMPRESA I-H&S GMBH
§ 1 General, scope of application
§ 2 Establishment of the contractual relationship
§ 3 Content of the contract, scope of services
§ 4 Software
§ 5 Assembly
§ 6 Machine maintenance
§ 7 Machine relocation
§ 8 Delivery period and delay, performance period and delay
§ 9 Delivery, partial delivery, transfer of risk, acceptance, default of acceptance
§ 10 Prices and terms of payment, set-off and retention, price increase
§ 11 Retention of title
§ 12 Claims for defects of the Customer
§ 13 Other liability
§ 14 Limitation
§ 15 Confidentiality and data protection
§ 16 Force majeure
§ 17 Choice of law and place of jurisdiction; reservation of transfer; final provisions
§ 1 GENERAL, SCOPE OF APPLICATION
(1) These General Terms and Conditions (GTC) apply to all business relationships between I-H&S GmbH (“I-H&S”) and its customers and other contractual partners (“Customer/s”). The GTC only apply if the Customer or contractual partner is an entrepreneur (§ 14 BGB [German Civil Code] or a legal entity.
(2) The GTC apply to contracts for the purchase and sale and/or delivery of new and used movable goods (“Goods”) and related services (e.g. assembly, maintenance, repair, removal) as described in these GTC. The GTC apply regardless of whether I-H&S manufactures the goods itself or purchases them from suppliers (§s 433, 650 BGB). Unless otherwise agreed, the GTC shall apply in the version valid at the time of the order/contract or in any case in the version last notified to the Customer or contractual partner in text form. They shall also apply as a framework agreement for similar future contracts without I-H&S having to refer to them again in each individual case.
(3) These GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Customer or contractual partner shall only become part of the contract if and to the extent that I-H&S has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if I-H&S carries out deliveries or services without reservation in the knowledge of the Customer’s or contractual partner’s terms and conditions.
(4) Individual agreements made in individual cases (including ancillary agreements, supplements and amendments) take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation from I-H&S shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to I-H&S after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of withdrawal, reduction) must be made in writing to be effective.
(6) References to the applicability of statutory provisions within these GTCs are for clarification purposes only. Even without them, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.
§ 2 ESTABLISHMENT OF THE CONTRACTUAL RELATIONSHIP
(1) Offers from I-H&S are subject to change and non-binding. They constitute invitations to place orders (invitatio ad offerendum). This shall also apply if I-H&S has provided the Customer with its own or catalogues, brochures, technical documentation (e.g. drawings, plans, illustrations, weight and dimension specifications, calculations, computations), other product and service descriptions or third-party test programmes (also in electronic form). They serve the sole purpose of giving the Customer an approximate idea of I-H&S’ goods and services. Something else only applies if they are explicitly made part of the contractual relationship. In particular, they do not constitute guarantees. A guarantee is only granted if it has been expressly designated as such.
(2) A contractual relationship between I-H&S and a Customer comes into existence (conclusion of contract) through an order or an order from the Customer (offer of contract) and a written order or order confirmation from I-H&S based on this (acceptance of contract). The Customer’s order/contract shall be deemed to be a binding offer of contract subject to these GTC. Unless otherwise stated in the order/contract, IH&S shall be entitled to accept this offer of contract within 2 weeks of its receipt by I-H&S.
§ 3 CONTENT OF THE CONTRACT, SCOPE OF SERVICES
(1) The subject matter of the contractual relationship (contractual content) and the scope of I-H&S’s obligation to perform (scope of performance) shall be governed exclusively by I-H&S’s order confirmation, any individual agreements made between I-H&S and the Customer or contractual partner in individual cases and these GTC.
(2) The goods are regularly, but not exclusively and subject to the following provisions, TRUMPF used machines that have been completely overhauled in accordance with the manufacturer’s specifications, as well as associated systems, plant components and/or other items that are necessary or useful for the functionality of the goods (“Accessories”). These General Terms and Conditions shall also apply to accessories – including IT/EDP hardware and standard software (for the latter see § 6 GTC) – regardless of whether I-H&S manufactures them itself or purchases them from suppliers (§s 433, 650 BGB). In the event of an obligation to deliver an item that is only determined by its type, I-H&S shall not be deemed to have assumed the procurement risk.
(3) Only if and insofar as expressly agreed, does the scope of services of I-H&S include, in addition to the sale and/or delivery of the goods and accessories, their assembly, installation, configuration and/or commissioning after delivery to the Customer, maintenance services, repair services and/or other services. The place at which the respective service is to be provided follows either from the order or order confirmation or from an individual agreement made between I-H&S and the Customer in the individual case. Furthermore, § 5 GTC and, in the case of machine relocation, § 7 GTC shall apply to assembly work.
(4) The order or order confirmation may contain further details (e.g. machine data and key figures, materials, designs, assembly and installation plans, general installation conditions, other manufacturer/ specifications, labour costs).
§ 4 SOFTWARE
(1) These GTC also apply to the co-sale and/or co-delivery/delivery of standard software. Standard software are software systems that are necessary for the operation of the machine, cover a clearly defined area of application and can be purchased as a prefabricated product from a third party. Individual software that is specifically and purposefully developed or adapted for a customer is regularly not the subject matter of the contract. A separate agreement shall be made concerning them.
(2) Insofar as the content of the contract includes standard software, I-H&S shall make the software including the associated user documentation as well as the licence certificate (together “contractual software”) permanently available to the Customer. The Customer may only reproduce, revise, translate or convert the contractual software from the object code to the source code to the extent permitted by law (§s 69a ff. UrhG [German Copyright Act]). The Customer has no right to be provided with the source code. The method of delivery of contractual software can be carried out online and/or by data carrier and is specified in each case in the order or order confirmation or an individual agreement made in the individual case. If the software is protected by means of a licence key, the Customer receives the licence key exclusively for the use of the software as specified in more detail in the contract, the licence certificate and the user documentation.
(3) The contract software is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyrights to the contractual software as well as to other objects which I-H&S provides or makes accessible to the Customer within the scope of the contract initiation and implementation shall be the exclusive property of I-H&S in the relationship between the contractual partners. Insofar as third parties are entitled to the rights, I-H&S shall have corresponding exploitation rights.
(4) Upon full payment of the purchase price (§ 10 GTC), the Customer shall receive a non-exclusive, unlimited right to use the contractual software to the extent granted in the contract and the licence certificate. Prior to full payment of the purchase price, the contractual software is subject to retention of title pursuant to § 10 GTC.
(5) Permitted use of the contractual software includes installation, loading into the working memory and use by the Customer as intended. The granting of sub-licences is not permitted. The number of licences and the type and scope of use shall otherwise be determined in accordance with the licence certificate. The Customer is not entitled to rent out or otherwise sub-license contractual software, to reproduce it publicly or make it accessible or to make it available to third parties against payment or free of charge.
(6) Copyright notices, serial numbers and other features serving to identify the programme may not be removed or changed from the contractual software.
(7) If the manufacturer of the contractual software provides I-H&S with updates, I-H&S shall pass them on to the Customer. If the manufacturer only advises I-H&S of updates which the Customer as a software user can carry out without the involvement of I-H&S, I-H&S shall advise the Customer of this. These obligations shall apply for three years from the time the software is handed over to the Customer. If the Customer fails to carry out an update, he shall lose all warranty and other claims in connection with the contractual software.
§ 5 ASSEMBLY
(1) The assembly, installation, configuration and commissioning of a machine and/or accessories includes their provision at the place of delivery, system connection, calibration, testing and release by trained technical staff. I-H&S is entitled to have assembly services carried out in whole or in part by appropriately qualified subcontractors or vicarious agents.
(2) Assembly costs include all labour, material and other direct and indirect costs incurred in connection with the assembly. The calculation of the assembly costs shall be made in accordance with § 10 GTC.
(3) The Customer is obliged to prepare the installation, to cooperate in the execution of the installation and to follow up the installation (“cooperation obligations”). He has, among other things:
a) to provide I-H&S and/or third parties (e.g. subcontractors, vicarious agents) with reasonable access to the place of installation at agreed dates and times to be agreed separately in order to be able to determine the requirements to be placed on the place of installation;
b) to prepare the assembly site in accordance with the specifications and instructions of I-H&S and/or third parties (e.g. manufacturing company, subcontractors, vicarious agents) and any requirements specified in the order or order confirmation or communicated separately at its own expense and to maintain it for the duration of the assembly;
c) to provide all machine-adequate operating resources, raw materials for commissioning and carrying out tests etc. in accordance with the manufacturer’s and other notified specifications in sufficient quantities, auxiliary personnel, set-up and lifting equipment, etc;
d) to name a representative authorised and/or otherwise authorised by him as the responsible contact person for all preparatory and executive activities at the installation site and, if necessary, to provide him with a sufficiently qualified interpreter;
e) to dispose of all operating materials and residues such as water, oil, gas, abrasion, filter/dust etc. properly and packaging and assembly material properly and in each case at their own expense and to clean the beach area;
f) to indemnify and hold I-H&S harmless without limitation from and against all claims, costs, expenses, losses and damages arising out of or in connection with the condition of the installation site and/or arising out of the Customer’s culpable failure to comply with its obligations above.
(4) Under no circumstances will I-H&S be responsible or liable for structural alterations, mechanical system modifications or high voltage electrical work (high voltage electrical work includes electrical work involving voltages in excess of 240 volts).
(5) Should I-H&S be unable to carry out assembly, or should it be partially impossible or significantly impeded, e.g. due to industrial action affecting the Customer, the Customer shall ensure that assembly is completed at his own expense. In this case, I-H&S is released from any warranty as far as the assembly is concerned.
(6) After assembly has been completed, I-H&S shall carry out a final inspection of the machine and the interaction of the contractual components (e.g. accessories, software) for their contractually owed quality, release them to the Customer and draw up an acceptance report together with the Customer. The acceptance of the goods shall be governed by § 8/9 para. 4 GTC.
§ 6 MACHINE MAINTENANCE
(1) If the Customer or a third party (in § 6 GTC “Customer”) commissions I-H&S with the maintenance of a machine or machine parts, these GTC shall apply unless the following terms and conditions provide otherwise. This shall apply irrespective of whether the machine or machine parts to be serviced are contractual/goods within the meaning of § 3 para. 3 GTC or other machines or machine parts.
(2) The object of machine maintenance is regular, preventive, scheduled maintenance, repair and/or servicing. Maintenance shall be carried out by I-H&S or a suitably qualified subcontractor or other vicarious agent subcontracted/commissioned by it (maintenance personnel). The scope of services of the maintenance basically corresponds to the specifications of the manufacturing company (e.g. “Regular maintenance according to checklist” of TRUMPF).
(3) Repair services that become necessary on an ad hoc basis and not in a planned or foreseeable manner are not the subject of machine maintenance in accordance with § 6. Rather, they must always be commissioned
separately. Repair services are also not included in the maintenance services if faults occur after machine maintenance. If necessary or expedient repair work is identified in the course of a machine maintenance, it shall also be ordered separately, carried out following the machine maintenance and invoiced separately. Repair services shall be invoiced on the basis of the respective valid price list for IH&S services.
(4) Unless otherwise agreed, maintenance work will be carried out from Monday to Friday between 7:30 hours and 18:00 hours. Maintenance dates are to be agreed between the Client and I-H&S approx. 4 weeks before the maintenance date. The Client is not entitled to a preferred date.
(5) The Client must ensure that the maintenance personnel have unrestricted, unobstructed and safe access to the machine and/or machine parts to be maintained for the duration of the maintenance activity and can dispose of them in such a way that they can freely carry out all work. During the maintenance work, the Client cannot carry out any production work.
(6) The Client shall in particular prepare and follow up the performance of the maintenance as follows:
– Complete cleaning and extraction of the machine and its immediate surroundings (cleaning work is not included in the scope of the maintenance service);
– Removal of all production materials, operating equipment, attachments and other objects in the area of the machine that may obstruct or impede free access to it;
– Provision of working materials and consumables (e.g. lighting, energy, fresh water supply and residual water drainage, heating or air conditioning) as well as support staff;
– Proper disposal of operating materials and residues;
– Provision of lockable, dry rooms or containers for the storage of maintenance personnel’s work equipment;
– Ensuring protection of maintenance personnel, work equipment and materials from potentially harmful influences of any kind;
– Compliance with any other agreements or specifications made by I-H&S and/or maintenance personnel.
Should the ordering party fail to comply with these or other maintenance conditions, I-H&S may charge the ordering party for any waiting time caused thereby as service time.
(7) The performance of the maintenance work is documented in accordance with the manufacturer’s specifications, in the customary manner and/or by means of a maintenance sticker in a physical or non-physical form.
(8) Maintenance services are provided at a separate charge. The calculation regularly and subject to deviating agreements includes a service flat rate as well as additional consumption parts (depending on demand).
(9) In order to compensate for rising costs for maintenance services, I-H&S is entitled to make price adjustments. A price adjustment is permissible if I-H&S notifies the ordering party of it in writing at least 8 weeks before the start of the maintenance work and with reference to the ordering party’s possibility of ordinary termination.
(10) Unless otherwise agreed, invoices from I-H&S for maintenance services and consumable parts are due for payment without deduction within 14 days of receipt by the ordering party. The credit entry on the business account of I-H&S is decisive for the timeliness of the payment. If the ordering party does not respond to I-H&S’ demand in time, it loses its claim to the maintenance service.
(11) I-H&S and the ordering party can conclude a maintenance/service contract for regular maintenance services on a machine or machine parts both as part of the purchase of goods and separately. If a machine for which a maintenance/service contract is to be concluded was last serviced 2 years or more ago, an inventory is always carried out before the start of the contract. The inventory shall be remunerated separately and according to expenditure. Should the inventory reveal that the machine is in need of repair, the repairs must be carried out before the maintenance/service contract is concluded against separate remuneration (in accordance with § 3 para. 3 sentence 4 of these GTC). The minimum term of a maintenance/service contract is 1 year. Unless otherwise agreed, the term is automatically extended by a further year in each case. The maintenance/service contract may be terminated by either contracting party without stating reasons at the end of the contract year with 30 days’ notice. The right to extraordinary termination without notice remains unaffected.
(12) Warranty and liability of I-H&S for maintenance services are governed by § 12 and § 13 GTC.
§ 7 MACHINE RELOCATION
(1) If the Customer or a third party (in § 7 GTC “Client”) commissions I-H&S to move or relocate a machine and/or machine parts (“machine relocation”), these GTC shall apply unless the following provisions regulate otherwise. This shall apply irrespective of whether the machine or machine parts to be moved are contractual/goods within the meaning of § 3 para. 3 GTC.
(2) The object of the machine removal is basically the dismantling of machines and/or machine parts at the place of origin and their assembly at the place of destination. Dismantling at the place of origin includes checking the technical condition of the machine and machine parts, producing a customer workpiece as proof of functionality, documenting functionality or malfunctions, dismantling the machine and machine parts and packing and preparing them for transport. The assembly at the place of destination includes the assembly, installation, configuration and commissioning of the machine in accordance with § 5 para. 1 GTC. The services which are the subject of the machine removal shall be performed by I-H&S or a suitably qualified subcontractor or other vicarious agent subcontracted/commissioned by it (“relocation personnel”). The scope of services of the machine relocation shall always be in accordance with any specifications of the manufacturing company.
(3) The relocation and loading of the machine and machine parts at the place of origin, the transport from the place of origin to the place of destination (including the export and import, customs and other organisational
handling) as well as the unloading and bringing in at the place of destination (“transport services”) are not the subject of the removal services of I-H&S. Rather, they must always be commissioned separately.
(4) Maintenance, repair or other services such as the rectification of documented malfunctions, the structural, software and other integration of the machine into the environment at the destination, cleaning, repairs (in particular optical) or the instruction of operating personnel are also generally not part of the machine relocation. The same applies to extensions, conversions or retrofits as well as other changes compared to the condition of the machine at the place of origin. They also require separate agreement. Repair services are also not covered by the removal services if faults occur after the machine has been moved. If necessary or expedient maintenance or repair services are determined in the course of a machine move, they shall also be ordered separately, shall be carried out following the machine move and shall be invoiced separately. Maintenance and repair services shall be invoiced on the basis of the agreements made in this respect, these GTC and/or the respective valid price list for services of I-H&S.
(5) Unless otherwise agreed, removal services will be carried out at the place of origin and destination from Monday to Friday between 7:30 hours and 18:00 hours. Appointments in connection with the machine relocation are to be agreed between the Client and I-H&S approx. 4 weeks before the relocation date. The Client is not entitled to a preferred date.
(6) The Client must ensure that the removal personnel have unrestricted, unhindered and safe access to the machine and/or machine parts to be moved for the duration of the machine removal and can dispose of them in such a way that they can freely carry out all work. This applies equally to the place of origin, any places of temporary storage and the place of destination. The Client cannot carry out any production work for the duration of the machine relocation.
(7) The Client is obliged to prepare the machine removal, to cooperate in the execution of the machine removal and to follow up the machine removal. The Client’s duties to cooperate shall include – in each
case at the place of origin and at the place of destination – inter alia:
– Fulfilment of the duties to cooperate pursuant to § 5 para. 3 GTC (duties to cooperate during assembly) and § 6 para. 5 and para. 6 GTC (duties to cooperate during machine maintenance);
– Provision of operating and auxiliary personnel, lifting equipment for loads and persons (with the respective required load-bearing capacity, height, etc.), storage areas for temporary storage as well as
power supply, water, broadband internet, network connections, etc.;
– Ensuring accessibility throughout (floor condition, no steps, no bottlenecks, etc.) and the continuous protection of the machine, machine parts and other materials from the effects of weather and unauthorised access by third parties, in each case also during temporary storage;
– Ensuring that the machine is fully functional and ready for production at the time of dismantling (including working and operating materials, customer layout, etc.) in full compliance with all manufacturer specifications for the respective machine type;
– Preparation of the destination site in accordance with the manufacturer’s specifications for the respective machine type, including the execution of all necessary earthworks, construction work, foundation work, bricklaying, pointing, caulking and other work, the relocation of the power supply in compliance with all technical and official specifications, as well as the dismantling of the place of origin;
(8) If the ordering party does not fulfil these or other requirements, does not fulfil them completely or does not fulfil them on time, I-H&S may charge the ordering party for waiting times caused by this as service
(9) Under no circumstances shall I-H&S be responsible or liable for structural or constructional changes, mechanical system modifications or high-voltage electrical work (cf. § 5 Para. 4 GTC) on the machine, machine parts or the immediate machine environment.
(10) The execution of the machine removal shall be documented in a physical or non-physical manner in accordance with the manufacturer’s specifications or in a customary manner.
(11) Should it be impossible, partially impossible or considerably more difficult for I-H&S to move the machinery, e.g. due to industrial action affecting the Client, the Client shall ensure that the machinery is moved at its own expense. In this case, I-H&S is released from any liability as far as the machine relocation is concerned.
(12) Removal services are provided at a separate charge. Removal costs shall in principle include the provision of the removal personnel qualified to carry out the machine removal for the period of the machine removal. Not included in the removal costs are travel and accommodation costs of the removal personnel (including separate personal/liability insurance), transport services (e.g. forwarding costs, lifting equipment for loads and persons, operating and auxiliary personnel, packaging material, transport security, insurance), maintenance, repair or other services (e.g. training, instruction) as well as assembly and work material, consumables, operating materials etc.. They will be invoiced separately from the removal costs.
(13) In order to compensate for rising costs for removal services, I-H&S is entitled to make price adjustments. A price adjustment for removal costs is permissible if I-H&S notifies the Client of it in writing at least 8 weeks before the start of the removal work and with reference to the Client’s possibility of ordinary termination. For other price increases and adjustments, § 10 para. 8 GTC shall apply.
(14) Unless otherwise agreed, the terms of payment pursuant to § 10 para. 3 GTC shall apply to machine removals subject to the following proviso: The invoice amount for machine relocations is to be paid in two instalments as follows upon receipt of the order confirmation or invoice by the Customer:
– 20 % of the invoice amount (“down payment invoice”) immediately upon receipt of the down payment invoice or order confirmation by the Customer;
– 80 % of the invoice amount (“final invoice”) immediately upon receipt of the final invoice by the Customer.
(15) Invoices from I-H&S for removal services are due for payment without deduction. The credit entry on the business account of I-H&S is decisive for the timeliness of the payment. If the Client does not pay, does not pay in full or does not pay on time in response to I-H&S’s demand, he loses his claim to the removal services.
(16) If the Client cancels a machine move or parts of a machine move within 10 working days before the agreed start of the assignment or the start of the assignment notified by I-H&S, I-H&S shall be entitled to charge 50% of the order value. If the cancellation is made 5 working days in advance, I-H&S is entitled to charge 75% of the order value. If the ordering party postpones the machine move or parts of a machine move within 10 or 5 working days, I-H&S is entitled to charge 25% or 50% of the removal costs. In the event of cancellations due to weather conditions within 3 working days before the start of the assignment, I-H&S is entitled to charge 85% of the removal costs.
§ 8 DELIVERY PERIOD AND DELAY, PERFORMANCE PERIOD AND DELAY
(1) The delivery or performance period shall be specified by I-H&S in or with the written order or order confirmation or agreed individually and confirmed separately by I-H&S in writing. If the period is not determined in this way, it is regularly approx. 10 weeks from the conclusion of the contract.
(2) If I-H&S is unable to meet binding delivery or performance deadlines for reasons for which it is not responsible (e.g. non-availability of goods, breach of duties to cooperate), I-H&S shall inform the Customer of this without delay and at the same time notify him of a new, expected delivery or performance deadline. If the delivery or service cannot be provided within the new deadline either, I-H&S shall be entitled to withdraw from the contract in whole or in part. I-H&S shall immediately refund any consideration already paid.
(3) In particular, non-delivery, incorrect delivery or late delivery by suppliers, subcontractors or vicarious agents of I-H&S shall be deemed to be a case of non-availability. The same shall apply if I-H&S has concluded a congruent hedging transaction and neither I-H&S nor its suppliers, subcontractors or vicarious agents are at fault or are not obliged to procure in the individual case. I-H&S shall also be entitled to a reasonable extension of the delivery or performance period if other procurement, manufacturing or delivery disruptions occur at I-H&S or a supplier, subcontractor or vicarious agent (e.g. energy shortage, traffic disruptions, industrial action, force majeure).
(4) The occurrence of default shall be determined in accordance with the statutory provisions. In any case, however, a default on the part of I-H&S requires a reminder from the Customer or contractual partner. If I-H&S is in default, it may – subject to a stricter liability resulting from § 12 GTC – only demand lumpsum compensation for its damage caused by default. The lump-sum compensation shall amount to 0.5 % of the net price (delivery/service value) for each completed calendar week of the delay, but in total not more than 5 % of the value of the delayed delivery or service. I-H&S shall be entitled to prove that the Customer or contractual partner has not suffered any damage or only less damage than the lump-sum compensation due to the delay.
(5) The rights pursuant to § 12 GTC as well as the statutory rights of I-H&S, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 9 DELIVERY, PARTIAL DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE
(1) Deliveries are made ex warehouse. After receipt of the down payment on the business account of I-H&S (§ 10 para. 3 GTC), agreement of all order-related and technical questions as well as fulfilment of all obligations incumbent on the Customer or contractual partner (e.g. provision of official certificates and permits, import and export and customs documents), I-H&S shall ship the goods to the place of destination (sale by dispatch). If it is expressly agreed that I-H&S provides assembly services and/or owes commissioning in addition to the sale and delivery, the place of performance shall be the place of delivery.
(2) Unless otherwise agreed, I-H&S is entitled to determine the type of shipment (e.g. transport company, shipping route, packaging). Packaging and dispatch shall be carried out in accordance with standard commercial practice. All transport, packaging and other costs shall be borne by the Customer. Packaging material is charged by I-H&S at cost price and will not be taken back. If the Customer so orders, I-H&S shall take out separate transport insurance on behalf of the Customer.
(3) I-H&S is entitled to make partial deliveries and/or render partial services, unless otherwise agreed and this is reasonable for the Customer. This is reasonable in particular if the partial delivery/service is usable for the Customer within the scope of the contractual intended purpose, the delivery/service of the remaining goods/service is ensured and the Customer does not incur any additional costs and considerable additional expenditure as a result. This shall not apply if I-H&S assumes responsibility for the additional costs (cf. § 10 GTC).
(4) The risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer at the latest upon delivery of the goods to the forwarding agent, the carrier or any other third party designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have occurred if the Customer is in default of acceptance or has commenced commercial use of the goods after delivery and/or completed assembly without having notified any defects.
(5) If the Customer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the Customer is responsible, I-H&S shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, I-H&S shall charge a flatrate storage fee of EUR 5.00 per square metre of stand space per calendar day in accordance with the manufacturer’s installation plan. The assessment period begins with the date of the delivery deadline or with the date of the notification of readiness for dispatch of the goods.
(6) The proof of a higher damage and the legal claims of I-H&S (e.g. compensation of additional expenses, reasonable compensation, termination) remain unaffected. The Customer can prove that I-H&S has not incurred any damage or only significantly less damage than the amount of the lump sum.
§ 10 PRICES AND TERMS OF PAYMENT, SET-OFF AND RETENTION, PRICE INCREASE
(1) Unless otherwise agreed, the prices for goods and services of I-H&S (e.g. assembly services in accordance with § 5 GTC, maintenance services in accordance with § 6 GTC, machine relocation in accordance with § 7 GTC) as quoted at the time of conclusion of the contract plus VAT at the statutory rate shall apply. Prices for goods are ex warehouse and exclusive of packaging, shipping, transport and insurance costs, customs duties, taxes, fees and other charges that may be incurred in connection with the sale and delivery of the goods to the Customer or the provision of other services (delivery costs). All prices are exclusive of material, travel, working and waiting time, Sunday, holiday and night work, overtime, etc.
(2) All delivery costs shall be borne by the Customer. I-H&S shows the delivery costs separately. The Customer shall bear the transport costs ex warehouse and the costs of any transport insurance ordered separately by the Customer. If I-H&S fulfils the order by partial deliveries, the Customer shall bear the delivery costs for all partial deliveries.
(3) Invoices from I-H&S are understood to be net. Unless otherwise provided for in these GTC, they are due immediately and without deduction in accordance with the following provisions. The deduction of a discount requires a separate written agreement. Unless otherwise agreed, partial deliveries/deliveries and services shall only be provided against partial advance payment. The invoice amount (purchase price, delivery and other costs) shall be paid upon receipt of the invoice by the Customer in three instalments in favour of the business account of I-H&S specified in the invoice as follows:
– 30 % of the invoice amount within 7 days after order/order confirmation by I-H&S, but not before receipt of the order confirmation (first instalment);
– 65 % of the invoice amount within 7 days after the date of notification by I-H&S that the goods are ready for delivery (goods) or at the latest 7 days before the agreed date of performance (e.g. assembly, maintenance, repair, other services), but in each case not before receipt of the notification (second instalment);
– 5 % of the invoice amount within 14 days after delivery or acceptance or commissioning (processing of a test workpiece; third instalment).
The receipt of payment on the business account of I-H&S is decisive for the timeliness of payment. The Customer shall secure the payment claims of I-H&S by an irrevocable bank guarantee.
(4) Upon expiry of each of the above payment periods, the Customer shall be in default. The amount due in each case shall bear interest during the period of default at the statutory default interest rate applicable from time to time. I-H&S reserves the right to assert further damage caused by default. A claim to the commercial due date interest (§ 353 HGB [German Commercial Code]) remains unaffected.
(5) The Customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery or service, the counter rights of the Customer, in particular pursuant to § 11 para. 6 GTC, shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that I-H&S’s claim to the invoice amount (purchase price, delivery and other costs) is jeopardised by the Customer’s lack of ability to pay, I-H&S shall be entitled to refuse performance and to withdraw from the contract in each case in accordance with the statutory provisions (§ 321 BGB).
(7) If the Customer violates the above terms of payment or if I-H&S becomes aware after conclusion of the contract that its claim for payment is jeopardised by the Customer’s inability to pay, I-H&S shall be entitled to perform outstanding deliveries and services only against advance payment or provision of security. This shall also apply if I-H&S has deferred payment or granted the Customer any other deferral of payment.
(8) I-H&S reserves the right to increase prices by notifying the Customer in writing up to 7 days before delivery or performance in the event and to the extent that unforeseeable cost increases occur for I-H&S after conclusion of the contract, e.g. due to
– changes initiated by the Customer with regard to the scope, manner of delivery or performance, delivery date and/or other cost-relevant factors;
– delays caused by instructions or other conduct on the part of the Customer;
– information, instructions and/or other acts of cooperation on the part of the Customer that are not provided, not provided in a timely manner, not provided accurately, not provided in full and/or otherwise not provided sufficiently;
– significant economic circumstances beyond the control and/or influence of I-H&S (e.g. exchange rate fluctuations, increases in taxes or duties, increases in external labour, material, product procurement or manufacturing costs, if these costs directly or indirectly influence the costs of manufacturing goods, procuring goods or costs of the contractually agreed service and the delivery is not to take place until more than 3 months after conclusion of the contract, insofar as the agreed prices are based on list prices of I-H&S). A price increase is excluded if and to the extent that the cost increase is offset by a reduction in other costs.
§ 11 RETENTION OF TITLE
(1) I-H&S shall retain title to the goods sold until all current and future claims of I-H&S arising from an ongoing business relationship with the Customer (secured claims) have been settled in full. The Customer shall store the reserved goods for I-H&S free of charge.
(2) Goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been settled in full. The Customer shall notify I-H&S in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. seizures) seize the goods belonging to I-H&S. If a third party brings an action against I-H&S (e.g. third-party action pursuant to § 771 ZPO [German Code of Civil Procedure]), the Customer shall reimburse I-H&S for all court and outof- court costs insofar as it is not reimbursed for these by the third party.
(3) In the event of breach of contract by the Customer (in particular non-payment of the purchase price due), I-H&S shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand return of the goods on the basis of the retention of title. The demand for surrender does not include the declaration of withdrawal at the same time. I-H&S is entitled only to demand the return of the goods and to reserve the right to withdraw from the contract. If the Customer does not pay a due purchase price, I-H&S may only assert these rights if it has previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until further notice, the Customer is authorised to resell and/or process goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a) The retention of title extends to the full value of the products resulting from processing, mixing or combining, whereby I-H&S shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter’s right of ownership remains, I-H&S shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The Customer hereby assigns to I-H&S as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share of I-H&S in accordance with the preceding paragraph. I-H&S accepts the assignment. The obligations of the Customer stated in para. 2 shall also apply in respect of the assigned claims.
c) The Customer remains authorised to collect the claim in addition to I-H&S. I-H&S undertakes not to collect the claim as long as the Customer meets his payment obligations towards it, there is no deficiency in his ability to pay and I-H&S does not assert the retention of title by exercising a corresponding right. If this is the case, however, I-H&S may demand that the Customer informs it of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case I-H&S is entitled to revoke the Customer’s authority to further sell and process the goods subject to retention of title.
d) If the realisable value of the securities exceeds the claims of I-H&S by more than 25%, I-H&S shall release securities of its choice at the Customer’s request.
§ 12 CLAIMS FOR DEFECTS OF THE CUSTOMER
(1) The statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title (including e.g. incorrect and short delivery, improper assembly, maintenance, etc., defective installation instructions), unless otherwise stipulated below.
(2) The basis of I-H&S’s liability for defects is the agreement reached on the quality of the goods and/or other services. The product descriptions and specifications designated as such, including those of the manufacturer, shall be deemed to be an agreement on quality insofar as they have become the subject matter of the individual contract. With regard to the quality, due consideration shall be given in particular to the fact that the subject matter of the contract is regularly used machinery and used machine parts. The risk of use shall be borne exclusively by the Customer.
(3) Insofar as the quality has not been agreed between the contracting parties, the existence of a defect shall be measured in accordance with the statutory provisions (§ 434 BGB). However, I-H&S accepts no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) If damage results from circumstances within the sphere of the Customer (e.g. improper assembly or processing by the Customer or third parties, improper use, violation of manufacturer’s specifications, failure to observe operating and operating instructions, improper maintenance, excessive stress, unsuitable operating materials, external influences), there shall be no claims for defects against I-H&S.
(5) Claims for defects on the part of the Customer presuppose that he has complied with his statutory duties and obligations to examine and give notice of defects (§s 377, 381 HGB). If a defect (hidden defect) becomes apparent during the inspection or later, this must be reported to I-H&S in writing without delay. The notification is deemed to be immediate if it is made within 5 working days. Irrespective of this, the Customer must notify us in writing of obvious defects (open defects), including incorrect and short deliveries, within 3 working days of delivery or performance. The timely dispatch of the notice shall suffice to comply with the time limit. If the Customer fails to properly inspect the goods and/or report defects, I-H&S shall not be liable for the defect not reported or not reported properly.
(6) If the delivered item is defective, I-H&S may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). The right of I-H&S to refuse subsequent performance under the statutory conditions remains unaffected.
(7) I-H&S is entitled to make a subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(8) The Customer shall give I-H&S the time and opportunity required for subsequent performance. He shall allow I-H&S or a third party commissioned by I-H&S access to the rejected goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to I-H&S in accordance with the statutory provisions. Subsequent performance does not include disassembly of the defective item or reassembly if I-H&S was not originally obliged to carry out assembly.
(9) The expenses required for the purpose of inspection and subsequent performance (e.g. transport, travel, labour and material costs) shall be borne by I-H&S if a defect is actually present. If the request to remedy the defect is unjustified, I-H&S may demand reimbursement of the resulting costs from the Customer. This does not apply if the absence of a defect was not recognisable to the Customer.
(10) If the Customer has connected a defective item to another item in accordance with its type and intended use (e.g. installation, attachment, insertion), I-H&S shall not be obliged within the scope of subsequent performance to reimburse the Customer for the necessary expenses for removing the defective item and reconnecting the repaired or subsequently delivered defect-free item if the costs of subsequent performance exceed 150% of the value of the installed item and I-H&S was not aware of the individual use of the purchased item when the contract was concluded. If these conditions are not met, the Customer shall set I-H&S a reasonable deadline for the removal of the item, within which I-H&S may carry out the removal on its own responsibility. The Customer does not have to grant I-H&S this option if it would cause considerable damage (e.g. loss of production or plant standstill) which would be prevented by immediate removal.
(11) If a subsequent performance owed has failed or if a reasonable deadline set by the Customer for it has expired unsuccessfully or is dispensable under the statutory provisions, the Customer may withdraw from the contract or reduce the price. If the defect is insignificant, these rights do not exist.
(12) Claims of the Customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 12 GTC and are otherwise excluded.
(13) In the event of defects in software or components from other manufacturers which I-H&S cannot remedy for licensing or factual reasons, I-H&S shall, at its discretion, assert its warranty claims against the manufacturers
and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against I-H&S shall only exist in the case of such defects under the other conditions and in accordance with these GTC if the legal enforcement of claims against the manufacturer and/or supplier was unsuccessful or is futile (e.g. due to insolvency). For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against I-H&S shall be suspended. Any (direct) claims of the Customer under manufacturer’s warranties shall remain unaffected.
(14) The warranty of I-H&S is excluded if the Customer modifies the delivered item or has it modified without the prior consent of I-H&S and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the change.
(15) If I-H&S and the Customer agree in an individual case on the delivery of other used items, this shall take place to the exclusion of any warranty for material defects. I-H&S also assumes no warranty for material supplied/supplied by the Customer, for material procured by I-H&S on the basis of Customer specifications and for designs specified by the Customer. The exclusion of warranty does not apply to claims for damages arising from intentional and grossly negligent breach of obligations by I-H&S as well as for any injury to life, body and health.
§ 13 OTHER LIABILITY
(1) Unless and to the extent that nothing to the contrary arises from these GTC, I-H&S shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) IH&S shall be liable for damages and reimbursement of expenses, irrespective of the legal grounds, within the scope of fault liability
a) in the event of intent and gross negligence without limitation;
b) in the case of simple negligence – subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in own affairs) –
(i) for damages arising from injury to life, body or health without limitation;
(ii) for damages arising from the not insignificant breach of a material contractual obligation (material contractual obligation) only limited to compensation for the damage foreseeable for I-H&S at the time of the conclusion of the contract and typically occurring as a possible consequence of a breach of contract (typical contractual damage) and for indirect damage and consequential damage, which are the consequence of defects of the delivered item (consequential damages), only limited to such damages which are typically to be expected in case of intended use of the delivered item and do not exceed 100% of the net price (delivery value) of the delivered item.
Material contractual obligations are obligations the fulfilment of which is essential for the proper performance of the contract and compliance with which the contractual partner regularly relies on and may rely on and the breach of which jeopardises the achievement of the purpose of the contract. In all other cases of simple negligence, the liability of I-H&S is excluded.
(3) The above limitations of liability shall also apply to breaches of duty by and in favour of persons for whose fault I-H&S is responsible in accordance with statutory provisions.
(4) Limitations of liability do not apply if I-H&S fraudulently conceals a defect, has given a guarantee for the quality of the goods or the existence of a performance outcome or has assumed a procurement risk within the meaning of § 276 BGB. Limitations of liability also do not apply to claims of the Customer under the Product Liability Act or other legally mandatory liability.
(5) The Customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if I-H&S is responsible for the breach of duty. A free right of termination of the Customer (in particular according to §s 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply. § 648a BGB remains unaffected.
(6) If I-H&S provides technical information or acts in an advisory capacity and if this information or advice is not part of the contractually agreed scope of services owed by I-H&S, this shall be provided free of charge and to the exclusion of any liability.
§ 14 LIMITATION
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be 6 months from delivery or performance. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation period shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect in the goods or services, unless the application of the regular statutory limitation period (§s 195, 199 BGB) would result in a shorter limitation period. However, claims for damages by the Customer pursuant to § 12 para. 2 sentence 1 no. 1 and no. 2 lit. a) as well as pursuant to the Product Liability Act or other statutory mandatory liability provisions shall become statute-barred exclusively in accordance with the statutory limitation periods. Other statutory limitation periods shall also remain unaffected.
§ 15 CONFIDENTIALITY AND DATA PROTECTION
(1) The Customer is obliged to treat as confidential all technical and non-technical information, in whatever form (e.g. software, documents, other information), which he receives or becomes aware of from I-H&S before or during the performance of the contract and which is legally protected or designated as confidential (confidential information), also beyond the end of the contract. The confidentiality obligation also exists if the confidential information does not qualify as a trade secret within the meaning of § 2 no. 1 of the Act on the Protection of Trade Secrets of 18 April 2019.
(2) The confidentiality obligation shall not apply if the information is or becomes public knowledge without a breach of the confidentiality obligation, the Customer is obliged to disclose it by law or by the authorities or is dependent on disclosure to third parties for the purpose of contract performance. The Customer shall keep and secure confidential information against access by third parties.
(3) The Customer acknowledges that confidential information received from I-H&S or becoming known to him prior to or during the performance of the contract is not generally known or readily accessible. He acknowledges that confidential information is of economic value to I-H&S and that I-H&S therefore has a legitimate interest in keeping it confidential.
(4) The Customer shall only make confidential information available to employees and third parties who require access to it in order to perform their duties in connection with the performance of the contract. He shall instruct these persons on the confidentiality of the confidential information.
(5) I-H&S processes the Customer’s data required for the business transaction in compliance with the data protection regulations. The Customer acknowledges that I-H&S stores data from the contractual relationship
in accordance with Article 6 Para. 1 lit. a), b) and f) EU GDPR for the purpose of executing the contract, if consent has been given or if there are overriding legitimate interests and reserves the right to transfer it to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract.
§ 16 FORCE MAJEURE
(1) In the event of an event or circumstance of force majeure, I-H&S shall be released from fulfilling its contractual obligations. A case of force majeure shall be deemed to exist if and to the extent that (i) the hindrance is beyond the reasonable control of I-H&S, (ii) it could not reasonably have been foreseen at the time of the conclusion of the contract and (iii) I-H&S could not reasonably have avoided or remedied its effects. The same shall apply if I-H&S has commissioned a third party with the performance of the contract or parts thereof and this third party is affected by an event or circumstance of force majeure.
(3) Subject to proof to the contrary, a case of force majeure shall be assumed in particular in the following circumstances:
a) War (declared or undeclared), hostilities, attack, acts of foreign enemies, extensive military mobilisation;
b) Civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
c) Currency and trade restrictions, embargo, sanctions;
d) Lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalisation;
e) Plague, epidemic, pandemic and corresponding official orders and decrees, natural disaster or extreme natural event;
f) Explosion, fire, destruction of equipment, prolonged failure of transport, telecommunications, information systems or power;
g) General labour unrest such as boycotts, strikes and lockouts, slowdowns, occupations of factories and buildings.
(4) I-H&S shall notify the Customer immediately in text form of a case of force majeure.
(5) If a case of force majeure exists, I-H&S shall be released from the obligation to fulfil the contractual obligations, from any liability for damages as well as from any other legal remedy for the breach of contract due to the case of force majeure. If the notification pursuant to para. 4 is not made immediately, the exemption shall only take effect from the time the notification is received by the Customer. The Customer is entitled to suspend the performance of its obligations from the date of notification.
(6) If the case of force majeure and its effects are temporary, the consequences pursuant to para. 5 shall only apply as long as a case of force majeure exists and I-H&S is therefore prevented from fulfilling its contractual obligations. I-H&S will notify the Customer in text form as soon as the obstacle has been removed.
§ 17 CHOISE OF LAW AND PLACE OF JURISDICTION; RESERVATION OF TRANSFER; FINAL PROVISIONS
(1) The contractual relationship between the parties shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Customer or contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international
– place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship shall be Stuttgart (Germany). The same applies if the Customer or contractual partner is an
entrepreneur within the meaning of § 14 BGB. However, I-H&S shall be entitled in all cases to choose to bring an action at the place of performance of the delivery or service obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Customer or contractual partner. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected.
(3) The Customer or contractual partner may – with the exception of monetary claims (cf. § 354a HGB) – only transfer claims against I-H&S to third parties with written consent.
(4) Amendments to this contract or its components must be made in writing. This shall also apply to any amendment of this written form clause. Verbal side agreements shall have no effect.
(5) Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, or should they contain a loophole, this shall not affect their validity as a whole or individual provisions in other respects. The wholly or partially invalid or unenforceable provision or the incomplete provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.