Terms and conditions of credit and terms and conditions of sale
Definitions :
Applicant = Debtor applying for credit with ifm (Pty) Ltd or any sister Company
Supplier = ifm electronic (Pty) Ltd or any sister company supplying goods or service.
1.
Until such time as the Applicant has paid the purchase price in full in respect of any purchase of goods, ownership in and to all such goods shall remain vested in the Supplier. The Supplier shall, at its sole discretion, be entitled to take possession of any such goods which have not been paid for and in respect of which event the Applicant shall be entitled to a credit in respect of the goods so returned being the price at which the goods were invoiced or the value thereof as determined by a Sworn Valuator of the Supplier’s choice at the Supplier’s discretion. Risk in and to the goods shall however pass to the Applicant on delivery. Returned goods are subject to a 10% handling charge.
2.
The purchase price for every purchase made by the Applicant shall be payable by the last working day of month following the month in which the invoice was issued, subject however to the condition that credit terms shall at all times be at the sole discretion of the Supplier and may be altered or abolished at any time without prior notice to the Applicant. The Supplier has at its discretion the right to enforce the ROE clause as stipulated on all invoices and quotes.
3.
Credit facilities may be withdrawn by the Supplier at any time without prior notice and the Supplier reserves the right to Review the extent, nature and duration of such facilities.
4.
Applicant will be liable to pay interest to, the Supplier at the maximum rate applicable in terms of the Regulations promulgated in terms of the Limitation and Disclosure of Finance Act. No. 73/1968 (as amended) on all overdue amounts. (Calculated from the day after the last day of the month following the transaction).
5.
A certificate issued under the hand of a Director or Manager of the Supplier shall be acceptable of the amount due by the Applicant and such certificate shall be sufficient for purpose of Summary Judgment or Provisional Sentencing.
6.
Should the Applicant be in default in any respects whatsoever, the Supplier shall be entitled in its sole discretion to institute action against the Applicant in any, competent court of law and the Applicant consents to the jurisdiction of the Magistrate’s court in terms of Section 45 of act 32 if 1944 as amended.
7.
Notwithstanding the a foregoing, the Supplier shall not be obliged to institute action against the Applicant in the Magistrate’s Court and the Applicant hereby submits to the jurisdiction of the Supreme Court of South Africa, Pretoria local division, in respect of any action instituted against the Applicant by the Supplier.
8.
In the event of the Supplier handing over the Applicant’s account to an Attorney for collection (whether action is instituted or not, the Applicant agrees to pay costs of the attorney’s own client scale, including collection payable in terms of law.
9.
Should the Applicant fail to object to any item appearing on the Supplier’s statement of account within twenty one days on the date of dispatch of the statement, the account shall be deemed to be in order and the Applicant shall be deemed to have received delivery of each and every item appearing on such statement in good order and condition.
10.
If payment of any particular purchase is overdue, the purchase price for all purchases made from the Supplier shall immediately become due and payable despite any other provisions.
11.
Notwithstanding the fact that, in the ordinary course of its business relationship with the Supplier, the Applicant may deliver cheques to the Supplier by posting such cheques to the Supplier. It is recorded that such delivery shall not constitute payment to the Supplier and the Applicant shall bear the onus of proving that the Supplier in fact received and deposited the cheque concerned. In such an instance the postal service shall be regarded as the agent of the Applicant and not the agent of the Supplier.
12.
The Applicant nominates as its place of business the address on the face hereof under the heading registered office/business, for service upon of it all notices and processes in connection with any claim for any sum due to the Supplier arising out of credit granted by the Supplier to the Applicant. The Applicant is obliged to notify the Supplier of change in address within seven (7) days of said change.
13.
The Applicant agrees that the signature of any agent, contractor, subcontractor or employee of the Applicant on the Supplier’s official delivery note/invoice/waybill or the delivery note of any authorized independent carrier will constitute delivery of the goods purchased.
14.
It is agreed that set-off operate automatically as a matter of law at the moment reciprocal debts between the Supplier and the Applicant come into existence and independently of the will of the parties it shall not be necessary for either the Supplier or the Applicant to specifically raise set-off. Upon the operation, of an automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt with retrospective effect.
15.
In the event of an order being given to the Supplier on the Applicants official order/number, the Applicant shall be stopped from denying the validity of such order notwithstanding the fact that such order may have been given or signed by a person not authorized by the Applicant.
16.
This contract contains the entire agreement between the parties and any other terms, provision, conditions or cancellation thereof whether express or implied are excluded here from and any variations, alterations or additions to his contract shall not be of any force or effect or legal validity unless reduced to writing and signed by the parties or their duly authorized representatives.
17.
The signatory of this agreement on behalf of the Applicant, by his signature hereto, binds himself as surety and or co-principal debtor in conjunction with the Applicant in respect of the Applicant’s indebtedness to the Supplier in whatever amount and for whatever cause under renunciation of the benefits of division and exclusion, with full meaning and scope of which he declares himself to have full knowledge.
18.
The Applicant hereby irrevocably and in without recourse cedes, assigns, transfers and makes over and unto in favor of the Supplier, all its right, title, interest, claim and demand in and to all claims of whatsoever nature and description and howsoever arising which the Applicant may now or at any time hereafter have against all and any person, companies, corporations, firms, partnerships, associations, syndicates and other legal persons whomsoever (“Debtor’s debtors”) without exception as continuing covering security for the due payment of every sum of money which now, or at any time hereafter be or become owing by the Applicant to the Supplier from whatsoever cause or causes arising and for the due performance of every other obligation howsoever arising which Applicant may be or become bound to perform in favor of the Supplier.
19.
The Applicant hereby undertaken that if and whenever the Supplier will so require, the Applicant will not later than 7th of every month, deliver to the Supplier a schedule supplied by a Director or Manager of all amounts which have been owing to the Applicant by its debtors on the last day of the preceding month, reflecting thereon the amounts so owing by each debtor and the name and last known address of such debtor.
20.
Whether or not the Applicant’s debtors will have been notified of the cession, all sums of money which the Applicant collects from his debtors or any of them shall be collected and received by the Applicant as agents on the Suppliers behalf provided that the Supplier shall be entitled at any time to erminate the Applicants mandate to collect all or any such sums of money, and that the effect from the termination of such mandate, the Applicant will cause to collect or receive any payments on account of the debts in respect of which the Applicants mandate has been determined.
21.
The Applicant agrees that the Supplier shall be entitled at any time or times hereafter to give notice to this cession to all or any of the Applicant’s debtors, and to take such steps as they may deem fit to recover the amounts respectively owing by debtors to the Applicant from time to time and for the time being, provided that the Supplier shall be obliged to refund any amounts to the Applicant which are in excess of the amount to which the Applicant will at that stage be indebted to the Supplier.
22.
The Applicant warrants that the Supplier will at all times while this cession will remain in force, be entitled through its duly authorized representatives, to inspect all or any of the Applicants records relating to any of the debts covered by this cession.
23.
Should it transpire that the Applicant entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this cession, and then this cession shall operate as a cession of all the Applicant’s reversionary rights.
24.
In this agreement, unless the context otherwise requires, the words importing the singular shall include the plural and vice versa.
TERMS AND CONDITIONS OF SALE
All orders are accepted by ifm electronic (Pty) Ltd or any of the sister companies subject to Conditions of Sale (where applicable) Servicing Conditions are set out below:
VALIDITY AND PRICES
Prices quoted are “NET TRADE” and exclude VAT. Whilst every endeavor will be made to maintain the prices quoted in this price list, we reserve the right to effect changes without prior notice.
ORDERING
We execute orders to our customer’s exact requirements and do not substitute unless instructed to do so or unless the product has been superseded. Any balances of orders not available from stock, are automatically back ordered, unless specified. We do not submit proforma invoices. An official order must be faxed, posted, e-mailed or hand delivered to our trade counter when collecting goods previously ordered by telephone. (Kindly mark orders “CONFIRMATION ONLY” in the event that orders were verbally placed, to avoid duplication.)
COURIER DELIVERY
All goods are delivered by Courier Services, or any other reputable courier, and are for the client’s account. Same day dispatch and no minimum order policies apply to all orders, irrespective of the method of carriage. For same day dispatch, orders must be received by 11:00 am. Any quoted delivery times are estimates only and the Supplier shall not be liable for failure to deliver or for any delay in delivery from any cause.
GUARANTEE
We guarantee you that we will, at our option, replace faulty goods supplied by ifm electronic (Pty) Ltd, or repair the same, or refund the purchase price thereof, subject to the claim being made in writing to us within the Guarantee period. All goods to which the claim relates, must be returned to us freight prepaid, within that period, suitably packaged, and where relevant, in accordance with any particular instructions which ifm electronic (Pty) Ltd may have notified to you at the time of supply, and be accompanied by an advice note stating the original invoice number in respect of the goods and the nature of any claimed defect together with such further information as ifm electronic (Pty) Ltd may have stipulated at the time of supply. If these requirements are not complied with, our Guarantee shall not apply and we shall be discharged from all liability arising from the supply of defective goods.
PRODUCTS AND AVAILABILITY
Goods supplied by ifm electronic (Pty) Ltd have been procured by us to the relevant description published in our current catalogue, unless otherwise indicated and are supplied as new products. Unless otherwise stated, electrical ratings represent safe working limits. Dimensions and other physical characteristics are subject to normal commercial tolerances. The purchaser shall be responsible for ensuring the fitness of the product for the purchaser’s application. We recommend that you verify dimensions and other data published in the catalogue, together with the future availability, before incorporating products into designs, or for other critical purposes. Our Technical Department will be pleased to advise you in these and other matters related to the use of our products. The information contained in the catalogue was to the best of our knowledge, correct at the time of going to press.
LIABILITY
Save as provided in the section headed “Guarantee” above, we shall not be under any liability whether, in contract, delict, or otherwise; and whether or not resulting from our negligence, or that of our employees, in respect of the defects in goods delivered, of for any damage or loss resulting from such defects. We shall not be under any liability for damage, loss or expense resulting from the failure to give advice or information, or the giving of incorrect advice of information, whether or not due to negligence, or that of our employees. In the event of breach of contract on our part, or depict (including negligence), or failure of any kind on our part, or that of our employees, given rise to any liability for loss of revenue, or any consequential loss or damage arising from any cause whatsoever, we shall not be under any liability.
FORCE MAJURE
If ifm electronic (Pty) Ltd is hindered or prevented from performing any contract, owing to any cause beyond the reasonable control of ifm electronic (Pty) Ltd, or by its inability to procure services or materials, of articles rewired for the performance of the contract, except or enhanced prices, ifm electronic (Pty) Ltd may at its sole option, delay the performance of, or cancel the whole or any part of the contract, and ifm electronic (Pty) Ltd shall not be held responsible for such delay or cancellation, or any inability to deliver.
INSPECTION, TRANSIT DELAYS AND NON-DELIVERY
THE CUSTOMER MUST INSPECT THE PRODUCTS as soon as reasonably practical after delivery and shall within 10 days of delivery, give notice to Ifm electronic (Pty) Ltd in detail, of any defects in the products, or any complaint which the customer may have in relation to the products. Queries regarding goods invoiced but not delivered, must be notified in writing quoting details, within 10 days of invoice date and the invoice number must be quoted. You are advised to contact us if neither goods nor invoice are received within 10 days of placing your order.
RETURNS AND HANDLING CHARGE
No returns, except for work under our repair/exchange service, or when claiming for replacement under guarantee, are permitted without our prior consent. To be eligible for credit, goods must be returned to us in an unused condition within 30 days of invoice date stating relevant invoice number and will be subject to a 10% handling charge. Software will not be accepted for credit or returns. It will be at our discretion to accept back goods i.e. ordered in special part for client. Only stock items would be considered for exchange. Goods must be returned in its original packaging with all accessories accompanying the returned item.
COPYRIGHTS AND PATENTS
Products offered for sale in the catalogue may be the subject of patents, or other legal protection. We on behalf of our principles maintain full copyright in respect of the catalogue, and its whole or partial reproduction without our prior consent, is prohibited.
SERVICING CONDITIONS, REPAIR/EXCHANGE CONDITIONS
For product purchased from Ifm electronic (Pty) Ltd, a repair/exchange service is provided, at the discretion of Ifm electronic (Pty) Ltd. An appropriate charge will be made when they are not eligible for claims under Guarantee, whether by reason of the time, which has elapsed since purchase, or any other reason. This service is only available if the product has suffered neither physical, nor electrical damage and is free from modifications, as may be detailed in the literature supplied with the product. A repair charge in respect of each such product will be provided. Such products are accepted under the repair/exchange service, subject to the following Servicing Conditions:
The product must have been purchased from Ifm electronic (Pty) Ltd.
The repair charge must be paid to Ifm electronic (Pty) Ltd no later than the date of receipt of the required product by ifm electronic (Pty) Ltd, except those customers with the authorized credit account who enclose an official order requesting repair/exchange with the product, may pay through such account and will be invoiced in due course.
Ifm electronic (Pty) Ltd may at its absolute discretion, either repair a product, which it accepts for repair/exchange, or replace it with a suitable product.
Ifm electronic (Pty) Ltd estimates turnaround time in respect of products accepted by ifm electronic (Pty) Ltd under the repair/exchange service to be 15 working days from the date of acceptance. ifm electronic (Pty) Ltd shall be under no liability if it fails to comply with such estimate.
Any part of any substitute product supplied by ifm electronic (Pty) Ltd under its repair/guarantee service, will be subject to the Conditions of Sale.
Ifm electronic (Pty) Ltd guarantees that it will at its option rectify defective repair work performed under this repair/exchange service, or supply to the customer, free of charge, a substitute product in question being received by ifm electronic (Pty) Ltd within 3 months of date of the ifm electronic (Pty) Ltd invoice in respect of the service, or such other periods as may be indicated by us for specific products from time to time. This Guarantee shall be in line of any warranty or condition implied by law in relation to repair work under this repair/exchange service.
Save as provided in 5 (a) above, ifm electronic (Pty) Ltd shall not be under any liability whether in contract, dialect, or otherwise, and whether or not resulting from the negligence of ifm electronic (Pty) Ltd, or of its employees or contractors, in respect of defective repair work, or for any damage or loss resulting there from, or from failure to give advice or information, or the giving of incorrect advice of information.
In no event shall any breach of contract on the part of ifm electronic (Pty) Ltd, or dialect (including negligence), or failure of any kind on the part of ifm electronic (Pty) Ltd, or its employees or contractors, give rise to any liability for loss of revenue, or any consequential loss or damage arising from any cause whatsoever.
SETTLEMENT DISCOUNT
A 2.5% settlement discount will be applied to all payments made in accordance to par.2 (T of Credit). Any late payment will revoke this discount and at the discretion of the supplier any other discounts given.
TERMS AND CONDITIONS OF CREDIT
ifm (PTY) Ltd terms and Conditions of Credit shall be read as if incorporated herein, and shall thus form part of the Terms and Conditions of Sale
General license terms for the permanent provision of ifm standard software
Preamble
You are purchasing standard software from ifm in order to use it for your applications or for the applications of your customers.
Section 1 - Subject matter of the agreement
- The subject matter of this agreement is the permanent provision of the computer program referred to in the pertaining product description including the associated user documentation ("contract software") against payment and free of charge and the granting of the rights of use for the software described in section 2. The hardware and software environment necessary for the use of the contract software is also specified in the product description.
- The contract software and the user documentation are available on the website. If the software is protected by a license key, you shall receive the license key exclusively for the use of the software as specified in these terms, the product description and the user documentation.
- The functionality of the contract software is fully apparent from the product description. The specifications therein shall be understood as a service description and cannot be construed to constitute a guarantee. A guarantee is only granted if it has been explicitly designated as such. Installation and configuration services are not part of these terms.
Section 2 - Granting of rights
- Unless otherwise specified (e.g. in the case of demo versions), you are granted a non-exclusive right to use the contract software, unlimited in time, to the extent granted in these terms and in the product description. The contract software may only be used on one device or one virtual machine per purchased license. The permitted use includes the installation of the contractual software, loading into memory and use in accordance with the intended purpose. Under no circumstances shall you be entitled to make the purchased contract software available for hire or sublicense it in other ways, to publicly reproduce it or make it accessible via wired or wireless communication means, or to make it available to third parties in return for payment or free of charge, e.g. by way of Application Service Providing or Software as a Service. This shall have no effect on the validity of para. 4.
- You shall be entitled to create a backup copy of the contract software if this is deemed necessary for its continued use. You undertake to visibly affix the word "Backup copy" as well as a copyright notice referring to ifm on the backup copy created by you.
- You shall be entitled to decompile and duplicate the contract software to the extent permitted by law.
- You shall be entitled to permanently permit the use of the purchased copy of the contract software to a third party by transferring the license certificate and the documentation. In this case, you shall fully cease the use of the program, delete any installed copies of the program from your computers and delete any copies on other data storage media or transfer these copies to us, provided that you are not required by law to retain such copies for a longer period. Upon our request, you undertake to confirm in written form that the mentioned measures have been carried out in full or, if necessary, to state reasons for a longer retention period. In addition, you shall explicitly agree with the third party to comply with the scope of the granting of rights under this section 2.
- If you use the contract software in a manner that qualitatively (in terms of the nature of the permitted use) or quantitatively (in terms of the number of purchased licenses) exceeds the purchased rights of use, you undertake to purchase the remaining rights immediately. If you fail to do so, we shall be entitled to assert our rights in accordance with this agreement.
- Copyright notices, serial numbers or other features serving to identify the program must not be removed from the contract software or altered.
Section 3 - Warranty
- In the event that the contract software is made available against payment, we shall warrant the agreed quality of the contractual software pursuant to the following provisions, and that you can use the contractual software without breaching the rights of third parties.
The warranty shall not apply to defects attributable to the use of the contract software in a hardware or software environment that is incompatible with the requirements stipulated in these terms and the product description or to alterations and modifications you have made to the software without being entitled to do so pursuant to law or these terms or by our prior written consent. - You undertake to examine the contract software promptly after receipt for apparent defects and to promptly notify us of such defects; otherwise, any warranty for such defects shall be excluded. The same shall apply to cases where such defects become apparent at a later stage.
- In the event of a material defect we shall initially be entitled to subsequent performance, i.e., at our choice, to remedy the defect ("rectification") or to deliver a replacement. If a replacement is provided, you may receive a more recent software version, except where this results in unreasonable impairments. In the event of defects of title, we shall, at our option, procure a legally valid means of using the contract software or modify it in such a way that it no longer infringes any third party rights.
- We shall be entitled to provide the warranty services at your premises. We shall also meet our obligation to rectify defects by making updates available for download through an automatic installation routine on our website, and by offering you telephone support to help resolve any installation issues that may arise.
- This does not affect your right to reduce the purchase price or rescind the contract if efforts to provide a remedy or replacement delivery fail twice. The right to rescind the contract is excluded in the event of insignificant defects. If you claim compensation for damages or futile expenses, our liability shall be governed by section 4.
- With the exception of claims for damages, warranty claims on the basis of material defects shall be subject to a statutory limitation period of two years. If a data carrier is sold, the statutory limitation period shall start upon delivery of the contract software, in the event of a sale involving a download from the Internet, it shall start upon notification and activation of the access data for the download section. Claims for damages and claims for reimbursement of futile expenses shall be governed by section 4.
- If a maintenance contract exists between the parties, the time limit for removal of defects shall be determined by the periods stipulated therein.
Section 4 - Liability
- Unless agreed otherwise in individual cases, we shall be liable in accordance with this section 4.
In accordance with this section 4, we shall be liable without limitation
- in case of intent or gross negligence;
- in case of damage to life, limb or health;
- pursuant to the provisions of the German Product Liability Act; and
- under a warranty assumed.
- In the event of a breach of obligation due to slight negligence, where the said obligation is essential for fulfilling the purpose of the contract (cardinal obligation), our liability shall be limited in amount to the damage that is foreseeable and typical for this type of business.
- Any further liability on our part shall be excluded.
- The aforementioned limitation of liability shall also apply to the personal liability of our employees, representatives and bodies.
Section 5 - Security measures, right to carry out audits
- You shall take suitable measures to protect the contract software and, where applicable, the online access data, from access by unauthorised third parties. In particular, all copies of the contract software and access data must be kept in a safe place.
- On request, you shall allow us to verify the correct use of the contract software, and especially whether you are using the program both qualitatively and quantitatively within the scope allowed by the acquired licenses. For this purpose, you shall provide us with information, let us inspect relevant documents and files and enable us, or an auditing company appointed by us which is acceptable to you, to examine the hardware and software environment employed. We may carry out the audit at your premises during regular business hours, or may have it carried out by a third party who is bound by professional secrecy. We shall ensure that such activities at your premises will have the least possible impact on your business operations. If it follows from the audit the number of licenses used exceeds the number of licenses acquired by more than 5% (five percent) or that there are other usages not in keeping with the contract, you shall bear the costs of the audit; otherwise the costs shall be borne by us.
Section 6 - Miscellaneous
- You shall be able to transfer to third parties any claims against us based upon this contract only following our written consent. This shall have no effect on the validity of section 2 para. 4.
- Any terms of business which may contradict these license terms shall be inapplicable.
- The parties are aware that the contract software may be subject to export or import restrictions. In particular, there may be obligations to obtain permission, or the use of the software or associated technologies abroad may be subject to restrictions. Applicable export and import control provisions of the Federal Republic of Germany, the European Union and the United States of America as well as any other applicable regulations have to be adhered to. Our performance of the contract is subject to the proviso that there are no obstacles to performance due to national and international regulations of export and import law or any other legal provisions.
- This contract shall be governed by the law of the country in which ifm is headquartered. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention) shall be excluded.
- Place of jurisdiction is at the place of business of ifm.
Open Source Software Licenses
We hereby inform the buyer that various products of the ifm group contain open source components. Depending on the product, these open source components are subject to the General Public License Version 1, 2 or 3 (General Public License 3 in combination with the GNU Compiler collection Runtime Library Exception Version 3.1), the Lesser General Public License Version 3, Berkeley Software Distribution (BSD-2-Clause, BSD-3-Clause, BSD-4-Clause)", the Academic Free License Version 2.1, MIT-License (MIT), Python Software Foundation License 2.0, Perl Artistic License and Artistic License 2.0, Microsoft Public License, Apache Software License Version 1.0, 1.1 and 2.0, ISC License, libpng License and the zlib License or other licenses that are apparent from the information for the respective product. This means that the buyer may only provide these components (and any further derived parts) in accordance with the aforementioned licenses, some of which require the source code to be disclosed to third parties. The buyer undertakes to observe the respective license when using, processing and passing on the open source components. The relevant licence texts are stated in the product-related accompanying materials (e.g. user manual, installation instructions, downloads or other information materials).
General Terms and Conditions for Software Maintenance (Services)
The parties have concluded an agreement on the provision of software. The terms and conditions below apply to the provision of software maintenance services by ifm electronic gmbh (hereinafter referred to as “service provider”) in respect of the software supplied to the customer. Deviating terms and conditions of the customer are expressly not recognised.
1. Definitions
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Service provider: |
ifm electronic gmbh or an affiliate company of ifm electronic gmbh. |
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Main contract: |
Special agreement between the customer and service provider on the provision of software. |
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Customer: |
Natural or legal person who commissions the service provider to provide the contractual services. |
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Software: |
The computer program specified in the main contract. |
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Update: |
New program version of a software used to eliminate errors found in the previous program version. |
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Upgrade: |
New program version of a software containing new or improved functionalities of the software. |
2. Subject matter of the contract
The service provider provides software maintenance services in respect of the software supplied to the customer. The provision of the services described here is dependent on the conclusion of the main contract.
3. Remuneration
There is no special remuneration owed for the services rendered by the service provider unless otherwise mutually agreed.
4. General obligations (to perform), cooperation of the customer
The customer shall provide the service provider with all the information required to properly assess and process the respective service query without being prompted to do so.
Furthermore, the customer is obliged to install the updates made available to it by the service provider and to use only the most current version of software or the version prior to the most current version. This shall not apply if this is unreasonable, for example because the most current or the predecessor software version is/are defective, and this would impair the customer's operations.
5. Scope of service, service times
The service is provided by the service provider by email or over the phone in German or in English.
Service time:
The current service times available on the country-specific homepage of the service provider apply, e.g. https://www.ifm.com/de/de/de/kontakt/kontakt for Germany.
The service provider is obligated to respond to a service query within the response times defined below. Response time refers to the time taken to respond once a service ticket has been opened by the service provider describing a specific and reproducible incident (“ticket creation”). Response times are measured during the respective service period.
The following response times apply whereby the priority of the incident is defined by the customer:
| Priority | Definition | Reaction time |
| high | The incident has a serious impact on business operations or activities, or business operations cannot be carried out. The incident requires immediate action because significant losses may result or overall business operations may be affected. | 4h |
| medium | Due to the failure, a business transaction does not function as intended. The incident has a minor impact on business operations. | 8h |
| low | The incident has a minor impact or no impact on business operations. | 24h |
Incident: An incident within the meaning of these terms and conditions is said to have occurred if the software, when used according to the contractual purpose, the scope of services agreed and the system requirements outlined by the provider, does not provide the functionalities described in the product/service description during the term of this contract.
The manner in which the services are provided is at the reasonable discretion of the service provider. The service may also take the form of guidelines or instructions for the customer. The customer is required to adhere to such instructions.
6. New program parts
The service provider shall continue to work on developing the software licensed to the customer and shall incorporate future developments in updates or upgrades.
The service provider can at any time replace the software licensed to the customer with updates or upgrades at its own reasonable discretion.
The service provider shall grant the customer usage rights to such updates and upgrades in accordance with the underlying main contract.
7. Liability
The service provider shall be liable in accordance with statutory regulations for any loss or damage to the customer caused with intent or by gross negligence, or which ensues from the absence of a warranted property, arises from a culpable breach of cardinal duties, results in harm inflicted on life, limb or physical health, or where liability is assumed under the product liability law.
Cardinal duties include those contractual obligations which have to be fulfilled in order for the agreement to be executed in the first place; which the contractual partner may rely on being performed as a matter of course; and which if breached by the other party may jeopardise the very purpose of the contract.
If a cardinal duty is breached, liability – provided the damage is merely caused by slight negligence – shall be limited to those losses which are typical and foreseeable and must therefore be anticipated in connection with the provision of software under the contractual agreement.
If the damage suffered by the customer is due to loss of data, the service provider shall not be liable for this.
In all other respects, liability – irrespective of the particular legal basis – shall be excluded.
8. Term of contract and termination
This agreement is linked to the term of the main contract and automatically ends once the main contract expires or is terminated in some other way. If the main contract is extended, then this agreement shall be extended automatically, too.
The following applies to ifm moneo software products:
With the purchase of the software, the customer acquires a right to (free) service until the end of the calendar year in which it purchased the corresponding moneo modules and the following year. At the end of the following year, the entitlement to services expires. The customer can either conclude a new service contract or book individual services as required. This presupposes compliance by the customer with the obligations to perform and cooperate described in Clause 4.
9. Final provisions
If individual clauses contained in this contract are or become legally ineffective – in part or in full – the validity of the remaining provisions of this contract shall not be affected.
This contract shall be governed by the law of the country in which ifm is headquartered. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention) shall be excluded.
The exclusive place of jurisdiction for disputes arising from or in connection with the agreement shall be at the registered office of ifm.
As of: Dec. 2020