- Terms and conditions
Terms and conditions
General Conditions for the Supply of Products and Services of the Electrical and Electronics Industry ("Grüne Lieferbedingungen" – GL)* for commercial transactions between businesses
recommended by ZVEI-Zentralverband Elektrotechnik- und Elektronikindustrie e. V.
as of January 2018
Article I: General Provisions
1. Legal relations between Supplier and Purchaser in connection with supplies and/or services of the Supplier (hereinafter referred to as "Supplies") shall be solely governed by the present GL. The Purchaser's general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
2. The Supplier herewith reserves any industrial property rights and/or copyrights and rights of use pertaining to its cost estimates, drawings and other documents (hereinafter referred to as "Documents"). The Documents shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser's Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.
3. The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement the Purchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.
5. The term „claim for damages" used in the present GL also includes claims for indemnification for useless expenditure.
Article II: Prices, Terms of Payment, and Set-Off
1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.
2. If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. for traveling and transport as well as allowances.
3. Payments shall be made free Supplier's paying office.
4. The Purchaser may set off only those claims which are undisputed or non-appealable.
Article III: Retention of Title
1. The items pertaining to the Supplies ("Retained Goods") shall remain the Supplier's property until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
3. Should Purchaser resell Retained Goods, it assigns to the Supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, Purchaser shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by Supplier.
4. (a) Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is made for Supplier. Purchaser shall store the new item thus created for Supplier, exercising the due care of a diligent business person. The new items are considered as Retained Goods.
(b) Already today, Supplier and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of Supplier, Supplier shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
(c) The provisions on the assignment of claims according to No.
3 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by Supplier for the Retained Goods that have been processed, combined or amalgamated. (d) Where Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the prorata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.
5. Until further notice, Purchaser may collect assigned claims relating to the resale. Supplier is entitled to withdraw Purchaser's permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for overindebtedness or pending insolvency of Purchaser. In addition, Supplier may, upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that Purchaser informs its customer of the assignment.
6. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Purchaser shall, without undue delay, provide Supplier with the information and/or Documents necessary to assert the claims it has against its customers.
7. Where the Purchaser fails to fulfill its duties, fails to make payment due, or otherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.
Article IV: Time for Supplies; Delay
1. Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
2. If non-observance of the times set is due to:
(a) force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout);
(b) virus attacks or other attacks on the Supplier’s IT systems occurring despite protective measures were in place that complied with the principles of proper care;
(c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible; or
(d) the fact that Supplier does not receive its own supplies in due time or in due form such times shall be extended accordingly.
3. If the Supplier is responsible for the delay (hereinafter referred to as "Delay") and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.
4. Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it, due to the delayed Supplies, rescinds the contract or insists on the delivery of the Supplies.
6. If dispatch or delivery, due to Purchaser's request, is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
Article V: Passing of Risk
1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
(a) if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the Purchaser's request, the Supplier shall insure the delivery against the usual risks of transport at the Purchaser's expense;
(b) if the delivery includes assembly or erection, at the day of taking over in the Purchaser's own works or, if so agreed, after a successful trial run.
2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser's own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.
Article VI: Assembly and Erection
Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:
1. Purchaser shall provide at its own expense and in due time:
(a) all earth and construction work and other ancillary work outside the Supplier's scope, including the necessary skilled and unskilled labor, construction materials and tools;
(b) the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants;
(c) energy and water at the point of use including connections, heating and lighting;
(d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site;
(e) protective clothing and protective devices needed due to particular conditions prevailing on the specific site. 2. Before the erection work starts, the Purchaser shall unsolicitedly make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.
4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in written form if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. The same consequences as upon acceptance arise if and when the Purchaser lets the twoweek period expire or the Supplies are put to use after completion of agreed test phases, if any.
Article VII: Receiving Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
Article VIII: Defects as to Quality
The Supplier shall be liable for defects as to quality ("Sachmängel", hereinafter referred to as "Defects",) as follows:
1. Defective parts or defective services shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply:
- where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code ("Bürgerliches Gesetzbuch"),
- in the case of intent,
- in the case of fraudulent concealment of the Defect or
- non-compliance with guaranteed characteristic (“Beschaffenheitsgarantie”).
Claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse) shall likewise be subject to a statute of limitations of 12 months from the start of the statutory statute of limitations, provided the last contract in the supply chain is not a sale of consumer goods. The legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung", "Hemmung") and recommencement of limitation periods shall be unaffected.
3. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
4. In the case of claims for Defects, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.
5. The Supplier shall be given the opportunity to repair or to replace the defective good ("Nacherfüllung") within a reasonable period of time.
6. If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any claims for damages the Purchaser may have according to No. 10 shall be unaffected.
7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications, installation/ removal, or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, to the extent that expenses are increased because the subjectmatter of the Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with the normal use of the Supplies. This applies accordingly to claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse), provided the last contract in the supply chain is not a sale of consumer goods.
9. The Purchaser's right of recourse against the Supplier pursuant Sec. 445a BGB (entrepreneur’s right of recourse) is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
10. The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims provided for in this Article VIII, based on a Defect, are excluded.
Article IX: Industrial Property Rights and Copyrights; Defects in Title
1. Unless otherwise agreed, the Supplier shall provide the Supplies in the country of the place of delivery only, without infringing any third-party industrial property rights and copyrights (hereinafter referred to as “IPR”). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 2 as follows:
(a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions;
(b) The Supplier's liability to pay damages is governed by Article XII;
(c) The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
3. Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, 8, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
5. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Article IX, based on a defect in title, are excluded.
Article X: Conditional Performance
1. The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.
2. The Purchaser shall provide any information and Documents required for export, transport and import purposes.
Article XI: Impossibility of Performance; Adaptation of Contract
1. To the extent that delivery is impossible, the Purchaser is entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Purchaser's claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to rescind the contract shall be unaffected.
2. Where events within the meaning of Article IV No. 2 (a) to (c) substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not justifiable for economic reasons, the Supplier shall have the right to rescind the contract. The same applies if required export permits are not granted or cannot be used. If the Supplier intends to exercise its right to rescind the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
1. Unless otherwise provided for in the present GL, the Purchaser has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.
2. This does not apply if liability is based on:
(a) the German Product Liability Act (“Produkthaftungsgesetz”);
(c) gross negligence on the part of the owners, legal representatives or executives;
(e) failure to comply with a guarantee granted;
(f) negligent injury to life, limb or health; or
(g) negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).
However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.
3. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
Artikel XIII: Venue and Applicable law
1. If the Purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier may also bring an action at the Purchaser's place of business.
2. This contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).
Article XIV: Severability Clause
The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.
* The original German text shall be the governing version.
Packaging / Disposal of electrical and electronic equipment
The packaging used by ifm meets the ecological requirements for a proper and harmless recycling. Insofar as packaging used by ifm is generated at the customer's site, the customer confirms with acceptance of the goods that they can recycle such packaging according to the Packaging Ordinance or Packaging Act and undertake to dispose of the packaging in compliance with the provisions of the Packaging Ordinance or Packaging Act. In this case, the customer has to arrange for recycling of such non-returned packaging as provided for in the Packaging Ordinance or Packaging Act, inform ifm about type and quantity of such recycled packaging at any time on request and confirm compliance with this obligation in writing at any time on request. ifm shall be entitled at any time - after prior notification with a reasonable period - to check compliance with this obligation at the customer's site. If the customer does not wish to dispose of such packaging at their end according to the above regulation, the customer has to notify ifm in writing without delay after acceptance of the goods. In this case, ifm shall give the customer the opportunity to return such packaging to ifm according to the obligations laid down in the Packaging Ordinance or Packaging Act. However, the customer bears the cost for returning the packaging.
Disposal of electrical and electronic equipment
After termination of use, the customer undertakes to properly dispose of products delivered at their expense according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG). The customer thereby exempts ifm from ifm's take-back obligations as a manufacturer pursuant to section 19 para 1 of the German Electrical and Electronic Equipment Act (ElektroG) and from any related third-party claims. The customer shall contractually oblige professional third parties to whom the customer forwards the delivered products to properly dispose of the products after termination of use at their expense according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG), and to transfer such obligation in the event that professional third parties further pass on the products. If the customer violates the obligation to transfer customer's obligations to their users, the customer is obliged to take back the delivered products after termination of use at their expense and to dispose of them properly according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG).
Warranty Policy for ifm catalogue products
- The following warranty terms and conditions apply to ifm catalogue products hardware.
- The product is exclusively described in the documentation, in particular in the specification.
- ifm guarantees the functionality of its products for a duration of 60 months from the delivery of the product, as long as it is operated according to the specifications.
- The buyer has to immediately inspect the product for any possible defects, at the latest within one month from the delivery, and has to notify any defects in writing.
- In case of a complaint, the buyer has to return the product to the ifm branch office in charge immediately upon discovering the defect, within one month at the latest, along with a fault description and the indication of ifm's article number. ifm will examine the product and send an investigation report to the buyer upon request.
- In case of a justified complaint, the customer will receive a replacement unit free of charge. Moreover, ifm will reimburse the customer for the expenses incurred due to the defect, up to the amount of the purchase price. Further claims are excluded, unless compulsory legal liability provisions apply.
As of: 06/2017
Notice of withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last goods. To exercise the right of withdrawal, you must inform us (ifm electronic gmbh, Friedrichstraße 1, 45128 Essen; Germany, telephone number: +49 201 / 24 22 0; fax number: +49 201 / 24 22 1200; email address: firstname.lastname@example.org) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or email). You can use the attached sample notice of withdrawal which is however not mandatory for this purpose.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You shall send back the goods without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.
You will have to bear the direct cost of returning the goods.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
General Terms and Conditions on the Provision of Software via the Internet
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
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.