General terms and conditions of Ilmenauer Mechatronik GmbH (IMG) – 08/2019
1.) Scope of application
(1) These general terms and conditions apply to all contracts between Ilmenauer Mechatronik GmbH (IMG) and its customers for deliveries services, unless otherwise expressly agreed in writing.
(2) These general terms and conditions apply only to merchants, if the contract is part of the operation of the trade and legal persons of public law and public special assets within the meaning of § 310 para. 1 sent.1 BGB.
(3) The general terms and conditions of IMG apply exclusively. Opposing or deviating conditions of the customer are only binding if and insofar as the IMG expressly agrees to their validity in writing. The general terms and conditions of IMG shall also apply if IMG executes the order without reservation in the knowledge of opposing or deviating conditions of the customer. Deviating agreements apply in each case only for a specific contract and not for future contracts, unless otherwise expressly agreed in writing.
(4) The general terms and conditions also apply to all future contracts between IMG and its customers regarding deliveries and services.
2.) Scope of orders
(1) The deliveries and services of IMG are provided in the scope determined by an offer that is not binding until the conclusion of the contract as deliveries, services and / or works services in accordance with the respectively applicable statutory provisions, unless otherwise stipulated in these general terms and conditions. IMG provides deliveries and services on its own responsibility. The customer remains responsible for the results desired and achieved by him. IMG is responsible for the results achieved, as well as for the management, control and monitoring of the performance of the work.
(2) IMG and the customer are each entitled to apply in writing for changes to the agreed delivery and service scope. The IMG or the customer will check the feasibility of this change after receiving an amendment. The result of this examination must be communicated to the other contracting party without delay in writing. IMG is entitled to charge the customer for the expenses incurred as far as its amendment requires a comprehensive and expensive review. The contractual adjustments required for such a review or for a change in the agreed scope of delivery and services will be specified in an additional agreement.
3.) Execution of orders
(1) The execution of orders takes place under consideration of the current state of science and technology.
(2) The IMG alone is authorized to issue instructions to its employees.
(3) IMG is entitled to use the activities of third parties for the execution of orders. IMG always remains directly liable to the customer itself.
(4) For delivery and work, delivery dates begin with the date of order confirmation by IMG, but not before complete clarification of all details of the order; the same applies to delivery dates. All delivery times and dates are subject to availability and timely self-delivery.
(5) For the adherence of the terms of delivery and delivery dates the time of the supply of the delivery and work achievement at the seat of IMG is decisive, as far as nothing else is agreed.
(6) In cases of force majeure, the contractual obligations of both parties shall be suspended and the dates and deadlines for the performance of contractual obligations shall be postponed accordingly; Force majeure also includes labor disputes in own and third-party companies, delays in transport, machine breakage, governmental measures and other circumstances for which neither party is responsible. The event of force majeure shall be reported to the other contracting party without delay. At the earliest three months after receiving this notification, both contracting parties are entitled to withdraw from the contract.
(7) In the event of non-compliance with the delivery dates for delivery and work, the customer is entitled to compensation instead of the performance due to performance not rendered or not owed (§ 281 BGB) and the objection of non-fulfilled contract (§ 323 BGB) if he has set a reasonable deadline for delivery to IMG, which - insofar as deviating from §§ 281, 323 BGB - is connected with the declaration that he refuses to accept the service after expiry of the period; after unsuccessful expiry of the period, the claim for fulfillment is excluded.
4.) Obligations of the customer
(1) The customer shall provide timely IMG with all information, materials, equipment, documents, processes, etc., necessary for the execution of the order, free of charge.
(2) Insofar as IMG acts at the locations of the customer, the customer also has free access to all premises, installations (hardware, software, networks, etc.) and other services to employees of IMG or third parties commissioned by it within the normal operating hours and within the company access regulations work equipment required for the proper provision of services by IMG. If necessary, the customer must also ensure the provision of workplaces free of charge for the employees of IMG or third parties.
(3) The customer will cooperate as required in the execution of the order.
(4) If the customer does not fulfill the obligations incumbent on him pursuant to paragraphs 1 - 3 or does so in due time and this leads to delays and / or additional expenses, the agreed time frame shall be extended or the agreed remuneration shall be increased accordingly.
5.) Remuneration and payment conditions
(1) The delivery and work services shall be invoiced at the fixed price stated in the offer or on the basis of the agreed time and material basis after delivery and termination of the service or acceptance of the work, unless a different invoicing and payment method has been agreed in the offer. In the case of services and work on a time and material basis, the hours worked and travel times at the current hourly rates as well as the consumed materials are invoiced at the respectively valid prices at the time of the service. Other expenses, especially travel and accommodation costs, will be charged additionally. Estimated prices for deliveries as well as services and work on the basis of time and materials stated in the offer are non-binding.
(2) Sales tax is shown separately in the invoice at the applicable VAT rate.
(3) Invoices are payable upon receipt without discount. The customer comes with this obligation to pay invoices - so far nothing else has been agreed - at the latest 14 days after invoicing in default.
(4) Default interest is charged at 8% p.a. calculated above the base rate. The enforcement of further damage is not excluded.
(5) Several customers are jointly and severally liable.
(6) The customer can only charge against if his counterclaims are legally established, undisputed or recognized by IMG.
(1) Deliveries and work servciess are considered as accepted, if the ccustomer does not contradict in writing within 10 working days after delivery or provision of the service.
(2) Defects must be reported in writing by the client within the period specified under (1).
7.) Legal and material defects with delivery and work services
(1) IMG has to provide the customer with the work free of material and legal defects. In particular, the delivery and work performance must correspond to the agreed specifications and the agreed scope of services.
(2) If the work is defective, IMG is liable as follows:
a) At the choice of IMG, the defect must be eliminated or a new work ist to be realized.
b) The customer must report defects to IMG in writing without delay.
(3) Legal and material defects become time-barred 12 months after the delivery of the respective delivery or service or the acceptance of the work. This does not apply insofar as the law requires longer periods in accordance with § 438 (1) no. 2, § 479 (1) or § 634a (1) no. 2 BGB
(4) Information in documentation, brochures, project descriptions, etc. are not guarantees. Guarantee commitments require in each case the express written confirmation by IMG.
(5) Apparent inaccuracies, such as write errors, miscalculations, formal defects, etc., which are contained in a report, expert opinion or other professional statement by IMG employees, can be corrected by IMG at any time.
(1) Claims for damages and reimbursement of expenses of the customer (in the following claims for damages) for whatever legal reason, in particular for breach of duties from the obligation and from tort, such as, loss of profit and other financial losses of the contracting party are excluded.
(2) This does not apply if liability is mandatory, for example, under the product liability act, in cases of intent, gross negligence, injury to life, limb or health, and breach of material contractual obligations. The claim for damages for the breach of essential contractual obligations, however, is limited to the contractually typical, foreseeable damage and barred upon expiry of the limitation period for legal and material defects pursuant to Section 7 (3), unless there is intent or gross negligence, or for breach of the life, body or health.
(3) IMG shall be liable for the delay damage of the customer in the case of deliveries and services if a firm deadline agreed in the offer is exceeded solely for reasons attributable to IMG. The delay compensation is based on the proven damage of the customer and the amount is limited to 0.5%. for each completed week of delay, but not more than 5% in total of the part of the service not completed on time. The provision of paragraph 2 sentence 1 of this section 8 remains unaffected. At the request of IMG, the client is obliged to declare within a reasonable period of time whether he withdraws from the contract because of the delay in the delivery or work performance and / or demands damages instead of performance or insists on performance; after unsuccessful expiry of the period, the claim for fulfillment is excluded.
(4) Insofar as the liability of IMG is limited, this also applies to the employees of IMG and third parties commissioned by IMG.
(5) The client is obliged immediately notify IMG in writing of any damage for which IMG is responsible and to give IMG the opportunity to investigate the damage and its causes.
(1) The contracting parties are under an obligation not to disclose any economic, technical and other information and knowledge made available or otherwise disclosed during the preparation and execution of orders by the other contracting party during the term of the contract without the prior written consent of the other contracting party purpose of the contract, to use it or make it available to third parties.
(2) The obligation referred to in paragraph 1 shall not apply to information and knowledge which:
a) IMG were already known before the order was placed,
b) IMG legitimately receives from third parties,
c) were generally known when the order was placed,
d) subsequently become generally known without breaching the obligation under paragraph 1.
(3) The obligation under paragraph 1 shall apply to both parties after termination of the contract for another two years.
(4) The customer acknowledges the necessity of scientific lectures and publications by the IMG and will not unreasonably refuse consent as required in accordance with paragraph 1.
The contracting parties will process or use personal data of the other contracting party only for contractually agreed purposes in compliance with legal regulations.
(1) Inventions made jointly by employees of IMG and the customer during the execution of an order as well as intellectual rights granted thereon are jointly and severally shared by both parties.
(2) Inventions made by IMG employees during the execution of an order and any rights granted thereto belong to the IMG. Inventions made during the execution of an order by employees of the customer, as well as any rights granted thereto, belong to the customer.
(3) The granting of licenses to inventions within the meaning of paragraphs 1 and 2 and the rights granted thereto requires a special written agreement.
12.) Work results
(1) The transfer of property and rights of use to the achieved work results of any kind, such as Documentations, reports, planning documents, evaluations, drawings, program material, etc. require a special written agreement. IMG retains in any case a free of charge and non-exclusive right to use these work results.
(2) IMG is not responsible for whether technical documents supplied to it by the customer or on its behalf violate existing copyrights, industrial property rights or other rights of third parties. The customer is solely liable if the rights of third parties are violated by the execution of the order. The customer must indemnify IMG against all claims of third parties for such an infringement upon first request. Paragraph 8 remains untouched.
13.) Notice of cancellation
(1) Contracts can be terminated at any time with a notice period of 30 days to the end of the month.
(2) The termination for cause is possible at any time.
(3) In the cases of termination according to para. 1 and 2, the customer has to pay the agreed remuneration minus the proportionate remuneration for the agreed scope of services, which was saved by the termination. In addition, IMG is entitled to compensation for the services and expenses incurred in connection with the termination, including in the relationship of IMG to third parties.
(4) Notice of cancellation require the written form.
14.) Return of documents and objects, right of retention
(1) After completing of an order, the customer may demand from IMG the return of the documents and objects provided to it. IMG may refuse the return until it is satisfied for its claims under the contract, unless the withholding of individual documents and objects in accordance with the circumstances, in particular due to the relative insignificance of the sums owed, would be contrary to good faith.
(2) IMG may make and keep copies of documents it returns to the client.
15.) General provisions
(1) Contracts are concluded in writing. Subsidiary agreements are only valid if they have been confirmed in writing by IMG
(2) The transfer of rights and obligations under the contracts by the customer to third parties requires the prior written consent of IMG.
(3) The German version of these terms and conditions shall be binding.
(4) Place of jurisdiction is the headquarters of IMG.
(5) For all contractual relationships applies only the law of the Federal Republic of Germany.