General Delivery- and Performance Conditions of the IMKO Micromodultechnik GmbH
1. Scope of Application
The following conditions shall apply for all present and fu-ture deliveries and performances in so far as not agreed oth-erwise in writing. The General Terms and Conditions of the customer shall only apply if the same has been agreed by us in writing.
2. Applicable Law and Legal Venue
2.1 German law shall apply. The UN convention on contracts for the international sale of goods (CISG) is excluded.
2.2 For all disputes out of the underlying contracts, the place of our registered office shall be the legal venue. We are however also entitled to file suits at the place of the registered office of the customer.
1.1 Any of our quotations are non-binding and subject to change. Any contracts shall only become effective through our confirmation in writing or delivery.
1.2 Our employees are not authorized to make oral collateral agreements or commitments which go beyond the context of the written agreement or are deviant to our General De-livery- and Performance Conditions to our disadvantage.
1.3 The technical data, images, drawings, statements to weight and dimensions attached to quotations are non-bind-ing unless the same (i) are expressedly designated as binding or (ii) are essential.
1.4 All quotations are subject to change in terms of the con-struction, in so far as the same are expedient.
1.5 The customer undertakes to verify the usability of our goods.
2. Transfer of Risk, Dispatch, and Delivery Period
2.1 In so far as not agreed otherwise, the delivery shall be performed EXW to the place designated in the order confir-mation (Incoterms® 2010). The risk shall also be transferred according to EXW in the event that we have also exception-ally assumed other performances, such as the costs for dis-patch, or the dispatch as such (also applies to the perfor-mance by own personnel) and the assembly.
2.2 In so far as it has been agreed that we shall assume the dispatch, we shall select the form of dispatch which, accord-ing to our discretion, is the most cost-effective and safest so-lution.
2.3 The delivery period shall commence with the dispatch of the order confirmation, however not before the clarification of all details of the contract performance, as well as the pro-vision of the documentation and permits to be forwarded by the customer, as well as the reception of an advance pay-ment in so far as agreed upon.
2.4 Should there be a delay of the dispatch due to circum-stances that we are not responsible for:
- The risk shall pass over to the customer on the day of the agreed delivery date, at the latest however with the pro-vision for shipping,
- The customer´s obligation to accept and pay the goods remains unaffected hereof,
- We are entitled to invoice,
- We shall store the goods at the risk and the costs of the customer; in the event that we store in our respective production site, we shall charge at least 0.5% of the in-voice amount of the stored delivery per month,
- We are, after setting an appropriate extension and the fruitless expiry of the same, to withdraw from the con-tract and to claim for damages instead of performance,
- The customer has, in particular, the obligation to cover the costs and the risk that result from the not timely pro-vision of instructions and performances regarding neces-sary formalities.
2.5 Any changes demanded by the customer shall lead to the appropriate prolongation of the delivery period until we have verified the feasibility of the same by a period required for the implementation of the new specifications in the pro-duction.
2.6 In the event of default in the delivery, our liability, in case we, our legal representatives, or our agents have acted with simple negligence, is limited to 0.5% per expired week, in to-tal however to 5% of the net invoice amount of the part of the delivery affected by the delivery default. The claim for damages instead of performance according to Section 120 remains unaffected hereof.
3. Force Majeure
3.1 Unforeseeable, unpreventable events, and such that we are not responsible for (in particular due to force majeure, strikes, lockouts, operational disturbances, difficulties re-garding the provision of material and energy, transport de-lays, measures implemented by authorities, and obstruc-tions due to national or international regulations, as well as difficulties at the provision of permits, in particular import and export licenses) lead to the prolongation of the delivery period by the time of the disturbance and its effects. This also applies, should these obstructions occur at our sub-suppliers or during the event of a pending default.
3.2 Should the obstruction not only be of temporary nature, we are entitled to withdraw from the contract. In so far as, due to the delay, the acceptance of the delivery can not rea-sonably be accepted by the customer, he is entitled to with-draw from the contract by declaration in writing.
4. Reservation and Obtaining Permits
4.1 Should we assume the responsibility for obtaining per-mits, in particular for the export, shipment, import of our goods, our deliveries (performance of contract) are subject to the reservation such respective permit is not obstructed by national or international regulations, in particular by ex-port control regulations, as well as embargos, or other sanc-tions. The customer undertakes, in this event, to provide all required information and documents for the import, ship-ment, export.
4.2 Should a required permit we have applied for not be granted, the contract, in regard to the affected delivery, shall be deemed as not concluded.
4.3 we expressedly state that we shall, under no circum-stances, be responsible for obtaining a permit listed under Section 4.1 after delivery has been performed (in particular in the event of the resale of the goods by the customer).
5. Partial Deliveries
We are entitled to deliver in part in so far as this is within a reasonable scope.
6. Prices and Payment
6.1 In so far as this is not agreed upon otherwise, the prices refer to EXW to the place designated in the order confirma-tion (Incoterms® 2010), net in Euro, exclusive of the respec-tively applicable VAT.
6.2 Payments are to be effected within 30 days of the invoice date to our payment office without deductions. Payments shall only be deemed as performed to the extent as we are free to dispose of the same at a bank. We shall only accept checks and bills of exchange in lieu of payment. Any dis-counts and charges shall be covered by the customer. These are due immediately.
6.3 In the event of delayed payment we shall, without re-minder, charge interest on maturity of 9% percent points above the base rate, however 10% at the least.
6.4 should there be any reasonable doubts regarding the sol-vency of the customer, e.g. due to slow pace of payment, default of payment, the protest of a check or a bill, we shall be entitled to demand security or cash payment on a deliv-ery versus payment basis. Should the customer not react to this demand within a reasonable period, we shall be entitled to withdraw from the not yet fulfilled part of the delivery contract. The fixation of a period of grace can be omitted should customer is apparently not capable of providing security, e.g. insolvency proceedings have been initiated over the assets of the customer.
6.5 The customer is only entitled to offset or assert a right of retention in so far as his counterclaims are undisputed, have been legally established or ready for decision.
7. Retention of Title
7.1 We reserve the right to reserve the title of ownership in the goods provided by us until the reception of all payments out of the business relationship with the customer. Should there be a current account relationship, the retention of title shall also apply to the acknowledged balance.
7.2 Processing and modification of the reserved goods by the customer is performed for us without obligating us. In the event of mixing or connecting with other goods, we shall ac-quire co-ownership in the new goods at a quota of the in-voice value of the reserved goods to the other materials.
7.3 The customer may only sell the reserved goods in the course of ordinary business and may neither pledge nor as-sign the same as security. The customer undertakes to im-mediately notify us should any access by third parties. Any costs effected by the defense of an access shall be covered by the customer in so far as the same can not be retrieved from the third party.
7.4 The customer is obligated to sufficiently insure the re-served goods against loss and damage at the new value. The confirmation of the insurance, as well as proof of having paid the premium, is to be forwarded to us upon request. Any claims out of these insurance contracts are already now as-signed by the customer to us.
7.5 The customer already now assigns to us any claims out of the resale of the reserved goods to the full extent as secu-rity.
7.6 The customer is entitled to collect the claims assigned to us himself. The right to use and sell the reserved goods, as well as the right to collect the claims shall lapse in the event of default in payment, insolvency proceedings are initiated, or if he has ceased his payments. In these cases, the cus-tomer is no longer entitled to further process the goods.
7.7 In the cases depicted in Section 7.6, the customer must enable us to retrieve the reserved goods and to notify us of the assigned claims and their debtors, to notify his custom-ers of the assignment of the claims, and to forward to us any information and documents required to collect these claims. We shall be entitled to disclose the assignment to his cus-tomers. The retrieval of the reserved goods does not repre-sent a withdrawal from the contract. Should we declare withdrawal, we shall be entitled to utilise the goods at our discretion.
7.8 If the value of the provided securities exceeds our claims by more than 10%, we shall, upon request of the customer, release securities at our discretion.
8. Documents and Confidentiality
The customer undertakes to not disclose any and all infor-mation (in particular details of our quotations, such as tech-nical solutions, prices and conditions etc., as well as samples, drawings and other company and operational secrets which he has intentionally or incidentally received from us), not to make these accessible to third parties, and also not use these himself for own or third-party purposes. We reserve all pro-prietary rights and copyrights in this confidential infor-mation.
9. Liability for Defects
9.1 Apparent defects at the delivered goods must be re-ported to us immediately after receiving the goods, hidden defects immediately in writing after they are detected.
9.2 Should the customer send goods that has already come in contact with medium back to us to process the reclama-tion, for the sake of the safety of our personnel, the follow-ing shall apply:
The customer shall confirm in writing that the goods have been cleaned thoroughly and is free of any residual material that would represent a hazard. This written confirmation must be attached to the exterior of the dispatch packaging. The goods shall exclusively only be checked and processed if such confirmation has been provided.
9.3 In the event of a justified reclamation, the following shall apply:
a) At our discretion, we shall either repair or provide a re-placement. Should the repair fail, the customer is enti-tled to demand a price reduction or – in the event of sig-nificant defects – withdraw from the contract. Should the subsequent fulfillment fail, the customer also has the right, according to Section 10, to demand damages in-stead of performance.
b) Any costs of the subsequent performance which are in-curred due to the fact that the purchased goods were brought to any other place than the place of business of the customer shall not be assumed.
c) A claim for reimbursement of the costs for disassembly and assembly shall not exist, if we are not responsible for the defect.
9.4 Should the limitation period recommence due to a de-fect, the period of limitation of 12 months as determined in Section 10.3 shall also apply. The recommencement of limi-tation shall exclusively only apply for the part affected by the defect (e.g. electronic parts etc.).
9.5 In the event of an unjustified reclamation, we reserve the right to charge the costs incurred (also internal) by the rec-lamation.
10. Liability General
10.1 We shall be liable for intent, gross negligence, malicious non-disclosure of defects, loss of life, bodily harm or harm to the health, or according to the product liability law in accord-ance with the law. In the event that we have assumed a guarantee, we are liable according to possibly existing guar-antee provisions.
10.2 In the event of simple negligence, we shall only be liable for the infringement of an essential contractual obligation, the compliance with which enables the performance of the contract in terms of a condition sine qua non and in the per-formance of which the customer reasonably trusts and may trust, and the infringement of which endangers reaching the purpose of the contract, but – in so far as not ruled otherwise in Section 2.6 for delay damages – limited to the replace-ment of the foreseeable and contractually typical damage. For all other events, our liability is excluded.
10.3 Claims of the customer due to defects lapse after a pe-riod of 12 months as of the time the risk is transferred, as do any other claims as of the beginning of the statutory limita-tion period.
Deviant to Clause 1 of this Section 10.3, in the event that we are liable due to assuming a guarantee, the guarantee provi-sions shall apply and in the event of the malicious non-dis-closure of a defect, as well as in the event of claims for damages according to the product liability law, the loss of life, bodily harm, or harm to the health, and the intentional and grossly negligent infringement of obligations, the statutory provisions of limitation shall apply.
11. Place of Fulfillment
The place of fulfillment for all deliveries is the place desig-nated in our order confirmation – for payments it is the place of our registered office.
At all performances we render for customers, in particular consultancy Helpdesk Service, engineering, initial commis-sioning, maintenance, repairs, calibration, installation, ad-justments or operation of the components purchased from us or to be purchased from us (in the following referred to as „performances) the following provisions shall apply:
1. Quotation and Performance Scope
1.1 We determine the scope of our performances in our quo-tation.
1.2 The source code shall only be part of the performance scope, if this has been agreed in writing.
1.3 For the rest, Part II, Section 1 shall apply accordingly.
2. Implementation of the Performances
2.1 We shall be entitled to implement the performances us-ing third parties (experts, sub-contractors).
2.2 The customer shall not be entitled to demand the imple-mentation of the performances by a certain staff member unless the same has been agreed in writing. The nomination of an employee in the quotation text and the order confirmation does not meet these requirements.
2.3 The customer has no right of instruction in regard to the employees deployed by us nor in regard to any third party.
3. Period of the Service Performance, Place of the Service Performance and Working Hours
3.1 The Sections 2.3, 2.5 and 2.6 of Part II shall accordingly apply to the provision of performances.
3.2 The period for the provision of performances shall be reasonably prolonged, in so far and for so long as the cus-tomer does not properly comply with his obligations to co-operate.
3.3 Should the provision of the performances be delayed due to reasons we are not responsible for,
- The customer remains obligated to accept and pay the performances,
- We shall be entitled to invoice,
- We shall be entitled, after the fixation of an appropriate period of grace and the fruitless expiry of the same, to withdraw from the contract and to claim for damages in-stead of performance.
3.4 Should it be necessary, upon request of the customer, to delay the date for the performance, we are entitled to charge the occurred and effected costs (also internal) (e.g. travelling cost occurred by us or third parties) generated in the light of the agreed date.
3.5 We shall determine the location of work and the working hours a tour own discretion. Doing so, we shall take the jus-tified regards of the customer we were timely notified of in writing into consideration.
4. Cooperation Obligations of the Customer
4.1 The customer shall ensure that all requirements for the provision of the performances are met and all respectively required documents are forwarded in time, and all infor-mation is provided, and that we are informed of all relevant procedures and conditions. This also applies to all relevant documentation, information, and conditions that evolve during the provision of our performances.
4.2 The customer is obligated to confirm to our employees the effected working hours in writing at the end of every work day.
4.3 In so far as the performances are provided in the prem-ises of the customer, the customer shall provide us with suf-ficient working space free of charge and shall provide us with access to the required (IT) systems.
4.4 The customer is exclusively responsible for the provision of – in particular of official nature – permits which are re-quired for the provision of the performances.
4.5 Should the customer not properly comply with the coop-eration obligations stated in this Section 4 or other coopera-tion obligations, and should this generate delays and/or ad-ditional costs, we are entitled to reasonably adjust the remu-neration as well as the agreed periods.
The agreed remuneration shall apply. Should we provide performances without prior agreement of the remuneration, the usual remuneration shall apply plus the respectively ap-plicable VAT, as well as all incidental costs such as travelling costs, travelling time, expenses and accommodation costs etc.
6.1 In so far as it has not been agreed otherwise, we do not assume the responsibility to achieve a certain achievement at the provision of performances.
We do however undertake to provide the performances in compliance with the proper care customary in the trade and the generally accepted rules of engineering.
6.2 In so far as we exceptionally do assume the responsibility for a certain achievement at the provision of performances, the following shall apply:
- Section 10 of Part II shall apply accordingly,
- An acceptance must be performed according to § 640 BGB (German Civil Code). In so far as it has not been agreed otherwise, the customer is obligated to perform the acceptance immediately, at the latest however within 14 days after he has been informed of completion by us.
Should the customer not confirm acceptance and never-theless utilise the performances or objects the perfor-mance was provided at, the acceptance shall be deemed as confirmed, in so far as the customer has only made reclamations regarding non-essential defects.
7. Right in the Performances and Results
The customer shall, with the complete payment of the agreed remuneration, acquire a non-exclusive not transfer-rable right of use that is unrestricted in space and time within the scope of the contractually determined intended use in the results we achieve within the scope of the perfor-mances. Apart from that, all rights shall remain with us.
8. Supplementary Provisions
Apart from that, the provisions under Sections 3, 6, 8, 10 and 11 from Part II shall apply accordingly to the performances.