General Terms and Conditions INMATEC GaseTechnologie GmbH & Co. KG
As of May 2013
1. Scope of application - General
1.1 These General Terms and Conditions apply exclusively to all legal relationships between INMATEC and our contract partners. We disallow the general terms and conditions of the contract partner; these are only a part of the contract, if we agree to this expressly in writing. The present General Terms and Conditions also apply when INMATEC executes services without reservation, but with knowledge of conflicting terms and conditions of the contract partner or of terms and conditions of the contract partner that deviate from these General Terms and Conditions.
1.2 The present General Terms and Conditions also apply to future business, that is to say all business between INMATEC and the contract partner, even if this has not been expressly agreed.
1.3 All INMATEC goods and services are made exclusively in accordance with these General Terms and Conditions, unless there has been a previous stipulation in writing.
2. Bids – conclusion of contract – offer documentation
2.1 INMATEC bids are always non-binding.
2.2 Written and verbal orders of the contract partner represent binding offers of the contract partner. INMATEC can accept the offer of the contract partner within two weeks. Written and oral orders, other agreements as well as additional oral agreements and confirmations are only valid and binding through written confirmation by INMATEC. In the event of an immediate delivery, the order confirmation can be replaced by consignment of the goods.
2.3 INMATEC reserves the property right and copyright to illustrations, drawings, calculations and other documents. This also applies to written documents that are indicated as "private". Their forwarding requires the written permission of INMATEC.
3. Products – product changes
3.1 The quality of INMATEC goods results exclusively from the agreed specifications.
3.2 All examples, samples, drawings, other descriptions and statements by INMATEC only serve to provide an overview of goods; they are not a component of the contract.
3.3 INMATEC can make changes to the goods at any time, provided these:
3.3.1 are necessary in order to meet legal requirements or product safety, and
3.3.2 do not significantly impair their properties and functions, and
3.3.3 are acceptable for the purchaser.
4. Prices – price adjustments – payment conditions – default of payment – cancellation
4.1 INMATEC goods and services are fundamentally based on the prices in effect at the time of the placement of the order.
4.2 Only when the time period agreed on between order placement and delivery is more than four months is INMATEC entitled to charge the contract partner the prices in effect at the time of the delivery of the service.
4.3 The legal sales tax is not included in the INMATEC prices. It is separately indicated in the bill to the currently valid legal amount.
4.4 The stipulated prices are ex works Herrsching (EXW Herrsching, INCOTERMS 2010), unless something else has been separately stipulated in writing.
4.5 The contract partner bears the transport costs (including a valid hazardous material allowance), cartage and costs for a transport insurance etc.. The same applies to any customs charges and import taxes in third party countries etc.
4.6 Invoices are due for payment immediately upon receipt. The contract partner is also in default without warning by INMATEC, when the open invoice amount at the stipulation of payment terms is not received at INMATEC when the payment term expires; if no payment terms are agreed upon, the invoice is in default at the latest 30 days after receipt. The timeliness of payments is based on the full voucher for the contribution to the account of INMATEC.
4.7 If cheques and bills of exchange are accepted by INMATEC, this only takes place on account of payment. Bill taxes shall be borne by the contract partner.
4.8 All payments must be made in Euros, that is, another currency must be agreed upon in writing.
4.9 Provided INMATEC agrees upon special arrangements with the contract partner, these only apply under the condition that the contract partner meets their obligations properly, in particular within the deadline and to the full amount. Non-compliance, including in partial areas, entitles INMATEC to the immediate withdrawal of the special agreement.
4.10 If the contract partner is in default with due payments or INMATEC becomes aware of conditions that put the credit worthiness of the contract partner into doubt, INMATEC is entitled to consider receivables that are still open to be due, even if they are deferred, given as surety or issued as bills of exchange. Without prejudice to further rights, INMATEC is entitled to execute outstanding deliveries only when payment is made in advance. INMATEC also reserves the right to cancel agreements without notice when applications were filed for the opening of the insolvency proceeding, whether by the contract partner or a third party, on the assets of the contract person.
5. Delivery – delivery time – delay
5.1 The delivery of the goods is made ex works Herrsching (EXW Herrsching, INCOTERMS 2010).
5.2 INMATEC is entitled to partial deliveries, provided this is acceptable for the contract partner.
5.3 Transport route and means are at the discretion of INMATEC. Provided the contract party wishes, INMATEC will insure the goods at the cost of the contract partner (point 4.5).
5.4 Delivery periods and deadlines are non-binding.
5.5 The start of the delivery period stated by INMATEC requires the clarification of all technical questions. Compliance with the delivery requirement by INMATEC further requires the timely proper fulfilment of the obligations of the contract partner.
5.6 In the event of force majeure, INMATEC is entitled to delay delivery for the duration of the obstruction. If the end of the obstruction is not foreseeable, INMATEC is entitled to withdraw completely or partially from the contract without further obligations. All conditions that INMATEC is not responsible for and that make the delivery of the goods temporarily impossible or unreasonable, in particular war, natural catastrophes, strikes, lock-outs, import and export bans, shortage of energy and raw materials or similarly serious events as well as late self-delivery outside of the responsibility of INMATEC are considered to be force majeure. The same applies to extraordinary traffic and road conditions.
5.7 If the obstruction lasts for longer than two months, the contract partner is entitled to withdraw from the contract after setting an appropriate grace period when they demonstrate that the partially outstanding fulfilment of the contract is no longer of interest to them due to the delay. A deadline for the rectification to be set by the contract partner must be at least four weeks and be given in writing.
6. Place of fulfilment
The place of fulfilment for all INMATEC goods and services is Herrsching. However, this does not apply if there is any deviation from these terms and conditions in writing.
7. Warranty:
7.1 If the contract partner intends to claim defect damages, then it is required according to Section 377 of the German Commercial Code that it has met its obligations with regard to examination and notification of defect. Clear faults must be complained of to INMATEC immediately, but within seven days of receipt of the goods at the latest. Hidden faults must be complained of immediately after their discovery.
7.2 With any complaint, INMATEC is entitled to the right to inspect and examine the goods that have been rejected. The contract partner will support INMATEC in determining and remedying the errors according to their abilities. In particular, the contract partner must provide insight to documentation from which the more detailed circumstances of the fault result.
7.3 The aforementioned rights to damages can only be claimed, when the goods were used exclusively and applied in accordance with operating conditions established in the operating instructions, information and provisions.
7.4 In the event of defective goods, INMATEC can opt for correction of the faults or for delivery of a fault-free item.
8. Liability – limitation period – release
8.1 INMATEC has unlimited liability for intent or gross negligence.
8.2 For slight negligence, INMATEC is only liable where an obligation has been violated, whose compliance enables the proper performance of the contract and on whose compliance the contract partner can regularly rely. In these cases, INMATEC's liability is limited to a typical, foreseeable violation for this kind of contract.
8.3 Liability limitations and exclusions according to this point 8 do not apply to claims from the Product Liability Act and with damages due to loss of life, bodily injury or damage to the health of a person.
8.4 Where INMATEC's liability is excluded or limited, this applies accordingly to the personal liability of the institutes, employees, representatives and subcontractors of INMATEC.
8.5 The limitation period for warranty claims (point 7) of the contract partner is one year from the transfer of risk (point 10). Other compensation claims expire a year after knowledge of the damaging event. This does not apply to claims that relate to intent or gross negligence, to damages due to loss of life, bodily injury or damage to the health of a person and to claims from the Product Liability Act.
8.6 The contract partner releases INMATEC, its institutes, employees, representatives and subcontractors from any claims of third parties to first request, which result for INMATEC and/or the named persons from a culpable breach by the contract partner. The contract partner reimburses INMATEC and the named persons for all costs necessary and appropriate for the legal defence.
9. Offsetting – retention rights – assignment
9.1 The contract partner is not entitled to offset their claims against INMATEC. This does not apply in the cases of Section 354a of the German Commercial Code.
9.2 The contract partner is only entitled to offsetting if their counterclaims are undisputed or recognised by declaratory judgement.
9.3 The same applies for retention rights and rights to refuse performance in accordance with Sections 320, 273 of the German Civil Code. The contract partner may only exercise these rights if they result from the same contractual relationship. In an ongoing business relationship, each individual order applies as its own contract.
10. Transfer of risk
10.1 The transfer of risk is made ex works Herrsching (EXW Herrsching, INCOTERMS 2010) to the contract partner.
10.2 If a shipment is delayed for reasons for which INMATEC is not responsible, the risk is transferred to the contract partner after receipt of the notification of the readiness for dispatch.
10.3 Otherwise the risk is transferred to the contract partner on transfer. The risk transfer is also the same if the contract partner delays approval.
11. Retention of title – insurance
11.1 All goods delivered by INMATEC remain outside of the respective contract until the entry of all payments and all other receivables against the contract partner from the business relationship property of INMATEC. This applies in particular to gases and gas containers delivered or any systems or system components, even when these are meant for processing.
11.2 The contract partner is obligated to handle goods under retention of title with care. They are further obligated to insure these goods at their own expense against loss, fire and water damages, theft and natural hazards to the sum of its purchase price.
11.3 After prior written approval by INMATEC, the contract partner is entitled to resell retained goods in the proper course of business, provided they are not in default of payment. The contract partner now transfers all receivables to the sum of the final bill amount of the INMATEC claim to INMATEC, incurring to them from reselling towards his customers or third parties, and regardless of whether the goods were resold without or after processing or combination. INMATEC hereby accepts this assignment.
11.4 The contract partner remains authorised to collect this claim even after assignment. The authorisation of INMATEC to collect the receivables itself is unaffected by this. However, INMATEC commits not to collect the receivables provided the contract partner complies with his payment obligations arising out of the proceeds collected, in particular is not in default of payment or an application is made to commence insolvency proceedings or payments cease to be made. If this is the case, INMATEC can demand that the contract partner notifies the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the associated documentation and notifies the debtor (third party) of the assignment. INMATEC commits to release its collateral for goods and receivables to the contract partner on request, where the realisable value of the collateral exceeds the receivables to be secured by more than 10%.
11.5 If a third party impounds retained goods or otherwise impairs the property of INMATEC, the contract partner immediately notifies INMATEC so that INMATEC can take actions to protect its property, and can in particular bring an action in accordance with Section 771 of the Code of Civil Procedure. In addition, the contract partner is obligated to notify the third party and the bailiff that the respective product is owned by INMATEC. Where the third party is not able to reimburse the legal and extralegal costs of these protective actions, the contract partner is liable to INMATEC for the unpaid costs by the third parties.
11.6 The contract party is obligated to inform INMATEC immediately on any damages to the retained goods and to any relocation of the contract partner's registered address.
11.7 In the event of the contract partner acting culpably in breach of contract, in particular in the event of payment default, INMATEC is entitled to recover the goods. The recovery of the goods does not involve a withdrawal from the contract, that is, INMATEC should explicitly declare this in writing. INMATEC is authorized to sell the recovered goods after recovering them and the proceeds from such disposal – less costs and expenses involved with the sale – which INMATEC charges at a flat rate of 10% of the sales proceeds – is credited to the contract partner’s total obligation.
12. Written form – ancillary agreements
12.1 Verbal ancillary agreements have not been found. All agreements between INMATEC and the contract partner require the written form. A written agreement or the written confirmation of INMATEC is decisive for the content and design of contracts, amendments or additions to contracts and individual agreements. The transfer of the statement by fax or email is sufficient to comply with the written form.
12.2 Employees, commercial agents or employees of INMATEC are not entitled to deviate from the agreement by verbal or written agreement or assurance, to add to the contractual content or to give guarantees. This does not apply to agreements, assurances, additions or guarantees that are given by institutes of INMATEC or its signatories, where these are so authorised.
13. Legal succession
Rights and obligations from agreements between INMATEC and its contract partners and other legal relationships are transferred to the respective legal successor of the contract partner. The contract partner is obligated to notify every amendment immediately in writing and without request, in particular with regard to changes in their company name or legal form. The contract partner is liable for any disadvantages resulting to INMATEC from a culpable failure or delay in notification.
14. Choice of law
For all legal relationships between INMATEC and the contract partner, the law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
15. Severability clause
If individual provisions or parts of these General Terms and Conditions are or become ineffective, the effectiveness of all other provisions remain unaffected. The ineffective provisions should be replaced by an agreement that comes closest to the contractual purpose and the will of the parties.
16. Place of jurisdiction – arbitration clause
16.1 The exclusive place of jurisdiction is Munich. INMATEC is also entitled to sue the contract partner at its general place of jurisdiction.
16.2 Where the contract partners of INMATEC are those whose registered address is outside of the European Union or Switzerland, disagreements from or in connection with this contract should be finally decided in accordance with the arbitration code of the German Institute for Arbitration (DIS). Munich is stipulated as the place of arbitration, the number of arbitrators is set as three and the language of the court is German.
INMATEC GaseTechnologie GmbH & Co. KG
Gewerbestr. 72
82211 Herrsching a. A.
Germany
Tel: +49 (0) 8152 90 97 - 0
Fax: +49 (0) 8152 9097 - 10
Email: info@inmatec.com
www.inmatec.com
REV 001/05/13