Terms and Conditions

General therms and conditions of sale and delivery IMAWELL GmbH

§ 1. General – Scope of Application

1.1. Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to you without reservation in the knowledge that the buyer's terms and conditions conflict with or deviate from our terms and conditions of sale.

1.2. Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall, in any case, take precedence over these terms and conditions. Subject to proof to the contrary, a written contract or written confirmation from the seller shall be decisive for the content of such agreements.

1.2. Our terms and conditions of sale only apply to companies within the meaning of § 4 BGB (German Civil Code).

1.3. Our terms and conditions of sale also apply to all future business transactions with you.

§ 2. Conclusion of Contract

2.1. Our offers are subject to change. Purchase contracts are concluded only with our written confirmation or acceptance or via delivery of the goods. In the event of delivery at short notice, the invoice may replace the order confirmation. Agreements made verbally or by telephone are binding only if they are confirmed in writing.

2.2. Your order of the goods is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within three weeks of its receipt by us.

2.3. Information in documents, illustrations, brochures, catalogues or other sales documents of the seller, including the piece, weight and dimensional data listed therein, are non-binding unless they are expressly designated as binding.

2.4. The dimensions, weights and quantities stated by us are within customary commercial tolerances and do not constitute a guarantee of quality, even in the seller's offers and order confirmations.

§ 3. Subject Matter of the Contract

3.1. Product specifications (technical data, dimensions, weights, tolerances, load capacity, illustrations, etc.) and samples are for guidance only and represent approximate values, unless the usability for the contractually intended purpose requires exact conformity. They do not constitute a guaranteed quality of our goods without an express promise in text form. Product instructions, in particular regarding the area of application, use and limited shelf life of the product, must be observed.

3.2. In principle, a total delivery quantity tolerance of +/- 10% between the ordered and delivered quantity per quantity unit and order item applies to all products.

3.3. Deviations from product descriptions and specifications are permissible insofar as they are customary in the trade or due to legal regulations or for technical improvement. However, this must not impair their usability for the contractually intended purpose.

3.4. Only our own product designations are decisive for the order, the conclusion of the contract and the processing of the contract, and not any labelling or designations of the order or the ordered object of purchase that you use.

§ 4. Prices – Terms of Payment


4.1. Our prices are based on FCA (Incoterms), including packaging and loading, unless otherwise contractually agreed.

4.2. Unless otherwise stated in the purchase contracts, you shall pay for the goods by making a 100% advance payment when ordering.

4.3. You are entitled to offsetting or retention rights only if the counterclaim is undisputed or has been legally established. Counterclaims from the same contractual relationship are excluded from this offsetting prohibition.

4.4. We are entitled to plead uncertainty in accordance with § 321 BGB in particular if you do not fulfil your existing financial obligations on time despite a reminder, if the limit set by a credit insurer is exceeded or if this limit would be exceeded via the upcoming delivery.

§ 5. Delivery Time

5.1. Delivery times are for guidance only and are only approximate unless they are expressly agreed as binding at least in text form.

5.2. If dispatch has been agreed, the delivery periods and delivery dates refer to the time at which the goods are made available to our drivers or the forwarding agent, the carrier or other third parties commissioned with the transport.

5.3. Our timely delivery requires the fulfilment of your obligations (e.g. agreed advance payment, provision of information and documents). The plea of non-performance of the contract remains reserved.

5.4. The performance period shall be extended accordingly if we are not responsible for the delay and the reasons for this delay were not foreseeable at the time the contract was concluded, such as energy shortages, import difficulties, operational and traffic disruptions, strikes and lockouts, force majeure or delays on the part of our suppliers. We will inform you immediately of any delays in delivery.

§ 6. Delivery

6.1. Delivery is made on an FCA ("Free Carrier") basis. At your request and expense, the goods will be dispatched to another destination (so-called sale by dispatch).

6.2. The risk is transferred when the goods are handed over to the forwarding agent, carrier or other persons commissioned with the transport. This shall also apply to partial deliveries and/or if carriage paid delivery has been agreed and/or the goods are dispatched using our own vehicles. If the handover for dispatch is delayed as a result of circumstances for which you are responsible, the transfer of risk shall take place at the time of notification of our readiness for dispatch. We insure the dispatch of the goods against insurable risks only at your request and expense.

6.3. We are authorised to make partial deliveries if these are usable for you within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and you do not incur any significant additional work or costs as a result.

6.4. Deliveries of orders must be accepted within six months, unless otherwise agreed.

6.5. If the delivery of the goods is subject to default in taking delivery, we may demand a lump-sum storage compensation of 5% of the value of the goods.

§ 7. Transfer of Risk – Packaging Costs

7.1. We take back transport packaging and all other packaging in accordance with the German Packaging Act to our place of business. You bear the costs of the return.

7.2. Even if INCOTERMS of group F are agreed upon, IMAWELL GmbH is not obliged to provide certificates or documents that have not been expressly agreed upon, to carry out customs clearance or to observe measurement and weight systems, packaging, labelling or marking regulations or certification obligations applicable outside the Federal Republic of Germany.

§ 8. Assignment

The assignment of claims against us is effective only with our consent.

§ 9. Warranty – Compensation


9.1. The limitation period for claims due to defects in the purchased item (§ 437 No. 1 and 3 BGB) is one year from delivery.

9.2 In addition to warranty claims, we shall be liable for claims for damages – in particular those arising from tort, organisational fault, culpa in contrahendo or any other fault-based claims arising from breaches of duty – only insofar as we or our vicarious agents are guilty of intent or gross negligence or the damage is based on a breach of material contractual obligations (i.e. obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely) or claims under the Product Liability Act or the General Data Protection Regulation, as well as in the event of the assumption of a guarantee of quality or the fraudulent concealment of a defect. In the event of negligently caused property damage and financial loss, we shall be liable only in the event of a breach of a material contractual obligation but limited to the amount of damage foreseeable and typical for the contract at the time of the conclusion of the contract. Insofar as our liability is regulated above, this also applies to our employees, staff, representatives and vicarious agents.

9.3. Claims for defects are excluded if the goods deviate only insignificantly from the agreed quality or if their usability is only insignificantly impaired.

9.4. In the event of an unjustified notification of defects, we may demand compensation from you for the costs of the defect inspection.

9.5. In the event of a warranty claim, we shall remedy the defect (subsequent improvement) in the scope of subsequent performance or make a replacement delivery at our discretion. We are entitled to make the supplementary performance owed dependent on payment of the invoice due for the delivery item. However, you have the right to retain a reasonable part of the purchase price in relation to the defect.

9.6. Failure of the subsequent improvement is to be assumed only after the second unsuccessful attempt. If the supplementary performance has failed or a reasonable deadline to be set by you for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, you may reduce the contract price or withdraw from the contract at your own discretion.

9.7. The special statutory provisions of supplier recourse for final delivery to a consumer (§§ 478, 479 BGB) remain unaffected.

§ 10. Retention of Title


10.1. The delivered goods shall remain our property until all claims resulting from our business relationship have been fulfilled (hereinafter referred to as "goods subject to retention of title"). In the event of several claims or continuous invoicing of expiring business relationships, retention of title secures our balance claims, even if invoices for individual deliveries have been settled.

10.2. You must store the goods subject to retention of title free of charge with the care of a prudent businessman and insure them at your expense against theft, breakage, fire, water and other damage. All claims against the insurer are hereby assigned to us, and the assignment is accepted by us.

10.3. The goods subject to retention of title may be revocably processed, remodelled and sold by you in the ordinary course of business. However, pledges and assignments as security are prohibited.

10.4. The processing or transformation is carried out for us as manufacturer so that we directly acquire ownership or our joint ownership is established in the event that the processing is carried out using materials of several owners or the value of the processed item is higher than that of the goods subject to retention of title. Joint ownership shall arise in proportion to the value of the goods subject to retention of title (gross invoice value) as compared to the value of the other processed items at the time of processing. If this acquisition of ownership does not occur, you hereby transfer to us your future (joint) ownership of the newly created item in the aforementioned proportion.

10.5. In the event of inseparable mixing or combination with other items to form a single item in which your item is to be regarded as the main item, you hereby transfer to us joint ownership in proportion to the value of the goods subject to retention of title compared to the value of the other items at the time of mixing or combination.

10.6. You hereby assign to us, by way of security, the claims against your customers arising from the resale. In the event of destruction, loss, damage or other impairment of the goods subject to retention of title or the new item, you hereby assign to us, by way of security, the resulting claims against the insurance company or other third parties. If we have only joint ownership, the assignment shall be proportionate to our share of ownership. We hereby accept the assignment.

10.7. You are revocably authorised to collect the assigned claims yourself. Payments made on the claims must be forwarded to us immediately until the secured claim has been settled. The cancellation may be made in the event of legitimate interests, in particular in the event of default of payment, suspension of payment, filing for insolvency (which is not withdrawn within 10 days) or imminent insolvency. In the event of cancellation, you are obliged to provide us immediately with the information and documents required to collect the claims and to notify the debtor of the assignment.

10.8. Should third parties access the items subject to our retention of title or the assigned claims, you must inform them immediately of our ownership position or ownership of the claim and inform us of this. You must reimburse us for the costs incurred in enforcing our rights against the third party if the third party is not in a position to do so.

10.9. We shall release a corresponding part of the items subject to our retention of title or assigned claims at your request and at our discretion, insofar as the realisable value of all security interests amounts to more than 110% of the value of all secured claims. This is assumed to be the case if the estimated value of the securities exceeds 150% of the value of the secured claims.

10.10. In the event of breaches of duty on your part, in particular in the event of default in payment, suspension of payment, insolvency application or fruitless enforcement against you, we shall be entitled to demand the return of the reserved goods even without setting a deadline. However, the demand for surrender or taking possession alone does not constitute cancellation of the contract.

§ 11. Copyright

We reserve the ownership and copyright to offers, illustrations, drawings, samples, catalogues, brochures and other documents made available to the customer in the context of contract initiation and execution. They may not be reproduced or published without our consent.

§ 12. Confidentiality

You shall treat as confidential the contents of the contract and all business and trade secrets and other information learnt in this connection which are marked as confidential or which are to be regarded as confidential according to the circumstances of disclosure or their content and shall not make them accessible to third parties without our express consent. This excludes disclosure to third parties who are professionally obliged to maintain confidentiality.

§ 13. Place of Jurisdiction – Place of Fulfilment

13.1. If you are a merchant, a legal entity under public law, a special fund under public law or have no general place of jurisdiction in Germany, the following applies: Our registered office at the time an action is filed shall be the exclusive place of jurisdiction for all actions filed against us; however, we shall also be entitled to sue you at the court of your registered office.

13.2. The law of the Federal Republic of Germany shall apply.

13.3. Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.

The German text is decisive for the interpretation and legal validity, the English translation is informative.