General Terms and Conditions of Sale and Delivery plus T&Cs of IMOD GmbH
All deliveries, services, and proposals from the Supplier shall be exclusively governed by these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed upon again. These Terms and Conditions shall be deemed to have been accepted upon receipt of the goods or service at the latest. Any counter-confirmations from the Purchaser with reference to its own Terms of Business or Purchasing Conditions are hereby rejected.
II. Proposals and Contract Conclusion
- Proposals from the Supplier are non-binding unless otherwise specified in the order confirmation. Declarations of acceptance and all orders must be confirmed by the Supplier in writing or another equivalent format in order to be legally valid.
- Drawings, illustrations, dimensions, and weights are only binding if this is expressly agreed in writing.
III. Delivery Periods and Default
- Compliance with the agreed delivery periods is conditional upon the timely receipt of all documents to be furnished by the Purchaser, necessary approvals and clearances, especially of plans, as well as the Purchaser’s compliance with the agreed payment terms. If these prerequisites are not punctually fulfilled, the delivery periods shall be extended accordingly; this shall not apply if the delay is attributable to the Supplier.
- The delivery period shall be extended accordingly if the non-adherence to the stipulated period is attributable to force majeure, e.g. mobilization, war, riot, or measures within the framework of labor disputes, e.g. strike or lockouts, or the occurrence of other unforeseeable events beyond the Supplier’s control. The Supplier’s non-liability for the aforementioned circumstances shall still exist if they arise during an existing default.
- Partial deliveries shall be permissible within the agreed delivery periods providing they do not result in any disadvantages with regard to use.
- The Supplier shall only be deemed to be in default if the service is due and an express written reminder has been issued, unless a specific calendar date has been agreed for the service.
- If the Supplier is in default, the Purchaser may—subject to proving that damages have been incurred—receive compensation for each full week of default in the amount of 0.5%, up to a maximum of 5%, of the price of the part of the delivery that cannot be used for the intended purpose due to the default.
- Compensation claims from the Purchaser that exceed the limits established in point 5 are excluded in all cases of delayed delivery, even after the expiration of an extension period set by the Purchaser. This shall not apply in cases of mandatory liability in the event of willful intent, gross negligence, death, personal injury, or damage to health. This is not associated with any change to the burden of proof to the disadvantage of the Purchaser. The Purchaser’s statutory right of withdrawal shall remain unaffected.
- The Purchaser shall only be entitled to withdraw from the contract within the scope of legal provisions if the Supplier is responsible for the delay.
- The Purchaser is obliged, at the Supplier’s request, to stipulate within a reasonable period, whether it is withdrawing from the contract, claiming damages instead of performance, or upholding the contract.
IV. Scope of Delivery
- The scope of delivery shall be determined by the Supplier’s written order confirmation.
- The right to modify the design or shape in order to improve the technology or as a result of legal requirements shall be reserved during the delivery period providing the delivery item is not significantly changed and the changes are reasonable for the Purchaser.
V. Cancellation Costs
Should the Purchaser unjustifiably withdraw from a placed order, the Supplier shall be entitled to receive 15% of the sales price to cover the costs incurred by processing the order and the lost profit. This shall not affect the Supplier’s right to claim higher actual damages. The Purchaser retains the right to prove that no or lower damages have been incurred.
VI. Packaging and Shipment
The packaging shall be the property of the Purchaser. Postage and packaging charges shall be separately billed for net invoice amounts of up to EUR 2,500. The shipping method shall be selected at the Supplier’s best discretion.
VII. Acceptance and Transfer of Risk
- The Purchaser is obliged to accept the delivery item. If the Purchaser willfully or through gross negligence delays on acceptance of the purchase item for more than fourteen days from receipt of the notification that it is ready, the Supplier, after granting an extension period of a further fourteen days, shall be entitled to withdraw from the contract and receive compensation instead of providing the service. The requirement to grant an extension period shall be waived if the Purchaser seriously and definitively refuses acceptance or shall obviously still be unable to pay the purchase price even with the extension, or if other circumstances exist that justify the instant assertion of the claim for damages or withdrawal from the contract under consideration of the interests of both parties.
- Upon dispatch of the delivery item, providing this is not within the scope of a consumer goods purchase, the risk shall transfer to the Purchaser as soon as the Supplier has passed the item to the haulage company, carrier, or other person or entity commissioned with making the delivery.
- In all other cases, the risk shall be transferred to the Purchaser upon acceptance of the delivery item. Should the Purchaser declare that it will not accept the delivery item, the risk of any accidental loss or deterioration of the delivery item shall transfer to the Purchaser at the time of non-acceptance.
VIII. Price Changes
- Prices changes are permissible if more than four months elapse between the conclusion of the contract and the agreed delivery date. Should salaries, material costs, or market cost prices increase after the stipulated four-week period and before completion of the delivery, the Supplier shall be entitled to reasonably increase the price in line with the cost increases. The Purchaser shall only be entitled to withdraw from the contract if the price increase significantly exceeds the rise in the general cost of living between the time of order placement and delivery.
- Should the Purchaser be an entrepreneur, legal person under public law, or special fund under public law, price changes shall be permissible under the above rules if more than six weeks have elapsed between the conclusion of the contract and the agreed delivery date.
The Supplier shall be liable for defects as follows:
- All parts or services that manifest a defect within the statutory period of limitation—without consideration of the period of use—must, at the Supplier’s discretion, be repaired, replaced, or newly performed free of charge, providing the defect already existed at the time of the transfer of risk.
- As an initial step, the Supplier must always be given the opportunity to provide remedy within a reasonable period, whereby the Supplier shall be entitled to two repair attempts. If the Supplier is refused this right, it shall be released from the liability for defects. If the subsequent performance fails, the Purchaser shall be entitled to terminate the contract or reduce the payment amount. This shall not affect any other claims for damages.
- Claims for damages due to defects shall become statute-barred after twelve months. This period begins with the transfer of risk. Should longer periods be legally required pursuant to Sections 438 (1) no. 2 (buildings), 475 (2) (consumer goods purchases), 478 and 479 (right of recourse) and 634a (building defects) of the German Civil Code (GBG), these shall apply.
- In the case of contracts between entrepreneurs, the Purchaser must provide the Supplier with written notification of defects without delay. In all other contractual relations, obvious defects must be reported within two weeks of delivery.
- In the event of a notification of defects, the Purchaser shall be entitled to withhold payment to an extent which is commensurate to the defects found. If the notification of defects is unjustified, the Supplier shall be entitled to claim compensation from the Purchaser for any costs it incurs.
- Claims for defects shall not exist in the case of insignificant deviations from the agreed quality and of only minor impairments to the usability, except in the event of consumer goods purchases.
- Irrespective of the above, claims for defects shall be excluded as a result of natural wear and tear or damage arising after the transfer of risk due to incorrect or negligent handling, excessive strain, unsuitable operating resources, or specific external influences not provided for in the contract, as well as in the case of non-reproducible software errors. If the Purchaser or any third party carries out improper modifications or repair work, any claims for defects as a result of this work and its consequences shall also be excluded.
- Claims by the Purchaser relating to expenditure incurred to facilitate any subsequent performance, in particular transportation, travel, labor, and material costs, are excluded if the expenditure increases due to the delivery item having been moved to a place other than the place of transfer, unless said relocation was necessary to fulfill the intended use.
- Recourse claims by the Purchaser against the Supplier shall only be valid if the Purchaser has not entered into agreements with its customer that go beyond the scope of the legal provisions governing defect claims.
- Clause XIII (Miscellaneous Claims for Compensation) shall otherwise apply to claims for compensation.
- Any further claims or claims other than those regulated above by the Purchaser against the Supplier and its vicarious agents due to a defect are excluded.
X. Right of Ownership
- The delivery items (reserved goods) shall remain the property of the Supplier until all entitlements due to it by the Purchaser as a result of the business relationship have been fulfilled, or within the scope of the purchase of consumer goods until fulfillment of the entitlements due to the Supplier by the Purchaser as a result of the specific transaction.
- If the realizable value of all liens to which the Supplier is entitled exceeds the sum of all secured entitlements by more than 10%, the Supplier, at the request of the Purchaser, shall release a corresponding part of the lien.
- While the Supplier retains the right of ownership, the Purchaser is prohibited from hypothecation or transfer of the goods by way of security, and the resale of the goods is solely permitted to resellers in the usual course of business and under the condition that the reseller receives payment from its customer or establishes the provision that the ownership shall only be transferred to the customer once the latter has fulfilled its payment obligation.
- The Purchaser shall perform any adaptation or processing on behalf of the Supplier without this resulting in any obligation on the Supplier. If the reserved goods are processed, combined, or mixed with other goods that do not belong to the Supplier, the Supplier shall be entitled to co-ownership of the new item in a proportion determined by the invoice value compared to the value of the other processed goods at the time of the processing, combining, or mixing. If the Purchaser acquires the sole ownership of the new item, the parties agree that the Purchaser shall grant the Supplier co-ownership in a proportion equivalent to the invoice value of the processed, combined, or mixed reserved goods and store the item for the Supplier free of charge.
- The Purchaser must immediately notify the Supplier about any seizures, confiscations, or other dispositions or interventions by third parties.
- Should the Purchaser breach any obligations, in particular in the case of default in payment, the Supplier shall be entitled to cancel and withdraw from the contract and the Purchaser shall be obliged to surrender the reserved goods. The withdrawal or the assertion of the right of ownership does not require the withdrawal of the Purchaser. These acts or the seizure of the reserved goods by the Supplier shall not constitute a withdrawal from the contract unless this has been expressly declared by the Supplier.
If the Purchaser resells the reserved goods, it shall, however, immediately assign all accounts receivables that it accrues from the resale to the Supplier in the amount of the purchase price agreed between the Supplier and the Purchaser (including value added tax), irrespective of whether or not the delivery items are processed prior to being sold. The Purchaser shall still be entitled to collect these accounts receivables even after their assignment. This shall not affect the Supplier’s authority to collect the accounts receivables itself, but the Supplier undertakes not to do so providing the Purchaser duly fulfills its payment obligations and is not in default. If this is the case, however, the Supplier shall be entitled to request that the Purchaser discloses the assigned accounts receivables and their debtors, furnishes all the information required for their collection, provides the associated documents, and notifies the debtors (third parties) of the assignment.
XI. Impossibility and Contract Amendment
- If delivery is not possible, the Purchaser is authorized to claim compensation for damages, unless the reason for not being able to deliver is not attributable to the Supplier. However, the Purchaser’s compensation claim shall be limited to 10% of the value of the part of the delivery that cannot be used for the intended purpose due to the impossibility of delivery. This limitation shall not apply in cases of liability based on willful intent, gross negligence, or physical injury. This provision shall not change the burden of proof to the disadvantage of the Purchaser. The Purchaser’s right to withdraw from the contract remains unaffected, including if an extension of the delivery period was initially agreed with the Purchaser. In the event of only temporary impossibility, Clause III (Delivery Times and Default) shall apply.
- Should unforeseeable events as defined by Clause III, point 2 significantly change the economic importance or the content of the delivery or significantly impact the Supplier’s operations, the contract shall be appropriately amended in good faith. If this is not commercially justifiable, the Supplier shall be entitled to withdraw from the contract. Should the Supplier choose to assert this right, it must inform the Purchaser as soon as it becomes aware of the consequences of the event.
XII. Industrial Property Rights and Copyrights, Closed Substance Cycle and Waste Management Act
- The Purchaser alone shall be liable for checking whether the documents it provides (print templates, patterns etc.) infringe third-party rights, in particular copyrights and industrial property rights. Should claims be asserted against the Supplier due to the infringement of these rights, the Purchaser undertakes to reimburse the Supplier for any resultant damages.
- If the Supplier marks the products with signs such as the “green dot” or similar within the framework of the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschaftsgesetz), the Purchaser shall be regarded as the “distributor” and must therefore pay the relevant fees. Should claims be asserted against the Supplier due to the Purchaser breaching provisions of the Closed Substance Cycle and Waste Management Act or the Packaging Ordinance (Verpackungsverordnung), the Purchaser shall release the Supplier from all claims and reimburse it for any damages and expenses.
- The Purchaser alone shall be liable for fulfilling all return and recycling obligations arising from legislation such as the Packaging Ordinance and Closed Substance Cycle and Waste Management Act.
- Unless otherwise agreed, the Supplier undertakes to solely perform delivery in the country of the delivery location free from third-party industrial property rights and copyrights (hereinafter referred to as “property rights”). Should a third party assert justified claims against the Purchaser due to the infringement of property rights by the delivered items provided by the Supplier and used in accordance with the contract, the Supplier shall be liable as follows within the period established in Clause IX, point 2:
- At its own discretion and its own cost, the Supplier shall obtain a right of use for the applicable delivered item, modify the delivered item so that no property rights are infringed, or replace the delivered item. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction in price.
- The aforementioned Supplier’s obligations shall only exist between entrepreneurs if the Purchaser immediately informs the Supplier in writing about the claims made by third parties, does not acknowledge an infringement, and leaves all defensive measures and settlement negotiations to the Supplier.
- If the Purchaser stops using the delivered item for damage mitigation or other important reasons, it shall be obliged to notify the third party that the cessation of use is not associated with an acknowledgment of an infringement of property rights.
- Claims by the Purchaser are excluded if the Purchaser itself is responsible for the infringement of property rights. Claims by the Purchaser are furthermore excluded if the infringement of property rights was caused by special specifications by the Purchaser, a change that was not foreseeable to the Supplier, or the Purchaser modifying the delivered item to use it together with products not provided by the Supplier.
- In all other cases, Clause IX (Warranty) shall apply accordingly.
XIII. Miscellaneous Claims for Compensation
- Claims for compensation by the Purchaser, regardless of their legal grounds, particularly arising from infringement of the contractual obligations and from tort, are excluded.
- This shall not apply to mandatory liabilities, e.g. in accordance with the Product Liability Act, in cases of willful intent or gross negligence, as well as death, personal injury, or damage to health due to at least negligence, or breaches of significant contractual obligations.
- The claim for compensation for the breach of significant contractual obligations is, however, limited to the foreseeable damages typical of the contract except in the event of willful intent or gross negligence, or if liability exists due to personal injury or a guarantee has been provided with regard to the existence of properties.
- The above provisions shall not change the burden of proof to the disadvantage of the Purchaser.
XIV. Terms of Payment
- The purchase price and charges for additional services shall be due for payment upon handover of the delivery item.
- Checks and bills of exchange shall only be classed as payment following their redemption. Bills of exchange can only ever be accepted subject to a prior written agreement. If payment is made by a bill of exchange, the bank discount and collection fees shall be charged. These must be immediately paid in cash.
- The Purchaser shall only be entitled to offset amounts if its counterclaims have been legally established, are undisputed, or have been admitted by the Supplier.
- The Purchaser shall have no right of retention due to disputed counterclaims, unless it is a consumer.
XV. Place of Performance and Jurisdiction
- The place of performance is Solingen.
- In the case of any disputes resulting from the contractual relations, if the Purchaser is an entrepreneur, legal person under public law or special fund under public law, the legal action must be filed at the court responsible for the Supplier’s registered office. The Supplier shall be entitled to take legal action at the place of the Purchaser’s registered office.
- German law shall exclusively apply under the exclusion of the laws on the international purchase of movable items, even if the Purchaser’s registered office is outside Germany.
- Any transfers of the Purchaser’s rights and obligations arising from the contract concluded with the Supplier require the Supplier’s written consent to be valid.
- If a provision of this Agreement should be or become null and void, this shall not affect the validity of the remaining provisions.