LIMITED WARRANTY: ifm efector inc. warrants that all goods sold be free from defects in material and workmanship. Should any failure to conform with this warranty occur within five (5) years from the date of shipment for proximity and opto sensors, two (2) years from the date of shipment for flow sensors, or one (1) year from the date of shipment for any other product sold ifm efector inc., upon receipt of the merchandise, freight prepaid, will examine and evaluate the merchandise to determine the cause of defect and, if warranted, provide a suitable remedy for repair or replacement.
EXCLUSION OF ALL OTHER WARRANTIES: The foregoing limited warranty is ifm efector's sole warranty with respect to the goods and is expressly IN LIEU OF AND EXCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATION AND WARRANTIES OR OTHER WARRANTIES OF QUALITY, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE AND FREEDOM FROM PATENT INFRINGEMENT. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES. ifm efector's salesmen are not authorized to make warranties about the merchandise described in this contract, and any statements by ifm efector's salesmen shall not be relied upon by the Customer, and are not part of this agreement of sale. The entire agreement is embodied in this writing and NO OTHER WARRANTIES are given beyond those set forth in this agreement.
EXCLUSION OF ALL OTHER REMEDIES AND LIMITATION OF SELLER'S LIABILITY: The parties agree that the Customer's SOLE AND EXCLUSIVE REMEDY against ifm efector shall be for the repair or replacement of defective goods as provided herein. The Customer agrees that NO OTHER REMEDY SHALL BE AVAILABLE to him and that efector shall not, in any event, be liable for any incidental or consequential damages, including (but not limited to) loss of income, loss of time, lost sales, injury to personal property, liability of Customer to any other person or any other type or form of consequential damage or economic loss. FORMS: Orders submitted on the Customer's own purchase order forms, which forms may contain statement, clauses or conditions modifying, adding to, repugnant to, or inconsistent with the terms and provisions of this agreement, will be accepted by ifm efector only upon condition and with the express understanding that notwithstanding any statements, clauses, or conditions contained in any order forms of the Customer, the liabilities of ifm efector shall be determined solely by its own terms and conditions of sale, and in accepting and consummating any such order, ifm efector shall be deemed not to have in any way changed, enlarged, or modified its liability or obligation as fixed by the terms and conditions of sale as stated by this agreement of sale.
SEVERABILITY: If any provision or clause of this agreement or the application of this agreement to any person or circumstance is held invalid or unconscionable, such invalidity or unconscionability shall not affect other provisions or applications of the agreement which can be given effect without the invalid or unconscionable provision or application, and to this end the provisions of this agreement are declared to be severable.
TIME LIMIT ON COMMENCING LEGAL ACTIONS: An action for breach of this agreement of sale, any breach of any warranty under this agreement, or any other action otherwise arising out of this agreement must be commenced within one (1) year from the date the right, claim, demand, or cause of action shall first occur, or be barred forever.
CHANGES AND CANCELLATIONS: The filling of an order requires special equipment and change in the specifications or cancellation of the order cannot be made without our consent.
We will accept such changes in specifications as do not, in our judgment, interfere with the satisfactory operation of the equipment.
A charge will be made for change of specifications and for cancellation, the amount of which will depend upon how far advanced is the work on the order at the time we receive notice in writing of the desired change or cancellation. SALES AND SIMILAR TAXES: The Company's prices do not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale of the apparatus hereunder shall be paid by the Purchaser, or in Lieu thereof the Purchaser shall provide the Company with a tax-exemption certificate acceptable to the taxing authorities.
SHIPMENT: We will not be held responsible for any delay in shipment or delivery caused by or due to war, strikes, fire, any so-called act of God, or any other cause, accidental or otherwise, over which we have no control. In addition, while our aim is to make all deliveries within the time contracted for, we cannot always guarantee to have scientific instruments completed on a certain day, and we will assume no liability on account of unavoidable delays in such cases. No claim allowed unless reported within thirty days after receipt of goods.
TERMS: F.O.B. Shipping Point (except in Canada, F.O.B. destination), thirty days net after date of invoice, subject to credit approval. Seller's prices prevailing at time of each shipment shall apply, and shall be subject to correction for errors.
RETURNS: Under no circumstances should goods be returned by customer unless advance written authorization and shipping instructions have been secured from ifm efector inc., Exton, PA. BLANKET ORDER: Terms and conditions are available upon request from ifm efector inc., Exton, PA.
Price: In the event of a price increase affecting products covered by a Blanket Order, the customer shall be protected in full, and the order shall not be subject to escalation. In the event of a price decrease on products covered by order, customer shall be entitled to lower price on the unshipped balance.
Cancellation: Blanket Order for standard products not completed six months from date of entry shall be cancelled and the customer shall be invoiced for the difference in quantity discounts between the actual quantity shipped and the original total quantity ordered.
Blanket Orders for special products not completed six months from date of entry shall be cancelled and a new Blanket Order shall be written to cover the balance of old order plus additional unit requirements for the new 6 month period, with pricing to be based on prices prevailing at the time of new Blanket Order entry. If a new Blanket Order is not written, a cancellation charge will be made to cover the cost of unused manufactured parts and material.
The preceding terms shall also apply in the event the customer shall cancel the order during the six months period after entry of the Blanket Order.
A DEFERRED SHIPMENT ORDER is defined as an order for either one or many Items either standard or special, specifying a shipment date by the customer 6 months or longer after receipt of the order.
Price: The quoted selling price can only be maintained providing the customer, accepts an invoice for payment upon completion of manufacture with storage provided at no charge to customer until specified shipping date; otherwise selling price will be subject to adjustment for price increase or labor and material costs in effect at time of shipment.
Cancellation: Standard cancellation clause shall apply.
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.
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.
ifm electronic gmbh or an affiliate company of ifm electronic gmbh.
Special agreement between the customer and service provider on the provision of software.
Natural or legal person who commissions the service provider to provide the contractual services.
The computer program specified in the main contract.
New program version of a software used to eliminate errors found in the previous program version.
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.
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.
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:
|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.
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