- General Terms and Conditions
General Terms and Conditions
General Terms and Conditions (T+Cs) of Delivery
The T+Cs of ifm electronic apply if the parties recognise such expressly or tacitly. Alterations apply only if the vendor has confirmed such in writing.
2. Means of communication
The parties communicate with one another verbally, in writing or by exchanging data electronically. ‘In writing’ is deemed letters, logs, drawings, plans, telefax, e-mail and other forms of transmission enabling text-based or image-based evidence. ‘By way of signature’ is deemed to involve a mandatory personal signature or an appropriately qualified electronic signature.
3. Scope, execution and venue of delivery
The order confirmation is dispositive for the scope and execution of the delivery; if there is no order confirmation, the offer of the vendor is dispositive. Alterations to the order confirmation are permissible provided that the products fulfil the same functions or the services fulfil the same purposes. However, the vendor is not duty bound to carry out such alterations also to products and services that have already been manufactured or delivered. Provided that no specific venue of fulfilment has been agreed or it does not result from the nature of the transaction, the delivery is deemed provision of the products or services at the vendor’s Registered Office.
4. Customer’s duty to disclose information
The customer shall draw the vendor’s attention in a timely manner to special technical requirements as well as to statutory, official and other regulations at the venue of use provided that such are relevant.
The customer has a right to a copy of the user documentation in the vendor’s usual form. The vendor may invoice additional copies separately. Deviations in the documentation, namely in terms of descriptions and illustrations, are permissible provided that the documents fulfil their purposes.
The customer is responsible for installing the products and using them, as well as combining such with other products. In the process, the customer shall use the necessary care, and observe the manufacturer’s and vendor’s manuals. The customer is duty bound to forward to users all information relevant to security in an appropriate form.
Once the delivered products have been used, the customer will dispose of such at its own cost or compel its customers to observe this disposal duty. The customer shall exempt the vendor from all duties of disposal, namely any type of duty of allowing the products to be returned, disposal costs and associated third-party claims. These adoption and exemption duties do not reach the statute of limitation until two years after the products have ceased to be used.
Only deadlines agreed in writing are deemed binding. Such deadlines are extended appropriately
a) if the vendor does not receive information on time that it requires for execution, or if the customer subsequently alters such information;
b) if the customer is in arrears in fulfilling its contractual duties, particularly if it does not observe payment conditions;
c) if impairments arise outside of the vendor’s responsibility, such as natural events, mobilisation, war, unrest, epidemics, accidents and illness, significant operational disturbances, employment conflicts, delayed or faulty prior deliveries as well as official measures.
The vendor may execute partial deliveries.
In the event of delays, the customer shall grant to the vendor an appropriate period for supplementary fulfilment. If the supplementary period is not observed and a further delay is unreasonable for the customer, the latter may rescind the contract within three working days of the supplementary period having expired.
The customer will check all products and deliveries itself.
As soon as the customer receives the delivered products, it shall inspect such in terms of identity, quantity, transport damage and delivery papers. The customer will inspect the products and services also for further faults as soon as possible.
Products and services are deemed accepted if a fault report is not received within ten working days of delivery, or if products and services are used commercially. Any faults shall be reported by the customer immediately once they have been discovered.
The vendor is responsible for using the necessary care and for its products and services fulfilling the assured characteristics.
Faults and defects are excluded from fault liability if the vendor is not culpable for such, as well as if they involve natural wear, force majeure, unprofessional treatment, intervention by the customer or third parties, excessive loading, unsuitable resources, defects from other machines and systems, unstable power supply, special climactic circumstances or unusual ambient influences.
The customer does not assert any claims based on an insignificant fault. A fault is namely deemed insignificant if it does not impair the use of products and services.
In terms of significant faults, the customer shall grant to the vendor an appropriate period of grace for rectification (supplementary improvement or replacement delivery). The vendor rectifies the faults at its choosing on its premises or on those of the customer, who must grant free access to the vendor. The costs for disassembly and assembly, transport, packaging, travel and stay are borne by the customer. Replaced parts become property of the vendor.
The warranty and statute of limitation periods are 24 months. They are not interrupted when a fault is acknowledged or rectified.
If the vendor is proven to be culpable for the fault, the customer is entitled to be compensated for the actual loss despite fault rectification, price reduction or contractual rescinding, however to a maximum of twenty per cent of the value of the faulty delivery. Compensation for lost profit and other financial loss is entirely ruled out.
11. Further liability
The vendor is liable as part of its third-party liability insurance for further damage to persons and property proven to be incurred by the customer due to the vendor’s culpability. Further claims, namely for the conduct of vicarious agents, are ruled out.
12. Prices and payment conditions
The prices are stated, unless otherwise indicated, in Swiss francs excluding value-added tax, transport, packaging, approvals, certifications, installation, commissioning, training and user support.
They are due for net payment within thirty days of invoicing.
If the customer causes delays in processing the contract, the vendor may adjust the prices accordingly.
The customer may offset counterclaims only if the vendor has provided signed consent. If the customer does not adhere to the payment deadline, it shall pay an annual default interest starting from the time of its becoming due of eight per cent per annum.
The vendor may set an appropriate period of grace in the event of payment arrears; if the customer does not settle the entire due amount within this period, the vendor may declare that it is rescinding the contract and demand that the delivered products and services are returned.
Both parties will not disclose to third parties any type of information from the other’s business area that is generally non-accessible or generally unknown to the public; both parties will undertake all endeavours to prevent third parties from accessing this information. That notwithstanding, each party may continue to use knowledge it acquires in processing the transaction as part of its main activity. The parties will subject this confidentiality duty also to their workers, employees and officers.
14. Choice of law and jurisdiction
This legal relationship is subject to Swiss law. The place of jurisdiction is the vendor’s Registered Office. The vendor may also enlist the court at the customer’s Registered Office.
ifm electronic ag
General license terms for the permanent provision of ifm standard software
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