General Terms and Conditions

(Status April 2021)

1. Scope

1.1. These General Terms and Conditions apply to all products and services offered by IPG Automotive GmbH, in particular, but not limited to, all hardware and software products (“IPG Automotive Products”) as well as engineering and consulting services rendered for the client. Additional special terms of use apply to software licensing in accordance with the End User License Agreement for IPG Automotive software products (“EULA”).

1.2. The client's general terms and conditions are not a part of the contract.

1.3. IPG Automotive GmbH (“IPG Automotive”) is entitled to render the contractually agreed services by engaging any of the following subsidiaries: IPG Automotive K.K., Japan, IPG Automotive USA, Inc., USA, IPG Automotive (Shanghai) Ltd., China, IPG Automotive Korea Ltd., Korea, IPG Automotive France SARL, France, IPG Automotive UK Ltd., United Kingdom, or IPG Automotive Sweden AB, Sweden.

1.4. Unless expressly stated otherwise in these General Terms and Conditions, the following prioritization applies in any case of discrepancy between terms and conditions:
1)   Individual contract
2)   General Terms and Conditions/EULA

2. Quotation

2.1  Quotations issued by IPG Automotive are subject to change, unless the Parties have agreed in writing that they are binding.

2.2  Quotations will remain valid for 30 days from the date of issue, unless agreed otherwise by the Parties.

2.3   Invoices are issued for

        a) software and hardware: subsequent to supply;

        b) software maintenance: directly after order placement, or at the latest once the maintenance period
            begins;

        c) rental licenses: directly after order placement, or at the latest once the rental period begins;

        d) engineering on demand: directly after order placement;

        e) engineering services: subsequent to the provision of services;

        f) training sessions: directly after order placement, at the latest 2 weeks prior to the training session.

3. Conclusion of Contract

3.1     The contract will only become effective upon execution by both Parties, or once the client has received a written order confirmation from IPG Automotive after order placement.

3.2     Subsequent amendments and supplements to the contract may only be made in writing.

4. Transfer of Delivery and Risk

4.1     Deliveries are considered completed when the ordered IPG Automotive Products are handed over to the client or a third party authorized by the client. Delivery occurs

a)   for software or software maintenance: online;
b)   for software on a CD-ROM or dongle or other piece of hardware: in accordance with Incoterms 2020
c)    for engineering services which are rendered in the form of software or another digital form: online;
d)   for engineering services which are rendered on-site, the provisions in Section 5 apply.

Any shipping costs or customs duties incurred are identified as part of the quotation and must be paid or otherwise processed by the client.

4.2     The transfer of IPG Automotive Products to a shipping company by IPG Automotive is deemed as delivery to the client in accordance with Incoterms 2020. The risk of loss or damage during transport is also transferred to the client at this time. This also applies in cases where IPG Automotive is still responsible for rendering support services or completing installation work at the client’s location subsequent to the arrival of the IPG Automotive Products.

4.3     If deliveries are delayed due to circumstances mentioned in Section 11 or due to circumstances attributable to the client, including the failure to issue the necessary permissions for delivery to the client’s country, the delivery period will be extended by a duration which appropriately takes into account the specific circumstances leading to the delay.

4.4     If the delivery of the IPG Automotive Products which are ready for dispatch is not possible or undesired by the client, the IPG Automotive Products can be put into temporary storage at the client’s risk and cost. The delivery is deemed complete at the time the items are put into temporary storage.

5. Acceptance

5.1   The client is obliged to accept the engineering services as soon as the scope of services agreed in the contract is delivered. This acceptance must be recorded in writing in a separate acceptance report.

5.2   If the engineering or other services are not rendered as agreed in the contract, IPG Automotive is obliged to rectify the defect via subsequent performance or equivalent substitute service within a within a reasonable time. This does not apply if the defect is irrelevant to the client’s interests or if it is due to circumstances attributable to the client.

 

5.3  Minor defects in engineering services do not entitle the client to deny acceptance.

5.4   If the completion and acceptance of engineering services is delayed for reasons that are unattributable to IPG Automotive, these services will be automatically deemed to be accepted at the latest after 14 days.

5.5   Subsequent to acceptance, IPG Automotive will no longer be liable for obvious defects which the client did not claim prior to or upon acceptance.

6. Prices, Terms and Conditions of Payment

6.1  Prices do not include the applicable legal sales tax.

6.2  Invoices from IPG Automotive are payable within 30 days of their issue date, unless contractually agreed otherwise.

6.3  The product will remain the property of IPG Automotive until final payment is made.

6.4  Should the client default on payment, statutory provisions apply. Irrespective thereof and in addition to interest due, IPG Automotive is entitled to withhold its own services until the payable amount has been received.

6.5  IPG Automotive reserves the right to make price adjustments at any time.

6.6  The client is responsible for paying all taxes and other fiscal charges in the country of delivery, unless contractually agreed otherwise.

7. Patents, Intellectual Property, Copyright

7.1  IPG Automotive is either the owner of the IPG Automotive Products, or possesses the rights to their transfer and third-party use.

7.2  All existing ideas, knowledge, inventions, patents and other registrations which are the property of IPG Automotive and which are not the result of the contractually owed service, but were introduced to the project by IPG Automotive, remain the sole property of IPG Automotive. This also applies to all ideas, knowledge and inventions created by IPG Automotive employees as part of the task in question.

7.3  The client acknowledges these rights of ownership and intellectual property, and will not take any measures to jeopardize, limit or in any way impair IPG Automotive’s or its suppliers’ rights or their ownership of IPG Automotive Products.

7.4  All drawings and technical documentation to be transferred from one Contracting Party to the other prior to, or subsequent to, the conclusion of contract will remain the exclusive property of the transmitting Party.

7.5  All titles and copyrights of the IPG Automotive Products (including but not limited to pictures, photos, animations, videos, audio, music and text), the accompanying printed matter and all copies of the IPG Automotive Products are the property of IPG Automotive.

7.6  IPG Automotive Products are protected by copyright laws and international treaty provisions.

7.7  IPG Automotive Products may not be reverse engineered, decompiled, disassembled or copied, unless and only to the extent that such an activity is expressly permissible as stipulated by the law.

8. Withdrawal from the Contract, Termination

8.1  Each of the Contracting Parties is entitled to declare their withdrawal from the contract as long as the delivery or service period is extended by more than one-half, and at least 6 months, on account of circumstances listed in Section 10.

8.2  In the event that the contract is terminated prematurely, all (partial) services which have already been rendered by IPG Automotive will be invoiced and paid pursuant to the contract. This applies equally to deliveries and services which were not previously accepted by the client as well as to all preparation work completed by IPG Automotive.

8.3  Both Contracting Parties retain the right to serve notice of termination for good cause. In particular, good cause is deemed to exist if the other Contracting Party has violated a material contractual obligation and has not redressed said violation within a reasonable time upon receiving a written request.

8.4  Notice of termination must always be served in writing.

8.5  The provisions in Section 11 remain in force beyond the termination of the contract.

9. Warranty, Claims for Defects and Liability

9.1    The warranty period is 12 months. IPG Automotive’s liability

a)   for wrongful acts,

b)   under the German Product Liability Act (ProdHaftG),

c)    for fraudulently concealed defects,

d)   in the case of a guarantee of quality and 

e)   in the case of personal injury (loss of human life, physical injury or health impairment)

remains unaffected.

 

9.2  IPG Automotive guarantees the agreed quality and guarantees that the client can use the IPG Automotive Products without violating any third-party rights. The warranty for material defects does not apply to defects caused by IPG Automotive Products being wrongfully used in a hardware or software environment which does not comply with the requirements listed in the release notes, nor does it apply to changes and modifications made by the client to IPG Automotive Products to which the client was not authorized by law, by the contract, by these General Terms and Conditions or based on prior written approval issued by IPG Automotive.

The current release notes can be found on the following website in the client area:

https://ipg-automotive.com/support/client-area/installation-files/

 

9.3   The client must check the IPG Automotive Products for obvious defects immediately upon receipt and report any defects to IPG Automotive without delay; otherwise, any warranty for said defects well be excluded. The same applies when such a defect is discovered later. Section 377 of the German Commercial Code (HGB) applies.

 

9.4   In the case of a material defect, IPG Automotive may rectify the defect at its own discretion by either remedying it (“subsequent performance”) or by providing a substitute delivery. The substitute delivery involves the client receiving a new version of the IPG Automotive Products, unless this would lead to unreasonable impairment.

9.5   In cases of defects in title, IPG Automotive has the choice of either providing the client with a legally sound opportunity to use the IPG Automotive Product or remedying said defects such that third-party rights are no longer violated.

 

9.6  In the event that IPG Automotive fails twice to make the necessary subsequent performance or substitute delivery, the client’s right to reduce the purchase price or to withdraw from the contract at his/her own discretion remain unaffected. The client has no right to withdraw in the case of minor defects. If the client claims damages for the reimbursement of futile expenses, IPG Automotive is liable pursuant to Sections 9.8 and 9.9.

 

9.7  With the exception of damages claims, warranty claims on account of material defects lapse after one year. The liability claims in accordance with Sections 9.8 and 9.9 remain unaffected. If the warranty period is extended, the period of extension will be indicated explicitly.

 

9.8  IPG Automotive is only liable for damage in cases of intent or gross negligence. Further liability for indirect and/or consequential damage pertaining to the use, download, or distribution of IPG Automotive Products, or the impossibility to use them, is expressly excluded, including for lost profit and direct, indirect, special, consequential, incidental or punitive damage – irrespective of the theory of liability – even if IPG Automotive or its licensor was informed of the potential for such damage.

 

9.9  IPG Automotive is not subject to any obligations arising from any product liability claims. The client must indemnify and hold IPG Automotive harmless against all loss, liability, damage and expense claims which third parties make against IPG Automotive on the basis of product liability claims.

10. Force Majeure

Force majeure includes any unforeseeable and uncontrollable outside event or circumstance which could not be prevented or averted, even through the utmost care. Each Party will be released from their liability for non-performance of their contractual obligations if said non-performance is the result of force majeure and the proper performance of the contract is therefore made materially more difficult or otherwise unreasonable in whole or in part. Within the meaning of this agreement, force majeure also includes, but is not limited to: war, terrorism, sabotage, pandemics and natural disasters.

Each Party claiming force majeure agrees

a) to inform the other Party of the occurrence of force majeure in writing without delay, to describe the details of the event as well as to note its expected duration and impact on the performance of the contract;

b) to make every reasonable effort to render the contractual services irrespective of the force majeure, minimizing its impact;

c) to inform the other Party without delay in writing once the force majeure is no longer cause for impairment.

The target dates and deadlines for fulfilling the contractual obligations will be adjusted by mutual agreement or, if no mutual agreement can be reached, these will be automatically extended by a period corresponding to the duration of the force majeure plus a reasonable time for resuming the fulfillment of contractual obligations. Each Party is responsible for bearing losses or increases in costs induced by force majeure.

11. Data Protection

11.1  IPG Automotive collects and uses the client’s personal data exclusively in compliance with the new provisions laid out in the General Data Protection Regulation. To this end, personal data are always handled strictly confidentially and only used for a specific purpose. Personal data is only processed and stored for the period required to achieve the purpose of storage, or for the period prescribed by the European issuers of Directives or the European regulators or any other legislator of laws and provisions which apply to the data controller.

11.2  Whenever personal data processing is required and there is no legal basis for such processing, IPG Automotive will as a general principle seek the consent of the person concerned (“data subject”).

11.3  Non-personal data is only collected if the client accesses the IPG Automotive website or downloads data from it. These data will only be stored for reasons of data security as well as to be evaluated for internal statistical purposes and will only be stored for a limited duration of three months, after which they will be deleted. The process is fully anonymized.

11.4  Further information on the handling of personal data can be found on here.

12. Export Regulations

12.1  IPG Automotive Products, including technical data, may be subject to the German export control laws as well as the export and import regulations of other countries.

 

12.2  The client agrees to the strict compliance with these provisions.

12.3  IPG Automotive Products may not be downloaded in a country or otherwise exported or re-exported to a country on which Germany has imposed an embargo.

13. Applicable Law, Other Provisions

13.1  The contract is subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on the International Sale of Goods.

13.2  Should any provision in the contract and/or these contractual terms and conditions be or become ineffective, this will not affect the validity of the remaining provisions. The partially or wholly invalid provision must be replaced by a new provision whose commercial success is nearest that of the ineffective provision.

13.3  Amendments or supplements to the contract and/or these contractual terms and conditions will not be valid unless made in writing. This also applies to any amendments or supplements to the written form requirement itself.

14. Place of Jurisdiction

The place of jurisdiction for any disputes between IPG Automotive and the client arising from the individual contract or in connection with these General Terms and Conditions is Karlsruhe.