for the Supply and Erection of Machinery and other Mechanical, Electrical and Electronic Equipment in Denmark, Finland, Norway and Sweden.
Issued in 2019 by DI, Denmark, Teknologiateollisuus - Teknologiindustrin, Finland, Norsk Industri, Norway and Teknikföretagen, Sweden.
1. These General Conditions shall apply when the parties agree in writing or otherwise thereto. Any modifications of or deviations from the conditions shall not apply unless agreed in writing.
2. In these General Conditions the following terms shall have the meaning herein assigned to them:
Contract: The written agreement between the parties concerning performance of the Works, and all appendices, including amendments and additions to the said documents agreed in writing.
Plant: All machinery, apparatus, Software, materials, documentation and other articles to be supplied by the Contractor under the Contract.
Works: The Plant and the result of the work to be performed by the Contractor under the Contract.
If the Works according to the Contract shall be taken over by separate sections intended to be used independently from each other, these General Conditions shall apply to each section separately. The term “Works” shall then refer to the section in question.
Site: The place where the Plant are to be erected, including adjacent areas necessary for transport, unloading and storage of the Plant and necessary erection equipment.
Contract Price: The sum, excluding value added tax, to be paid for the Works.
If erection is paid for on a time basis and is not yet completed, the Contract Price for the purposes of Clauses 23, 27, 49 and 50 shall be the price of the Plant with the addition of 10 % or such other percentage as the parties have agreed.
Written Notice: All documents signed by one of the parties and received by the other party, and notices received by the other party by letter, fax, electronic mail or other means of communication agreed by the parties. The contents of minutes from a meeting signed or approved by both parties shall also constitute a Written Notice.
Software: The computer software which is included in the
Works and which consists of
3. Data contained in marketing material, price lists and other product information are binding only to the extent that they are by reference expressly included in the Contract.
6. Neither party shall, without the consent of the other, be entitled to disclose to any third party technical or commercial information which either party, at the formation of the Contract or later, has stated to be confidential. This does not apply to the extent that the disclosure is necessary to enable a party to fulfil its obligations under the Contract or for operation and maintenance of the Works.
Each party is obliged to prevent that such confidential information is disclosed to or used to a greater extent than permitted by the first paragraph of this Clause by its employees, consultants, subcontractors and other contractors or others who through that party have or may obtain access to such information.
11. The Purchaser shall be responsible to the Contractor for ensuring that erection is carried out under conditions which comply with the applicable laws and regulations for working conditions at the Site. The Purchaser shall inform the Contractor by Written Notice of the safety regulations to be observed by personnel on the Site.
The Purchaser shall further at his own expense, on or near the Site, provide satisfactory facilities for the erection personnel for changing of clothes, washing and eating. The Purchaser shall also ensure that the Contractor’s personnel have access to board and lodging in the vicinity of the Site in accordance with the applicable collective labour agreements, regulations or as specified in the Contract. The expenses for board and lodging are regulated pursuant to Clauses 24.2 and 25.
Testing of the Plant in Connection with Manufacture.
Purchaser’s Delay, etc.
28. The Plant shall remain the property of the Contractor until the Works have been paid for in full, to the extent that such retention of title is valid under the relevant law.
34. The Contractor shall have the right to inspect the Works at the Site at his own expense. Inspections shall be carried out during the Purchasers normal working hours. This right applies until the Works are taken over and during any work pursuant to the provisions of Clauses 54 – 65.
35. The Purchaser may until the Works have been taken over, subject to the limitations in Clause 38, require variations in the originally agreed scope, design and construction of the Works.
A request for a variation shall be made by Written Notice to the Contractor with a precise description of the variation required.
43. When the Works are as specified for taking over in the Contract the Purchaser shall be deemed to have taken over the Works,
Taking over shall however not be prevented by any remaining minor adjustments or additions which do not affect the operation of the Works.
The Purchaser shall without undue delay by Written Notice confirm to the Contractor that the Works are taken over and the time for taking over. Failure by the Purchaser to give such confirmation shall not affect the judgment whether the Works have been taken over.
The Purchaser is not entitled to take the Works or any part of them into operation before taking over. If the Purchaser takes any part of the Works into operation without the Contractor’s consent by Written Notice, the Purchaser shall then be deemed thereby to have taken over the Works. The Contractor shall then be relieved of his obligation to carry out the taking-over test.
44. Unless otherwise agreed, the risk of loss of or damage to the Works shall pass to the Purchaser on taking over.
If it is agreed that the Purchaser shall receive the Plant at the Site, he shall inspect the Plant on arrival and immediately inform the Contractor by Written Notice of any transport damage.
The time for taking over shall be postponed even if the reason for delay occurs after the originally agreed time for taking over.
The liquidated damages shall be payable at a rate of one per cent of the Contract Price for each commenced week of delay. The liquidated damages shall not exceed ten per cent of the Contract Price.
The liquidated damages become due at the Purchaser’s demand by Written Notice, but not before the Works are taken over or the Contract is terminated by the Purchaser under Clause 50.
The Purchaser shall forfeit his right to liquidated damages if he fails to lodge a claim for liquidated damages by Written Notice within six months after the date when taking over of the Works should have taken place.
If the Contractor fails to complete the Works within such final period and this is not due to any circumstance for which the Purchaser or any other contractor engaged by him is responsible, then the Purchaser may terminate the Contract by Written Notice to the Contractor.
In case of such termination the Purchaser shall also be entitled to compensation for the loss he suffers because of the Contractor’s delay to the extent that the loss exceeds the maximum of liquidated damages to which the Purchaser has become entitled under Clause 49. This compensation shall not exceed 10 % of the Contract Price.
The Purchaser shall also have the right to terminate the Contract by Written Notice to the Contractor if it is clear from the circumstances that a delay will occur which under Clause 49 would entitle the Purchaser to maximum liquidated damages. In case of such termination, the Purchaser shall be entitled to both maximum liquidated damages and compensation under the third paragraph of this Clause.
Where the Contractor is liable for a defect, he shall also be correspondingly liable for damage to the Works that is caused by the defect.
The Contractor shall not be liable for defects resulting from materials provided by the Purchaser, from a design stipulated or specified by the Purchaser, or from incorrect preparatory work carried out by the Purchaser as referred to in Clause 14.
If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Purchaser loses the right to make any claim based on damage to the Works which occurs and which could have been avoided if such notice had been given.
Remedial work shall be carried out where the Works are located, even if this is not at the Site, unless the Contractor, with regard to the interests of both parties, finds it more suitable to have the Plant sent to him or to a place as instructed by him.
If the defect can be remedied by repair or replacement of a defective part and dismantling and reinstallation of the part does not require special knowledge, the Contractor may demand that the defective part be sent to him or to a place as instructed by him for repair or replacement. In such case the Contractor has fulfilled his obligations in respect of the defect when he delivers a duly repaired part or replacement part to the Purchaser.
If the Works are located elsewhere than on the Site, the Purchaser shall bear the additional costs for remedying a defect which the Contractor thereby incurs.
Contractor shall have no liability for defects in any part of the Works for more than one year from the end of the liability period referred to in Clause 56, first sentence, or from the end of any other liability period agreed upon by the parties.
Nor is the Contractor liable for infringement of intellectual property rights arising out of a design or construction stipulated or specified by the Purchaser.
The Contractor shall only be liable if the Purchaser without delay informs the Contractor by Written Notice of any claim which the Purchaser receives and allows the Contractor to decide how the claim shall be dealt with.
The Contractor has the equivalent responsibility if the Purchaser informs the Contractor by Written Notice of an infringement of patent, copyright or other intellectual property rights, without any claims made against the Purchaser from a third party.
72. If the Contractor fails to fulfil his obligations under Clause 71 in time, the Purchaser may by Written Notice require him to do so within a final reasonable period, which shall not be less than one week. If the Contractor fails to fulfil his obligations within that period, the Purchaser may at his option:
73. The Contractor shall have no liability for damage caused by the Works to any immovable or movable property, or for the consequences of such damage, if the damage occurs while the Works is in the Purchaser’s possession. Nor shall the Contractor be liable for any damage to products manufactured by the Purchaser or to products of which the Purchaser’s products form a part.
The Purchaser shall indemnify and hold the Contractor harmless to the extent that the Contractor incurs liability towards any third party in respect of loss or damage for which the Contractor is not liable according to the first paragraph of this Clause.
The above limitations of the Contractor’s liability shall not apply if he has been guilty of gross negligence.
If a third party lodges a claim for compensation against the Contractor or the Purchaser for loss or damage referred to in this Clause, the other party shall forthwith be notified thereof by Written Notice.
The Contractor and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal which examines claims against either of them based on damage or loss alleged to have been caused by the Works. The relationship between the Contractor and the Purchaser shall, however, always be settled in accordance with Clause 78.
74. Save as otherwise stated in these General Conditions there shall be no liability for either party towards the other party. This applies to any loss the other party may suffer such as loss of production, loss of profit and any other consequential or indirect loss whatsoever.
The limitation of the liability referred to in the first paragraph shall, however, not apply if a party has been guilty of gross negligence. Nor shall the limitation of liability apply to breach of the obligations referred to in Clause 6, or liability for infringement of intellectual property rights under Clauses 68 – 72.
The above described circumstances shall constitute grounds for relief only if their effect on the performance of the Contract could not be foreseen at the time of formation of the Contract.
If grounds for relief prevent the Purchaser from fulfilling his obligations, he shall reimburse the expenses incurred by the Contractor in securing and protecting the Works. The Purchaser shall further reimburse any costs incurred by the Contractor for personnel, subcontractors or equipment which, with the Purchaser’s consent, are held in readiness to resume performance of the Works.
Conditions, either party shall be entitled to terminate the Contract by Written Notice to the other party, if performance of the Contract is prevented for more than six months by reason of a ground for relief as described in Clause 75.
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
Section 2 - Granting of rights
Section 3 - Warranty
Section 4 - Liability
Section 5 - Security measures, right to carry out audits
Section 6 - Miscellaneous
We hereby inform the buyer that various products of the ifm group contain open source components. Depending on the product, these open source components are subject to the General Public License Version 1, 2 or 3 (General Public License 3 in combination with the GNU Compiler collection Runtime Library Exception Version 3.1), the Lesser General Public License Version 3, Berkeley Software Distribution (BSD-2-Clause, BSD-3-Clause, BSD-4-Clause)", the Academic Free License Version 2.1, MIT-License (MIT), Python Software Foundation License 2.0, Perl Artistic License and Artistic License 2.0, Microsoft Public License, Apache Software License Version 1.0, 1.1 and 2.0, ISC License, libpng License and the zlib License or other licenses that are apparent from the information for the respective product. This means that the buyer may only provide these components (and any further derived parts) in accordance with the aforementioned licenses, some of which require the source code to be disclosed to third parties. The buyer undertakes to observe the respective license when using, processing and passing on the open source components. The relevant licence texts are stated in the product-related accompanying materials (e.g. user manual, installation instructions, downloads or other information materials).
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