§ 1 General Provisions, Scope of Application
(1) These General Terms and Conditions apply to all business transactions with our company, in particular deliveries, services, and offers from ims Umgangstechnik GmbH to businesses (§ 14 German Civil Code), legal entities under public law, or special funds under public law. They also apply to all future business relationships, even if they are not expressly agreed upon again in each individual case. These terms and conditions are deemed accepted at the latest upon receipt of the goods or services, provided that we have drawn attention to their applicability no later than in the order confirmation.
(2) Our offer applies exclusively to industry, trade, crafts, commerce and self-employed professionals.
(3) Any counter-confirmations from the customer referring to their own terms and conditions of delivery and payment are hereby expressly rejected. Deviations from our terms and conditions are only binding upon us if these deviations are expressly confirmed by us in writing. For this reason, all agreements made between us and our customer for the execution of the contract must be in writing. Our employees are not authorized to make any verbal side agreements or give any assurances that deviate from these terms and conditions and the written contract text (order confirmation).
(4) Where necessary for business purposes, we are authorized to store and process the customer's data digitally in accordance with data protection laws (in particular Section 28 BDSG).
§ 2 Offer and conclusion of contract
(1) Our offers are valid for three months and are non-binding. We reserve the right to correct errors, including typographical and calculation mistakes. All offers are ex works from our business location in Bretten.
(2) We reserve the right to make changes to the offer if applicable technical and/or legal standards need to be adapted.
(3) Drawings, illustrations, dimensions, weights, samples, or other performance data are only binding if expressly agreed upon between the parties and the customer has given their written approval. We reserve all proprietary and copyright rights to drawings, illustrations, documents, and other materials. Disclosure to third parties requires our express written consent, particularly of documents classified as "confidential.".
(4) A contract is only concluded upon our written order confirmation or delivery. Amendments and supplementary agreements must be in writing. Orders confirmed by us cannot be cancelled unless we exceptionally agree in writing. In this case, we may demand compensation amounting to 40% of the order volume. The liquidated damages are in any case limited to the industry-standard profit margin.
(5) Descriptions and illustrations of ims products as well as technical specifications are only approximate. We reserve the right to make technical changes until delivery, provided that these changes do not unreasonably prejudice the interests of the customer.
(6) The products are manufactured exclusively according to the technical specifications of our suppliers.
§ 3 Prices and Payment Terms
Unless otherwise stated in the order confirmation, the following shall be deemed agreed:
(1) All prices are net, excluding applicable statutory VAT, and unless otherwise agreed, are ex works Bretten, plus packaging and transport costs. Additional services and deliveries will be charged separately. Repairs, assembly, and other services will be charged according to the actual time and materials required.
(2) Unless otherwise agreed, our invoices are payable in euros within 14 days of the invoice date without deduction.
(3) We reserve the right not to accept payment by invoice for certain orders and to refer you to our other payment methods instead. If costs and interest have already accrued on the principal debt, we are entitled to apply incoming payments first to the costs, then to the interest, and finally to the principal.
(4) Bills of exchange and checks are accepted for the settlement of the debt only on account of payment and do not affect the liability arising from the principal claim until final settlement. A payment is only deemed to have been made when we have unrestricted access to the amount. In the case of the submission of checks, payment is only deemed to have been made when the check has been honored. We are under no obligation to accept checks or bills of exchange.
(5) If we become aware of circumstances that call into question the customer's creditworthiness, such as dishonored checks or bills of exchange or cessation of payments, we are entitled to withhold further deliveries until full payment of the outstanding balance and to declare the entire outstanding balance due immediately, even if we have accepted checks. In this case, we are also entitled to demand advance payments or security.
(6) The customer is only entitled to set-off, retention, or reduction, even if notices of defects or counterclaims have been asserted, if the counterclaims have been legally established or are undisputed. The customer is only entitled to retention due to counterclaims arising from the same contractual relationship.
(7) In the event of late payment, we are entitled to charge default interest at the statutory rate (Section 288 Paragraph 2 of the German Civil Code) as well as reminder fees. If we are able to prove a higher loss due to the delay, we are entitled to claim this amount.
§ 4 Delivery, delivery time and performance time
(1) The delivery dates or deadlines stated by us on the order confirmation are non-binding. A binding delivery date requires our separate countersignature. Verbal agreements are insufficient and not binding.
(2) We shall not be liable for delays in delivery or performance due to force majeure or events that significantly impede or render delivery impossible – such as strikes, lockouts, official orders, etc., even if they occur at our suppliers or subcontractors – even if delivery dates have been contractually agreed upon, and we shall be released from any liability arising from such delays. Such circumstances entitle us to postpone the performance owed for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part with respect to the unfulfilled portion.
(3) If the aforementioned impediment lasts longer than 3 months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the unfulfilled part. If the delivery time is extended or the seller is released from their obligation, the customer cannot derive any claims for damages from this. We may invoke the aforementioned circumstances if we notify the customer without undue delay.
(4) At the customer's request, we shall declare whether delivery will be made within a period to be determined by us, or whether we will withdraw from the contract. Claims for damages by the customer are excluded in any case.
(5) If we are in default of delivery for reasons for which we are responsible, the customer is entitled to claim liquidated damages for each full week of delay amounting to 1% of the delivery value, up to a maximum of 10% of the delivery value. The customer is not entitled to claim any further damages.
(6) If deadlines cannot be met for reasons beyond our control, withdrawal from the contract due to the delay is excluded. If the failure to meet the deadlines is our responsibility, and the customer has granted us a reasonable grace period, the customer is entitled to withdraw from the contract after the fruitless expiry of this grace period. Claims for damages due to non-performance (damages in lieu of performance) are not available to the customer under the provisions of these terms and conditions.
(7) We reserve the right to make partial deliveries and provide partial services; these may be invoiced separately. If the customer is in default of acceptance, we are entitled to claim compensation for any resulting damages. Upon the occurrence of default of acceptance, the risk of accidental deterioration and accidental loss passes to the customer. The provision in point 6 of the General Terms and Conditions remains unaffected.
(8) If the customer defaults on acceptance or if the shipment of the goods is delayed or postponed at their request, the customer shall pay us the storage costs incurred, beginning one month after the default of acceptance or notification of their request. We may also use a forwarding agent for storage. The customer shall pay a flat rate of €50.00 per day for storage, although we reserve the right to prove and claim higher storage costs. The customer reserves the right to prove that no or lower storage costs were incurred.
(9) The delivery period is considered met when the goods have been handed over to the carrier or have left our warehouse for shipment. If shipment becomes impossible through no fault of our own, the period is considered met upon receipt by the customer of notification of readiness for shipment.
§ 5 Subcontractors
We are entitled to use subcontractors to fulfill our contractual obligations.
§ 6 Transfer of Risk
The risk passes to the customer upon handover to the freight forwarder, carrier, or other person designated to carry out the shipment, even if carriage-free delivery has been agreed. If shipment becomes impossible through no fault of ours, the risk passes to the customer upon notification of readiness for shipment. At the customer's request and expense, we will insure the shipment against theft, breakage, transport damage, fire, and water damage.
§ 7 Retention of Title
(1) Until full payment of the agreed purchase price, all delivered goods, including the associated documentation, remain our property. This retention of title applies until all claims arising from the business relationship with us, whether existing or future, have been paid in full.
(2) The customer shall store the goods subject to retention of title with due care and insure them adequately at his own expense against fire, water damage, theft and other risks of damage. The customer hereby assigns to us his corresponding claims under the insurance contracts upon conclusion of this agreement.
(3) The goods remain our property until full payment has been received. Any processing or transformation of the goods is always carried out on our behalf, but without any obligation on our part. If our (co-)ownership is extinguished by combination, it is hereby agreed that the customer's (co-)ownership of the resulting item shall be transferred to us in proportion to its value (invoice value). The customer shall hold our (co-)ownership in trust free of charge.
(4) The customer hereby assigns to us any claim arising from the resale of the goods or the sublicensing of the software. The customer is revocably authorized to collect these claims. At our request, the customer must disclose the assigned claim and its debtor. ims is entitled to disclose the assignment to the customer's debtor.
(5) Our customers are generally prohibited from incorporating our property into a building before full payment has been received, thereby making it an integral part of the building. If the customer acts contrary to this agreement, they shall be liable to compensate us for any resulting damage or loss of revenue, which applies in particular in the event of the end customer's insolvency.
(6) The customer shall not pledge or assign our goods as security before full payment has been received. The customer hereby assigns to us, as security, all claims arising from any resale or other legal basis (e.g., insurance, tort) relating to our goods subject to retention of title (including all balance claims from current accounts) until our principal claim for the delivery has been settled. We revocably authorize the customer to collect the assigned claims on our behalf and in their own name.
(7) In the event of sales of our goods before payment of our related invoices, the customer shall retain title to the goods and indicate our retention of title.
(8) The customer is obligated to adequately insure the goods provided to him – whether in their original condition or modified – against all usual risks, in particular fire, burglary and water damage, and to treat them with care until our invoices relating thereto have been paid in full. Furthermore, he undertakes to provide us with information at any time regarding the whereabouts of the goods and any claims arising from their resale until full payment has been received.
(9) In the event of third-party access to our property, such as seizure measures, the customer shall indicate our ownership and notify us immediately so that we can enforce our ownership rights against the third party. The customer shall bear the costs of notification. If the third party is unable to reimburse us for the resulting legal or extrajudicial costs, the customer shall be liable for these costs.
(10) In the event of a breach of contract by the customer – in particular default of payment – we are entitled to repossess our property or, if applicable, to demand assignment of the customer's claims for surrender against third parties. The customer hereby assigns to us any claims for surrender against third parties. The repossession or seizure of the goods subject to retention of title by us does not constitute a withdrawal from the contract.
§ 8 Liability for Defects and Warranty
(1) We warrant that our products are free from manufacturing and material defects at the time of the transfer of risk. For new goods, the warranty period for business customers is one year from the transfer of risk. For used goods or display items, the warranty is excluded. The same applies to contracts for work and services, provided that no acceptance has taken place. The statutory limitation period for fraudulent concealment and under the Product Liability Act remains unaffected.
(2) Obvious defects must be reported in writing by businesses immediately, but no later than one week after delivery – in the case of work services, after acceptance. Hidden defects must also be reported in writing immediately upon discovery. If no notification of defects is received within the specified time, the deliveries and services are deemed accepted as free of defects. The use or processing of defective products without our prior consent will result in the loss of all warranty rights.
(3) Illustrations, technical specifications or samples in brochures and other informational materials do not constitute guaranteed characteristics, but are to be considered approximate. Technically caused deviations in design, material, construction or color do not constitute a defect.
(4) In the event of a justified complaint regarding defects, the customer may, at our discretion, demand either repair or replacement (subsequent performance). We are entitled to refuse the chosen form of subsequent performance if it would only be possible at disproportionate cost. If subsequent performance fails twice or is unreasonable, the customer may demand a reduction in price or – in the case of defects that are not merely insignificant – withdraw from the contract.
(5) For the purpose of subsequent performance, we may, at our discretion:
a) demand that the defective part be sent in for repair;
b) send a service technician to the product's location to carry out repairs.
If, at the customer's request, the remedy is carried out outside our business premises, even though this is not the place of performance, the customer shall bear the resulting labor, travel, and accommodation costs at the applicable rates. Replacement parts covered by the warranty are provided free of charge. Replaced parts become our property.
(6) Warranty claims do not exist if:
a) Products are installed, operated or maintained contrary to our instructions,
b) Changes, modifications or repairs are carried out by the customer or third parties,
c) unauthorized spare parts or consumables are used,
d) the defect is due to external influences, unsuitable building ground or normal wear and tear.
(7) Wear parts and batteries/accumulators are excluded from the warranty.
(8) Warranty claims are exclusively available to the direct contractual partner and are not transferable.
(9) Further warranty claims – regardless of their legal basis – are excluded unless they are based on a written warranty or are subject to mandatory statutory provisions. No additional guarantee is assumed unless expressly agreed and confirmed in writing.
§ 9 Liability
(1) In the case of intent or gross negligence, regardless of the legal basis, we are liable in accordance with statutory provisions. We are not liable in the case of slight negligence.
(2) All claims for damages due to injury to life, body or health and claims based on the provisions of the Product Liability Act remain unaffected. Also unaffected are all claims for damages arising from a breach of a cardinal obligation or a material contractual obligation; however, liability in this case is limited to compensation for the typically foreseeable and actually incurred damage.
§ 10 Testing and maintenance services (e.g. UVV and DGUV)
Our inspections are carried out in accordance with the state of the art and applicable legal regulations. Liability for indirect damages resulting from failure to carry out repairs exists only in cases of gross negligence or intent.
§ 11 Development contracts
(1) Insofar as ims Umgangstechnik GmbH provides development services on behalf of the customer (e.g. design, prototype construction, software development or system integration), all rights to designs, drawings, models, software and other results of the development services – including all intellectual property rights – remain with ims Umgangstechnik GmbH, unless expressly agreed otherwise in writing.
(2) We grant the customer a simple, non-transferable right to use the results created within the scope of the development contract, exclusively for the contractual use of the delivered products. Any further use or exploitation, in particular the transfer to third parties or reproduction, is only permitted with our prior written consent.
(3) The customer is obliged to perform necessary cooperation in the execution of development orders and to provide all necessary information in a timely manner.
§ 12 Confidentiality
(1) The contracting parties undertake to treat all confidential information obtained in the course of the cooperation, in particular technical data, drawings, plans, prototypes, know-how and trade secrets, as strictly confidential and not to make this information accessible to third parties, either wholly or in part, or to use it outside the scope of the respective contract without the express written consent of the other contracting party.
(2) This obligation of confidentiality shall continue beyond the duration of the contractual relationship.
(3) The obligation of confidentiality does not apply to information,
- which were demonstrably publicly known or generally accessible at the time of disclosure,
- demonstrably developed independently and without recourse to confidential information,
- must be disclosed due to legal regulations or official orders.
§ 13 Intellectual Property Rights and Software
(1) All copyrights, rights of use and intellectual property rights to all documents, drawings, developments, technical concepts, software, firmware, source codes, programs, databases, CAD models and other documentation and results provided to the customer within the scope of the business relationship remain with us or our licensors, unless expressly agreed otherwise in writing.
(2) The software components (including firmware) provided to the customer are provided exclusively for use in connection with the respective product on the basis of a simple, non-transferable right of use for their intended purpose. Duplication, distribution, publication, decompilation, translation, modification, or any other use is prohibited – subject to mandatory legal exceptions.
(3) Insofar as new technical developments, designs, software solutions, inventions, or other intellectual property-eligible results arise in the course of our services, all rights thereto – in particular patents, utility models, design rights, copyrights, and know-how – belong exclusively to us. The customer expressly acknowledges these rights. Any transfer or licensing of such rights to the customer requires a separate written agreement.
(4) If the customer contributes its own documents, data, specifications, or other content as part of the collaboration, it warrants that this does not infringe any third-party intellectual property rights. The customer shall fully indemnify us against all third-party claims arising from such infringement and shall reimburse us for all costs incurred as a result, including necessary legal defense.
(5) We are not liable for the infringement of third-party intellectual property rights if the delivered products or software were developed or manufactured according to specifications, drawings, or other instructions provided by the customer. In this case, the customer bears sole responsibility for the legal admissibility and shall also indemnify us against any third-party claims.
(6) The Customer is not entitled to remove, alter or obscure any proprietary notices, trademarks, serial numbers or other indications of intellectual property on software or products.
Section 14 Data Protection
We process personal data in accordance with applicable data protection laws. Further information can be found in our privacy policy at https://ims-tec.de/datenschutz/ .
§ 15 Place of jurisdiction and performance
(1) The place of jurisdiction for legal proceedings against a merchant, a legal entity under public law, or a special fund under public law is the registered office of ims Umgangstechnik GmbH in Bretten, Germany. The same applies to private individuals domiciled abroad. We are also entitled to bring legal action against the customer at their place of residence. German law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Unless otherwise stated in the order confirmation, the place of performance for all obligations arising from the contractual relationship is our registered office in Bretten.
§ 16 Final Provisions
Should any provision of these Terms and Conditions be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision, a provision that most closely approximates the economic purpose of the invalid or unenforceable provision shall apply. The same applies in the event of a gap in these Terms and Conditions.
