The Imaging Source Asia Co., Ltd.
1.1 The following General Terms and Conditions of Sale and Delivery (hereinafter referred to as "GTCS") apply to all - including future similar - contracts between The Imaging Source Europe GmbH (hereinafter referred to as "Seller") and such clients who are entrepreneurs in the sense of § 14 BGB (German Civil Code) (hereinafter referred to as "Buyer"). Excluded are such transactions in which the Seller acts as principal/Buyer.
1.2 These GCS apply exclusively. General terms and conditions of the Buyer shall not become part of the contract even if the Seller has not expressly objected to deviating, supplementary or conflicting terms and conditions or confirmation letters of the Buyer.
1.3 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GCS. In all other respects, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GCS. References to the applicability of statutory provisions shall only have clarifying significance.
2. Written Form
All agreements between the seller and the buyer must be in writing. This also applies to changes to the written form requirement itself. The written form requirement is also satisfied by the text form. Legal formal requirements remain unaffected.
3. Offer, Offer Documents, Acceptance, Property Rights
3.1 The offers of the seller are always subject to change, unless otherwise stated in the order confirmation.
3.2 The Buyer's consent to deviations of the order confirmation from the order, which are customary in the industry, shall be deemed given if the Buyer does not object to them in writing within two weeks from receipt of the order confirmation. All deviations made by the Buyer to the Seller in orders or confirmation letters must be clearly highlighted by the Buyer and shall only become part of the contract if the Seller has expressly agreed to them in writing.
3.3 The Seller reserves ownership rights and copyrights to all documents on which the offers are based and which are made available to the Buyer. This also applies to such written documents that are designated as "confidential". The Buyer undertakes to maintain strict secrecy about the contents of the documents and not to use the documents for any other purpose, nor to make them available to third parties or to reproduce them unless the Seller has given its consent. The documents shall be returned to the Seller upon the Seller's request. The confidentiality obligation shall also apply after the execution of the contract and even if the contract should be rescinded.
3.4 Insofar as statements are made in the documents about the properties and characteristics of the product, these shall not be deemed to be a guarantee of quality or durability within the meaning of Section 443 of the German Civil Code (BGB). Required characteristics may be agreed separately between the parties in writing, otherwise the Seller shall be entitled to determine them at its reasonable discretion in accordance with § 315 BGB.
4. Delivery, Dates
4.1 Delivery dates and delivery periods shall always be approximate unless they have been expressly agreed as fixed dates between Seller and Buyer. Delivery periods shall commence with the dispatch of the order confirmation, provided that an agreed down payment has been received. The date of dispatch of the goods shall be decisive for the timeliness of fixed deliveries.
4.2 The Seller shall not be in default of delivery if it is prevented from timely delivery by circumstances for which neither it nor its supplier is responsible. The same shall apply if the Seller is prevented from complying with the agreed fixed delivery date by events of force majeure which are beyond its sphere of influence and which it cannot overcome even by making reasonable efforts (e.g., labor disputes, riots, official measures, war, natural disasters, pandemics, shortage of energy or raw materials, etc.). To the extent of their effect and the duration of the disruption, the Seller shall be released from its performance obligations. This shall also apply if these events occur at a time when the Seller was already in default. This does not imply an automatic termination of the contract. The contracting parties shall be obliged to notify each other of any such impediment and to adjust their obligations to the altered circumstances in good faith.
4.3 In the event of untimely delivery, the Seller shall only be in default after the expiry of a further period of four weeks and a corresponding request by the Buyer (reminder).
5. Shipping, Packaging, Transfer of Risk
5.1 Unless otherwise agreed, delivery shall be ex works (Incoterms 2020). The Buyer shall be obliged to collect the goods or to arrange for shipment. At the request of the Buyer, delivery shall be made by dispatch. Unless otherwise agreed, the Seller shall be entitled to determine the method of shipment. The goods shall be packed by the Seller in a customary and appropriate manner. The costs for shipping, packaging, transport shall be borne by the Buyer.
5.2 In the case of shipment, the risk shall pass to the Buyer when the goods are handed over to the transport person, and otherwise upon expiry of ten days from the date of provision and notification of readiness for call-off.
6. Buyer's Claims for Defects
6.1 A defect shall not be deemed to be an only insignificant impairment of usability or only an insignificant deviation from the agreed quality, nor shall it be deemed to be natural wear and tear or damage occurring after delivery due to improper handling during commissioning or further processing, or due to interaction with unsuitable products provided by the Buyer.
6.2 If a defect becomes apparent upon delivery, inspection of the goods or at any later time, the Buyer shall notify the Seller thereof in writing without undue delay. In any case, obvious defects shall be notified in writing within 10 calendar days from delivery and defects not apparent upon inspection shall be notified within the same period from discovery.
6.3 If the Buyer asserts a claim for defects and demands subsequent performance, the Seller shall have the choice between rectification and subsequent delivery. Subsequent performance shall only be deemed to have failed after the second unsuccessful attempt. Only then can the purchaser assert the statutory claims based on liability for defects. The assertion of claims for defects requires payment on all due claims of the seller against the buyer, but the buyer is entitled to retain a reasonable portion of the purchase price in relation to the defect.
6.4 Claims for damages by the Buyer - on whatever legal grounds - are excluded. This does not apply in cases of intent or gross negligence, due to injury to life or health, for liability under the Product Liability Act, for a guarantee assumed by the Seller by way of exception and in other cases of mandatory legal liability. In the event of a breach of material contractual obligations, liability shall be limited to compensation for foreseeable damage typical of the contract, unless there is liability for injury to life, limb or health. The exclusion of damages shall also apply insofar as the Buyer asserts compensation for useless expenses instead of a claim for damages in lieu of performance.
6.5 The general limitation period for claims arising from material defects and defects of title is one year from delivery. This period shall not apply to claims for damages of the Buyer arising from the Product Liability Act, injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, each of which shall become statute-barred in accordance with the statutory provisions. Other special statutory provisions on the statute of limitations (in particular § 438 para. 1 No. 1,71 para. 3, §§ 444, 445b BGB) shall also remain unaffected.
7. Terms of Payment, Prices
7.1 All prices are in EURO plus the applicable value added tax, in addition, in the case of export deliveries, plus applicable customs duties, fees and other public charges. Costs for shipping are not included and will be charged separately. If delivery is to be made more than three months after conclusion of the contract, the Seller reserves the right to increase the price in accordance with reasonable price changes arising due to changes in wage, material, energy or distribution costs. The Buyer's consent shall be deemed to have been given if the Buyer does not object to the new price in writing within two weeks from the announcement of the new price.
7.2 Before handing over the goods, the Seller shall be entitled to demand from the Buyer the presentation of a confirmation from a bank or other financial institution to the effect that the Buyer has deposited there in favor of the Seller a payment order which will be irrevocably executed as soon as the Seller notifies the financial institution of the delivery or collection of the goods. If the Buyer does not comply with this request or if reasonable doubts about the Buyer's solvency arise during or after the conclusion of the contract, the Seller shall be entitled to withdraw from the contract.
7.3 The Seller shall be entitled to demand from the Buyer a down payment on the purchase price up to its full amount prior to delivery or collection of the goods. If the Buyer fails to comply with this demand, the Seller shall be entitled to withdraw from the contract.
7.4 Payment by the Buyer shall be made by bank transfer. Payment by credit card is not possible, unless otherwise agreed. The invoice amount is due immediately upon receipt of the goods and payable within 10 days. Decisive for the timeliness of payment is the receipt of payment by the seller.
7.5 If the Buyer fails to make payment when due, the outstanding amounts shall bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected. In the case of specially agreed payment by installments, the total debt shall become due immediately if the Buyer is fourteen days in arrears with one installment.
7.6 The Buyer shall only have the right of set-off if his counterclaims have been legally established, are undisputed or acknowledged. He is only authorized to exercise a right of retention insofar as his claim arises from the same contractual relationship.
8. Retention of Title
8.1 The Seller shall retain title to the goods delivered until all claims arising from the current business relationship have been settled in full. He authorizes the Buyer to further process, combine and mix the goods as well as to sell them, provided that this is done in the ordinary course of business and the claims resulting from the disposal of the goods subject to retention of title have not already been assigned to third parties.
8.2 The Buyer hereby assigns to the Seller by way of security all claims against third parties arising from the resale. The Seller accepts the assignment. If the Seller has only co-ownership of the reserved goods, the assignment shall extend to the amount of the claim corresponding to the ratio of the Seller's co-ownership to the remaining co-ownership. The Seller revocably authorizes the Buyer to collect the assigned claim. The Buyer shall immediately pay any amounts collected to the Seller. If the Buyer ceases to make payments to the Seller, the authorization to collect shall expire. The Buyer shall then immediately provide the Seller with all data of the debtor required for independent collection.
8.3 The Buyer shall properly store the reserved goods for the duration of the reservation of title and protect them from damage. Should third parties wish to access the goods subject to retention of title, the Buyer shall immediately inform them of the existing retention of title and immediately notify the Seller of any attempts to access the goods. Any costs of an access of third parties to the reserved goods shall be borne by the Buyer, unless they are reimbursed by third parties.
8.4 If the goods are mixed with other items that are not the property of the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the purchased item to that of the other third-party items at the time of mixing. If the mixing takes place in such a way that the Buyer's item is to be regarded as the main item, the Buyer shall transfer co-ownership to the Seller on a pro rata basis. The Buyer shall hold the sole or co-ownership thus created in safe custody for the Seller. Any combination or processing of the reserved goods with third-party items that are not the property of the Seller shall be made on behalf of the Seller.
9. Other Liability of the Seller
9.1 The Seller's liability for damages, irrespective of the legal grounds, shall be limited in accordance with clause 9.
9.2 The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material to the contract is the obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
9.3 Insofar as liability is not excluded, it is limited to compensation for the typically occurring damage foreseeable at the time of conclusion of the contract.
9.4 The foregoing exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Seller.
9.5 Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
9.6 The limitations of this clause 9 shall not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
10. Other Provisions
10.1 If the Buyer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch) or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be, at the Seller's option, Bremen or the Buyer's registered office. However, Bremen shall be the exclusive place of jurisdiction for any action against the Seller.
10.2 The business relationship of the Seller with the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG) shall be excluded.
10.3 Insofar as the contract or these GCS contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these GCS if they had been aware of the loophole.
11. Contact information
You may use the contact information below if you have any questions about these GCS or your dealings with The Imaging Source Asia Co., Ltd..