General Terms of Delivery and Payment of the imeco GmbH & Co. KG
1. Validity
The General Terms of Delivery and Payment set forth below apply to all transactions, deliveries, services and offers of imeco GmbH & Co. KG (hereinafter referred to as "imeco") towards its customers, i.e. merchants, companies or business operators as well as all legal persons, whether public or private, as well as legal entities under public law (hereinafter referred to as "customer"). We hereby expressly reject confirmations to the contrary provided by the customer which refer to their conditions of purchase. Any of the customer's contradicting or deviating terms only apply if these have been expressly recognised by imeco in writing.
2. Offer/Order
(1) The offers from imeco are subject to change and also non-binding. Orders only become binding with a written order confirmation from imeco. Additions, changes and ancillary agreements require a written confirmation from imeco to take effect.
(2) Sales staff and suppliers are not authorised to conclude ancillary verbal agreements or to provide assurances that go beyond the written offer or the written contract.
3. Scope/Delivery/Passing of risk
(1) imeco reserves the right to make technical and standard design modifications to the supplied goods as long as they do not unduly burden the customer, nor do they affect the functionality of the delivery item.
(2) Unless other tolerances have been agreed to, DIN tolerances apply for the agreed upon and specified dimensions of the delivery item.
(3) Reasonable partial deliveries are permissible.
(4) Delivered items have to be accepted by the customer – without prejudice of any potential rights – even if they have non-substantial defects.
(5) The risk transfers to the customer as soon as the supplied goods are made available at the plant of imeco and the customer has been notified of this. If imeco is responsible for shipping, then the risk transfers to the carrier when the goods are handed over. If the shipment is delayed for reasons that fall into the sphere of the customer, especially because the customer did not properly retrieve the goods, did not meet import or export requirements or did not provide import or export documents, etc., then the risk is transferred to the customer once they have been notified that the goods are ready to be shipped. If the shipment is delayed, rejected or not performed by the customer, or if the delay has been caused by the customer, then they will be charged a flat rate of €5/pallet or €5/warehouse space per month, beginning in the month following the notification that the goods are ready to be shipped, unless the customer can prove that there is minor damage. imeco is authorised to make use of the delivery item in another manner and then supply the customer in a reasonable time if the customer was given a reasonable deadline for retrieving the item without doing so.
(6) If imeco is contractually responsible for the shipping, then the customer will assume the risk of that shipment. imeco is not liable for damages or losses during the transport. imeco will initiate the shipment in a manner that it deems to be best. imeco is not responsible for finding the least expensive and shortest manner of shipping.
(7) The packaging will not be taken back.
(8) imeco is authorised but not obligated to take out a transport insurance. If one is concluded, then it will be paid for by the recipient. Liability for the consequences of the insurance is not assumed.
(9) If the parties have expressly agreed to Incoterms, then the conditions of these Incoterms will take precedence over the corresponding conditions of these terms.
4. Delivery time
(1) The period of delivery begins with the sending of the order confirmation but not before the submission of documents, permits, approvals that have to be procured by the customer and before the receipt of a potentially agreed on down payment and the clarification of all technical questions.
(2) Delivery time information is approximate and non-binding unless something else has been agreed to and the documents, approvals, etc. that are to be provided by the customer have been provided in time.
(3) The adherence to the period of delivery presupposes that the contractual obligations have been met.
(4) The period of delivery is deemed to have been complied with if, before it ends, the customer has been notified that the supply item has been made available or, if imeco took care of the shipment, the delivery item has been handed over to the carrier.
(5) The period of delivery is extended by a reasonable amount of time in the case of labour disputes, especially strikes and lockouts, natural disasters, war, riots, government measures as well as the occurrence of unforeseen obstacles that are beyond the control of imeco (e.g. unforeseen interruptions of operations, lack of energy, difficulties in procuring raw materials), as well as in other cases of force majeure, if these obstacles can be proven to have had a significant impact on the completion or supply of the delivery item. This also applies if these circumstances occur at sub-suppliers. imeco is also not responsible for the aforementioned circumstances if they occur during a delay that is already taking place. In important cases, the customer has to be notified of the beginning and end of such obstacles as quickly as possible.
5. Prices
(1) All prices are understood to be ex factory, excluding value added tax, incl. packaging, excluding plate costs and excluding transport costs. The statutory value added tax has to be paid separately. Written test protocols, other documents, e.g. those required for export or any potential transport insurance policies also have to be paid separately.
(2) If a delivery date is set for four months or more after the contract has been concluded, and changes to the price structure occur during this time (high prices for raw materials, payroll increases), then imeco reserves the right to pass these price adjustments on to the customer.
(3) If no price has been agreed upon when the contract was concluded, then the applicable prices on the delivery date apply (ex factory).
6. Payment conditions
Unless otherwise agreed, the payments have to be made as follows:
(1) Payments have to be made within 14 days after the receipt of the invoice without deduction. The relevant date is the date of the receipt of the payment at imeco.
(2) If the payment due date has been exceeded, imeco is authorised to invoice the statutory interest for late payments. The assertion of other damages caused by the delay remains unaffected.
(3) imeco is not obligated to accept bills of exchange or cheques; if they are accepted, then only on account of performance; discount and bill of exchange charges are borne by the customer and have to be paid immediately. imeco does not accept any liability for timely presentation and protest.
(4) In the case of payments made, if the customer has not made any other stipulations and if there are multiple claims, then the payments will first be applied to any potential costs, any potential interest and then the existing receivables. In addition, § 366 BGB applies.
(5) In the case of a significant deterioration of the customer's financial situation, especially if they filed for insolvency or an application for the issuing of an affirmation in lieu of an oath regarding a list of assets against the customer, imeco is authorised to immediately cease all deliveries and to refuse the fulfilment of ongoing contracts unless the customer had previously made a payment in full.
(6) If the customer culpably violates their contractual obligation, especially if they default (either fully or partially), then all their obligations from all contracts become due immediately, irrespective of the maturity of possibly accepted bills of exchange. In this case, imeco is authorised to demand securities for all receivables and to only carry out any outstanding shipments only in return for advance payment.
(7) Permissible partial deliveries can be invoiced separately.
7. Retention of title
(1) Until the full payment of the calculated price and all current and future receivables owed to imeco resulting from this business relationship, irrespective of their legal grounds, including ancillary claims, claims for damages, discharges of any submitted bills of exchange or cheques, payment of a balance from a current account relationship, imeco retains the property rights of the delivery item (current account reservation).
(2) imeco is authorised but not obligated to take back the delivery item if the behaviour of the customer violates the contract, especially in case of late payments; in this case, the customer already agrees at this point to a return of the delivery item. This recall only counts as a withdrawal from the contract if imeco expressly proclaims this to be the case. Any costs incurred by imeco as a result of the recall (especially transportation costs) will be charged to the customer. In addition, imeco is also authorised to forbid any resale or processing, connection or mixing of the goods subject to the retention of title and to revoke the collection authorisation (see 7(5) below). The customer can only demand the shipment of the delivery item that was taken back without an express cancellation of the contract following the full payment of the sales price and all other costs.
(3) The customer is obligated to handle the delivery item with care.
(4) The retention of title also extends to the full value of all products that are the result of a processing, mixing or connection of the delivery item; these operations are deemed to be done on behalf of imeco. If, in the case of the processing, mixing or connection with goods of third parties, the property rights of these third parties remain, then imeco will acquire the joint ownership proportionate to the objective value of the delivery item related to other processes objects (hereinafter referred to as "reserved goods").
(5) The customer is authorised to sell, process, connect or mix the supply item and the reserved goods in proper condition; in that case, they already assign all claims to imeco against their customers or third parties that arise from the sale, processing, connection, mixing or for other legal reasons (especially those arising from insurances or prohibited actions) equal to an amount of the final invoiced amount (including value added tax). The customer remains authorised to collect the claims even after its assignment, whereby the authority of imeco to collect the claim itself remains unaffected. imeco commits to not collect the claim as long as the customer meets their payment obligations from the proceeds received, is not late with their payments, has not filed for the initiation of insolvency proceedings or has suspended payments. Upon the request of imeco, the customer has to disclose all assigned claims as well as the (third-party) debtors, provide all information required for the collection, hand over the associated documents and notify the debtor (third parties) of the assignment. The direct debit authorisation of the customer can be revoked if the customer violates the contract (especially in case of late payments). In any case, it ends with the suspension of payments on the part of the customers or when insolvency proceedings regarding the assets of the customer have been requested.
(6) The assignment in advance also applies if imeco, as a result of a connection, mixing or processing in accordance with §§ 946, 947 BGB, acquires partial ownership of a thing or if it loses its ownership to the owner of the main thing and the delivery item or the main thing are resold.
(7) The customer may not pledge the delivery item, the reserved goods or the claims taking their place to third parties, nor may they be assigned or ceded by way of security. In the case of seizures or other interventions by a third party, the customer is obligated to immediately notify imeco in writing so that imeco can immediately file suit in accordance with § 771 ZPO or take other legal actions.
(8) In the case of the previous clause 7(7) and in the case of late payments on the part of the customer, imeco is authorised to withdraw from the contract and to take back the delivery item and/or the reserved goods.
(9) Any securities imeco is entitled to will be released when the value of the securities of imeco exceeds the nominal value of the receivables to be secured by 30 percent. It is up to imeco to decide which securities will be released.
(10) The customer must insure the items subject to the retention of title against theft, breakage, fire and water damage and provide proof thereof to imeco. If the customer is late in providing this proof, then imeco can take out this insurance at the expense of the customer. imeco is authorised to access the location where the delivery item is installed, processed or stored.
8. Guarantee
The customer has to inspect the delivery item immediately after taking possession of it and notify imeco of any apparent defects (§ 377 HGB). imeco must be notified of hidden defects immediately after they have been discovered. If the customer does not fulfil these obligations, the delivery item is deemed to be accepted without defects. In case of defects we bear liability as follows:
(1) If the defect is found at the purchased item, then it is up to imeco whether it will rectify the defect or supply an item without defects (supplementary performance). This presupposes that it is not an insignificant defect. Standard discrepancies at the products, such as dimensions, weight and colours, are not considered to be defects. Any related information provided by imeco is always to be considered as approximate and may vary. These provisions also apply to the supply of another item or a smaller quantity.
(2) The customer must grant imeco the time and opportunity to perform rectifications deemed to be necessary and/or make replacement deliveries; otherwise, imeco is exempt from the liability from any resulting consequences. Multiple rectifications or replacement deliveries – generally two – are permissible. imeco is authorised to refuse one or both types of remedial actions if these are impossible or unreasonable. Replaced parts become the property of imeco.
(3) The customer is not entitled to damage claims if they rectify defects without complying with the right of imeco to rectify the delivery goods or replace them, or if the customer has third parties make changes to the delivery item. The customer only has the right to rectify the defects themselves or authorise third parties to rectify them, and to demand that imeco pay for the necessary expenses, in urgent cases to prevent disproportionately large damages. In this case, imeco has to be notified immediately.
(4) A liability for regular wear and wear parts is excluded.
(5) If the supplementary performance is not possible or if it fails, then the customer can demand a reduction of the purchase price or, pursuant to the respective laws, withdraw from the contract; this especially applies in the case of a culpable delay or refusal to perform the supplementary performance and if it fails twice.
(6) Unless it is responsible for them, imeco is not liable for defects that were caused by a poor installation on the part of the customer or a third party, negligence or an unsuitable or improper treatment or use, unsuitable equipment, or chemical, electrochemical or electrical influences. The liability for excessive use is also excluded.
(7) The customer may not withdraw from the contract if imeco is not to blame or the defect is insignificant. The withdrawal from the contract is also excluded if the customer is solely or mainly responsible for the circumstance that would allow them to withdraw or if a circumstance for which imeco is responsible occurs during the time when the customer is late in accepting the delivery item.
(8) The statute of limitations for any defect claims is one year from the acceptance unless a longer guarantee term is mandated by law.
9. Claims for damages/withdrawal
(1) In the case of property and financial damages caused by negligence, imeco, as well as its vicarious agents, are only liable in case of a violation of a substantial contractual obligation. However, the amount is limited to damages that were foreseeable and typical for the contract at the time it was concluded; substantial contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. The exclusion of liability does not apply in cases in which, as a result of defects in the delivery item, imeco is liable for personal injury or damage to property for private use under the Product Liability Act.
10. Offsets, rights of retention, assignment
(1) The offsetting and withholding of payments on the part of the customer is only permissible in the case of undisputed or legally valid claims.
(2) The customer is only permitted to exercise their right of retention if the counter claim is based on the same contractual relationship.
(3) Claims of the customer arising from the contractual relationship with imeco cannot be assigned without the written permission from imeco.
11. Use of data
In accordance with the Federal Data Protection Act (BDSchG), imeco notes that personal data may be stored and processed in the course of fulfilling this contract. Within the company, these data will be processed in a central location. Furthermore, imeco expressly reserves the right to insure this transaction through a credit insurance and to transmit the required customer data to the insurer. This requires the customer's consent. This consent can be revoked at any time.
12. Patent infringement
If the design and manufacture of the goods took place according to customer specifications (drawing, sample, other information), the customer guarantees that no rights of third parties, especially patents, utility models or registered designs, as well as other property rights or copyrights have been or will be violated. The customer is obligated to fully indemnify imeco from all third party claims resulting from this obligation.
13. Place of performance/place of jurisdiction/applicable law
(1) The place of performance as well as the place of fulfilment is the location of the imeco plant.
(2) Aschaffenburg is agreed to as the place of jurisdiction. imeco can also file suit against the customer in all other permissible places of jurisdiction.
(3) The applicable law is that of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
14. Miscellaneous
Should one or more provisions of these Terms and Conditions or the contract concluded between imeco and the customer, be deemed or become invalid, unenforceable or inexecutable, then the remaining provisions shall remain unaffected. The contracting parties commit to agree to a provision whose economic purpose approximates as closely as possible that of the invalid, unenforceable or inexecutable provision. The same applies to any loopholes.