Terms and Conditions for deliveries and services from IMS Kommunikationstechnik GmbH (IMS KT)
I. Application of Terms and Conditions
The following terms and conditions apply exclusively for our deliveries, services and offers. The terms and conditions are considered to have been accepted with the order of goods or a service. Deviations from these terms and conditions require our written confirmation. Conflicting or contrary purchasing conditions from customers shall not be recognised by us if nothing to the contrary has been explicitly agreed in writing.
II. Offers and Conclusion of contract
Our offers remain valid for 60 days from the offer date. Our offers are solely project-related and are only valid in the respective operational area. Drawings, images, measurements, weights or other performance data are only binding if these have been expressly agreed on in writing.
The agreed prices do not include the statutory value added tax and are valid for a period of 12 months for framework contracts after written agreement. Prices are fixed for 3 months for individual contracts after written agreement.
The dismantling or return of materials is not included in the prices. In the event of bankruptcy proceedings being applied for or opened against the customers, all special discounts and reductions included in unpaid invoices are no longer applicable.
IV. Payment Conditions
Unless otherwise stipulated in a written agreement, invoices are to be paid in full within 14 days of receipt of the invoice. We reserve the right to require payment in advance. Should the customer fail to pay on time, we shall be entitled to charge delayed payment interest of 8% above the relevant base interest rate of the European Central Bank. We reserve the right to extend our claims. The customer shall only have the right to offsetting or retention in undisputed or legally established counterclaims. If a customer defaults, we are entitled to exercise our right of retention without giving any advance notice. We will then be exempt from all obligations to deliver and perform. Cheques and money orders shall only be accepted after prior agreement. Completion of the transaction shall only then be considered as effected when the cheque amount has finally been deposited. We are entitled to forward the transferred funds. All costs and charges related to the consolidation, discounting and transfer are charged to the customer. All such costs and charges are payable within one week of being charged in writing.
V. Delivery Dates and Periods
All dates and periods with regard to deliveries and the performance of services are only then binding if they were explicitly agreed as being binding in writing. The compliance with an explicitly agreed date or an explicitly agreed period requires a written order in good time. The customer is obliged to collaborate to enable the performance of the ordered goods and services, e.g. permits, planning documents, provisions or services rendered in advance by the contractor, to be rendered on schedule. Otherwise, the delivery and service times will be extended appropriately. The same applies for delivery delays arising from acts of God and from all other hurdles out of our control, which negatively influence the delivery of goods or services. Especially, strikes or lockouts at our suppliers or at their subcontractors extend the delivery and service times appropriately. We are permitted to make part deliveries of goods and services.
VI. Place of Delivery/Acceptance/Transfer of Risk
For the purpose of the project the place of delivery shall be the location of the particular construction project. The current version of VOB, Part B (German Construction Contract procedures / Part B) shall apply for all construction work and services.
VII. Ownership Reservation
The materials and parts delivered shall remain our property until full payment has been received. Should the customer be in breach of contract, especially when a customer is in default of any payment, we shall be entitled to take all materials and parts back. This recall represents a cancellation of the contract. After taking back the materials and parts, we are authorised to sell them and the revenue generated from the sale shall be offset against the liabilities after deduction of reasonable sales costs. The purchaser is obliged to take care of all purchased goods as long as the goods remain our property. The purchaser is expressly obliged to insure the goods adequately at replacement value against theft, fire and water damage at their own expense. As long as the goods remain our property, the purchaser is obliged to notify us immediately in writing, should the delivered goods be seized or otherwise interfered with by third parties.
VIII. Price Adjustment Clause
The prices are based on the commodity prices (Source: Federal Statistical Office) at the time the offer is submitted. Should the commodity prices vary by more than 10 % from those in the offer submitted then the prices of items including commodities, which are an integral part of delivery, shall change correspondingly.
IX. Insolvency Regulation
IMS KT may terminate the contract if the customer fails to make a due payment, or otherwise defaults on payments, in the event the customer files for insolvency or IMS KT or another creditor initiates insolvency proceedings, or if comparable legal proceedings are filed for and a receiver is appointed or a wind-up order is made.
The legal warranty period applies for all delivery contracts. The regulations from VOB, Part B (German Construction Contract procedures / Part B) apply for construction contracts, in particular § 13 VOB, Part B (German Construction Contract procedures / Part B). A formal inspection shall not be agreed. Should the client begin use of the construction or allow it to be used by third parties, this shall be seen as an acceptance.
We are only liable for deliberate actions or gross negligence. This does not apply to damages, which are based on injury to life, the body or health. This also applies for the actions of representatives and vicarious agents.
XII. Non-assignment clause
An assignment of claims, which are due to the customer from us, to third parties, including possible warranty claims, is ruled out. This also applies to claims from subcontractors or customers against us.
XIII. Materials provided by the Customer
Additional costs resulting from a shortage of materials provided by the customer shall be borne by the customer.
XIV. Intellectual Property Rights
The customer is entitled to a plan being implemented once only. We reserve all rights to drawings/descriptions/technical documentation. This also applies for rights created by patent grant or registration of a utility model. These drawings / descriptions / technical documentation shall neither be copied nor made accessible to third parties without our prior consent. They may also not be used improperly in any other way or form by the recipients or third parties. Violations shall lead to claims for damages and may result in prosecution.
The customer shall use all information, documents and all other resources received in connection with the contract only to complete the contract. Insofar as they are not generally known or their disclosure has not been approved, the customer shall treat the information and documents, the conclusion of the contract and its subject as confidential. The customer is similarly obliged to treat all trade secrets, also after the completion of the contract, as confidential and at our request to sign a cease and desist letter accordingly.
XVI. Applicable Law / Place of Jurisdiction
German law shall apply, contractual language is German. The sole place of jurisdiction for all disputes arising from this contract shall be Leipzig.
XVII. Severability Clause / Requirement of written form
Should individual or multiple provisions of the contract be or become legally ineffective for any reason, the validity of the contract shall not be affected thereby. Ineffective or inoperable provisions shall be replaced with ones, which most closely approximate to them in terms of commercial success. This does not apply should the adherence to the contract place undue hardship on one party. Alterations and amendments of the contract and these conditions must be made in writing.