terms and conditions
Terms and Conditions
As of: 01 July 2014
1. Scope of Application
1.1 The following terms and conditions shall apply for all contracts between IHSE GmbH and the customer for the supply of hardware and software (Delivery Item) as well as additional services provided by IHSE GmbH. No other terms and conditions shall constitute terms and conditions of the contract even if IHSE GmbH does not expressly object to them.
1.2 IHSE GmbH supplies only entrepreneurs (“Unternehmer”) within the meaning of Section 14 German Civil Code (BGB). The following General Terms and Conditions therefore apply only in relation to entrepreneurs (“Unternehmer”) within the meaning of Section 14 German Civil Code (BGB).
2. Additional Services
2.1 IHSE GmbH shall, at the customer’s request, provide additional services in relation to hardware and software acquired by the customer from IHSE GmbH (Delivery Items); including training and technical support by phone and e-mail.
2.2 Additional services shall be provided in return for a separate fee and must in each case be agreed separately by means of an order confirmation. The contract concerning additional services shall take effect when the order is confirmed by IHSE GmbH.
3.1 Unless otherwise agreed, all prices for Delivery Items, additional services (particularly installation) transportation, dispatch, and other services to be provided by IHSE GmbH as well as any supplements for night work, work on Sundays and public holidays are set out in the price list in the version applicable at the time the contract is concluded.
3.2 All prices are net prices. The cost of dispatch, transportation and installation is not included and will be charged in addition in accordance with the price list. Flat-rate prices agreed for installation do not include surcharges that become necessary for overtime, night work, work on Sundays and public holidays in the event of any interruptions in the installation, for which IHSE GmbH is not answerable. Said surcharges can be charged in addition in accordance with the price list.
3.3 IHSE GmbH shall be entitled to implement a reasonable price increase if delivery of the contractual products is not to be made within 4 months following conclusion of the contract or is not made within said period at the customer’s request. The customer shall be entitled to rescind the contract within 2 calendar weeks of receipt of the notification of the price increase by IHSE GmbH if the net price stipulated by IHSE GmbH by way of the price increase exceeds the net price originally agreed by the parties by more than three %. The right to a reasonable price increase does not exclude the right to assert further claims against the customer.
4. Payment Terms and Late Performance (“Verzug”)
4.1 IHSE GmbH is under no obligation to render performance in advance.
4.2 If an agreement has been reached with the customer in derogation from Clause 4.1 IHSE GmbH can refuse to render the performance if, after conclusion of the contract, its claim to payment of the agreed remuneration is at risk due to a substantial deterioration in the customer’s financial circumstances or other lack of solvency on the part of the customer or if such a risk becomes apparent. This does not apply after the agreed remuneration has been paid or security for the agreed remuneration has been furnished. IHSE GmbH can set the customer a reasonable deadline by when the customer must, at its option, either pay the contractual remuneration or furnish security contemporaneously against the rendering of the performance owed by IHSE GmbH. IHSE GmbH may rescind the contract after the deadline has expired to no avail. To safeguard its claims IHSE GmbH, as a matter of principle, obtains information on every new customer from a German credit agency.
4.3 If the customer is late with payment the statutory interest rate shall apply.
5. Delivery and the Passing of Risk
5.1 Unless otherwise agreed in the individual case, the supply of Delivery Items shall be effected “ex works” (IHSE GmbH). At the customer’s request IHSE GmbH shall dispatch the Delivery Items to the customer.
5.2 When collected, the risk of accidental loss or of accidental deterioration of Delivery Items shall pass to the customer upon handover of the Delivery Items. In the event that Delivery Items are dispatched at the customer’s request, the risk of accidental loss or of accidental deterioration shall pass to the customer upon handover of the Delivery Items to the company designated to carry out the dispatch or to the person designated to carry out the dispatch. This shall also apply if IHSE GmbH carries out the dispatch itself provided that IHSE GmbH has not by contractual agreement also assumed responsibility for installing the Delivery Items following on from having carried out the dispatch. In any such case the risk of accidental loss or of accidental deterioration shall pass to the customer in accordance with Clause 11.1 when the installation has been accepted or completed. If collection by, or dispatch to, the customer is delayed because the customer refuses to accept the Delivery Items or fails to perform an act of cooperation that is necessary for the collection or dispatch the risk shall pass to the customer when IHSE GmbH verbally offers to make the handover at the time of collection or dispatch.
6. Rendering Performance
6.1 At the time when additional services, particularly installation services, that are due and are to be carried out by IHSE GmbH begin, the customer must have rendered the acts of cooperation required or agreed by the parties for the additional services, particularly the installation. The same applies to the customer’s acts of cooperation in the field of information technology that are customary and can reasonably be expected of the customer. The customer must grant the employees of IHSE GmbH access to the localities where the installation services are to be provided. The localities must furthermore allow work to be carried out unhindered and must be supplied with the customary extent of power and light. If the above-mentioned requirements are not fulfilled due to circumstances, for which the customer is answerable, the customer shall bear the additional expense incurred as a result in accordance with IHSE GmbH’s price list that applied at the time the contract was concluded.
6.2 IHSE GmbH shall be entitled to employ third parties to render its services.
7. Special Provisions for the Rendering of Additional Services relating to Hardware
7.1 IHSE GmbH shall be under an obligation to provide additional services relating to such hardware as is in a technically sound condition and is set up at a suitable place of business. The hardware shall be deemed to be technically sound if it has been serviced without interruption in accordance with IHSE GmbH’s requirements since it was first started up and has been changed or moved to another place of installation only with IHSE GmbH’s consent. If said conditions are not met, IHSE GmbH can, at its option, make its own performance dependent on the customer either restoring the contractual condition or the customer paying for the extra cost caused by the change in accordance with IHSE GmbH’s price list as applicable from time to time.
7.2 The customer may not make any unauthorized changes or additions to hardware; IHSE GmbH must be notified in writing and in advance of planned changes to the hardware. The customer shall bear any disadvantages resulting from changes or enhancements, which were not made by IHSE GmbH or by agreement with IHSE GmbH, in particular any impairment of operational safety.
7.3 IHSE GmbH shall be entitled to subsequently demand additional reasonable remuneration for changed or enhanced hardware in accordance with IHSE GmbH’s price list as applicable from time to time if the changes or enhancements do not significantly interfere with the performance.
8. Training Courses
IHSE GmbH offers the customer’s employees training courses on use of the hardware used at the customer. A corresponding agreement comes about when IHSE GmbH has accepted a request from the customer by sending an order confirmation. The details are regulated in the order confirmation
9. Technical Support by Phone and E-Mail
As part of its technical support, especially by phone and e-mail, IHSE GmbH receives and processes questions about Delivery Items. For this, the customer should use the “Checklist for Service and Problem Cases” provided by IHSE GmbH. The Technical Support may only be used by the customer himself. Moreover, the support is provided on the basis of these General Terms and Conditions.
10. Duties to Check and Report Defects
10.1 The customer shall inspect Delivery Items within eight working days (all calendar days excluding Saturdays, Sundays and public holidays at the customer’s place of registered office) of delivery. Delivery occurs as soon as the customer has the opportunity to exercise physical control over the Delivery Items. If, in addition to the supply of goods, IHSE GmbH is under an obligation to render additional services which are intended to enable the customer to use the Delivery Items as intended (e.g. installation of the Delivery Items), the Delivery Items shall be deemed to have been delivered only when said additional services have been rendered.
10.2 Any defects discovered when carrying out the inspection under Clause 10.1 or obvious defects must be asserted in writing to IHSE GmbH at the latest within eight working days following expiry of the period allowed for inspection under Clause 10.1. Any defects that cannot be discovered when carrying out the ordinary inspection of the Delivery Items must be asserted in writing to IHSE GmbH within 14 working days following discovery. In the event of any breach of the duty to inspect and report defects under this provision, the Delivery Items shall be deemed to have been approved in respect of the defects concerned.
11.1 If IHSE GmbH renders additional services in addition to the supply of Delivery Items such as hardware or software, in particular the installation of hardware or software, the shall be obliged to declare acceptance of said further performances in writing to IHSE GmbH as soon as they have been rendered in accordance with the contract. The acceptance cannot be refused because of minor defects providing that collectively they are not equivalent to a major defect. For performances where acceptance is not possible due to their nature completion shall replace acceptance.
11.2 If the customer is obliged to declare acceptance under Clause 11.1, acceptance shall be deemed to have effect if the customer does not declare acceptance within seven working days following a request by IHSE GmbH. Any defects must be reported to IHSE GmbH without undue delay in writing and in a reconcilable manner.
12. Software Products, Rights of Use
12.1 If it has been agreed that software will be delivered, the delivery shall be effected, at IHSE GmbH’s option, by sending a data carrier or by making the software available for download. Unless otherwise agreed in the individual case, IHSE GmbH shall not be obliged to install the software or to commission it. Furthermore, unless otherwise agreed, IHSE GmbH is not under any obligation to provide any maintenance or training services.
12.2 When software (firmware, updates etc.) is delivered IHSE GmbH grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software, which right is unlimited in terms of time and geography. To the extent software supplied by IHSE GmbH has been developed either in whole or in part by third parties, the licence terms and conditions of the developer of the software shall apply thereto provided that IHSE GmbH has advised the customer of the relevant licence terms and conditions at the time when the contract was concluded. In all other respects the application of these Terms and Conditions shall remain unaffected by the licence terms and conditions of the software developer concerned.
12.3 Any changes, additions and improvements to the software, based on a suggestion, instructions or other direct or indirect influence exerted by the customer shall not give rise to any joint copyright of the customer to any extent whatsoever.
13. Intended Use, Warranty Rights and Fault Rectification
13.1 IHSE GmbH does not assume any liability and the customer is not entitled to any warranty rights for deviations of the Delivery Items from the contractually intended quality that are not already present at the passing of risk, of accidental loss or of accidental deterioration, but rather arise as a result of natural wear and tear, use, faulty, improper or excessive use or other circumstances after the passing of risk. The same shall apply mutatis mutandis when additional services are provided.
13.2 Clause 13.1 shall also apply to the absence of any properties of the Delivery Items or additional services that are not part of the contractually intended quality. Unless otherwise agreed with the customer, IHSE GmbH shall in particular not be responsible for the Delivery Items or additional services being suitable for use in safety-related systems and areas, which due to a tendency to cause a high degree of damage require a special degree of stability and reliability (e.g. power stations, hospitals and other health care institutions, aircraft and air traffic control). If the customer uses Delivery Items or additional services provided by IHSE GmbH in such safety-related systems and areas without a corresponding agreement with IHSE GmbH, the customer must itself bear such consequences (e.g. damage, expenses, costs) of any failure or malfunction that are due to the fact that the Delivery Items or additional services do not have the stability and reliability that are customary and necessary in such safety-related systems and areas.
13.3 In the event that a Delivery Item or an additional service has a defect IHSE GmbH shall be obliged to, at its option, rectify it (Nachbesserung) or deliver replacement goods (Nachlieferung) (supplementary performance (Nacherfüllung). The customer may assert further rights of the customer, particularly the right to reduce the contractual remuneration, the right to demand compensation for damage caused by the defect as well as the right to rescind the contract subject to the statutory requirements. Any claims of the customer to damages shall be governed by Clause 14. The customer’s right to rescind the contract is excluded in a case of minor defects.
13.4 The warranty rights shall lapse if the customer or a third party makes changes to the Delivery Items, to which IHSE GmbH has not previously given its express consent. This case is only different if the customer proves that faults or malfunctions that arise are not due to the changes and that said changes did not make the fault detection and rectification more difficult.
13.5 The Customer is not entitled to remedy defects himself or to demand compensation for the expenses thereby incurred.
13.6 The customer is obliged to describe faults that arise, the sequence of system failures, hardware failures and/or other problems (referred to as “faults”) as precisely as possible and to report them without undue delay in writing or by e-mail. For this, the customer shall use the “Checklist for Service and Problem Cases” provided by IHSE GmbH. IHSE GmbH shall start to rectify the fault using the possibilities and means available to it without undue delay after a fault has been reported. IHSE GmbH shall endeavor to inform the customer of how and within what time frame it can eliminate the reported fault or, as the case may be, whether and how the customer can bypass the fault.
13.7 The manner in which the fault is rectified is at IHSE GmbH’s equitable discretion. The fault can also be rectified in the form of IHSE GmbH giving the customer instructions on what to do. The customer must follow said instructions, of what to do unless it is unreasonable to expect the customer to do so. If the fault rectification is more involved than assumed, IHSE GmbH is entitled to provide the customer with a replacement or workaround. If IHSE GmbH provides a workaround the goods/services shall not be deemed to be defective. In this context IHSE GmbH is also entitled to make changes to the configuration of the Delivery Items if and to the extent that the operability of the Delivery Items is not thereby impeded either individually or altogether.
13.8 If the defect occurs in firmware of IHSE GmbH, IHSE GmbH shall carry out the supplementary performance (Nacherfüllung) by providing an update. The update shall, at IHSE GmbH’s option, be made available for download or shall be delivered by e-mail. There is no failure of the supplementary performance (Nacherfüllung) if the update delivered remedies the defect in principle, but installation of the update by the customer fails although said installation was possible and reasonable for the client taking into account any installation instructions provided by IHSE GmbH. IHSE GmbH does not accept responsibility for its firmware being compatible with other software and hardware used by the customer where said software or hardware is not a Delivery Item and shall therefore not be liable unless the customer has notified IHSE GmbH in advance and in writing of the other software and hardware used and IHSE GmbH, aware of this fact, has given its consent to the use of the firmware.
13.9 Warranty rights regarding IHSE GmbH’s Delivery Items shall be time-barred within one year from delivery of the Delivery Items. Warranty rights regarding the additional services shall be time-barred within one year from acceptance of the service provision, however no later than one year from termination or expiry of the contract.
13.10 If, contrary to the customer’s report of a defect, it transpires that the Delivery Item or additional service do not have a defect or that there are no warranty rights because the warranty period has expired or because of other reasons, the customer shall bear the cost caused by its complaint, especially the cost of checking for defects, in accordance with IHSE GmbH’s price list applicable at the time the contract was concluded.
13.11 If a property of the software delivered by IHSE GmbH, which the customer has assessed to be disadvantageous, does not constitute a defect, IHSE GmbH shall also not be obliged to rectify said property (e.g. under corresponding maintenance agreements with the customer) and if IHSE GmbH nevertheless provides the customer with an update free of charge to improve the functionality of the software IHSE GmbH gives a warranty for said update only to the extent that it has fraudulently concealed any defects in the update. In that case, the customer shall have a claim to compensation for damage that has occurred (if any) in accordance with Clause 11. The same applies to other updates and other software, which IHSE GmbH makes available to the customer free of charge without any obligation to do so.
14.1 IHSE GmbH shall be liable for damage due to breaches of duty in connection with the delivery of software or additional services free of charge without a corresponding obligation on the part of IHSE GmbH only for intent and gross negligence. Clause 10.9 shall remain unaffected.
14.2 IHSE GmbH’s liability for cases of product liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by the provisions of this Clause 14 and shall be governed solely by the German Product Liability Act (Produkthaftungsgesetz).
14.3 In all other respects IHSE GmbH shall be liable for compensation irrespective of the legal ground only to the extent expressly provided in Clauses 14.4 to 14.9.
14.4 IHSE GmbH’s liability for damage caused intentionally or grossly negligently by statutory representatives, employees or vicarious agents of IHSE GmbH or which is based on a breach of an unlimited guarantee or an injury to life, body or health is unlimited. In cases of limited liability IHSE GmbH’s liability shall be limited to the guaranteed sum.
14.5 Save as provided in Clause 9.4 IHSE GmbH’s liability due to negligent breaches of contractual obligations (leicht fahrlässige Verletzungen von Vertragspflichten), the performance of which makes the proper implementation of the contract possible in the first place, and compliance with which the customer lawfully relied and may rely on shall be limited to the foreseeable damage that is typical for the contract.
14.6 Save as provided in Clause 14.4 and Clause 14.5, IHSE GmbH’s liability for ordinarily negligent breaches of duty (einfach fahrlässige Pflichtverletzungen) shall be limited in quantum to the single amount of the remuneration payable to IHSE GmbH by the customer by reason of the respective delivery or additional service per case of damage and in total to three times the amount of the average remuneration payable by the customer to IHSE GmbH per delivery or additional service by reference to all deliveries or additional services to the customer in a calendar year.
14.7 The limitation period for the customer’s claims for damages shall be one year as of the end of the year in which the respective claim arose and the customer learned, or without gross negligence should have learned, of the circumstances giving rise to the claim and who the debtor was; unless IHSE GmbH caused the damage intentionally. Clause 13.9 shall remain unaffected.
14.8 If damage is attributable to the negligence of IHSE GmbH as well as to the negligence of the customer, the customer must accept that its contributory negligence is taken into account in any claim for damages within the meaning of Clauses 14.1 to 14.7.
14.9 Insofar as IHSE GmbH’s liability is excluded or limited under the above Clauses 14.1 to 14.8, this shall also apply for the personal liability of the owner, statutory representatives, employees, workers, staff and vicarious agents of IHSE GmbH.
15. Reservation of Title
15.1 IHSE GmbH reserves title to Delivery Items until all payments owed by the customer together with any costs and interest arising out of the respective contract have been received. The customer is under an obligation to treat the Delivery Items with care so long as title to the Delivery Items has not yet passed to the customer. Unless otherwise agreed with the customer, the customer must carry out any necessary inspection and maintenance work in a timely manner and at its own cost.
15.2 In the event of a breaches of duty by the customer, in particular in the event of late payment, IHSE GmbH shall, after setting a deadline, be entitled to take back the Delivery Items and the customer shall be obliged to surrender them. The assertion of the reservation of title and the seizure of the Delivery Items by IHSE GmbH shall not be deemed to be rescission of the contract.
15.3 The customer shall be entitled to sell the Delivery Items in the normal course of business without passing on the reservation of title provided the customer is not in default of timely satisfaction of IHSE GmbH’s accounts receivable secured by the reservation of title. The Delivery Items may not be pledged or title thereto transferred as security.
15.4 The customer hereby already assigns the accounts receivable that arise out of the resale of the Delivery Items in the amount of the invoice value of the Delivery Items (purchase price) to IHSE GmbH as security. IHSE GmbH revocably authorizes the customer to collect the accounts receivable assigned to IHSE GmbH in its own name but for the account of IHSE GmbH. IHSE GmbH shall remain entitled to collect the accounts receivable itself. It shall not collect the accounts receivable itself so long as the customer is not late with payment and in particular so long as no petition for the opening of insolvency proceedings over the customer’s assets has been filed. In the event that a third party attaches the Delivery Items the customer must point out IHSE GmbH’s title and must inform the latter without undue delay.
15.5 Any adaptation and processing or transformation of the Delivery Items owned by IHSE GmbH by the customer shall always be effected in the name and on behalf of IHSE GmbH. IHSE GmbH shall acquire co-ownership of the intermediate and end products produced in the proportion that results from the proportion which the objective value of the Delivery Items at the time of processing has to the value of the intermediate or end product. If the Delivery Items are processed with other property not owned by IHSE GmbH, IHSE GmbH shall acquire co-ownership of the new goods in the proportion which the objective value of the Delivery Items has to the other processed property at the time of processing. The same shall apply in the event of any mixing. If the goods are mixed in such a way that the customer’s goods are to be considered as the main goods, the customer shall transfer the co-ownership to IHSE GmbH proportionately and shall keep the co-owned property created in safe custody for IHSE GmbH. In the event of any adaptation, processing or transformation or mixing, the customer’s contingent right in the Delivery Items shall continue in the goods in which IHSE GmbH acquires co-ownership due to the adaptation, processing, transformation or mixing. If the Delivery Items are joined to a piece of land the customer assigns the claims that accrue to it against a third party by reason of the fact that the Delivery Items are joined to a piece of land to IHSE GmbH by way of security.
15.6 IHSE GmbH shall release the security to which it is entitled under this Clause 15 upon demand by the customer to the extent that its value exceeds the claims to be secured by more than 10 %.
16. Set-Off, Right of Retention
16.1 The customer shall have no right of set-off unless the counterclaim is final and absolute or is undisputed.
16.2 The customer shall have no right to refuse performance and no right of retention unless the claim, upon which the right to refuse performance or the right of retention is based, is final and absolute or undisputed.
17. Governing Law, Place of Jurisdiction, Miscellaneous
17.1 The governing law shall be the law of the Federal Republic of Germany; the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. The exclusive place of jurisdiction for all disputes arising out of and in connection with this Agreement shall be Überlingen. IHSE GmbH shall remain entitled to also bring an action at the customer’s general place of jurisdiction.
17.2 IHSE GmbH shall be entitled to affix a company or other mark to the items delivered by it or additional services rendered.
17.3 In the event that individual provisions of these General Terms and Conditions are or become void, the validity of the remaining provisions shall remain unaffected thereby. The void provision should be replaced by a provision, which economically comes closest to the void provision. If these General Terms and Conditions contain a lacuna in the provisions, said lacuna should be filled by a provision which the parties would have agreed had they been aware of the lacuna at the time the contract was concluded.
17.4. Any amendments and additions to these General Terms and Conditions are required to be in writing. This shall also apply to any cancellation of this requirement of writing.
Errors and omissions excepted.