General Terms and Conditions of Sales, Services and Supplies
I. General
Services
and supplies performed and effected by IPM GROUP, IPM shall be governed
only by those terms and conditions set forth hereunder. Any terms and
conditions deviating there from, even purchaser's terms and conditions,
shall be binding on IPM only if IPM have expressly acknowledged such
terms and conditions. These general terms and conditions shall also be
applicable to and take effect on any and all business transactions
concluded with IPM in future.
Purchaser's
terms and conditions of purchase shall hereby and hereunder be
contradicted to. Such terms and conditions shall not be binding on IPM
either, even though IPM shall fail to contradict to their applicability
on contract conclusion.
II.Contract Conclusion, Scope of Services and Supplies
1.
IPM' s written order confirmation or written order shall be decisive for
and govern the scope of services and supplies. In case IPM' s offer
submitted with a set time limit for its acceptance is accepted in time
and in case IPM have not yet confirmed said order, IPM' s offer shall be
decisive for and govern the scope of supplies. Bye-agreements and/or
alterations thereto shall require IPM' s written confirmation.
2.
Documents forming an integral part of the offer such as illustrations,
drawings, data on quantities and volumes, measures, weights, loads,
processes, consumption figures, and performance data as well as on set
deadlines for assembly/installation and on the number of personnel
assigned to assembly/installation and supervision shall be deemed
approximately ruling terms, unless designated expressly as being binding
terms.
3.
IPM will reserve proprietary rights and copyrights for cost estimates,
drawings, and other documents; such records shall be permitted for
disclosure to third parties only subject to prior approval by IPM.
Drawings and other documents forming an integral part of offers
submitted by IPM shall be returned to IPM immediately if the relevant
contract is not placed with IPM.
4.
The obtaining of governmental approvals and/or permits required, if any,
shall be purchaser's task and responsibility. In case governmental
decisions, imposed regulations, etc., particularly those decreed after
contract conclusion involve increases in services and supplies, IPM
shall have the right and be entitled to demand a reasonable extra-over
price.
III.Prices and Payment
1.IPM'
s prices shall be under IPM mood as prices valid ex works, unless
special agreements are made.
2.Unless
special agreements are made, payment shall be effected in cash without
any deduction free to our payment collecting agency, within 14 (fourteen)
days after invoicing, i.e. 1/3rd down payment after receipt of order
confirmation, 1/3rd on expiry of half the delivery time as agreed upon,
1/3rd within 4 weeks after delivery and/or receipt of the notice stating
the goods and/or services are ready for shipment; any and all
installments shall be effected without any deduction by way of a direct
remittance to IPM' s account.
3.
Unless firm prices are expressly fixed under the contract, IPM in case
that changes in cost factors arise until delivery will reserve the right
to make price adjustments as well as adjustments in mutually agreed
interest rates to suit changing monetary market conditions if services
and supplies are effected within a period of over 4 (four) months after
contract conclusion.
4.
Retention of due payments or settlements against purchaser’s
counter-claims disputed by IPM or not legally enforced shall be deemed
impermissible.
IV.Delivery Time
1.The
delivery time shall commence on transmittal of the order confirmation,
but not before furnishing and clarifying component parts and documents,
permits, release to be procured or delivered and/or effected by
purchaser and not prior to receipt of an agreed down payment. If
purchaser fails to fulfill these obligations in due time or if Purchaser
wishes modifications to be done to the scope of supply, the delivery
time shall be extended accordingly.
2.
The delivery time shall be deemed met if the subject of delivery has
left works until expiry of the delivery time or if delivery's readiness
for shipment has been duly advised and notified. Besides, compliance
with the delivery time shall require purchaser's fulfillment of its
contractual obligations.
3.
The delivery time shall be extended reasonably in the event of force
majeure and in the event of other unforeseeable unusual circumstances
which IPM are not answerable for, e.g. difficulties in procurement of
materials, factory disturbances, strike, lock-out, governmental
interventions, difficulties in supply of energy. This provision shall
also take effect if said circumstances occur with sub-vendors or in the
course of an already existing delay. If said circumstances make it
impossible or unreasonable for IPM to perform their services and
supplies either partly or wholly, IPM shall be released from their
obligation to effect delivery. In case the delivery time is extended,
purchaser's claims for indemnity shall be deemed excluded.
4.
If damage or loss are caused to purchaser due to a delay triggered by
IPM' s default, purchaser under exclusion of any further claims shall be
entitled to claim liquidated damages for delay. For each full week of
delay it shall amount to 0.5 %, but on aggregate to max. 5.0 % of the
value of that part of the whole delivery which due to the delay cannot
be utilized in time or in conformity with the contract.
5.
If shipment is delayed for reasons which IPM are not responsible for by
more than one week after issue of the notice stating that the shipment
is ready for dispatch, IPM at their own discretion shall be permitted to
take parts of the consignment on stock at purchaser's cost and risk. If
said parts are taken on stock at IPM' s own factory, IPM shall have the
right to charge at least 0.5 % per month of the contract price of
consignment components being taken on stock.
V.Transfer of Risk and Acceptance Test
1.
The risk shall pass over to purchaser latest on dispatch of consignment
components, even if partial deliveries are effected or if IPM have
taken-over performance of other services such as shipment, carriage or
assembly/installation.
2.
The type of shipment will be chosen at IPM' s discretion by exclusion of
any liability. If requested and at purchaser's charge, IPM will make-out
an insurance - to the extent possible - for the transport demanded by
purchaser.
3.
If shipment is delayed due to circumstances which purchaser is
answerable for, then the risk will pass over to purchaser from the day
of notifying consignments readiness for shipment, but IPM shall be
obliged to effect at purchasers request and cost the insurance which
purchaser demands.
4.
If it has been agreed to subject the consignment parts to an acceptance
test, such test shall be effected immediately at manufacturer's works
after notice of readiness for acceptance test. The costs incurred for
the execution of the acceptance test shall be charged to purchaser's
account.
5.
If no acceptance test is demanded, the service shall be deemed accepted
on expiry of 12 (twelve) work days upon written notice on their
completion or effected delivery if said delivery is taken-over by IPM.
If purchaser has utilized the service or part of the service, the
acceptance shall be deemed granted after expiry of 6 (six) work days
upon commencement of the utilization, unless otherwise agreed upon
mutually.
VI.Reservation of Property
1.
IPM will reserve the property to the delivery item until settlement of
any and all claims and demands arising from the business relationship
with the purchaser at the date of delivery.
2.
If the delivery item is connected, mixed with other subjects not
belonging to IPM or if purchaser processes the delivery item alone or
jointly with other subjects not belonging to IPM, IPM' s property shall
not be lost thereby. IPM instead shall acquire the co-property in the
new subject, i.e. in the ratio of the value which IPM' s reserved
property has in proportion to the subjects mixed or connected to it and/or
in proportion to the value of processing. This co-property shall
supersede IPM' s reserved property.
3.
Purchaser shall be entitled to alienate the delivery item in orderly
course of business, but merely on the following conditions:
Each
and every sale shall be effected under reservation of property.
Reseller's claim from this property reservation as well as any other
demands from the resale of the delivery item shall be assigned to IPM in
advance, with it making no difference whether the delivery item is sold
without or after connection, mixture, processing and to one or several
user(s). The assigned claims and demands serve for IPM' s security in
the amount of each sold merchandise put under reservation of property.
Reseller
shall be deemed authorized to collect the claim/demand from resale
despite the assignment of said claim to IPM. IPM' s collection authority
shall not be affected by reseller's collection power of attorney. IPM
themselves will not collect the demand/claim assigned to IPM as long as
reseller duly fulfils its payment obligation towards IPM.
On
request IPM shall be notified of the debtors of assigned claims/demands
and the assignment of claims/demands shall be notified to debtors.
4.
Purchaser shall not be allowed to pawn the delivery item nor pledge it
as security. In case of seizures such as confiscation or other
dispositions by third parties, purchaser shall notify IPM without delay.
5.
In case of purchaser's misconduct contrary to the contractual terms and
conditions, in particular in case of delay in payment, IPM after
admonition shall be entitled to recollection and purchaser shall be
obliged to restitution. The enforcement of property reservation as well
as the seizure of the delivery item by IPM however shall not be deemed
as a rescission from the contract.
VII.Liability for Defects in Services and Supplies
By exclusion of any further claims, IPM' s liability for defects in services and supplies including the lack of expressly assured properties shall be as follows:
1.
All those parts shall be remedied or delivered newly ex works at IPM' s
choice within a reasonable term and free of charge which demonstrably
become unusable or be substantially affected in their usability within 6
(six) months after acceptance due to a circumstance arising before the
transfer of risk and particularly due to deficient design, poor
construction materials, or deficient workmanship. Detection of such
defects shall be reported to IPM without delay.
2.
Purchaser's right to enforce claims for defects shall be barred by
prescription in all cases from the time of well-timed rebuke within 6 (six)
months, but earliest on expiry of the warranty period.
3.
No warranty is given for damage resulting from any of the following
reasons:
Unsuitable
or improper use, deficient assembly/installation and/or commissioning by
purchaser or third parties, natural wear and tear, deficient or
negligent handling, service and maintenance, unsuitable utilities,
exchange materials, deficient civil work by purchaser, unsuitable
construction soil, chemical, electrochemical or electric influences
unless attributable to IPM' s default.
4.
After notification, purchaser shall grant IPM the required time and
opportunity to effect any and all remedies and substitute deliveries
considered necessary by IPM at IPM' s equitable discretion, otherwise
IPM shall be released from the defects liability. Only in urgent cases
of risks to operational safety and to defend huge damage, with it being
required to notify IPM without delay or if IPM have been in delay with
the remedy of any such defect shall purchaser have the right to remedy
or to have the defect remedied by third parties and to demand
compensation of the necessary costs from IPM.
5.
Of the direct costs incurred by the remedy and/or substitute delivery
IPM - in case the complaint turns out to be justified - shall bear the
cost for the substitute component including shipment as well as the
reasonable cost for dismantling and reinstallation, and furthermore, if
it can be demanded equitably depending on the situation of a given case,
IPM shall bear the cost of a demanded assignment, if any, of IPM' s
supervisory personnel as well as of IPM' s fitters and helpers. Any and
all other costs shall be borne by purchaser.
6.
The warranty period for the substitute component and for the remedy will
be 3 (three) months, but it shall run at least until the expiry of the
original warranty period given for the delivery item. The term for the
defects liability for the delivery item shall be extended by the
duration of the operation interruption caused by the remedy work.
7.
Any liability for consequences resulting from an improper alteration or
repair work, if any, performed by purchaser or third parties without IPM'
s prior approval shall be excluded.
8.
Any further claims by purchaser, particularly any claim for replacement
of damage not caused directly to the delivery item itself (consequential
damage) shall be excluded. This exclusion from liability shall not apply
in case of intent and gross negligence and on lack of expressly assured
properties, if this assurance in fact was made for the purpose of
assuring purchaser against damage not caused to the delivery item itself.
9.
For damage IPM shall be liable only up to the amount of the insurance
coverage fixed in the third party liability insurance policy made out to
this effect. The amount of insurance coverage is EUR 500,000 (half of a
million EUR). For damage not covered by the insurance IPM shall bear a
liability of max. up to the amount of 10 % of the agreed renumeration.
VIII. Rescission and Diminution
1.
Purchaser shall have the right to rescind from the contract if the whole
service becomes definitely impossible prior to the transfer of risk. The
same shall apply to an inability on the part of IPM. Purchaser shall
also have the right to rescind from the contract if the execution of
part of the delivery becomes impossible to be done in the required
number when equivalent subjects are ordered and if purchaser can
demonstrate and prove a justified interest in the refusal of a partial
delivery; if this is not the case, purchaser can diminish the
consideration accordingly.
2.If
the impossibility occurs during a delay in acceptance or by purchaser's
default, the latter shall be obliged to effect consideration therefore.
3.If
IPM fails to utilize a reasonable period of grace (6 months in case of
performance defect) granted to IPM for the remedy of a defect which IPM
is responsible for or if it is impossible for IPM to remedy such a
defect, purchaser by exclusion of any further claims shall be entitled
to demand redhibition or diminution. Redhibition can be demanded only if
purchaser’s interest in the delivery becomes void by the defect after
an objective appraisal of all circumstances involved, or if purchaser's
interest in said delivery is affected so substantially that acceptance
of delivery cannot be exacted from purchaser.
4.In
case of unforeseen events in the sense of IV. Subpara. 3 of these terms
and conditions of supply, the contract shall be adapted reasonably.
Unless economically justifiable, IPM shall have the right to rescind
partly or wholly from the contract.
Purchaser
shall have no claims for liquidated damages due to such a rescission
from the contract. If IPM make use of their right to rescind from the
contract, IPM shall notify purchaser thereof without delay.
IX.Miscellaneous