General Terms & Conditions
1. General Provisions
General Terms and Conditions of the CUSTOMER are only valid if INNOSYSTEC explicitly agreed to them in written form. For the scope of the delivery the mutual written concurrent agreements are authoritative.
INNOSYSTEC herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents shall not be made accessible to third parties without INNOSYSTEC’s prior consent and shall, upon request, be returned without undue delay to INNOSYSTEC if the contract is not awarded to INNOSYSTEC. Sentences 1 and 2 shall apply mutatis mutandis to the CUSTOMER’s Documents; these may, however, be made accessible to those third parties to whom INNOSYSTEC has rightfully subcontracted Supplies. All information that is marked by the Parties as “Confidential” and exchanged between them must be treated as confidential trade and business secrets.
The CUSTOMER has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on respectively with the agreed equipment. Without express agreement the CUSTOMER may make one back-up copy of standard software.
Partial deliveries and transshipments are allowed.
In order to fulfil the duties of the contract INNOSYSTEC is entitled to place orders to subcontractors or external service providers.
The CUSTOMER may set off only those claims which are undisputed or non-appealable.
2. Retention of Titel
- The items pertaining to the Supplies (“Retained Goods”) shall remain the INNOSYSTEC’s property until each and every claim the Supplier has against the CUSTOMER on account of the business relationship has been fulfilled. If the combined value of INNOSYSTEC’s security interests exceeds the value of all secured claims by more than 20 %, INNOSYSTEC shall release a corresponding part of the security interest if so requested by the CUSTOMER; INNOSYSTEC shall be entitled to choose which security interest it wishes to release.
- For the duration of the retention of title, the CUSTOMER may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
- Should the CUSTOMER resell Retained Goods, it assigns to INNOSYSTEC, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, the CUSTOMER shall assign to INNOSYSTEC such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by INNOSYSTEC.
- The CUSTOMER may process, amalgamate or combine Retained Goods with other items. Processing is made for Supplier. The CUSTOMER shall store the new item thus created for INNOSYSTEC, exercising the due care of a diligent business person. The new items are considered as Retained Goods.
- Already today, INNOSYSTEC and the CUSTOMER agree that if Retained Goods are combined or amalgamated with other items that are not the property of INNOSYSTEC, INNOSYSTEC shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
- The provisions on the assignment of claims according to No. 3 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by INNOSYSTEC for the Retained Goods that have been processed, combined or amalgamated.
- Where the CUSTOMER fails to fulfil its duties, fails to make payment due, or otherwise violates its obligations INNOSYSTEC shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by INNOSYSTEC; the statutory provisions providing that a remedy period is not needed shall be unaffected. The CUSTOMER shall be obliged to return the Retained Goods. The fact that INNOSYSTEC takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless INNOSYSTEC so expressly declares.
3. Time for Supplies; Delay
- Times set for Supplies shall only be binding if all Documents to be furnished by the CUSTOMER, necessary permits, supplies and approvals, especially concerning plans, are provided in time and if agreed terms of payment and other obligations of the CUSTOMER are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
- If the CUSTOMER fails to do so and is to a major extent responsible for such failure, INNOSYSTEC may
- reasonably extend the milestone dates and / or
- send a reminder to the CUSTOMER which sets a reasonable deadline to make up the delayed action.
- If the CUSTOMER fails to meet this deadline the project milestone is deemed to be completed and corresponding payments fall due without further notice. Completion of the project milestone is documented by unilateral signature of the milestone protocol by INNOSYSTEC.
- In case the SAT project milestone is delayed under the aforesaid conditions, the risk passes to the CUSTOMER on the date of unilateral signature of the SAT protocol by INNOSYSTEC.
- If non-observance of the times set is due to:
- force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout);
- virus attacks or other attacks on the INNOSYSTEC’s IT systems occurring despite protective measures were in place that complied with the principles of proper care;
- hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which INNOSYSTEC is not responsible; or
- the fact that INNOSYSTEC does not receive its own supplies in due time or in due form such times shall be extended accordingly,
the times set shall be considered to be applicable, without any further agreement, as extended by that period of time and the owed service obligations will be considered to be suspended for as long as the occurrence listed under No. 5 a. to d. continues to take place.
6. If dispatch or delivery, due to the CUSTOMER’s request, is delayed by more than one month after notification of the readiness for dispatch was given, the CUSTOMER may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
7. If the contractually agreed Delivery is not available because INNOSYSTEC did not receive delivery from his own suppliers or the INNOSYSTEC’s stock necessary for the Delivery is depleted, INNOSYSTEC shall be entitled to provide a Delivery which is equivalent in terms of quality and price. Should INNOSYSTEC be unable to provide a Delivery which is equivalent in terms of quality and price, INNOSYSTEC may rescind from the Contract.
4. Passing of Risk
- Even where delivery has been agreed freight free, the risk shall pass to the CUSTOMER as follows:
- if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the CUSTOMER’s request, INNOSYSTEC shall insure the delivery against the usual risks of transport at the CUSTOMER’s expense;
- if the delivery includes assembly or erection, at the date of take over and signing of the SITE ACCEPTANCE PROTOCOL at the CUSTOMER’s own works or, if so agreed, after a successful trial run.
- The risk shall pass to the CUSTOMER if dispatch, delivery, the start or performance of assembly or erection, the taking over in the CUSTOMER’s own works, or the trial run is delayed for reasons for which the CUSTOMER is responsible or if the CUSTOMER has otherwise failed to accept the Supplies. In such cases, the project milestone is deemed to be completed and corresponding payments fall due without further notice. Completion of the project milestone is documented by unilateral signature of the milestone protocol by INNOSYSTEC.
5. Assembly and Erection
Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:
- The CUSTOMER shall provide at its own expense and in due time:
- all earth and construction work and other ancillary work outside the Supplier’s scope, including the necessary skilled and unskilled labour, construction materials and tools;
- the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants;
- energy and water at the point of use including connections, heating and lighting;
- suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the CUSTOMER shall take all measures it would take for the protection of its own possessions to protect the possessions of INNOSYSTEC and of the erection personnel at the site;
- protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
- Before the erection work starts, the CUSTOMER shall unsolicitedly make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
- Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.
- If assembly, erection or commissioning is delayed due to circumstances for which INNOSYSTEC is not responsible, the CUSTOMER shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.
- The CUSTOMER shall attest to the hours worked by the erection personnel towards INNOSYSTEC at weekly intervals and the CUSTOMER shall immediately confirm in written form if assembly, erection or commissioning has been completed.
- Factory Acceptance: The program for the Factory Acceptance Test (FAT) shall be sent electronically or in writing to the customer at least six weeks in advance of the FAT milestone date and shall be accepted by the CUSTOMER in writing within one week following receipt. The FAT will be executed by INNOSYSTEC staff in the presence of at least one representative of the customer (accommodation and additional costs for the customer are not part of the offer). Following successful FAT, the contracting parties shall sign the FAT protocol. If it is not signed by any party although the condition and specification is given without a default of the category Blocker, Critical or Major (as defined in Annex 2: failure classification), the protocol is deemed to be signed even without signature of the CUSTOMER.
- On-Site Acceptance: The on-site acceptance test (SAT) will be executed in the presence of the customers staff.
- Dates: The dates for the different acceptance tests have to be mutually agreed between your organisation and our company. The date shall be fixed at the latest 2 months before the respective acceptance.
- Documents: The documents being necessary for the respective acceptance will be submitted to your organisation at least four weeks before the respective acceptance test.
7. Defects as to Quality
INNOSYSTEC shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”,) as follows:
- Defective parts or defective services shall be, at INNOSYSTEC’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.
- The claim for repair or replacement expires within the statutory period of 12 months from the beginning of the statutory limitation period; the same applies mutatis mutandis to conversion and reduction. This does not apply where, according to §§ 438 I No. 2 BGB (German Civil Code (buildings and items which are used for buildings), 479 I BGB (recourse claims) and 634 I No. 2 BGB (defects in buildings), longer statutory limitation periods apply in the event of intentional fraudulent concealment of defects or for non-compliance with a guarantee of quality. The legal provisions regarding suspension of expiration, suspension and beginning of the statute of limitation remain unaffected.
- Notifications of Defect by the CUSTOMER shall be given in written form without undue delay.
- In the case of notification of a Defect, the CUSTOMER may withhold payments to an amount that is in a reasonable proportion to the Defect. The CUSTOMER, however, may withhold payments only if the subject matter of the notification of the Defect involved is justified and incontestable. The CUSTOMER has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle INNOSYSTEC to demand reimbursement of its expenses by the CUSTOMER.
- The Supplier shall be given the opportunity to repair or to replace the defective good (“Nacherfüllung”) within a reasonable period of time.
- If repair or replacement is unsuccessful two times, the CUSTOMER is entitled to rescind the contract or reduce the remuneration; any claims for damages the CUSTOMER may have according to No. 10 shall be unaffected.
- There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the CUSTOMER or third parties and the consequences thereof are likewise excluded.
- The CUSTOMER shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labour, and material, to the extent that expenses are increased because the subject matter of the Supplies has subsequently been brought to another location than the CUSTOMER’s branch office, unless doing so complies with the normal use of the Supplies.
- The recourse claim of the CUSTOMER to INNOSYSTEC as per § 478 BGB (German Civil Code) is limited to those cases in which the CUSTOMER has not reached an agreement with its customers that goes beyond the statutory regulations regarding elimination of defects. Accordingly, the above No. 8 must also be applied to the scope of the right of recourse of the CUSTOMER against INNOSYSTEC under § 478 II BGB (German Civil Code).
- The CUSTOMER shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the part of INNOSYSTEC. The above provisions do not imply a change in the burden of proof to the detriment of the CUSTOMER. Any other or additional claims of the CUSTOMER exceeding the claims provided for in this Article VIII, based on a Defect, are excluded.
- In the event of an SLA being concluded, which becomes valid directly after the SAT, all statutory rights of the customer with regard to warranty will remain unaffected but will be supplemented by the additional claims arising from the SLA with a corresponding higher service level.
8. Conditional Performance
- The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.
- The CUSTOMER shall provide any information and Documents required for export, transport and import purposes.
9. Impossibility of Performance
To the extent that delivery is permanently impossible, the CUSTOMER is entitled to claim damages, unless INNOSYSTEC is not responsible for the impossibility. The CUSTOMER’s claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the CUSTOMER. The CUSTOMER’s right to rescind the contract shall be unaffected.
10. Other Claims of Damages
- Apart from the cases included in these Terms and Conditions, the CUSTOMER has no right to claims for damages based on other legal grounds, especially not for the loss of business profits, due to downtime or loss of production and loss of data from contractual breach of duty or tort liability.
- This does not apply if liability is based on:
- the German Product Liability Act (“Produkthaftungsgesetz”);
- gross negligence on the part of the owners, legal representatives or executives;
- failure to comply with a guarantee granted;
- negligent injury to life, limb or health; or
- negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).
- However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.
- The above provision does not imply a change in the burden of proof to the detriment of the CUSTOMER.
11. Venue and Applicable law
- Place of Jurisdiction is Ravensburg.
- Any dispute arising in connection with this offer or any contract(s) arising out of acceptance of this offer shall be exclusively and finally settled on the on the basis of this terms & conditions or the rules stipulated in any contract(s) arising out of acceptance of the offer. Any matters not regulated as aforesaid in the offer or contract shall be subject to German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).
12. Severability Clause
The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.