General Terms and Conditions

General Terms and Conditions

General Terms and Conditions of IAF GmbH, Berliner Straße 52 j, 38104 Braunschweig, Germany

I. General provisions

1. The legal relations between IAF GmbH (hereinafter referred to as the Supplier) and the Customer as regards the deliveries, the purchase and/or the services of the Supplier shall be governed exclusively by these General Terms and Conditions. General terms and conditions of the Customer shall only apply insofar as the Supplier has expressly agreed to them in writing. The scope of the deliveries shall be determined by the mutually agreed written declarations.

2. The Supplier is entitled to make partial deliveries as far as they are reasonable for the Customer.

3. The term “claims for damages” in these General Terms and Conditions also includes claims for compensation for futile expenditure.

II. Prices, terms of payment and offsetting

1. Prices are ex works (excluding packaging) and are subject to the statutory value added tax applicable at the time.

2. The Customer may only offset against claims which are undisputed or have been legally established.

III. Reservation of title

1. The objects of the deliveries (reserved goods) shall remain the property of the Supplier until all claims against the Customer to which he is entitled from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.

2. During the existence of the reservation of title, the Customer is not permitted to pledge the goods or transfer them by way of security; resale is only permitted to resellers in the normal course of business.

3. If the Customer resells goods subject to retention of title, he hereby assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - to the Supplier by way of security, without the need for further special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Customer shall assign to the Supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier.

4. a) The Customer is permitted to process the reserved goods or to mix or combine them with other objects. The processing is carried out for the Supplier. The Customer shall store the new object resulting from this for the Supplier with the care of a prudent businessman. The new object shall be deemed to be reserved goods.

b) The Supplier and the Customer hereby agree that in the case of combination or mixing with other objects not belonging to the Supplier, the Supplier is in any case entitled to co-ownership of the new object in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. The new item shall also be deemed to be reserved goods.

c) The regulation on the assignment of claims according to paragraph 3 of these General Terms and Conditions shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the Supplier.

5. Until revocation, the Customer is authorised to collect assigned claims deriving from the resale. In the event of an important cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, bill protest or justified indications of excessive indebtedness or imminent insolvency of the Customer, the Supplier shall be entitled to revoke the Customer's collection authorisation. Furthermore, the Supplier may, after prior warning and subject to a reasonable period of notice, disclose the assignment for security to the Customer's contracting parties, exploit the assigned claims and demand disclosure of the assignment for security by the Customer to his customers.

6. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must inform the Supplier immediately.

In the event of breaches of duty by the Customer, in particular default of payment, the Supplier shall be entitled, following the unsuccessful expiry of a reasonable deadline for performance set for the Customer, to withdraw from the contract in addition to taking back the goods; the statutory provisions on the dispensability of setting a deadline remain unaffected.

IV. Deadlines for deliveries; Delay

1. The observance of deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the Customer, necessary permits and releases, in particular of specifications, as well as the observance of the agreed terms of payment and other obligations by the Customer. The same applies to changes to the order instructed by the Customer during the development phase. If these prerequisites are not fulfilled in time, the deadlines shall be extended by a reasonable period; this shall not apply if the Supplier is responsible for the delay.

2. If non-compliance with the deadline is due to force majeure, e.g. mobilisation, war, terrorist attack, riot or similar events (such as disputes or lockouts), virus or other attacks by third parties on the Supplier's IT system, insofar as these were carried out despite observance of the usual care taken in protective measures, or if the Supplier is not supplied on time or properly, the deadlines shall be extended by a reasonable period.

3. If the Supplier is in default, the Customer may demand compensation of 0.5 % for each completed week of the delay, but not more than a total of 5 % of the price of that part of the deliveries which could not be used due to the delay, provided that it can be conclusively demonstrated and substantiated that the Customer has actually suffered damage as a result.

4. Both claims for damages by the Customer due to delayed delivery and claims for damages in lieu of performance which exceed the limits specified in section IV, paragraph 3 above shall be excluded in all cases of delayed delivery, even after expiry of a deadline for delivery which may have been set for the Supplier. This shall not apply in the case of liability for intent, gross negligence or injury to life, body or health. The Customer may only withdraw from the contract within the framework of the statutory provisions insofar as the delay in delivery is the responsibility of the Supplier. The above provisions do not imply a change in the burden of proof to the disadvantage of the Customer.

V. Transfer of risk

1. The risk is transferred to the Customer as follows:

  • In the case of delivery without installation or assembly, when it has been dispatched or collected, i.e. when the delivery item has been handed over to the forwarding agent, carrier or collector, but at the latest when it leaves our business premises. At the request and expense of the Customer, the Supplier will insure the delivery against the usual transport risks.
  • In the case of delivery with installation or assembly, on the day of acceptance in the Customer’s own facility.

2. If the dispatch, delivery, the start, the execution of installation or assembly, the acceptance in the Customer’s own facility or the trial operation is delayed for reasons for which the Customer is responsible or if the Customer is in default of acceptance for other reasons, the risk shall pass to the Customer.

VI. Material defects

1. The Customer may not refuse to accept deliveries due to minor defects.

Guarantees shall only be given by the Supplier in the case of a special agreement. Any reference to DIN standards, material data sheets, works test certificates, etc. shall only serve to describe the object of performance and shall therefore not constitute a guarantee. Information on the scope of delivery, dimensions, weights, materials, appearance and performance serves the description of the object of delivery and does not constitute a guarantee of quality and durability.

The Supplier shall provide technical consultation services to the best of his knowledge and ability. These are, however, non-binding and do not release the Customer from the requirement to carry out his own checks and tests. The Customer is responsible for the observance of legal and official regulations when using our goods.

2. All those parts or services which exhibit a material defect shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect was already present at the time of the transfer of risk.

3. Claims for subsequent performance shall become statute-barred 12 months following the start of the statutory limitation period. This also applies to withdrawal and reduction. This period does not apply:

  • insofar as the law according to §§ 438 para. 1 no. 2 (buildings and items for buildings) and 634 a para. 1 no. 2 (building defects) BGB (German Civil Code) prescribes longer periods,
  • in the event of intent,
  • in the event of fraudulent concealment of defects, and in the event of non-compliance with a guarantee of quality.

Claims for reimbursement of expenses by the Customer in accordance with § 445 a BGB (recourse of the seller) shall also become statute-barred 12 months following the statutory start of the limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods. The legal regulations concerning suspension of the statute of limitations, suspension and re-commencement of the periods of limitation remain unaffected.

4. Notices of defects by the Customer must be made immediately in writing to the Supplier.

5. In the case of claims for defects, payments by the Customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred.

6. The Supplier must be provided with the opportunity for supplementary performance within a reasonable period.

7. If the supplementary performance fails, the Customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.

8. Claims for defects shall, however, not exist in the case of insignificant deviation from the agreed quality, insignificant impairment or usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, improper modifications, installation/removal, excessive strain, unsuitable operating materials or as a result of particular external influences which are not provided for under the contract, or non-reproducible software errors.

9. Claims for damages by the Customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, failure to comply with a guarantee of quality, injury to life, body or health and in the event of a wilful or grossly negligent breach of duty by the Supplier as well as in the event of a culpable breach of essential contractual obligations. Further claims of the Customer or claims other than those regulated in this section VI. due to a material defect are excluded.

VII. Impossibility

In the event of delivery being impossible, the Customer is entitled to demand compensation, unless the Supplier is not responsible for the impossibility. However, the Customer's claim for damages shall be limited to 10 % of the value of that part of the delivery which cannot be used for the intended purpose due to the impossibility. This limitation of the Supplier's liability for damages shall not apply in cases of wilful misconduct, gross negligence or injury to life, body or health or culpable breach of essential contractual obligations. The statutory provisions on withdrawal from the contract in the event of impossibility of performance remain thereby unaffected.

VIII. Other claims for damages

1. Unless otherwise provided for in these General Terms and Conditions, claims for damages by the Customer, regardless of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tortious liability, are excluded.

2. This does not apply in the case of liability under the Product Liability Act, in the case of intent, gross negligence on the part of owners, legal representatives or executive employees, in the case of fraudulent intent, failure to comply with an assumed guarantee, culpable injury to life, body or health, or culpable breach of essential contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.

IX. Rights of use

1. The Customer is granted a non-exclusive and non-transferable right of use for internal use of the Supplier's development results, the associated documentation and subsequent additions. All other rights to the development results, including copies and subsequent additions, shall remain with the Supplier. In particular, the Customer shall not have the right to distribute copies of software in the original version or in modified or edited versions, even if such copies are limited to essential parts of the modified versions. The Customer's exploitation rights to his own work results developed or operated under the intended use of the development results shall remain unaffected. For software that was developed by a software supplier independent of the Supplier (third-party software), the license terms of the respective manufacturer shall apply. In addition, the respective general terms and conditions of business or contractual conditions of the respective manufacturer shall also apply. The Customer shall ensure that the development results, in particular software, plans and documentation, are not accessible to third parties without the prior written consent of the Supplier.

2. Copies and reproductions may only be made for archive purposes, as a replacement or for troubleshooting.

3. Unless otherwise agreed, the right of use shall be deemed to have been granted in each case upon confirmation of the order and delivery of the development results and subsequent additions.

X. Liability of the Purveyor for material defects for purchases effected by IAF GmbH and obligation to inspect

1. The Purveyor is liable for defects within the statutory periods and is obliged to bear all expenses arising from or in connection with the liability for defects in accordance with the statutory provisions. Further legal claims of IAF GmbH remain thereby unaffected.

2. IAF GmbH retains the right to determine the manner of supplementary performance. The Purveyor shall be entitled to refuse the type of supplementary performance chosen by IAF GmbH if such a performance is associated with disproportionate costs.

3. If the Purveyor does not begin the rectification of defects immediately after IAF GmbH has requested him to do so or if the rectification of defects is not carried out within a reasonable period of time set by IAF GmbH, IAF GmbH shall be entitled in urgent cases - in particular to avert dangers or to prevent major damage - to carry out the rectification itself or to have it carried out by a third party at the expense of the Purveyor.

4. In the case of defects of title, the Purveyor shall also indemnify IAF GmbH against any existing claims of third parties, unless the Purveyor is not responsible for the defect of title.

5. The limitation period for claims for defects is - except in cases of fraudulent misrepresentation - at least 3 years, unless longer legal periods apply or have been agreed between IAF GmbH and the Purveyor. The course of the period of limitation shall begin on the day of delivery or deliveries.

6. If the Purveyor fulfils his obligation of supplementary performance by delivering a replacement product or part, the limitation period for goods delivered as replacements shall start anew following their delivery, unless the replacement delivery cannot be regarded as recognition of an obligation of supplementary performance.

If IAF GmbH incurs expenses as a result of the provision of defective deliveries, in particular transport, travel, sorting, labour, assembly and disassembly costs, material costs or costs for the incoming-goods inspection, the Purveyor shall bear these costs in accordance with legal requirements.

7. The Purveyor is liable for the culpability of his sub-contractors and component suppliers as well as for his own culpability. Upon receipt of the written notification of defects provided by IAF GmbH, the limitation period for warranty claims shall be suspended until the Purveyor (1.) notifies IAF GmbH of the rectification of the defect or (2.) seriously and definitively refuses to rectify the defect.

8. IAF GmbH shall inspect the deliveries on receipt solely for obvious damage, in particular for transport damage and deviations with regard to the type of goods as designated by the Purveyor or the quantity of the delivered goods, unless otherwise agreed in writing with the Purveyor. IAF GmbH shall give notice of any defects immediately following their discovery. In this respect, the Purveyor shall waive the plea of a non-punctual or delayed notification of defects.

XI. Place of jurisdiction and applicable law

1. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the Supplier, if the Customer is a merchant. The Supplier is, however, also entitled to take legal action at the Customer’s place of business.

2. The legal relations of the contracting parties with regard to all contracts based on these General Terms and Conditions are subject to German law.

3. In the event of one provision of these terms and conditions or of the relative agreements further concluded being or becoming invalid, the validity of the rest of the contract shall not be affected. The contracting parties are obliged to replace the invalid provision with a provision which is as similar as possible to the invalid provision in terms of its economic effect.

4. Amendments or additions to the order or these General Terms and Conditions must be made in writing in order to be effective. Tacit amendments to the order or the General Terms and Conditions are excluded.

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