General Conditions of Sale (GCS)



Ligusterweg 6
D-40723 Hilden


1. Scope of application

1.1 These General Conditions of Sale of IBS Anlagentechnik GmbH („IBS”) only apply for contracts between IBS and enterprises pursuant to § 14 German Civil Code German Civil Code, legal entities under public law and separate estates under public law (“client”).

1.2 The contractual relationship between IBS and the client shall be governed exclusively by these General Conditions of Sale. Contradicting or diverging conditions of the client are not accepted. These conditions solely also apply when contractual performance is made without reservation. This applies also when IBS is aware of the client’s contradicting or diverging conditions.

1.3 These General Terms and Conditions of Sale shall apply – unless again otherwise provided in any amended terms and conditions of sale – also to all future sales contracts between IBS and the client, even if not expressly included again.

2. Contractual declarations

2.1 Offers of IBS are not binding and without engagement, as long as not expressly referred to as binding or being subject to a specific period of time.

2.2 Any agreement entered into between IBS and the client must be set forth in writing and handed over to each party. Transmissions via facsimile fulfil the writing requirement. This shall not apply to any other means of telecommunication, especially not to e-mail.

3. Contractual declarations

IBS reserves the ownership and copyright of all offers and cost estimates as well as of all illustrations, drawings, calculations, brochures, catalogues, models, tools, and other documents or utilities. Information and documents that are designated as “confidential” or which by virtue of their character are evidently of a confidential nature shall be treated confidential and may not be disclosed to a third party unless specifically authorized by IBS in writing. Upon demand of IBS, these objects have to be returned completely, and all copies, which may have been made, have to be destroyed if no longer needed by the client for his proper course of business or if after negotiations no contract is concluded.

4. Price

4.1 Insofar as nothing else is fixed in IBS´s offer, IBS’s prices are in EURO, net (exclusive VAT), „ex works” (EXW Hilden).

4.2 IBS is entitled to charge all increases in freight, forwarding charges, insurance premiums etc. that come into effect after the conclusion of the contract to the client if shipment shall be later than 8 weeks after conclusion of the contract. The same applies to customs duties, expenses, taxes etc. which increase the price directly or indirectly.

4.3 Taxes and other expenses accruing in the country of the recipient shall be borne by the client.

5. Payment conditions

5.1 The client must make payment net and without reductions within 30 days from the date of the invoice. All payments are to be transferred to the banking account as specified in the invoice. IBS reserves the right of cash in advance (c.i.a.).

5.2 The client may set off a claim only when the claim has become res judicata, is undisputed or acknowledged by IBS. The client has no right of retention because of counterclaims which are disputed or have not become res judicata.

6. Performance

6.1 In the absence of any agreement to the contrary, IBS is entitled to deliver in instalments.

6.2 In the case of a contract which extends over a longer period of time, each shipment shall be deemed as a completed transaction of its own. A defective or delayed partial shipment has no effect on the remaining contract.

6.3 IBS’s written order acknowledgement shall be decisive for the total scope of the delivery. In case that IBS has provided an offer subject to a specific period of time and the offer has been accepted within this time limit but the order was not acknowledged in time, the offer itself shall be decisive.

6.4 Descriptive data provided by IBS regarding the subject of the delivery or service (e.g. weight, dimensions, practical value, resilience, tolerances, and technical data) as well as illustrations (e.g. drawings and images) are only indicative unless usability for the contractually intended purpose requires exact conformity. These data are no warranted characteristics of state but descriptions or characterizations of the delivery or service. Deviations customary in trade and deviations based on legal requirements or technical improvements as well as the replacement of components by such of equal value are permissible unless the usability for the contractually intended purpose is affected.

7. Time of delivery

7.1 The running of the time of delivery fixed by IBS presupposes the client’s fulfilment of all obligations to co-operate in proper form and time and that all technical issues have been settled in advance. Dates and periods of time held out in prospect by IBS are only indicative unless a fixed date or a fixed period of time has been expressly assured or agreed upon.

7.2 The time of delivery is observed when at its expiry the goods to be delivered have left the factory or when the client has been informed of the readiness to deliver the goods.

7.3 The time of delivery is extended for the period of time of any temporary obstacle to the performance which does not fall within the responsibility of IBS, especially in case of business disruptions of any kind or in case of official measures. The same applies should any temporary obstacle occur for subcontractors of IBS without IBS being responsible for the obstacle. IBS is also not responsible for the aforementioned circumstances if these occur during an already existing delay.

Insofar as due to the delay the client cannot be expected to accept the delivery or service, he is entitled to rescind from the contract by immediate written notice to IBS.

7.4 If the shipment is delayed on the client’s request, IBS will charge the costs for storage to the client, in case of storage at IBS at least 1 % (one per cent) of the invoice amount for each month of storage, with this beginning one month after the client has been informed that the goods can be delivered. However, IBS is entitled to dispose of the delivery item otherwise after setting and the expiry of an appropriate period without result.

If the client defaults or violates any other duty to collaborate, IBS is entitled to claim for the damage arising (including additional expenditures) from the client. In this event, the risk of accidental perishing or worsening of goods is passed to the client at the time that he falls into delay.

7.5 IBS is entitled to carry out pending deliveries or services only on advance payment (c.i.a.) or on condition that a security is furnished if after conclusion of the contract circumstances become known which may significantly reduce the client’s creditworthiness.

8. Delivery conditions and passing of risks

8.1 Incoterms 2010: EXW Hilden. CIP on request.

8.2 Insofar as not agreed upon otherwise, goods shall be shipped on account and at the risk of the client, even in case of partial shipments. Shipping method and packaging are based upon IBS’s best judgment. If IBS follows shipment instructions of the client, this is done without obligation for IBS and at the expense and risk of the client.

8.3 On the client’s request and at his expense, IBS will insure the shipment against theft, damages due to breakage, transport, fire or water as well as against other insurable risks.

8.4 In case the shipment is delayed due to circumstances within the responsibility of the client, the risks shall pass to the client from the time the goods were ready to be delivered; however, IBS shall be obliged to insure the shipment on request and at the expense of the client.

8.5 The client must accept all goods delivered, even if in an insignificantly defective condition, without prejudice to the rights according to No. 10 of these General Conditions of Sale.

9. Obligation to file complaints

9.1 Immediately after receipt, the client must examine the goods delivered or have them examined by the recipient he has determined. Once the client or the recipient determined by the client having accepted the goods without reservation, any complaint or claim with respect to the external condition of the goods shall be excluded. The client may give notice of other defects, insofar as they are recognisable, only within 3 working days after receipt, in other respects only within 3 working days after detecting the defect. Otherwise the goods are considered as accepted with respect to the defect. The same applies where the client does not facilitate IBS to properly examine the defect immediately after IBS´s request to do so.

9.2 Notice of defects must be made in writing.

10. Warranty

10.1 In cases where a defect reduces the value of the goods or the suitability for use of the goods substantially and where notice of the defect has been timely given by the client, IBS warrants the goods shipped against such defects either by shipping faultless goods in replacement or by reducing the agreed purchase price, at the choice of IBS. In case of replacement the client shall have the right to withdraw from the sales contract or to reduce the purchase price only after the attempt to replace the defective goods has failed twice. IBS warrants for the goods shipped in replacement of the original goods only to the same extent as for the goods shipped originally. The limitation period for all warranty claims is 12 months.

10.2 The foregoing section does not restrict neither any liability of IBS because of intention nor liabilities as regulated in No. 11 of these General Conditions of Sale.

10.3 No warranty is granted if the client modifies the goods himself or has them modified by a third party and as a result of that the remedy of defects becomes unfeasible or unreasonably difficult. In any case, the client bears any additional costs the modification incurs.

10.4 If in an individual case the delivery of second-hand goods has been agreed upon, any warranty regarding material defects is excluded.

11. Liability

11.1 The liability of IBS is restricted to damages caused by IBS or its corporate bodies, legal representatives, employees or other vicarious agents intentionally or with gross negligence. In case of slight negligence, IBS is only liable for death, dismemberment or damages to health, as well as for breaches of essential obligations for the fulfilment of the contract.

11.2 Where IBS is liable because of a slight neglect of its duties, this liability shall be restricted to such damages which are typical for the nature and amount of the contract in question, and which were foreseeable for IBS at the time of conclusion of the contract or at the latest when the negligence took place, respectively, or which had been foreseeable if using due care and attention. This does not apply to death, dismemberment or damage to health.

11.3 Indirect or consequential damages resulting from defects of the goods will only be compensated as far as such damages could typically be expected if the delivery item was used in accordance with its intended purpose.

11.4 Insofar as IBS’s liability is excluded or limited, this also applies to the personal liability of IBS’s employees, workers, staff members, agents and vicarious agents.

11.5 If IBS provides technical information or advice and this information or advice is not part of the scope of services owed under the contract, any liability is expressly excluded in this respect.

11.6 The aforementioned restrictions of this No. 11 of the General Conditions of Sale do not apply to IBS’s liability for intentional behaviour, for warranted characteristics, and for damage to life, body or health, or according to the German Product Liability Act (Produkthaftungsgesetz).

12. Reservation of title

12.1 All shipments are made with reservation of title. The goods delivered remain the propriety of IBS until all existing and future claims arising before the transfer of ownership out of the legal relationship between IBS and the client are paid in full. Until full payment of the purchase price, the client is neither allowed to sell, to pawn, to assign by way of security, nor to dispose of the delivered goods in any other way, respectively, nor to put into operation, to use or to modify the goods, and especially not to make such modifications that the goods could not be returned in as-new condition.

12.2 The client is obliged to take care of the goods until the ownership has not been transferred to him. He is especially obliged to sufficiently insure the goods on his own expenses for their new value against fire and water damages as well as against theft. If the client fails to verifiably effect these insurances himself, IBS is authorized but not obliged to effect these insurances on the client’s expenses.

12.3 Insofar as maintenance and inspection works are necessary, the client must carry out these in time and on his own expenses.

12.4 The client must inform IBS immediately about any debt enforcements or other interferences by third parties in the reserved goods. Furthermore, he must provide IBS with the necessary documents for proceedings. If the third party is unable to pay IBS the accruing extra-judicial or legal costs, the client is liable for the respective loss accruing to IBS.

12.5 IBS is obliged to release securities at its choice, insofar as their estimated value amounts to more than 150 % of the value of the unsettled claims.

13. Place of performance

Place of performance for all obligations of both parties is Hilden.

14. Applicable Law

The law of the Federal Republic of Germany is decisive for all legal relationships between IBS and the client arising under this contract or in connection with this contract. The UN-Convention on the Sale of Goods is not applicable for the legal relationships between IBS and the client arising under this contract or in connection with this contract.

15. Place of jurisdiction

If the client is merchant or legal entity under public law or a separate estates under public law, exclusive place of jurisdiction for all disputes between IBS and the client arising under this contract or in connection with this contract is Hilden or – in case IBS instituted the proceedings -, at the choice of IBS, the principal place of the client. Mandatory legal provisions for exclusive jurisdiction are not affected by this provision.