General conditions for the supply of machines of the
IMS Maschinenbau & Entwicklung GmbH,
recommended by Association of German Mechanical and Plant Engineering e. V.
For use with:
1. a person who, when concluding the contract, is exercising their commercial or independent professional activity (entrepreneur);
2. Legal persons under public law or a special fund under public law.
1. All deliveries and services are based on these terms and conditions as well as any separate contractual agreements. Deviating purchasing conditions of the customer do not become part of the contract, even if the order is accepted.
In the absence of a special agreement, a contract is concluded with the supplier’s written order confirmation.
2. The supplier reserves the property rights and copyrights to samples, cost estimates, drawings and similar information of a tangible and intangible nature – also in electronic form; they must not be made accessible to third parties.
The supplier undertakes to make information and documents designated as confidential by the customer available to third parties only with the customer’s consent.
II. Price and Payment
1. Unless otherwise agreed, the prices apply ex works including loading in the works, but excluding packaging and unloading. Value added tax at the respective statutory rate is added to the prices.
2. In the absence of a special agreement, payment must be made without any deduction to the supplier’s account, namely:
30% down payment after receipt of the order confirmation,
40% after construction approval,
the remaining amount within one month after the transfer of risk.
3. The right to withhold payments or to set off counterclaims is only available to the customer insofar as his counterclaims are undisputed or have been legally established.
III. Delivery time, delivery delay
1. The delivery time results from the agreements between the contracting parties. Their compliance by the supplier assumes that all commercial and technical questions between the contracting parties have been clarified and that the purchaser has clarified all of them incumbent obligations, such as e.g. obtaining the necessary official certificates or permits or has made a down payment. If this is not the case, the delivery time will be extended accordingly. This applies not if the supplier is responsible for the delay.
2. Compliance with the delivery period is subject to correct and timely delivery to us. The supplier will notify the customer as son as possible about any looming delay.
3. The delivery period is met if the delivery item has left the supplier’s works by the time it expires or
readiness for dispatch has been reported. As far as an acceptance has to take place – except in the case of a justified refusal of acceptance – the acceptance date is decisive, alternatively the notification of readiness for acceptance.
4. If the dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, he will be charged for the costs incurred as a result of the delay beginning one month after notification of readiness for dispatch or acceptance.
5. If the non-compliance with the delivery time is due to force majeure, industrial disputes or other events outside of the supplier’s sphere of influence, the delivery time is extended accordingly. The supplier will
inform the customer as soon as possible of the beginning and the end of such circumstances.
6. The customer can withdraw from the contract without setting a deadline if the entire service is finally impossible for the supplier before the transfer of risk. In addition, the customer can withdraw from the contract if the execution of part of the delivery becomes impossible and he has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price applicable to the partial delivery. The same applies to the inability of the supplier. Otherwise, Section VII. 2 applies.
If the impossibility or inability occurs during the delay in acceptance or the customer is alone or predominantly responsible for these circumstances, he remains obliged to provide consideration.
7. If the supplier is in default and the customer suffers damage as a result, he is entitled to demand lump-sum compensation for the delay. It amounts to 0.25% for each full week of the delay, but in total a maximum of 5% of the value of that part of the total delivery that cannot be used on time or in accordance with the contract as a result of the delay.
If the customer sets the supplier a reasonable deadline for performance after the due date – taking into account the statutory exceptional cases – and the deadline is not met, the customer is entitled to withdraw from the contract within the framework of the statutory provisions.
Further claims from delay in delivery are determined exclusively in accordance with Section VII. 2 of these conditions.
IV. Transfer of risk, acceptance
1. The risk is transferred to the customer when the delivery item has left the factory, even if
partial deliveries are made or the supplier provides other services, e.g. has taken over the shipping costs or delivery and installation. If an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the supplier has reported that the goods are ready for acceptance.
The customer may not refuse acceptance in the event of a minor defect.
2. If the dispatch or acceptance is delayed or does not take place due to circumstances that are not attributable to the supplier, the risk shall pass to the purchaser on the day of notification of readiness for dispatch or acceptance. The supplier undertakes to take out the insurance requested by the purchaser at the purchaser’s expense.
3. Partial deliveries are permissible insofar as they are reasonable for the customer.
V. Retention of title
1. The supplier retains ownership of the delivery item until all payments from the delivery contract have been received.
2. The supplier is entitled to protect the delivery item against theft, breakage, fire, water and damage at the expense of the customer
to insure other damage, unless the customer can be shown to have taken out the insurance himself.
3. The purchaser may neither sell nor pledge the delivery item nor assign it as security. In the case of seizures
as well as confiscation or other dispositions by third parties, he must notify the supplier immediately.
4. In the event of breach of contract by the purchaser, in particular default in payment, the supplier is entitled to take back the delivery item after a reminder and the purchaser is obliged to surrender it.
5. Due to the retention of title, the supplier can only demand the return of the delivery item if he has withdrawn from the contract.
6. The application to open insolvency proceedings entitles the supplier to withdraw from the contract and to demand the immediate return of the delivery item
VI. Claims for defects
For material defects and defects of title in the delivery, the supplier warrants, excluding further claims – subject to Section VII – as follows:
1. All those parts are to be repaired or replaced free of charge at the option of the supplier, which turn out to be defective as a result of a circumstance prior to the transfer of risk. The supplier must be notified immediately in writing of the discovery of such defects. Replaced parts become the property of the Supplier.
2. In order to carry out all repairs and replacement deliveries that appear necessary to the supplier, the customer has to give the necessary time and opportunity after consultation with the supplier; otherwise the supplier is released from liability for the resulting consequences. Only in urgent cases of endangering operational safety or to prevent disproportionately large damage, whereby the supplier must be informed immediately, the customer has the right to have the defect remedied himself or by a third party and to demand reimbursement of the necessary expenses from the supplier.
3. Of the direct costs arising from the repair or replacement delivery, the supplier bears the costs of the replacement part including shipping, provided the complaint proves to be justified. He also bears the costs of dismantling and installation as well as the costs of any necessary provision of the necessary fitters and assistants including travel costs, provided that this does not result in a disproportionate burden on the supplier.
4. The customer has the right to withdraw from the contract within the framework of the statutory provisions if the supplier – taking into account the statutory exceptional cases – misses a reasonable deadline set for improvement or replacement due to a defect of quality. If there is only an insignificant defect, the customer only has the right to reduce the contract price. The right to a reduction in the contract price remains otherwise excluded.
Further claims are determined in accordance with Section VII. 2 of these conditions.
5. In particular, no guarantee is given in the following cases:
Unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties,
natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable equipment, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical influences – unless the supplier is responsible for them.
6. If the purchaser or a third party makes improper improvements, the supplier is not liable for the resulting consequences. The same applies to changes to the delivery item made without the prior consent of the supplier.
Defects of title
7. If the use of the delivery item leads to the violation of industrial property rights or copyrights on national territory, the supplier shall – at his own expense – enable the customer the right of further use or
modify the delivery item in a way that is reasonable for the customer so that the infringement of rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period, the customer is entitled to withdraw from the contract. Under the conditions mentioned, the supplier is also entitled to withdraw from the contract. In addition, the supplier will indemnify the customer from undisputed or legally established claims of the property rights holder concerned.
8. The obligations on the part of the supplier stated in Section VI. 7, subject to Section VII. 2, are final in the event of a property right or copyright infringement.
Such obligations only exists if
• the customer informs the supplier immediately of any alleged infringements of property rights or copyrights,
• the purchaser supports the supplier to a reasonable extent in defending against the asserted claims or enables the supplier to carry out the modification measures according to Section VI. 7,
• the supplier reserves the right to take all defensive measures, including out-of-court settlements,
• the legal deficiency is not based on an instruction from the customer and
• the infringement was not caused by the fact that the customer changed the delivery item without authorization
or used it in a manner not in accordance with the contract.
1. If the delivery item through the fault of the supplier as a result of omitted or incorrect execution based on suggestions and advice given before or after conclusion of the contract or due to the breach of other contractual secondary obligations – in particular instructions for the operation and maintenance of the delivery item – cannot be used by the customer in accordance with the contract the regulations of the Sections VI and VII. 2 apply to the exclusion of further claims by the customer.
2. The supplier is only liable for damage that has not occurred to the delivery item itself – for whatever legal reasons:
a. in the event of intent,
b. in the event of gross negligence on the part of the owner/the executive bodies or executive employees,
c. in the event of culpable harm to life, body or health,
d. in the case of defects that he has fraudulently concealed or the absence of which he has guaranteed,
e. in the event of defects in the delivery item, insofar as in accordance with the product liability act for personal injury or property damage to private individuals
used objects is liable.
In the event of culpable breach of essential contractual obligations, the supplier is also liable for gross negligence on the part of non-managerial employees and for slight negligence, in the latter case limited to the reasonably foreseeable damage typical of the contract.
Further claims are excluded.
VIII. Statute of Limitations
All claims of the customer – for whatever legal reasons – become statute-barred after 12 months. The statutory deadlines apply to claims for damages according to Section VII. 2.a – e. They also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and have caused its defectiveness.
IX. Software usage
If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the software supplied including its documentation. It is provided for use with the specified delivery item. Use of the software on more than one system is prohibited.
The customer may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer information – in particular copyright notices – or to change them without the prior express consent of the supplier.
All other rights to the software and the documentation including copies remain with the supplier or with
Software suppliers. Sublicensing is not permitted.
X. Applicable law, place of jurisdiction
1. The law of the Federal Republic of Germany shall apply to all legal matters arising between the supplier and the customer, which is the law governing legal matters arising between domestic parties.
2. The place of jurisdiction is the court responsible for the registered office of the supplier. However, the supplier shall have the right to bring action at the location of the customers headquarters.