Ilmvac GmbH ::: Terms for Delivery and Payment

General Terms for Delivery and Payment of ILMVAC GmbH

§ 1 Scope

1.1. These General Terms for Delivery and Payment ("hereinafter referred to as "Conditions") govern exclusively the entire relationship between ILMVAC and the Customer (shall mean the person doing a commercial business or legal commercial entity which the contractual relationship is upon), especially the conclusion of the contract, delivery of items ("Products") and rendering of services by ILMVAC. These Conditions are applicable in full and as the sole and exclusive agreement, supplemented by the particular conditions reflected in ILMVAC´s sale offers or confirmations together with all other contractual documents defined in these Conditions.
1.2. The application and any incorporation of the general terms and conditions of the Customer are herewith excluded. The Customer waives the application of its own general conditions.
1.3. After the first inclusion of these Conditions, all future businesses between the Customer and ILMVAC shall be governed by these Conditions without any necessity of additional reference unless otherwise agreed.

§ 2 Conclusion of Contract, Intellectual Property

2.1. Catalogue or internet presentations are not legally binding offers and are subject to change without notice.
2.2. The contract (minimum value of 150 Euros - excepting repairs and deliveries of spare parts) shall be concluded with the sending of ILMVAC's order confirmation in writing or by telefax.
2.3. The entire contractual relationship shall be documented in written form. ILMVAC´s employees are not authorised to make any oral agreements.
2.4. ILMVAC´s documents such as diagrams, drawings and specifications of weight and dimensions are only approximately decisive unless such documents are expressly indicated as binding in a written form. Variations customary in the trade are reserved.
2.5. Quotations and other documents, technical and business details, samples and similar material must not be disclosed to third parties without the consent of ILMVAC. ILMVAC reserves the property right and the copyright to such documents. Aforesaid documents including any kind of copy are to be returned to ILMVAC immediately if the order is not awarded.
2.6. In the case that Products are manufactured in accordance with Customer specifications, the Customer shall be solely responsible and liable for the avoidance of infringements of third-party´s industrial or intellectual property rights in respect of these specifications.

§ 3 Prices and Terms of Payment, Right of Retention, Set-Off

3.1. The prices are net prices (ex-works). The Customer is obliged to pay expenses such as packaging, costs of insurance, training, installation and transportation as well as the current legal VAT additionally.
3.2. Price increases beyond ILMVAC´s responsibility (e.g., increases of purchase prices) entitle ILMVAC to pass such increases on to the Customer.
3.3. Unless otherwise agreed, an advance payment of thirty percent shall be due at the time of the conclusion of contract. The second third shall be due with the delivery and the final payment shall be settled within 14 working days after delivery.
3.4. Payments must be done without any deduction unless otherwise agreed expressively in writing.
3.5. Agreed cash discounts will only be granted when all financial obligations from earlier deliveries have been settled by the Customer.
3.6. Unless otherwise agreed, payments must be done in EURO by bank transfer on time to ILMVAC´s account. ILMVAC is not obliged to accept any cheques or bills of exchange or any other promise to pay.
3.7. Repair orders and the delivery of parts are immediately due for net payment. 3.8. Part delivery of products or rendering of services in instalments shall entitle ILMVAC to demand for part payment accordingly.
3.9. ILMVAC is entitled to set off payments of the Customer against older debts, despite stipulations of the Customer to the contrary.
3.10. The Set-Off or the retention of due payments by the Customer are only permitted against ILMVAC´s claims with counter-claims which have been recognised by ILMVAC or are legally binding by a judgement.
3.11. In the event of late payment, ILMVAC shall be entitled to claim for interests of 10 percent above the current interest rate of the European Central Bank, beginning from the date of delay. Additionally, ILMVAC may suspend its performance and delivery duties until receive of the payment still due.
3.12. If the due amount is not paid within three months, ILMVAC shall be entitled to terminate, at its choice, the unpaid part or the entire contract by notice in writing. The Customer compensates ILMVAC for the losses incurred.

§ 4 Delivery, Force Majeure

4.1. Time of Delivery is an estimated time, and shall not be deemed as fixed unless otherwise agreed expressively. Unless otherwise agreed expressively, the time of delivery shown on ILMVAC´s offer or ILMVAC´s order confirmation documents is only presented for information purposes in respect of the approximate internal planning.
4.2. Binding delivery deadlines are deemed to be observed upon the notification of readiness for shipment, at the latest upon the departure from ILMVAC´s factory. The observance of the deadline supposes the performance of the Customer´s contributory actions.
4.3. The observance of delivery dates is subject to correct and timely reception of deliveries by ILMVAC´s suppliers.
4.4. Part deliveries are permitted to a reasonable extent. Part deliveries are considered as independent transactions.
4.5. In the case of a delay with the delivery at a binding delivery date, the Customer shall grant an extension of 7 working days before exercising its legal rights.
4.6. In any event causing delay or prevention of delivery beyond ILMVAC´s control, including, but not limited to, labour strikes, lawful lock-outs, natural occurrences, force majeure and transport or plant interruptions beyond ILMVAC´s responsibility, the binding delivery deadline shall be extended reasonably. This also applies when such reasons occur with a subcontractor of ILMVAC. In the case that the delay or prevention caused by the events as aforesaid last more than 10 calendar days, ILMVAC shall be entitled to rescind the contract with the sole obligation the repay received advance payments. The passage of risk shall not be affected by this provision.

§ 5 Passage of Risk, Place of Performance, Insolvency

5.1. Shipment is for the account and risk of the Customer. Risk passes upon notification of readiness to ship ex works (EXW in accordance with the Incoterms), at the latest with the handing over to the first carrier ex works. This shall also apply when ILMVAC performs additional services, e.g. installation of the products in Customer´s plant, transportation or forwarding expenses of transport.
5.2. The provisions covering the passage of risk shall also apply to part deliveries.
5.3. Unless otherwise agreed in writing, the legally binding place of performance for all obligations out of the entire contractual relationship is Ilmenau.
5.4. ILMVAC is entitled to conclude the transport insurance at Customer's cost.
5.5. Return shipments shall be agreed with ILMVAC in advance.
5.6. Any file for Customer´s insolvency/bankruptcy, substantial deterioration of assets, and considerable financial difficulties shall entitle ILMVAC to cease deliveries. If such circumstances cannot be cleared up by the rescind of the insolvency file within two weeks from the date of filing or the clearing by bank security or advance payment within two weeks from the date the circumstances became known to ILMVAC, then ILMVAC shall be entitled to terminate the contract.

§ 6 Liability for Defects, Liability and Compensation

6.1. The description of the Products, irrespectively where presented (e.g., brochures, internet), are not deemed to be a guaranty but mere characterisations of the products. Variations customary in trade are reserved.
6.2. ILMVAC shall not be liable for the suitability of the delivered Products to the purposes which the Customer intents to achieve unless the approval of such suitability was agreed as ILMVAC´s contractual obligation in written form.
6.3. ILMVAC shall only be liable for substantial defects. A deviation of the agreed quality not causing a malfunction of the delivered products, non-substantial faults of material or workmanship shall not be deemed as substantial defect.
6.4. ILMVAC shall, at its choice, either deliver again, or rectify such defects that ILMVAC is liable for. The defect rectification shall be at ILMVAC´s choice either in its works or at Customers premises.
6.5. Immaterial defects do not entitle the Customer to claim liability for defects.
6.6. Replaced parts shall remain ILMVAC´s property.
6.7. The Customer must check the delivered Products immediately after receipt. Any defect obvious at the time of receipt shall be notified to ILMVAC immediately, at the latest within four calendar days after the day of receipt, but in any case prior to processing, installation or resale.
6.8. Defects not obvious at the time of receipt (hidden defects) shall be notified in writing or fax immediately after detection including a precise description of the defects, its relevance and the process of detecting the failure.
6.9. Failure in timely notice causes the lapse of all claims and remedies for defects against ILMVAC. Therefore, the immediate check of incoming products and the immediate notification of defects is an essential obligation to preserve the rights of Customer (§ 377 HGB - German Code of Commerce). This does not apply to contracts which require a formal acceptance (§§ 631 BGB - German Civil Code).
6.10. When Products are made to Customer´s specifications, ILMVAC is only liable for execution according to such specifications.
6.11. No warranty is given for defects resulting from inappropriate or improper acting of Customer or third parties assisting the Customer such as, but not limited to, inappropriate or improper use, faulty installation or faulty start-up, faulty or negligent handling, improper rectification, unsuitable equipment or replacement materials, faulty construction work, unsuitable subsoil, chemical or other influences for which ILMVAC is not responsible.
6.12. ILMVAC is only liable for damages based on faulty products in cases of

intent and gross negligence;
the culpable injury to life, body, health;
the fraudulent concealment of defects or for defects which have been guaranteed as non-existent;
strict liability for personal injuries and material damage, e.g. the German Product Liability Act.

In the event of culpable non-observance of essential duties (cardinal duties) under a contract, ILMVAC is also liable for simple negligence, while the liability is restricted to foreseeable contract-typical damage. Such typical damages are to be measured on the information given to ILMVAC in advance at the time of conclusion of contract.
6.13. Warranty claims for defects of new products are subject to a limited period of one year after reception/handing over, or after a point in time treated as equal. Thereafter, these claims shall be excluded.
6.14. The period of limitation as defined under Number 6.13. shall not apply to cases where Products used for construction purposes are delivered, and for damage compensation as defined under Number 6.12. These claims are subject to the legal period of limitation under the applicable law.
6.16. Second-hand or used products are excluded from warranty claims.
6.17. If the Customer has given a notice of defect to ILMVAC and no defect is found for which ILMVAC is liable, ILMVAC shall be entitled to compensation for the costs and expenses including the expenses of legal advice which ILMVAC has incurred as a result of the notice.

§ 7 Retention of Title, Customer´s Insolvency, Securities

7.1. The products remain ILMVAC´s property until the complete payment of all due accounts payable out of the commercial relationship with the Customer.
7.2. The retention of title shall not affect the passing of risk under Clause 4.
7.3. The Customer may not resell or process the delivered Products until all invoices due are fully paid, and the retention of title terminates therewith in accordance with Number 7.1.
7.4. If the Products are resold or otherwise transferred by the Customer to a third party in breach of Number 7.3., and ILMVAC looses its property to this third party by law, then the Customer's debt claim from the resale, as well as any other claim (e.g. insurance, unlawful acts) in relation to the third-party, is assigned to ILMVAC already now for security purposes up to the value of the lost property.
7.5. In the event of insolvency/bankruptcy files or the opening of insolvency/bankruptcy procedures over the entity or assets of the Customer, ILMVAC herewith declares in advance its claim to take back the delivered products which the property of ILMVAC still is reserved for. This declaration shall be deemed to be in time with mandatory deadlines under the law of Customer´s country (e.g. Art. L. 621-115 of the French Code du commerce and similar provisions in other countries). ILMVAC shall be entitled to take back its property from Customer´s presmises.
7.6. The Customer may neither pledge of Products nor otherwise permit the use thereof in a way that is detrimental to the security, or the retention of title.
7.7. If the value of all securities exceeds the amount of all secured claims by more than 20 percent, ILMVAC will release a corresponding part upon Customer's request.
7.8. If action is taken by third parties during the period of the retention of ownership in relation to the Product, the Customer is obliged to immediately notify in writing and to immediately draw the attention of the third party to the property and the rights of ILMVAC. The Customer bears the cost of attachment and of replacing the products.
7.9. In case of delay in payment of more than 30 days or breach of the aforementioned obligations, ILMVAC is entitled to terminate after reminder, the Customer being obliged to surrender the conditional commodity.

§ 8 Software

8.1. ILMVAC reserves the property rights and copyright to all software delivered to the Customer. ILMVAC grants to the Customer a single, non-exclusive and non-transferable license to use the software. The license commences from the date of complete payment.
8.2. The software may only be used for the products which it is delivered for. The license is restricted to the number of user as specified in the contract.
8.3. The Customer is not entitled to decompile or modify the software.
8.4. The source code is not part of the delivery unless agreed contrary in written form.
8.5. The Customer shall backup its data on a daily basis. Any possible liability of ILMVAC in respect of loss of data is restricted to the costs of restoring the data from the current backup.

§ 9 Applicable Law, Jurisdiction (Disputes), Legal Expenses

9.1. This agreement shall be governed and construed by the Laws of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
9.2. The sole and exclusive place of jurisdiction shall be Ilmenau. Accordingly, any unresolved civil dispute relative to the contractual relationship shall be submitted to the court with jurisdiction at our seat in Ilmenau, Germany.
In deviation of this exclusivity, ILMVAC shall be entitled unilaterally to claim to a court with jurisdiction at the place of residence or at the seat of the Customer at ILMVAC´s choice.
9.3. The prevailing party in any legal dispute arising out of this Contract, shall be entitled, in addition to any other rights the party may have, to reimbursement for its expenses, including court costs and reasonable attorney` s fees.

§ 10 Assignment of Rights, Miscellaneous

10.1. Any transfer of rights and obligations from this Contract needs to be approved by ILMVAC.
10.2. ILMVAC stores data on the business relations under observance of the German Federal Data Protection Act.
10.3. Should any individual provision of these Conditions be void or become void, the validity of the remaining provisions shall not be affected thereby. In such cases, the void provision or provisions shall be replaced automatically by a provision or provisions coming as close as possible to the intended economic purpose of the void provision.

[Release date: 2006-06-30]

| | | |