Products and Services Agreement

These General Terms govern Buyer’s use of the Products and constitute a binding contract between Buyer and ibml. Buyer’s use of any Products is at all times subject to the terms and conditions outlined in these General Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.

1. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings given to them below:
   • "Acceptance Date" shall have the meaning given to that term in the Standard Terms.
   • "Agreement" shall mean the Product and Services Agreement by and between the Parties, including any Modules selected in the Contract Terms.
   • "Authorized User" shall mean any of Buyer’s employees permitted to access and use the Software and/or Documentation pursuant to Buyer’s License under the Software License Terms or a Third-Party Software License.
   • "Confidential Information" shall have the meaning given to that term in the Confidentiality Terms.
   • "Documentation" shall mean ibml’s user manuals, handbooks, and installation guides relating to the Software installed by ibml on Buyer’s Equipment.
   • "Equipment" shall mean the items of equipment described in a Product Specification.
   • "Equipment Support Services" shall mean those maintenance and support services described in the Equipment Support Terms.
   • "EULA" shall mean a Licensor’s end-user software license agreement setting forth the terms and conditions of Buyer’s permitted use of Third-Party Software, whether on a standalone basis or incorporated in or integrated with an ibml Product.
   • "Feedback" shall mean any communications or materials suggesting or recommending changes to the Software or the Documentation, including without limitation, new features or functionality relating thereto.
   • "Installation Date" shall have the meaning given to that term in the Contract Terms.
   • "License" shall mean the Perpetual Software License and any Third-Party Software License, individually or collectively, as appropriate.
   • "License Agreement" shall mean a license agreement between ibml or one of its affiliates and Licensor pursuant to which Licensor grants ibml or its affiliate a license to use Third-Party Software.
   • "Licensor" shall mean any licensor of Third-Party Software that, pursuant to a License Agreement, has granted ibml or one of its affiliates a license to use the Third-Party Software or to market and sell the Third-Party Software.
   • "Module" or "Modules" shall mean these General Terms, the Contract Terms, the Standard Terms, the Software License Terms, the Software Support Terms, the Equipment Support Terms, and the Confidentiality Terms, individually or collectively as appropriate. For the avoidance of doubt, each reference in the Agreement to "Module" or "Modules" shall mean and include any Modules selected in the Contract Terms.
   • "Party" or "Parties" shall mean Buyer and ibml, individually or collectively as appropriate.
   • "Perpetual Software License" shall mean the perpetual software license granted under and subject to the Software License Terms.
   • "Price" shall have the meaning given to that term in the Standard Terms.
   • "Product" or "Products" shall mean Equipment, Software, and Services, individually or collectively, as appropriate.
   • "Services" shall mean those services described in a Product Specification or a Statement of Work.
   • "Shipping Point" shall have the meaning given to that term in the Standard Terms.
   • "Software" shall mean the software product(s) or program(s) described in a Product Specification, including any Third-Party Software, licensed to Buyer pursuant to the Software License Terms or the applicable Third-Party Software License.
   • "Software Support Services" shall mean those maintenance and support services described in the Software Support Terms.
   • "Statement of Work" shall mean a written statement of work that is subject to this Agreement, mutually agreed upon, and executed by the Parties for Services to be provided to Buyer by ibml.
   • "Support Services" shall mean the Equipment Support Services described in the Equipment Support Terms and the Software Support Services described in the Software Support Terms, individually or collectively as appropriate.
   • "Third-Party Software" shall mean all software of or relating to the Products that is not proprietary to ibml or its affiliates.
   • "Third-Party Software License" shall have the meaning given to that term in the Standard Terms.
   • "Voluntary OS Upgrade" shall mean any election by Buyer to upgrade or replace the standard operating system software utilized by ibml with the Equipment.
   • "Warranty" shall have the meaning given to that term in these General Terms.
   • "Warranty Period" shall have the meaning given to that term in these General Terms.
2. Representations and Warranties; Product Warranty.
   • The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery, improper assembly/installation, or defective instructions), unless otherwise specified below.
   • Each Party represents and warrants to the other Party that: (i) it is duly organized and validly existing under the laws of its jurisdiction; (ii) it has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; and (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of that Party, enforceable against that Party in accordance with its terms.
   • Each Party represents and warrants that: (i) it is in compliance with and shall comply with all applicable laws, regulations, and ordinances; and (ii) it has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
   • ibml warrants to Buyer that, during the Warranty Period, the Products will be free from material defects in material and workmanship and, if Buyer purchases a Software License, the Software will conform to the Documentation (the "Warranty").
   • The Warranty shall be for a period of one (1) year commencing on the date of delivery or, if acceptance is required, from the Acceptance Date (“Warranty Period”). The Warranty Period shall not apply to claims for damages by the Buyer arising from (i) injury to life, limb, or health, or (ii) from intentional or grossly negligent breaches of duty by ibml or its vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.
   • Buyer must carefully inspect Products immediately after delivery to Buyer (or to a third party designated by Buyer). If a defect to a Product becomes apparent upon delivery, inspection, or at a subsequent time, Buyer must immediately notify ibml of the defect in writing. In any case, apparent defects must be reported in writing within seven (7) working days of delivery of the Product, and with respect to defects not recognizable during the inspection, within seven (7) working days of discovery. If Buyer fails to carry out the proper inspection or reporting of defects, ibml’s liability for the defect not reported, not reported in a timely manner, or not reported properly is excluded in accordance with the statutory provisions.
   • ibml shall not be liable for a breach of the Warranty if: (i) the defect arises because Buyer failed to follow ibml’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product; or (ii) Buyer alters or repairs such Product without the prior written consent of ibml. If Buyer elects to purchase a Software License, the Warranty does not apply to the Software and shall become null and void if Buyer, any Authorized User, or any other person provided access to the Software by Buyer or any Authorized User, whether or not in violation of this Agreement: (x) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation; (y) modifies or damages the Software; or (z) misuses the Software, including any use of the Software other than as specified in the Documentation.
   • Subject to the Warranty conditions and disclaimers set forth in this Section, with respect to any such Product during the Warranty Period, ibml shall, in its sole discretion, either repair or replace such Product (or the defective part) or, with respect to any Software only, ibml, in its sole discretion, may elect to refund the Price paid for such Software, subject to Buyer’s ceasing all use of and, if requested by ibml, returning to ibml all copies of the Software. ibml may require Buyer to return any such Product to ibml’s place of business at ibml’s cost for purposes of conducting an examination of the Product. If ibml repairs or replaces the Product, the Warranty Period with respect to the repair or replacement will run for one (1) year from the date of Buyer’s receipt of the repair or replacement, but such Warranty shall be limited to such parts of the Product which have been repaired or replaced.
   • Except for the statutory warranty rights of Buyer as modified above, ibml gives no guarantee with a view to the Products, in particular any (i) warranty of merchantability; or (ii) warranty of fitness for a particular purpose. ibml makes no warranty of any kind that the Products or any results of the use thereof, will meet Buyer’s or any other person’s requirements, achieve any intended result, be compatible or work with any Product, system, or other Services. Any representations and warranties of or relating to Third-Party Software made to Buyer are made solely under the terms and conditions of Buyer’s Third-Party Software License. All Third-Party Software is provided “as is” and any representation or warranty of or concerning any Third-Party Software is strictly between Buyer and the Licensor.
3. Title and Risk of Loss.
   • Risk of loss for the Equipment passes to Buyer upon delivery of the Equipment to the carrier at the Shipping Point. Any insurance for Equipment desired by Buyer shall be the sole responsibility of Buyer.
   • ibml reserves title to the Equipment until full payment of all current and future claims arising from the business relationship. Until such time as final payment for the Equipment has been received by ibml, Buyer shall not, without the prior written approval of ibml: (i) move, assign, encumber, mortgage or permit any lien upon the Equipment, give up possession of any of the Equipment, or permit others to use the Equipment, or (ii) make or permit any alterations, repairs or adjustments to the Equipment except by ibml (or its authorized agent).
4. No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to ibml or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by ibml or its affiliates, whether relating to ibml’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and ibml or any of its affiliates, or otherwise.
5. Indemnification.
   • ibml Indemnification.
     • ibml shall indemnify, defend, and hold harmless Buyer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers ("Losses") incurred by Buyer resulting from any third-party claim, suit, action, or other proceeding ("Third-Party Claim") that Buyer’s use of the Products (excluding Third-Party Software) in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (an "Infringement Claim"), provided that Buyer promptly notifies ibml in writing of the Infringement Claim, cooperates with ibml, and allows ibml sole authority to control the defense and settlement of such Infringement Claim.
     • Buyer will notify ibml promptly after it determines that a Third-Party Claim may reasonably result in the indemnification of the Buyer pursuant to an Infringement Claim. Upon receipt of written notification in which Buyer demands that ibml defend an Infringement Claim, ibml shall take control of the defense and investigation of such claim and engage counsel to handle and defend the Infringement Claim, at ibml’s sole cost and expense, except that ibml shall not be responsible for any compromise or expense made or incurred by Buyer without ibml’s prior written consent.
     • Should the Product become the subject of an Infringement Claim, ibml may, at its option, (A) procure for Buyer the right to continue to use the affected portion of the Product as contemplated hereunder, (B) replace or modify the affected portion of the Product to make its use non-infringing, or (C) remove such Product from Buyer’s site. In the event of the removal of the Product from Buyer’s site, ibml shall refund to Buyer an amount equal to the purchase price paid for the Product, less a use fee for each month the Product was at Buyer’s site. The monthly use fee shall be computed by dividing the purchase price paid for the Product by thirty-six (36).
     • ibml’s obligation to indemnify Buyer for an Infringement Claim will not apply to the extent that the alleged Infringement Claim arises from: (A) use of the Products in combination with any products, materials, software, technology, hardware, or equipment supplied to Buyer by a person other than ibml or not authorized by ibml in writing; (B) modifications to the Products by or on behalf of any person other than ibml (unless authorized in writing by ibml); (C) use of the Products in a manner that does not materially conform with any usage specifications provided by ibml or use of any version of the Software other than the most current, unaltered version of the Software; (D) Third-Party Software; or (E) Products manufactured or modified to Buyer’s design or specification.
   • Buyer Indemnification. Buyer shall indemnify, defend, and hold harmless ibml and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "ibml Indemnitees") from and against any and all Losses incurred by ibml arising out of or resulting from any Third-Party Claim arising out of or occurring in connection with Buyer’s: (i) negligence or willful misconduct; (ii) use of the Products in a manner not authorized or contemplated by this Agreement; (iii) modifications to the Products not made or approved in writing by ibml; (iv) use of the Products in combination with data, software, hardware, equipment or technology not provided by ibml or authorized by ibml in writing; (v) use of any version of the Software other than the most current version of the Software delivered to Buyer; or (vi) breach of this Agreement, provided that Buyer may not settle any claim against an ibml Indemnitee unless ibml consents to such settlement in writing, and further provided that ibml will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
6. Limitation of Liability.
   • Subject to the Non-Excludable Damages, ibml shall not be responsible or liable for any consequential, indirect, or incidental damages, lost profits or revenues, or diminution in value, arising out of or relating to, and/or in connection with any breach of this Agreement, regardless of (i) whether such damagers were foreseeable, (ii) whether or not ibml was advised of the possibility of such damages, and (iii) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based.
   • For damage resulting from slight negligence, ibml shall only be liable in the case of (i) injury to life, body, and health, also caused by legal representatives or vicarious agents, or (ii) breach of a material contractual obligation. Material contractual obligations are those obligations which protect the legal positions of Buyer and which are material to the Agreement and which have to be granted to Buyer under the Agreement in terms of subject matter and purpose; material contractual obligations are also obligations whose fulfillment makes the due performance of the Agreement possible in the first place, where Buyer regularly relies on and may rely on in compliance with such obligations. Nothing in these General Terms shall exclude or limit ibml’s liability arising from the German Product Liability Act or intentional or grossly negligent acts or omissions. Each of the foregoing damages shall constitute, collectively, the "Non-Excludable Damages."
   • Subject to the Non-Excludable Damages, in no event will ibml’s aggregate liability arising out of or related to this Agreement exceed the total amounts paid to ibml under this Agreement for the Products and Support Services sold hereunder that are the subject matter of or are directly related to the cause of action.
7. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
8. Corrupt Practices. Neither Party shall perform any acts or make any payments in violation of any applicable anti-corruption or anti-bribery legislation of the United States of America (including, the US Foreign Corrupt Practices Act of 1977), Canada (including, the Criminal Code (Canada) and the Corruption of Foreign Public Officials Act (Canada)), the United Kingdom (including, the Bribery Act 2010), the European Union, or any other jurisdiction in which actions contemplated hereunder may be taken, in each case as such legislation may be amended from time to time.
9. • Entire Agreement. These General Terms, together with the other Modules and any other documents incorporated herein or therein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. There are no warranties, representations, or other agreements between the Parties in connection with the Products supplied hereunder except as specifically set forth in this Agreement. In the event of any inconsistency between the statements made in these General Terms, the other Modules, and any other documents incorporated herein or therein by reference, the following order of precedence governs: (i) first, these General Terms; (ii) second, the other Modules; and (iii) third, any other documents incorporated herein or therein by reference; provided, however, that the provisions contained in the Confidentiality Terms shall supersede any language to the contrary found in any other provision in the Agreement.
   • Each reference in this Agreement to "this Agreement," "the Agreement," "hereunder," "hereof," "herein," or words of similar meaning referring to the Agreement, and each reference in any selected Modules to "this Agreement," "the Agreement," or words of similar meaning referring to this Agreement mean and are a reference to the Agreement as a whole, including the selected Modules.
   • Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth in the Contract Terms. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section.
   • Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement (other than the payment of money due hereunder) will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, epidemics, pandemics, embargoes, export control laws and regulations, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities) (each, a "Force Majeure Event"). The delayed Party must notify the other Party promptly upon the occurrence of a Force Majeure Event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
   • Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
   • Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
   • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   • Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the Federal Republic of Germany, without giving effect to any choice or conflict of law provision or rule.
   • United Nations Convention. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto.
   • Choice of Forum. If the Buyer is an enterprise within the meaning of sec. 14 German Civil Code (BGB), a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Frankfurt am Main.
   • Assignment. Buyer may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ibml. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. ibml may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior written consent.
   • Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
   • Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that Buyer’s Acceptance and Warranty rights in this Agreement are the Buyer’s exclusive remedies if the Products are not free from material defects in material and workmanship or fail to conform to the Documentation.
   • No Third-Party Beneficiaries. Other than the ibml Indemnitees, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.