I. General Provisions

§ 1 Scope of Application

(1) These Terms for Sale, Delivery and License (“Terms”) shall be applicable to all sales and/or deliveries of hardware- and software-products (“Products”) and services such as consultancy, training and support (“Services” and software licences) of IGEL Technology Limited (“IGEL”) made or rendered to any natural persons or legal entities, including but not limited to corporations or other legally recognized entities (“Customer”). In these Terms, headings and bold type text are for convenience only and shall not affect interpretation.

(2) These Terms form the basis of all commercial contracts between IGEL and the Customer.

(3) IGEL does not accept any general terms of trade of the Customer.  Any terms of trade of a Customer are hereby explicitly rejected and not made part of any contract between IGEL and the Customer, unless IGEL has approved the application of the Customer’s terms explicitly and in writing prior to the commencement of any contract. These Terms apply exclusively when IGEL starts performance of a particular contract despite knowledge of a Customer’s terms of trade, whether or not they are contradictory, conflicting or different from these Terms.

(4) These Terms will apply for all future transactions between IGEL and Customers, even if IGEL does not explicitly indicate on each occasion that these Terms shall apply.  These Terms shall apply until IGEL publishes new terms and informs Customer thereof. The incorporation of any new or different terms into the business relationship between IGEL and the Customer becomes effective upon IGEL providing the Customer with the new Terms and specifying their applicability.

(5) No modification of these Terms shall be valid and effective, unless approved by IGEL’s Managing Director in writing and prior to any transaction involving different terms.

§ 2 Offers and Conclusion of Contracts

(1) Communications in the form of offers by IGEL are always non-binding invitations to the Customer to make a binding offer (so-called “invitatio ad offerendum”), unless it is indicated in writing by IGEL that the communication by IGEL is to be considered a binding offer. A binding agreement may also be formed when IGEL confirms explicitly and in writing a specific order of a Customer or commences performance of a Service or delivery of a Product. Each Customer hereby confirms that each written order/offer shall be binding (as a “firm offer” pursuant to Florida Statutes, Section 672.205) and may be accepted by IGEL for at least two] weeks, or such longer period as the parties may agree in writing. 

(2) IGEL’s written confirmation of a Customer’s order/offer and the terms of such confirmation shall be conclusive as to the content of any contract between IGEL and a Customer, as far as the Products or Services to be delivered or provided and the specific terms of the contract are concerned. Collateral agreements must always be approved in the form provided in § 21, Sec. 4 (final clauses) of these Terms.

(3) IGEL reserves all rights, in particular the ownership and copyright, in any preliminary estimate of costs, designs, plans, specifications or specific technical documentation (“Confidential Information”), which IGEL provides to a Customer before or after the formation of a contract for the sale or delivery of Products or Services. Without prior written approval of IGEL a Customer is not allowed to provide, to copy, to duplicate, to deliver or otherwise to give any Confidential Information to third parties. All Confidential Information, together with all copies and extracts, must be returned to IGEL immediately upon request.

(4) No waiver of any of these Terms shall constitute a permanent waiver by IGEL of those Terms. In the event of special provisions, applicable to and agreed for a particular order, those special provisions shall have no application to subsequent or other orders.

(5) The Customer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving IGEL all necessary information in relation to the system, including its environment of use and intended usage, within a sufficient time to enable IGEL to perform the contract in accordance with its terms.

(6) The quantity, quality and description of and any specification for the products and services shall be those set out in IGEL’s acknowledgement of order.

§ 3 Price

(1) All prices announced and published by IGEL, including processing and printing expenses, unless otherwise agreed by the parties, are valid “net ex works, South Florida warehouse – Ft. Lauderdale, Florida, USA” in terms of §21 Sec. 2 (final clauses) of these Terms, excluding the expenses for packing, loading, insurance (in particular transport insurance), duties and taxes, transport costs and value added tax.  This provision also applies to §4 of these Terms.

(2) All prices are stated and payable in United States Dollars unless another currency is explicitly stated in IGEL’s confirmation of the order.

(3) Notwithstanding the acceptance of a Customer order at a given price, IGEL reserves the right to increase its prices applicable to any unfulfilled contract with the Customer at any time prior to the final delivery or performance, in order to reflect currency fluctuations and increases in, including but not limited to, its suppliers’ prices, raw material costs and its internal costs.

§ 4 Foreign Trade

(1) In the event of deliveries to foreign countries these Terms shall be applicable together with the “International Commercial Terms” (“Incoterms”) published by the International Chamber of Commerce in the then current version, provided that in the confirmation of the order, respectively in the binding offer, IGEL refers to one of the official Incoterms (e.g. by using “cif”, “ex work”, “fob”, etc).

(2) Import duties, fees for consultation and any other or different levies/taxes/fees based on laws and regulations of the country of destination are generally not included in the published prices of IGEL (see the simultaneously applicable § 3 Sec. 1 of these Terms) but the Customer shall be liable for them. If excise taxes are explicitly included in the price, then any increase in such included taxes shall lead to an increase in the overall price accordingly.

(3) IGEL is only obliged to comply with foreign regulations for packing, weighing and duties, if the Customer provided IGEL with detailed information for that in advance.

§ 5 Permission for Export and Import

The delivered Products and technical know-how of IGEL are designated exclusively for use and physical presence in the country of destination as indicated by the Customer. The re-exportation of Products specified in the contract – individually or collectively – is governed exclusively by the regulations for foreign trade of the Federal Republic of Germany, respectively by the regulations of the country of destination agreed with the Customer. For the delivery of Products which are subject to export or distribution restrictions, the specific terms and regulations for export (for e.g. embargo) governing the manufacturer shall be applicable in addition to these Terms. The Customer is obliged to inform itself autonomously about the corresponding regulations, namely for the German terms at the Federal Office For Export, 65760 Eschborn/Taunus, the US terms at the US- Department of Commerce, OEA, Washington DC 20230, and for the UK terms at the Department for Trade and Industry (DTI) London.  Irrespective of whether the Customer has indicated a definite place of destination for the Products, it is always incumbent upon the Customer to obtain the required permission from the competent authority for foreign trade before the exportation of the Products. The Customer is solely responsible for the compliance with the applicable regulations by the ultimate customer.

II. Contractual Obligations

§ 6 Payment, Delay, Default

(1) All payments to IGEL are due immediately on the delivery of the Products and without deduction or right of off-set. The Customer is in default regarding payment when it fails to make payment during a period of 14 days after the due date and after the receipt of the invoice, but no longer than 30 days after delivery has commenced. Any earlier default based upon common law principles of anticipated breach of contract shall be unaffected.

(2) Provided there is nothing agreed to the contrary, IGEL is not obliged to perform in advance or if the Customer is in default or delay with any payment obligations.

(3) IGEL reserves the right to reject checks and bills of exchange from the Customer. The acceptance of similar forms of payment is always regarded as conditional performance. The bill of exchange will be accepted in every case only under the precondition of discount eligibility. Discounts, cancellation expenses and bill of exchange taxes as well as other expenses in connection with the acceptance of the different forms of payment shall be charged to the Customer. Credit notes for bills of exchange, e.g. in situations of a return of products, or checks are regarded as valid under the condition of receipt of the invoiced amount, i.e. the date on which IGEL can actually avail itself of the cash in the equivalent sum

(4) If, after formation and performance of the contract, IGEL issues its invoice to another person than to its contract partner (i.e. the Customer), this does not relieve the Customer as the original contract partner of its obligation to pay, until final payment is received by IGEL. If IGEL issues an invoice to a third party, it only represents IGEL’s willingness to accept payment from such third party without releasing the Customer from its contractual obligation to pay.

(5) The Customer will be charged a reminder fee for overdue invoices in the amount of USD$5.00 per reminder. This does not affect the legal rights of IGEL by law or contract to seek additional relief.

(6) In case of a delay in payment or of a dishonored check or protest of the check or the bill of exchange or in case of other circumstances, which entitle IGEL to demand a cash advance or provision of security, IGEL may terminate immediately any agreement for credit or extension and/or grace period for payments with the Customer in relation to all sums owed to IGEL by the Customer.

§ 7 Set-off, Retention, Assignment

(1) The Customer is not entitled to the set-off of any claims or retention of any payments due to IGEL, whether arising out of the contract in question or any other contracts or business relationships with IGEL. Furthermore, a Customer is not entitled to withhold performance or payment solely because of the fact the full performance by IGEL has not yet been made.

(2) The Customer is not entitled to assign claims under the contract to third parties without the prior written approval of IGEL.

§ 8 Delivery

(1) IGEL will delivery the Products or perform the Services as soon as possible. The stated period/date of delivery or performance is generally not binding or of the essence, unless IGEL confirms explicitly and in writing the stated period/date to be binding and of the essence. Where IGEL agrees time shall be of the essence, the time of the dispatch ex works or ex stock, or the notification the IGEL is ready for dispatch, shall determine whether performance or delivery was made within the period specified for delivery. The period for delivery or performance shall be extended to another individually agreed point in time, if the Customer does not cooperate in good faith regarding the delivery or performance (see § 9 of these Terms).

(2) In case that the parties have agreed on a date or period certain for delivery or that time is of the essence, IGEL shall be in default regarding its obligation to deliver and to perform only after receiving a written reminder by Customer indicating a reasonable grace period for delivery or performance and such grace period has expired and all other legal preconditions have been met.

(3) IGEL shall make delivery under the condition of exact supply within a reasonable time through IGEL’s suppliers. A delay in delivery or non-performance of delivery that results from a failure of IGEL’s suppliers (without any contributory negligence of IGEL) shall not be considered a default by IGEL.

(4) IGEL shall not be responsible for a delay of the delivery or of the performance as a result of force majeure or similar circumstances beyond the reasonable control of IGEL and occurring after the formation of the contract, (e.g. industrial action, official directive, natural disasters or political uproar or strikes) also within the sphere of control of IGEL’s suppliers or sub-suppliers. In these cases performance shall be suspended and the period of delivery shall be extended until after the force majeure ceases to apply, including a reasonable period thereafter, but not longer than six (6) months. After expiration of a six (6) month delay caused by force majeure, both parties are entitled to terminate the contract without incurring any penalties or legal obligation or liability towards the other. The same applies if a party suffers significant economic harm or disadvantages by the delay or non-performance.

(5) IGEL is entitled to make partial delivery of Products and performance of Services after consultation with the Customer.  In such cases IGEL is also entitled to issue partial invoices.

(6) In case that the supply according to the request of a Customer is delayed as a result of such Customer’s failure to cooperate reasonably and in good faith (for e.g. delivery of additional devices and parts for reconstruction), or the Customer does not accept the delivery item, or the delivery is not performed because the Customer fails to perform its obligation regarding payment, then IGEL is entitled to compensation for any additional expenses incurred, particularly any storage expenses. The expenses for storage can be charged from the beginning of one week after the notification of the readiness to dispatch, calculated, as a minimum, as 0.5% of the invoiced sum per month, unless Customer can show that actual expenses are lower. Notwithstanding the foregoing, IGEL reserves its rights to terminate the contract or claim compensation on contractual and common law grounds.

§ 9 Duty and Obligation of the Customer to Cooperate

(1) In the event that the effectiveness of the contract or the performance of the contract requires specific permissions or licenses (for e.g. licenses for import or export) or similar, these licenses shall be obtained by the Customer, unless the parties expressly agree otherwise in writing.

(2) The Customer is furthermore obliged to cooperate timely in accordance with the contract and good faith, particularly with respect to obtaining the required permissions and providing the additional devices and parts for (re)construction.

(3) IGEL is entitled to fix a reasonable period for Customer’s cooperation pursuant to §9(2) above (for e.g. the request for a necessary permission). After expiration of the period without the Customer having performed the required act, IGEL is entitled to terminate the contract by notice taking effect immediately. If the required licenses or permissions are not provided until the expiration of three (3) months after the making of the contract, IGEL is entitled without further preconditions to terminate the contract by notice taking effect immediately.

§ 10 Passage of the Risk of Loss

(1) The risk of loss passes to the Customer when the Products are handed over to the first carrier for transmission to the Customer (for e.g. forwarding agent, carrier or similar) for loading. If transportation through IGEL is agreed the risk of loss passes to the Customer when loading begins, but at the latest when the Products leave the factory as the place of performance (comp. § 21, Sec. 2 of these Terms). The same applies even if IGEL has undertaken the expenses for the transport or has undertaken another performance such as the installation.

(2) If IGEL, upon request of the Customer, dispatches the Products later than the first possible date of delivery or dispatch, then the risk of loss shall pass to the Customer at the moment IGEL notifies Customer of its readiness to dispatch the Products

(3) Any insurance coverage for the Products, (such as against theft, destruction, transport, fire or water damage or similar risks), will be provided by IGEL only upon express request of the Customer and will always be at the expense of the Customer.

(4) Any returns of Products to IGEL (where agreed to by IGEL in writing in advance) shall, unless otherwise agreed in writing, always be at the expense and risk of the Customer.

§ 11 Retention of Title

(1) IGEL retains title to and ownership of all Products until full payment has been made of all accounts receivable which exist at the relevant time. At the entry of a running account with the Customer the entire retained ownership in Products serves to secure any claims for balances due on any account. If, at any time before full payment has been made, IGEL requires Customer to confirm that legal title remains with IGEL, Customer will confirm such status with IGEL in writing and do anything else which IGEL requires, in order to protect IGEL’s ownership rights.

(2) In case of a breach of the contract by the Customer, in particular in the case of any payment being overdue or in case of the Customer filing for bankruptcy protection or initiating insolvency proceedings, IGEL is entitled to request from the Customer a release of the purchased Products without any grace period to be fixed, or in the same case, to request the assignment of the claim for return of the Products against any third parties. A return of the Products to IGEL shall not be regarded as a termination or rescission of the contract or a release of Customer of its obligations to pay, unless expressly stated otherwise by IGEL in writing. The Customer shall be responsible for any costs and expenses of returning the Products to IGEL. IGEL is entitled to sell the returned Products after a single notice to Customer. The difference between the profits of sale of the Products to third parties and the sales price to Customer, plus the expenses for the sale shall be the damages to be paid by Customer.

(3) Until full payment has been received by IGEL, the Customer shall hold the Products in a fiduciary capacity for IGEL and shall keep the Products separate from those of the Customer and third parties and properly stored, protected and insured in a manner which enables them to be identified as the property of IGEL and the Customer shall immediately return the Products to IGEL should its authorised representative so request.

(4) The Customer grants IGEL an irrevocable licence to enter at any time any vehicles or premises owned or occupied by the Customer or in its possession for the purpose of repossessing or removing any Products, the property in which remains with IGEL.

(5) The Customer is entitled to resell the retained Products within the scope of an orderly business operation, as long as he is not in default regarding any payments to IGEL, and/or there is an application for insolvency proceedings or to seize its property or assets or the Customer is obliged to apply for insolvency proceedings. In case of a resale of any Products which have not been fully paid for, the Customer is obliged to protect IGEL’s rights on these Products by assigning any proceeds of sale to IGEL. Any encumbrance or lien on Products not yet fully paid for, including but not limited to granting charges to third parties, is only permitted with the prior written approval of IGEL.

(6) If the Customer resells Products in which IGEL has reserved title, the Customer hereby automatically assigns to IGEL the rights in the proceeds from such sale together with all other rights in the event of an installment sale, in order to protect any claims of IGEL in or to the Products. The Customer is authorized to collect any funds from a resale, until otherwise notified by IGEL. However, IGEL may request that Customer notify its debtors of the assignment of the claim for the proceeds from a resale to IGEL. With the revocation of the authorization for the collection the Customer has to notify IGEL about all necessary data for the collection of the proceeds of a resale and to support and cooperate with IGEL in such collection of accounts receivables.

(7) The Customer is obliged to keep and maintain, diligently and at its expense, all Products in its custody and for the benefit of IGEL, including but not limited to insuring them against theft, destruction, fire, water or similar damage and to show proof of such insurance and expiration dates upon IGEL’s request.

(8) The Customer has the further duty, during the time of possession of any Products still belonging to IGEL or not paid for, to keep the Products in proper condition and to arrange any necessary repairs immediately to be performed in one of the IGEL’s authorized qualified workshops.

(9) Any seizures or attachments of Products by and through third parties must be notified by the Customer to IGEL immediately after the Customer obtains knowledge thereof. In such a case the Customer shall transfer all the necessary information and documents for each intervention to IGEL. The Customer is liable for the expenses which arise in connection with such seizure or attachment and the release of the Products, particularly by way of court intervention as a third party in the seizure proceedings, as long as these expenses cannot be recovered from the persons responsible for the seizure or attachment.

(10) In the event that Products are combined, connected or merged into other goods or products, IGEL shall retain its ownership on such combined or connected or merged Products. The percentage ownership in any new products shall be defined according to the proportion of the value of the Products title in which remains with IGEL bears towards the invoice value of the newly created combined products.

(11) If for any reason, legal or factual, the Customer acquires the sole ownership over any new product pursuant to the preceding paragraph, the Customer hereby agrees that IGEL will keep its ownership status in the new product in the same proportion as provided in the preceding paragraph. The Customer shall keep the new products in its custody for IGEL free of charge.

III. Defects, Withdrawal and Compensation for Damages

§ 12 Defects and Rights

(1) IGEL guarantees that the delivered Products and Services rendered shall be free from defects in materials and workmanship at the passage of the risk in them.

(2) Any representations concerning the manner of delivery, the appearance, measurement and weight of the Products, as well as their capacity made at the time of contract formation constitutes no guarantee and is only descriptive in nature. Any representation can only be relied on if such representation is made in writing by IGEL at the time of contract formation.

(3) If, after contract formation, any changes or modifications are made to Products ordered, such modifications or alterations in size, weight, measurement or appearance shall not constitute material deviations from the ordered Products nor failure in performance by IGEL, as long as their value and functionality is not materially affected.

(4) IGEL does not accept responsibility for any false representations concerning Products or Services by third parties (including the suppliers of IGEL or the manufacturers) unless IGEL knew or should have known about these representations, and did not contradict them. IGEL may not be held liable for public statements, either through IGEL or third parties, if such representations were corrected at the time of contract formation or, if the Customer cannot demonstrate reliance upon those representations in its decision to execute the contract.

(5) Any warranties for defects and resulting  loss and damage is excluded, if they arise

• because a specific manner of manufacture or a specific material for the purchased Product was chosen under the instruction of the Customer, because the Customer has installed the purchased Product or placed it in operation incorrectly,
• because the Customer operates the purchased Product incorrectly or fails to use appropriate operating instruments,
• because the Customer has not considered the operations division or the requirements for maintenance,
• because the Customer does not use the purchased Product competently or properly,
• because the Customer has attached external parts or components (products of other manufacturers),  not approved by IGEL,
• because the Customer has altered, modified or disassembled the purchased Product without prior approval of IGEL,
• because the Customer has incorrectly installed the purchased Product into or combined with another product or item.

(6)    The Customer waives any right to claim breach of warranty of the Product, if the Customer fails to give notice to IGEL of the kind and nature of the breach of warranty in accordance with the following rules:

• Defects/breaches of warranty, which at the inspection of the Product was apparent and obvious, must be notified in writing to IGEL within at latest five (5) working days after the delivery of the Product and before further manufacturing/processing/usage (if possible under the dispatch of the provided printed forms by IGEL),
• Any hidden defect or breach of warranty, which at the inspection of the Product was not apparent or reasonably discoverable, must be notified in writing to IGEL within five (5) working days after the discovery of the defect.

Compliance with the notice requirement herein is given, if the proper notification has been mailed or otherwise dispatched to the recipient in a reasonable time.

(7) Warranty claims by the Customer do not cancel or suspend its duty to accept and pay for the Products, unless the defectiveness of the Products is indisputable or judicially established.
(8)    If there is an existing defect or breach of warranty in the purchased Products, IGEL may, in its own discretion, remove or remedy the defect, by means of additional work, repair or improvement of the Products, replacement of the non-conforming parts or delivery of substitute conforming Products.

(9) In the event IGEL decides to remedy a defect under warranty through repair or substitution, IGEL shall bear all associated expenses, particularly the costs of labor, materials and freight. Any replaced parts become the property of IGEL.

With respect to warranties for Customers located outside of the United States, IGEL does not assume the additional expenses associated with shipping the repaired or replaced product outside of the United States.

(10) If the result of an inspection of the Products confirms that a defect in the purchased Products does not exist or does not amount to a breach of warranty, the Customer is responsible for the payment of any inspection expenses at then applicable general hourly rates of IGEL.

(11) No claim for breach of warranty may be brought after [one (1) year]* from the date of delivery.

[NOTE: But the warranty is stated to be a standard 2 years, with a possibility of increasing to 3 years].

§ 13 Termination

This Agreement may be terminated:
i. immediately by IGEL, if the Customer fails to pay any sum due within seven (7) days of a written demand therefore;

ii. immediately  by either party, if the other commits a material breach of any term of this Agreement and which shall not have been remedied within thirty (30) days of a written  request to remedy the same;

iii. immediately by either party, if the other shall file an application for insolvency protection or is subject to involuntary insolvency proceedings or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of the U.S. Bankruptcy Code or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for  the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).

iv. by Customer for a breach or default by IGEL, which is not cured pursuant to these Terms. IGEL may, in the event of such termination and a resulting Product return, charge a monthly lump sum of 3% of the purchase price for the realized profits from the use of Products, as far as the Customer does not prove a lower value of the resulting profits. The right of IGEL to prove a higher value of the resulting profits shall be unaffected. 

Any termination of this Agreement pursuant to this Section 13 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party not the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

§ 14 Liability and Limitation of Liability of IGEL

(1) IGEL shall only be liable for intentional or grossly negligent breach of a contractual duty. In other cases, any claims for compensation of damages are excluded.

(2) The liability of IGEL is limited to damages which are reasonably to be expected at the formation of the contract under the circumstances known at that time. IGEL shall not be liable to the Customer, by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under these terms and conditions or any contract for any loss of profits, loss or corruption of data, economic loss, lost savings, the costs or expense of obtaining alternative goods or services or any indirect special or consequential loss or damage (whether for loss of contracts, goodwill, profit or otherwise) costs or expenses or other claims for compensation whatsoever (whether caused by the negligence of IGEL, its employees, agents or otherwise and whether reasonably foreseeable or not and whether IGEL had been advised of the possibility of the Customer incurring or suffering the same) which arise out of or in connection with the supply or non-supply of the Products, any Services or any other goods or otherwise in connection with performance or non performance pursuant to these terms and conditions or any contract.

(3) The liability of IGEL, including any liability for employees, agents or officers and directors, is limited to twice the value of respective purchase price.

(4) The burden of proof of any basis for IGEL’s liability, and the measure of damages, shall lie with the Customer.

(5) IGEL shall not be liable for defective Products, which are the result of defective parts from un-related suppliers, unless IGEL has, expressly or impliedly, assumed liability for such defects. IGEL shall not be obliged to inspect parts supplied by un-related suppliers.

(6) The limitation of liability in this Section 14 shall extend to IGEL employees or agents or independent sub-contractors.

(7) The Customer is obligated to give immediate written notice to IGEL of any defect or damage, for which it claims IGEL’s liability and must permit IGEl an inspection of any Product causing damage as well as the damage itself.  If Customer fails to notify IGEL within five (5) business days of the circumstance giving rise to a claim for IGEL’s liability, then Customer waives any rights to claim compensation.

§ 15 Liability of the Customer for Damages

If IGEL is entitled to damages, the measures of damages shall be, at the election of IGEL, the higher of either (a) liquidated damages in an amount of 15% of the purchase price, reflecting the reasonably predicted costs and losses of IGEL connected to a breach of Customer, or (b) compensation of all actual costs, expenses, losses, damages and lost profits incurred by IGEL as a result of any breach of Customer of these Terms, including but mot limited to attorney’s fees and costs.

IV. Specific Provisions for Software Products

§ 16 Scope of Usage

(1) IGEL grants the Customer a non-exclusive, non-transferable licence to use the software only in connection with the hardware manufactured and distributed by IGEL, particularly terminals, Thin Clients, Thin Client Cards and Thin Client Upgrade Kits.

(2) The right of use covers every permanent and temporary, whole or partial duplicating (copying) through loading, display, run down, transmission or storage for the purpose of execution of the software. The execution of specified actions for the purpose of observation, examination or test of the specified software is also included in the usage.

(3) The software must not be processed or altered. The company names, trademarks, notes for copyrights or different notes for reserved rights contained in the software must not be altered and must be reproduced in altered and processed versions of the software.

(4) A decompilation of the software code is admitted only under compliance with the limitations in the Copyright, Designs and Patents Act 1988.

§ 17 Guarantee/Liability

(1) The following provisions under paras. (2) to (7) apply in addition to Section III. Defects, Withdrawal and Compensation for Damages.

(2) The Customer understands that it is not possible to develop any software to the extent that for all conditions of application the software is always free of errors. IGEL undertakes no guarantee that the software in all areas and applications will function without interruption or insignificant errors.

(3) IGEL guarantees that the software has the particular functions which are indicated in the general product descriptions and catalogues. IGEL undertakes no guarantee that the software will correspond to individual requests or requirements of the Customer. The Customer bears the sole responsibility for the selection and usage of the software as well as for any thereby intended results. There is also no guarantee for altered or processed versions of the software unless the Customer proves (beyond reasonable doubt) that the available defects have absolutely no connection with the alteration or the processing.

(4) Each and every liability of IGEL is excluded as far and as long as the Customer does not use or run the software with or in connection with IGEL-Hardware (namely terminal, thin client, thin client cards, and thin client upgrade kits).

(5) IGEL delivers the software “as is” and undertakes in particular no guarantee, namely neither explicit, nor implied.

(6) IGEL is not liable for the loss of data or its restoration, unless the Customer proves that a specific loss of data could not be avoided through appropriate measures for securing the data on the part of the Customer, or the minimum daily preparation of security copies of all data and software. Any such liability shall be subject to the limits and exclusions of liability in Section 14.

(7) IGEL is not liable for defected economic result, lost profits, indirect or consequential loss or damage, damages as result of defects and claims of third parties.

V. Miscellaneous

§ 18 Intellectual Property rights and Copyrights of Third Parties

(1) As far as the delivered Products were manufactured in accordance with the drafts, specifications or designation of the Customer, particularly with reference to software provided by Customer, the Customer hereby indemnifies IGEL against all claims and liabilities, arising from the breach of intellectual property right and/or copyright of third parties.

(2) For deliveries of Products to countries outside of the principal country of operation of IGEL, IGEL shall only be liable for the Products manufactured in its own factories and with respect to any infringements of patents under the laws of the country or state for which delivery and distribution has been expressly authorized by IGEL.  With respect to authorized countries, IGEL will support the Customer in and out of court and in judicial proceedings against any patent holders claiming a right in the Product, compensate the Customer for the expenses of legal proceedings and indemnify Customer against any final judgments for payment of damages to the respective patent holders.

§ 19 Spare parts

(1) For the delivery of spare parts and accessories in exchange for old parts at a special spare part price (so called “spare part delivery”), the following specific provisions shall be applicable.

(2) The old parts shall be supplied to IGEL completely freight paid and free of charge.

(3) If the spare part is delivered by IGEL before the Customer has delivered the old part, then IGEL, instead of the spare part price, shall, in the interim, charge the valid price of a new spare part. After the arrival of the old parts IGEL will credit the difference between the new price and the price for replacement to the Customer.

(4) The old parts become property of IGEL upon delivery. Through performance of delivery of such old parts the Customer declares implicitly that the Customer was owner of the old part, respectively that the Customer is authorized to pass over the ownership of this old part to IGEL, and that there are no existing rights of third parties over this old part.

§ 20 Orders for Printing and Stamping

(1) The Customer shall inspect galleys and imprints for mistakes and shall return them to IGEL cleared and ready for press. IGEL is not liable for mistakes made by the Customer. Telephonically transmitted texts or alterations require prior written approval of the Customer.

(2) Liability is excluded for documents and items handed over by the Customer for the performance of the order, such as, in particular, films, clichés, data carriers etc (“patterns”). After the expiration of a term of two (2) years IGEL is authorized to dispose of the archived patterns without notification to the Customer.

(3) Through the placing of the order the Customer shall not acquire ownership of the tools and dies needed for the creation of the copies and stamps, and similar needed tools and dies. The erasing or disposal of these tools and dies by IGEL shall follow after the completion of the order, without liability to the Customer.

(4) In case of orders for stamps or copies IGEL reserves the right to make excess or reduced delivery of up to 10%.

§ 21 Final clauses-Miscellaneous

(2) These Terms are governed by the Laws of the State of Florida. The application of the Convention on the International Sale of Goods (CISG) is excluded.

(3) The place of performance for all obligations in connection with these Terms is the factory as stated by IGEL in the confirmation of the order (industrial premises). When the parties agree that the dispatch shall be performed from the factory of a third party, this factory shall be the place of performance.

(4) The exclusive courts of jurisdiction for all litigation resulting from this business relationship and any contract between IGEL and the Customer shall be the courts of Ft. Lauderdale, Florida, USA. IGEL is entitled also on its part to sue at the place of the registered office of the Customer.

(5) Alterations of these Terms, supplements and representations must be in writing and signed by both parties to the contract (in the case of a corporation or other legal entity, by signature of a person duly authorized) in order to be valid. The same is also valid and in particular for annulment or alteration of these written clauses. As far as adherence to the written form is required, the transmission by facsimile is sufficient also. An electronic data transmission (e-mail) is only sufficient as far as these are provided with a qualified electronic signature according to applicable law.

(6) If one ore more provisions of these Terms is declared invalid by a court of law or if these Terms have to include a blank provision, the validity of the remaining provisions shall be unaffected. The ineffective or incomplete provision will be replaced through a similar rule, which meets closest the intent and the purpose of the desired provision efficiently.

(7) Delivery

a. IGEL shall be entitled to make partial deliveries or deliveries by instalments and these terms and conditions shall apply to each partial delivery.  Each delivery of an instalment shall constitute a separate contract and failure by IGEL to deliver any one or more instalment in accordance with these terms and conditions shall not entitle the Customer to treat the contract as a whole as breached.

b. If the Customer fails to take delivery of products or fails to give IGEL adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to IGEL, IGEL may store the products until actual delivery and charge the Customer for the reasonable cost (including insurance) of storage or sell the products at the best price readily available and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract or charge the Customer for any shortfall below the price due under the  contract with the Customer.

(8) Errors and Authority

a. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by IGEL shall be subject to correction without any liability on the part of IGEL.

b. IGEL’s employees or agents are not authorised to make any representations concerning products or any system in which they will be incorporated unless confirmed by IGEL in writing.  In entering into a contract based on these terms and conditions, the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.  The provisions of this clause shall not apply in the case of fraud.  Any advice or recommendation given by IGEL or its employees or agents to the Customer or its employees or agents as to the application or use of the products and/or the system  in which they will be incorporated which is not confirmed in writing by IGEL is followed or acted upon entirely at the Customer’s own risk.

(9) Returned Goods and Cancellations

a. The Customer shall not return products or cancel any order without IGEL’s previous written consent.  Such consent will not be given where products have been specially purchased or configured by IGEL to meet the Customer’s requirements or where IGEL has commenced performance of any services (including but not limited to the acquisition of any materials required for the performance of such services).  If IGEL gives such consent, it reserves the right to make a cancellation charge.

b. IGEL reserves their right to invoice confirmed bookings for services which are subsequently cancelled by the Customer.  Notice of cancellation must be made in writing or e-mailed to [e mail address].  The amount invoiced shall be determined by the notice period given for cancellation;  1-7 days @ 100% of the charge for Services, 7-14 days @ 50% of the charge for Services, 4-28 days @ 25% of the charge for Services.  No charge will be made where a cancellation notice of 29 days or more is given.

(10) Use of the Software

a. The Customer shall follow all reasonable instructions given by IGEL from time to time in connection with the use of the software.  The Customer shall permit IGEL at reasonable times and at IGEL’s expense, to verify that the use of the software is within the use permitted by these Terms.

(11) Services

a. The Customer shall at its own expense supply IGEL with all necessary documents, data, materials or other information relating to the services and its system, within sufficient time to enable IGEL to provide the Products and services in accordance with the contract. The Customer shall ensure the accuracy of all such documents, data, materials or other information.

b. IGEL may at any time without notifying the Customer make any changes to the services which are necessary to comply with any statutory requirements, provided that these changes do not materially affect the nature or quality of the services.

(12) Personnel

Each party undertakes to the other that it will not (whether directly or indirectly) for the Relevant Period, induce or attempt to induce any employee of the other party to leave his or her employment or any agent or contractor working for the other party to cease working for other party and will not employ or receive services from any employee, agent or contractor or former employee or agent of or contractor to the other party during such period. [ If, with the prior written agreement of the first party or otherwise, the other party employs or hires any employee of the first party during the  Relevant Period the other party shall pay to first party a fee equivalent to six months of the employee’s final basic pay received whilst in the employment of the other party.] “Relevant Period” means the period of the contract between the parties and a period of [six] months thereafter.

(13) Waiver

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

(14) Notices

Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile to the address of the other party set out in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile upon transmission, provided a transmission report to a then current number of this recipient can be produced.

(15) Assignment

a. Neither party shall be entitled to assign the contract nor all or any of their rights and obligations hereunder without the prior written consent of the other.

b. IGEL may sub-contract the production and manufacture of any Product or any part thereof and provide services through any sub-contractors..

(16) Entire Agreement

These Terms constitute the entire agreement and understanding of the parties relating to its subject matter (except in the case of fraud) and supersedes all prior written or oral agreements, representations, understandings or arrangements between them relating to the subject matter of this Agreement.  Neither party shall be entitled to rely on any agreement, representation, understanding or arrangement which is not expressed in this Agreement.  This provision shall not apply in the case of fraud.

(17) VAT

All sums payable under this Agreement are expressed exclusive of VAT at the applicable rate, for which the Customer shall also be liable.


IGEL Technology Inc., February 2008