General Terms of Business and Supply for iba AG, Fürth
As at: May 2013
(1) All iba services and supplies are provided exclusively on the basis of these "General Terms of Business and Supply for iba AG".
(2) iba hereby expressly rejects any general terms and conditions of the customer unless it has expressly agreed to such in writing on a case-by-case basis. Implicit inclusion of the customer's or a third party's terms of business is excluded. These iba General Terms and Conditions also apply to any subsequent business; even if they are not expressly referred to on conclusion of the contract. Subsidiary agreements, variations or additions are valid only if confirmed by iba in writing.
The law of the Federal Republic of Germany only shall apply. The provisions of the UN CISG shall not be applied.
3. Quotation, order and order acceptance
(1) Quotations provided by iba are subject to change without notice and are not binding. The right to make technical changes and changes in respect of material and execution is reserved within reason.
(2) All customer orders require a written order confirmation which alone determines the scope of the supply and services and is the sole guarantee of characteristics.
(3) iba's agreement to the contract is contingent upon correct and timely deliveries from its suppliers. The customer shall be informed of the unavailability of the goods without undue delay.
(4) The customer accepts copyright and the warranty conditions by opening the original packaging.
4. Prices, minimum order value
(1) Prices specified by iba in euros apply to deliveries ex works in Fuerth including packaging plus the value-added tax applicable at the time.
Shipment costs and any transport insurance required shall be at the expense of the customer.
(2) A flat rate administration fee of €100.00 shall be charged on any order which falls below the minimum order value of €200.00.
(3) All prices are quoted exclusive of the value-added tax valid at the time.
5. Passing of title/packaging
(1) Delivery ex works is agreed for goods, i.e. the risk of accidental damage to or accidental degradation of the goods passes over to the customer with the provision of the goods to the carrier or forwarding agent, but at the latest when the goods leave the warehouse, even if carriage paid delivery has been agreed.
(2) All supplies are made at the customer's costs and risk and without guarantee as to the cheapest form of shipment.
(3) Transport packaging and any other packaging will not be taken back in accordance with the German Packaging Ordinance. The customer undertakes to ensure disposal of the packaging at his own expense.
6. Reservation of title
(1) iba reserves to itself the ownership of the goods supplied until all receivables arising from the business relationship with the customer have been received.
(2) The customer undertakes to handle the goods with care and to insure them. He shall inform iba immediately of access by third parties to the goods, for instance in the event of distress proceedings, and of any damage to or destruction of the goods.
(3) In the event of the sale of the goods in a regular business transaction, the purchase price paid or the purchase price debt takes the place of the goods. The customer assigns at this point any receivables arising from a possible disposal to iba. iba accepts the assignment. The customer is empowered to collect these accounts receivable as long as he meets his payment obligations to iba, does not default in payment and does not file for bankruptcy.
(4) If the goods are combined with articles not belonging to iba, iba acquires joint title in the new article to the ratio of the value of the goods supplied by iba to the other articles. The same shall apply if the goods are mixed with, or integrated into, articles not belonging to iba.
(5) iba undertakes to release collateral at the customer's request if the realizable value of the collateral exceeds the value of the debts being secured by more than 10 %.
7. Terms of payment
(1) The terms of payment shall be defined in the individual order. Invoices shall be settled by transfer to one of iba AG's bank accounts stated on the invoice.
(2) The customer only has the right to offset or right of retention if his counter-claims are confirmed by a non-appealable court decision, are not in dispute, or are acknowledged by iba.
8. Delivery times
(1) Delivery dates given by iba are non-binding guide dates, unless they have been expressly confirmed in writing by iba as a binding delivery deadline.
(2) In cases of force majeure or delivery block or delivery default on the part of iba's upstream suppliers or transport companies, iba will not be considered to have defaulted on delivery.
(3) A precondition for compliance with the delivery schedule is further the fulfillment in good time by the customer of his accepted contractual obligations, in particular stating license numbers held for license extensions, making the agreed payments, and providing the agreed collateral, as necessary.
(4) Partial deliveries are permitted. Each partial delivery in a long-term supply contract is considered to be a separate transaction.
9. Special regulations for the provision of services
9.1. Provision of services
(1) iba will provide its services in accordance with the state-of-the-art in accordance with the terms of the contract. Customer requirements shall be given in written form.
(2) Services shall be provided in compliance with the principles of the proper execution of a profession by qualified staff or by service partners authorized by iba. The right to select the staff and service partners deployed shall remain reserved to iba.
(3) The work shall be carried out at the customer's premises or at iba, depending on what is necessary for a proper execution of the task. The customer shall make adequate tools and work stations available to the iba staff where work is carried out at the customer's premises. The customer is not authorized to give instructions to iba staff. iba staff do not become part of the customer's establishment.
(4) iba is authorized to provide the service in appropriate parts as long as this does not result in unreasonable additional costs for the customer.
(5) Where a nationally-specific operating permit is infringed by the service to be provided by iba, in particular as a result of modifications, expansions, updates etc. on a plant or machine, the customer shall be obliged to carry out, or have carried out, the measures necessary to re-acquire the operating permit concerned. The customer is responsible for and shall bear the costs of such measures.
(6) iba's service is considered to have been provided when iba has delivered the contractual service and a completion notice has been handed over to the customer.
9.2. Performance period
(1) Deadlines and delivery times for services do not begin to run until the customer has taken all the preparatory actions to be taken for the execution of the services and satisfied his obligations to co-operate. Should the customer be overdue in providing a service he is due to perform, the deadlines and delivery times will be extended by the extent of this delay.
(2) Deadlines and periods for services are extended by the duration of any obstacle or interruption should unforeseeable obstacles arise which are beyond iba's influence and for which iba is not responsible. This provision shall apply for cases of force majeure and also in particular in the event of a strike, lockout, operational downtimes, actions by the authorities, even if such circumstances arise for iba's service partners, to the extent that such obstacles can be shown to be of significant influence on the provision of the services. iba shall also not be held responsible for such circumstances even if delivery default has already occurred.
(3) Where any cause for which iba is not responsible increases the cost of providing the service, iba is permitted to request compensation from the customer for its extra expenditure.
9.3. Customer's obligation to co-operate
(1) The customer shall nominate a contact person who is available to iba for any information it requires, who shall take decisions or is able to have them taken without undue delay. iba will consult the customer's contact person when and to the extent that this is necessary to perform the task.
(2) The customer shall create the all the conditions required to allow a proper execution of the task. In particular, the customer shall ensure that all the co-operation required from the customer or his agents shall be provided in good time, to the extent required and at no cost to iba.
(3) Should the completion of the task require the modification or expansion of the customer's software, the customer shall make available a responsible qualified member of his company staff to make such modifications or, when requested by iba, to support iba.
(4) Should the completion of the task require operation of one of the customer's machines, the customer shall make available responsible, qualified operating personnel from his company.
(5) The customer shall make available to iba, even if not specifically requested, the customer-specific documentation and other required company-internal information necessary for the execution of the task.
(6) The customer shall be liable for delays or defects in completion of the task if such arise from performance data submitted by him, incorrect or incomplete information or other impediments.
9.4. Completion notice and acceptance of performance
(1) iba will provide the customer with a completion notice following completion of the agreed service.
(2) The customer shall check the service performed or accept the installation immediately on receipt of the completion message. Acceptance shall be confirmed to iba in writing.
(3) Should the customer not have submitted an acceptance confirmation within two weeks after the completion message, the service or the facility is deemed to be accepted.
10. Warranty, liability
(1) Claims of defects on the part of the customer require that the customer has met his duties of examination and notification required under section 377 of the German Commercial Code in the due manner, i.e. immediately in writing in respect of recognizable defects including variations on the delivered quantity, without undue delay within three working days in the 12 months following receipt of the goods in respect of hidden defects which can only be detected later, and within three weeks in the case of services provided.
(2) Where a defect has been established, iba is permitted a supplementary performance in the form of a defect repair or to supply a new defect-free item or to provide a defect-free service, according to its wishes.
(3) Should the supplementary performance fail within a reasonable period, the customer is justified in requesting that the contract be rescinded or his obligations reduced, as long as the defect does not represent a merely trivial infringement of obligations; the contract cannot be rescinded in such a case.
(4) iba is liable in accordance with the provisions of the law where the customer makes a claim for compensation, including those for delivery default, which are founded in malice or gross negligence, including malice or gross negligence of iba's representatives or agents. Where iba culpably infringes a material obligation under the contract or – if iba has not infringed a material obligation under the contract – where iba is not accused of any deliberate breach of contract, liability for damage is limited to the foreseeable losses typically occurring.
(5) Liability arising from culpable mortal or bodily injury or health remains unaffected; this is also true for statutory liability under German product liability law.
(6) The period of limitations for claims against defects is
- 1 year for keyboards, mouses
- 1 for memory cards (CF/SD/SSD)
- 2 years for PCs and accessories and for components not produced by iba and for iba software
- 5 years for iba assemblies (FOB,PADU etc.),
calculated from the transfer of risk. The limitation period remains unaffected in the event of a recourse against the supplier in accordance with sections 478, 479 of the German Civil Code.
(7) In the event of a delivery default, iba is liable according to legal provisions, as long as the contract on which the complaint is made represents a fixed contract as specified in section 286 paragraph 2 no. 4 of the German Civil Code or of section 376 of the German Commercial Code.
(8) Otherwise iba shall be liable in the event of delivery default for every completed week of default to a flat rate default compensation amounting to 3% of the value of the delivery, but to a maximum of no more than 15% of the value of the delivery. iba and the customer reserve the right to demonstrate a lesser or higher loss.
(9) Any warranty is invalidated if the customer or a third party performs modifications or repairs of any kind on the goods supplied, or handles the goods incorrectly, or exposes the goods to harmful influences; unless the customer can demonstrate that, even if properly handled, or should the repair not have been performed, the defect would have occurred in the same way. All liability for damage as a result of the customer's design defects or operating errors is excluded.
(10) Wear parts which are worn out after a correct commissioning, such as in particular fuses, batteries, filter mats and other consumables, are excluded from liability.
(11) Liability going beyond that provided for above - whatever the legal nature of the claim made - is excluded. This is also particularly the case for any losses consequential on a defect, claims for compensation arising from culpa in contrahendo on grounds of other infringements of dues or on grounds of claims in tort for compensation for losses in accordance with sections 823 et seq. of the German Civil Code correspondingly. The personal liability of iba's staff, employees, workers, representatives or agents is also excluded or limited to the extent that the liability of iba is limited or excluded.
(12) The customer is obliged to return the goods to iba on request at his own expense. This is also particularly the case for defective goods which iba replaces with goods free from defects as part of a warranty action.
11. Software warranty
(1) iba provides user documentation for the software products offered which defines the proper use of this software. iba guarantees to customer compliance of the use in accordance with the contract with the user documentation valid at the time of dispatch.
(2) iba is authorized and obliged to provide supplementary performance in the event of significant deviations from the user documentation. The provisions of paragraph 12 further apply.
(3) The customer undertakes to make available to iba verifiable documentation regarding the nature and occurrence of discrepancies in the software in respect of the user documentation and to collaborate in the detection of errors.
(4) iba is not liable for recreation of or the loss of data which might be corrupted or lost in the use of software supplied by iba or of storage media supplied by iba, unless the customer gives the assurance on his part that all his data is backed up at all times - at the intervals necessary for the relevance of the data - in machine-readable form, so that it can be reconstructed with reasonable effort, unless iba has caused its loss or corruption by gross negligence or malice.
12. Exclusion of liability for the consequences of use
iba is not liable for losses, even if its products and systems have been used by the customer or third parties in the intended manner, in the event of:
(a) malfunction of its software products on PCs that are not iba products.
(b) incorrect estimates of the performance of its software products on PCs the use of which in a quite specific use case has not been agreed with iba in writing.
(a) malfunction of its software products on PCs that are not running versions of Windows expressly approved by iba.
(d) malfunction of beta versions of its hardware and software products which have been provided to the customer transitionally or without time limitation at his request or after a corresponding agreement.
(e) malfunction of systems which have been created from a combination and/or mixture of iba products and products from other manufacturers.
(f) restricted function of its hardware and software products as a result of peripheral components from third parties which are required, but have not been supplied at all or not been supplied in good time.
13. Rescinding the contract
(1) iba is justified in rescinding the contract:
(a) if the customer is not credit-worthy. Lack of credit worthiness can be assumed without further process in a case of refusal of a check or bill of exchange or of an unsuccessful attempt to enforce a judgment on the customer, even in transactions in which iba is not involved.
(b) should it be the case that the customer has given inaccurate information with regard to his credit worthiness and that this information is of critical significance.
(c) if goods under reservation of title are disposed of other than in the course of the customer's regular business, in particular by transfer by way of security or pledging.
(d) if the customer defaults in payment.
(e) if export laws have been infringed.
(2) The customer has the right to withdraw from the contract if the delivery or service subsequently becomes impossible for reasons for which iba is responsible. In the event of the impossibility of fulfilling part of the contract, he has the right to withdraw in respect of those parts of the contractual performance the fulfillment of which has become impossible. The customer may withdraw from the contract as a whole should the partial performance of the contract no longer be of interest to the customer. The customer only has a claim for compensation for loss in such cases under the conditions specified in paragraph 12.
(3) The contract will be modified by consensus, insofar as this is economically reasonable, should iba not be responsible for the impossibility of fulfilling the contract. Otherwise, the two parties to the contract may rescind the contract in whole or in part.
(4) Should withdrawal from the contract be associated with the loss of rights of use, the customer undertakes to give up the original and all copies and part copies, also modified copies of software programs associated with other program material, specifications and other documents protected by iba's copyright or to destroy such materials after prior agreement with iba.
(5) The customer shall reimburse iba for all expenditure, costs and other direct and indirect losses arising if the delivery or service subsequently becomes impossible for reasons for which the customer is responsible, or if the customer terminates this contract in the absence of a right to terminate or justification for termination.
14. Software license
The following terms apply for the software provided by iba, unless a separate license agreement exists:
(1) iba grants the customer a non-transferrable, non-exclusive right to use the software products acquired under the provisions of this contract.
(2) The software provided within the scope of the contractual relationship contains technical features intended to prevent unlicensed use. Use of the features in the software requiring a license is possible only if the license dongle (USB hardware key) supplied on acquisition of the software requiring the license has the associated activation key. To this end, the license dongle must be plugged into the port on the PC suitable for the purpose and may also not be removed while the features requiring the license are being used. The activation key is issued to the end user name specified in the order and is not transferrable.
(2) The customer does not have the right to the following actions:
(a) amendment, modification or other editing of the software provided by iba, especially the modification or removal of trademarks, copyright and other IP protection notices.
(b) decompiling, reverse engineering or the application of other methods to obtain the source code
(c) reproduction of the software for the purpose of passing it to third parties
(3) the customer only has the right to dispose of the software to an end user if the license key has already been issued in the name of the end user or has been changed to this name by iba.
(1) The customer shall take care to ensure that the documents given to him are used only for the purposes covered by the contract. The customer may only make use of these or other results of work in which iba holds copyright within the scope of the rights of use granted to him in writing.
(2) The software assigned to the customer by iba and any amendments or extensions to such software are protected by copyright law. iba reserves to itself the rights to reproduction, publication, editing and exploitation associated with the copyright in the software. Any usage right going beyond a simple right of use shall be negotiated separately between iba and the customer and defined in writing.
(3) iba reserves all title and copyright in quotations, drawings and other documents; these may not be made available to third parties. The drawings and other documents attached to the quotation shall be returned to iba on request without undue delay if the order is not placed.
(4) The documentation, such as illustrations, drawings and weight information on which the quotation by iba is based have been drawn up with care, but are only approximately dimensioned and are not binding for the delivery unless they are expressly identified as being binding. The right to make improvements and amendments is reserved. The same is true for information relating to the suitability and nature of the services.
The customer undertakes not to pass to third parties without authorization the commercial and technical information he acquires during the course of the business relationship, even after the completion of the contractual relations, and to securely protect and preserve said information against access and misused by non-authorized persons. The customer is responsible for his employees, contractors and other agents also observing this obligation to the full.
(1) iba supplies are provided subject to an export license from the competent authorities of the Federal Republic of Germany (e.g. Federal Office of Economics and Export Control) or the competent authority in any other supplier country.
(2) Any onward delivery of products to third parties by the customer, with or without the knowledge of iba, also requires the simultaneous transfer of export licenses. The customer is fully liable for any failure to comply with the relevant provisions.
18. Place of performance, legal venue
(1) The head office of iba (Fuerth in Germany) is agreed as the place of performance. All obligations arising from the contractual relationship are deemed to be liable for fulfillment at iba's head office
(2) Where the customer is a businessman, public authority or public sector trust, iba's head office is the sole legal venue for all disputes arising directly or indirectly from the contractual relationship.
19. Final provisions
The effectiveness of remaining provisions remains unaffected should individual provisions of these terms of business be ineffectual or unenforceable, or should these General Terms and Conditions have omissions. That valid or workable provision which comes economically closest to the meaning and purpose of an invalid or unworkable provision shall be deemed to be agreed in place of an invalid or unworkable provision.