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Terms and Conditions

Icom Advanced Materials GmbH

§ 1 General

1. All deliveries and services provided by Icom Advanced Materials GmbH to the customer are exclusively subject to these General Terms and Conditions of Delivery and Service. Icom Advanced Materials GmbH does not recognize any conflicting, deviating, or supplementary terms and conditions of the customer unless we have expressly agreed to their validity in writing and by means of an duly signed acknowledgment. The Terms and Conditions of Delivery and Service of Icom Advanced Materials GmbH also apply without restriction if Icom Advanced Materials GmbH performs the delivery and service to the customer without reservation, even with knowledge of conflicting, deviating, or supplementary terms and conditions of the customer.
Our general terms and conditions of delivery and service also apply to future transactions with the customer.
Icom Advanced Materials GmbH reserves the right to amend these General Terms and Conditions of Delivery and Service, in whole or in part, at any time if necessary, particularly due to changes in legislation, case law, or factual circumstances. The contractual language is German. Any texts in other languages used before, during, or after the conclusion of the contract serve only to provide the customer with optimal information. They do not constitute a contractual basis and offer no basis for international private law. Any errors resulting from texts written in other languages are the responsibility of the customer.

2. These terms and conditions of delivery and performance apply only to legal entities under public law, special funds under public law and entrepreneurs within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB).

3. All agreements between Icom Advanced Materials GmbH and the customer for the execution of this contract are set forth in writing in this contract. The contracting parties undertake to confirm any oral agreements in writing without delay.

4. Business relationships between Icom Advanced Materials GmbH and its suppliers are governed by the currently valid purchasing conditions of Icom Advanced Materials GmbH, which are not part of these delivery conditions.

§ 2 Offer/Order/Contract Placement

1. Insofar as Icom Advanced Materials GmbH includes documents such as drawings, specifications, materials, samples, tools, models, etc., in its offers, Icom Advanced Materials GmbH reserves all ownership and copyright rights.

2. At the customer's request, Icom Advanced Materials GmbH will provide information and drawings that enable the customer to commission, use, and maintain the delivered item. The scope of this information and drawings will be agreed upon individually between the customer and Icom Advanced Materials GmbH. However, Icom Advanced Materials GmbH is not obligated to provide workshop drawings for the delivered item or for spare parts.

3. Illustrations, drawings, calculations, and other documents to which Icom Advanced Materials GmbH reserves ownership and copyright may not be reproduced or made accessible to third parties without the express written consent of Icom Advanced Materials GmbH. This applies in particular to written documents marked "confidential."

4. Icom Advanced Materials GmbH reserves the right to make design changes and other changes to technical data and performance characteristics, insofar as they serve technical progress.

5. Obvious errors, printing, calculation, spelling and computation errors are not binding for Icom Advanced.

6. Documents provided by the customer to Icom Advanced Materials GmbH remain the customer's property. Icom Advanced Materials GmbH is not entitled to use these documents without the other party's consent, except for the preparation of the quotation, the development, construction, assembly, and commissioning of the contractual object.

§ 4 Dates/Deadlines/Deliveries

  1. Compliance with deadlines and dates by ICOM Advanced Materials GmbH is subject to the timely receipt of all performance and delivery components to be provided by the Customer, necessary approvals and releases, in particular compliance with the agreed terms of payment and other obligations.

 

  1. A delivery period shall commence at the earliest upon conclusion of the contract. If subsequent amendments to the contract are agreed, a new delivery date or delivery period must be agreed at the same time if necessary.

 

  1. The delivery date / delivery period stated in the order confirmation of ICOM Advanced Materials GmbH is an approximate date or period stated with the usual, reasonable care and is therefore not binding, unless a firm deal has been expressly agreed in writing. If ICOM Advanced Materials GmbH can foresee in the course of the execution of the order that compliance with the date/deadline is jeopardized due to a lack of information from the customer, ICOM Advanced Materials GmbH will the customer's attention to this. ICOM Advanced Materials GmbH reserves the right to plead non-performance of the contract.

 

 

  1. ICOM Advanced Materials GmbH is not responsible for exceeding a delivery period or the delivery date if this originates from the sphere of the customer or was not foreseeable for ICOM Advanced Materials GmbH, such as force majeure (§ 11), e.g:

    • If the information required for the execution of the order is not received by ICOM Advanced Materials GmbH in good time or if it  subsequently changed by the customer; if payment deadlines are not met, letters of credit are opened too late or

    • required import licenses are not received by ICOM Advanced Materials GmbH on time;

    • If hindrances occur which ICOM Advanced Materials GmbH cannot avert despite exercising due care, irrespective of whether these occur at ICOM Advanced Materials GmbH, at the customer or at a third party. Such hindrances are in particular events of force majeure, such as epidemics, mobilization, war, riots, significant operational disruptions, accidents, labour disputes, late or faulty delivery of the required raw materials, semi-finished or finished products, rejection of important workpieces, official measures or omissions, natural disasters. Delivery periods shall be extended appropriately in these cases - even within any existing delay in delivery.

 

 

  1. The delivery period/deadline shall be deemed to have been met if the purchased item has left the factory or readiness for dispatch has been notified by the time of its expiry. If a non-binding delivery date or a non-binding delivery period is exceeded by four weeks, the customer may request ICOM Advanced Materials GmbH in writing to deliver within a reasonable period of time. Upon expiry of this request, ICOM Advanced Materials GmbH will be in default.

 

  1. ICOM Advanced Materials GmbH will only be liable for damages resulting from a delay in delivery by ICOM Advanced Materials GmbH if a corresponding grace period has been granted and ICOM Advanced Materials GmbH has been notified of the delay in writing by the customer prior to the final delivery and has been informed of the liability claims and their possible amount. The limitation of liability pursuant to § 12 applies, whereby the liability is limited to 0.5% of the respective delivery value per completed week of delay in delivery, but to a maximum of 5% of the respective delivery value as a lump sum. ICOM Advanced Materials GmbH reserves the right to prove to the customer that as a result of the delay in delivery the customer has suffered no damage or less damage than that claimed by the customer.

However, in the case of binding partial deadlines/delivery periods agreed in writing with a final deadline, the above provision on lump-sum compensation for default shall only once if the final deadline or last partial deadline/delivery period with a grace period set could not be met. Compliance with such a final deadline cures any previous default, and the service is deemed to have been provided in full without default.

The aforementioned liquidated damages must be claimed by the customer at the latest upon payment of the relevant invoice amount, failing which they shall be precluded.

  1. Further statutory claims and rights of the customer due to a delay in delivery, e.g. withdrawal after unsuccessful setting of a grace period with threat of refusal, remain unaffected.

Upon request, the customer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or whether he insists on delivery.

The claim to fulfillment is excluded in the event of the unsuccessful expiry of the grace period with threat of refusal.

  1. Unless otherwise in the order confirmation, delivery/service is "ex

ex works" (EXW) according to INCOTERMS 2010 is agreed. If ICOM Advanced Materials GmbH is obliged to provide the delivery/service other than "ex works", the customer is obliged to carry out the necessary preparatory work and preparations in good time to ensure the agreed type of shipment.

 

Partial and early deliveries by ICOM Advanced Materials GmbH are permissible insofar as they are reasonable for the customer

§ 5 Packaging

Icom Advanced Materials GmbH packages the goods at its own discretion in a commercially acceptable manner or, if agreed upon, according to the respective packaging instructions. The customer bears the costs.

Icom Advanced Materials GmbH does not undertake the return of packaging unless otherwise agreed. Unless otherwise agreed with Icom Advanced Materials GmbH, the customer is responsible for the disposal of the packaging at their own expense.

§ 6 Place of performance/Transfer of risk/Acceptance/Acceptance

1. The place of performance for deliveries / services of Icom Advanced Materials GmbH is – unless otherwise expressly agreed in writing – the registered office of the respective contracting Icom Advanced Materials GmbH branch in the Federal Republic of Germany that provides the service characteristic of the contract.

2. The customer shall accept or take delivery of the goods immediately after prior written request by Icom Advanced Materials GmbH at the place of performance.

3. Shipping by Icom Advanced Materials GmbH will only take place if expressly requested by the customer. Unless otherwise agreed in writing, shipping and transport will be at the customer's expense and risk, at the discretion of Icom Advanced Materials GmbH. In this case, Icom Advanced Materials GmbH will insure the freight at the customer's request and expense. Unless otherwise stated in the order confirmation, delivery is agreed to be "ex works" (EXW) in accordance with INCOTERMS 2010.

4. Unless acceptance has already taken place, all risk passes to the buyer at the latest upon handover of the goods to the freight forwarder or carrier. This also applies to partial deliveries and carriage-paid deliveries, CIF, FOB and transport clauses, in accordance with INCOTERMS 2010. When transport is carried out by our vehicles and employees, all risk passes to the buyer upon completion of the loading process.

5. In the event of a delivery delay for which Icom Advanced Materials GmbH is not responsible, all risk passes to the buyer on the day the buyer receives notification of readiness for shipment.

6. Point 3 also applies accordingly in the case of readiness for shipment for an agreed pre-acceptance of the delivery item.

7. Furthermore, a preliminary or final acceptance is deemed to have been granted if, despite written
Icom Advanced Materials GmbH will notify the customer that the goods are ready for acceptance if a preliminary or final acceptance date is not arranged by the customer within 2 weeks of the date of the notification of readiness for acceptance, or if, in the case of delivery, the delivered item has already been put into operation by the customer.

8. In the event of the customer's default of acceptance, Icom Advanced Materials GmbH is entitled to demand performance or, after setting a reasonable grace period, to withdraw from the contract. If Icom Advanced Materials GmbH insists on performance, it may store the goods at the customer's expense and risk. However, if Icom Advanced Materials GmbH stores the goods itself, it is entitled, without being required to insure them, to charge the customer a storage fee of 0.5% of the gross invoice value per commenced week, starting on the tenth day after the default of acceptance. Icom Advanced Materials GmbH is not obligated to release the stored goods before the accrued storage fees and other delivery claims have been settled, even if other payment agreements may have previously existed.

9. In the event of default of acceptance by the customer, Icom Advanced Materials GmbH is entitled, irrespective of any previously agreed payment arrangements, to declare its contractual claims immediately due and payable.

§ 7 Payments

1. Unless expressly agreed otherwise, payments are to be made by the customer to the payment office of Icom Advanced Materials GmbH, in EURO, within 30 days of the invoice date, without deductions. If the customer fails to pay by this date, default occurs without further notice. If the customer is domiciled outside the Federal Republic of Germany, Icom Advanced Materials GmbH is alternatively entitled to have the customer's bank open an irrevocable, confirmed documentary letter of credit in favor of Icom Advanced Materials GmbH. The customer's bank account must be international and have an excellent reputation.

2. If the customer defaults on payment, Icom Advanced Materials GmbH is entitled, in accordance with statutory provisions, to claim default interest at a rate of 8 percentage points above the base interest rate per annum, as well as any further damages. If the customer fails to pay on the due date and is in default, Icom Advanced Materials GmbH is entitled to default interest at a rate of 2 percentage points above the base interest rate, but at least 5% per annum.

3. If, after conclusion of the contract, Icom Advanced Materials GmbH becomes aware of facts, in particular payment defaults by the customer regarding previous deliveries, which, according to sound business judgment, indicate that the payment claim is jeopardized due to a lack of solvency, Icom Advanced Materials GmbH is entitled to demand immediate payment of outstanding amounts and to refuse its own performance until payment is made or security for it is provided. If payment is not made or security is not provided within a period set by Icom Advanced Materials GmbH, Icom Advanced Materials GmbH is entitled to withdraw from the contract and claim damages. Partial deliveries already made are due for immediate payment, irrespective of any withdrawal. This does not affect any other rights to which Icom Advanced Materials GmbH is entitled by law.

4. The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed, or have been acknowledged by Icom Advanced Materials GmbH. The customer is also not entitled to a right of retention due to disputed counterclaims.

5. Without the prior written consent of Icom Advanced Materials GmbH, the customer is not entitled to assign or otherwise dispose of its claims against Icom Advanced Materials GmbH, in whole or in part. Collection of partial amounts by third parties is excluded.

 

6. Icom Advanced Materials GmbH has the right to assign its claims against the customer to a third party.

 

7. If the customer is in default of payment, the customer shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against him outside of Germany.

§ 8 Retention of Title

  1. The delivery items remain the property of ICOM Advanced Materials GmbH (reserved goods) until all claims to which ICOM Advanced Materials GmbH is entitled from the business relationship with the customer have been settled. If a current account relationship exists, the retention of title refers to the recognized balance.

 

  1. If, according to the applicable law, a retention of title as in the Federal Republic of Germany or a comparable regulation in the country of the customer is not effective, not

 

 

 

ICOM Advanced Materials GmbH may demand a corresponding bank guarantee or similar security in the amount of the corresponding order upon order confirmation.

At the request of ICOM Advanced Materials GmbH, the customer must fully support ICOM Advanced Materials GmbH in its efforts to protect the title to the delivery item in the country concerned or otherwise ensure sufficient security for the interests of ICOM Advanced Materials GmbH in the payment.

 

  1. All processing of the goods subject to retention of title is carried out by the customer on behalf of ICOM Advanced Materials GmbH. If the reserved goods are processed with other items not belonging to ICOM Advanced Materials GmbH, ICOM Advanced Materials GmbH will acquire co-ownership of the new item in the ratio of the invoice value (including VAT) of the reserved goods to the value of the other items at the time of processing. If the goods subject to retention of title are combined with other movable items to form a single item or if the other item is to be regarded as the main item, the customer shall transfer co-ownership to ICOM Advanced Materials GmbH on a pro rata basis insofar as the main item belongs to him.

The customer also assigns to ICOM Advanced Materials GmbH the claims to secure its claims against the customer which arise against a third party as a result of any combination of the purchased item with a property.

The customer shall retain ownership or co-ownership for ICOM Advanced Materials GmbH. In all other respects, the same shall apply to the item created by processing or combination as to the reserved goods.

  1. The customer is entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to ICOM Advanced Materials GmbH all claims and security interests in the amount of the final invoice amount (including VAT) of his claim arising from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall note the assignment in his books. The customer remains authorized to collect this claim even after the assignment. ICOM Advanced Materials GmbH's authority to collect the claim itself remains unaffected by this. However, ICOM Advanced Materials GmbH undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening composition or insolvency proceedings has been filed and payments not been suspended. If this is the case, however, ICOM Advanced Materials GmbH may demand that the customer ICOM Advanced Materials GmbH of the assigned claims and their debtors provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

 

  1. The customer is obliged to handle the reserved goods with care, to store them separately from other goods and to insure them adequately at his own expense against fire, water and theft at replacement value and to provide ICOM Advanced Materials GmbH with evidence of this insurance cover on request. The customer must carry out any necessary maintenance and inspection work in good time at his own expense.

  2. The customer must inform ICOM Advanced Materials GmbH immediately of any enforcement measures taken by third parties against the reserved goods, handing over the documents necessary for an intervention. This also applies to impairments of any other kind. The costs of extrajudicial efforts to release and recover the goods shall be borne by the customer. This also applies to the costs of a justified judicial intervention if this cannot be recovered from the third party.

 

  1. In the event of breach of contract and culpable breach of contractual obligations by the customer, in particular in the event of default in payment, ICOM Advanced Materials GmbH is entitled to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace set for the customer and to demand the return of the reserved goods. The statutory provisions on the dispensability of setting a grace period remain unaffected. ICOM Advanced Materials GmbH is also entitled to

 

ICOM Advanced Materials GmbH is entitled to withdraw from the contract if an application is made to open insolvency proceedings against the customer's assets. The taking back of the reserved goods by ICOM Advanced Materials GmbH constitutes a withdrawal from the contract. For the purpose of repossession, ICOM Advanced Materials GmbH is entitled to record or have recorded the inventory and condition of the goods subject to retention of title and to enter the premises of the customer for this purpose and for the purpose of repossession. The costs of collection and repossession shall be borne by the customer.

  1. If the realizable value of the existing securities exceeds the claims to be secured by more than 20%, ICOM Advanced Materials GmbH is obliged to release securities at the request of the customer at the discretion of ICOM Advanced Materials GmbH. The customer is obliged to provide further securities at the request of ICOM Advanced Materials GmbH if the realizable value of the securities already provided by him is less than the amount of the claims of ICOM Advanced Materials GmbH to be secured.

§ 9 Assembly

Assembly or machine setup by Icom Advanced Materials GmbH will only be carried out by special written agreement and under the special assembly conditions.

§ 10 Warranty

  1. ICOM Advanced Materials GmbH warrants that the delivery item has the agreed quality at the time of transfer of risk; this quality is measured exclusively according to the specific agreements made between the parties on the properties, features and performance characteristics of the goods according to the order confirmation.

  2. It is not the intention of ICOM Advanced Materials GmbH, and the contract between the parties is not designed to assume a warranty obligation (guarantee) for the quality of the delivery item vis-à-vis the customer that goes beyond the quality agreement according to clause 1.

Any reference to DIN or other comparable standards serves only to describe the goods and does not constitute a guarantee.

 

  1. In accordance with section 2, statements in product information, price lists and other information material provided to the customer by ICOM Advanced Materials GmbH are in no way to be understood as such guarantees for a special quality of the delivery item.

  2. ICOM Advanced Materials GmbH accepts no liability for damage caused by unsuitable or improper use, faulty assembly, commissioning or repair of the delivery item by the customer or a third party commissioned by him, by modifications to the delivery item by the customer or a third party commissioned by him without the written consent of ICOM Advanced Materials GmbH, natural wear and tear, incorrect or negligent handling, the use of unsuitable operating materials or replacement materials, defective construction work or unsuitable building ground on the part of the customer or chemical, electro-chemical or electrical influences, insofar as ICOM Advanced Materials GmbH is not responsible for these. Furthermore, ICOM Materials GmbH accepts no liability for defects caused by non-compliance with the instructions for processing, use and operation. If the delivery is made according to drawings, specifications, samples etc. of the customer or third parties, the customer assumes the risk of suitability for the intended use, unless ICOM Advanced Materials GmbH expressly confirms in writing the suitability of the delivery items for this use.

 

  1. ICOM Advanced Materials GmbH is liable for damage to the delivery item which occurs before the transfer of risk to the customer, unless the customer is responsible for the damage or it is based on a defect in the material provided by the customer or on instructions issued by the customer for the execution.

 

 

 

  1. The prerequisite for claims for defects is that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code). The customer must give written of obvious defects without delay, at the latest within one week after handover of the goods or prior acceptance of the deliveries and services. Hidden defects must be reported in writing immediately after discovery.

 

  1. ICOM Advanced Materials GmbH may, at its own discretion and at its own expense, demand that the customer sends or keeps available the rejected delivery to ICOM Advanced Materials GmbH for inspection or subsequent performance. The customer has to reimburse ICOM Advanced Materials GmbH for the costs incurred by the complaint if it turns out that the delivery or service does not contain a defect for which ICOM Advanced Materials GmbH is liable.

 

  1. ICOM Advanced Materials GmbH is entitled, at its own discretion, to replace or repair defective delivery items. When choosing the type of subsequent performance, ICOM Advanced Materials GmbH must take into account the nature of the defect and the legitimate interests of the customer. ICOM Advanced Materials GmbH shall bear the expenses necessary for the purpose of subsequent performance. ICOM Advanced Materials GmbH is not liable for any additional costs arising from the fact that the goods have been transported to a place other than the place of performance, unless such transportation is in accordance with the intended use of the goods.

 

  1. Should subsequent performance be impossible or disproportionate for ICOM Advanced Materials GmbH or fail twice after a reasonable period of time, the customer may, at his discretion, reduce the price, withdraw from the contract or claim damages. If the customer withdraws from the contract, he is not entitled to any additional claim for damages due to the defect. If only part of the delivery is defective, the customer may only withdraw from the entire contract if it can prove that it has no use for the remaining part of the delivery and service. If the customer chooses compensation, the goods shall remain with him if this is reasonable. Damages shall be limited to the difference between the purchase price and the value of the defective goods, unless ICOM Advanced Materials GmbH is responsible for the breach of contract due to fraudulent intent.

 

  1. If the customer would be entitled by law (§ 637 BGB) to remedy the defect himself or have it remedied by a third party at the expense of ICOM Advanced Materials GmbH after the unsuccessful expiry of a reasonable period set by him for subsequent performance, the customer is only entitled to exercise this right after timely written notification to ICOM Advanced Materials GmbH and corresponding information about the expected costs.

  2. The customers can only claims and rights due to a defect in the delivery items within a warranty period of 12 months from the transfer of risk. This shall not apply to claims and rights for the law prescribes longer periods (five years) for buildings and items for buildings (building materials) pursuant to Section 438 (1) No. 2 BGB and for buildings and related planning and monitoring services pursuant to Section 634 a (1) No. 2 BGB.

 

  1. The customer's right of recourse against ICOM Advanced Materials GmbH exists only to the extent that the customer has not made any agreements with his customer which go beyond the statutory mandatory claims for defects. With regard to the scope of the customer's right of recourse against ICOM Advanced Materials GmbH, the above points 4-11 apply accordingly, in addition to § 12.

§ 11 Force Majeure

  1. In cases of force majeure and other unforeseeable or unavoidable damaging events for which ICOM Advanced Materials GmbH is not responsible, in particular unrest, armed conflict, terrorism, insurrection, embargo, seizure or restrictions on energy consumption, the delivery period shall be extended appropriately by the duration of the disruption plus a reasonable start-up time, insofar as these disruptions can be proven to have a significant influence on the delivery of the goods. This also applies if these circumstances occur at the suppliers of ICOM Advanced Materials GmbH.

 

  1. ICOM Advanced Materials GmbH will the customer immediately and in writing of the occurrence and end of such a circumstance. If the disruption lasts longer than six months after the originally agreed delivery period expired, either party may withdraw from the contract. The withdrawal shall extend to the part of the contract not yet fulfilled, unless it can be proven that the partial deliveries and services rendered are unusable for the customer.

 

  1. If force majeure prevents the customer from fulfilling its contractual obligations, it must compensate ICOM Advanced Materials GmbH for the costs incurred in securing and protecting the delivery item.

§ 12 Limitation of Liability

The above paragraphs and these Terms and Conditions of Delivery and Service conclusively contain the liability and warranty of ICOM Advanced Materials GmbH for the deliveries, services and obligations arising from the order and exclude other warranty claims and claims for damages of any kind and regardless of the legal nature of the asserted claim, in particular for breach of duty arising from the contractual obligation, from tort and for claims for compensation for loss of profit or for other financial losses of the customer, such as from loss of production of the customer or its customers. This also applies if the customer demands compensation for futile expenses instead of a claim for damages in lieu of performance.

This and any other limitation of liability contained in these Terms and Conditions of Delivery and Service shall not apply in the event of the assumption of a guarantee or a procurement risk, for liability under the Product Liability Act, for liability for damages arising from culpable injury to life, limb, health or material contractual obligations. In the event of culpable breach of material contractual obligations, ICOM Advanced Materials GmbH shall be liable - except in cases of intent, gross negligence and liability for damages resulting from injury to life, limb or health - only for reasonably foreseeable damage typical of the contract.

This does not a change in the burden of proof to the detriment of the customer. This and any other limitation of liability in these Terms and Conditions of Delivery and Service shall also apply to the personal liability of the employees, legal representatives and vicarious agents of ICOM Advanced Materials GmbH.

§ 13 Special provisions for software licensing

  1. The customer guarantees that the reports, plans, concepts, drawings, lists, analyses and calculations produced by ICOM Advanced Materials GmbH within the scope of the order will only be used for its own and the contractually intended purposes and will not be published beyond the scope of the contract. Insofar as work results are copyrightable, ICOM Advanced Materials GmbH remains the author.

 

  1. Insofar as the deliveries and services of ICOM Advanced Materials GmbH include the granting of exploitation and usage rights, this granting shall only take place to the extent that this has been agreed for the order or results from the recognizable circumstances and the contractual purpose of the orders.

 

  1. If services and work results of third parties are to be used for the deliveries and services of ICOM Advanced Materials GmbH, ICOM Advanced Materials GmbH will acquire their rights of use to the extent described in the preceding paragraph and transfer them to the customer, insofar as this is necessary for the order. If it is not possible to acquire the rights of use to this extent or if there are restrictions on the rights of use or other rights of third parties, ICOM Advanced Materials GmbH will inform the customer of this. The customer undertakes to observe these restrictions - also in the event of resale to third parties - and to indemnify and hold ICOM Advanced Materials GmbH harmless in this respect. This also applies to the costs of out-of-court legal defense.

 

  1. If a third party asserts claims against the customer due to the infringement of industrial property rights or copyrights (hereinafter referred to as "property rights") by the goods and services supplied by ICOM Advanced Materials GmbH and thereby significantly impairs or prohibits the contractual use of the products, ICOM Advanced Materials GmbH will - at its option and expense - either modify or replace these products so that they no longer infringe the property right but still essentially comply with the agreed specifications or otherwise indemnify the customer against the license fees payable to the third party. If this is not possible for ICOM Advanced Materials GmbH due to unreasonable conditions, ICOM Advanced Materials GmbH will take back the respective products against reimbursement of the purchase price paid, less any compensation use.

 

  1. Prerequisites for the liability of ICOM Advanced Materials GmbH according to the above clause 4. are the immediate, written notification of ICOM Advanced Materials GmbH by the customer with regard to such an alleged infringement of property rights, the non-acknowledgment of the same as well as any related dispute, whether in or out of court, only to be conducted in consultation with ICOM Advanced Materials GmbH. Should the customer discontinue the use of such a product for damage-reducing or other important reasons, he is obliged to do so with the unambiguous proviso that this is not associated with any acknowledgement of an infringement of property rights.

  2. If the customer is for the infringement of property rights, the above claims are excluded in accordance with point 4. with additional reference to point 3.

 

  1. ICOM Advanced GmbH is not obliged to secure any rights of use and exploitation for services and works provided by the customer, for services and deliveries manufactured according to drawings, models or other specifications of the customer or third parties, or for unforeseeable use or changes/composition of its services or delivered products by/with products not belonging to ICOM Advanced Materials GmbH, and ICOM Advanced Materials GmbH is not liable for the infringement of third-party property rights. In this respect, the customer is obliged to indemnify and hold ICOM Advanced Materials GmbH harmless against claims by third parties, including the costs of out-of-court legal defense.

 

  1. Further claims of the customer due to an infringement of third-party property rights are excluded - without prejudice to the right of withdrawal and the relevant limitations of liability of this contract, in particular in § 12 thereof.

§ 14 Other copyrights and rights of use

  1. The customer warrants that the reports, plans, concepts, drawings, lists, analyses and calculations produced by ICOM Advanced Materials GmbH within the scope of the order will only be used for its own and the contractually intended purposes and will not be published beyond the scope of the contract. Insofar as work results are copyrightable, ICOM Advanced Materials GmbH remains the author.

 

 

 

  1. Insofar as the deliveries and services of ICOM Advanced Materials GmbH include the granting of exploitation and usage rights, this granting shall only take place to the extent that this has been agreed for the order or results from the recognizable circumstances and the contractual purpose of the orders.

  2. If services and work results of third parties are to be used for the deliveries and services of ICOM Advanced Materials GmbH, ICOM Advanced Materials GmbH will acquire their rights of use to the extent described in the preceding paragraph and transfer them to the customer, insofar as this is necessary for the order. If it is not possible to acquire the rights of use to this extent or if there are restrictions on the rights of use or other rights of third parties, ICOM Advanced Materials GmbH will inform the customer of this. The customer undertakes to observe these restrictions - also in the case of resale to third parties - and to indemnify and hold ICOM Advanced Materials GmbH harmless in this respect. This also applies to the costs of out-of-court legal defense.

 

  1. If a third party asserts claims against the customer due to the infringement of industrial property rights or copyrights (hereinafter referred to as "property rights") by the goods and services supplied by ICOM Advanced Materials GmbH and thereby significantly impairs or prohibits the contractual use of the products, ICOM Advanced Materials GmbH will - at its option and expense - either modify or replace these products so that they no longer infringe the property right but still essentially comply with the agreed specifications or otherwise indemnify the customer against the license fees payable to the third party. If this is not possible for ICOM Advanced Materials GmbH due to unreasonable conditions, ICOM Advanced Materials GmbH will take back the respective products against reimbursement of the purchase price paid, less any compensation use.

 

  1. Prerequisites for the liability of ICOM Advanced Materials GmbH according to the above clause 4. are the immediate, written notification of ICOM Advanced Materials GmbH by the customer with regard to such an alleged infringement of property rights, the non-acknowledgment of the same as well as any related dispute, whether in or out of court, only to be conducted in consultation with ICOM Advanced Materials GmbH. Should the customer discontinue the use of such a product for damage-reducing or other important reasons, he is obliged to do so with the unambiguous proviso that this is not associated with any acknowledgement of an infringement of property rights.

  2. If the customer is for the infringement of property rights, the above claims are excluded in accordance with point 4. with additional reference to point 3.

 

  1. ICOM Advanced GmbH is not obliged to secure any rights of use and exploitation for services and works provided by the customer, for services and deliveries which are manufactured according to drawings, models or other information provided by the customer or third parties, or for unforeseeable use or changes/composition of its services or delivered products by/with products not belonging to ICOM Advanced Materials GmbH, and ICOM Advanced Materials GmbH is not liable for the infringement of third-party property rights. In this respect, the customer is obliged to indemnify and hold ICOM Advanced Materials GmbH harmless against claims by third parties, including the costs of out-of-court legal defense.

 

  1. Any further claims of the customer due to an infringement of third-party property rights are excluded - notwithstanding the right of withdrawal and the relevant limitations of liability of this contract, in particular in § 12 thereof.

§ 15 Confidentiality

The customer is obliged to treat all information, know-how and other business secrets obtained from or via ICOM Advanced Materials GmbH as strictly confidential and not to pass on, reproduce or otherwise make available any information, documents/documentation, program descriptions, drawings, sketches or other documents to third parties without the express written consent of ICOM Advanced Materials GmbH and to impose these obligations in full on employees, staff, assistants, commissioned persons or companies affiliated in any way whatsoever.

Final Provisions

  1. Should individual provisions of the purchase order or these General Terms and Conditions of Delivery and Service be or become invalid, this shall not affect the validity of the remaining provisions.

 

  1. This contract and all legal relationships shall be governed exclusively by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws (IPR) is excluded.

Unless otherwise agreed, the exclusive place of jurisdiction is Bad Hersfeld in the Federal Republic of Germany. However, ICOM Advanced Materials GmbH is also entitled to sue the customer at any other general or special place of jurisdiction.

If the customer is domiciled outside the Federal Republic of Germany, ICOM Advanced Materials GmbH shall also be entitled, at its option, to have disputes arising out of or in connection with this contract finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, by one or more arbitrators appointed by the said Rules, without recourse to the ordinary courts of law.

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