General terms and conditions of sale and delivery of
IER GmbH (as per 1.11.2017)
These General Terms and Conditions of Sale and Delivery (“Terms”) shall govern relations between IER GmbH („IER”) and IER’s respective business partner placing the Order (“Client”). The Terms shall form an integral part of all contracts concluded between IER and the Client. They shall also apply to all future deliveries, services and offers supplied to the Client, even if they are not explicitly agreed to again.
These Terms shall apply to all companies as well as to all legal persons and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
IER shall at all times be entitled to modify or amend these Terms. The Client has the right to object to any such modification or amendment. Should the Client not object to any such modification or amendment within a period of 6 weeks after receiving corresponding notice, such modification or amendment shall become binding. IER shall notify the Client of its right to object when sending its amendment notice.
The term “Supply(ies)” means all sales of spare parts and physical equipment and any service provision (“Supply of Services”) covered by an order placed by the respective Client (“Order”).
The Terms may be supplemented or amended by the Special Terms and Conditions set out in detail in our Supply proposal and its annexes (“Offer”), our Order receipt acknowledgement and our invoice.
Placement of an Order implies outright acceptance of the Terms. Any deviating terms and conditions of purchase on the part of the Client or of any third parties shall not apply even if IER fails to expressly object to such terms and conditions in any given case. Even where IER makes reference to any written documentation containing any Client’s terms and conditions or those of any third party, or refers to any of those, this shall not constitute any agreement with any such terms and conditions. Therefore, any terms and conditions which are contrary to or not anticipated by the Terms shall not be legally binding upon IER, unless explicitly agreed to in writing by IER. The fact that IER does not invoke one of the clauses of the Terms does not constitute waiver by IER to invoke same at a later date.
There are no oral agreements or any side agreements.
All Offers are made subject to change; they are non-binding Offers unless they are explicitly marked as binding or unless they contain a definite time period for acceptance. This also includes cost estimates for repairs. IER may accept orders or commissions within fourteen days of their receipt.
A “Contract” is formed on the date of the Order receipt acknowledgement issued by IER or, failing that, when IER commences performance of the Supply. All Orders are firm and irrevocable. Oral agreements shall not be binding for IER unless IER confirms them in writing.
The Client may not cancel an Order, in whole or in part, without IER’s prior written agreement and payment of compensation. The amount of compensation, deducted against payments already made, shall be at IER’s discretion
equal to the amount of the entire prejudice caused to IER by the cancellation or
equal to a flat rate fixed at
20% of the amount of the Order excl. taxes should cancellation be requested within 15 calendar days of the Order placement date; or
70% of the amount of the Order excl. taxes should cancellation be requested more than 15 calendar days after the Order placement date.
The Client is entitled to prove that damage resulting from such unauthorized cancellation of the Order has either not occurred or is substantially less than the compensation sum.
The Client may not modify an Order (especially with regard to the specifications, quantities and performance lead times of Supply) after the Contract is formed without IER’s prior written agreement and renegotiation of the initial economic terms and conditions of the Contract in order to redress the entire prejudice caused to IER by such modification. Should the Client fail to agree to the new terms and conditions applicable, the previous terms and conditions of the Contract will be decisive.
Prices and payment terms
The prices shall apply for the scope of supply and performance stated in the Order receipt acknowledgement. Any additional or special work (additional services) shall be invoiced separately.
Prices are stated and payable in the currency specified in the Offer or, failing that, in Euros. Prices are net, excluding taxes and ex works IER’s premises (EXW, Incoterms ICC 2010). If IER agrees to deliver the goods to a different location, the Client shall bear any additional costs for transport, packaging and insurance, as well as any customs duty, fees or other public charges in the case of exports.
Prices are valid for the period specified in the Offer or, failing that, for a period of 2 weeks from the date of the Offer. If no specific price was individually quoted, the price shall be the price stated in the price list(s) of the respective original manufacturer valid at the time of the Order.
Unless otherwise agreed in writing, all invoices are payable within 14 days from date of invoice, with no discount for early payment, into the account of IER. The timeliness of payment shall always be determined by the receipt of payment by IER, which shall usually be once the amount is credited to IER’s account. Cheques will only be considered valid payment after having been cashed.
In the event of a delay or postponement not attributable to IER, or any event entitling invoicing of all or part of the price of the Supply, IER may invoice such price on the date originally agreed for completion of the event in question, for payment within the above time limit.
The Client shall have no right to withhold any payments or offset them against counterclaims except those counterclaims are undisputed or have been duly judicially recognized by final declaratory judgment.
Any significant failure of the Client to effect full payment upon the due date shall result in favor of IER: (i) immediate early payment without formal notice of any sums due, including bills of exchange for any reason whatsoever and (ii) immediate suspension without formal notice of the performance of all Orders and services in progress, especially pertaining to warranty and (iii) implementation of penalties by application of the interest rate charged by the Central European Bank with regard to its most recent lending operation plus 9 percentage points p.a. and (iv) payment of a lump sum of 40 Euros for collection fees. The possibility to claim higher interest and additional damages in cases of default shall remain unaffected. This clause is not applicable if the failure to effect full payment upon the due date does not result from any fault of the Client.
Delivery and transfer of risk
Depending on the type of Supply, delivery includes i) making the spare parts and physical equipment available for the carrier on IER’s premises, even if IER takes care of the transport or ii) performing the Supply of Services.
The delivery date is the date specified in the Order receipt acknowledgement or, failing that, in the Offer. The delivery shall begin to run at whichever is the later between i) the Order receipt acknowledgement or ii) payment of the deposit or iii) performance by the Client of any task or obligation required for the delivery.
IER is deemed to be in compliance with the agreed delivery time when the goods to be delivered have left IER’s premises on time or readiness for delivery has been duly notified. If acceptance is required, and unless acceptance is refused for justifiable reasons, the date of acceptance or, alternatively, the date of communication that the goods and/ or services are ready for acceptance shall be determinative.
The risk shall transfer to the Client as soon as the goods have left IER’s premises, irrespective of whether delivery is made in one or several shipments or whether IER has taken over other services, such as, e.g., shipment costs or delivery and installation or other services. The delivery lead time is in bank working days (meaning any weekday where commercial banks are open in Celle, Germany) and transportation times, and is in working hours if given in hours. The delivery time is approximate and may be modified by IER in the event of circumstances beyond the reasonable control of IER.
Retention of title
The Supplies shall remain the property of IER until all claims against the Client in connection with the business transaction, on whichever legal basis, have been settled. The same shall apply in particular if any payments are made for any specially designated claims. In cases of account current, the claim shall be considered as collateral for IER’s claim on balance. Both the Supplies and all other goods superseding them pursuant to this clause that are also subject to retention of title are hereinafter referred to as “Reserved Goods”.
If the Reserved Goods are processed, combined or mixed with other goods that are not the property of IER, it is agreed that IER shall be entitled to joint ownership in the new products or equipment at a ratio equivalent to the value of the supplied goods in relation to the overall value of the new product or equipment. The Client shall store these goods free of charge on behalf of IER.
If the occurrence or imminent occurrence of a substantial deterioration of assets of the Client threatens the contractual performance of the Client, IER shall be entitled to rescind and withdraw from the contract and demand the immediate return of the delivered goods. An imminent occurrence of a substantial deterioration of assets can reasonably be assumed at the latest when the Client is in default in payment for a period of one month or if the Client is in material breach including, without limitation non-payment, which (a) is not remedied within five working days of notice in writing to the Client in breach or (b) cannot be remedied at all.IER is entitled to utilize the Reserved Goods upon repossession. After subtraction of an appropriate amount for the costs of usage, the profit from that usage must be subtracted from the amounts owed to IER by the Client.
All parts or services in which a defect occurs during the statutory limitation period shall (irrespective of the operating time and at IER’s discretion) be mended, replaced or re-performed free of charge, provided that the cause for the defect already existed at the time of transfer of risk according to Section IV.4.
Any claims for defects in quality or defects in title shall become time-barred after the expiration of twelve months following delivery of the goods or, if acceptance is necessary, following acceptance of the goods. The period shall begin to run as of the date of handover to the Client or upon acceptance irrespective of the Client’s knowledge of any defect. Legal defects shall also expire in twelve months. This shall not apply if applicable law requires longer warranty periods as well as in cases of injury to life, body or health; in cases of intentional or grossly negligent breach of duty by IER; and in case of fraudulent concealment of a defect. Statutory regulations relating to tolling of time limit deadlines and the suspension and restart of time limit deadlines shall thereby remain unaffected.
In the event of any defects, the Client shall inform IER (and not any commercial agents, which is invalid) in writing. Obvious or patent defects, i.e. visible defects or other defects visible in the course of a prompt, thorough examination, must be reported within seven days after receipt of the goods or otherwise within seven days after the detection of the defects or at the time at which the defect can be identified by the Client during normal usage of the goods without closer inspection.
The Client shall be solely responsible for proving that all warranty criteria are met, including the time of discovery of the defect and timely information to IER.
If IER so requires, the Client shall provide IER with the opportunity to examine the goods that are the subject of the complaint in the state in which they were at the time of the determination of the defect in order to ascertain whether the goods are really faulty. The Client shall grant IER a reasonable opportunity to cure and for supplementary performance. If the Client does not meet these requirements, all warranty claims for damages resulting from this infringement will be forfeited.
IER is entitled to two opportunities to correct the failure. In the event that supplementary performance fails, or is not reasonably acceptable or is refused by IER, or in the event of a situation according to BGB (German Civil Code Section 281 (2) or BGB Section 323 (2) the Client shall be entitled to reduce the remuneration pursuant to applicable valid regulations or rescind and withdraw from the contract.
IER shall be liable for all expenses arising in connection with any supplementary performance, including in particular but without limitation any transport, travel, work and material costs, always provided, however, that any increase in such costs is not caused by the removal of the delivered goods from the place of fulfilment to another location unless such removal is in accordance with the goods proper usage.
If the Client is entitled either to demand delivery or subsequent specific performance or to rescind and withdraw from the contract, or to claim damages instead of (complete) specific performance and/or compensation for expenses, IER shall have the right to request the Client to execute its rights within a reasonable deadline.
If the Client fails to execute its rights within the deadline period, it shall not be entitled to demand damages instead of performance and/or withdraw from the contract until another reasonable deadline set by the Client has elapsed.
No warranty claims shall arise out of any insignificant deviations from agreed quality standards or from insignificant impairment of usability, natural wear and tear or damage caused after the transfer or risk due to improper or negligent handling, excessive strain, unsuitable operation, faulty workmanship or due to any extraordinary external factors that were not considered in the contract or result from non-reproduceable software errors or if its failure is due to the physical, electronic or computing environment of the Supply or in the event of the parts or services required for performance of the warranty being unavailable in the marketplace. If the Client or any third party executes any improper modifications or maintenance work, no warranty claims shall arise from such work or from the consequences and effects thereof.
IER is not obligated to eliminate defects as long as the Client has not met its obligations to pay. This provision shall be without prejudice to any rights to reduce remuneration.
Liability, rescission and withdrawal
IER’s liability shall be governed exclusively by these Terms. Subject to subsection VII 5 below, all claims not expressly granted hereunder, including any claims of the Client for damages and compensation of expenses (hereinafter referred to as “Compensation Claims”) regardless of legal basis are excluded in the case of any violation of any non-essential obligations if IER, its representatives or its agents are charged with slight negligence.
In the event that a material or essential contractual obligation (cardinal obligation) is violated, IER shall also be liable for slight negligence. Essential contractual obligations shall include the obligation to deliver and install goods and provide services that are free of essential defects in a timely fashion and to provide any advisory, protective, custodial and duty of care obligations so as to enable the Client to use the goods delivered in the contractually prescribed manner or that are intended so as to protect the lives and health of the Client’s personnel or that of third parties or to protect Client’s property from substantial damages.
If IER is in principle liable to pay compensation in accordance with Section VII 2, such liability shall be strictly limited to compensation for those damages which are typical for the respective type of contract and were foreseeable at the time when the contract was signed or when the violation occurred. Subject to subsection VII 5 below, any indirect damages or consequential damages resulting from any defects in the goods can only be replaced or remedied provided that such damages are those typically expected when using the goods as per their intended usage. Subject to subsection VII 5 below, IER shall not be bound to compensate immaterial damage, incidental damage, or operating losses, lost profits, data loss, loss of image, lost business or loss of earnings.
If IER, its representatives, its agents or its vicarious agents are not culpable of willful misconduct or gross negligence, and subject to subsection VII 5 below, the Client’s right to claim compensation shall expire within one year after they arose.
Nothing in these Terms shall limit liability with regard to any injuries to life, body or health or in such cases where IER promised or guaranteed a certain quality or fraudulently concealed a defect or in the case of any willful misconduct or gross negligence. IER’s liability pursuant to applicable products liability laws shall remain unaffected.
Should an event occur which is beyond the control of IER and which compromises the contract’s balance to the extent of making performance of IER’s obligations impossible or substantially more costly, the parties agree to negotiate amendment of the Contract in good faith. In particular, this refers to variation in the prices of raw materials or exchange rates, or hardware or software resources being unavailable in the marketplace. Should the parties fail to reach agreement, IER may terminate the Contract without compensation, giving 30 days’ notice.
In the event of the Client failing to perform any of its obligations, IER may, after having set a reasonable respite period, terminate the Contract by registered letter with receipt acknowledgement and giving 30 days’ notice.
Place of fulfillment, jurisdiction, applicable law
Exclusive place of fulfilment for both parties is Celle.
These Terms and all contracts concluded between IER and the Client shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of any conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).
Exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms or any contract concluded between IER and the Client, including any disputes concerning bills of exchange and cheques, is Celle.
In the event that any provision in these Terms should be or become partly or entirely invalid or unenforceable, the remaining provisions shall remain in full force. Any invalid provisions shall be substituted by valid, enforceable provisions that come closest to the original contractual purpose and suitably protect the interests of both parties.
The Client agrees that IER may store the necessary data related to the business relationship in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing and that it may transfers such data to third parties (such as insurance companies) to the extent necessary for the fulfillment of the contract.