Terms & Conditions Imprint

IBO-Anlagebau GmbH

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§ 1 Applicability (1) All our deliveries, services and offers take place exclusively on the basis of these General Terms and Conditions of Business. These are a component of all contracts that we conclude with our customers (hereinafter also referred to as "Clients") regarding the deliveries and services that we offer. They apply to all future deliveries, services or offers to the Client, even if they are not newly agreed on a separate basis. (2) The terms and conditions of business of the Client or any third party do not apply, even if we do not separately object to their applicability in individual cases. Even if we refer to a written communication that contains the terms and conditions of business of the Client or a third party or refers to such, this does not result in any agreement with the applicability of those terms and conditions of business. § 2 Offer and conclusion of a contract (1) All our offers are non-binding and subject to change, if they are not expressly identified as binding or contain a certain acceptance period. We may accept orders or assignments within fourteen days after receipt. (2) The purchase contract concluded in writing, including these General Terms and Conditions of Business, is solely controlling for the legal relationship between us and our Client. These reflect in full all agreements between the contracting parties as to the contractual item. Oral commitments on our part prior to the conclusion of this agreement are legally non-binding, and oral agreements of the contracting parties are replaced by the written contract, to the extent that it does not expressly arise from them that they continue to be binding. (3) Any supplement or amendment to the agreements that have been made, including these General Terms and Conditions of Business, requires written form for its effectiveness. With the exception of managing directors, our employees are not entitled to make oral agreements that deviate from these. (4) Our information on the subject matter of the delivery or service (e.g., weights, dimensions, values in use, maximum stress, tolerances and technical data) along with our representations of the same (e.g., designs and illustrations) are only approximately controlling, to the extent that usefulness does not require exact conformity for the contractually planned purpose. They are not guaranteed characteristics of condition; rather, they are descriptions or markings of the delivery or service. Deviations that are customary in the industry, and deviations that take place based on legal regulations or represent technical improvements, along with the replacement of components with equivalent parts, are permitted to the extent that they do not impair the usefulness for the contractually planned purpose. (5) We reserve ownership or copyright in all offers and cost estimates delivered by us, along with designs, illustrations, calculations, files, catalogs, models, tools and other documents and resources provided to the Client. Without our express consent, the Client may not make such items accessible as such or in terms of content, disclose such items, use such items itself or through a third party or copy such items. At our request, it must completely return to us such items and destroy copies that have been possibly made, if it no longer needs them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. § 3 Price and payment (1) The prices apply to the scope of services and deliveries specified in the order confirmation. Extra services or special services are charged separately. The prices are stated in euros ex factory, and are subject to packaging, the statutory value-added tax, and, in the event of export deliveries, tariffs and fees and other public charges. (2) To the extent that the the agreed prices are based on our list prices and the delivery is to take place for the first time more than four months after the conclusion of the contract, our list prices valid upon delivery are applicable. (3) For contracts with an agreed delivery period of more than 4 months, we reserve the right to increase or decrease our prices accordingly, if after the conclusion of the contract increases or decreases in costs occur, particularly based on collective wage agreements or changes in the prices of materials. We shall submit these to the Client upon request. (4) Invoice amounts are to be paid within thirty days without any deduction, to the extent that nothing else is agreed in writing. For the date of payment, our receipt is controlling. Cheques are valid as payment only after redemption. If the Client does not provide payment upon maturity, the outstanding amounts are to accrue interest from the date of maturity at 8% over the applicable base interest rate; the assertion of further damages in the event of delay remains unaffected. (5) The Client's set-off with counterclaims or the withholding of payments based on such claims is permitted only to the extent that the counterclaims are undisputed or legally established. (6) We are entitled to implement or furnish deliveries or services that are still outstanding only against prepayment or the provision of security if, after the conclusion of the contract, we become aware of circumstances that are suitable for materially reducing the creditworthiness of the Client, and under which the payment of our outstanding receivables by the Client arising from the particular contractual relationship is endangered. § 4 Delivery and delivery time (1) Deliveries take place ex factory. (2) Any deadline for a delivery or service that we have announced always applies as only approximate, unless a firm deadline is expressly agreed. (3) Adherence to our delivery obligation presupposes the clarification of all technical questions and the timely and orderly fulfilment of the Client's obligations; e.g., the provision of necessary administrative approvals and the signing of the customer acceptance form. (4) We may - without prejudice to our rights arising from delay - require from the Client an extension of delivery and service periods or a postponement of delivery and service deadlines for the period of time in which the Client is not complying with its contractual obligations in respect of us. Objecting to the non-fulfilment of the contract remains reserved. (5) If the parties have agreed to shipment, delivery / service deadlines refer to the point in time of the delivery to the carrier, shipper or other third party assigned with the transport. (6) If the Client is in default of acceptance or if it culpably violates other obligations to cooperate, we are entitled to require compensation for damages that arise for us, including any additional expenditures. Claims or rights going beyond this remain reserved. (7) If the conditions of para. 6 are present, the risk of an accidental loss or an accidental deterioration of the purchased item passes to the Client at the point in time at which the Client is in default of acceptance or payment. (8) We are not liable for the impossibility of any delivery or for any delay in delivery, to the extent that this was caused by an event of force majeure or any other event not foreseeable at the point in time of the conclusion of the contract (e.g., disruptions in operations, difficulties in material procurement, strikes, etc.) for which we are not attributable. If our service is thereby made substantially more difficult or made impossible, and if the hindrance is not only of a temporary duration, we are entitled to withdraw from the contract. For any obstacle of a temporary duration, the delivery period is extended or the delivery deadline is postponed for the period of time of the hindrance plus a reasonable start-up period. To the extent that, as a consequence of the delay, the acceptance of the delivery or service is not reasonable for the Client, it may withdraw from the contract by immediate written declaration to us. (9) If we are in delay with a delivery or service, or a delivery or service is impossible for us (regardless of the reason), our liability is limited to the payment of damages in accordance with the conditions of § 8 of these General Terms and Conditions of Business. § 5 Place of performance, shipment, packaging, passage of risk, acceptance (1) The place of performance for all obligations arising from the contractual relationship is Ettenheim, to the extent not otherwise provided. If our service includes installation, the place of performance is the location at which the installation must take place. (2) The method of shipment and the packaging are subject to our own discretion, exercising all due care and diligence. (3) The risk passes to the Client at the latest upon the delivery of the delivery item (whereby, the beginning of the shipping process is controlling) to the carrier, shipper or other third party designated to conduct the shipment. This applies even if partial deliveries take place or we have undertaken other services (e.g., shipment or installation). If the shipment or delivery is delayed due to a circumstance, the cause of which lies with the Client, the risk passes to the Client from the day on which the delivery item is ready for shipment, and we have indicated this to the Client. (4) The Client bears the storage costs after the passage of risk. If we provide storage, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per week that has expired. The assertion and proof of additional storage costs or smaller storage costs remain reserved. (5) Only at the express wish of the Client and at its expense, we insure the goods against theft, breakage, transport, fire and water damages or other insurable risks. (6) To the extent that an acceptance must take place, the purchased item is deemed to be accepted if the delivery (and, if our service includes installation, the installation) is concluded, we have notified the Client of this under reference to the constructive acceptance under this § 5 and we have requested that the Client issue its acceptance, twelve business days have passed since delivery or installation, or, if the Client has commenced with the use of the purchased item (e.g., the delivered system was placed in operation), six business days have passed since delivery or installation, and the Client has failed to provide acceptance within this period for a reason other than a defect indicated to us, which makes impossible or substantially impairs the use of the purchased item. § 6 Warranty, material defects (1) The warranty period amounts to one year starting from delivery or, to the extent that an acceptance is necessary, starting from acceptance. (2) The delivered items are to be carefully examined immediately after delivery to the Client or to a third party specified by it. They are deemed to be approved if we do not receive in the manner set forth in § 2 (3), sentence 1 a written notice of defects regarding obvious defects or other defects that were recognisable upon an immediate, careful investigation, within seven business days after delivery of the delivery item or otherwise within seven business days after the discovery of the defect or any earlier point in time at which the defect was recognisable for the Client upon the normal use of the delivery item without closer investigation. At our request, a delivery item for which there is an objection is to be sent back to us carriage paid. If there is a justified notice of defects, we shall provide compensation for the costs of the most favourable method of shipment. This does not apply to the extent that costs increase because the delivery item is at a location other than the location of the intended use. (3) If there are material defects in the delivered items, we are obligated and entitled to initially provide rectification work or a replacement delivery within a reasonable period. In the event that this is not successful (i.e., impossibility, unreasonableness, refusal or unreasonable delay of the rectification work or replacement delivery), the Client may withdraw from the contract or reasonably reduce the purchase price. (4) If a defect is based on our fault, the Client may require the payment of damages under the conditions set forth in § 8. (5) If there are defects in any component of another manufacturer that we cannot remedy for reasons of licence rights or factual reasons, at our selection, we shall assert the warranty claims against the manufacturer or supplier on behalf of the Client, or assign these to the Client. Warranty claims against us exist for such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the judicial enforcement of the claims against the manufacturer or supplier specified above was unsuccessful or futile (for example, due to insolvency). For the duration of the lawsuit, the period of limitation of the relevant warranty claims of the Client against us is tolled. (6) The warranty is void if, without our consent, the Client modifies the delivery item or has it modified by a third party, and the remedy of defects is made impossibly or unreasonably difficult. In each case, the Client must bear the extra costs for the remedy of defects arising from the modification. (7) A delivery of used items agreed with the Client in individual cases takes place to the exclusion of any warranty for material defects. § 7 Industrial property rights (1) Under the conditions of this § 7, we warrant that the delivery item is free of the industrial property rights or copyrights of any third party. Each contracting party shall immediately inform the other contracting party in writing if claims are asserted against it based on the violation of such rights. (2) In the event that the delivery item violates an industrial property right or copyright of a third party, at our selection and at our cost, we shall modify or exchange the delivery item in such a manner that the rights of third parties are no longer violated, the delivery item further fulfils the contractually agreed functions, or the use right is provided for the Client through conclusion of a licence agreement. If this is not successful within a reasonable period, the Client is entitled to withdraw from the contract or to reasonably reduce the purchase price. Any claims for damages of the Client are subject to the limitations of § 8 of these General Terms and Conditions of Business. (3) If there are any violations of rights by products of other manufacturers that we have delivered, at our selection, we shall assert such claims against the manufacturers or preliminary suppliers on behalf of the Client or assign them to the Client. In such events, claims against us exist in accordance with the conditions of § 7 only if the judicial enforcement of the claims specified above against the manufacturers or preliminary suppliers was unsuccessful or futile (for example, due to insolvency). § 8 Liability for the payment of damages based on fault (1) Our liability for the payment of damages, regardless of the legal grounds, particularly arising from impossibility, delay, defective or incorrect delivery, violation of a contract, violation of obligations upon contractual negotiations or tortious acts, to the extent that such depends on fault, is limited in accordance with the conditions of this § 8. (2) We are not liable for any case of the ordinary negligence of our governing bodies, legal representatives, employees or other vicarious agents, to the extent that it does not concern a violation of any material contractual obligation. Material contractual obligations are the obligation for the timely delivery and installation of the delivery item free of any material defect, along with the duties to consult, protect and exercise proper care, which are to make possible for the Client the use under the contract of the delivery item or are intended for the protection of the life and limb of the personnel of the Client or the protection of its property from substantial damages. (3) To the extent that, according to the grounds under § 8 (2), we are liable for the payment of damages, such liability is limited to the damages that we had foreseen upon the conclusion of the contract as possible consequences of a contractual violation, or that we had to have had foreseen upon the application of care customary in the market. In addition, indirect damages and consequential damages that are the consequence of defects in the delivery item are eligible for compensation only to the extent that such damages are typically to be expected upon the intended use of the delivery item. (4) In the event of liability for ordinary negligence, our obligation to provide compensation for property damages and further financial damages resulting from this is limited to an amount of EUR 5,000,000 for each event of damage, even if this concerns a violation of a material contractual obligation. (5) The preceding liability exclusions and limitations apply in the same extent in favour of our governing bodies, legal representatives, employees and other vicarious agents. (6) To the extent that we provide technical information or act in an advisory capacity and such information or advising is not included in the contractually agreed scope of services that we owe, this occurs without compensation and under the exclusion of any liability. (7) The limitations of this § 8 do not apply to our liability based on intentional conduct, for guaranteed characteristics of condition, based on any injury to life, body or health or under product liability law. § 9 Reservation of title (1) We reserve ownership in the delivered goods until the receipt of all receivables already arising at the point in time of the conclusion of such contract, including all receivables arising from follow-up orders, supplemental orders and orders for spare parts. Upon conduct of the Client that is contrary to the terms of the agreement, particularly upon the delay of payment, we are entitled to take back the delivered goods. The taking back of the purchased items is subject to a withdrawal from the agreement. After the taking back of the delivered goods, we are authorised to utilise them; the utilisation proceeds are to be deducted from the liabilities of the Client minus the reasonable costs of utilisation. (2) The Client undertakes to treat with care the delivered goods; in particular, it undertakes to, at its own expense, sufficiently insure them at original value from fire damage, water damage and loss from theft. At its own expense, the Client must conduct the necessary maintenance and inspection work on a timely basis. (3) If a third party has access to the reserved goods, particularly by any pledge, the Client shall immediately refer such third party to our ownership, and the Client shall inform us of this in order to facilitate our enforcement of our ownership rights. If the third party is not able to provide reimbursement to us for in-court and out-of-court costs arising in this connection, the Client is liable for the loss that arises for us. (4) The Client is entitled to process and sell the reserved goods in the ordinary course of business up to the occurrence of the event of utilisation (para. 1). Pledges and transfers by way of security are not permitted. (5) If the reserved goods are processed by the Client, it is agreed that the processing takes place in our name and on our behalf as the manufacturer, and we directly acquire ownership or - if the processing takes place from materials of two or more owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) in the newly created item, in the proportion of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership occurs, the Client hereby transfers to us for security its future ownership or - in the above-mentioned proportion - co-ownership in the newly created item. If the reserved goods are connected or mixed inseparably with other items into a unitary item, and if one of the other items is to be regarded as the main item, then, to the extent that the main item belongs to us, we shall proportionately transfer to the Client co-ownership in the unitary item in the proportion specified in sentence 1. (6) In the event of the resale of the reserved goods, the Client hereby assigns to us for the purpose of security the receivables arising from this against the acquirer - upon co-ownership in the reserved goods, proportionately in accordance with the share of co-ownership. The same applies to other receivables that take the place of the reserved goods or otherwise develop regarding the reserved goods, such as for example insurance claims or claims arising from tortious acts upon loss or destruction. We revocably authorise the Client to, in its own name, collect the receivables assigned to us. We may revoke this authorisation for collection only in the event of utilisation. (7) If a third party has access to the reserved goods, particularly by any pledge, the Client shall immediately refer such third party to our ownership, and the Client shall inform us of this in order to facilitate our enforcement of our ownership rights. If the third party is not able to provide reimbursement to us for in-court and out-of-court costs arising in this connection, the Client is liable to us for this. (8) Upon request and at our selection, we shall release the reserved goods along with the items or receivables taking their place, to the extent that their value exceeds the amount of the secured receivables by more than 50%. § 10 Concluding provisions (1) If the Client is a trader, the area of jurisdiction for all any disputes arising from the business relationship is our registered place of business. Mandatory legal provisions regarding exclusive areas of jurisdiction remain unaffected by this provision. (2) The relationship between the Client and us is subject solely to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded. (3) To the extent that the contract or these General Terms and Conditions of Business contain any gap in provisions, for the filling of any such gap, the legally effective provision that the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Business if they had known of the gap in provisions is deemed to be agreed.

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