All deliveries and services of IDECO - this also includes the provision of software - are subject to the following terms of delivery and payment exclusively. Any deviating terms and conditions of purchase of the customer are hereby expressly rejected. These shall only be binding for us if we have acknowledged them in writing. By placing the order and accepting the goods delivered by us, the customer tacitly confirms that they agree to our conditions.
2. Quotation and delivery
Insofar as they are not valid for a specific period of time, our quotations are always subject to change; our written order confirmations are decisive for the scope of delivery. Purchase orders and commissions are accepted when the order confirmation is issued; in the case of catalogue components, this is deemed to have been issued in good time if provided at the same time as invoicing and delivery. In the case of quotations subject to a time limit and a specific acceptance period, the quotation shall be decisive if order confirmation is not received promptly. All ancillary agreements and amendments must be confirmed by us in writing. We reserve the right to make changes to the design and weight in the interests of technical progress. Drawings and documents enclosed with the quotation are for the personal use of the recipient only and may not be reproduced or made available to third parties without our express permission. Obvious mistakes, printing, calculation, typing and calculation errors shall not be binding for us and do not give rise to any claim for fulfilment or compensation.
3. Price and payment
Prices apply ex our delivery works or factory warehouse. Prices do not include the statutory value added tax. The costs of shipping and packaging shall be borne by the purchaser. Insofar as we are obliged under packaging law to take back the packaging used for transport, the purchaser shall bear the costs for the return transport of the packaging used and the stated costs of its recycling or - insofar as this is possible and deemed expedient by us - the reasonable costs additionally incurred for renewed use of the packaging. We reserve the right to adjust prices if the basis of calculation changes. The invoice amount is due payable within 10 days of the invoice date with a 2% discount or within 30 days net. The deduction of 2% is not granted if other receivables are overdue. In the case of complete systems, 1/3 of the purchase price is to be paid when the order is placed, 1/3 on delivery and the remainder on acceptance or at the latest one month after delivery. If the purchaser fails to meet a target date, we reserve the right to claim damages for delay in the amount of our associated bank credit entitlement. The costs of assembly, repair and product information as well as consultancy fees are payable net with immediate effect. Withholding payments or offsetting on account of any counter-claims is only permissible in the case of recognised or legally established counter-claims of the purchaser.
4. Delivery period
The delivery period begins with the date of the order confirmation. However, this only applies if all technical and commercial details have been clarified at that time. The delivery period is deemed to have been satisfied if the delivery goods have been dispatched from the factory on or by this date, or if these have been reported to the purchaser as being ready for dispatch. The delivery period shall be extended appropriately in the event of impediments due to force majeure; this includes strikes and lockouts. This also applies if unforeseen impediments and circumstances occur at sub-suppliers. Adherence to the delivery period requires that the purchaser meet with their contractual obligations. If dispatch is delayed at the request of the purchaser, we are entitled, after a reasonable period, to otherwise dispose of the delivery item, to supply the purchaser with a correspondingly extended period and to charge for any storage costs incurred.
5. Transfer of risk and acceptance
The risk shall be transferred to the purchaser upon dispatch, even in the case of partial deliveries. This also applies if we have assumed responsibility for delivery and installation. Should dispatch be delayed as a result of circumstances for which the purchaser is responsible then the risk shall be passed on to the purchaser on the day that the goods are ready for shipping. At the request of the purchaser, we shall take out insurance for the consignment against theft, breakage, transport, fire and water damage, as well as other insurable risks at the purchaser's expense. Partial deliveries are permissible.
6. Reservation of title
The delivered goods shall remain our property until full payment of all present and future claims arising from the business relationship with the purchaser, irrespective of the legal grounds. Assertion of our rights of reservation of title is not to be regarded as a withdrawal from the contract; rather, in addition to the claim for surrender of our property, we retain our rights under the purchase contract, in particular to compensation for damages and lost profit.
The purchaser is entitled to resell the delivered goods in the ordinary course of business, whereby this entitlement is revocable. The purchaser hereby assigns to us all claims to which they are entitled from the resale, including ancillary rights, in the amount of the value of the goods subject to reservation of title. The assigned claims serve as security for all claims pursuant to section 1.
At our request, the purchaser is obliged to disclose the assignment to third parties for the purpose of payment to us and to provide us with the information and hand over the documents required in order for us to assert our rights.
The purchaser is permitted to process, transform and combine the goods subject to reservation of title with other objects, whereby the processing or transformation shall be carried out for us. We shall become the direct owner of the item produced by means of processing or transformation, in accordance with the value of the delivery. The processed or transformed item shall be deemed to be goods subject to reservation of title.
In the event of processing, transformation or combination with other items not belonging to us, we shall have pro rata co-ownership rights to the new item determined based on the ratio of the value of the processed, transformed or combined reserved goods to the value of the new item. The share of the claim assigned to us shall take priority over the other claims.
If our goods subject to reservation of title are combined by the purchaser with real estate or movable objects, the purchaser shall also assign to us by way of security their claim to which they are entitled as remuneration for the product of combination, together with all ancillary rights, without any further specific declarations being required.
The preceding clause shall apply accordingly to the amount of the assigned claims.
We undertake to release the securities assigned to us insofar as their value exceeds the receivables to be secured by more than 20%, where these have not yet been discharged.
The purchaser is not authorised to dispose of the goods subject to reservation of title other than in the manner previously defined, and in particular is not permitted to pledge or assign them as security. The purchaser must notify us immediately of any impairment to the items owned by us. If the purchaser is in default with their payment obligation towards us or if they violate one of the obligations resulting from the agreed reservation of title, all receivables still outstanding shall fall payable with immediate effect. In such instances, we are entitled to demand the return of the goods and to collect them from the purchaser. The purchaser has no right of possession.
7. IDECO software
In return for payment, the customer shall receive a non-exclusive, non-transferable right of use for IDECO software of any kind and the associated documentation on a specific hardware product or a hardware product to be determined in the individual case.
IDECO remains the owner of the copyright and all other industrial property rights.
The right to make copies is only granted for the purpose of data backup. Copyright notices shall not be removed.
We must consent to any distribution to third parties.
If the software is transferred for the purpose of resale, the acceptance of these terms and conditions by the third party must be ensured.
Modifications are not permitted.
In the event of a breach of these conditions, the purchaser shall pay a contractual penalty amounting to ten times the order value. This contractual penalty cannot be offset against any claim for damages.
The software and the associated documentation shall be returned immediately upon request.
The provisions set out above shall not apply to user programs developed exclusively for the specific purchaser on the basis of specifications provided by the purchaser. IDECO shall transfer to the purchaser the exclusive, spatially and temporally unrestricted right of use/exploitation and reproduction of such software programs upon full payment of the purchase price. IDECO shall retain a simple right of use for internal purposes. Before transferring the software for test purposes or for commissioning the system, all necessary preparatory work by the purchaser must be complete.
Delays resulting from this and all costs associated therewith shall be borne by the purchaser.
We shall be liable as follows for defects in our deliveries and services, which also include the absence of guaranteed characteristics:
All parts or services that become unusable or whose usability is significantly impaired within 12 months of the transfer of risk during single-shift operation due to a circumstance that occurred prior to the transfer of risk, in particular due to faulty design, poor materials or defective workmanship, shall be repaired or provided again by us free of charge.
The warranty period for the repaired or replacement item, or the newly provided service is 3 months. However, this shall run until the expiry of the original warranty period as a minimum. The liability period for defective parts of the delivered goods is extended by the duration of the business interruptions caused by the remedial work.
The discovery of such defects must be reported to us in writing without delay, but no later than 8 days after receipt of the goods.
If the complaint is justified, we shall bear the costs of the replacement part, the shipping as well as the necessary dismantling and installation costs to the extent that these are incurred or would have been incurred at the place of residence or commercial headquarters of the purchaser in the Federal Republic of Germany, although to no more than the value of the deficient part. In all other cases, the purchaser shall bear the costs.
The purchaser must give us the time and opportunity necessary for the rectification of defects or the delivery of replacement parts. Only in urgent cases of danger to operational safety and the prevention of major damage shall the purchaser have the right, with our prior consent, to remedy the defect or have it remedied by third parties and to demand reimbursement of the necessary costs from us. The same shall also apply in the event that we are in default with the rectification of the defect.
The purchaser shall only be entitled to rescission or reduction of the purchase price if the repair or replacement delivery was not made in good time following the issuance of a reminder, or if the part ultimately fails.
Further claims on the part of the purchaser - in particular claims for damage compensation - whereby the delivery item itself is not affected, are excluded.
In the case of third-party products, our warranty is limited to the transfer of the corresponding claims to which we are entitled against the supplier of the third-party product, as long as and insofar as warranty claims against our supplier still exist.
Further to this, we accept no liability for damages caused by the following:
Unsuitable or improper use or storage, faulty assembly by the purchaser or by third parties, attempts at repair and modifications by the purchaser, natural wear and tear, faulty or negligent handling, chemical influences, electrical influences, etc. over which we have no control, as well as improper use and a failure to observe our operating instructions and catalogue sheets, in particular with regard to the conditions of use of our test equipment.
Our information on the delivery item and on the intended use, e.g. on dimensions, weights, utility values, temperatures, etc., are merely descriptions or parameters and do not constitute guaranteed properties. This information constitutes non-binding guide values and is only deemed to be guaranteed insofar as it corresponds to our samples tested by the customer for the specific application and approved for this purpose. Insignificant deviations do not constitute grounds for warranty entitlements.
The above limitations of liability shall apply mutatis mutandis to recommendations or proposals as well as any claims of the purchaser arising from the breach of ancillary contractual obligations.
We provide warranty cover for software products as follows:
IDECO software is properly and correctly duplicated. IDECO software is executable on hardware products specified by IDECO.
Fulfilment of the warranty shall be effected by replacement delivery. If this ultimately fails after several attempts - despite the setting of a reasonable period of grace in each case - the customer shall be entitled to rescission or reduction. Further to the above, no warranty is provided for freedom from errors of the software and its data structure, unless otherwise agreed in writing.
9. Impossibility, default, contractual adjustment
The purchaser can withdraw from the contract if we are unable to provide performance as a whole prior to the transfer of risk. Furthermore, the purchaser shall also be entitled to withdraw from the contract if, in the case of an order for similar items, it becomes impossible to execute part of the delivery and the purchaser has a justified interest in refusing a partial delivery. If this is not the case then the purchaser may reduce the counter-service accordingly.
If we are in default of performance as set out in clause 4 and the purchaser grants us a reasonable period of grace which we fail to meet, the purchaser shall be entitled to withdraw from the contract. If a delay in acceptance occurs through the fault of the purchaser, the purchaser shall remain obliged to provide counter-performance.
If the purchaser suffers damage caused by a delay on our part, the customer shall be entitled to claim compensation for the delay. This amounts to 0.5% for each full week of delay, excluding further claims, but no more than 5% of the value of the part of the total delivery that cannot be used in time or in accordance with the contract as a result of the delay.
This limitation of liability shall not apply if the purchaser proves gross negligence or wilful misconduct on our part.
In the event of unforeseen events as set out in clause 4, and insofar as these events change the economic significance or the content of the performance or have an effect on our operations, and in the event that it subsequently becomes apparent that we are unable to provide due performance, the contract shall be adjusted appropriately. Insofar as this is not financially feasible, we shall be entitled to wholly or partially withdraw from the contract.
10. Claims for damages
Claims for damages by the purchaser arising from positive breach of contract, from breach of obligations during contractual negotiations and from tort are excluded, unless liability is mandatory in cases of intent and gross negligence, as well as in cases where a product defect exists under the Product Liability Act for personal injury and property damage to privately used objects. In the case of designs or manufacture according to mandatory specifications of the purchaser, the latter shall indemnify us against any claims of third parties arising from patent rights or the like.
In the case of third-party products, our liability is limited to the assignment of the claims to which we are entitled against the supplier of the third-party product, insofar as no further-reaching liability arises from the Product Liability Act in respect of manufacturer's liability.
The place of jurisdiction is Bocholt. However, we are also entitled to bring an action at the purchaser's domicile.