TERMS AND CONDITIONS OF iNOEX GMBH
1. RECOGNITION OF DELIVERY TERMS
The supply of delivery items including moveable objects to be manufactured or created according to § 651 German Civil Code (BGB) (contract for labor and materials) by iNOEX (“Supplier”) shall be carried out only on the basis of the following General Supply Terms. The contents of all agreements between the Ordering Party and Supplier outside of these General Supply Terms shall require the written confirmation by the Supplier. If individual terms of these General Supply Terms are suspended through the explicit written agreement between the Ordering Party and Supplier, the validity of the remaining terms shall remain unaffected. Other terms, in particular the general business terms and conditions of the Ordering Party, shall not apply whether or not they were explicitly rejected by the Supplier. These General Supply Terms shall also apply exclusively if the Supplier provides performance unconditionally with the knowledge of other business terms and conditions.
The Supplier’s offers shall be valid for 90 (ninety) days from the date of the offer, the right of prior sale shall however remain reserved. The Supplier reserves the proprietary and copyrights for his drawings, figures, samples, weight and size measurements as well as other documents including those in electronic form. These documents may only be made available to third parties with the consent of the Supplier. Technical descriptions of the offer are only approximations and to this extent only binding on the Supplier when he expressly declares them to be. The documents to be supplied by the Ordering Party such as filled-in technical questionnaires, drawings, samples and models and suchlike are decisive for the supplier. The Ordering Party shall be liable for the correctness of contents, the technical feasibility and the completeness. The supplier is not obliged to check the information. The supplier is not obliged to check the information. Pre-contractual additional agreements, amendments or commitments by agents must be made in writing and require the supplier's and the Ordering Party's signature in order to be valid.
3. SCOPE OF DELIVERY
3.1 The written order confirmation shall exclusively control the scope of delivery. This shall also apply for any safety devices. The supplier is entitled - without further inquiry with the Ordering Party - to resort to a technical construction, a software version or a material which differs from the order confirmation as long as this does not cause any deterioration in quality of the goods to be supplied.
3.2 The Supplier shall have the right of partial deliveries to the extent its acceptance is not unreasonable for the Ordering Party, especially if the delivery of the outstanding goods is ensured and no significant additional expenses or significant additional costs arise thereby for the Ordering Party (except if the Supplier accepts to bear these costs). Every partial delivery can be invoiced separately.
3.3 If a technical acceptance procedure is agreed, the relevant legal stipulations of the contract for work and services shall apply, to the extent no differing terms were fixed in these General Supply Terms.
4.1 If not agreed differently, prices shall be \"ex works\" (INCOTERMS 2010) of the Supplier or another address provided by the Supplier, excluding packaging and loading. Any VAT tax due shall be based on the legally valid tax rate and shall be paid by the ordering Party.
4.2 The Supplier may invoice to the Ordering Party any additional costs arising from changes requested by the Ordering Party, even if the Supplier has agreed to the requested changes, provided that the Supplier has informed the Ordering Party of the accrual of additional expenses.
5.1 5.1 If not agreed differently, payments for deliveries by the Ordering Party to the Supplier shall be made to the account of the Supplier without any deductions as follows:(a) 40 % of the order value upon placing the order(b) 50 % upon notice of the readiness for delivery(c) 10 % within two weeks upon invoice date. Invoices for assembly, spare parts or other services must be settled within one week upon the invoice date. The day of payment shall mean the day on which the Supplier has access to the paid amount.
5.2 In the case of a delay of payment, the Supplier shall have the right to demand an interest on arrears of eight per cent above the basic interest rate. The assertion of further damages shall remain reserved.
6. SET-OFF AND RIGHT OF RETENTION
The Ordering Party shall have the right to retain payments or to set them off with counterclaims only to the extent that his counterclaims are uncontested or have been legally established. The exercise of a right of retention by the Ordering Party shall be precluded to the extent the counterclaims do not relate to the same contract.
7. RESERVATION OF OWNERSHIP
7.1 The Supplier shall retain ownership of the delivery item until the receipt of all payments arising from the business relationship. If a current account exists in the business relationship, the Supplier shall retain ownership of the delivery item until the receipt of all payments from recognized balances.
7.2 If the Ordering Party acts in breach of the contract, particularly as this relates to a delay in payment, the Supplier shall be entitled to withdraw the goods delivered on the basis of the retention of title (“reserve title goods”). An advance determination of a deadline shall not be required in the case of a delay in payment. The Supplier may enter the business premises of the Ordering Party during normal business hours for the purpose of reclaiming reserve title goods. Further claims of the Supplier shall remain unaffected
7.3 After reclaiming the reserve title goods the Supplier shall be permitted to use them appropriately after he has given prior warning; the redemption revenue shall be balanced against the Ordering Party’s obligations less reasonable redemption costs.
7.4 In place of the immediate withdrawal of the reserve title goods, the Supplier may technically disable the reserve title goods according to section 7.1 until the receipt of all payments. Otherwise section 7.2 shall apply. The right to reclaim the reserve title goods in the case of continuing payment delays shall remain unaffected.
7.5 To the extent the Ordering Party uses the reserve title goods for financing purposes or sells them in the normal course of business, he shall be obliged to maintain the Supplier’s reservation of title towards the purchasing party. The Ordering Party now assigns all receivables and ancillary rights from the resale until satisfaction of the Supplier’s claims to the amount of the total invoice value (including VAT) against the purchaser or third parties regardless of whether the items were resold with or without any prior further processing.
7.6 In the case of a resale, the Ordering Party must give notice of the assigned claims of the Supplier’s payment to the purchaser. The Ordering Party shall not have to the right to sell the reserve title goods to a purchaser who has precluded or limited the assignment of the payment demands. In the case the reserve title goods were combined with other goods not belonging to the Ordering Party, the assignment shall only be proportionate to the co-ownership shares of the processed component according to section 7.11.
7.7 The Ordering Party shall remain authorized to collect the receivables after assignment. The Supplier's authority to collect the receivable himself shall remain unaffected. However, the Supplier shall not collect the receivables so long as the Ordering Party fulfills its payment obligations from the collected revenue, does not become delinquent with payments or stop payments and in particular no petition for the opening of insolvency proceedings is filed. If one of these events occurs, the Supplier may demand that the Ordering Party makes the assigned receivables and their debtors known, provides all necessary information for collection, hands over the associated documentation and informs the debtors of the assignment. Upon the occurrence of such a condition the Ordering Party’s right to collect the receivables shall be extinguished.
7.8 To the extent a current account relationship exists according to § 355 German Commercial Code (HGB) between the Ordering Party and the purchaser, the prior assigned receivable from the Ordering Party to the Supplier shall also relate to the recognized account balance as well as the available account surplus of the closing balance in the case of the purchaser’s insolvency.
7.9 Furthermore the Ordering Party may not sell, pledge or transfer the reserve title goods as a security without the prior written consent of the Supplier. In case of attachment or seizure or other dispositions of the reserve title goods, the Ordering Party shall indicate the proprietary rights of the Supplier to third parties and inform the Supplier immediately. To the extent the third party is not able to reimburse the Supplier for court and out of court costs of a legal proceeding according to § 771 German Code of Civil Procedure (ZPO), the Ordering Party shall be liable for the Supplier’s resulting loss
7.10 The Ordering Party shall be obligated to handle the reserve title goods with care and in particular adequately insure them for their replacement value against fire, water and theft.
7.11 Processing or transformation of the reserve title goods by the Ordering Party shall in each case be performed for the Supplier. If the reserve title goods are converted or mixed with materials that are not owned by the Supplier, the Supplier shall acquire co-ownership of the new item in the relation to the value of the reserve title goods to the other processed materials at the time of processing or transformation, the conditions that apply to a delivered reserve title good shall also apply to the resulting new item.
7.12 If the reserve title goods are inseparably mixed or joined with other items not owned by the Supplier, the Supplier shall acquire co-ownership of the new item in relation of the value of the reserve title goods to the other processed or mixed items at the time of the mixing or joining. If the goods are mixed or joined in such a way that the Ordering Party's item is to be regarded as the main item, proportional co-ownership shall be transferred to the Ordering Party. The Ordering Party shall safeguard the resulting sole ownership or co-ownership for the Supplier
7.13 The Ordering Party, in order to secure the Supplier’s claims against him, shall also assign the Supplier's claims against third parties that may arise due to the fact that the reserve title goods are fixed to real property
7.14 Upon the Supplier’s demand, the Ordering Party shall fully support the Supplier in protecting the Supplier’s rights according to this section 7 in the country in which the reserve title goods are located.
8. TRANSFER OF RISK
If not agreed otherwise, the risk shall pass to the Ordering Party when the goods have left the Supplier’s facility, even in the case of partial deliveries or if the Supplier has accepted other performances, e.g. to take over shipping costs, delivery and assembly. The risk shall also pass to the Ordering Party in the case of the Ordering Party’s delay of acceptance.
9. NOTIFICATION OF DEFECTS
9.1 9.1 The Ordering Party’s right for notification of defects according to section 13 require that the Ordering Party inspects the delivery item upon delivery and properly provides notice of defects according to §377 of the German Commercial Code (HGB). Complaints shall be in written form and must contain specific information on the defect. Complaints due to incomplete delivery and other recognizable defects shall be immediately and in writing communicated to the Supplier, at the latest within five working days after the delivery, concealed defects without delay at the latest within five working days of their discovery. Acceptance of the delivery item may not be refused due to insignificant defects. Claims from defects which were reported with a delay shall be precluded.
9.2 To the extent an acceptance has been agreed, § 640 of the German Civil Code (BGB) shall apply in variance to section 9.1. Five working days shall be deemed an appropriate deadline in the meaning of § 640 paragraph 1 sentence 3 German Civil Code (BGB), to the extent the Supplier has not determined a different deadline. Decisive for the compliance with the time limit for claim is the date of receipt by the supplier.
9.3 If the Supplier in variance to section 4.1 and on request by the Ordering Party has engaged a third party (transporting company) with the delivery of the delivery item, the Ordering Party shall in the presence of the transporting company record any noticeable transport damage and have it confirmed. If a transport damage was not recognizable from the outside upon delivery, the Ordering Party shall immediately upon discovery and in writing report to the transporting company, however not later than seven days after delivery. The Ordering Party shall inform the Supplier immediately and in writing of the transport damage and the report. Claims from an improperly recorded or untimely noticed transport damage shall be precluded.
9.4 The costs of the inspection of the delivery item shall be borne by Ordering Party.
10. DELAY OF DELIVERY
10.1 The delay of delivery stated in the offer is nonbonding except to the extent a delay of delivery was agreed to be binding. The adherence by the Supplier to an agreed binding delay of delivery shall require that all commercial and technical questions between the parties to the contract have been finally resolved at the time of the agreement on the delivery date and the Ordering Party has timely fulfilled all of its obligations. If this is not the case or changes to the delivery items are made later, the delivery period shall be appropriately extended. This shall not apply to the extent the Supplier is solely responsible for the delay. In cases of nonbonding delivery deadlines the Supplier shall not be found to be in delay until after the expiration of an appropriate deadline determined by the Ordering Party. The Ordering Party may not establish such a deadline earlier than four weeks after the nonbonding delivery deadline.
10.2 The Supplier shall not be deemed to be in delay if his deliverers, for reasons not in the Supplier’s control, perform an incorrect or untimely delivery
10.3 The delivery deadline shall be deemed fulfilled when the delivery item has left the Supplier’s facility before its expiration or, if the item has been reported as being ready for dispatch in case an obligation to pick up the item was agreed
10.4 If shipment is delayed upon the request of the Ordering Party or it is found to be in delay for acceptance, the Ordering Party shall be charged for the resulting storage costs, at least 1 % of the invoice amount for each started month when stored at the Supplier’s facility, unless the Ordering Party can prove less damage. The Supplier shall however be entitled to dispose of the delivery item after the expiration of a fixed appropriate grace period.
11. FORCE MAJEURE
11.1 If the Supplier is hindered in the fulfillment of his contractual obligations on the basis of force majeure such as mobilization, war, terrorism, insurrection, natural catastrophes, fire or other unforeseeable circumstances not caused by the Supplier such as strikes or lawful lockouts, operational disruptions, transportation shortages, difficulties procuring raw materials or lack of supply caused by deliverers, the agreed delivery deadlines shall be extended by the duration of the hindrance including an appropriate start up period, maximum however by three months. The conditions cited are also not the attributable to the Supplier if they occur in the course of an existing delay. The Supplier shall inform the Ordering Party as soon as possible of the start and foreseeable end of such conditions
11.2 If the hindrance lasts three months or longer, both parties may withdraw from the contract.
12. INSTALLATION AND COMMISSIONING
12.1 Installation, assembly or commissioning of the machinery shall be performed by the Supplier only if this is specially agreed to and only in accordance with the installation specifications of the Supplier.
12.2 Place and time of the commissioning shall be agreed upon by the parties. Depending on the complexity of the facility, commissioning may require up to eight weeks.
13. RIGHTS ARISING FROM DEFECTS
Subject to sections 9.1 and 9.2 the following shall apply in cases of defects of the delivery item to the exclusion of further claims by the Ordering Party with the exception of damage claims according to section 14:
13.1.1 The limitation period for defect rights shall be twelve months from delivery or acceptance to the extent it has been agreed to. However, this limitation does not apply if a defect was not disclosed with the intention to deceive or if a guarantee for the condition of a good was granted (in this instance the limitation period provided under the guarantee shall apply). In cases of damage claims this limitation shall not apply in the following cases:in the event of injury to life, body or health, willful intent and gross negligence by the agents or managerial executives of the Supplier.
13.1.2 The limitation period is not prolonged by the remedy of defects, neither in case of the use of new parts in the main delivery nor in the case of replaced parts or new parts
13.2 The Supplier shall have the choice of remedy for the defective delivery item either through the correction of the defect (improvement) or delivery of a defect free item (subsequent delivery). The improvement shall occur without recognition of a legal obligation. In the case of an improvement the remaining portion of the original limitation period shall begin to toll with the return of the improved delivery item. The same shall apply in the case of a subsequent delivery
13.3 If the remedial measure fails, the Ordering Party may withdraw from the contract. The right to reduce the purchase price shall be precluded. Damage claims shall be according to section 14
13.4 Upon consultation with the Supplier, the Ordering Party shall grant the Supplier the necessary time and opportunity to perform the remedial measures and provide unimpeded access to the delivery item; otherwise the Supplier shall be exempt from liability for any arising consequences
13.5 Costs relating to the remedial measure such as shipment, travel, transport and material costs shall not be reimbursed to the Ordering Party to the extent they increased due to the delivery item being brought to another location other than the agreed place of delivery. Any resulting increased costs shall be invoiced to the Ordering Party by the Supplier. Likewise the disassembly and installation costs shall not be reimbursed. The Ordering Party may only assert these costs in the scope of a damage claim according to section 14. The supplier does not take over any liability when he accepts to do repair work, modifications or alterations of older goods or other than the equipment supplied by himself. Older goods are those with an already expired warranty period or which have been used by the Supplier or a third party with the knowledge of the Ordering Party
13.6 For the purpose of the remedial measure, the Ordering Party shall at no cost provide the Supplier with available tools and lifting equipment as well as fitters and laborers. Particular services for the realization and processing of the subsequent performance - such as the provision of engineers and auxiliary staff, additional transportation - are separately agreed by the Supplier and the Ordering Party. All costs shall be borne by the Ordering Party
13.7 The Ordering Party shall bear the appropriate costs for an improper assertion of defect rights (i.e. if the product was not defective); the same shall apply if the Supplier erroneously grants defect rights, without being required to do so
13.8 No defect right shall exist in the following cases in particular: inappropriate or incorrect use, incorrect assembly or commissioning by the Ordering Party or third parties, natural wear and tear, incorrect or negligent treatment, incorrect maintenance, unsuitable operating resources, imperfect construction work, unsuitable building site, chemical, electrochemical or electrical influences, provided the Supplier is not responsible for them. There shall be no defect rights for wearing parts
13.9 If the Ordering Party or a third party improperly repairs the delivery item, the Supplier shall not be liable for the resulting consequences. The same shall apply for modifications to the delivery item undertaken without the prior consent of the Supplier
13.10 Guarantees, in particular condition guarantees, are only binding for the Supplier if they are contained in an offer or an order confirmation, if they are explicitly designated as “guarantee” or “condition guarantee”, or if the Supplier’s resulting obligations from the guarantee are explicitly stipulated
13.11 If the use of the delivery item leads to an infringement of protected commercial rights or copyrights in Germany, the Supplier shall ensure, at his choice and his own expense, for the agreed or intended use that the Ordering Party obtains the adequate right of further use or he shall modify or exchange the delivery item in a manner acceptable to the Ordering Party such that the protected rights are no longer infringed. If this is not possible or is not reasonable for the Supplier, the Ordering Party shall have the right to withdraw from the contract. Under such conditions the Supplier shall also have a right to withdraw from the contract. The Supplier’s obligations according to section 13.11, subject to the damage claims according to section 14 shall be final for the instance of an infringement of property rights or copyrights. Supplier in writing of asserted infringement of property right or copyright claims, (II) the Ordering Party supports the Supplier to an appropriate extent in the defense of the asserted claims and/or enables the Supplier to effect modification measures as described above, (III) the Ordering Party does not admit or recognize to a third party the existence of a legal injury, (IV) all defensive measures included out of court settlements remain reserved for the Supplier at his discretion, (V) the injury of the property right or copyright is based on an instruction by the Ordering Party and (VI) the infringement of the property right or copyright was caused by the Ordering Party or a third party engaged by the Ordering Party carrying out their own changes on the delivery item or using it together with products not made available by the Supplier or using it together with products not recommended by the Supplier or the delivery item is used in manner not designated by the Supplier.
14.1 The Supplier shall be liable for damages from simple negligence only resulting from breaches of material contractual obligations the fulfillment of which make the proper execution of the contract possible and the observance of which the contractual partners regularly rely upon; in this case liability is however limited to typical foreseeable damage. This limitation of liability applies in the same manner for damage caused by gross negligence of employees or representatives who are not agents or members of the management of the Supplier
14.2 In the cases under section 14.1, the limitation period shall be two years after the date the claim is originated and the Ordering Party obtained knowledge of the circumstances giving rise to the claim. Regardless of the Ordering Party’s knowledge, the claim shall expire three years after the event which caused the damage. The limitation period for damage claims based on defects is found in section 13.1.
14.3 The above limits to liability shall apply to all damage claims regardless of their legal basis with the exception of the Ordering Party’s damage claims (a) because of willful intent, (b) according to product liability law, (c) because of fraudulently concealed defects, (d) due to defects covered by a guarantee of condition (in this regard the liability terms and limitation period provided in the guarantee shall apply), (e) from injury to life, body or health or (f) due to gross negligence of agents or members of the management of the Supplier.
14.4 The above liability limitations also apply to the Ordering Party’s damage claims against the Supplier’s agents, management, employees or representatives.
15. SOFTWARE USE
15.1 To the extent software is included in the delivery the Ordering Party shall be granted a non-exclusive and non-licensable right to use the software that is delivered, including the documentation
15.2 The delivered software shall be provided for use by the Ordering Party only on the delivery item it is intended for. Use of the software on more than one system shall not be permitted
15.3 The Ordering Party may only reproduce, revise or translate the software or convert the object code into source code to the extent permitted by law (sections 69a pp of the German Copyright Law (UrhG).The Ordering Party undertakes not to remove or modify the manufacturer's details – particularly trademark, copyright or other notices – unless the Supplier has first given his explicit written consent
15.4 All other rights to the software and the documentation, including copies, shall remain with the Supplier or with the software supplier. It shall not be permitted to loan, rent, grant or sublicense the software to third parties.
16. DETERIOATION OF FINANCIAL POSITION
16.1 If it becomes clear after the conclusion of the contract with the Ordering Party that the performance of its contractual obligations is in danger due to its financial condition (in particular for payment stoppage, application for an insolvency proceeding, seizure or foreclosure, levy of bill or check protests and refusal of direct debit also with respect toward or with third parties), the Supplier may withhold the delivery until prepayment of the purchase price or the establishment of an appropriate security. This shall also apply in the case of a founded doubt as to the Ordering Party’s ability to pay or his credit worthiness as a result of a delay in payment
16.2 The Supplier may completely or partially withdraw from the contract if an insolvency proceeding is applied for or opened upon the assets of the Ordering Party.
17. ORDERING PARTIES RIGHT OF CANCELLATION
To the extent the delivery item is not a fungible, manufactured or a movable object to be produced according to § 651 of the German Civil Code (BGB), the Ordering Party may cancel the contract at any time until completion of the work only then when an important reason exists according to § 649 of the German Civil Code (BGB). The Supplier shall in this case be entitled to the agreed remuneration. However, the Supplier must permit the deduction of expenditures which he saves as a result of cancellation of the contract or of income which he acquires, or maliciously omits to acquire, by using its labour and equipment elsewhere.
18. COMPLIANCE WITH APPLICABLE LAW AND EXPORT
18.1 The Ordering Party shall comply with all legal regulations and official requirements as well as all other applicable laws and in particular export provisions and the laws of the country in which the Ordering Party does business. The Ordering Party shall timely obtain all required authorizations and licenses as well as all other required approvals which are required according to applicable laws for the use and or export of the delivery item.
18.2 The Supplier shall have the right to withhold his performance from the Ordering Party if the Ordering Party would breach such applicable laws or if not all of the required authorizations have been obtained and it is not due to the fault or responsibility of the Supplier.
The Ordering Party may not completely or partially assign the rights and obligations arising in connection with deliveries without the prior written consent of the Supplier.The Supplier may assign the rights and obligations arising upon it in connection with deliveries, in particular to affiliated companies.
20. SEVERABILITY CLAUSES
Should individual conditions of these General Supply Terms be or become unenforceable, it shall not affect the enforceability of the remaining conditions.The contractual parties commit themselves to replace the unenforceable clause by a clause which comes as close to the economic success as possible.
21. APPLICABLE LAW, JURISDICTION, PLACE OF PERFORMANCE
The laws of the Federal Republic of Germany exclusively apply to all legal relationships between the Supplier and the Ordering Party to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes from or in connection with a delivery is the court of law at the place of the head office of the Supplier. The Supplier may however file suit in the jurisdiction of the seat of the Ordering Party. The place of performance for all obligations arising from or in connection with a delivery is the facility at the head office of the Supplier.
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