General Terms and Conditions for Domestic and Foreign Sales and Deliveries
(valid from 01.07.2013)
These General Terms and Conditions of IMS Maschinen- u. Anlagenbau u. Beteiligungs-GmbH (in the following referred to as “Supplier”) shall be applicable only to persons acting in a professional trade or self-employed function (entrepreneur) at the time of conclusion of the contract, as well as to legal entities under public law and special funds under public law.
I. Supply of quotation and conclusion of agreement; definition of goods and/or services supplied
1. The Supplier’s offers and tenders, the acceptance of orders and all deliveries and services provided are subject exclusively to these “General Terms and Conditions for Sales and Deliveries”. The Customer’s purchasing conditions are herewith explicitly excluded; they shall not apply to the Supplier even in cases where the Supplier has not explicitly vetoed them at the conclusion of the contract.
2. All quotations issued by the Supplier are provisional and subject to written confirmation of order, unless otherwise agreed to in writing.
3. All agreements, including those made with the Supplier's representative or representatives, require written confirmation from the Supplier. All amendments, additions and/or ancillary agreements require written confirmation to become effective, with this stipulation also applying to any exception to this requirement for written form. Written confirmation can also be in the form of a telegram, telex or fax. No verbal collateral agreements have been made at the time of the drawing-up of these General Terms and Conditions of Sale.
4. The Incoterms used in contractual clauses for international application shall be those corresponding to the version in force at the moment of confirmation of the order in question, provided they do not deviate from these General Terms and Conditions of Sale.
5. The Supplier agrees to provide warranties exclusively on the basis of an explicit written agreement with the Customer. Consultancy services are provided by the Supplier only on the basis of an explicit written agreement with the Customer.
6. Modifications, changes and/or amendments to the construction, concept or format of the deliverables, deviations in the design of the deliverables or changes to the delivery scope shall only be permissible if they are not unreasonable for Customer or if they constitute an improvement at no extra cost for the Customer. Any change, modification or deviation must be agreed with the Customer.
II. Scope of the Supplier's obligation to deliver
1. The scope of the obligation to deliver is defined in the Supplier's written quotation. If the contents of the Customer's order do not correspond to those of the Supplier's written quotation, the confirmation of order shall be binding. This does not affect any subsequent changes made and agreed to in writing.
2. The following items are not supplied as part of the delivery, unless clearly identified as such in the order confirmation: onsite excavation or construction work, erection of structural items or scaffolding, formwork to produce supports or anchor points, brick-built anchoring points, cantilever reinforcement, railings, pipe clamps; other preliminary work or the supply of special devices, tools or items such as walling materials, outlet conduits, scaffolding, fastening items (if related to the building); along with power and utility hook-ups and the corresponding connection conduits between individual items of equipment. If the floor is to be laid at a later date, the Customer shall be responsible for levelling the surface, establishing the height of the foundations and obtaining the required materials.
3. Machines, switchgear cabinets and weighing devices are to be supplied with a topcoat finish; other items are to be supplied with an all-over primer coat only.
4. The items of equipment supplied are equipped with protection and safety devices made to comply with the corresponding general provisions currently in force in the Federal Republic of Germany. The Customer is responsible for verifying that all devices or items supplied outside, or in addition to, these provisions conform to the local regulations of the place of final use, and should inform the Supplier in good time to allow these factors to be taken into account in the quotation. Subsequent requests by the Customer for changes and/or additions require additional payment and are subject to being technical feasible. The Customer is likewise solely responsible for ensuring that the emission values quoted in the offer (particularly those relating to noise, dust and odours) satisfies local requirements, if the machines supplied are to be used at a site located outside the Federal Republic of Germany. If modifications subsequently prove necessary, these changes require additional payment and are subject to being technical feasible.
5. The Supplier will bill separately for any installation or initial start-up-related work carried out in addition to the delivery of the machine itself. The special installation conditions of the Supplier will apply in all such cases.
6. The Supplier reserves all rights of ownership, copyright and exploitation over quotations, drawings and other documentation provided. These items must not be made accessible to third parties. If no order is made on the basis of the quotation, all drawings and other documents provided with or connected to the quotation must be returned to the Supplier on demand and without delay.
III. Software and software-related products
If the items supplied are to include software or software-related products (hereinafter referred to as "software"), the following conditions shall apply:
1. The conditions in section III. cover both the system software of the operating system and the application programs for the solving of specific operational tasks, including the source- and machine-programming code and all manufacturer's and user documentation designed to aid in the understanding or operation of the program in question. This point applies in particular to descriptions of likely problems, system-analysis issues, operating instructions, dataflow and program flow charts, troubleshooting help, etc. These provisions shall apply independently of the programming language or type of software being used, whether supplied as machine code, or on any kind of data-storage system (e.g. floppy disk, magnetic tape, saved to hard disk, working memory, compact disk, disks of other type, microprocessor, etc.)
2. The software included with the delivery has been developed in-house by the Supplier, or created on the Supplier's instructions, or supplied on the basis of a licence agreement between the Supplier and a third party, covering the commercial use and distribution of such software. Programs and data designed for the computer-controlled automatic operation of the machines and equipment supplied are partly subject to section 2 subsection 1 of the German Copyright Law (§ 2 Abs. 1 Ziff.1 UrhG). These programs, along with their accompanying documentation, have been developed by or for the Supplier, or by the licensor, at considerable expense in terms of both cost and effort. They are not supplied as public-domain material of shareware, but represent business and commercial secrets that have been entrusted to the Customer, who undertakes to maintain their confidentiality on behalf of the Supplier.
3. The Supplier provides the Customer with a simple, non-exclusive licence to use the software. This licence is restricted to allow operation only of those machines or items of equipment with which the software is supplied. The validity of the licence is limited to the service life of the machine. The software may not be transferred or otherwise ceded to any third party or parties without the express written agreement of the Supplier. If the machine supplied is sold or otherwise disposed of to a third party, the Supplier will only approve such a transaction if the subsequent buyer undertakes, without reservation, to be legally bound to honour all obligations arising from these conditions of use of the software. This includes the handing over by the Customer to the eventual buyer of all software material, with the former party undertaking not to retain copies of any kind.
4. The Customer undertakes to preserve the confidentiality of the software as described in section 1., and to destroy or delete this software when the machine supplied is eventually scrapped. In order to ensure this confidentiality, the Customer undertakes to restrict access to the software to those employees who are authorized to use it, and to ensure that they are of trustworthy character and undertake individually to preserve this confidentiality. The Customer undertakes to implement appropriate measures to prevent third-party access to any computer or dataretrieval system on which the software is installed.
5. The Customer undertakes to prevent:
- the copying or distribution of the software in any way or form,
- the reverse-engineering or deciphering of the underlying source code of any part of the software, or any other unauthorized revelation of its contents,
- the sale, rental or licensing of the software, or its ceding, in any way or form, for the use of a third party or parties, or the making of unauthorized copies, or the use of a copy of the software to control a machine with information-processing capabilities, other than the machine provided by the Supplier to run the program in question.
Amendments to the software on the part of the Customer, even if carried out for the purpose of legitimate adaptation, require the Supplier's express prior consent in writing.
6. The Customer's obligations regarding the confidentiality, unauthorized cession, duplication, distribution, manipulation and unauthorized use of the program as defined above continue in force after both the expiry of the present agreement and the eventual scrapping of the machine. These obligations only end upon expiry of the protected intangible rights as defined in section III. of the agreement, or on the occasion of the data concerned passing into the public domain.
1. The prices indicated apply, unless otherwise agreed, to the ex-works delivery by the Supplier of the items ordered, and exclude packaging, shipping, freight and set-up. All prices are subject to the addition of value added tax (VAT) at the current applicable rate.
2. Prices are based on the production costs applicable at the moment of confirmation of the order in question. In the event of price increases occurring, in the period running up to the date of delivery, as a result of increases in tax or duty, the cost of raw materials, auxiliary items, power, freight charges or wage costs, the Supplier will be entitled to adjust prices accordingly, unless otherwise agreed. The same condition applies in the event of the imposition of legal requirements on the Supplier that would cause additional expense, the end-result of which is an increase in the cost of the items to be delivered. Price increases on these grounds do not entitle the Customer to cancel an order under the terms of conditions 1. and/or 2. The cancellation shall be submitted to the Supplier in writing and within fourteen days after the receipt of the notification of the price increase. The cancellation shall be deemed to have been submitted in time if it is received by the Supplier within the aforementioned notice period. A substantial price increase shall, as a rule, be an increase in the price of more than five per cent of the contract price.
3. In the event, under exceptional circumstances, of the Supplier meeting the freight costs, export/import duties, customs charges etc. at fixed rates, the Customer shall be liable for any increase in these charges that might occur up to the moment of delivery.
4. Packaging materials returned carriage unpaid cannot be accepted.
5. Prices are quoted on the assumption that power is supplied at 3 x 220, 3 x 400 or 3 x 500 V, at 50 Hz.
V. Payment terms
1. Unless specifically agreed payment is due net immediately and as follows
- 1/3 of the contract price as a deposit upon receipt of the order confirmation
- 1/3 of the contract price upon receipt of the notification of the completion and the deliverables being ready for dispatch or for acceptance respectively being ready for dispatch or for acceptance respectively.
- The remainder 30 days after the risk transfer, but no later than 60 days after the notification of the deliverables
2. Payment by discountable bill or cheque is subject to special agreement being reached first. No liability is accepted for the timely presentation of bills or charges resulting from their protest. Discount charges, etc. – at least those corresponding to bank fees – are to be met by the Customer. Drafts and cheques may only be acknowledged after the irrevocable depositing of their cash value, and on the date on which the Supplier gains full access to the funds concerned.
3. In the event of delayed payment, the Supplier shall be entitled, starting at the corresponding due date, to demand interest calculated at 8 % above the current base rate of the European Central Bank.
4. In the event of failure on the part of the Customer to settle an invoice, or pay by its corresponding due date, or if the Customer’s financial status is downgraded, or if the Supplier obtains unfavourable information on the Customer after the conclusion of the agreement that give rise to doubts about the Customer’s creditworthiness or ability to pay, then the Supplier shall be entitled to demand the immediate payment of any remaining debt on the part of the Customer, and to demand the advance payment, or a deposit, or immediate payment for completed shipments, as arising from this contractual relationship. This condition applies in particular if the Customer ceases to make payment, if cheques issued by the Customer cannot be cashed, if drafts issued on the Customer’s behalf are not honoured, if insolvency proceedings affecting the Customer’s assets are instigated, or if an application made to open insolvency proceedings has failed due to their being insufficient assets to recover.
5. The Customer’s right to enforce counterclaims resulting from other legal relations shall only be granted if said claims are undisputed, legally determined or ready for decision. The Customer’s withholding and/or retention rights shall only be honoured if the claims are undisputed, legally determined or ready for decision.
6. In the event of an agreement concluded between the Supplier and the Customer being terminated by common consent and at the latter’s request, the Customer shall be obliged to reimburse the Supplier for all costs incurred up to that moment, including a reasonable sum to compensate for foregone profits. The Supplier is obliged to furnish proof, in an adequate form, of its entitlement in this respect.
VI. Reservation of title
1. All deliveries shall only be effected on the basis of the reservation of title regulated in detail below. Deliverables shall remain the property of the Supplier until such time as all the Supplier's claims for payment - regardless of when made or on what legal basis, and including payments for specifically designated items - have been fully satisfied. If settlement is made on an instalment basis, reservation of title shall provide security for the balance still due to the Supplier.
Reservation of title also applies specifically to any claims that might be made by the Supplier with respect to repairs, the supply of spares, accessories or consumables, and/or costs arising from set-up work or insurance payments.
2. No deliverables may be resold or otherwise disposed of, hypothecated in any way or used as collateral until full legal title has been transferred to the Customer.
3. As long as the title on deliverables has not been fully transferred to the Customers, the Customer is required to notify the Supplier immediately and in writing in the event of seizure or any other action by a third party against the deliverables.
4. The Customer undertakes to handle with due care the item or items supplied. The Customer shall be obliged - on request, at own expense and to the Supplier's full satisfaction - to insure the item or items delivered against theft, fire and water damage to their full replacement value.
5. As long as the property title has not been transferred to the Customer the Supplier and/or its agent shall be entitled to access to the location of the reserved property during normal business hours on site, to inspect the state of the property and for other important reasons. In case of pending danger the Supplier and/or its agent shall be granted access at any time, day and night. The Customer must ensure that the location and/or site is accessible also during the Customer’s absence.
6. In case the location or installation site of the deliverables is outside the territory of the Federal Republic of Germany or if German jurisdiction regarding the reservation of titles does not apply for any reason in a specific case, the respective legal regulations of the jurisdiction applicable at the foreign location shall apply, or any other reservation regulations approximating the respective foreign legal regulations. In the event of the Customer's collaboration being necessary for the establishment of this principle, the Customer shall be obliged, at the Supplier's request, to take all necessary steps at own cost to ensure that this principle is established and maintained.
VII. Delivery time and delays
1. The delivery period shall be as agreed. It begins - unless there is an agreement to the contrary - on the date of the order confirmation, but not before the resolving by both parties to the agreement of all the relevant administrative and technical questions affecting delivery. It is also dependent on the Customer having fulfilled all corresponding obligations, such as the obtaining of any official certificates or permits that may be required, or the making of any outstanding payment. The delivery period shall be extended accordingly in the event of any failure to fulfil these requirements. The delivery period shall also be extended if the Customer subsequently page 2 of 4 valid from 01.07.2013 makes substantial changes to the original order. The delivery period shall begin, regardless of any obligation on the Customer to cooperate in this respect, with the receipt by the Customer of the order confirmation, insofar as the Supplier is responsible for any delay incurred.
2. Observance of the delivery period is subject to correct and punctual delivery on the part of original suppliers. The Supplier will inform the Customer as soon as possible of any delays that might occur.
3. The delivery schedule in case of deliveries ex works shall be regarded as fulfilled if the Supplier notifies the Customer of the readiness of the deliverables for dispatch or collection respectively before the deadline for the delivery. The delivery schedule shall furthermore be regarded as fulfilled if the deliverables have been transferred to a shipping or forwarding agent before the deadline. If an acceptance of the deliverables is required the acceptance date shall determine whether the delivery schedule has been met, unless the acceptance is justifiably refused. In case of delays or defaults for which the Supplier is liable or if the acceptance is denied the date of the notification with respect to the readiness for acceptance of the deliverables by the Supplier shall determine whether the delivery schedule has been met.
4. If shipment, or the acceptance of the item or items supplied, is delayed for reasons attributable to the Customer, the Supplier shall be entitled to bill the Supplier - starting one month after communication of readiness for shipment or acceptance - for the costs incurred as a result of this delay.
5. In the event of force majeure or other unforeseeable and extraordinary circumstances not attributable to the Supplier, such as downtime due to fire, flood or similar factors, malfunctioning production equipment or machines, failure on the part of original suppliers to fulfil delivery dates or deliver at all, along with interruptions in production due to lack of raw materials, adequate power supply or available staff, strike, lockout, difficulties in ensuring transportation, traffic congestion, or action by official bodies, the Supplier shall be entitled to delay delivery or fulfilment of the agreement for the duration of the contingency in question, plus an adequate recovery period, if circumstances prevent the Supplier, through no fault of its own, from fulfilling its obligations with respect to the agreement.
6. The Supplier shall be entitled to carry out partial deliveries of the goods and services concerned within the agreed delivery schedule, if this is reasonable for the Customer.
7. If the Supplier falls into arrears with respect to the delivery of the items and services in question, resulting in losses for the Customer, the latter shall be entitled to a one-off payment in compensation for such delay. This shall amount to 0.5 % for each full week of delay, up to a maximum of 5 % of the value of that part of the overall delivery that was not available on time as a result of this delay, or not supplied as contractually agreed. In case the Customer grants the Supplier a grace period – in consideration of the legal exceptions – after the delivery deadline and the Supplier fails to effect the delivery within that grace period the Customer shall be entitled to, within the scope of legal requirements, cancel the contract. Further claims by the Customer resulting from the Supplier’s default or delays are regulated exclusively by the provisions under section XI.
VIII. Risk transfer
1. Delivery terms are ex-works, unless otherwise expressly agreed to in writing between the Supplier and Customer. In this case, the risk of accidental loss or deterioration of the item or items being supplied, once made available for delivery, shall be transferred to the Customer once the latter has been notified of availability for collection or shipment. In all other cases, the risk of accidental loss or deterioration of the item or items being supplied is transferred to the Customer at the moment of handover to the carrier. The risk of accidental loss or deterioration of the item or items being supplied shall likewise be borne by the Customer in the event of partial shipments being carried out, or if the Supplier has assumed exceptional responsibility for other items, such as shipment costs or carriage to the Customer's premises. If shipment is delayed for reasons attributable to the Customer, then risk shall be transferred to the Customer upon issue by the Supplier of notification of readiness for despatch. Items supplied, even if they display minor imperfections or faults, must be accepted by the Customer, notwithstanding the latter's rights as defined in section X.
2. In case an acceptance of the deliverables is required the risk of accidental loss or deterioration of the deliverables is transferred to the Customer at the time of the acceptance. The acceptance is due immediately on the acceptance date, alternatively at the Supplier’s notification of the readiness of the deliverables for acceptance. The Customer may not refuse the acceptance on the grounds of minor defects. In case the acceptance is delayed or impossible for reasons not attributable to the Supplier, the risks are transferred to the Customer on the date of the notification of the readiness for acceptance of the deliverables by the Supplier.
IX. Packaging and shipment; set-up
1. Packaging and shipment are provided at the Supplier's complete discretion and at the Customer's expense. The Supplier shall be free to select the shipping route and the means of transportation, in the absence of any special agreement to the effect.
2. The Supplier shall be entitled, at the Customer's expense, to insure each shipment against breakage, damage in transit, fire, theft and/or water damage.
3. The Supplier's special installation conditions shall apply if the Supplier has assumed additional responsibility for the assembly or set-up of the deliverables.
X. Customer claims for defects Material defects
1. In the event of a defect being detected in any item delivered by the Supplier, the Supplier shall, at its own discretion, repair the defect in question or deliver a replacement free of defects. The Supplier shall bear the required expenses for rectifying the defect including in particular the costs for transportation, carriage, labour and material. Deliverables or parts thereof replaced in the course of the rectification of defects shall become the property of the Supplier’s. The Customer is obliged to report defects immediately and in writing upon detection of said defects.
2. The Customer must afford the Supplier the time and opportunity required to carry out the repair or rectify the defect in question. The Supplier shall otherwise be exempted from any liability for resulting consequences. The Customer may only act unilaterally to remedy defects, or have them remedied by a third party, in urgent cases where operational safety may be seriously affected, or in order to prevent major loss or damage. The Supplier must be informed immediately for the Customer to have any claim for compensation.
3. In case the Supplier fails – in consideration of legal exceptions – to provide the repair or replacement within the reasonably set grace period or if the Customers refuses both or either form performance, or if the performance due to the Customer fails or is unreasonable, the Customer shall be entitled to cancel the contract within the scope of legal requirements. In case the defect is only of minor nature the Customer shall only be entitled to reduce the contractual price.
4. Any further claims by the Customer with respect to material defects shall be according to the provision of section XI.
5. The Supplier provides no warranty nor assumes any liability in the following cases: unsuitable or improper use, faulty assembly or start-up by the Customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable or improper modifications or amendments of software, improper maintenance, unsuitable operating media, defective or faulty construction work, unsuitable construction base, chemical, electrochemical or electrical influences, as long as these are not attributable to the Supplier.
6. The Supplier shall accept no liability whatsoever for the consequences of unauthorized repairs carried out by the Customer or a third party acting on the Customer's instructions. This condition shall also apply to modifications to the item or items delivered, carried out without the Supplier's prior approval, which result in loss or damage being incurred.
7. In the event of the operation of the item or items delivered leading to the infringement of intellectual property rights or copyright, the Supplier shall be liable at own expense for furnishing the Customer with the right to further use, or for modifying the item or items delivered in a way, acceptable to the Customer, that avoids any such infringement in the future.
If this cannot be done at reasonable expense and/or within a reasonable time, the Customer and Supplier shall be entitled to cancel this agreement. The Supplier's right to withdraw from the agreement under these circumstances is however subject to such action not infringing the rights of any third party or parties.
The Supplier will furthermore exempt the Customer from the uncontested or legally enforced claims of the affected owner of the intellectual property rights in question. The Customer shall reserve the right to press any claim for damages that might arise, subject to the restrictions described in section XI.
8. See section X. 7. (above) for details of the Supplier's obligations in this respect, which are definitive notwithstanding the stipulations contained in section XI. in the event of infringement of intellectual property rights or copyright. They shall only apply in the following circumstances:
- if the Customer informs the Supplier without delay of any legal action involving the infringement of intellectual property rights or copyright,
- if the Customer affords reasonable support to the Supplier in the defence arising from such claims, or if the Supplier makes possible the carrying out of modifications as per section X. 7. (above),
- if the Suppliers reserves the right to take any defence measure including out-of-court settlements,
- if defective title is not due to an instruction or other action attributable to the Customer, · if the infringement was not caused by unauthorized modification to, or incorrect non-contractual use of, the object of the agreement on the part of the Customer.
1. The Supplier’s liability for material and title defects shall be according to section X of these terms and conditions. Any other liability of the Supplier’s is excluded unless the liability is compulsory according to the product liability legislation or if claims arise from death, injury or ill health, from the acceptance of a warranty or characteristics and specifications guarantee, from fraudulent withholding of information regarding any defects or from the infringement or breach of substantial contractual duties against the Supplier. If the Supplier is liable for the infringement of a main contractual obligation, without this supposing gross negligence or wilful intent on the part of the same, then liability for compensation shall be restricted to the claims typical of this situation and foreseeable at the time of conclusion of the contract.
2. The Supplier shall be liable for claims or expenses incurred to no avail that arise from consultation services and/or information that is not to be billed separately only in the event of gross negligence or wilful infringement of a contractual obligation, insofar as such an infringement does not suppose a material defect with respect to the item or items delivered by the Supplier.
1. Claims made by the Customer as a result of defects in the item or items delivered by the Supplier, or due to breach of duty on the part of the Supplier in the delivery of its services, including claims for compensation and for expenditure incurred to no avail, are subject to a statute of limitations of one year, unless otherwise covered in the stipulations of sections XII. 2. and 3. The period of one year is counted for this purpose
a) from the date of delivery (ex works), in case of delivery contracts only,
b) from the date of acceptance, in case of contracts including erection and/or start up,
c) from the date stipulated by law, in all other cases.
2. In the event of defects being detected in a structural item, or if components designed for structural use display defects that have affected the said structure, the statute of limitations on Customer claims shall be of five years' duration, to be counted from the moment of delivery [in the cases cited in section XII. 1a)] or acceptance [in the cases cited in section XII. 1.b)].
3. If the Supplier has not displayed breach of duty in the provision of consulting services and/or information that is to be billed for separately, or provided consulting services or information giving rise to a material defect in the item or items delivered, claims against the Supplier are subject to a statute of limitations of one year, counted from the moment established in relevant legislation. If the consultation services or information provided give rise to a material defect in the items or items delivered along with the said advice or information, the applicable statute of limitations depends on the conditions listed in sections 1., 2. and 4.
4. The conditions stipulated in sections XII. 1. - 4. do not suppose any statute of limitations in the event of claims arising from death, injury or damage to health. Nor do they apply to claims made in accordance with productliability legislation and arising from defective title to the goods delivered by the Supplier, which involve a thirdparty right to facilitate title to any item or items delivered by the Supplier. They furthermore do not apply to the statute of limitations on the Customer's claims relating to the fraudulent concealment, on the part of the Supplier, of defects in the items or services delivered. The statutes of limitations apply to the expiry of the right to bring legal as described in section XII.4.
XIII. Legal jurisdiction; applicable law; arbitration
1. Inasmuch the Customer is a merchant, a legal entity under public law or a special fund under public law, and/or if said Customer has no general place of legal jurisdiction in the Federal Republic of Germany the place of the legal jurisdiction for any issues arising from the contractual relation between Supplier and Customer shall be at the court responsible at the Supplier’s place of legal jurisdiction. This shall not apply if an exclusive place of jurisdiction is justified for the complaint. The Supplier is entitled to, in deviation from the above provision of the place of legal jurisdiction agreed above to file a complaint at the court responsible at the Customer’s registered office.
2. This agreement is drawn up exclusively under German law, and specifically excludes the provisos of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. The following conditions shall apply in the event of a dispute being resolved by arbitration: The arbitration tribunal concerned shall be convened in accordance with ICC rules (issued by the International Chamber of Commerce, in Paris). It shall consist of three members. Proceedings shall be held in English. The seat of the arbitration tribunal is Zurich (Switzerland).
XIV. Non-transferable rights
The Customer may not, without the express agreement of the Supplier, transfer or assign, in whole or in part, to any third party or parties its rights or claims against the Supplier, with particular reference to those rights or claims resulting from the contractual relationship between the Supplier and the Customer, including for example rights arising from defects. The stipulations of section 354 of the German Commercial Code (HGB) remain unaffected in this case.
General Conditions for Assembly and Repair Work
These General Terms and Conditions for Assembly and Repair Work of IMS Maschinen- u. Anlagenbau u. Beteiligungs GmbH (in the following referred to as “Supplier”) shall be applicable only to persons acting in a professional trade or self-employed function (entrepreneur) at the time of conclusion of the contract, as well as to legal entities under public law and special funds under public law.
I. Scope of application
1. In the event of us undertaking to set-up machines, switch-control systems, silos etc. or to undertake the repair of these items, our “General terms of sale and delivery” shall apply, extended and modified as follows.
2. Inasmuch in the following provisions reference is made to assembly work these regulations shall also apply to our repair service without any explicit reference to the latter.
II. Items covered
We normally undertake to carry out only physical set-up and repair work. Unless there is express written agreement to the contrary, design and construction, technical calculations and the acquisition of materials are the exclusive responsibility of the Customer.
III. Price of installation
a) Unless our compensation for installation, assembly or repair work is agreed as a flat rate or fixed amount our rates for operatives in force on the date of the respective work carried out shall apply.
b) The hourly rates charged apply to the contractually stipulated working week of 40 hours, distributed over five days (Monday to Friday), and also to the time required for preparation and spent travelling or waiting. A supplement of 8%, with respect to these installation-operative rates, will be charged for planning and management services.
c) Rates for work carried out on public holidays depend on the relevant legislation applying at the site of installation.
d) In the event of two supplements coinciding, only the higher of the two shall be payable.
e) Normal working hours are those corresponding to the currently agreed conditions and rates of the metalworking industry. With a view to rapid completion of the work involved, we are prepared - subject to agreement being reached with our members of staff concerned - to permit overtime and weekend working under the terms of the provisions established for such working in the corresponding rate agreement. The Customer should confirm these points using the forms provided.
f) The agreed remuneration must not only be paid for every working day, but also for those days on which the installation operatives need to be present onsite in connection with their work. In the event of hospitalisation of any of the workers employed at the site of installation however, this remuneration will be reduced by 70% - although any payments corresponding to board and lodging must continue to be met in full.
2. In case we fail to complete the Customer’s order within six months after the order was placed and said delay is not attributable to us, and in case we have increased our rates in the time between placement of the order and completion of said order due to tariff increases, wage rises and other increases in human resource costs we shall be entitled to increase the price agreed with the Customer by the same rate. The Customer shall in that case be entitled to cancel the contract if we have increased the originally agreed price by more than the increase of the consumer price index as stipulated by the German Federal Statistical Office for the period between placement of order and its completion (base index year 2010 = 100).
3. Travel expenses
a) These will be charged for both the outward and return journey, and will be based on the most suitable method of transport in each case (i.e. by rail, air, road or sea). Freight charges for installation tools and other miscellaneous expenses, along with cash expenditure connected with travel (insurance, left-luggage fees, taxi fares, etc.), are levied on the same basis.
b) If an installation operative cannot be lodged in accommodation near the site of installation, the expenses arising from the daily journeys between that operative’s lodgings and the site of installation must likewise be met.
4. Home leave
a) Married and single installation operatives are entitled to a period of home leave after four weeks' uninterrupted working at the site of installation, if the site in question is no less than 180 km away from the place of habitual residence of the installation operative concerned. These periods of home leave are to be arranged in such a way that the installation operative concerned has three clear calendar days free in addition to the days spent travelling. The cost of travel to and from home leave will be charged to the Customer, but free days will not be billed.
b) One return trip for home leave should be scheduled for each of these periods: Christmas, Easter, Whitsun and annual holiday. Other periods of home leave are to be scheduled to coincide with a Sunday or public holiday.
c) Additional home leave is to be granted in the event of the death of a parent, parent-in-law, child, and sibling or cohabitating spouse; or in the event of a wife giving birth, plus the extraordinary leave granted to mark 25 and 40 years' company service respectively.
d) The Customer shall be liable, in cases corresponding to 4. a) b) and c) above, for travel and incidental expenses arising from return trips to Germany for the purpose of home leave.
5. Corresponding special arrangements will be agreed to for set-up work carried out in countries outside Europe.
6. The Customer shall be liable for the costs arising from accident or illness occurring at the site of installation, including any costs arising from repatriation. Time employed in attending medical appointments, including the corresponding travelling time, will be billed as working time.
a) Assembly work calculated on an hourly basis and otherwise will be invoiced on completion of the work in uestion, and in any case no later than at the end of the current month. Billing for lengthy operations will be in the form of partial monthly invoices.
b) The Customer should confirm the daily working times of our installation operatives using the timesheets provided, on which billing shall be based.
c) Invoices for assembly work are always to be settled immediately and without discount, even though other conditions of payment may apply to the supply of materials.
d) Voluntary payments made by the Customer, in cash or kind, to our installation operatives that have not been agreed with us expressly and in writing cannot be taken into account when invoicing.
8. Flat rate / fixed price
a) Any flat rate or fixed price for installation or repair work agreed with the Customer relates to the installation or repair work under normal conditions, which can be carried out without any delay. In case of any unforeseen complications or deterioration of installation or repair conditions or relating to other circumstances forming the basis for the calculation of the flat rate of fixed price, including particularly any extension for which we are not at fault we shall be entitled to adjust the flat rate resp. fixed price accordingly.
b) 1/3 of the flat rate / fixed price is due for payment immediately upon commencement of the installation and/or repair work, the send third after the lapse of 50% of the prospective installation / repair time, and the remainder upon completion of the installation / repair work.
9. Our prices are subject to value added tax (VAT) at the current rate.
IV. Installation operatives
1. We shall determine the size and composition of the installation team in accordance with the corresponding requirements.
2. Statements made by, or arrangements entered into with, our installation operatives are subject to our written confirmation.
Instructions communicated verbally to our installation operatives regarding material or additional operatives are subject to our direct notification and written confirmation on our part.
V. Working conditions
1. The Customer must ensure that all safety-at-work procedures are observed onsite and that our operatives are protected from potential hazards at all times. Lockable, adequate, indoor changing and break-time facilities must also be provided onsite for the use of our installation operatives. Suitable washroom facilities, a drinking-water supply and adequate lighting must also be supplied.
2. For installation work to be carried out smoothly and without delay, all areas where this work takes place must be under cover, equipped with doors and windows and designed in such a way that working inside them does not suppose a health hazard for personnel or a danger to items of equipment or material.
3. The Customer is responsible for ensuring that there is adequate heating in these areas, and that installation operatives have at their disposal any washing and first-aid facilities that might be required in the event of an accident occurring.
VI. Technical assistance; Customer's obligation to cooperate
1. The Customer should ensure, in a timely fashion and at own cost and risk, that we are provided with the following facilities for the purpose of carrying out our work:
a) Free transportation access to the site of installation, and any tools and items of equipment that do not form part of an installation operative's normal set of tools, but which are required for carrying out the installation work in question.
b) The carrying out of ancillary operations, such as excavation or construction work, erection of structural items or scaffolding, formwork to produce supports or anchor points, brick-built anchoring points, cantilever reinforcement, railings, pipe clamps; other preliminary work, or the supply of special equipment. If the floor is to be laid at a later date, the Customer shall be responsible for levelling the surface, establishing the height of the foundations and obtaining the required materials.
c) The timely supply of all ancillary items not included in our delivery, such as walling materials, outlet conduits, scaffolding, fastening items (if related to the building); along with power and utility hook-ups and the corresponding connection conduits between individual items of equipment, in order to ensure that installation work proceeds smoothly and without interruption or delay.
d) The placing at our disposal of an adequate number (established by us) of labourers and, as required, skilled workers such as bricklayers, carpenters, fitters, electrician and other specialists. These auxiliary teams are to remain at the disposal of our management throughout the duration of the installation or repair work in question, and their working schedules should be adapted to the needs of our management team. They remain however under the supervision and responsibility of, and must be insured by, the Customer.
e) The supply of all consumables and utilities required for installation work, such as gas, water, lubricants, oil, oxygen, acetylene and compressed air - including onsite hook-up to these items.
f) A lockable, secure room - for the exclusive use of our installation operatives - for the storage of tools and other equipment.
2. The Customer must ensure that the supplies and services for which the Customer is responsible are provided without interruption or delay from the moment in which our operatives arrive to carry out the installation or repair work in question.
3. In the event of us taking on, during the installation operation, the transport of the consignment up to the site of installation, and/or the unloading and storing of the items to be installed, these tasks are carried out at the Customer's cost and risk.
4. The Customer shall be liable for injuries and material damage attributable to the Customer's permanent or temporary staff, or to a third party or parties. The Customer shall furthermore bear full responsibility for accidents, their consequences and material damage attributable to negligent infringement of the obligation to cooperate on the part of the Customer. The Customer shall be liable in particular for loss or damage attributable to the inadequate provision, on the part of the Customer, of scaffolding, lifting gear and other equipment, even if such items have been used by our operatives without complaint.
The Customer is responsible for clearly informing our installation operatives of any special operating conditions that might need to be taken into account.
VII. Personnel insurance
1. Our members of staff are insured while onsite. This insurance does not cover persons employed to assist them.
2. In the event of illness or accident, the Customer is responsible for ensuring that the person or persons affected are provided with immediate, full and adequate medical attention, in particular the attention of a properly-qualified doctor and - if required - transport by emergency ambulance to a hospital equipped to current European standards. We are to be informed immediately of any incident of this type. The costs arising from any medical treatment provided are covered by our insurance policy.
3. The Customer shall be liable for all costs relating to the dispatch of a replacement for any injured person.
VIII. Acceptance inspections
1. If a formal acceptance inspection procedure has been agreed to, it should be scheduled in advance and carried out in the presence of both parties to the agreement, and under the agreed technical conditions. page 4 of 4 valid from 01.07.2013
2. The Customer shall be responsible for providing, at own cost, all the facilities required for the carrying out of the acceptance inspection and final setup of the item or items delivered, with particular reference to tools, consumables and the required staff.
3. In the event of defects being detected during the acceptance inspection, we shall rectify them under the terms of our contractual obligations. Once the defect has been rectified, we shall be obliged – at the Customer’s request – to repeat the acceptance inspection.
4. The Customer shall supply us with a certificate attesting to the successful completion of the installation work and showing the date on which acceptance took place. The presence of minor faults or defects does not release the Customer from this obligation to issue an acceptance report, although all such incidents are to be recorded in the report and entitle the Customer to compensation under the corresponding terms of the agreement. The Customer cannot in the event of minor faults or defects being detected demand that the acceptance inspection be repeated.
5. The acceptance shall be implicitly effective if the Customer fails to accept our work within the reasonable period determined by us, although the Customer would be obliged to accept our work (fictive acceptance at the point of lapse of acceptance period). The same shall apply if the acceptance cannot be carried out due to reasons attributable to the Customer.
IX. Duration of installation work
1. Details regarding the duration of installation work are normally to be treated as approximate.
2. If an installation schedule has been agreed to, it is conditional upon work proceeding smoothly and without hindrance of any kind. This assumes that the Customer has fulfilled all the obligations listed in these General Conditions for Assembly and Repair Work.
3. In the event of installation and/or repair work, or an acceptance inspection, being delayed or interrupted for reasons beyond our control, the Customer shall be liable for any additional costs that may arise as a result, with particular reference to those occasioned by waiting time, additional working time and the travel costs of any members of staff withdrawn from the operation.
4. We shall be released from the obligation of the timely completion of the work in part or in whole if this is prevented by events of force majeure. Such events of force majeure shall exclusively be any events unforeseeable or unavoidable for us and not originating from our environment. Strikes, labour disputes and lockouts shall be considered as events of force majeure. Both Parties shall undertake all measures to prevent or alleviate any foreseeable damages incurred due to an event of force majeure and to keep the respective other Party informed at all times. Deadlines or schedules that cannot be met or fulfilled due to events of force majeure shall be extended implicitly by the duration of the effects of said events and, if necessary, agreed bilaterally. Should such an event of force majeure last longer than six weeks the Customer and we will negotiate an amicable solution for the contract completion. Should such an agreement not be possible both the Customer and we shall be entitled to cancel the contract. In this case we reserve the right claim compensation for the services provided and remuneration of the expenses incurred up to that point.
X. Contract infringement by the Customer
We shall be entitled to seek assistance from alternative sources at the Customer’s expense if the Customer fails to fulfil any obligation acquired under the terms of the agreement, in particular the Customer’s obligations to cooperate, also after written remand and determination of a grace period by us. We also reserve the right to demand further compensation for damages in these circumstances.
XI. Liability; Customer claims in the event of defects
a) Our liability with respect to material or title defects regarding installation and/or repair work carried out by us shall be defined by section 2. below. Any other liability of the ours is excluded unless the liability is compulsory according to the product liability legislation or if claims arise from death, injury or ill health, from the acceptance of a warranty or characteristics and specifications guarantee, from fraudulent withholding of information regarding any defects or from the infringement or breach of substantial contractual duties against the us. If we are liable for the infringement of a main contractual obligation, without this supposing gross negligence or wilful intent on the part of the same, then liability for compensation shall be restricted to the claims typical of this situation and foreseeable at the time of conclusion of the contract.
b) We shall be liable for claims or expenses incurred to no avail that arise from consultation services and/or information that is not to be billed separately only in the event of gross negligence or wilful infringement of a contractual obligation, insofar as such an infringement does not suppose a material defect with respect to the item or items delivered by us.
Material and title defects
a) As far as our installation / repair work is found to be defective we are obliged to rectify such defects. We will bear all the associated costs for rectifying these defects, including, in particular, transport, carriage, work and material costs. Any deliverables replaced and other replaced parts will become our property. The Customer is required to notify us immediately and in writing of any defects detected.
b) The Customer must afford us the time and opportunity required to carry out the repair or rectify the defect in question. We shall otherwise be exempted from any liability for resulting consequences. The Customer may only act unilaterally to remedy defects, or have them remedied by a third party, in urgent cases where operational safety may be seriously affected, or in order to prevent major loss or damage. We must be informed immediately for the Customer to have any claim for compensation.
c) In case we fail – in consideration of legal exceptions – to provide the repair or replacement within the reasonably set grace period or if the Customers refuses both or either form performance, or if the performance due to the Customer fails or is unreasonable, the Customer shall be entitled to cancel the contract within the scope of legal requirements. In case the defect is only of minor nature the Customer shall only be entitled to reduce the contractual price.
d) Any further claims by the Customer with respect to material defects shall be according to the provision of section 1 above.
e) We provide no warranty nor assume any liability for:
- Planning and construction as well as technical calculations, unless explicitly agreed;
- Work of our personnel or other operatives if such work is not connected with the services provided by us or if such work is commissioned by the Customer without consulting us;
- defects or damages resulting from actions, deliveries or services by the Customer or caused by personnel provided by the Customer to assist our operatives.
f) In case the Customer or a third party performs improper repairs or rectification work we shall not be liable for any consequences arising; the same applies to modifications or repairs to our installation / repair work carried out without our prior authorization.
g) If defects are detected on our services or deliverables which cannot be rectified immediately and we are not at fault for this we shall bear only those costs and expenses that would have arisen in case of an immediate rectification of said defect. If we are not provided with the opportunity for rectification of reported or detected defects by the Customer, its agent or operatives the Customer shall bear the costs for any resulting damages, waiting times or other expenses.
a) The warranty period for installation / repair work shall be one year, starting on the date of acceptance or the date of the fictive acceptance according to the provision of section VIII 5. If our deliverable is a building or the provision of planning and supervision services the warranty period shall be five years starting from the date of the fictive acceptance according to the provision of section VIII 5.
b) For the duration of the warranty period outlined above we are entitled to inspect the installation and the installed deliverables in accordance with the Customer and/or any time during normal business hours.
XII. Applicable law; legal jurisdiction
1. This agreement is drawn up exclusively under German law, and specifically excludes the provisos of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Inasmuch the Customer is a merchant, a legal entity under public law or a special fund under public law, and/or if said Customer has no general place of legal jurisdiction in the Federal Republic of Germany the place of the legal jurisdiction for any issues arising from the contractual relation between us and the Customer shall be at the court responsible at our place of legal jurisdiction. This shall not apply if an exclusive place of jurisdiction is justified for the complaint. We are entitled to, in deviation from the above provision of the place of legal jurisdiction agreed above to file a complaint at the court responsible at the Customer’s registered office.
XIII. Binding nature of the agreement
In the event of one or more of the above contractual conditions proving invalid, this shall have no effect on the validity of any other clause.
XIV. Additional provisions
Additional provisions, insofar as these “installation conditions” do not stipulate otherwise, are provided by our “General Terms and Conditions of Sale for Domestic and Foreign Transactions”.