These Terms and Condition alone apply for all transactions – including future ones – in which ITD is the vendor. ITD rejects the customer’s additional, alternative or contrary conditions, unless it has recognised this expressly in writing. The Standard Terms and Conditions of ITD remain applicable even if ITD, with knowledge of the customer’s additional, alternative or contrary conditions, fulfils its contractual duties without reservation. All agreements, amendments and additions to the contract will be binding if declared or confirmed by ITD in writing.
2. Conclusion of contract
All offers and drawings and specifications contained therein are non- binding and are subject to change, unless these are expressly indicated as binding. The customer’s order constitutes a binding offer which ITD can accept by way of sending a confirmation of order or by delivery of the services ordered. If the offer of ITD is expressly indicated to be binding, ITD will be bound to the price listed in the offer for a period of four weeks from the date of the offer, unless an alternative time period is specified therein. If the customer and ITD have jointly signed a written contract, this contract will be deemed also to be the confirmation of order. If, in individual cases, a written contract of this type does not specify any service description or the contract contains other gaps, ITD’s offer shall apply. The effectiveness of the contract is subject to the condition precedent of the issue of an export license, if required.
3. Cancellation of contract
ITD is entitled to cancel the contract extraordinarily if the Customer ceases making payments, if it or another creditor applies for the commencement of insolvency proceedings (Sections 14 and 15 Insolvency Statute (InsO)) or if an application is made for a comparable legal procedure, if such a procedure is commenced or if commencement is denied due to the lack of sufficient assets. In this case ITD is entitled to demand payment of the agreed fee less the expenses saved and less the sum earned by disposing of the services already rendered.
4. Conditions of delivery and performance, transfer of risk
Delivery is made EXW Dresden-Rossendorf (INCOTERMS 2010) plus packaging costs. Risk passes to the Customer once the contractual object has left the works, including where partial deliveries are performed or the ITD has assumed other obligations, including the costs of shipment or delivery or set-up for example. If formal acceptance of the contractual object is required, risk will pass at that time. Acceptance must be performed on the scheduled date, but in any case promptly after ITD has declared the delivery ready for acceptance. Acceptance may not be refused on the basis of any insignificant defects.
If the acceptance or the delivery of the contractual object is delayed due to circumstances not attributable to ITD, the risk will pass at the time that ITD declares the contractual object is ready for dispatch or acceptance.
If ITD indicates that delivery/service will foreseeably take place within particular time periods, these may only be regarded as
approximate unless fixed dates are expressly agreed. If this is the case, compliance with the delivery period is conditional on ITD itself receiving scheduled, complete and accurate deliveries from its own sub-suppliers. As soon as delays become foreseeable, ITD will inform the customer of this fact. The delivery period commences with the contract coming into effect, however not prior to the fulfilment by the Customer of all the duties incumbent on it, particularly not before a complete technical clarification, the provision of the documents, approvals and authorisations required from the Customer and only after receipt of the agreed advance payment or payment securities. Compliance with delivery periods and service periods is conditional on the fulfilment of the Customer’s contractual duties. The delivery period is fulfilled if the contractual object has left the plant within said time period or if ITD has announced readiness for shipment. If formal acceptance is required, the agreed date of acceptance or the announcement of readiness for acceptance determines if the delivery period is fulfilled.
If ITD is unable to fulfil the agreed delivery period due to force majeure, labour disputes or for other such reasons not within then control of ITD, the delivery period will consequently be extended for the time that the aforementioned circumstances remain in place. ITD will inform the Customer of any foreseeable delays.
If formal acceptance is required, the delivery/service will be deemed accepted if
the delivery/service, including any installations/operational start- ups is completed,
if ten working days have passed since the delivery or installation,
the Customer has commenced using the delivery/service,
the Customer has failed to perform the formal acceptance procedure despite an additional reasonable time period having been granted to it to do so.
The Customer can only refuse acceptance if there are visible, serious defects, which make it impossible to further use the contractual object from the outside. Other defects will be rectified by ITD within the terms of the warranty.
5. Prices and payment
Stated prices do not include loading, packing and unloading or any other obligations assumed. The listed prices are net prices. To these must be added the applicable statutory rate of VAT.
Unless otherwise agreed, invoices are payable in full within 14 days following the date of the invoice. The place of performance for payments is Dresden, Germany. The Customer will bear all bank charges. In the event of delay to payment, ITD will be entitled to charge default interest at the rate of eight percentage points above the base interest rate of the European Central Bank per annum from the time that the delay commences. Compliance with the payment period will be determined by the time that the payment is received by ITD. In the event that agreed instalments go unpaid, ITD is entitled to demand immediate payment of the total remaining debt. The Customer may only perform set-offs against its own counterclaims if the counterclaim has been legally confirmed by a final court judgement, is not in dispute or has been acknowledged by ITD. This applies equally to any rights of retention.
The Customer will bear all taxes, customs duties and other charges due in connection with a delivery of the contractual object abroad. This duty will be fulfilled either through direct payment to the relevant authorities or by reimbursement of ITD upon presentation of the relevant receipts.
ITD is entitled to adjust the agreed price if the average monthly price of lead on the London Metal Exchange at the time of delivery exceeds by more than seven percent its monthly price at the time the offer is issued. ITD may increase the price by no more than that same percentage rate that the price of lead has increased according to the above calculation.
Subject to No. 7, defects will be subject to the following regulations to the exclusion of any other claims in favour of the Customer:
The validity of the customer’s warranty claims is dependent on it having fulfilled its duties to inspect and report faults in accordance with Section 377 German Commercial Code (HGB). If the contractual object contains a defect, ITD can, at its own discretion, either eliminate the defect through subsequent improvement or deliver a new fault-free object. Substituted parts will become the property of ITD. To enable ITD to undertake the subsequent improvement measures apparently necessary or the substitute delivery, the Customer must grant it the requisite time and opportunity for this. If this is not the case, ITD will not be liable for the resulting consequences. This will not be case only if the elimination of the defect is required to prevent disproportionately severe damage or to maintain operational safety.
In the event that defect is eliminated (irrespective if this is by subsequent improvement or subsequent performance), ITD will bear all the costs, up to the agreed price, required for elimination of the fault provided these costs are not increased through the contractual object having been moved to a location away from the place of performance.
ITD is not liable in the event that the contractual object has been improperly used or used for a purpose for which it is not suited, and particularly not for any defective assembly or operational set-up performed by the Customer or other party, or for cases of wear and tear, erroneous or improper handling, improper maintenance or for the economic profitability of the contractual object intended by the Customer or the use of unsuitable operating resources, provided ITD is not responsible for the occurrence of such events.
In the event that the defect is insignificant, the Customer only has the right of diminution of the contractual price. Otherwise the right of diminution is excluded. ITD is not responsible for the consequences of any improper subsequent improvement performed by the Customer or another party.
ITD is liable in accordance with the statutory provisions, in the event that the customer asserts claims for damages by reason of deliberate acts or gross negligence, including the deliberate acts or
gross negligence on the part of the administrative bodies, representatives and vicarious agents of ITD. Provided ITD is not culpable of a deliberate breach of contract, the liability is limited to foreseeable damage typical for this type of agreement. ITD is also liable in accordance with the statutory regulations, in the event that ITD has culpably breached a significant contractual duty. In this case the liability to pay compensation is restricted to foreseeable damage typical for this type of agreement. The liability for foreseeable typical damage is also limited to EUR 1,500,000.00. A significant contractual duty is deemed to exist if the breach of duty concerns a duty the fulfilment of which the Customer has relied upon and is entitled to rely upon. Liability for culpably causing death or personal injury remains likewise unaffected as is strict liability pursuant to the Product Liability Act. The same applies for the liability established by expressly issued guarantees.
Claims in respect of defects are subject to a limitation period of twelve months. The limitation period commences with the transfer of risk. The limitation periods are not affected in the case of supplier’s recourse pursuant to Sections 478 and 479 German Civil Code (BGB).
To the extent that ITD provides technical information or consulting services, and this information or consultancy does not form part of the contractually agreed scope of services required of ITD, this is provided free-of-charge and to the exclusion of all liability.
Liability is excluded for ITD unless otherwise provided for it No. 6 and No. 7.
All information disclosed by the other contractual partner or which a contractual partner becomes aware in connection with this agreement, including offers, drawings, results of contracts, discussions and negotiations must be treated as confidential, irrespective if such information is labelled confidential or not. This does not apply for information in the public domain or lawfully acquired from another party. Data storage media containing confidential information, together with all copies of such storage media must be returned to ITD or destroyed if the Customer has no more need to use said information or if so demanded by ITD. Where permissible under the data protection laws, ITD is entitled to relay to its affiliated companies any data provided by the Customer by way of the customer relationship.
9. Retention of Title
ITD retains its title to the contractual object until such time as full payment has been made in respect of all receivables established by this business arrangement. The customer is duty bound to handle the contractual object carefully and to insure the contractual against customary risks. If the contractual object, to which ITD has still retained its title, is inextricably combined or mixed with other products, ITD will then acquire co-ownership of the new product, this being based on the proportion of the invoice sum for the contractual object to the value of the other combined or mixed products. The Customer is only entitled to further process or resell the contractual
object, to which ITD has retained its title, if this forms part of its usual business activities. This only applies provided the Customer is not in default. In the event of the resale of the contractual object, the Customer here and now assigns to ITD the claims accruing to it by way of the resale to its customers, the said assignment to provide collateral security until the fulfilment of all ITD’s claims against the Customer. In the event that any other party attempts to interfere with the property of ITD, particularly in the case of third-party enforcement proceedings, the Customer must make clear the title of ITD and promptly inform ITD in writing about such interferences. ITD is entitled to withdraw from the agreement and demand immediate return of the contractual object if any application is lodged for the commencement of insolvency proceedings.
10. Property rights and copyright
ITD reserves its title and copyright to the documentation it provides to the Customer. If, through the use of the delivery/service by the Customer, claims are made against it by other parties due to the violation of industrial property rights or copyright, the Customer must inform ITD in writing promptly. In such cases ITD reserves the right to take all measures, including out-of-court, to legally defend itself against the claim. The Customer is required to assist ITD in this regard. ITD is only liable for such an infringement if the third party has rights in that country explicitly designated by ITD in the order confirmation as the delivery destination.
The law of the Federal Republic of Germany applies to the exclusion of United Nations Convention on Contracts for the International Sale of Goods. (CISG) Disputes will be heard before the competent court in Dresden, Germany. The place of performance is likewise Dresden, Germany.
Dresden, February 2013.