§ 1 Inclusion of the standard terms and conditions of business
1.1 – Under the terms of the contract between imcopex Ltd. (hereinafter „imcopex“) and the customer shall apply exclusively the standard terms and conditions of business made of use here. The terms and conditions that we refer to here are those that were in effect at the time oft he conclusion oft he contract.
1.2 In individual cases additionally to theses standard terms of business there may apply special conditions agreed upon between imcopex and the respective cooperating partner company. These special conditions will always be especially noted.
1.3 The inclusion of any standard terms and conditions of business of a business partner is expressly excluded and considered as being outside of this agreement. This holds true also in cases where imcopex has remained inactive or has not expressly objected to an inclusion suggested through a delivery note or any other kind of commercial document.
1.4 A consent to the inclusion of any standard terms and conditions of business of a customer does not exist even in cases where an agreed upon performance or service has been fulfilled or an unreserved acceptance of a performance, service or payment has taken place.
§ 2 Contracting parties
2.1 IMCOPEX offers ist goods and services (products) exclusively to enterprises defined by § 14 of the German Civil Code (BGB), to freelancers, statutory bodies under public law and to clubs.
2.2 – In the event that IMCOPEX learns after the conclusion oft he contract that the customer is not an entrepreneur as laid down in § 2.1 of these standard terms and conditions IMCOPEX is entitled to rescind the contract after having granted a reasonable grace period.
§ 3 Conclusion of contract
3.1 – The contract between IMCOPEX and the customer will be locked upon as concluded as soon as the customer`s offer and ist acceptance by IMCOPEX are in accordance. The following provisions do need to be observed.
3.2 – 2 According to § 312 g (5) sentence 2 (BGB) the provision 312 g (1) sentence 1 to sentence 3 (BGB) shall not apply. (See also in this context § 312, BGB, in the version in force from August 04, 2011.)
3.3 – The products and services offered by the IMCOPEX web shop represent an invitation to potential customers to declare their wish to conclude a purchase contract.
3.4 – Imcoming orders are the signal for IMCOPEX to start concluding a purchase contract on the terms indicated in the contract.
3.5 – A notice of receipt confirms the order has been received, but does not represent a sales contract.
3.6 – 6 A sales contract requires an explicit declaration of acceptance through IMCOPEX. If there isn`t such a declaration of acceptance, a sales contact results also from the goods being made available for delivery to the transport person. At the latest, however, the sales contract is regarded as existent as soon as the goods have been handed over to the transport person.
§ 4 Data and information
4.1 – The pictorial description of the products offered by IMCOPEX, the details given about them in prospectuses, catalogues, advertisements, other advertising materials, on the internet etc. are to be seen as non-binding and do not constitute a description of the properties of the respective goods. This holds true also in regard to illustrations, colours, product samples, offer descriptions, descriptions in sample books, price lists and other documents.
4.2 – The times of delivery indicated by IMCOPEX are always approximative and not-binding. No claims can be made against IMCOPEX because of the consequences of a late delivery. IMCOPEX reserves the right of installment delivery as far as this is reasonable for the customer, is in the interest of IMCOPEX and is not precluded through the nature of the order. Deliveries are generally made at the risk oft he customer; this holds true also in cases of freight-free deliveries.
4.3 – Prices quoted are net prices; the legally applicable value added tax is not yet included. If, however, the price quoted is a gross price, this will be indicated by a written note.
4.4 – In case of an obvious incorrect price labelling oft he goods offered, IMCOPEX shall be entitled to withdraw from the contract regardless of a possibly existing legal right to appeal. IMCOPEX must declare this withdrawal immediately after becoming aware of this reason for withdrawal. IMCOPEX must declare this withdrawal immediately after becoming aware of this reason for withdrawal.
§ 5 Right to Return
5.1 – A return of goods (taking back or exchange) is excluded, unless there is a legal and/or agreed upon claim. Insofar as rights of return or their legal consequences are stated in the individual articles, these shall take precedence over the General Terms and Conditions.
5.2 – In the case of a return of goods the customer must bear the shipment costs already incurred for the delivery of the goods. The shipment costs for the return oft he goods plus handling fees are also to be borne by the customer, unless the return is justified through the customer having a right of a withdrawal. The risk of loss or deterioration of the goods returned by the customer fall – until they have unimpaired been handed over to IMCOPEX – under the customer`s responsibility. The goods are looked upon as handed over to IMCOPEX when they have arrived in the IMCOPEX storehouse.
5.3 – The acceptance of returned goods by IMCOPEX does not mean an acceptance of the customer`s return demand.
§ 6 Condition of availability
6.1 – 1 In case IMCOPEX – after the conclusion of a sales contract – turns out being unable to meet an unbinding delivery period, the customer will be notified of this without undue delay. If this should be the case again, IMCOPEX will notify the customer again without delay.
6.2 – 2 In case IMCOPEX finds – after the conclusion oft he contract – that the ordered goods are not available, IMCOPEX will notify the customer without delay. If IMCOPEX is not responsible for this non-availibility, IMCOPEX shall be entitled –within a reasonable time after getting to know oft he non-availibility – to withdraw from the contract. Considerations already received will be reimbursed by IMCOPEX without delay.
§ 7 Terms of delivery and payment
7.1 – The goods will be delivered in the packaging units indicated. We reserve the right to make technical changes and alterations as to form, colour or weight unit of the packaging units as long as there are reasonable standard commercial limits to this.
7.2 – As a result of factors that cannot or cannot sufficiently be influenced by IMCOPEX or by the Supplier (so-called force majeure such as weather-related influences), longer delivery periods may occur in individual cases. In such cases IMCOPEX will without delay notify the customer.
7.3 – Partial deliveries are permissible.
7.4 – The delivery note will be sent together with the goods. The invoice will be sent separately by post or electronic means.
7.5 – Shipping costs will be borne by the customer; freight allowances will be taken into account. Please note that for deliveries tot he North Sea islands ad Baltic Sea islands some suppliers and some freight forwarders invoice an island surcharge. 7.5 Shipping costs will be borne by the customer; freight allowances will be taken into account. Please note that for deliveries tot he North Sea islands ad Baltic Sea islands some suppliers and some freight forwarders invoice an island surcharge. There might also be a surcharge if the unloading place is difficult to access, e.g. there are steps to climb, great differences in altitude are encountered, roads are in bad repair etc. The customer is to consult IMCOPEX as to the additional costs that may be incurred in this context. In case the customer does not do so before placing his order, IMCOPEX is entitled to invoice the customer for the additional costs incurred.
7.6 – IMCOPEX principally offers various payment methods. The method of payment wished for by the customer is accepted by IMCOPEX subject to a positive credit screening. IMCOPEX is entitled to assess the customer`s creditworthiness prior to the delivery of goods and in this context may use the services of credit agencies, e.g. Creditreform or Schufa or other ones, which are active in Germany or in the country in which the customer has his corporate seat. In case the customer is regarded as not creditworthy, IMCOPEX is entitled to deliver against prepayment only. The customer will be notified of this without delay. In cases of delivery against prepayment bills of exchange shall not be accepted.
7.7 – Upon receipt the invoice is to be paid immediately without deductions unless the parties concerned have – in the individual case – agreed upon something different. If the payment is not made in Germany, the customer shall bear all the extra costs that arise through the transfer to the account of IMCOPEX. Also the costs that arise because the customer – without justification – has neglected to meet claims for payment shall be at the expense of the customer. The same holds true in the case of the customer falling into insolvency.
§ 8 Delay
8.1 – In the event of default in payment, IMCOPEX shall be entitled to charge default interest at the rate of nine percentage points above the base interest rate of the European Central Bank. The assertion of further-reaching claims for damages – if justified – remains unaffected of this.
8.2 – IMCOPEX shall be entitled to invoice default interest to business partners. This default interest will be due first on the day of settlement date on the invoice. The legal basis of this is § 353 of the German Commercial Code (HGB).
§ 9 Reservation of title rights
9.1 – All delivered goods shall remain the property of IMCOPEX until the satisfaction of all claims against the customer.
9.2 – The customer is not entitled to pledge or assign by way of security to a third party any goods under reservation of title. In case a third party, nevertheless, acquires rights to the goods, IMCOPEX shall automatically become the beneficiary of the transaction. IMCOPEX accepts this transfer. The customer is obligated to notify IMCOPEX without delay if the goods concerned have been pawned, seized or collateralized by a third party.
9.3 – The goods under reservation of proprietary rights shall be freely available as soon and as far their value steadily exceeds the demands against the customer by more than 20 percent.
9.4 – In the event of an open invoice collateral provided serves as a security for the payment balance.
§ 10 Place of performance and transfer of risk
Place of performance for the delivery obligation of IMCOPEX ist he location of the dispatch warehouse of the ordered goods. Deliveries are made at the customer`s risk. This risk is transferred to the customer as soon as the goods are handed over tot he forwarder, carrier etc., i.e. as soon as the goods leave the dispatch warehouse. Delivery through approved modes of transport along suitable routes as well as proper packaging are taken care of by IMCOPEX with all due care and diligence. However, liability will only arise in the event o grossly negligent breach of this duty. Unless expressly agreed upon otherwise in writing, the shipping costs will be borne by the customer. IMCOPEX is entitled (though not obligated) to ensure deliveries in the name and to the account of the customer. Delivery is made to the address derived from the order placement document unless something else has expressly been agreed upon.
§ 11 Offset and retention
The customer is entitled to offset claims made by IMCOPEX only through legally established counterclaims or through counterclaims acknowledged and not disputed by IMCOPEX. The customer is not entitled to transfer any claims of his against IMCOPEX. The customer is not entitled to transfer any claims of his against IMCOPEX.
§ 12 Warranty and obligation to register complaints
12.1 – If the customer is a merchant, he must inspect the goods immediately after delivery within the ordinary course of business and report any defects, wrong deliveries and incompleteness in writing within two days of receipt of the goods at the latest. Otherwise, the goods shall be deemed approved, unless the defect was not recognizable during the inspection. If such a defect becomes apparent later, it must be reported immediately after discovery, at the latest after one week. Otherwise, the goods shall be deemed to have been approved even in view of this defect. Visible differences in quantity must be reported immediately upon delivery of the goods, in writing to us and the carrier. The validity of § 377 HGB remains unaffected.
12.2 – 2 IMCOPEX will either correct defective goods within the statute of limitations or replace the goods in question (obligation of subsequent performance). It is at the discretion of IMCOPEX to decide between the two options. A necessary condition here ist that the cause of the defect existed already at the date of the transfer of risk. Should subsequent performance fail, the customer hast he right to withdraw from the contract or to reduce the remuneration. Any further claims, however, are excluded. No deficiency claims exist in the case of an insignificant deviation from the agreed characteristics of the goods or in the case of a minor impairment of usability. Furthermore, no deficiency claims shall be acknowledged in the events of natural wear, of damages that ocurred after the passage of risk due to improper handling, improper repair work, excessive workload or unsuitable operating materials. The same holds true for damages that may have ocurred because of special external influences not anticipated in the contract. The customer carries the full burden of proof for all claim requirements, in particular for the timely damage itself, for the time that the defect was noticed and for the timely notification of the defect. The claims for defect of quality are limited to 12 months with effect from the delivery date of the goods.
12.3 – In case returned goods are accepted by IMCOPEX, this does not mean an automatic acknowledgement of any warranty claim.
§ 13 Liability
13.1 – Claims for damages and reimbursement of expenses by the customer, regardless of the legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded. This does not apply if IMCOPEX has mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of material contractual obligations. However, claims for damages due to the violation of essential contractual obligations are limited to the foreseeable damage typical for this type of contract, provided that there is no intent or gross negligence or liability due to injury to life, body or health. In the event of IMCOPEX being responsible for a damage sustained by a customer, only compensation in money can be claimed; restitution in kind is excluded.
13.2 – These liability regulations shall apply by analogy also to customer claims against bodies or employees of IMCOPEX.
§ 14 Applicable law & place of jurisdiction
14.1 – The law of the Federal Republic of Germany shall apply under exclusion of the UN Sales Convention.
14.2 – Exclusive place of jurisdiction for all disputes arising from the contractual relationship as well as about its conclusion and effectiveness is Hamburg, if the customer is a merchant, legal entity under public law or special fund under public law.
14.3 – Notwithstanding the above provision, IMCOPEX is entitled to file suit at any general place of jurisdiction permitted by law.
§ 15 Written form
15.1 – Agreements between the parties must be in writing to be valid.
15.2 – Oral agreements require written confirmation by both parties to be effective.
15.3 – The amendment or cancellation of the written form requirement is only possible if the written form is maintained.
15.4 – 4 In deviation from §§ 127 (3), 126a of the German Civil Code (BGB), the submission of a declaration by e-mail is sufficient to comply with the written form, even if the other party is identifiable as the issuer of the declaration and the declaration is not provided with an electronic signature. The user of an e-mail not provided with an electronic signature in accordance with §§ 127 (3), 126a of the German Civil Code (BGB) must allow the content of the declaration to be objected to as correct and, in the event of a legal dispute, waives the objection that the declaration was not submitted by him with the relevant content to the addressee named in the declaration at the time stated in the declaration.
§ 16 Severability Clause
16.1 – 1 If one of the above conditions/provisions should be or become invalid this does not affect the validity of the other conditions. In such an event legal provisions shall take the place oft he invalid provisions unless the parties agree on something else that meets the legal requirements.
16.2 – The same shall apply mutatis mutandis to any lacunae in this contract, i.e. if it should turn out after signing the contract that important points are still unregulated, the legal provisions shall apply. However, it is also acceptable for the parties to bring about legally effective agreement on another solution.