General Terms and Conditions of Business and Sales

Weimar Institute for Applied Construction Research
Über der Nonnenwiese 1, 99428 Weimar*

—

§ 1 General Provisions

1.1 All deliveries and services are subject to these terms and any specific contractual agreements. Deviating purchasing terms of the customer (AG) will not be part of the contract, even if the order is accepted.
1.2 A contract is formed, in the absence of a special agreement, upon written confirmation of the order by IAB Weimar gGmbH.
1.3 IAB Weimar gGmbH retains ownership and copyright to samples, cost estimates, drawings, and similar physical and non-physical information, including electronic forms. These must not be disclosed to third parties. IAB Weimar gGmbH commits to only sharing information marked as confidential by the AG with third parties with the AG’s consent.
1.4 Any side agreements or contract amendments must be in writing.

§ 2 Scope of Services and Conclusion of Contract

2.1 The scope of the contractual service is exclusively defined by the order confirmation from IAB Weimar gGmbH.
2.2 IAB Weimar gGmbH reserves the right to make changes to the design, choice of materials, specification, and construction after sending the order confirmation, provided these changes do not contradict the order confirmation or the AG’s specification. The AG must accept further reasonable modification proposals if they are acceptable.

§ 3 Prices and Payment Terms

3.1 Unless otherwise agreed, prices are ex-works, including loading at the factory, but excluding packaging and unloading. VAT is added to the prices at the applicable legal rate.
3.2 In the absence of a special agreement, payment is to be made without any deduction to the IAB Weimar gGmbH account as follows:
• 1/3 down payment after receipt of the order confirmation,
• 1/3 as soon as the AG is notified that the main parts are ready for dispatch,
• The remainder within one month after the transfer of risk.
3.3 The AG may only withhold payments if their counterclaims are undisputed or legally established.
3.4 The AG may only offset counterclaims from other legal relations if they are undisputed or legally established.
3.5 In the event of a default in payment, interest at 5% above the base rate will be charged 30 days after the invoice or equivalent payment request is due, reserving the right to assert further claims.

§ 4 Delivery Time and Delays

4.1 The delivery time is based on the agreements between the parties. Its compliance by IAB Weimar gGmbH depends on all commercial and technical questions being resolved and the AG fulfilling all their obligations, such as providing necessary approvals or making a down payment. If this is not the case, the delivery time will be reasonably extended, unless the delay is due to IAB Weimar gGmbH.
4.2 Compliance with the delivery time is subject to the correct and timely delivery to IAB Weimar gGmbH. Any foreseeable delays will be communicated as soon as possible.
4.3 The delivery time is met if the delivery item has left the IAB Weimar gGmbH premises or if the readiness for dispatch is notified by the deadline. Where acceptance is required, the acceptance date is decisive, except in cases of justified refusal of acceptance.
4.4 If shipment or acceptance is delayed due to reasons attributable to the AG, costs incurred as a result will be charged starting one month after notification of readiness for dispatch or acceptance.
4.5 If non-compliance with the delivery time is due to force majeure, labor disputes, or other events beyond the control of IAB Weimar gGmbH, the delivery time will be reasonably extended. IAB Weimar gGmbH will notify the AG of the start and end of such circumstances as soon as possible.
4.6 The AG may withdraw from the contract without setting a deadline if IAB Weimar gGmbH becomes definitively unable to fulfill the entire contract before the transfer of risk. The AG may also withdraw if a partial delivery is impossible and they have a legitimate interest in refusing the partial delivery. Otherwise, the AG must pay the contract price for the partial delivery. This also applies in the event of the incapacity of IAB Weimar gGmbH.
4.7 If IAB Weimar gGmbH is in delay and the AG incurs damage as a result, the AG is entitled to demand liquidated damages. This amounts to 0.5% of the value of the part of the total delivery that cannot be used as intended due to the delay for each full week of delay, but not more than 5% in total. If the AG sets IAB Weimar gGmbH a reasonable deadline after the due date and the deadline is not met, the AG is entitled to withdraw from the contract within the limits of the legal provisions.

§ 5 Transfer of Risk, Acceptance

5.1 The risk transfers to the AG when the delivery item leaves the factory, even if partial deliveries are made or IAB Weimar gGmbH has undertaken other services such as shipping or installation. If acceptance is required, this is decisive for the transfer of risk. It must be carried out immediately at the acceptance date, or after notification of readiness for acceptance from IAB Weimar gGmbH.
5.2 If dispatch or acceptance is delayed due to circumstances not attributable to IAB Weimar gGmbH, the risk transfers to the AG from the date of notification of readiness for dispatch or acceptance. IAB Weimar gGmbH will arrange for insurance at the AG’s request and expense.
5.3 Partial deliveries are permissible if reasonable for the AG.

§ 6 Retention of Title

6.1 IAB Weimar gGmbH retains ownership of the delivery item until all payments under the delivery contract, including any additional services, are received.
6.2 IAB Weimar gGmbH is entitled to insure the delivery item against theft, breakage, fire, water, and other damage at the AG’s expense, unless the AG has demonstrably taken out such insurance.
6.3 The AG must not sell, pledge, or transfer the delivery item for security. In the event of seizures, confiscation, or other third-party interventions, the AG must inform IAB Weimar gGmbH immediately.
6.4 In case of breach of contract by the AG, particularly in the event of payment default, IAB Weimar gGmbH is entitled to reclaim the delivery item after issuing a warning, and the AG is obligated to return it.
6.5 IAB Weimar gGmbH may only reclaim the delivery item under the retention of title if it has withdrawn from the contract.
6.6 The application for insolvency proceedings entitles IAB Weimar gGmbH to withdraw from the contract and demand the immediate return of the delivery item.

§ 7 Claims for Defects

For material and legal defects in the delivery, IAB Weimar gGmbH is liable under exclusion of further claims – subject to § 8 – as follows:

Material Defects

7.1 All parts that prove to be defective due to a circumstance that existed before the transfer of risk must, at the discretion of IAB Weimar gGmbH, either be repaired or replaced with defect-free parts. The detection of such defects must be immediately reported to IAB Weimar gGmbH in writing. Replaced parts become the property of IAB Weimar gGmbH. 7.2 The client must give IAB Weimar gGmbH the necessary time and opportunity to carry out all the necessary repairs and replacements; otherwise, IAB Weimar gGmbH is released from liability for any consequences resulting from it. Only in urgent cases of danger to operational safety, or to prevent disproportionately large damage, in which IAB Weimar gGmbH must be informed immediately, is the client entitled to rectify the defect themselves or have it rectified by third parties and demand reimbursement of the necessary expenses from IAB Weimar gGmbH. 7.3 IAB Weimar gGmbH bears – insofar as the complaint proves to be justified – the direct costs of the repair or replacement delivery, including the costs of shipping. In addition, they bear the costs of disassembly and reassembly, as well as the costs of any necessary provision of fitters and helpers, including travel costs, as long as this does not impose an unreasonable burden on IAB Weimar gGmbH. 7.4 The client has the right to withdraw from the contract within the framework of legal provisions if IAB Weimar gGmbH – taking into account statutory exceptions – allows a reasonable deadline set for the repair or replacement due to a material defect to lapse without success. If there is only a minor defect, the client is only entitled to a reduction in the contract price. Otherwise, the right to reduce the contract price is excluded. 7.5 Further claims are determined exclusively according to § 8.2 of these terms and conditions. 7.6 No liability is accepted in particular for the following cases: Inappropriate or improper use, faulty assembly or commissioning by the client or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating equipment, faulty construction work, unsuitable building ground, chemical, electrochemical, or electrical influences – provided that they are not the fault of IAB Weimar gGmbH. 7.7 If the client or a third party makes improper repairs, IAB Weimar gGmbH is not liable for the resulting consequences. The same applies to changes to the delivery item made without prior approval from IAB Weimar gGmbH.

Legal Defects

7.8 If the use of the delivery item results in the infringement of industrial property rights or copyrights in the domestic market, IAB Weimar gGmbH will, at their own expense, fundamentally procure the right for the client to continue using the delivery item or modify the delivery item in a way that is acceptable to the client, ensuring that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period, the client is entitled to withdraw from the contract. Under the aforementioned conditions, IAB Weimar gGmbH is also entitled to withdraw from the contract. Additionally, IAB Weimar gGmbH will indemnify the client from any undisputed or legally established claims by the relevant holders of industrial property rights. 7.9 The obligations of IAB Weimar gGmbH outlined in § 7.8 are, subject to § 8.2, final for cases of intellectual property rights or copyright infringement. They exist only if: • the client immediately informs IAB Weimar gGmbH of any claims made regarding the violation of intellectual property or copyrights, • the client provides reasonable assistance to IAB Weimar gGmbH in defending against the claims or allows IAB Weimar gGmbH to carry out the modification measures in accordance with § 7.8, • IAB Weimar gGmbH retains the right to take all defensive measures, including out-of-court settlements, • the legal defect does not result from an instruction given by the client, and • the infringement was not caused by the fact that the client has independently modified the delivery item or used it in a way that is not in compliance with the contract.

§ 8 Liability, Exclusion of Liability

8.1 If the delivery item cannot be used by the client as per the contract due to culpably omitted or incorrect suggestions or advice provided by IAB Weimar gGmbH before or after the contract was signed, or due to the culpable violation of other contractual ancillary obligations – especially instructions on the operation and maintenance of the delivery item – the provisions of § 7 and § 8.2 apply, excluding further claims of the client. 8.2 For damages not caused to the delivery item itself, IAB Weimar gGmbH is liable – for whatever legal reasons – only in the case of: (a) intent, (b) gross negligence of the owner or corporate bodies or senior staff, (c) culpable injury to life, body, or health, (d) defects that IAB Weimar gGmbH has fraudulently concealed, (e) guarantees, (f) defects in the delivery item, as far as liability is imposed under the Product Liability Act for personal injury or material damage to privately used items. 8.3 In the event of a culpable breach of essential contractual obligations, IAB Weimar gGmbH is also liable in cases of gross negligence by non-executive employees and in cases of slight negligence, limited to the foreseeable damage typical of the contract. 8.4 Claims based on data protection law are not covered by this liability provision. 8.5 Further claims are excluded.

§ 9 Limitation Period

9.1 All claims of the client – for whatever legal reason – expire after 12 months. The statutory periods apply to claims for damages as per § 8.2 (a–d and f). They also apply to defects in a building or for delivery items that have been used for a building in accordance with their usual application and have caused its defectiveness.

§ 10 Confidentiality

10.1 Each contracting party shall use all documents (such as samples, models, data, etc.) and knowledge obtained from the business relationship solely for the purposes pursued jointly and shall keep them confidential from third parties with the same care as it uses for its own corresponding documents and knowledge if the other contracting party has designated them as confidential or has an obvious interest in keeping them confidential. This obligation begins with the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship. 10.2 The obligation does not apply to documents and knowledge that are generally known or were already known to the contracting party upon receipt without any obligation of confidentiality or that are later transmitted by a third party entitled to disclose them, or that are developed by the receiving contracting party without utilizing confidential documents or knowledge of the other contracting party.

§ 11 Software Usage

11.1 Insofar as software is included in the scope of delivery, the client is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the intended delivery item. Use of the software on more than one system is prohibited. 11.2 The client may only copy, revise, translate, or convert the software from object code to source code to the extent legally permitted (§§ 69a ff. UrhG – German Copyright Act). The client undertakes not to remove manufacturer information – in particular, copyright notices – or to modify them without the prior express consent of IAB Weimar gGmbH. 11.3 All other rights to the software and the documentation, including copies, remain with IAB Weimar gGmbH or the software supplier. The granting of sublicenses is not permitted.

§ 12 Applicable Law, Jurisdiction

12.1 For all legal relations between IAB Weimar gGmbH and the client, only the law of the Federal Republic of Germany, governing the legal relations between domestic parties, applies. 12.2 The place of jurisdiction is the court responsible for the registered office of IAB Weimar gGmbH. However, IAB Weimar gGmbH is also entitled to bring an action at the client’s main place of business.

§ 13 Binding Nature of the Contract

13.1 The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This does not apply if adherence to the contract would represent unreasonable hardship for one of the parties.

§ 14 Applicable Law, Jurisdiction

14.1 For all legal relationships between IAB Weimar gGmbH and the client, only the law of the Federal Republic of Germany, which governs the legal relationships between domestic parties, applies.

14.2 The place of jurisdiction is Weimar. However, IAB Weimar gGmbH is also entitled to bring legal action at the client’s main place of business.