1. subject matter of the contract
IPM Elektromatic GmbH sells to the customer the specified goods offered on the terms and conditions of delivery and sale (GTC) set forth below.
2 Conclusion of Contract
The contract between the customer and IPM Elektromatic GmbH, abbreviated as IPM GmbH, shall only be concluded by an order of the customer and its acceptance by IPM GmbH. The order of the customer is made by written order (by mail or by e-mail).
IPM GmbH accepts the order by sending the customer an order confirmation by e-mail.
3. product offer
All information about the goods, which the customer receives during the order process, are non-binding. In particular, changes in design and technology, which improve the functionality of a product, as well as errors in description, illustration and pricing are reserved.
Additional agreements and verbal arrangements are only valid if they are clearly described in offers / order confirmations.
Before the start of production you will receive a drawing for approval, which is binding after approval, later changes will be charged according to expenditure.
4. price validity
Unless a commitment is expressly declared for individual circumstances, all offers are subject to change, provisional and non-binding in the sense of pure price information and cannot be accepted as such.
In particular, price, quantity and deadline specifications require further technical and commercial clarification.
Offers are valid without obligation for up to 10 weeks after submission of the offer.
In any case, a binding contract shall only be concluded upon our written confirmation.
5. terms of payment
Transport and packaging costs will be charged separately, unless otherwise agreed.
For orders below Euro 500,- a small quantity surcharge of Euro 25,- will be added.
Unless otherwise agreed, payment shall be made net within 14 days after invoicing.
IPM GmbH reserves the right to supply new customers and existing customers by cash on delivery. Offsetting with counterclaims by the customer is only possible with recognized or legally binding claims against IPM GmbH. The same applies to a right of retention, which must also be based on the same legal relationship. In the event of default in payment, the reimbursement of all costs, expenses and cash outlays incurred by us in the expedient pursuit of our claims shall be deemed to have been agreed and you shall be obligated to reimburse us in this respect. These costs and expenses include, in particular, the tariff-based costs of engaging a collection agency or law firm.
6. delivery conditions
If in stock, the products will be delivered immediately to the address specified by the customer. Otherwise, a written order confirmation with the expected delivery date will be sent.
The goods are delivered (from the loading ramp) at the expense and risk of the customer, even if partial deliveries are made. In the case of externally visible damage to the ordered goods, the settlement of damages will be made only against a certificate of the respective carrier. Larger packages, shipments over 30 kg and entire plants will be shipped by freight forwarder or carrier and will be charged according to expenditure.
7. reservation of proprietary rights
The delivered goods remain our property until full payment of all claims. Even if the delivered goods are processed, mixed or combined with one or more items by the buyer/customer or by third parties on the buyer/customer's behalf before the end of the retention of title, i.e. before the transfer of ownership to the buyer/customer, our ownership of the delivered goods shall not cease. In this case, we shall be co-owners of the new or combined item in the ratio of the invoice value of the reserved goods to the value of the new or combined item. The buyer/customer hereby assigns to us all claims and other rights arising from any resale from a rental or lease as well as from leasing transactions, even if the delivered goods have previously been combined or processed with other items; the buyer/customer is obliged to make a corresponding note in his books. Furthermore, in the event of a resale of the goods subject to retention of title, which shall also include a rental, leasing or leasing transaction, the Purchaser/Orderer shall be obliged to point out the fact of the assignment of claims already in its delivery bill, but at the latest in its invoice, to the effect that payment of the claims of the third-party purchaser to the Purchaser/Orderer with debt-discharging effect can only be made to us. If the delivery item is sold or made available for use together with other items without or after combination or processing, the assignment shall only apply to the amount of the purchase price owed to us. Further claims for damages shall not be excluded thereby. The buyer/customer is only authorized to dispose of the goods subject to retention of title in the event of resale with deferral of the purchase price on condition that he notifies the second buyer of the assignment by way of security at the same time as the sale and notes the assignment in his business records.
8. right of return
Material and product returns require our express prior consent and are made at the expense and risk of the returning party. The returned goods must be undamaged, functional and complete and in perfect packaging with delivery note/return bill. The customer shall bear the costs of the return shipment. Custom-made products, non-stock items and material cuts cannot be returned and are generally excluded from the right of return. Credit notes can generally and without exception not be redeemed in cash or as a refund.
9 Warranty and liability
We guarantee faultless quality of the products in accordance with the order standards.
Within the warranty period of 24 months after delivery, we undertake to replace or improve free of charge all parts which are demonstrably defective or unusable as a result of poor material, faulty design or defective workmanship, at the written request of the customer.
Notification of defects shall be made immediately upon receipt of the product in the case of obvious defects, and immediately upon becoming known in the case of hidden defects, in which case, however, warranty claims and/or claims for damages shall be excluded, at the latest four weeks after delivery.
The customer is obliged to check the delivered goods immediately for defects. In the event of justified immediate notification of defects, we shall take back defective goods in agreement with the customer and deliver replacements in their place. The customer acknowledges that we are entitled to rectify defects. For this purpose, the customer is obliged to set us a reasonable deadline for rectification.
In the event of any replacement, we shall only be liable up to the amount of our own costs. In general, we are liable for breach of contractual, pre-contractual or non-contractual obligations only in case of intent or gross negligence.
We shall never be liable for slight negligence, including any loss of profit. This limitation of liability shall not affect our strict liability for defective products under the Product Liability Act as amended from time to time, insofar as we are liable at all under this Act.
Excluded from the warranty are damages due to natural wear and tear, inadequate maintenance, excessive stress, defective construction and assembly work not carried out by us, and as a result of other reasons for which we are not responsible.
The warranty shall not apply if the customer or third parties carry out modifications or repairs to the delivery without our written consent. In the case of purchased parts, the warranty periods valid from the manufacturer shall apply.
The burden of proof for the existence of intent or gross negligence lies with the buyer/customer.
In the event of complaints, the customer shall immediately give us the opportunity to convince ourselves of the alleged defects, in particular to make the goods complained of or samples thereof available at our request so that an inspection can be carried out.
Information and advice provided by us in any form whatsoever, including in the form of recommended goods provided for testing or comments on inquiries, shall not be binding on us and shall not release the customer from its own examination as to suitability for the intended purposes.
10 Intellectual Property
IPM GmbH reserves the property rights and copyrights for each design, text, graphics on its products. The same applies to illustrations, drawings, calculations and other documents. The customer requires the express written consent of IPM GmbH before passing them on to third parties.
11 Place of jurisdiction and applicable law
The place of jurisdiction for all disputes arising directly or indirectly from the mutual contractual relationship shall be the court having subject-matter and local jurisdiction for 6850 Dornbirn.
The contracting parties agree to apply Austrian law; this applies in particular to all disputes arising directly or indirectly from the mutual contractual relationship as well as to all their mutual legal relationships. Recourse and further reference to other legal systems are excluded.
12 Force majeure
Events beyond our control shall release us from the performance of all obligations entered into for the duration of the hindrance.
13. severability clause
Should individual points of these general terms and conditions of sale be invalid, all other points of these terms and conditions of sale shall remain unaffected. The invalid provision shall be replaced by the statutory provision provided for herein. In the absence thereof, the gap thus created shall be closed by supplementary interpretation of the contract or by analogy. A departure from these contractual conditions can only be made in writing. The waiver of this formal requirement is also bound to the written form.
All our orders and contracts are based exclusively on our General Terms and Conditions of Purchase set out below. These conditions apply equally to all work and other services ordered or commissioned by us, in particular also to assembly services.
§ 1 Scope of application
(1) Our Terms and Conditions of Purchase shall apply exclusively. We do not recognize the supplier's terms and conditions of sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the Supplier's delivery without reservation in the knowledge that the Supplier's terms and conditions conflict with or deviate from our Terms and Conditions of Purchase. 2.
All agreements made between us and the supplier for the purpose of executing this contract must be in writing (also fax, e-mail). Written correspondence is to be conducted only with the purchasing department.
(3) Our Terms and Conditions of Purchase shall apply - unless otherwise specified - only if the Supplier is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.
Our Terms and Conditions of Purchase shall also apply to all future transactions with the Supplier.
§ 2 Conclusion of Contract, Contracts for Work and Services, Procurement Risk
1. offers shall be submitted in writing and shall be free of charge for us. Only orders placed in writing shall be legally binding. In the case of informal business transactions, our order shall be deemed to be a commercial letter of confirmation.
2. machines are to be offered in the latest design and must correspond to the latest findings and the applicable state of the art in the field of mechanical engineering and be constructed using standardized machine parts in accordance with DIN/EN. All machines, apparatus and equipment offered must comply with the statutory provisions, in particular the protective provisions of the Equipment Safety Act, the DIN, EN and VDE regulations and the regulations of the employers' liability insurance associations, in particular the accident prevention regulations. 3.
3. machine elements and parts shall be designed and arranged in such a way that they can be quickly and easily maintained, inspected and replaced, in particular without having to dismantle other machine parts beforehand.
4. the supplier is obliged to accept our order (offer) within a period of one week at the latest by written confirmation or to execute it without reservation (acceptance). A delayed acceptance shall be deemed to be a new offer and shall require our acceptance. 5.
(5) We shall be entitled to inform ourselves within business or operating hours about the contractual execution of the delivery/service. Upon request, the documents required for such information shall be submitted to us for inspection.
§ 3 Obligation to inspect and advise
(1) The supplier shall be obliged to inform himself about the intended use of the items to be supplied by him and to take into account seasonal and other fluctuations in the conditions of use and application. He shall inform himself about regular machine running times and maintenance possibilities. The supplier shall assume as an independent duty our advice in the selection and specification of the items to be delivered, in particular also the duty to point out to us any concerns regarding the suitability of items selected by us or our specifications for the intended purpose. 2.
2. the supplier shall notify us in writing without delay if he has any concerns about the way in which we wish the delivery/service to be carried out or if he feels that the execution of his delivery/service is hindered by third parties or by us.
§ 4 Changes to the performance, third parties
(1) We shall be entitled to demand subsequent changes to the agreed scope of performance in terms of design and quantity if this is required for special operational reasons (e.g. a significant change in our order situation) and the change is customary in the trade or reasonable for the Supplier. We shall declare the request for change with a notice period of 2 weeks in advance. 2.
(2) We may terminate or withdraw from the contract for good cause, in particular if the supplier has filed an application for the opening of insolvency proceedings, if the supplier has not only temporarily suspended payments or if insolvency proceedings have been opened against the supplier's assets or the opening of such proceedings has been rejected for lack of assets, unless the contract is a continuing obligation which serves the purpose of the continuation of the business.
3. if the subject matter of the contract is the creation of a work, the supplier shall not be entitled without our prior written consent to have the main service owed by him performed by third parties (e.g. subcontractors).
§ 5 Pricing
1. the price stated in the order shall be deemed to be a fixed price including the respective statutory value added tax. Any price change shall require our prior written consent. Additional and/or changes to the deliveries/services shall only be remunerated if a written supplementary agreement has been reached on this prior to the performance of this service. 2.
The price shall be quoted "free domicile" or free shipping address. 3.
3. the agreed price shall be due for payment within 60 calendar days of complete delivery and performance and receipt of invoice by us. If we make payment within 30 calendar days, the supplier shall grant us a 3% discount on the gross amount of the invoice. A reminder must be sent in writing. For the timeliness of our payment, the handing over of the transfer order to the bank/credit institution or the day of the dispatch of the check is decisive.
4. invoices can only be processed by us if the order number stated in the order is given. The supplier shall be responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.
5 We shall be entitled to rights of set-off and retention to the extent provided by law.
§ 6 Delivery Period, Force Majeure, Delay in Delivery, Contractual Penalty
(1) Delivery periods and dates shall be binding on the Supplier. If the supplier does not perform within the agreed delivery time or if he is in default, we shall be entitled to the statutory claims, in particular to rescission of the contract and compensation for damages.
(2) The delivery shall be made "ddp" and including packaging, unless otherwise agreed in writing.
3. in the case of deliveries of materials, the supplier shall be obliged to notify us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed delivery periods and dates cannot be met.
In the case of orders for assembly and services, the agreed start of assembly shall be deemed to be fixed and no postponements shall be accepted by IPM. In case of non-appearance of the assembly team, a contractual penalty of 5% of the order value per day applies; max. 20% of the order volume.
After non-appearance of the assembly team, IPM has the right of substitute performance. The resulting additional costs shall be borne by the previously booked service provider. Any additional costs incurred due to delayed delivery and any claims for damages shall also be borne by the previously booked service provider.
The agreed delivery dates and installation progress are binding and must be strictly adhered to. 4.
4. in the event that the execution deadline is exceeded as a result of force majeure, we shall be entitled to demand delivery/service from the supplier at a later date on the originally agreed terms or to withdraw from or terminate the contract in whole or in part after the expiry of a reasonable grace period.
(5) Failure by the supplier to provide necessary documents, data, supplies and the like shall only preclude a default on the part of the supplier if the supplier has sent a written reminder for these and has not received them within a reasonable period of time.
If the supplier is in default, we may demand a contractual penalty of 0.25% of the agreed net price per working day. In total, however, the contractual penalty shall not exceed 5 % of the agreed net price. We shall be entitled to claim the contractual penalties at the same time as performance and as a minimum amount of any damages owed by the supplier under the statutory provisions. The assertion of further damages shall remain unaffected. If we accept the delayed performance, we may only claim the contractual penalty if we have declared a corresponding reservation to the supplier within 10 working days at the latest from acceptance of the delayed delivery.
§ 7 Warranty, rights in case of defects and breach of duty
(1) The supplier warrants that the delivered goods comply with the contractual agreements with regard to their quality, in particular with regard to function, working speed and precision.
2. the supplier guarantees the use of the best, appropriate material, correct and proper execution, taking into account the latest state of science and technology.
(3) The supplier expressly guarantees the complete conformity of the goods sold with the samples, specimens and descriptions supplied by him.
(4) The supplier of raw materials and supplies shall inform us in good time before changing sources of supply, recipes or production methods so that we can obtain sufficient stocks of 'old' or otherwise proven raw materials and supplies in order to be able to continue our operations in the event that the 'new' raw materials and supplies are not suitable until other sources of supply have been developed.
5. the supplier is obliged to sell to us only such goods which are in compliance with all applicable laws, regulations, standards and provisions binding on him and which enable us to comply with the regulations binding on us with regard to the goods without any further measures.
6. the supplier shall remain responsible for his delivery/service and its defect-free performance even if we have signed, approved, stamped or marked with a "Seen" note or similar the plans, drawings, calculations and other execution documents submitted by the supplier.
(7) The statutory provisions shall apply to our rights in the event of material defects and defects of title in the delivered goods, an agreed assembly, assembly or operating instructions to be supplied with the goods as well as in the event of other breaches of duty by the supplier, unless otherwise stipulated below.
Our notification of defects within the scope of the duty to examine and give notice of defects pursuant to Sections 377, 381 of the German Commercial Code (HGB) shall be deemed to have been made without undue delay and in good time if it is received by the Supplier within two weeks.
If an attempt by the Supplier to remedy the defect or to deliver non-defective goods has failed, or if the Supplier has unjustifiably refused to remedy the defect or has allowed a reasonable grace period set by us to expire, we shall be entitled without further ado to remedy the defect ourselves or to have it remedied by third parties on our behalf and to demand reimbursement from the Supplier of the expenses required for this purpose together with a reasonable advance payment. In addition, the right to withdraw from the contract and to claim compensation for further damage shall remain unaffected. This right of self-remedy shall not apply if the supplier is entitled to refuse subsequent performance in accordance with the statutory provisions.
If an immediate remedy of the defect is not possible due to our operating conditions, the supplier shall immediately provide provisional improvement, unless the expense for this is grossly disproportionate to our interest in provisional improvement. The final rectification of defects shall be carried out as soon as our operating conditions permit. In the event of particular urgency and/or imminent danger, we may, if setting a deadline for subsequent performance is unreasonable for us, remedy the defect by way of self-performance and demand reimbursement of the necessary expenses. We shall notify the supplier without delay of such warranty cases and of the nature and scope of the urgent measures taken.
Our statutory rights of recourse within a supply chain (§§ 478, 479 BGB) shall also apply if the item at the end of the supply chain was not delivered to a consumer but to an entrepreneur. The recourse option of §§ 478, 479 BGB shall also apply if the supplier has not delivered the defective item to us, but accessories or raw materials which were defective.
Both in the case of subsequent delivery and in the case of rescission, we may set the supplier a reasonable deadline to continue to supply a defective item. After expiry of the deadline, we may dispose of the contractual performance at the supplier's expense, e.g. by private sale, while safeguarding the supplier's economic interests, and return the amount received to the supplier. (Step by step against reimbursement of the purchase price or subsequent delivery).
Insofar as a right is the subject matter of the contract, the Supplier shall be liable for its existence and the other absence of defects in title in deviation from § 437 No. 3 BGB (German Civil Code) for damages or reimbursement of expenses even if he was not aware of the defect or is not responsible for it.
§ 8 Spare parts, after-sales service
The supplier of machines shall be obliged for a period of twice the useful life of the machine to
a) to supply us with all spare parts;
b) to maintain a customer service which is available 5 days a week from 7.30 a.m. to 7 p.m. and which arrives at our premises within 24 hours.
§ 9 Statute of Limitations
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) In deviation from Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for material defects and defects of title shall be 3 years from delivery of the goods. In addition, the limitation period for raw materials which are further processed by us into end products which are used for a building in accordance with their usual manner of use shall be six years.
(3) Notwithstanding the foregoing Section 2 and Section 438 (1) No. 2 of the German Civil Code (BGB), the general limitation period for material defects and defects of title in respect of buildings and items which have been used for a building in accordance with their customary manner of use and have caused the defectiveness thereof shall be six years from delivery of the goods.
(4) If the goods have not been delivered, the limitation period shall commence when the claim arises.
(5) For our non-contractual claims for damages related to a defect of the goods, the limitation periods of the law on sales and of the above clauses 2. and 3. shall apply only as minimum periods; otherwise, the regular statutory limitation period shall apply (§§ 195, 199 BGB). The same shall apply if a sold right does not exist, the supplier has assumed a guarantee or has fraudulently concealed a defect.
6. the limitation of claims for defects shall also be suspended if the supplier checks the existence of a defect himself. The suspension of the limitation period shall not end until the supplier notifies us in writing that the negotiation has ended or that the result of the inspection has been sent to us or the supplier refuses in writing to continue the rectification of the defect. The resumption of the negotiation, inspection or rectification of defects shall again suspend the limitation period.
§ 10 Industrial property rights, software
Unless otherwise agreed in individual contracts, the supplier shall grant us at least a non-exclusive, non-transferable and unlimited right of use to software and hardware products and the associated documentation. 2.
We shall be entitled to make copies for the purpose of data backup. We shall also be entitled to pass them on to our customers in connection with contractual processing, with reference to any copyright notice of the originator.
3. the supplier guarantees that the software and its data structure are free of errors and assures proper duplication.
4. in the case of software supplied which has been specially developed or adapted for us, we may demand deposit of the source code of the software together with details of the author(s) with a notary public of our choice at our expense and on the basis of a trust order which entitles the notary public to hand over the deposited documents to us in the event of the liquidation or insolvency of the supplier. In the event of justified handover, the supplier already now grants us a non-exclusive right, unlimited in time, to modify the source code and to use it modified or unmodified to the extent we are entitled to use the delivered software. 5.
5. the supplier warrants that no rights of third parties within the EU are infringed in connection with its delivery.
If claims are asserted against us by a third party on these grounds, the Supplier shall be obliged to indemnify us against such third party claims upon first written request. If the third party does not indemnify us after expiry of a reasonable period of time, we shall be entitled to reach agreements with the third party, in particular to conclude a settlement. 7.
7. the supplier's obligation to indemnify shall apply to all expenses incurred by us as a result of or in connection with the claim by a third party.
§ 11 Secrecy
(1) Illustrations, drawings, calculations, models and all other information or documents provided to the supplier for the manufacture of the delivery item, as well as illustrations, drawings, etc. produced by the supplier according to our specifications, may not be made accessible to third parties by the supplier or used for them without prior agreement with us.
All illustrations, drawings, calculations, models and other information or documents which we have handed over to the supplier for the performance of the contract shall remain our property. All illustrations, drawings, calculations, models and other information or documents produced by the supplier are to be marked with the note: 'for Lafarge'. We hereby agree with the supplier that ownership of all illustrations, drawings, calculations, models and other information or documents marked in this way shall pass to us and that the supplier shall give us possession of the illustrations, drawings, calculations, models and other information or documents as custodian. All illustrations, drawings, etc. provided by us shall be used exclusively for production on the basis of our order and shall be returned to us at any time and without delay upon request together with all copies or duplicates, also in electronic and/or digital form, such as diskettes and CD-ROM data storage. After completion of the order, they shall be returned to us without being requested. 3.
3. all illustrations, drawings, calculations, models and other information or documents must be treated as strictly confidential and kept secret from third parties unless disclosure is made with our express prior written consent. The obligation to maintain secrecy shall also apply after the execution of this contract. However, it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, etc. provided has become generally known. 4.
4. third parties may only be made aware of the business relations existing with us with our consent.
§ 12 Right of retention and set-off
1. a right of retention on the part of the supplier on account of any claims shall be excluded unless the right of retention is based on the same contractual relationship.
2. the supplier shall only be entitled to set-off against claims to which we are entitled insofar as such set-off is made against a claim which is undisputed, i.e. which has been acknowledged in writing or which has been finally adjudicated.
§ 13 Provisions, retention of title
(1) If we provide parts or materials to the supplier, we shall retain title thereto. Any processing or transformation by the supplier shall be carried out on our behalf. In the event of processing or mixing, we shall acquire co-ownership of the new item in the ratio of the value of our provided item to the other processed items at the time of processing. 2.
2. the transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the corresponding remuneration. In any case, all forms of extended retention of title shall be excluded, so that any retention of title effectively declared by the supplier shall only have the effect of a simple retention of title vis-à-vis us.
§ 14 Producer's Liability
(1) To the extent that the Supplier is responsible for damage to a product, it shall be obliged to indemnify us against claims for damages by third parties upon first request to the extent that the cause lies within its sphere of control and organization and it is itself liable in relation to third parties.
2. within the scope of its indemnification obligation, the supplier shall also reimburse us for any expenses pursuant to sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a recall action carried out by us. We shall inform the supplier about the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. Further legal claims shall remain unaffected. 3.
The supplier shall take out and maintain product liability insurance with a lump sum coverage of at least € 2.5 million per personal injury/property damage. The supplier shall prove the existence of the insurance coverage to us upon request.
§ 15 Place of Performance, Choice of Law and Jurisdiction, Written Form
(1) Unless otherwise specified in the order, the delivery address specified by us shall also be the place of performance.
(2) These General Terms and Conditions of Purchase and all legal relations between the supplier and us shall be governed by Austrian law to the exclusion of all inter- and supranational regulations, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the reservation of title in our favor shall be subject to the law of the respective location of the item, insofar as the choice of law made in favor of Austrian law is inadmissible or ineffective thereafter. 3.
(3) If the supplier is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Commercial Court. However, we shall also be entitled to bring an action at the place of performance of the delivery obligation or at the Supplier's place of business. 4.
4. any amendment to the contract must be made in writing.
The English form is not legally binding and serves only for easier understanding!
IPM ELEKTROMATIC GMBH
Jodok-Stülz-Weg 17, 6850 Dornbirn (Österreich)
T +43 (0)5572 40708,
F +43 (0)5572 40708-99
M +43 (0)660 222 00 34
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