§ 1. Scope of Validity
- All deliveries and offers made by IHF GmbH (IHF)
in its capacity as a manufacturer and supplier are exclusively governed by the
terms of these General Terms of Delivery (GTD) that have validity for the
entire commercial practice of IHF in the field of mechanical fastener elements
and accessories in addition to all products manufactured and/or sold by IHF.
These are constituent parts of all contracts that IHF concludes with its
contractual partners (hereafter also referred to as “customer”) with regard to
the deliveries offered by IHF.
- The GTDs have exclusive validity. Terms and
conditions of the customer or third parties that deviate, contradict or
supplement our GTDs are only deemed to be applicable should IHF expressly
consent to their applicability in isolated cases. Even if IHF should refer to a
letter that includes the terms and conditions of the customer or a third party
or that refers to the same, this cannot be construed as being our consent to
the validity of such terms and conditions. This also has validity should IHF
process and order without reservation when it is aware of these terms and
- These GTDs only have validity if the customer is
an entrepreneur (Section 14 of the German civil code, BGB), a legal entity
under public law, or a special fund under public law.
made to the validity of legal provisions only serve for clarification. It is
therefore the case that the legal provisions also have validity without such
clarification, in as far as they are not directly amended or expressly excluded
in these GTDs.Alle Lieferungen und Angebote der IHF GmbH (IHF) als Hersteller und Lieferant erfolgen ausschließlich auf Grund dieser Allgemeinen Lieferbedingungen (ALB), die für die gesamte Handelspraxis von IHF im Bereich der mechanischen Verbindungselemente und Zubehör bzw. für alle von IHF hergestellten und/oder verkauften Produkte gelten. Diese sind Bestandteil aller Verträge, die IHF mit seinen Vertragspartnern (nachfolgend auch „Kunde“ genannt) über die von IHF angebotenen Lieferungen schließt.
§ 2. Offer and Conclusion of the Contract
- All offers of IHF are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. IHF can accept orders within 14 days after receipt.
- The following solely govern the legal relationships entered into by IHF and the customer:
• the concluded written contract or confirmation of order issued by IHF,
• the offer made by IHF,
• these GTDs,
• special terms that are mutually and explicitly stated and concluded by IHF and the customer,
• IHF delivery documents,
• all technical documentation, plans, reports, etc. that IHF has made available to the customer;
• the delivery note;
• the invoice.
- The set of rules stated first had priority of that stated thereafter. The contract includes all agreements entered into by the contractual parties in full. Verbal agreements made by IHF prior to conclusion of this contract are non-binding in legal terms and verbal agreements made by the contractual parties shall be replaced by the written contract in as far as it does not explicitly include the information they continue to be binding in each case.
- Supplements and amendments to the agreements that are entered into including these GTDs, are to be in writing in order for them to be valid. With the exception of directors or authorised signatories with prokura, the IHF employees are not authorised to reach verbal agreements that deviate from this. The transmission by means of telecommunication, especially by fax or email, suffice as adherence to the written form, in as far as a copy of the described declaration is also transmitted.
§ 3. Orders
- The customer can place a fixed order. A fixed order is deemed to be an order that explicitly includes the product quantity, the price, the lead times and the Terms of Delivery.
- The customer can also place an open order. An open order is deemed to be an order that includes the product and the unit price in addition to the product quantity as estimated by the customer. A possible lead time is hereby agreed to between IHF and the customer (week/month/year) but such quantities and lead times are non-binding however.
- The customer can also place a call order. A call order is deemed to be an order that includes the product and the unit price in addition to a min. and a max. quantity that can be called up within a certain call up schema.
- All open orders or call orders shall be a fixed order in periods to be agreed to with the customer. Such an order includes the exact product quantities and the lead times desired by the customer.
In the case of open or call orders, the liability of IHF is restricted to the latest agreed delivery deadline and the highest goods quantity requested by the customer.
IHF does not have an obligation to deliver additional product quantities or guarantee shorter delivery deadlines.
- Should the customer request an amendment to the open orders or call orders, IHF should endeavour to act in accordance with this request by using its own entire production possibilities (employees, work resources, materials, etc.) in addition to its own transport possibilities. Should IHF receive a request from the customer that it wishes to amend an open or call order, it is entitled to inform the customer of a possible price change: this change is made either after it has been explicitly accepted by the customer or it comes into force as from the first delivery of the product on the basis of an order change that has been accepted by IHF.
- Should nothing to the contrary be agreed to, orders and call orders are to be settled completely within a deadline of 365 days as from the date of conclusion of the contract. Should the order not be called up within the deadline, IHF can, after expiry of a set reasonable additional period (max. 1 month), assign the monthly deliveries at its equitable discretion and demand the payments that are due. After expiry of the deadline, IHF is entitled to take the goods that have not been called up into storage at the cost and risk of the customer and invoice him for this. The legal rights of IHF remain unaffected by this.
- As long as no force majeure exists, the customer is under no circumstances entitled to cancel the fixed order or place an order for less than the stipulated minimum delivery, or reduce the open or call orders. Should the customer intend doing so however, he is to send IHF a written request. IHF has the right to act in accordance with the customer request, refuse it or inform the customer of the additional price for his acceptance with the following 20 workdays.
- Depending on the type of the contract, a cancellation or reduction beneath the minimum delivery quantity is binding for an open or call order, i.e. either with the explicit direct approval by IHF or as soon as the customer has paid the costs specified by IHF. In this case, the customer has an obligation to accepting delivery of the goods and to making a payment conform with the contractual provisions or the stipulated minimum acceptance quantity or the open orders or call orders respectively.
- Depending on the type of the contract, the costs incurred for the cancellation or reduction below the minimum delivery quantities for an open or call order are decisive. IHF is entitled to assert a full claim for all costs incurred for the provision of raw materials that cannot be put to an alternative use or the storage costs, for special or standard equipment, for process simulation and planning costs within the part that cannot be amortised. IHF can under all circumstances include all costs and direct and
indirect consequences that are commercially relevant.
- IHF has an obligation to doing all in its power
to keeping all claims referred to in this paragraph that are invoiced to the
customer, as low as possible.
§ 4. Use and Packaging of the Products, Performance Specifications
- The customer assumes full responsibility for the use of the product and IHF makes the product available for the use notified by the customer. Under no circumstances does IHF assume liability for a prohibited, incorrect or not agreed use of the product.
- Should the customer wish to use the product for a purpose that differs from that intended, he is to inform IHF of this subject to a deadline of 60 days. IHF can refuse to accept subsequent deliveries or demand a price difference resulting from any modifications as might be necessary with regard to the product or the processing procedures.
- Should nothing be agreed to in advance or should IHF not be notified in advance, the product is not to be stored together with foodstuffs or substances that are only potentially explosive or pose a potential environmental hazard even, the exception from this being a product that is made of non-corrosive steel for use in the foodstuffs industry.
- IHF has an obligation to delivering the product in packaging that is conform with the valid safety regulations and hygienic measures.
- The customer is solely responsible for the correct storage of the delivered product.
- The customer and IHF can reach agreement on the possible use of recyclable packaging for the finished product. The customer is hereby solely responsible for the correct use and maintenance of the used packaging.
- Information provided by IHF concerning the subject of the delivery (e.g. weights, dimensions, values in use, capacity, tolerances and technical data) and the presentation thereof (e.g. in drawings and illustrations) are only deemed to be approximations in as far as the usability for the contractually intended purpose necessitates an exact conformity. They are not deemed to be guaranteed qualities, but descriptions or designations of the delivery or performance. Customary deviations and deviations that result from legal provisions or that are deemed to be technical improvements, and the replacement of products with equivalent parts are permissible in as far as this does not impair the usability for the contractually intended purpose.
§ 5. Prices and Payment
- The prices have validity for the scope of the performances and deliveries as defined in the IHF order confirmations. Additional or special performances shall be invoiced separately. The prices are in EUR net of the statutory Value Added Tax and customs duties and other duties payable under public law for export deliveries. IHF is entitled to demand payments on account after the order confirmation has been issued.
- Should nothing to the contrary be agreed in writing, amounts invoiced to customers with domicile in the Federal Republic of Germany are payable within a period of 14 days net. The date the payment is received by IHF is decisive with regard to the date of payment. Should nothing to the contrary be agreed to in writing, amounts invoiced to customers with domicile outside the Federal Republic of Germany are to be paid net prior to delivery. The making of payments by cheque is excluded should this not be agreed to separately in individual cases. Should the customer not make the payment within the set deadline, the outstanding amounts shall be subject to interest of 9 percentage points above the basic interest rate p.a. As from the date following that on which the time limit has expired. The right to assert a claim for higher interest and for compensation over and above the foregoing in the event of payment being in default remains unaffected.
- The setting off against counter claims of the customer or the retention of payments on the ground of such claims is only permissible in as far as the counter claims are undisputed or they have been determined finally and conclusively. Should the IHF delivery or performance be defective, this has no effect on the assertion of counterclaims by the customer.
- IHF is entitled to only making outstanding deliveries or providing outstanding performances against advance payment or provision of security should it gain knowledge of the existence of a situation after conclusion of the contract that could at least have a substantial negative effect on the creditworthiness of the customer, thereby placing the payment of the unsettled IHF receivables on the basis of the contractual relationship concerned at a risk (including from other single orders that are covered by the same general agreement).
- IHF is entitled to demand payments on account from the client in the meaning of Section 632a of the German civil code (BGB), notwithstanding the payment on account pursuant to § 5.1.
- IHF is entitled to alter the prices of the products at its equitable discretion in the meaning of Section 315 BGB when taking the market situation into account. Should the alteration not be conform with equity, it can be made by judgement.
- IHF shall be entitled to adjust prices if a change in production costs of more than 10% can be proven between the conclusion of the contract and delivery, in particular if these proven changes are based on increased prices for raw materials, energy, energy carriers as well as costs for personnel and transport. The adjustment shall not exceed the proven change. The adjustment shall be made by declaration to the other party to the contract. The other party shall have the right to prove that no change of at least 10% in production costs has occurred. The adjustment shall then not be effective.Die Preise gelten für den in den Verträgen bzw. in den Auftragsbestätigungen von IHF aufgeführten Leistungs- und Lieferungsumfang. Mehr- oder Sonderleistungen werden gesondert berechnet. Die Preise verstehen sich in EURO zuzüglich der gesetzlichen Mehrwertsteuer, bei Exportlieferungen Zoll sowie Gebühren und anderer öffentlicher Abgaben. IHF ist berechtigt, nach erteilter Auftragsbestätigung Abschlagszahlungen zu verlangen.
§ 6. Delivery and Lead Times
- Deliveries are made ex works (Incoterm 2010 EXW).
- Delivery and performance deadlines and dates stated by IHF are always deemed to be approximations, the exception being that a fixed deadline or date has been promised or agreed to.
- Irrespective of its rights arising from the customer being in default, IHF can demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the customer does not meet his contractual obligations towards IHF.
- The adherence to time limits for deliveries and service work depends on the punctual reception of all specifications, documents, required permits and releases to be submitted by the purchaser, specifically in keeping with the agreed payment terms and other duties to be fulfilled by the purchaser. If these requirements are not satisfied in due time, the delivery dates shall be prolonged reasonably accordingly unless the delay is within the supplier’s responsibility. The same shall apply if the supplier is not supplied on time and/or in full by its upstream suppliers.
- IHF does not assume any liability for the impossibility of the delivery or for delivery delays in as far as these are caused by a force majeure or other events that were unforeseeable at the time the contract was concluded (e.g. operating difficulties of all kinds, difficulties in connection with the procurement of materials or energy, transport delays, industrial action, legal lockouts, a lack of personnel, energy or raw materials, difficulties with the procurement of required official approvals, official action or a non-delivery, incorrect delivery or delayed delivery to IHF) and for which IHF is not responsible. Should such events render the delivery or performance substantially more difficult or impossible and the hindrance is not only of a temporary nature, IHF is entitled to rescind the contract. With regard to hindrances of a temporary nature, the delivery or performance deadlines are postponed by the duration of the hindrance with the addition of a reasonable start-up deadline. Should it not be reasonably expected of the customer that he accept the delivery or performance as a result of the delay, he can rescind the contract with immediate written notification being made to IHF.
- IHF is only entitled to make partial deliveries if
• the partial delivery can be used by the customer in the scope of the contractual intended purpose,
• the delivery of the other ordered goods is ensured, and
• the customer does not incur considerable additional expenditure or additional costs (the exception being if IHF should declare that it is prepared to bear such costs).
- Should IHF be in default with a delivery or performance or should a delivery or performance be rendered impossible for it, notwithstanding the reasons, the liability of IHF is restricted to compensation pursuant to § 11 of these GTDs.
- Should the lead times be delayed on grounds for which the customer is responsible, he is to bear all additional costs that are incurred by IHF as a result, including storage costs. In the case of IHF taking the goods into storage, IHF reserves the right to invoice the customer with storage fees of 1.0% of the amount invoiced for the stored delivery goods per week or part thereof, mind. EUR 200.00 net/week however. The right is reserved to assert and furnish proof of lower or higher storage costs.
§ 7. Place of Performance, Passing of the Risk and Acceptance
- Should nothing to the contrary be determined, the place of performance for all obligations arising from the contractual relationship is the legal domicile of IHF.
- The mode of shipping is at the best judgement of IHF.
- The risk passes to the customer when the delivered object is handed to the freight forwarder, the carrier or another third party that has been determined for the shipping at the latest (whereby the commencement of the loading process is decisive). This is also the case should partial deliveries be made or should IHF have assumed responsibility for other performances (e.g. shipping). Should the shipping or the handover be delayed on grounds for which the customer is responsible, the risk is deemed to pass as from the date on which the delivery object is ready for shipping and the customer has been notified of this by IHF.
- IHF shall only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express wish of the customer and at his expense.
- In as far as an acceptance is to take place, the delivery object is deemed to have been accepted if
• the delivery has been completed,
• IHF has informed the customer of this, referring to the acceptance fiction pursuant to this § 7 (5), and it has demanded that he accept the delivery,
• twelve workdays have expired since the delivery or the customer has commenced with the use of the delivered object by subjecting it to further processing, installation or commissioning, etc. and in this case, six workdays have passed since delivery and
• the customer has not refused to accept the delivery within this deadline on a ground other than a defect that he has reported to IHF which renders the use of the delivery object impossible or substantially impairs the same.
§ 8. Warranty Claims and their Limitation of Actions, Inspection Obligation and Requirement to Give Notice of Defects
- As a deviation from Section 438 para. 1 No. 3 BGB, the general period of limitation for the assertion of claims for material defects and defects of title is one year from the date of delivery. Should an acceptance be agreed to, the period of limitation commences with the acceptance, otherwise upon delivery.
Should the goods be a structure or an object that can be used as a structure in keeping with its customary mode of use, and this has caused its deficiency (building material), the period of limitation is 5 years as from delivery pursuant to the legal provision (§ 438 para. 1 No. 2 BGB). This also remains unaffected by other statutory special provisions with regard to a limitation of actions (especially § 438 para. 1 No. 1, para. 3, §§ 444, 479 BGB).
- The aforementioned law on sales periods of limitation also have validity for the assertion of contractual and non-contractual claims for compensation by the customer on the basis of a goods defect, the exception being if the application of the regular statutory limitation of actions (§§ 195, 199 BGB) would result in a shorter period of limitation in individual cases. The assertion of claims for compensation by the customer on the grounds of intent or gross negligence in addition to compensation on the grounds of death, physical harm or a health impairment or on the grounds of the German Product Liability Act are exclusively deemed to be subjected to the statutory periods of limitation.
The delivered objects are to be carefully inspected by the customer or a third party designated by it immediately after they have been delivered. They are deemed to have been accepted by the buyer with regard to obvious defects or other defects that would have been detected if an immediate and careful inspection had been carried, should IHF not receive an immediate written notification of defects, i.e. without a culpable delay after delivery of the object. With regard to other deficiencies, the delivered objects are deemed to have been approved by the buyer should the notification of deficiencies not be received by IHF immediately, i.e. without a culpable delay after the time when the defect is apparent; if the defect was already discernible by the customer in normal use, this earlier moment in time is decisive with regard to the commencement of the period for giving notification of deficiencies. If requested by IHF, a delivered object that is the subject of a complaint is to be returned to IHF carriage paid. Should the notification of defects be justified, IHF shall reimburse the costs incurred for the most inexpensive form of shipping; this does not have validity should the costs be increased due to the delivered object being in a place other than that of the intended use.
- In the event of the delivery objects having material defects, IHF shall make a choice within a reasonable period of time as to whether it only has an initial obligation and justification to carry our repair work or provide a replacement delivery. Should this be unsuccessful, i.e. due to impossibility, unreasonableness, refusal or an unreasonable delay to the repair work or the making of a replacement delivery, the customer can rescind the contract or reduce the purchase price by a reasonable amount.
- In the event of there being deficiencies in components supplied by other manufacturers that IHF is unable to remedy on licensing or actual grounds, IHF shall choose whether it asserts warranty claims against the manufacturer on the account of the customer or whether it shall assign the same to the customer. Warranty claims against IHF only exist for such defects subject to the other requirements and pursuant to these General Terms of Delivery if the assertion of the aforementioned claims against the manufacturer and IHF before a court of law was unsuccessful or if such should be futile due to insolvency, for example. The period of limitation with regard to the warranty claims of the customer against IHF that are concerned, is suspended during the conducting of the litigation.
- The warranty is deemed to be invalid should the customer modify the delivered object or have it modified by a third party without the approval of IHF, this resulting in the remedying of the defect being rendered impossible or unreasonably more difficult. The customer is to bear the additional costs incurred for the remedying of the defect under all circumstances.
- IHF provides a warranty for warranted qualities and an absence of faults conform with the valid technical overview drawing from IHF, for a period of 12 months from the date of delivery. The warrant does not cover damage caused by external influences, an incorrect use and treatment, an incorrect operation or maintenance, corrosion or customary wear. The period of limitation pursuant to §438 para.1 No.2 BGB and agreed longer periods of limitation remain unaffected.
§ 9. Proprietary Rights
- IHF reserves the ownership, all industrial property rights or copyright in all offers and costs estimates it submits, in addition to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and tools it makes available to the customer. The customer is not to make these objects or the contents thereof, available to third parties, publish them, use or reproduce them himself or permit a third party to do so, without the explicit permission of IHF. When requested to do so by IHF, he is to return these objects to IHF complete and destroy any copies that he might of made hereof, should he no longer require them in the ordinary course of business or should negotiations not result in conclusion of a contract. An exception from this is the storage of data that is made available by electronic means for the purpose of creating a customary data backup.
- IHF holds all industrial property rights and copyright in the delivered objects. None of these rights are transferred to the customer upon delivery. The customer also does not acquire any licenses or other right of use and enjoyment in the delivered objects.
- Pursuant to this § 9, IHF warrants that the delivered objects are not covered by third party industrial property rights or copyright. Each of the parties to the contract shall inform the other party to the contract without delay in writing, should claims be asserted against him or it in connection with the violation of such rights.
- Should the delivered object infringe a third party industrial property right or copyright, IHF shall choose whether it shall modify the delivered object or replace it at its expense. so that it no longer infringes third party rights but the delivered object nevertheless is still conform with contractually agreed functions, or it shall provide the customer with the right of use and enjoyment with a licensing agreement. Should IHF not succeed in doing so within a reasonable period of time, the customer is entitled to rescind the contract or reduce the purchase price by a reasonable amount. Any claims for compensation asserted by the customer are subject to the restrictions of § 11 of these General Terms of Delivery.
- In the event of products delivered by IHF that are manufactured by a third party infringing rights, IHF shall decide whether to assert its claims against the manufacturer and the sub-supplier on the account of the customer or whether it shall assign such rights to the customer. In such cases, claims can only be asserted against IHF on the basis of this § 9 if the assertion of the aforementioned claims against the manufacturer and the sub-supplier before a court of law was unsuccessful or if such should be futile due to insolvency, for example.
- Should the product be manufactured on the basis of a customer drawing or information provided by the customer, the customer is deemed to be fully liable for all infringements of all third party industrial property rights and copyright, even if this should only relate to the manufacturing process. He has an obligation to indemnifying IHF against all direct or indirect consequences that it incurs as a result of the use or publication or such information. The customer ultimately also indemnifies IHF against all direct or indirect damage or burdens in addition to any legal costs that are deemed necessary.
§ 10. Confidentiality
- IHF and the customer have an obligation to maintaining the strictest confidentiality with regard to everything that they gain mutual knowledge of during the preparation or execution of the contract (documents, data, properties, technical and financial information, drawings, diagrams, reports, measured values, memos, etc.) during the entire delivery period and for a duration of 5 years after termination of the delivery contract. IHF and the customer obligate themselves to treating exchanged or received materials with care and to subjecting the same to the strictest secrecy.
- IHF and the customer are only to grant access to data, documents and received materials to the persons with responsibility for the delivery.
- IHF and the customer also declare that they adhere to the latest data protection regulations.
The duty to maintain secrecy is not valid for
• the provision of information, should this be ordered by courts of law or public authorities.
• information that was known prior to conclusion of the contract;
• the provision of information, should this be ordered by courts of law or public authorities.
An infringement of this clause entitles the other party to assert a claim for compensation and, should the infringement be of an especially serious nature, terminate the contract without notice on an important ground.
§ 11. Compensation Liability on the Ground of Culpability
- The liability of IHF for compensation, irrespective of the legal ground, especially on the ground of impossibility, default, a defective or incorrect delivery, a contractual infringement, an infringement of obligations during contract negotiations and tort is restricted to the provisions of this § 11, in as far as culpability is relevant in this regard.
- IHF does not assume liability for ordinary negligence on the part of its organs, legal representatives, employees or other vicarious agents, in as far as it does not concern itself with an infringement of essential contractual obligations. The obligation to deliver the delivered object on time, it not being subjected to defects of title and such material defects that impair its functioning or suitability for use to an extent that is not deemed to be insignificant, in addition to advice, protection and care obligations that should enable the customer to use the delivered object in accordance with the contract or that should protect the life or limb of the personnel of the customer or protect his property from considerable damage are deemed to be essential contractual obligations.
- In as far as IHF is liable for compensation on the grounds of § 11 No. 2, this liability is restricted to the amount that IHF has foreseen upon conclusion of the contract as being a possible consequence of a contractual infringement or that it should have foreseen had it applied due care and attention
- The foregoing liability exclusions and restrictions also have the same validity for the benefit of the organs, legal representatives, employees and other vicarious agents of IHF.
- In as far as IHF provides technical information or advice and this information or advice is not a part of the scope of performance that it is to provided pursuant to the contract, this does not incur any costs and excludes all liability.
- The restrictions in this § 11 do not have validity for the liability of IHF on the ground of intentional or gross negligent conduct, fraudulent concealment of a defect, warranted qualities, claims asserted for death, physical harm or health impairments, or for claims asserted on the grounds of the German Product Liability Act.
§ 12. Reservation of Title
- The objects of deliveries and performances provided by IHF (“reserved goods“) remain the property of IHF until such time as the customer has settled all claims owing to IHF as a result of the business relationship.
In as far as the value of all of the security rights that IHF is entitled to exceeds the value of all of the secured claims by more than 10%, IHF shall release a part of the security rights upon request of the customer; IHF is entitled to choose which security rights are to be released.
- The customer is prohibited from pledging or transferring the ownership by way of security during the reservation of title period and he is only permitted to resell to resellers in the customary course of business and subject to the condition that the reseller reserves a payment from its customer or subjects it to the reservation that the ownership is only assigned to its customers after he has met his payment obligations.
- Should the customer resell reserved goods, he already assigns his future claims that he has against his customer from the resale with all accessory rights – including any balance receivables – to IHF by way of security at this moment in time, without this requiring additional special declarations. IHF already accepts this assignment at this moment in time. The indemnity entitlements stated in the aforementioned § 12 (1) have analogue validity in the case of the value of the securities exceeding 10%.
- Should the reserved goods be resold together with other objects without an individual price having been agreed to for the reserved goods, the customer already assigns the part of the total price claim to IHF, that corresponds to the price invoiced by IHF for the reserved goods.
IHF and the customer already agree that should they be connected or mixed with other objects that are not the property of IHF, then IHF shall under all circumstances be the co-owner of new object with a share being owed to it that is calculated on the basis of the ratio of the value of the joined or mixed reserved goods to the value of the other goods at the time the connection or mixing is carried out. The new object is therefore deemed to be reserved goods to this extent. The provision regard the assignment of claims pursuant to § 12 (3) also have validity for the new object. The assignment is only valid up to the amount that IHF has invoiced for the processed, joined or mixed reserved goods however.
- Should the customer join the reserved goods to land or moveable assets, he also assigns his claim that he is entitled to as remuneration for the connection to IHF, including all accessory rights, as security in the amount of the ratio of the value of the joined reserved goods to the other connected goods at the time the connection is made. IHF already accepts the assignment at this moment in time.
- The customer is authorised to collect assigned claims until further notice. IHF is entitled to revoke the collection authorisation it has issued to the customer should there be important grounds, especially a payment default, a cessation of payments, the commencement of insolvency proceedings, a bill of exchange protest or substantiated grounds to indicate the existence of an over-indebtedness or threatening insolvency of the customer, IHF is entitled to revoke the authorisation to collect that it has granted to the customer. IHF can also make the assignment of the security known, use the assigned claims and demand that the customer make the assignment of the securing known, after a reasonable deadline.
- The customer is to provide IHF with notification of a lien in rem, seizures or other orders or third party interferences without delay. With presentation of prima facie evidence regarding a justified interest, the customer is to provide IHF with the information it requires in order for it to assert its rights against the customer in addition to it surrendering the required documents.
- In the case of the customer infringing obligations, especially payment defaults, IHF is entitled to take back the reserved goods and rescind the contract after a reasonable set deadline has expired without success; the statutory provisions regarding the dispensability with the setting of a deadline remain unaffected. The customer has an obligation to returning the reserved goods. The returning of the goods or the assertion of the reservation of title or the lien in rem by IHF cannot be construed as being a repudiation of the contract, the exception being if this has been expressly declared by IHF.
- Should compulsory execution be pending against the landowner, IHF is entitled to remove reserved goods from the property.
§ 13. Force Majeure, Unavailability of Goods
- Serious events which cannot be influenced by the parties and which entail unforeseeable consequences for the performance of services (force majeure) shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect, even if they should be in default. This does not imply an automatic termination of the contract. The contracting parties shall be obliged to notify each other of any such impediment and to adjust their obligations to the changed circumstances in good faith. In particular, "force majeure" shall mean embargoes and sanctions, interruptions and disruptions of supply chains, epidemics and pandemics and measures to combat them, as well as armed conflicts which have an impact on performance under this contract, regardless of the location of the hostilities. Furthermore, governmental measures, labour disputes, natural events such as floods and the like, fires, explosions, riots, terrorism and sabotage shall be considered "force majeure".
- The exemption from the obligation to perform pursuant shall also apply if the Supplier is unable to procure production materials of any kind, in particular raw materials and/or preliminary products, because such products are not available on the market or will not be available in the foreseeable future. The Purchaser shall have the right to prove that the aforementioned goods are available on the market. A reversal of the burden of proof is not associated with this.
§ 14. Final Provisions
- Should the customer be a businessman, a legal entity under public law or a special fund under public law, or if he should not have a general legal venue in the Federal Republic of Germany, the legal venue for all disputes arising from the business relationship entered into between IHF and the customer is the legal domicile of IHF. IHF is also entitled to take legal action against the customer at his legal domicile. Compulsory provisions regarding exclusive legal venues remain unaffected by this provision.
- The relationships between IHF and the customer are exclusively governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) from 11 April 1980 does not have validity.
- Should individual provisions in this contract be invalid, this has no effect on the validity of the remaining provisions.
§ 15. Severability clause for the orders, written form
- The legal invalidity of individual provisions of a contract or of the above terms and conditions shall not affect the validity of the remaining terms and conditions or agreements. Rather, the invalid or amended provision shall be interpreted in such a way as is legally possible in accordance with the purpose of the original provision.
- Verbal collateral agreements do not exist or are replaced by the provisions of the contract and these terms and conditions. Deviations as well as collateral and additional agreements shall only be valid if they are confirmed by us in writing. Verbal collateral agreements shall only be valid if they have been made with the managing director.
The customer takes note that IHF stores data from the contractual relationship for the purpose of data processing according to the provisions of the EU General Data Protection Regulation (GDPR) and the German federal Data Protection Act in the version that has validity from 25 May 2018, and that it reserves the right to transfer data to third parties (e.g. insurance companies) should this be necessary for the fulfilment of the contract.