General Conditions of Sale and Delivery, as well as Terms and Conditions of IMOD GmbH
I. Validity of the terms and conditions
The deliveries, services and offers of the supplier take place exclusively on the basis of these Terms and Conditions. As a result, these also apply to all future business relationships even if not expressly agreed to again. These Terms and Conditions are deemed to be accepted no later than upon the receipt of goods or services. Counter-confirmations of the purchaser invoking its terms of business or purchase are hereby disclaimed.
II. Offer and Conclusion of Contract
- The supplier’s offers are non-binding unless otherwise stated in the order confirmation. Declarations of acceptance and all orders require the supplier’s written or equivalent confirmation to be valid.
- Drawings, illustrations, dimensions and weights are only binding if expressly agreed in writing.
III. Delivery deadlines, delay
- The observance of agreed deadlines for deliveries is subject to the timely receipt of all documents to be supplied by the customer as well as required permits and approvals, in particular of plans, as well as the adherence to the agreed terms of payment by the buyer. In the event that these conditions are not fulfilled in timely manner, the respective deadlines will be extended accordingly. This shall not apply if the supplier is responsible for the delay.
- The delivery period shall be reasonably extended if non-observance of deadlines is due to force majeure, e.g. mobilization, war, riots, or actions related to labor disputes, e.g. strike or lockout, or the occurrence of other unforeseeable events beyond the supplier’s control. Furthermore, the aforementioned circumstances shall not be the responsibility of the supplier in the event that they arise during an already existing delay.
- Partial deliveries are permitted within the agreed delivery times, provided that this does not disadvantage the use of the associated products or services.
- The supplier shall only be deemed to be in default if performance is due and an express, written reminder has been issued, unless a calendar period has been agreed for the service.
- In the event of delay by the supplier, the buyer can, after proving that it has suffered a loss, demand compensation in the amount of 0.5% for each completed week of delay, however not more than 5% of the price for the portion of the delivery which cannot properly be put into operation due to the delay.
- Claims for compensation by the buyer which exceed the limits specified in point no. 5 are excluded in all instances of late delivery, to include following expiry of a grace period set by the buyer. This shall not apply if liability is mandatory in cases of intent or gross negligence or injury to life, body or health. There is no associated change in the burden of proof to the detriment of the buyer. The buyer’s statutory right of rescission remains unaffected.
- The buyer may only cancel a contract per statutory provisions if a delay is attributable to the supplier.
- Upon request of the supplier, the buyer is obliged to declare within a reasonable period of time whether it intends to withdraw from the contract, seek damages in lieu of performance or adhere to the contract.
IV. Scope of delivery
- The scope of delivery is determined by the written order confirmation of the supplier.
- Changes to design or shape which result from improvements in technology or from legal requirements are reserved during the delivery period, to the extent that the delivery item is not significantly changed and the changes are reasonable for the buyer.
V. Cancellation costs
In the event that the buyer unlawfully cancels an order it has placed, the supplier can, without prejudice to its ability to assert higher actual damages, demand payment of 15% of the sales price for costs incurred in processing the order and for lost profit. The buyer shall have the right to prove that damage has not been suffered or has been suffered to a lesser extent.
VI. Packaging and shipping
Packaging becomes the property of the buyer. Postage and packaging charges will be invoiced separately up to a net billed amount of EUR 2,500. The supplier shall select a delivery method to the best of its judgment.
VII. Acceptance and transfer of risk
- The buyer is obliged to accept the delivery item. In the event that the buyer intentionally or in grossly negligent manner fails to accept the purchased item for more than fourteen days after receipt of the notification of provision, the supplier shall, after setting a grace period of a further fourteen days, be entitled to withdraw from the contract and demand compensation in lieu of performance. No grace period shall be required to be set in the event that the buyer genuinely and definitively refuses acceptance or is manifestly unable to pay the purchase price within the said period or, in the interests of both parties, other circumstances justify the immediate assertion of damages or rescission.
- When despatch of the delivery item is not associated with the purchase of a consumer good, the risk shall pass to the buyer as soon as the supplier has delivered the item to the carrier, freight forwarder or the person or institution otherwise responsible for performing delivery. .
In all other respects, risk passes to the buyer upon acceptance of the delivery item. In the event that the buyer declares its refusal to accept the delivery item, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the buyer at the time of refusal.
VIII. Price changes
- Price changes are permissible if there are more than four months between the conclusion of the contract and the agreed delivery date. In the event of an increase in wages, material costs or market costs thereafter and until delivery is made, the supplier is entitledto reasonably increase the price in accordance with said cost increases. The buyer shall only be entitled to cancel if the price increase significantly exceeds the increase in the general cost of living between order and delivery.
- If the buyer is an entrepreneur, a legal entity under public law or a special fund under public law, price changes in accordance with the aforementioned provision are permissible if there are more than six weeks between the conclusion of the contract and the agreed delivery date.
the supplier is liable for defects as follows:
- All parts or services that demonstrate a defect within the limitation period – irrespective of the period of operation – shall, at the supplier’s option, be repaired, re-delivered or re-supplied free of charge, provided that the defect already existed at the time of transfer of risk.
- The Supplier shall always initially be granted the option of supplementary performance within a reasonable period of time, whereby the supplier is fundamentally entitled to two attempts at improvement. In the event that this is not granted, the supplier shall be exempt from the liability for defects. In the event that supplementary performance is unsuccessful, the buyer may – without prejudice to any claims for damages – withdraw from the contract or reduce remuneration.
- Claims for defects expire in twelve months. The period begins as of the transfer of risk. Insofar as the law prescribes longer periods in accordance with Sections 438(1) No. 2 (buildings), 475(2) (consumer goods purchase), 478, 479 (recourse claim) and Section 634a (construction defects) BGB, these shall apply.
- In the case of contracts between entrepreneurs, the buyer must immediately notify the supplier of defects in writing. In other contractual relationships, obvious defects must be cited within 2 weeks from delivery.
- In the event that notification of defects is made, the buyer’s payments may be withheld to an extent that is in reasonable proportion to the defects that have arisen. If notice of defects is wrongly made, the supplier is entitled to demand compensation from the buyer.
- Claims for defects do not exist for insignificant deviation from the agreed condition or if usability is only insignificant reduced, unless a purchase of consumer goods is involved.
- Notwithstanding this, claims for defects do not exist in the case of normal wear or damage which arises after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable operating equipment or due to special external influences not stipulated under the contract, as well as software defects that are not reproducible. In the event that the buyer or a third party effects improper changes or repairs, no claims for defects exist for these or the consequences arising from them.
- The buyer’s claims for expenses which are necessary to effect supplementary performance, in particular for transport, travel, labor and material costs, are excluded insofar as such expenses increase because the item to be delivered has been moved to a place other than the place of delivery, unless such shipment complies with the item’s contractual use.
- The buyer’s claims for recourse against the supplier exist only to the extent that the buyer has not made any agreements with its customer beyond the statutory claims for defects.
- In other respects, claims for damages are subject to no. XIII (other claims for damages).
- Further claims or claim other than the above regulated claims of the buyer against the supplier and its vicarious agents for defects are excluded.
X. Retention of title
- The delivered items (conditional goods) remain the property of the supplier until the fulfillment of all claims against the buyer arising from the business relationship; within the scope of the purchase of consumer goods, until fulfillment of the claims to which the supplier is entitled vis-a-vis the purchaser in the specific transaction.
- Insofar as the realizable value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 10%, the supplier shall, at the request of the buyer, relinquish a corresponding part of the security interests.
- During the period in which retention of title exists, the buyer is prohibited from pledging or assigning the goods as security, and resale shall only be permitted to resellers in the ordinary course of business and only on condition that the reseller receive payment from its customer or subject to the reservation that ownership shall only pass to the customer if the latter has fulfilled its payment obligation.
- The buyer’s treatment or processing on behalf of the supplier shall not incur any obligation on the part of the latter. In the event of processing, combining or mixing of the conditional goods with other goods not belonging to the supplier, the supplier is entitled to a co-ownership share of the new item in the proportion of the invoice value to the other processed goods at the time of processing, combining or mixing. In the event that the buyer acquires sole ownership of the new item, the parties agree that the buyer grants the supplier a co-ownership share of the new item in proportion to the invoice value of the processed or combined or mixed conditional goods and stores these free of charge for the supplier.
- The buyer shall immediately notify the supplier in the event of attachments, seizures or other dispositions or interventions by third parties.
- In the event of breaches of duty by the buyer, in particular in the case of payment default, the supplier shall be entitled to rescission and to repossess the relevant goods, which the buyer shall be obliged to surrender. The repossession and assertion of the retention of title does not require withdrawal by the buyer. These acts or the seizure of the conditional goods by the supplier do not constitute a withdrawal from the contract, unless expressly stated by the supplier.
Insofar as the buyer resells the conditional goods, it nevertheless hereby assigns to the supplier all claims in the amount of the purchase price agreed between the supplier and the buyer (including value added tax) which accrue to the buyer from the resale, irrespective of whether the delivery items are resold without having been or subsequent to processing. The buyer is also authorized to collect these claims after their assignment. The supplier’s authorityto collect the receivables itself remains unaffected hereby, however the supplier undertakes not to collect said claims as long as the customer duly fulfills its payment obligations and is not in default of payment. However, in the contrary case the supplier may demand that the buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
XI. Impossibility, contract adjustment
- In the event that delivery is impossible, the buyer shall be entitled to claim damages, unless the supplier is not responsible for said impossibility. However, the buyer’s claim for damages is limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This restriction does not apply in the event of liability stemming from intent or gross negligence or bodily injury. A change in the burden of proof to the detriment of the buyer is not associated with this regulation. The right of the buyer to withdraw from the contract remains unaffected, even if an extension of the delivery time was initially agreed with the buyer. In the case of only temporary impossibility, Section no. III (time limits for delivery, delay) applies.
- If unforeseen events within the meaning of No. III point 2 significantly alter the economic importance or the content of the delivery or significantly affect the operation of the supplier, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, the supplier shall have the right to withdraw from the contract. In the event that the supplier wishes to make use of this, it must notify the buyer immediately after becoming aware of the significance of the event.
XII. Intellectual property rights and copyrights, Closed Substance Cycle and Waste Management Act
- The obligation to verify whether the documents provided by the buyer (templates, samples, etc.) violate the rights of third parties, in particular copyrights and industrial property rights, rests solely with the buyer. In the event that a claim is brought against the supplier for infringement of these rights, the buyer shall be obliged to compensate the supplier for any resulting damage.
- In the event that the supplier, acting on behalf of the buyer, places marks on the products in the context of the Closed Substance Cycle and Waste Management Act (“Green Dot” or similar), the buyer shall be considered to be the “distributor” and must therefore pay the associated fees. If the buyer violates provisions of the Closed Substance Cycle and Waste Management Act or the Packaging Ordinance and a claim is brought against the supplier as a result, the buyer shall indemnify the supplier against all claims and compensate the supplier for all damages and expenses.
- The fulfillment of all recovery and recycling obligations which may exist under the Closed Substance Cycle and Waste Management Act and the Packaging Ordinance is solely the responsibility of the buyer.
- Unless otherwise agreed, the supplier is obliged to make delivery free of industrial property rights and third-party copyrights (hereinafter “proprietary rights”) only in the country where the place of delivery is located. In the event that a third party asserts justified claims against the buyer due to the infringement of proprietary rights as a result of deliveries effected by the supplier and used in accordance with the contract, the supplier shall be liable within the period of time specified in Section IX point 2 as follows:
- The supplier shall, at its option and expense, either obtain a right of use for the respective service, modify it so that the proprietary right is not violated, or exchange it. In the event this is not possible for the supplier at reasonable terms, the buyer shall be entitled to the statutory right of withdrawal or reduction of the purchase price.
- The above-mentioned obligations of the supplier exist between entrepreneurs only insofar as the buyer immediately informs the supplier in writing of the claims asserted by the third party, the buyer does not acknowledge an infringement, and any protective measures and settlement negotiations remain at the discretion of the supplier.
- In the event that the buyer ceases use of the delivery on grounds of loss mitigation or for other important reasons, the buyer shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgment of the infringement of proprietary rights.
- Claims by the buyer are excluded insofar as it is personally responsible for the infringement of proprietary rights. Claims by the buyer are further excluded insofar as the infringement of proprietary rights is caused by special requirements on the part of the buyer, by a change not foreseeable by the supplier, or where infringement is the result of the buyer changing the order or using it together with products not supplied by the supplier.
- In other respects, Section IX – Warranty applies mutatis mutandis.
XIII. Other claims for damages
- Claims by the buyer for damages, for whatever legal reason, in particular due to breach of obligations deriving from the contractual relationship and from tortious acts, are excluded.
- This does not apply if liability is mandatory, e.g. under the Product Liability Act, or in cases of intent or gross negligence or at least negligent impairment of life, limb or health, or the violation of essential contractual obligations.
- Notwithstanding, damages for breach of essential contractual obligations are limited to foreseeable damages typical for the contract, unless there is intent or gross negligence or liability for bodily injury or the existence of characteristics/features is warranted.
- A change in the burden of proof to the detriment of the buyer is not associated with the above regulations.
XIV. Terms of Payment
- Payment of the purchase price and fees for ancillary services are due upon handover of the delivered item.
- Checks and bills of exchange will only be deemed to be payment following their redemption. Acceptance of bills of exchange always requires prior written agreement. When accepting bills of exchange, the bank-based discount and collection charges are calculated and are to be paid immediately in cash.
- The buyer is only entitled to set-off rights if its counterclaims have been recognized by declaratory judgment, are undisputed or have been acknowledged by the supplier.
- The buyer is also not entitled to the right of retention as a result of disputed counterclaims unless the buyer is a consumer.
XV. Place of performance, jurisdiction
- The place of performance is Solingen.
- For all disputes arising from the contractual relationship, in the event that the buyer is an entrepreneur, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction over the supplier’s registered office. The supplier is entitled to bring an action at the buyer’s registered office.
- German law shall apply exclusively, excluding the laws governing the international purchase of movable property, to include if the buyer’s registered office is located abroad.
XVI. Other provisions
- Transfers of rights and obligations of the buyer from the contract concluded with the supplier require the supplier’s written consent to be legally effective.
- Should a provision be or become invalid, the validity of the other provisions shall remain unaffected.