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1.1 These General Terms and Conditions of Business and Delivery shall apply to entrepreneurs conducting commercial or freelance business activities and to legal entities under public law. All sales and deliveries shall be subject to these General Terms and Conditions of Business and Delivery of IMPREG GmbH, Eisenbahnstrasse 32, D-72119 Ammerbuch (hereinafter, “IMPREG”). These General Terms and Conditions of Business and Delivery also shall apply to all future business transactions even if they are not referenced individually.
1.2 The customer’s general terms and conditions shall not be part of the contract, even if IMPREG does not object expressly.
2.1 All offers shall be deemed to be non-binding until an order confirmation has been issued in writing. IMPREG reserves the right to prior sale. The contents of the written order confirmation shall prevail exclusively with regard to the acceptance of the contract and the scope of delivery. Amendments and/or changes to and/or collateral agreements regarding orders shall be required to be made in writing to become effective.
2.2 All orders shall be filled based on the assumption that sole responsibility for selecting the appropriate IMPREG Product (hereinafter, “Product” or “Products”) for the intended purpose lies with the customer. Retroactive requests for changes only shall be implemented against reimbursement of costs incurred.
2.3 The subject of the contract shall be the Product as sold with the features, characteristics, and intended use specified in the applicable Product description. Any other or additional features and/or characteristics or any additional intended use shall be deemed to have been agreed-upon only if expressly confirmed by IMPREG in writing. References to standard commercial quality designations and samples shall not constitute guarantees of a Product’s composition and/or shelf life. The same shall apply to references to features of Products contained in IMPREG’s processing instructions. Guarantees regarding composition and/or shelf life pursuant to § 443 of the Civil Code of Germany (BGB) shall be identified explicitly as such.
2.4 Order confirmations shall be issued subject to the availability to IMPREG of the quantity and accuracy of the selected Product or Products at the appropriate time. This provision shall apply only if IMPREG cannot be supplied with the respective Products through no fault of its own including, but not limited to, if IMPREG and its supplier agreed on a congruent covering transaction. The customer shall be notified without delay if a Product is not available. Any consideration received shall be refunded without delay.
2.5 If a Product is delivered more than four months after the respective order was confirmed, IMPREG shall be entitled to adjust the price of the Product to reflect any additional costs incurred for labor and/or material.
3.1 If and when IMPREG and the customer enter into an outline agreement, these General Terms and Conditions of Business and Delivery shall apply in addition to the provisions of the outline agreement for the term of the outline agreement and all individual orders placed under the outline agreement.
3.2 If the customer violates the contract including, but not limited to, default of payment, regardless of any other rights IMPREG may have, IMPREG shall be entitled, after fruitless expiry of a reasonable grace period defined by IMPREG, to rescind the individual order or the outline agreement as a whole and to demand provision of any remaining Products subject to retention of title pursuant to clause 8.
4.1 All Products shall be delivered ex works IMPREG (EXW INCOTERMS 2020) and in all cases at the customer’s expense and risk, including when freight is prepaid or IMPREG’s means of transportation are used. The risk shall be transferred upon provision of the Products to the customer’s carrier, including in the event of any partial delivery or if IMPREG has agreed to provide other services. If IMPREG or the customer’s carrier is unable to carry out a delivery through no fault of IMPREG or if delivery is delayed, the risk of loss and/or of deterioration of the Products shall be transferred to the customer upon the customer’s receipt of the respective notice of readiness for dispatch.
4.2 The cost of reasonable packaging shall be charged to the customer separately based on the applicable packaging price list.
4.3 Partial deliveries shall be subject to the customer’s consent.
4.4 The customer undertakes to accept the Products within eight days since the respective notice of readiness for dispatch. If acceptance is delayed, IMPREG shall be entitled to warehouse the Products at IMPREG’s discretion at the customer’s expense and risk and to charge reasonable warehousing fees. If the customer fails to accept the Products without being entitled to do so, the customer shall pay the agreed-upon purchase price plus the applicable sales tax unless IMPREG can sell the Products elsewhere.
4.5 The customer shall be free to attempt to prove that IMPREG did not incur any damage or that the damage incurred was substantially lower than the purchase price.
5.1 Because production of the Products is partly contingent upon provision by third parties, delivery dates/periods communicated by IMPREG shall be deemed to be non-binding reference dates/periods. All delivery dates/periods shall apply as of the date of issue of the order confirmation. Delivery dates/periods shall be deemed to be binding only if and when they are confirmed as such explicitly in the order confirmation. Fixed-date transactions shall not be made. IMPREG reserves the right to make partial deliveries if and when they are deemed to facilitate speedy processing. Partial deliveries made and invoiced shall be regulated in the payment deadline pursuant to clause 7.2.
5.2 Two weeks after a non-binding delivery date/period has been exceeded, the customer can demand that IMPREG deliver the goods on a specific day within a reasonable period of time. If and when such reasonable timeframe passes fruitlessly, IMPREG shall be deemed to be in default. If and when the customer is entitled to claim damages based on delayed performance, in the case of minor negligence on the part of IMPREG such damages shall be limited to the foreseeable damages typical for this type of contract. IMPREG shall be free to attempt to prove that the customer suffered no or only minor damage due to delayed performance.
5.3 Once the period for performance pursuant to clause 5.2 has expired fruitlessly, the customer shall be entitled to rescind the contract in writing and demand damages in lieu of performance. In the case of minor negligence these damages shall be limited to the foreseeable damages typical for this type of contract.
5.4 If IMPREG is unable to make a delivery during the period of default through no fault of its own, IMPREG shall be liable pursuant to clauses 5.2 and 5.3 unless the damage would also have occurred if the delivery had been on time.
5.5 If and when a binding delivery date/period has been exceeded, IMPREG shall be deemed to be in default upon exceedance of the delivery date/period. The customer’s rights in this event shall be in accordance with clauses 5.2 and 5.3.
5.6 Claims based on delayed delivery cannot be asserted if the reasons for the delay were within the customer’s control.
5.7 If and when inevitable events that cannot be avoided even with the highest reasonable level of diligence occur through no fault of IMPREG but due to external reasons beyond IMPREG’s control including, but not limited to, war, warlike actions, seizure, embargo, natural disasters, fire, pandemic/epidemic (including COVID-19 and the direct and indirect impact of legal, court- or authority-ordered measures), strike, or production disruptions in the industrial arena (hereinafter together, “Force Majeure”) and the occurrence of such events impedes IMPREG from meeting any of its contractual obligations, IMPREG shall be released from meeting its contractual obligations in whole or in part for the duration of the Force Majeure event and shall not be liable for any resulting damages. IMPREG shall notify the customer in writing or in text form within five business days after the occurrence of the Force Majeure event of the estimated duration of the Force Majeure event.
6.1 IMPREG’s warranty shall be limited to coverage of its Products for a period of one year. Responsibility for any additional use of the Products shall lie with the customer and shall not be covered by the warranty. The warranty period shall begin upon provision of the Products to the customer or the customer’s agent. IMPREG’s warranty for the Products specifically shall not apply in the event the customer fails to follow operating or processing instructions, makes changes to the Products, cures the materials in any way other than that specified, replaces materials, or uses consumables other than those listed in the original specifications.
6.2 The customer shall inspect the Products for obvious or transportation-related defects without delay upon delivery and shall notify IMPREG of defects within a one-week period of limitation. Notification of a defect can be submitted in writing or in text form and must include a fully completed complaint report pursuant to IMPREG’s specifications. The complaint report shall be the basis of IMPREG’s verification and assumption of warranty. Notifications of defects without a complaint report cannot be processed. If a defect not apparent during the inspection is detected at a later date, the customer shall notify IMPREG within a one-week period of limitation after detection of the defect in the form specified in phrase 2 above. § 377 of the Commercial Code of Germany (HGB) shall apply furthermore.
6.3 IMPREG shall be given the opportunity to investigate any defects of which it has been notified, also on site and as it stands.
6.4 Failure to adhere to a period of limitation shall result in exclusion of the assertion of a claim under the warranty.
6.5 If a notification of defect is justified and submitted on time, at its own discretion IMPREG shall remedy the defect free of charge or shall deliver a non-defective replacement Product free of charge. If remedying a defect or delivering a replacement Product fails, the customer shall have the right to reduce the amount of consideration (reduction), revoke the contract (revocation), or rescind the contract and assert a claim for damages or for reimbursement of expenses.
6.6 Defects detected in a partial delivery shall not entitle the customer to refuse to accept and pay for the non-defective parts of the delivery. If an all-in price has been agreed-upon, the percentage of the payment assigned to the undisputed part of the delivery shall be made as IMPREG specifies. Standard commercial or minor, technically unavoidable deviations in quality, color, width, weight, equipment, or design may not be disputed. Liability for damages resulting from the customer’s inability to use the Products for the intended purpose shall be excluded.
7.1 All invoices shall be issued on the day of delivery or the day of provision of the Products and shall exclude the applicable statutory sales tax.
7.2 Unless agreed-upon otherwise in writing, invoices shall be due and payable net within 30 days of issue. All additional costs including, but not limited to, bank fees shall be assumed by the customer.
7.3 IMPREG shall be entitled to offset payments against debts owing to IMPREG by the customer including fees and interest.
7.4 If the customer is in default of payment, IMPREG shall be entitled to charge interest in arrears in the amount of nine percent above the applicable base interest rate per year. The customer shall be free to attempt to prove that IMPREG did not incur any damages caused by delayed performance or that the damages were significantly lower than the lump sum.
7.5 In the event the customer is in default of payment or if there has been a significant deterioration in the customer’s financial situation, IMPREG can demand to be paid before making any outstanding deliveries under the business relationship.
8.1 The Product shall remain the property of IMPREG until all receivables outstanding under IMPREG’s ongoing business relationship with the customer have been settled in full. The customer undertakes to treat any and all Products subject to retention of title with due care for the duration of the retention of title and to keep the Products subject to retention of title insured against damages for their replacement value. All other claims IMPREG may have shall remain unaffected.
8.2 The customer may resell and/or reprocess the Products in the customer’s proper course of business. The customer’s right to process and sell reserved goods in the customer’s proper course of business shall end if the customer suspends payment or if insolvency proceedings are filed against the customer’s assets.
8.3 The customer hereby assigns the customer’s future receivables from these sales to IMPREG as security, including to the extent the Products have been processed. This assignment shall be limited to the amount invoiced for the reserved Products which have been processed into new products. IMPREG herewith accepts the assignment. The customer shall be entitled to collect such receivables until further notice. Upon IMPREG’s request, the customer shall notify the third-party debtors of the assignment to IMPREG. The customer undertakes to provide IMPREG with any and all information regarding the collection of assigned receivables. IMPREG shall release all securities granted provided their value exceeds the value of the receivables over the long term by more than ten percent.
8.4 The customer shall handle and process the reserved Products on behalf of IMPREG without IMPREG incurring any obligations as a result. If reserved Products are processed, combined, mixed, or joined with other products not owned by IMPREG, IMPREG shall be entitled to co-ownership of the new products in proportion of the value of the reserved Products (invoiced amount including applicable sales tax) to the remaining processed products at the time of processing. If the customer acquires sole ownership of the new products, the customer shall grant IMPREG co-ownership and shall store the new products on behalf of IMPREG at no charge. The customer and IMPREG hereby agree that the customer shall grant IMPREG pro rata co-ownership of the new products. IMPREG hereby accepts this pro rata co-ownership. If and when reserved Products are disposed of together with other products, regardless of whether or not the reserved Products have been processed, combined, mixed, or joined, the aforementioned granting of pro rata co-ownership shall be limited to the amount invoiced for the reserved Products that are disposed of together with the other products.
8.5 No reserved Products or assigned receivables shall be pledged or assigned as security. Any third parties who gain access to the reserved Products or assigned receivables shall be notified by the customer of IMPREG’s ownership and the customer shall inform IMPREG of such access in writing without delay.
8.6 If and when grounds for insolvency are present, the customer shall provide IMPREG with a list of the remaining Products subject to retention of title, including those Products that have been processed, and a list of the receivables against the third-party debtors together with credit memos.
9.1 IMPREG shall be liable within the scope of the law and subject to the provisions specified below regarding damages, regardless of the legal grounds, only in the case of culpability. This provision shall include liability for agents.
9.2 IMPREG’s liability for minor negligence shall be limited to the direct damages typical for this type of contract and the damages shall not exceed the value of the Products purchased by the customer.
9.3 The above limitation of liability shall not apply to claims the customer may have based on product liability pursuant to the Product Liability Act of Germany (Produkthaftungsgesetz), to damages resulting in injury causing death or personal injury, or to violation of material contractual obligations.
9.4 If and when the damages are covered by insurance taken out by the customer for events of damage (does not apply to fixed-sum insurance), IMPREG’s liability shall be limited to the associated detrimental effects to the customer.
10.1 IMPREG and the customer agree that Böblingen, Germany shall be the venue for any and all disputes arising directly or indirectly from the contract and that the location of IMPREG’s establishment shall be the place of performance.
10.2 The contract shall be subject exclusively to the laws of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
10.3 Changes to these General Terms and Conditions of Business and Delivery shall be required to be in writing to become effective. The same shall apply to changes to the requirement of the written form.
10.4 Should any provisions of these General Terms and Conditions of Business and Delivery be or become invalid in whole or in part or lose their validity or enforceability at a later date, the validity of the remainder of the provisions of these General Terms and Conditions of Business and Delivery shall remain unaffected. Any invalid provision shall be replaced by a provision the purpose and intent of which – taking into consideration what is objectively sensible – comes as close as possible to the purpose and intent of the invalid provision. The same shall apply to gaps in these General Terms and Conditions of Business and Delivery.
10.5 The customer only shall be entitled to offset counterclaims that have been acknowledged by IMPREG or have become res judicata. The customer shall be entitled to exercise the customer’s right to retention only if it is based on the same contract.
10.6 In case of any discrepancies between the German and the English version of these General Terms and Conditions of Business and Delivery, the German version shall prevail.
IMPREG GmbH 14.10.2004
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