TERMS AND CONDITIONS OF IMQ INGENIEURBETRIEB FÜR MATERIALPRÜFUNG,
QUALITÄTSSICHERUNG UND SCHWEISSTECHNIK GMBH (HERAFTER REFERRED TO AS IMQ)
These terms and conditions (T&C) shall apply for all offers, contracts and agreements and any other services in commercial transactions as defined in § 310 Sect. 1, 14 BGB (German Civil Code) within current or future business relations also with reference to subsequent orders. In this context, entrepreneur is every person or entity that acts in exercise of his or its trade, business or profession or independent business. By placing an order the customer acknowledges the Terms and Conditions of imq that are valid at this respective date.
All services performed by imq shall be based on these terms of contract. Opposing or deviating terms of the customer shall not be recognised unless they have been specifically agreed in writing by imq management.
Imq shall provide its services impartially and to the best of its knowledge in accordance with generally acknowledged regulations of technology and considering provisions existing at the time of the order acceptance.
The scope of the services to be supplied by imq shall be defined at the time the order is placed. Shall during proper implementation of the order any alterations and/or extensions of the established order scope result from the proper execution of the order, these shall be additionally agreed on by both parties in advance. As far as an adherence to the contract, regarding the aforementioned alterations or changes, cannot reasonably be expected of the customer as a result of the changes and/or additions, the customer shall have the right to withdraw from the contract. However, in such case, the customer is obliged to pay the agreed remuneration or – in the absence of an agreement – equitable remuneration, whereby the customer retains the duty to prove that imq have had lower expenditure than claimed.
3. DUTIES OF THE CUSTOMER
The customer shall provide imq, conscientiously, completely and at no cost, as well as in a timely manner, with all the necessary information and documents for the execution of the order, in particular concerning the test material as well. The customer shall, of his own accord, call attention to all processes and circumstances that could be of significance for the execution of the order. The execution of the order in the absence of fulfilment of the points above shall be at the sole risk of the customer, provided imq is not partly to blame.
The order deadlines of imq are non-binding, unless a binding deadline has specifically been agreed in writing.
If a delivery date or a delivery deadline is exceeded imq shall be in default if imq is responsible for the delay in delivery. In the event of force majeure or other unforeseeable impediments for which imq is not responsible there shall be no default in delivery.
The customer may demand compensation for damage caused by default only if it is proved that imq acted with intent or with gross negligence.
5. PAYMENT TERMS/RETENTION OF TITLE
Upon submission of the invoice payment shall be due in full within 14 days at the latest by the date indicated on the invoice. For the invoicing of the services provided by imq the VAT applicable at the time of the complete execution of the order shall be shown separately and levied in addition to the contractual remuneration. Bills of exchange, cheques and payment orders shall be accepted only on account of performance. They shall be considered payment when they have been redeemed. Standard bank expenses shall be borne by the customer.
Offsetting payment against, or withholding payment on account of, a counterclaim is excluded unless the counterclaim is uncontested or has been legally established.
Should imq become aware of facts from which it emerges that the customer is no longer creditworthy, imq shall be entitled to demand payment in cash before the order is executed.
Advances on costs may be demanded and/or partial invoices may be issued by imq corresponding to services already performed. If the customer is in default with the settlement of a partial invoice despite being set an extended deadline imq shall have the right to refuse performance of the rest of the contract, to withdraw from the contract or to demand compensation for non-performance, whereby the customer retains the duty to prove that imq have had lower expenditure than claimed.
Any tangible items which are provided to the customer by imq within the scope of the order execution and their transfer of ownership to the customer are subject to the condition precedent of full settlement of all payments invoiced by imq.
Any services provided by imq are to be accepted immediately by the customer. If the provided service is not rejected in detailed written justification of the reasons within one week after its execution or after the announcement of completion, acceptance shall be considered declared.
The customer shall bring any claims to the attention of imq in writing as soon as they are detected. All warranty rights shall be excluded if they are not asserted within one year of the acceptance except those for services concerning planning and supervision of the construction of a building. In this case, the 5 years limitation period of § 634a Sect. 1 No. 2 BGB (German Civil Code) applies. Statutory warranty periods apply as well with claims for damages resulting from injury for life and limb or the impairing of the health as well as for damages if these are due to wilful intent or gross negligence of imq.
Should defects occur within the warranty period, imq shall avail itself of the right to subsequent performance. Subsequent performance shall take place, at imq’s choice, through the correction of faults (remedial performance) or through reproduction (subsequent delivery). The customer shall have the right, at his choice, to demand reduction of the remuneration or termination of the contract under statutory conditions if and not until subsequent performance is definitively and seriously refused, not carried out in a timely manner or fails. Additional warranty rights are excluded.
In the event of a minor breach of contract, in particular in the event of minor defects, the customer shall not be entitled to withdraw from the contract. To the extent that imq is not responsible for a breach of duty lying in a defect, the customer shall not be entitled to withdraw from the contract in this case either.
Imq shall be liable for losses – regardless of their legal basis – only if imq, its legal representative or vicarious agent caused these losses through intent or through gross negligence or if imq, its legal representative or vicarious agent negligently violated a duty essential to the contract. In the event of the violation of a duty essential to the contract imq’s obligation to pay compensation shall be limited to foreseeable losses resulting from the nature of the contract.
Liability for indirect consequential losses, including consequential losses resulting from the nature of the contract, is excluded. In all other cases, the liability of imq shall be limited to the following amounts insured:
EUR 1,000,000.00 for damage to property EUR 2,000,000.00 for damage to persons
Claims for damages subject to § 13 Sect. 5 Atomic Energy Act, which result from actions concerning handling and transport of radioactive materials performed by imq at nuclear facilities beyond authorization, imq shall be liable for according to the Provision for Coverage of the Atomic Energy Act (Coverage EUR 1,100,000.00)
The aforementioned exclusions of liability and limitations of liability shall not apply to – losses arising from the violation of life, body or health, – other losses attributable to a grossly negligent breach of duty on the part of imq or to an intentional grossly negligent breach of duty on the part of a legal representative or vicarious of imq, or to – losses arising from a culpable violation of essential contractual rights and duties within the meaning of Section 307 (2) (2) BGB (German Civil Code)
The customer shall immediately notify imq of any losses for which imq must pay.
Insofar as claims for compensation against imq are excluded, this shall also apply with regard to the personal liability of imq employees.
The customer’s rights based on warranties pursuant to Clause 5 shall remain unaffected.
Claims for compensation that are not subject to the short limitation period pursuant to Section 634a BGB shall become time-barred 3 years after receipt of the service by the customer.
Imq shall observe compliance with the duty of secrecy. Imq shall ensure that neither experts’ reports nor other facts or documents relating to the customer and the subject matter of the order that come to its attention during the performance of the services are disclosed, used or forwarded without authorisation.
Imq may make copies for its own files of written documents that are made available for imq to inspect or for the execution of the order.
Imq explicitly reserves the copyrights to the services it provides.
Inspection materials, samples, or test materials provided to imq are stored for the following periods of time: material analysis 1 month, in case of supplier assessment 6 months, in case of damage investigation 2 years and in case of procedure tests 1 year.
Apart from that imq will – as far as requested by the customer – send the inspected materials back at the customer’s expenses.
9. CONCLUDING PROVISIONS
The place of performance for all claims arising from this contract shall be the place where imq has its registered office.
The exclusive place of jurisdiction for all disputes shall be Zwickau.
The contractual relationship shall be subject to German law.
Crimmitschau, October 2011