General Terms and Conditions
1. Scope of Application
These terms and conditions apply to all deliveries and services of IMAGINE Engineering GmbH to customers. Other contractual clauses of the purchaser do not apply if they are in conflict with these terms and conditions. This applies in particular but not exclusively to offers of the customer, his general terms and conditions, terms of delivery, payment, contract or other clauses of the customer, any preliminary contracts or other correspondence in connection with the conclusion of the contract, unless otherwise expressly agreed in writing.
These terms and conditions of sale and delivery shall also apply to all future deliveries and services by IMAGINE Engineering GmbH to the customer, even if they are not expressly agreed again. They are only valid for companies in the sense of § 14 BGB.
2. Order, Delivery
All offers made by us are subject to change and non-binding. Agreements on quality must be made in writing. If an order is to be regarded as an offer according to § 145 BGB, IMAGINE Engineering GmbH can accept it within two weeks, calculated from the receipt by IMAGINE Engineering GmbH.
Unless otherwise specified, the delivery shall be made uninsured at the expense and risk of the Buyer to the place of receipt or use specified or to be specified by the Buyer. The risk shall pass to the Buyer upon delivery to the person designated to carry out the transport. This shall also apply in the event of IMAGINE Engineering GmbH being held liable at the place of delivery.
In the case of liability to bring and fate, IMAGINE Engineering GmbH is entitled to determine the means of transport and transport routes. Deviating agreements must be made in writing.
Our prices are ex works including loading at the factory, but excluding the costs of packaging, shipping and insurance. These costs are to be paid separately by the customer unless we expressly confirm their assumption in writing. All prices quoted by us are exclusive of statutory value added tax.
If the prices are freight paid, any freight increases occurring after order confirmation shall always be at the expense of the purchaser. Freight details are not binding.
4. Terms of Payment, Offsetting, Right of Retention
Unless otherwise agreed in writing, payment shall be made within 30 days net from the date of invoice to the account specified in the invoice. This shall also apply in the event of acceptance of premature deliveries. We are entitled at any time, without giving reasons, to demand payment step by step against delivery.
Bills of exchange, cheques and other means of payment are only accepted on account of performance. For these means of payment, the date on which we can dispose of the amount or - if we have culpably delayed payment - could have disposed of it in the event of proper settlement shall be deemed the date of receipt of payment.
In the event of defective delivery, the customer is entitled to withhold payment proportionate to the value of the goods until proper performance.
We shall be entitled to assign claims against the customer or have them collected by third parties without the customer's prior written, verbal or otherwise declarable consent.
The customer shall only be entitled to set off those counterclaims which have been legally established, concern a counterclaim which is ready for decision, are undisputed by us or in respect of which we have expressly consented to the set-off in writing. A right of retention on the part of the ordering party also exists only in the cases mentioned in sentence 1.
Rights of retention and powers of set-off on our part are not subject to any restrictions. The statutory provisions shall apply in this respect.
5. Delivery, Delivery Time, Modalities
Agreed dates and deadlines are only binding if they are confirmed by us in writing.
A confirmed delivery date is subject to correct, complete and timely delivery to us. In case of non-delivery to IMAGINE Engineering GmbH by the pre-supplier, both parties shall be entitled to withdraw from the contract in this respect. The liability of IMAGINE Engineering GmbH in the cases of sentences 1 and 2 shall only cease to apply if the defective, delayed or completely missing self-supply is not the result of a breach of duty for which we are responsible. Item 12 of these terms and conditions of business shall remain unaffected.
Unless otherwise agreed in writing, the punctual provision of the goods for dispatch in the case of a debt of fate, for delivery in the case of an obligation to be performed at the place of performance and for collection in the case of an obligation to be collected and the corresponding notification to the customer shall be decisive for compliance with the delivery date or delivery period.
Goods delivered prematurely must be accepted by the customer. A reservation of return at our expense is not agreed and requires an express written agreement between the parties. If the purchaser stores the goods until the agreed delivery date, he shall bear the costs incurred for this. Storage shall be at his own risk.
Partial deliveries are permitted, provided that this does not result in unreasonable disadvantages for the customer.
6. Delay in Delivery
IMAGINE Engineering GmbH shall be obliged to compensate the customer for the damage caused by delay in accordance with the provisions of clause 11 of these terms and conditions. IMAGINE Engineering GmbH shall only be liable for loss of profit and damages resulting from interruption of business in case of intent or gross negligence.
Compliance with the delivery period presupposes the fulfilment of the contractual obligations by the customer. If IMAGINE Engineering GmbH is in delay with the performance to be rendered by IMAGINE Engineering GmbH, the period of grace set by the customer shall reasonably take into account the performance possibilities of IMAGINE Engineering GmbH.
Clause 12 of these Terms and Conditions shall remain unaffected by the provisions of this clause.
7. Force Majeure
Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their obligations to perform for the duration of the disturbance and to the extent of their effect. This also applies if these events occur at a time when the affected contractual partner is in default. The contractual partners are obliged to provide the necessary information immediately within the scope of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
Changes to the delivery item do not require the prior written consent of the Purchaser and are permissible if they are requested by the Purchaser or are relevant to the state of the art or are based on a further development of the product.
9. Defects, Notification of Defects and Notification Periods
Between the parties, § 377 of the German Commercial Code (HGB) shall apply without restriction with the resulting obligations for the incoming goods inspection of the customer. By our outgoing goods inspection, we do not assume the incoming goods inspection of the customer, which is incumbent upon the customer according to § 377 HGB.
The customer shall give notice of any defects and discrepancies in the accompanying documents due to dispatch and of all other defects, insofar as they are apparent, within two working days of delivery to him. The period for giving notice of defects that become apparent during a proper inspection is seven working days from delivery to the customer, for hidden defects it is seven working days from discovery by the customer or from the time when such persons, whose knowledge is attributable to him according to the relevant legal provisions, become aware of the defects.
The goods delivered by IMAGINE Engineering GmbH are free of material defects if their characteristics are within the generally accepted and production-related tolerances. Weight and dimensional data, illustrations, drawings and all other product information in brochures or non-binding offers are not binding. Deviations do not constitute a defect. If the delivered goods correspond to the goods sampled and approved by the purchaser, there is no defect.
10. Defect Rights
In the event of delivery of defective goods, the purchaser may, if the respective legal requirements and the requirements listed below are met and unless otherwise agreed, assert the statutory rights in respect of defects.
The place of performance for the assertion of warranty rights is the headquarters of IMAGINE Engineering GmbH.
The purchaser's rights in respect of defects are initially limited to subsequent performance. If the supplementary performance fails, the purchaser is entitled to reduce the purchase price or to withdraw from the contract at his discretion. The statutory provisions according to which the purchaser may also be entitled to the right of reduction and withdrawal for other reasons remain unaffected.
Within the scope of supplementary performance, IMAGINE Engineering GmbH shall choose between rectification of defects and subsequent delivery at its reasonable discretion. Rectification of defects and subsequent delivery shall only be carried out as a gesture of goodwill and without recognition of a legal obligation, unless IMAGINE Engineering GmbH expressly states otherwise.
As far as the customer is entitled to exercise the right to choose between rectification of defects and subsequent delivery, his claim for subsequent performance is limited to the chosen variant of subsequent performance until this variant proves to be unfeasible or IMAGINE Engineering GmbH refuses to carry out subsequent performance according to the chosen variant. The right of the customer to assert further rights for defects (reduction, withdrawal, compensation) due to failure of the supplementary performance under the legal requirements remains unaffected.
In case of a culpable breach of duty of IMAGINE Engineering GmbH beyond the performance of the main obligation (e.g. in case of an obligation of information, consultation or examination), the customer may claim compensation for the resulting consequential damage as well as for the consequential damage to be reimbursed by the customer's customers only according to the provisions of clause 11. Consequential damage is the damage which the purchaser has suffered to legal assets other than the goods themselves, in particular also a financial loss.
Insofar as the Buyer asserts claims for damages due to a defect, the provisions of Clause 11 shall apply in addition to this section.
The regulations concerning the recourse of the entrepreneur according to § 478 BGB (German Civil Code) remain unaffected by the regulation according to this section, as far as the law of sales contract is relevant.
Claims for defects shall not arise if the defect is due to violation of operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent treatment and natural wear and tear as well as interventions in the delivery item by the customer or third parties, insofar as these are attributable to the customer's sphere of risk according to the contractual agreement between the parties.
The statutory limitation provisions shall apply to the purchaser's rights in respect of defects with the proviso that the purchaser's rights in respect of defects
- shall become statute-barred after four years if the object of purchase consists of a building or of an object which has been used for a building in accordance with its customary manner of use and has caused its defectiveness;
- otherwise, the limitation period shall be twelve months.
In the event of defective delivery, claims of the Purchaser under the Product Liability Act, tort and management without order shall remain unaffected by this clause.
Guarantees, in particular guarantees of quality and durability, must be expressly designated and agreed in writing and in detail as such. The agreement of guarantees must be in writing to be effective.
Any obligation of IMAGINE Engineering GmbH to pay damages shall generally require a fault of IMAGINE Engineering GmbH or a fault attributable to IMAGINE Engineering GmbH with regard to the damage caused by IMAGINE Engineering GmbH. The statute of limitations rule of § 438 BGB and/or § 634a BGB shall also apply to the compensation of damages caused to the customer or a third party as a result of the defect of any other legal property (e.g. property, body etc.) of the customer or a third party protected against anybody, as far as § 438 BGB and/or § 634a BGB are generally applicable to the contract. The provisions in section 10.10 shall apply accordingly. With regard to liability on the merits and in terms of amount, the following paragraphs of this section shall be observed.
IMAGINE Engineering GmbH shall be liable without limitation for culpably caused personal injury. Otherwise, IMAGINE Engineering GmbH shall only be liable for damages in the event of intentional or grossly negligent breaches of duty by itself, its legal representatives and the persons it uses to fulfil its obligations. In case of slightly negligent breach of duty by IMAGINE Engineering GmbH itself or the aforementioned persons, IMAGINE Engineering GmbH shall only be liable for damages if the breach of duty is an expression of a violation of essential contractual obligations. An essential contractual obligation in the aforementioned sense is such an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place or on the compliance with which the contractual partner regularly relies and may rely. In the case of slight negligence, liability, insofar as it exists, is limited to the amount of damage typical for the contract.
If a claim is made against the customer on the basis of strict liability towards third parties, IMAGINE Engineering GmbH shall only be liable to the customer to the extent that it is liable to the customer according to the statutory provisions, taking into account these General Terms and Conditions.
For the compensation of damages between IMAGINE Engineering GmbH and the customer the principles of § 254 BGB (German Civil Code) shall apply accordingly. This shall also apply in the event of a direct claim against IMAGINE Engineering GmbH.
The obligation to pay compensation is excluded insofar as the customer, for his part, has effectively limited liability towards his contractual partner. In doing so, the customer shall endeavour to agree liability limitations to a legally permissible extent, also in favour of IMAGINE Engineering GmbH. He undertakes to do so.
Claims of the customer are excluded to the extent that the damage is attributable to violations of operating, maintenance and installation instructions attributable to the customer, to suitable or improper use, incorrect or negligent treatment, natural wear and tear or incorrect repair, to the extent that these are attributable to the customer's sphere of risk according to the contractual agreement.
The customer shall inform and consult IMAGINE Engineering GmbH immediately and comprehensively if he wants to make use of the above provisions. He shall give IMAGINE Engineering GmbH the opportunity to investigate the case of damage. The parties shall agree on the measures to be taken, in particular in case of settlement negotiations.
The limitations and exclusions of liability according to this clause shall apply to the same extent in favour of the legal representatives, executive and non-executive employees and other vicarious agents as well as subcontractors of IMAGINE Engineering GmbH.
12. Contractual Penalties, Liquidated Damages
Regardless of the type of damage (claims for defects, compensation instead of or in addition to performance, compensation for delay, product liability, etc.), the customer must calculate the damage incurred by him in concrete terms. A lump-sum calculation of the claim for damages is not possible, contractual penalties are not agreed between the parties. The agreement of lump sums for damages and contractual penalties can only be made in an individual contract and must be in writing.
13. Use of Production Means and Confidential Information of the Customer, Documents of IMAGINE Engineering GmbH
Models, matrices, templates, samples, tools and other manufacturing equipment, as well as confidential information provided to IMAGINE Engineering GmbH by the customer and paid for in full by the customer, may be used by IMAGINE Engineering GmbH for deliveries to third parties, even without prior consent of the customer. This applies to confidential information insofar as it is used but not disclosed. The property rights to these items are determined by the legal regulations.
We reserve the right of ownership and copyright to cost estimates, drawings, calculations and other documents; they may not be made accessible to third parties
14. Retention of Title
IMAGINE Engineering GmbH delivers to the customer only on the basis of the reservation of title described in detail below. This shall also apply to all future deliveries, even if IMAGINE Engineering GmbH does not always expressly refer to it.
Until full payment of all claims arising from the business relationship including any additional costs incurred (discount charges, refinancing or reverse bill of exchange, interest etc.), the delivery items remain the property of IMAGINE Engineering GmbH, even if they have been ordered for resale or the purchaser has been granted a payment term (reserved goods). The reserved goods may only be passed on in the ordinary course of business.
By processing these goods, the buyer does not acquire ownership of the completely or partially manufactured goods; the processing is free of charge and exclusively for IMAGINE Engineering GmbH. Should the retention of title nevertheless expire due to any circumstances, IMAGINE Engineering GmbH and the customer agree already now that the ownership of the goods shall pass to IMAGINE Engineering GmbH upon processing, which accepts the transfer of ownership. The customer shall remain their custodian free of charge.
In the case of processing with goods still owned by third parties, we shall acquire co-ownership of the new items. The extent of this co-ownership is determined by the ratio of the invoice value of the goods delivered by us to the invoice value of the remaining goods.
The customer hereby assigns to IMAGINE Engineering GmbH the claim arising from a contract for the transfer of the goods subject to retention of title (as a rule but not exclusively the purchase price claim) including value added tax, also to the extent that the goods have been processed. IMAGINE Engineering GmbH hereby accepts the assignment. If the customer receives such a claim settled by payment to his bank account, he hereby assigns his claim against the bank to IMAGINE Engineering GmbH, which hereby accepts the assignment.
If the processed product contains, apart from the seller's goods subject to retention of title, only such items which either belong to the purchaser or which have been delivered only under the so-called simple retention of title, the purchaser assigns the entire purchase price claim to IMAGINE Engineering GmbH. In the other case, i.e. if the advance assignment to several suppliers coincides, IMAGINE Engineering GmbH is entitled to a fraction of the claim, according to the ratio of the invoice value of its reserved goods to the invoice value of the other processed objects.
IMAGINE Engineering GmbH undertakes to release the securities to which it is entitled according to the above conditions at its own discretion at the request of the customer, insofar as the realisable value of the securities exceeds the claims to be secured by more than ten percent.
As long as the ownership has not yet been transferred to the purchaser, the purchaser undertakes to handle the ordered goods with care. In particular, he is obliged to insure them sufficiently at his own expense against theft, fire, breakage and water damage at replacement value. IMAGINE Engineering GmbH is entitled to take out this insurance at the expense of the customer. If maintenance and inspection work has to be carried out, the customer has to carry this out in due time at his own expense. As long as the ownership has not yet been transferred, the customer shall immediately inform IMAGINE Engineering GmbH in writing if the delivered item is seized or exposed to other interventions by third parties.
During the period of retention of title, the customer is not entitled to pledge the delivered item or to assign it as security.
15. Safety Regulations
It is expressly pointed out to the purchaser that he must observe the relevant safety regulations according to the respective country-specific regulations. If, in the case of delivery to foreign countries, safety regulations exist in the country of the purchaser, in particular for the approval, maintenance and handling of the delivery items, the purchaser alone is obliged to comply with them.
The customer shall indemnify IMAGINE Engineering GmbH from all claims of third parties for violation of such regulations.
16. General Provisions
When determining the amount of any claims for compensation to be fulfilled by IMAGINE Engineering GmbH, the economic circumstances of IMAGINE Engineering GmbH, the type and scope as well as the duration of the business relationship, possible contributions of the customer to the cause and/or fault and all other circumstances of the individual case in accordance with § 254 BGB (German Civil Code) shall be taken into account appropriately in favour of IMAGINE Engineering GmbH. In particular, the compensation, costs and expenses to be borne by us must be in reasonable proportion to the value of the order.
If one of the contracting parties suspends payments or if insolvency proceedings are applied for over its assets or out-of-court settlement proceedings are applied for, the other contracting party is entitled to withdraw from the contract for the unfulfilled part and/or to terminate it.
Should any provision of these terms and conditions and of the further agreements reached be or become invalid, the validity of the rest of the contract shall not be affected. The contracting parties are obliged to replace the invalid provision by a provision that comes as close as possible to the invalid provision in terms of its economic result.
The law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
Subject to any special provisions in these Terms and Conditions of Business, the place of performance shall be governed by the statutory provisions. Deviating agreements can only be made on an individual contract basis and must be made in writing, unless they are already included in these Terms and Conditions.
The place of jurisdiction for all legal proceedings is the place of business of IMAGINE Engineering GmbH, provided that the customer is a merchant, a legal entity under public law or a special fund under public law. IMAGINE Engineering GmbH shall have the right, at the discretion of IMAGINE Engineering GmbH, to also assert claims against the customer at the customer's general place of jurisdiction.