- Terms and Conditions
Terms and Conditions
a) In these conditions the expression of “ifm ” shall mean ifm electronic Pte Ltd (Company No. 20001040914), and any of its affiliated Companies and its successors in title, and the expression “Buyer” shall mean the the person whose order for Goods is accepted by ifm or who otherwise enters into a contract for the supply of Goods with ifm.
b) The “Goods” means the goods or materials which shall be the subject of the Contract between ifm and the Buyer.
c) The “Contract” means the contract coming into being upon ifm’s written (either as an order confirmation or an original delivery note) acceptance of the Buyer's order. ifm's acceptance shall incorporate these Conditions of Sales so far as they are not varied by any special terms or conditions agreed in writing by ifm, and any terms and conditions in the Buyer's order which are inconsistent with these Conditions shall have no effect. Any variation of the Contract will become binding only if confirmed in writing by the parties.
2. Application of Conditions
a) The supply of Goods by ifm to the Buyer under any Contract shall be subject to these conditions which shall govern the Contract between the parties and supersede all prior dealings, negotiations, representations or agreements whether oral or written, express or implied. No variation of or addition to these conditions shall be effective unless in writing signed by an authorised representative of ifm.
b) These conditions apply to all Contracts made by or with ifm unless varied in writing signed by an authorised representative of ifm. The placing of an order for the goods and/or work shall be an acceptance of these Conditions notwithstanding any other conditions which may be set out or referred to in any other document.
c) These conditions shall prevail over any inconsistent terms and conditions referred to in the Buyer's order or in correspondence or elsewhere unless specifically agreed to in writing by both parties and any conditions or stipulations to the contrary are hereby excluded or extinguished.
3. Delivery Dates
a) Delivery dates are estimates only, given by ifm in good faith and are subject to change. Whilst ifm will make every effort to meet the dates no liability to make good any damage or loss whatever, whether arising directly or indirectly out of delay in or failure of delivery will attach to ifm. Time of delivery is not the essence of a Contract.
b) In particular and without prejudice to the generality of sub-clause a) of this clause, ifm shall not be liable for any delay in or failure of delivery caused by the unavailability of any raw materials or equipment.
c) Nor shall the Buyer be entitled to rescind the Contract on this account unless on or after expiry of the said estimated time of delivery the Buyer gives written notice to ifm of a further reasonable period within which it requires the Goods to be delivered, and if by the expiry of such further reasonable period delivery shall still not have been effected, the Buyer shall be entitled to rescind the Contract.
d) The Buyer shall if required by ifm, accept delivery by instalments but shall not be entitled to demand delivery by instalments. Where the Goods are delivered in instalments,each part or instalment of delivery shall be deemed to be the subject of a separate Contract, and delay in delivery of any such part or instalment delivery shall not entitle the Buyer to repudiate the Contract with regard to any part or instalment deliveries remaining deliverable.
e) In the case of partial completion of an order ifm shall be entitled to payment pro rata in respect of all Goods supplied without prejudice to ifm's rights should non-completion be occasioned by the Buyer.
f) In the event of the Buyer returning or failing to accept any delivery of the Goods in accordance with the Contract, ifm shall be entitled at its option to:
i) deliver and invoice the Buyer for the balance of the Goods then undelivered or to suspend or cancel further deliveries under the Contract ; or
ii) to store at the risk of the Buyer any Goods which the Buyer refuses or fails to accept and the Buyer shall pay all costs of such storage and any additional costs of carriage incurred as a result of such refusal or failure; or
require the Buyer by notice in writing to accept delivery within a reasonable time, and if the Buyer fails for any reason whatever to do so within such time ifm shall be entitled by notice in writing to the Buyer to terminate the Contract in respect of such portion of the Goods as is by reason of the aforesaid failure of the Buyer not delivered and thereupon to recover from the Buyer any loss suffered by reason of such failure
a) ifm shall be entitled to invoice the Buyer, and the Buyer shall pay for the Goods delivered and such additional charges referred to in clauses 3f), 4b), 4c). 6a), 14c), 14d), 14e), 14f) where applicable in accordance with the invoice, within a maximum period of 30 days from the date of ifm's invoice for the same unless otherwise previously agreed in writing between ifm and the Buyer.
b) If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available, ifm shall be entitled to charge interest at the rate of 3% on the unpaid amount from the expiry of the 30 days credit until payment is made in full, unless the failure of the Buyer to make payment is due to an act or omission of ifm.
c) In addition, in the event of delay in payment any costs arising in connection with any debt collection procedure and/or legal proceedings are to be reimbursed to ifm by the Buyer.
d) Without waiving any other rights or remedies ifm may have, ifm may at its option defer deliveries under this contact or any other contract with the Buyer until satisfactory settlement of unpaid amounts.
e) Notwithstanding 4a), if ifm should at any time form the reasonable belief that the Buyer's creditworthiness may be in question, ifm may require the Buyer to make payment in advance of delivery or to advance adequate security for the payment of all amounts due or to become due under the Contract.
a) Property in the Goods shall remain with ifm until payment in full for the Goods has been received by ifm.
b) Furthermore property in the Goods shall remain with ifm until the Buyer has paid in full all sums due to ifm from the Buyer on any other account.
c) Property in the Goods shall not pass to the Buyer until such time as stipulated in clauses 5a) and 5b) above, but risk of loss or damage to the Goods shall pass to the Buyer (at the point when delivery begins) when the Goods are placed at its disposal for collection ex works of ifm as provided in Incoterms 1990, or in accordance with such other Incoterms as may be mutually agreed. From this time until the Goods have been paid for in full, the Buyer shall insure the Goods against such risks. The Buyer shall account to ifm for any insurance proceeds for any damaged or lost Goods.
d) ifm may recover the Goods at any time from the Buyer, if in his possession, if the amount outstanding from the Buyer to ifm in respect of goods supplied or in respect of any other Contract between ifm and the Buyer shall remain unpaid after the due date for payment has passed, and/or the Buyer is in breach of any other of the terms of this Contract or if this Contract is determined for any reason whatsoever.
ifm and its servants and agents are hereby authorised for the purpose of recovery of its Goods to enter with or without vehicles or machinery upon any premises where the Goods are stored or where they are reasonably thought to be stored and shall be entitled to repossess them.
f) Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the goods as bailee for ifm storing the same separately from its own goods and from those of any other person and in such a way that they remain clearly identifiable as the property of without charge and will deliver same to ifm on demand.
g) In the event of the Buyer re-selling or otherwise disposing of the goods prior to the property of the Goods being passed to the Buyer, the Buyer shall receive and hold the proceeds of such re-selling-sale in a separate bank account (and such proceeds shall not be intermingled with any other monies of the Buyer, of a third party nor paid into any overdrawn account) and shall pay such proceeds to ifm on demand.Forthwith, upon receipt by the Buyer of the proceeds of the resale of the Goods supplied to it by ifm, the Buyer shall pay to ifm any sums outstanding on its account with ifm and shall not use or deal with such proceeds until any such sums outstanding on its account with ifm have been paid.
a) The Buyer shall be responsible to ifm for ensuring the accuracy of the terms of any Order (including any applicable/special specifications) submitted by the Buyer, and the Buyer's Order must be accompanied by sufficient information to enable ifm to proceed with the Order forthwith. Any increase in cost attributable to the Buyer's failure to comply with this requirement will give rise to an additional charge to be borne by the Buyer.
b) Where specifications are to be supplied, the Buyer shall supply such specifications in reasonable time to enable ifm to complete delivery within the estimated period.
c) The Buyer shall indemnify ifm against all costs claims damages penalties and expenses to which ifm may become liable as a result of work done in accordance with the Buyer's specifications which involves the infringement of any copyright patent or registered design or other intellectual property rights.
d) ifm reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements or which do not materially affect their quality or performance.
e) Drawings and Descriptive Documents
(i) The weights, dimensions, capacities, prices, performance ratings and other data included in catalogues prospectuses, circulars, advertisements illustrated matter and prices lists constitute an approximate guide only. These data shall not be binding save to the extent that they are by reference expressly incorporated into the Contract.
(ii) Any drawings or technical documents intended for use in the construction of the Goods or of part thereof and submitted to the Buyer by ifm prior or subsequent to the formation of the Contract remain the exclusive property of ifm. They may not without ifm's consent be utilised by the Buyer or copied, reproduced, transmitted or communicated to a third party.
(iii) Any drawings or technical documents intended for use in the construction of the Goods or of part thereof and submitted to ifm by the Buyer prior or subsequent to the formation of the Contract remain the exclusive property of ifm. They may not without ifm's consent be utilised by the Buyer or copied, reproduced, transmitted or communicated to a third party.
(iv) The Buyer warrants that designs, drawings or other information provided by it to ifm for the purpose of the Contract are the Buyer's own unencumbered property and the Buyer indemnifies ifm against any and all damages and expenses incurred by ifm in connection with any (alleged) infringement of third party patents, designs, copyright or similar rights arising out of the use of such designs, drawings or other information of the purpose of the Contract.
7. Goods sold
a) Where Goods are sold Free on Board instead of ex works, the responsibility of ifm shall cease immediately once the Goods are placed on board ship or aircraft or if sold border then when the goods have reached such border.
8. Warranty and Restriction of Liability
a) Subject as expressly provided in these Conditions, all other warranties conditions or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
b) The warranty period will be one year from manufacture date.
c) The warranty terms cover all Goods against electrical component failure.It does not include mechanical damage, misuse and damage resulting from use outside the specified operating and mounting instructions and technical data.
d) All warranty claim items must be returned to ifm. The items will then be inspected for failure analysis and the decision of ifm will be final.Non returned parts would not be covered.
e) For each warranty claim where it is acknowledged that ifm shall have liability; ifm will provide a credit note for the replacement parts. ifm shall not in any event be liable for any loss of profit or goodwill, loss of production or revenue or any type of special indirect or consequential loss owing to failure.
f) The warranty agreement does not cover modifications or repairs carried out by the Buyer or third parties. Any modifications carried out will immediately invalidate all warranties.
g) ifm shall be under no liability whatsoever in respect of any claims on the Goods arising after the expiry of the warranty period.
Warranty Claims Procedure
h) All warranty claims must be reported to ifm within 30 days of failure.Faulty Goods or parts should be returned to ifm’s head office for the attention of the Returns Department.
i) The parts will then be analysed for the cause of failure and the warranty status will be determined.
j) If a failure report is generated upon analysis, corrective action will be advised to ensure that the best practices are employed and that all practicable precautions and measures have been taken to prevent recurrence.
k) The Buyer shall give adequate time and opportunity to ifm to remedy any defects and/or advise corrective action.If adequate time or the corrective action is refused then ifm shall have no liability for the defect.
l) Credit note will only be provided after the failure analysis is completed and results known.
Death of Buyer
m) ifm will compensate the Buyer or his personal representatives for personal injury or death to the extent that such personal injury or death is caused wholly or partly by a defect in the goods produced or held out to be produced by ifm to the extent that such personal injury or death is caused by the negligence on the part of ifm its servants or agents for which negligence ifm is liable at law but not further or otherwise.
n) ifm's responsibility under this clause save under sub-clause (f) shall cease if any repair is made or attempted to be made or components not of ifm's manufacture or supply are installed otherwise than by ifm.
o) Any goods not of ifm's manufacture supplied under this contract are sold under such warranty as the manufacturers give to ifm (available on request) and ifm is able without expense to enforce but are not guaranteed by ifm in any other way.
Exclusion of liability
p) Save as herein before provided, ifm will not in any circumstances be liable for any loss or damage, whether direct or indirect or consequential, howsoever arising, including but without prejudice to the foregoing caused by the unsuitability of the goods for the use in which they are put by the Buyer.
q) Without prejudice to the limits of liability provided herein, the Supplier’s maximum and cumulative total liability (including any liability for acts and omissions of its employees agents and sub-contractors) in respect of any and all claims for defective performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance under the Contract, which may not be excluded by law but may be restricted, shall not of the total Contract price.
9. Claim for Shortage or Loss
a) No claim for damage in transit, shortage of delivery, receipt of faulty Goods or loss of Goods will be entertained unless in the case of damage in transit or shortage of delivery a separate notice in writing is given by the Buyer to the carrier concerned and to ifm within three days of the receipt of Goods followed by a complete claim in writing within ten days of receipt of the Goods and in the case of loss of Goods notice in writing is given to the carrier concerned and to ifm within seven days of consignment and in the case of receipt of faulty Goods, notice in writing is given to ifm within seven days of consignment.
b) In the absence of receipt of such notice in good time, ifm shall not be under any liability in respect of such defects or wrong or short -delivery.ifm shall also be discharged from all such liability if the Buyer or any sub-purchaser shall subject the Goods to any process of manufacture without the Buyer's first having carefully examined the Goods as provided herein.
c) Where Goods are accepted from the carrier concerned without being checked, the delivery book of the carrier concerned must be signed, “Not examined”.The Buyer is obliged to check the goods on delivery and to indemnify and keep indemnified ifm against any claims, demands or proceedings in respect to the quality and safety of the goods in the possession of the Buyer including without prejudice to the generality of the foregoing any claims for personal injury to any person other than the buyer.
d) Defects in the goods becoming apparent subsequent to the inspection detailed in clause 9b) above are to be notified by the Buyer to ifm in a written notice to be received by ifm within seven days of their becoming apparent. In the absence of receipt of such notice in good time ifm shall be discharged from all liability in respect to such defects.
10. Force Majeure
ifm shall not be liable for any failure or delay in delivering any Goods or executing any work under this contract due directly or indirectly to hostilities, outbreak or threat of war, riot, civil commotion, strikes, lockouts, industrial dispute - official or unofficial, legislation or official regulation, wilful damage, the unavailability of transport, or to natural causes such as, but not restricted to, Acts of God, earthquake, flood or tempest, or to fire or accident or theft or any other event outside ifm's control and ifm may by written notice to the Buyer forthwith determine the Contract but without prejudice to any right of action which may have accrued prior to such termination. Where for such reason the availability of Goods to the Buyer is delayed, the Buyer shall take delivery or collect the Goods within seven days of being requested by ifm.
If the delay in delivery occasioned by such force majeure shall continue for more than 60 days either party may then by giving 30 days written notice to the other cancel all parts of the contract not fulfilled by the expiry of this notice period.
11. Termination of Contract
a) If during the currency of a Contract:
(i)Any distress or execution is levied on the Buyer’s property or assets;
(ii)The Buyer (being an individual) makes or seeks to make any arrangements or composition with his creditors or commits any act of bankruptcy is presented or made against him;
(iii) The Buyer being a company)any resolution or petition to wind up the Buyer's business (other than for the amalgamation or reconstruction) is passed or presented or a manger or receiver of the buyers undertaking, property or assets or any part thereof is appointed;
(iv) The equivalent of any of the foregoing events according to the law of the buyer's place of business shall occur;
(v)The Buyer makes default in any payment or is in breach of any of the Buyer’s obligations hereunder;
(vi) The Buyer fails to provide any letter of credit, bill of exchange or any other security required under contract between it and ifm;
(vii) The Buyer fails to take delivery of any goods under any contract between it and ifm;
(viii) The Buyer is involved in any legal proceedings in which the Buyer's solvency is questioned or is deemed to be unable to pay the Buyer's debts;
(ix) The Buyer ceases or threatens to cease trading.
ifm on the giving of seven days' notice to the Buyer, shall be entitled at its option to terminate the Contract and any other such Contract with the Buyer and / or suspend deliveries under the Contract and / or any other such Contract. The foregoing is without prejudice to any other rights ifm may possess against the Buyer for breach of a Contract.
b) On termination of a Contract before the completion of delivery of all the Goods hereunder for whatsoever reason and without prejudice to any other rights ifm may possess, ifm shall be entitled to payment for such Goods, as ifm shall have supplied.
12. Validity of Contract; Waiver
a) The rights of ifm or the Buyer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other, and no waiver by either party in respect of any breach shall operate as a waiver in respect of any breach shall operate as a waiver in respect of any subsequent breach.
b) The invalidity or unenforceability for any reason of any part of these Conditions shall not prejudice or affect the validity or enforceability of the remainder.
c) The failure on the part of either party to a Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
13. Licenses and Availability of Goods
Orders are accepted subject to ifm receiving any necessary license to purchase or to use and the availability to ifm of the required raw materials or instruments or other goods necessary for the production of the Goods which are the subject matter of the order.
a) After the expiration of 90 days from the date of the quotation ifm shall be entitled to alter the price appearing in the quotation without prior notice to the Buyer and any order received by ifm after such date shall be governed by the prices specified at the date of receipt of order.
b) ifm further reserves the right to increase the price quoted to take account of increases in costs including labour overheads transportation and raw materials and for the fluctuation of exchange rates between the quotation date the date of delivery of the Goods or execution of the work.
c) All prices quoted are net of goods and services tax value added tax or similar tax which the Buyer shall be additionally liable to pay to ifm. ifm shall be entitled to receive the price of the Goods net of all bank charges, taxes and similar costs expenses.
d) All prices quoted are exclusive of import VAT or any other taxes duties or imposts and excises.
e) Additional charge will be made on all dispatches to cover the cost of packing, packing materials, insurance and shipment of the goods to their specified destination. This additional charge will be at the rate prevailing on the date of despatch.
f) At the Buyer's written request and upon ifm’s agreement to the same, ifm will arrange on behalf of the Buyer freight and insurance to a named destination in accordance with the normal terms and conditions of carriers and insurers prevailing at the time of shipment. The choice of carrier, insurer and agents used shall be at ifm's discretion and all costs incurred by ifm in providing this additional service shall be reimbursed by the Buyer to ifm against its invoice. Any amount quoted for this service will be an estimate only and the Buyer shall reimburse the actual costs incurred.
15. Acceptance of Quotation
a) No binding contract shall be deemed to have been effected by the acceptance by the Buyer of any quotation made by ifm until the order constituted by such acceptance has been confirmed by ifm in writing.
b) Quotations by ifm shall not constitute an offer and ifm reserves the right to withdraw or amend the same at any time prior to written confirmation of acceptance.
c) Exceptions or alterations to any part of the quotation are valid only if specifically agreed by ifm in writing prior to contract.
16. Right of Set-Off
The Buyer shall pay the purchase price in accordance with the terms of this Contract and shall not be entitled to make any deductions or set off against payments either in respect of any claim arising under this Contract made between the Buyer and ifm or for any other reason.
17. Assignment of Contract
a) ifm may assign the benefit of any right under this agreement.
b) The Buyer may not assign the benefit of or any right under this agreement without the prior written consent of ifm.
18. Services of Notices and the giving of Consent
Any notice required or consent to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the party given the notice.
Any dispute arising out of or in connection with these Conditions or any Contract including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Malaysia in accordance with the Arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration ("KLRCA Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator to be appointed by the Chairman of the KLRCA. The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the parties.
20. Applicable Laws
These conditions and the contract shall be subject to and construed in accordance with Malaysian Law.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Contract for the sale of Goods.
The text of these Conditions of Sale herein written in English language is the authentic text and any difficulties or uncertainties in interpretation shall be resolved solely by reference to this text.
Headings to any of these conditions are included to facilitate reference only and shall not affect the construction thereof.
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.
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