Terms of service
General Terms and Conditions of Business / Delivery IBG HydroTech GmbH (as at: 06/21)
1 General 1.1 These General Terms and Conditions shall apply to all contracts, deliveries and other services, including consulting services, information and the like (also for future business). Counter-confirmations of the customer with reference to his terms and conditions of business and/or purchase are expressly rejected. 1.2 Data shall be stored within the scope of our mutual business relations in accordance with the Federal Data Protection Act (BDSG). 1.3 The Purchaser shall be obliged to properly dispose of the delivered goods at its own expense after termination of use - based on the statutory provisions. This obligation shall also be contractually agreed in the event of a transfer of ownership to commercial third parties. In the event of failure to do so, the Purchaser shall bear the disposal costs. 1.4 In terms of design and construction, our devices, equipment, systems and the versions placed on the market by us shall comply with the basic safety and health requirements of the EC applicable to them (the date of placing on the market shall apply). These may only be operated by trained specialist personnel and in compliance with our operating instructions. We reserve the right to adapt the equipment to the latest state of the art. 2 Offers and Conclusion of Contract 2.1 Our offers are always subject to change. All associated documents (e.g. drawings, illustrations, dimensions and weights, etc.) are non-binding unless they are designated as binding. Likewise, the details do not constitute warranted characteristics. 2.2 The contract shall only be concluded upon our written order confirmation. Subsidiary agreements, amendments, supplements or reservations to the contract shall only be valid if they are set down in writing. If the customer does not receive an order confirmation after placing the order, the order shall be accepted by transmission of the delivery together with the invoice and/or delivery bill. 2.3 We reserve all proprietary rights and copyrights to cost estimates, drawings, illustrations, photographs and other documents without restriction. They may not be handed over to third parties without our approval. They shall be returned immediately upon our request. 2.4 Changes in the design and form of the delivery item are possible, provided that the delivery item is not substantially changed and the changes are reasonable for the Buyer. 2.5 Orders and deliveries between us and foreign purchasers shall be governed by the law of the Federal Republic of Germany for the entire business relationship (irrespective of the legal basis on which they are based). German or English shall be the contractual language for business relations with foreign purchasers. 3 Prices 3.1 Prices are quoted in Euro (€), ex Seller's warehouse, excluding installation and commissioning, unpacked ex works, excluding packaging and postage in the case of shipment and excluding the respective statutory value added tax, unless other modalities are expressly stipulated in the order confirmation. 3.2 Additional costs incurred for expert opinions, certificates or other acceptances by authorities or testing bodies requested by the Purchaser shall be charged separately. 3.3 Changes, deletions or returned goods which are subsequently ordered by the Purchaser shall only be accepted and carried out against payment of the costs incurred. 4. terms of payment 4.1 Unless otherwise agreed, all payments shall be made after delivery or provision and from receipt of invoice without any deduction. 4.2 We shall be entitled to invoice the Purchaser for progress payments amounting to 90% of the value of the services rendered in each case, unless a 50% down payment has been agreed. 4.3 We reserve the right to deliver against cash on delivery/advance payment. 4.4 The customer shall bear bank and discount charges. We shall accept bills of exchange only after prior written agreement if they can be discounted. 4.5 The customer shall only be entitled to set-off and to assert rights of retention insofar as the counterclaims have been acknowledged by us in writing or have not been disputed or have been determined by a court to be final and absolute. 4.6 If the customer is in default with his payment obligations, we shall be entitled to claim default interest according to §288 BGB (German Civil Code) in the amount of 8% above the prime rate according to §247 BGB. 5. reservation of title 5.1 We reserve the extended and expanded title to all delivery items until full payment of all claims arising from the business relationship with the customer (reserved goods). 5.2 Any sale, pledging or transfer of ownership by way of security of the delivery item by the customer to third parties may only be effected with our prior written consent. 5.3 If the Purchaser resells or rents the delivered goods in accordance with their intended use, it hereby assigns to us all claims in the amount of the final invoice amount (incl. VAT) arising from the resale against its customers or third parties. This shall take place irrespective of whether the purchased goods were resold before or after processing/finishing. We shall be authorized to collect this claim ourselves even after assignment. However, we undertake vis-à-vis the customer not to collect the claim as long as the latter meets the payment obligations from the proceeds collected, is not in default of payment, has not filed for insolvency proceedings and/or has not suspended payments. However, if this occurs, we may demand disclosure of the assigned claims and their debtors. In addition, all information required for collection and the associated documents must be handed over to us. The debtors (third parties) shall be notified of the assignment. 5.4 We undertake vis-à-vis the customer to release the securities to which we are entitled upon request, insofar as the value of the securities exceeds the claims to be secured by more than 20%. We alone shall be obliged to select the securities to be released. 5.5 We shall be notified immediately of any seizure or other disposition by third parties. 5.6 If the customer acts in breach of contract (in particular in the event of default in payment), the customer shall be obliged to surrender the delivery item upon request. All costs of taking back and realizing the delivery item shall be borne by the customer. The utilization costs amount to 10% of the utilization proceeds (incl. VAT) without proof. We can prove higher costs, the orderer lower costs. 5.7 The customer is obliged to insure the delivery item sufficiently. 5.8 If retention of title is asserted or the delivery item is seized by us, this shall not be deemed a withdrawal from the contract. 5.9 If the object of purchase is processed or transformed by the customer, this shall always be done on our behalf. We shall acquire co-ownership of the new item if it is processed with other items not belonging to us. This item created by processing shall also be deemed to be goods subject to retention of title. 5.10 If the object of purchase is inseparably combined with objects not belonging to us, we shall acquire co-ownership. The proportionate ownership of the new object shall be in proportion to the value of the object of purchase to the other combined objects at the time of combination. The co-ownership or sole ownership shall be held in safe custody for us by the customer. 5.11 In the event of an application for the opening of insolvency proceedings, we shall be entitled to withdraw from the contract and to demand the immediate return of the object of purchase. 6. performance and delivery dates 6.1 Delivery dates and periods shall not be binding unless we have expressly indicated them to the customer in writing as binding. The performance period shall commence upon dispatch of the order confirmation and when all technical and commercial details (including submission of any necessary permits) have been clarified. In the event of an agreement on advance payment, bank guarantee or a letter of credit, the performance period shall not commence until the money and/or the relevant documents have been received. The performance period shall be extended accordingly if the Purchaser requests changes to the subject matter of the contract within the performance period. 6.2 Delivery periods and dates can only be met subject to correct and timely self-supply. 6.3 The delivery periods and dates shall be deemed to have been complied with if the delivery item leaves our works by the expiry of such periods and dates or if readiness for dispatch has been notified. 6.4 Partial services and deliveries are permissible. 6.5 In the event of a delay in dispatch of the object of purchase for which the Purchaser is responsible, the Purchaser shall bear any costs incurred after one month following notification of readiness for dispatch. 6.6 If the delivery time cannot be met due to force majeure, labor disputes or other events beyond our control, the delivery time shall be extended adequately. Such events and any delays resulting therefrom shall be notified to the Purchaser as soon as possible. 6.7 If we are finally unable to perform the entire service until the passing of risk, the purchaser may withdraw from the contract without setting a deadline. This shall also apply if a part of the delivery becomes impossible for us and the orderer has a justified interest in refusing the partial delivery. If this is not the case, the customer shall be obliged to pay the contract price attributable to the partial delivery. This shall also apply in the event of incapacity on our part. In all other respects Art. 10 shall apply. The Purchaser shall remain obligated to counter-performance if the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances. 7. transfer of risk and transport 7.1 The delivery clauses shall be interpreted in accordance with applicable INCOTERMS for all contracts concluded. Otherwise, shipment shall be at the expense and risk of the Purchaser, the latter being transferred at the latest when the delivery item leaves our works - irrespective of who pays the freight charges or whether shipment is made from the place of performance. If acceptance of the goods is delayed after notification of readiness for shipment for reasons for which we are not responsible, the risk shall also pass to the customer. 7.2 Delivery or loading shall take place in accordance with FCA upon handover to the carrier from sea route 6 + 10. 7.3 The goods can be insured against transport risks of all kinds at the request and expense of the Purchaser. 7.4 The Purchaser shall be obliged to dispose of disposable packaging at its own expense. Only means of transport to be used several times will be taken back. 8 Warranty / Acceptance A refusal to accept the goods upon delivery and performance by the purchaser is not legal due to insignificant defects. 8.1 Material defects 8.1.2 If the cause of a material defect already existed at the time of the transfer of risk, the affected services and/or parts shall be repaired, provided again or delivered by us free of charge. This shall only be done within the limitation period after 12 months or taking into account the operating time of max. 2,000 operating hours (depending on which event occurs first). This shall not apply if IBG has caused the material defect intentionally or by gross negligence, nor in case of fraudulent concealment of the defect. The statutory provisions on (expiry) suspension and recommencement of the periods shall remain unaffected. IBG reserves the right to determine the type and extent of the remedy of the material defects. 8.2.2 The Buyer is obliged to notify IBG in writing of material defects without undue delay: a) obvious defects in delivery and performance within seven working days after acceptance/commissioning, b) hidden defects within seven days after discovery. If this does not happen, the notice of defects within the meaning of §377 of the German Commercial Code (HGB) shall be deemed to be late. 8.2.3 In the case of asserted notices of defects which are also confirmed by IBG, the Buyer may withhold payments to a reasonable extent if these are in an adequate proportion to the notified material defect. If the withholding of payment is unjustified, the buyer is obliged to reimburse IBG for the expenses incurred. 8.2.4 No claims for defects shall apply in the case of a) damage that occurred after delivery/service as a result of improper use: negligent handling; unsuitable operating materials; excessive load; radiation exposure; special external influences that were not assumed in the contract, b) non-reproducible software errors, c) only insignificant deviation from agreed quality and/or usability d) naturally occurring wear and tear. The installation, operation and maintenance instructions prescribed by IBG must be observed and proven by the customer for proper handling. If improper modifications, maintenance and/or repair work is carried out by the customer and/or third parties, no claims for defects shall be valid due to material defects resulting therefrom. Illuminants are excluded from claims for defects. 8.2.5 After notification of a defect, IBG (or third parties commissioned by IBG) shall be given the opportunity for multiple supplementary performance of the service within a reasonable period of time. If the subsequent performance fails, the customer may assert claims for damages according to Art. 10. This shall include rescission of the contract or a reasonable reduction of remuneration. 8.2.6 Excluded from the claim are claims of the Buyer that have arisen for the purpose of the supplementary performance: e.g. expenses for transport, travel to and from the place of performance and travel expenses. 8.2.7 The IBG reserves the right to decide on the choice of remedy of defects and/or replacement delivery. 8.2.8 Consequential costs due to a material defect (in particular loss of profit) are excluded against the IBG and its vicarious agents, unless otherwise provided for in this Article 8. Furthermore, Article 10 applies to claims for damages. 8.2.9 For equipment supplied by third parties, their limitation periods apply with regard to material defects. 9. industrial property rights, copyrights, defects of title 9.1 We are obliged exclusively in the country of the place of delivery to provide the delivery free of copyrights of third parties or industrial property rights (hereinafter referred to as property rights). In the event of claims by third parties against the Buyer in the country of the place of delivery, which are due to infringement of industrial property rights by IBG and which are demonstrably justified, we shall be liable for damages according to the time limits in Art. 8.1.2 as follows: Obligations shall apply as described in Art. 10, furthermore we shall, at our discretion and at our expense, either obtain a right of use for the affected delivery/service, modify it in such a way that no property rights are infringed or replace the delivery/service. In the event of non-compliance, the customer shall be entitled to make use of the statutory rights of withdrawal and/or reduction. However, this obligation towards IBG shall only exist if we are immediately informed in writing of the claims asserted by third parties by the Buyer, the infringement of the industrial property rights by the Buyer is not acknowledged and IBG reserves the right to take all measures to defend itself and the possibility of settlement negotiations. 9.2 In the event of discontinuation of use of the Supplies (for reasons of mitigation of damages or otherwise) the Purchaser shall be obliged to notify the third party that the infringement of the IPR is not thereby automatically acknowledged. 9.3 The Buyer may not assert claims against IBG if infringements of industrial property rights are at the Buyer's expense, in particular not due to an application not foreseeable by us, in the case of special performance and delivery specifications as well as in the case of modification or use of our delivery with other products not supplied by us by the Buyer. 9.4 If infringements of industrial property rights are caused and confirmed by IBG, the claims regulated under item 9.1 shall apply in conjunction with items 8.2.3, 8.2.5 as well as 8.2.8. 9.5 Other defects of title shall be subject to the application under item 8. Due to defects of title, other claims of industrial property rights against IBG and its vicarious agents not regulated under this item 9 shall be excluded. 10 Liability and other claims for damages 10.1 Any claims for damages (including all claims for damages and reimbursement of expenses) of the customer are excluded, irrespective of the legal basis (in particular due to breach of duty arising from the contractual obligation, tort). 10.2 Statements under 10.1 shall become invalid in case of: a) mandatory liability, b) gross negligence, c) intentional acts, d) injury to life, health and body. 10.3 Claims for damages in case of serious breach of contractual duty shall be limited to foreseeable and contract-typical damages. This shall apply as long as there is no a) gross negligence, b) gross intent or c) injury to life, health and body. 10.4 Points 10.1 to 10.3 do not include a change in the burden of proof to the detriment of the Purchaser. 10.5 If the Purchaser is entitled to claims for damages according to Clause 10, the following shall apply: a) for material defects: these shall be subject to the limitation period according to Article 8.1.2, b) for claims under the Product Liability Act: the statutory limitation periods shall apply. In the case of slight negligence and defects in the delivery resulting therefrom, no liability claim shall apply, also not with regard to personal liability of the legal representatives, vicarious agents and/or employees of IBG. 10.6 Unless otherwise agreed in writing, liability in terms of our business liability insurance is limited to a sum insured of 0.5 million EURO for personal injury and property damage. IBG shall not be liable for the exportability of the delivery and for the permit and import exemptions of the respective country if the customer exports our products after further processing and/or use of individual components. 10.7 In the event of order cancellations by the Buyer, IBG shall be entitled to claim damages for the actual costs incurred. 11.1 If a delivery is not possible, the buyer can claim damages as long as IBG is not itself responsible for the impossibility of delivery. Excluded from this are faults due to a) gross negligence, b) gross intent or c) injury to life, health and body. The change of the burden of proof to the disadvantage of the purchaser is not affected by this. The claim for damages shall be limited to 10% of the value and shall only apply to products which cannot be put into operation for the intended purpose. The right of the Buyer to withdraw from the contract remains unaffected. 11.2 IBG reserves the right to adjust the contract adequately in good faith if unforeseen events as defined in Art. 6.6 occur and significantly change the content of the delivery/service or the economic significance. Included here is a significant effect of the circumstances on the operation of the IBG. If the adjustment of the contract is not economically justifiable, IBG may withdraw from the contract. When exercising the right of withdrawal, we are obliged to inform the buyer immediately after having understood the consequences. This shall also apply if the delivery time has been extended in agreement with the customer. 12.1 The place of performance and jurisdiction for all contracts concluded and any disputes arising therefrom between the Customer and the Contractor shall be the local court in Büdingen for merchants entered in the commercial register, legal entities under public law or special funds under public law (regardless of the value of the subject matter of the dispute). The law valid in the Federal Republic of Germany shall apply to all parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods. We also reserve the right to file suit at the domicile of the Purchaser. 12.2 If the parties concerned agree on a decision before the arbitral tribunal, each side shall appoint an arbitrator within four weeks of being requested to do so by the other side. The President of the Higher Regional Court of the place of jurisdiction appointed in Article 12.1 shall appoint the chairman of the arbitral tribunal. He shall also be responsible for appointing the arbitrator of that party which is in default with its appointment. The arbitration court shall then decide on the basis of agreed terms of delivery and agreements. 13) Binding force of the contract If individual provisions of the contract become legally invalid, the remaining parts of the contract shall retain their legal validity, provided that this does not represent an unreasonable hardship for one of the parties concerned. 14. dispute resolution procedure IBG HydroTech GmbH shall not participate in any dispute resolution procedure before a consumer arbitration board.
IBG HydroTech GmbH Siemensstraße 39 63755 Alzenau GERMANY Phone: +49 (0) 6023 9439 0 Fax: +49 (0) 6023 9439 19 eMail: info@ibg-hydro-tech.de www.ibg-hydro-tech.de
1 General 1.1 These General Terms and Conditions shall apply to all contracts, deliveries and other services, including consulting services, information and the like (also for future business). Counter-confirmations of the customer with reference to his terms and conditions of business and/or purchase are expressly rejected. 1.2 Data shall be stored within the scope of our mutual business relations in accordance with the Federal Data Protection Act (BDSG). 1.3 The Purchaser shall be obliged to properly dispose of the delivered goods at its own expense after termination of use - based on the statutory provisions. This obligation shall also be contractually agreed in the event of a transfer of ownership to commercial third parties. In the event of failure to do so, the Purchaser shall bear the disposal costs. 1.4 In terms of design and construction, our devices, equipment, systems and the versions placed on the market by us shall comply with the basic safety and health requirements of the EC applicable to them (the date of placing on the market shall apply). These may only be operated by trained specialist personnel and in compliance with our operating instructions. We reserve the right to adapt the equipment to the latest state of the art. 2 Offers and Conclusion of Contract 2.1 Our offers are always subject to change. All associated documents (e.g. drawings, illustrations, dimensions and weights, etc.) are non-binding unless they are designated as binding. Likewise, the details do not constitute warranted characteristics. 2.2 The contract shall only be concluded upon our written order confirmation. Subsidiary agreements, amendments, supplements or reservations to the contract shall only be valid if they are set down in writing. If the customer does not receive an order confirmation after placing the order, the order shall be accepted by transmission of the delivery together with the invoice and/or delivery bill. 2.3 We reserve all proprietary rights and copyrights to cost estimates, drawings, illustrations, photographs and other documents without restriction. They may not be handed over to third parties without our approval. They shall be returned immediately upon our request. 2.4 Changes in the design and form of the delivery item are possible, provided that the delivery item is not substantially changed and the changes are reasonable for the Buyer. 2.5 Orders and deliveries between us and foreign purchasers shall be governed by the law of the Federal Republic of Germany for the entire business relationship (irrespective of the legal basis on which they are based). German or English shall be the contractual language for business relations with foreign purchasers. 3 Prices 3.1 Prices are quoted in Euro (€), ex Seller's warehouse, excluding installation and commissioning, unpacked ex works, excluding packaging and postage in the case of shipment and excluding the respective statutory value added tax, unless other modalities are expressly stipulated in the order confirmation. 3.2 Additional costs incurred for expert opinions, certificates or other acceptances by authorities or testing bodies requested by the Purchaser shall be charged separately. 3.3 Changes, deletions or returned goods which are subsequently ordered by the Purchaser shall only be accepted and carried out against payment of the costs incurred. 4. terms of payment 4.1 Unless otherwise agreed, all payments shall be made after delivery or provision and from receipt of invoice without any deduction. 4.2 We shall be entitled to invoice the Purchaser for progress payments amounting to 90% of the value of the services rendered in each case, unless a 50% down payment has been agreed. 4.3 We reserve the right to deliver against cash on delivery/advance payment. 4.4 The customer shall bear bank and discount charges. We shall accept bills of exchange only after prior written agreement if they can be discounted. 4.5 The customer shall only be entitled to set-off and to assert rights of retention insofar as the counterclaims have been acknowledged by us in writing or have not been disputed or have been determined by a court to be final and absolute. 4.6 If the customer is in default with his payment obligations, we shall be entitled to claim default interest according to §288 BGB (German Civil Code) in the amount of 8% above the prime rate according to §247 BGB. 5. reservation of title 5.1 We reserve the extended and expanded title to all delivery items until full payment of all claims arising from the business relationship with the customer (reserved goods). 5.2 Any sale, pledging or transfer of ownership by way of security of the delivery item by the customer to third parties may only be effected with our prior written consent. 5.3 If the Purchaser resells or rents the delivered goods in accordance with their intended use, it hereby assigns to us all claims in the amount of the final invoice amount (incl. VAT) arising from the resale against its customers or third parties. This shall take place irrespective of whether the purchased goods were resold before or after processing/finishing. We shall be authorized to collect this claim ourselves even after assignment. However, we undertake vis-à-vis the customer not to collect the claim as long as the latter meets the payment obligations from the proceeds collected, is not in default of payment, has not filed for insolvency proceedings and/or has not suspended payments. However, if this occurs, we may demand disclosure of the assigned claims and their debtors. In addition, all information required for collection and the associated documents must be handed over to us. The debtors (third parties) shall be notified of the assignment. 5.4 We undertake vis-à-vis the customer to release the securities to which we are entitled upon request, insofar as the value of the securities exceeds the claims to be secured by more than 20%. We alone shall be obliged to select the securities to be released. 5.5 We shall be notified immediately of any seizure or other disposition by third parties. 5.6 If the customer acts in breach of contract (in particular in the event of default in payment), the customer shall be obliged to surrender the delivery item upon request. All costs of taking back and realizing the delivery item shall be borne by the customer. The utilization costs amount to 10% of the utilization proceeds (incl. VAT) without proof. We can prove higher costs, the orderer lower costs. 5.7 The customer is obliged to insure the delivery item sufficiently. 5.8 If retention of title is asserted or the delivery item is seized by us, this shall not be deemed a withdrawal from the contract. 5.9 If the object of purchase is processed or transformed by the customer, this shall always be done on our behalf. We shall acquire co-ownership of the new item if it is processed with other items not belonging to us. This item created by processing shall also be deemed to be goods subject to retention of title. 5.10 If the object of purchase is inseparably combined with objects not belonging to us, we shall acquire co-ownership. The proportionate ownership of the new object shall be in proportion to the value of the object of purchase to the other combined objects at the time of combination. The co-ownership or sole ownership shall be held in safe custody for us by the customer. 5.11 In the event of an application for the opening of insolvency proceedings, we shall be entitled to withdraw from the contract and to demand the immediate return of the object of purchase. 6. performance and delivery dates 6.1 Delivery dates and periods shall not be binding unless we have expressly indicated them to the customer in writing as binding. The performance period shall commence upon dispatch of the order confirmation and when all technical and commercial details (including submission of any necessary permits) have been clarified. In the event of an agreement on advance payment, bank guarantee or a letter of credit, the performance period shall not commence until the money and/or the relevant documents have been received. The performance period shall be extended accordingly if the Purchaser requests changes to the subject matter of the contract within the performance period. 6.2 Delivery periods and dates can only be met subject to correct and timely self-supply. 6.3 The delivery periods and dates shall be deemed to have been complied with if the delivery item leaves our works by the expiry of such periods and dates or if readiness for dispatch has been notified. 6.4 Partial services and deliveries are permissible. 6.5 In the event of a delay in dispatch of the object of purchase for which the Purchaser is responsible, the Purchaser shall bear any costs incurred after one month following notification of readiness for dispatch. 6.6 If the delivery time cannot be met due to force majeure, labor disputes or other events beyond our control, the delivery time shall be extended adequately. Such events and any delays resulting therefrom shall be notified to the Purchaser as soon as possible. 6.7 If we are finally unable to perform the entire service until the passing of risk, the purchaser may withdraw from the contract without setting a deadline. This shall also apply if a part of the delivery becomes impossible for us and the orderer has a justified interest in refusing the partial delivery. If this is not the case, the customer shall be obliged to pay the contract price attributable to the partial delivery. This shall also apply in the event of incapacity on our part. In all other respects Art. 10 shall apply. The Purchaser shall remain obligated to counter-performance if the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances. 7. transfer of risk and transport 7.1 The delivery clauses shall be interpreted in accordance with applicable INCOTERMS for all contracts concluded. Otherwise, shipment shall be at the expense and risk of the Purchaser, the latter being transferred at the latest when the delivery item leaves our works - irrespective of who pays the freight charges or whether shipment is made from the place of performance. If acceptance of the goods is delayed after notification of readiness for shipment for reasons for which we are not responsible, the risk shall also pass to the customer. 7.2 Delivery or loading shall take place in accordance with FCA upon handover to the carrier from sea route 6 + 10. 7.3 The goods can be insured against transport risks of all kinds at the request and expense of the Purchaser. 7.4 The Purchaser shall be obliged to dispose of disposable packaging at its own expense. Only means of transport to be used several times will be taken back. 8 Warranty / Acceptance A refusal to accept the goods upon delivery and performance by the purchaser is not legal due to insignificant defects. 8.1 Material defects 8.1.2 If the cause of a material defect already existed at the time of the transfer of risk, the affected services and/or parts shall be repaired, provided again or delivered by us free of charge. This shall only be done within the limitation period after 12 months or taking into account the operating time of max. 2,000 operating hours (depending on which event occurs first). This shall not apply if IBG has caused the material defect intentionally or by gross negligence, nor in case of fraudulent concealment of the defect. The statutory provisions on (expiry) suspension and recommencement of the periods shall remain unaffected. IBG reserves the right to determine the type and extent of the remedy of the material defects. 8.2.2 The Buyer is obliged to notify IBG in writing of material defects without undue delay: a) obvious defects in delivery and performance within seven working days after acceptance/commissioning, b) hidden defects within seven days after discovery. If this does not happen, the notice of defects within the meaning of §377 of the German Commercial Code (HGB) shall be deemed to be late. 8.2.3 In the case of asserted notices of defects which are also confirmed by IBG, the Buyer may withhold payments to a reasonable extent if these are in an adequate proportion to the notified material defect. If the withholding of payment is unjustified, the buyer is obliged to reimburse IBG for the expenses incurred. 8.2.4 No claims for defects shall apply in the case of a) damage that occurred after delivery/service as a result of improper use: negligent handling; unsuitable operating materials; excessive load; radiation exposure; special external influences that were not assumed in the contract, b) non-reproducible software errors, c) only insignificant deviation from agreed quality and/or usability d) naturally occurring wear and tear. The installation, operation and maintenance instructions prescribed by IBG must be observed and proven by the customer for proper handling. If improper modifications, maintenance and/or repair work is carried out by the customer and/or third parties, no claims for defects shall be valid due to material defects resulting therefrom. Illuminants are excluded from claims for defects. 8.2.5 After notification of a defect, IBG (or third parties commissioned by IBG) shall be given the opportunity for multiple supplementary performance of the service within a reasonable period of time. If the subsequent performance fails, the customer may assert claims for damages according to Art. 10. This shall include rescission of the contract or a reasonable reduction of remuneration. 8.2.6 Excluded from the claim are claims of the Buyer that have arisen for the purpose of the supplementary performance: e.g. expenses for transport, travel to and from the place of performance and travel expenses. 8.2.7 The IBG reserves the right to decide on the choice of remedy of defects and/or replacement delivery. 8.2.8 Consequential costs due to a material defect (in particular loss of profit) are excluded against the IBG and its vicarious agents, unless otherwise provided for in this Article 8. Furthermore, Article 10 applies to claims for damages. 8.2.9 For equipment supplied by third parties, their limitation periods apply with regard to material defects. 9. industrial property rights, copyrights, defects of title 9.1 We are obliged exclusively in the country of the place of delivery to provide the delivery free of copyrights of third parties or industrial property rights (hereinafter referred to as property rights). In the event of claims by third parties against the Buyer in the country of the place of delivery, which are due to infringement of industrial property rights by IBG and which are demonstrably justified, we shall be liable for damages according to the time limits in Art. 8.1.2 as follows: Obligations shall apply as described in Art. 10, furthermore we shall, at our discretion and at our expense, either obtain a right of use for the affected delivery/service, modify it in such a way that no property rights are infringed or replace the delivery/service. In the event of non-compliance, the customer shall be entitled to make use of the statutory rights of withdrawal and/or reduction. However, this obligation towards IBG shall only exist if we are immediately informed in writing of the claims asserted by third parties by the Buyer, the infringement of the industrial property rights by the Buyer is not acknowledged and IBG reserves the right to take all measures to defend itself and the possibility of settlement negotiations. 9.2 In the event of discontinuation of use of the Supplies (for reasons of mitigation of damages or otherwise) the Purchaser shall be obliged to notify the third party that the infringement of the IPR is not thereby automatically acknowledged. 9.3 The Buyer may not assert claims against IBG if infringements of industrial property rights are at the Buyer's expense, in particular not due to an application not foreseeable by us, in the case of special performance and delivery specifications as well as in the case of modification or use of our delivery with other products not supplied by us by the Buyer. 9.4 If infringements of industrial property rights are caused and confirmed by IBG, the claims regulated under item 9.1 shall apply in conjunction with items 8.2.3, 8.2.5 as well as 8.2.8. 9.5 Other defects of title shall be subject to the application under item 8. Due to defects of title, other claims of industrial property rights against IBG and its vicarious agents not regulated under this item 9 shall be excluded. 10 Liability and other claims for damages 10.1 Any claims for damages (including all claims for damages and reimbursement of expenses) of the customer are excluded, irrespective of the legal basis (in particular due to breach of duty arising from the contractual obligation, tort). 10.2 Statements under 10.1 shall become invalid in case of: a) mandatory liability, b) gross negligence, c) intentional acts, d) injury to life, health and body. 10.3 Claims for damages in case of serious breach of contractual duty shall be limited to foreseeable and contract-typical damages. This shall apply as long as there is no a) gross negligence, b) gross intent or c) injury to life, health and body. 10.4 Points 10.1 to 10.3 do not include a change in the burden of proof to the detriment of the Purchaser. 10.5 If the Purchaser is entitled to claims for damages according to Clause 10, the following shall apply: a) for material defects: these shall be subject to the limitation period according to Article 8.1.2, b) for claims under the Product Liability Act: the statutory limitation periods shall apply. In the case of slight negligence and defects in the delivery resulting therefrom, no liability claim shall apply, also not with regard to personal liability of the legal representatives, vicarious agents and/or employees of IBG. 10.6 Unless otherwise agreed in writing, liability in terms of our business liability insurance is limited to a sum insured of 0.5 million EURO for personal injury and property damage. IBG shall not be liable for the exportability of the delivery and for the permit and import exemptions of the respective country if the customer exports our products after further processing and/or use of individual components. 10.7 In the event of order cancellations by the Buyer, IBG shall be entitled to claim damages for the actual costs incurred. 11.1 If a delivery is not possible, the buyer can claim damages as long as IBG is not itself responsible for the impossibility of delivery. Excluded from this are faults due to a) gross negligence, b) gross intent or c) injury to life, health and body. The change of the burden of proof to the disadvantage of the purchaser is not affected by this. The claim for damages shall be limited to 10% of the value and shall only apply to products which cannot be put into operation for the intended purpose. The right of the Buyer to withdraw from the contract remains unaffected. 11.2 IBG reserves the right to adjust the contract adequately in good faith if unforeseen events as defined in Art. 6.6 occur and significantly change the content of the delivery/service or the economic significance. Included here is a significant effect of the circumstances on the operation of the IBG. If the adjustment of the contract is not economically justifiable, IBG may withdraw from the contract. When exercising the right of withdrawal, we are obliged to inform the buyer immediately after having understood the consequences. This shall also apply if the delivery time has been extended in agreement with the customer. 12.1 The place of performance and jurisdiction for all contracts concluded and any disputes arising therefrom between the Customer and the Contractor shall be the local court in Büdingen for merchants entered in the commercial register, legal entities under public law or special funds under public law (regardless of the value of the subject matter of the dispute). The law valid in the Federal Republic of Germany shall apply to all parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods. We also reserve the right to file suit at the domicile of the Purchaser. 12.2 If the parties concerned agree on a decision before the arbitral tribunal, each side shall appoint an arbitrator within four weeks of being requested to do so by the other side. The President of the Higher Regional Court of the place of jurisdiction appointed in Article 12.1 shall appoint the chairman of the arbitral tribunal. He shall also be responsible for appointing the arbitrator of that party which is in default with its appointment. The arbitration court shall then decide on the basis of agreed terms of delivery and agreements. 13) Binding force of the contract If individual provisions of the contract become legally invalid, the remaining parts of the contract shall retain their legal validity, provided that this does not represent an unreasonable hardship for one of the parties concerned. 14. dispute resolution procedure IBG HydroTech GmbH shall not participate in any dispute resolution procedure before a consumer arbitration board.
IBG HydroTech GmbH Siemensstraße 39 63755 Alzenau GERMANY Phone: +49 (0) 6023 9439 0 Fax: +49 (0) 6023 9439 19 eMail: info@ibg-hydro-tech.de www.ibg-hydro-tech.de