IEM GmbH - General Terms and Conditions of Sale
- General – Applicability
Our terms and conditions of sale shall apply exclusively; we shall not recognise conflicting terms and conditions, or those deviating from our own terms and conditions of sale, put forward by the customer except where we have expressly consented to their applicability in writing. Our terms and conditions of sale shall also apply even if we delivered to the customer without reservation in full knowledge of the customer's opposing terms and conditions or terms and conditions deviating from our own terms and conditions of sale.
All agreements made between us and the customer in order to fulfil this agreement shall be set down in writing within this Agreement. Subsidiary agreements and modifications/supplements must be made in writing. This shall also apply to any waiver of this written form requirement.
Insofar as these terms and conditions contain regulations applicable to commercial transactions, they shall only apply in respect of a contractor acting as part of his/her commercial or independent professional activities when concluding the Agreement, and in respect of a legal entity governed by public law or a special-purpose entity organised under public law.
- Offer – Offer Documentation – Performance Changes
Our offers are subject to change. Following the customer's order, the Agreement shall be concluded by means of our written order confirmation. Our written order confirmation shall be authoritative for determining the content of the Agreement.
We hereby reserve ownership of and copyright over all images, drawings, calculations, documents and other records (even those in electronic form). The customer shall require our express written consent before forwarding them to third parties.
We hereby reserve the right to make changes to the object of the Agreement without prior notice during the delivery period providing such changes do not result in any impairment of quality or other unreasonable changes to the object of the Agreement and its outward appearance for the customer. In particular, technical changes, improvements in keeping with the latest business and technology, improved design and material selection shall all be reasonable for the customer.
Conclusion of the Agreement shall be subject to full and timely delivery to us by our own suppliers. This reservation shall not apply to short-term delivery disruptions or to scenarios in which non-delivery is attributable to us. We shall inform the customer about the non-availability of the goods immediately. Any payments already made by the customer shall be promptly refunded.
- Prices – Payment Terms
All prices shall be specified in Euros. In commercial transactions, statutory value added tax shall not be included in our prices; it shall be stated separately on the invoice at the statutory amount on the date of invoicing. In transactions with consumers, the prices specified shall be final prices, in other words they shall include all pricing components, including statutory German value added tax.
Unless the order confirmation states anything to the contrary, our prices shall be ex works and exclusive of packaging, shipping, freight, postage, customs and insurance costs; such items shall be invoiced separately.
The deduction of an early payment discount shall not be permitted unless expressly agreed upon in writing. Unless the order confirmation states otherwise, invoices shall be payable immediately and net (without deductions). The statutory rules concerning the consequences of payment arrears shall apply.
The customer shall only acquire the right to offset where its counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer shall only be entitled to exercise a right of retention where its counterclaim relates to the same contractual relationship. We shall be entitled to offset and exercise rights of retention as permitted by law.
In commercial transactions, the customer shall only be entitled to a right of retention, even if the counterclaim relates to the same contractual relationship, insofar as its counterclaims are legally established, undisputed or have been acknowledged by us.
In the event of a significant deterioration of the customer's financial situation following conclusion of the Agreement which may jeopardise our claims to counter-performance, or if we become aware of inadequate solvency on the part of the customer, or where the customer has given false information regarding its creditworthiness upon conclusion of the Agreement, then where we are obligated to advance performance, we shall be entitled to refuse performance until such time as counter-performance is rendered or security is provided for said counter-performance. Where the customer is unwilling to either render counter-performance or provide security in return for our performance in spite of being requested to do so with a reasonable deadline, we shall be entitled to withdraw from the Agreement.
- Delivery Time
The start of the delivery time specified by us shall be subject to clarification of all technical and commercial issues and to such points being set down in writing in advance. Delivery periods and dates agreed upon shall always be approximate and non-binding unless otherwise expressly agreed upon in a particular case.
Compliance with our delivery obligation shall also require timely and proper fulfilment of the customer's obligation in advance. The defence of non-performance of the Agreement remains hereby reserved. In particular, we hereby reserve the right to withhold performance not yet provided when the customer does not pay for partial performance already rendered.
Partial deliveries that are reasonable to the customer shall be permitted without any special agreement.
If the customer delays acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for any damages incurred by us in this respect, including any additional expenditure incurred. The right to further claims is hereby reserved.
Incidents of force majeure shall entitle us to postpone delivery by the duration of the hindrance plus an appropriate lead time or to withdraw from the Agreement, in full or in part, due to the as yet unfulfilled portion of the Agreement. Force majeure shall mean strike, lockout or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which render timely delivery impossible in spite of all reasonable efforts. The onus shall be on us to provide evidence thereof. This shall also apply where the aforementioned hindrances occur during a delay or with subcontractors. The customer shall be entitled to ask us, within two weeks, whether we wish to withdraw from the Agreement or deliver within an appropriate extension period. If we do not declare our intention, the customer shall be entitled to withdraw from the unfulfilled part of the Agreement. We shall notify the customer immediately if a force majeure scenario, as listed above, occurs.
- Transfer of Risk, Insurance
The following shall apply in commercial transactions: Unless otherwise indicated in the order confirmation, delivery shall be agreed upon ex works. Even in the case of carriage paid delivery, the risk of accidental loss of or accidental damage to the goods shall transfer to the customer upon the goods being handed over to the transport company commissioned. In the event of delays in dispatch attributable to the customer, the risk shall transfer to the customer upon notice that the goods are ready for dispatch.
If the customer is a consumer, the statutory provisions regarding transfer of risk shall apply. The risk of accidental loss of or accidental damage to the goods shall transfer to the customer upon the goods being handed over to the customer. If the customer delays acceptance or culpably violates other duties to cooperate, the risk of accidental loss of or accidental deterioration of the delivered items shall pass to the customer at the point at which the latter defaults on acceptance or payment.
Information about the object of the delivery or performance shall not constitute any warranty as to the condition of the goods within the meaning of Section 443 of the German Civil Code unless expressly referred to as such.
If the customer is a consumer, the statutory regulations shall apply. Claims for the reimbursement of expenses or compensation shall only exist within the framework of Article 7.
In commercial transactions, the following provisions shall apply:
Claims by the customer for defects shall require the customer to have properly complied with the inspection and defect notification obligations incumbent upon it in accordance with Section 377 of the German Commercial Code.
In the event of substantiated complaints on the grounds of defects, we shall be obliged to provide supplementary performance, in the form of rectification of the defect, or to supply an item free from defects (against return of the goods supplied) at our own discretion. In the case of supplementary performance we shall be obliged to bear all costs incurred to rectify the defect, in particular transport, travel, labour and material costs, providing these are not increased due to the purchased item being located at a place other than the place of fulfilment.
If we fail to fulfil this obligation within a reasonable period or where rectification fails in spite of repeated attempts, the customer shall be entitled to reduce the purchase price or withdraw from the Agreement. Further claims, particularly claims for the reimbursement of expenses or for compensation, on the grounds of defects or consequential damages, shall only exist within the framework of the rules in Article 7.
The limitation period for claims for defects shall be 12 months, calculated from the transfer of risk. The limitation period in the case of a delivery recourse pursuant to Sections 478 and 479 of the German Civil Code shall remain unaffected.
Liability for quality or durability guarantees and liability for the fraudulent concealment of defects, malicious intent, gross negligence and for injury to life, limb or health shall remain unaffected by the foregoing provisions. In such cases, the statutory provisions and warranty periods shall apply.
Claims due to quality-related defects shall not exist when the damage or defect is attributable to natural wear and tear or has resulted from the purchased item being incorrectly handled.
We have no influence over the correct transmission of data across telecommunications networks operated by third parties or across Internet networks. We therefore do not accept any liability in this respect.
By agreement with the customer we shall be entitled to have rectification work carried out by a third party commissioned by us.
In all cases in which we are obliged to reimburse expenses or pay compensation based on contractual or statutory foundations of claims, we shall only be liable insofar as our management personnel and vicarious agents are guilty of malicious intent, gross negligence or an injury to life, limb or health. Strict liability in accordance with the Product Liability Act shall remain unaffected. Liability for the culpable violation of material contractual obligations (= obligations whose fulfilment enables proper execution of the Agreement and that the contractual partner may reasonable rely on fulfilment of) shall also remain unaffected; liability in this respect however shall be limited to foreseeable damage typical of the Agreement except in the cases outlined in sentences 1 and 2. The foregoing provisions shall not alter the burden of proof to the customer's detriment.
Regarding Article 6 (5), we shall not be liable for disruptions or shutdowns caused by third-party providers of technical services (network operators etc.).
Insofar as liability for compensation is excluded or limited for us, this shall also apply in respect of the personal liability for compensation of our employees, workers, colleagues, representatives and vicarious agents.
- Third-Party Property Rights
We shall defend the customer against all claims arising from an infringement of industrial property rights or copyright by products supplied within the European Community. If we are at fault – we shall bear any legally imposed costs and compensation payments for the customer, providing the customer informs us of such claims immediately and in writing, has not acknowledged the alleged right infringement and either passes any matters, including any out-of-court schemes, to us or only conducts such matters by agreement with us.
If the customer ceases to use the products supplied in order to minimise damage or for other important reasons, it shall be obliged to notify the third party that stopping use does not constitute an acknowledgement of the alleged infringement of proprietary rights.
Where claims have been asserted, or are to be expected, against the customer pursuant to paragraph 1, we may change the products supplied to an extent that is reasonable to the customer, or replace them, at our own costs, or hold the customer free and harmless from any licence fees in respect of the right holder or third parties. If we do not manage this under reasonable conditions, we shall be obliged to take back the products and reimburse the sums paid less an amount taking into account the period of use. In such cases the customer shall be obliged to return the products.
Where the customer itself is responsible for the breach of proprietary rights, any claims against us shall be excluded.
Further claims by the customer on the grounds of an infringement of third-party proprietary rights are hereby excluded. This exclusion shall not apply in the case of intent or gross negligence nor in the case of injury to life, limb or health.
- Retention of Title
We hereby retain ownership of the delivered item(s) until such time as all payments under the delivery agreement are received in full. In commercial transactions, we shall also retain ownership of the goods until such time as all claims we may have against the customer have been fulfilled, even if the purchase price has been paid for specifically identified receivables. If operating a running account, the retained ownership of the deliverables (retained goods) shall constitute security for our balance due.
The customer shall only be permitted to resell the retained goods during the ordinary course of business. The purchaser shall not be entitled to dispose of the retained goods by any other means, in particular by means of pledges and use as collateral.
In the event of resale, the customer hereby already transfers any claims arising for it out of the resale, together with all ancillary rights, to us until such time as all of our claims have been satisfied in accordance with paragraph 1. At our request, the customer shall be obliged to provide us with all information and supply us with any documentation forthwith which may be required for us to assert our rights against the customer's customer.
Where the value of the securities arising for us exceed our total claim by more than 10%, we shall be obliged to release collateral to an extent of our choosing at the customer's request.
We must be notified of any pledges or confiscation of the retained goods by third parties immediately. Any resulting intervention costs shall always be borne by the customer if they are not to be borne by the third party.
In the case of conduct on the part of the customer in breach of the Agreement, in particular in the case of payment arrears, we shall be entitled, after granting an appropriate extension period – unless this is unnecessary in the particular case – to take back the purchased item. Taking back the purchased item shall constitute a withdrawal from the Agreement on our part. After taking back the purchased item, we shall be entitled to make use of it, meaning we shall be entitled to sell the goods or have them auctioned. The proceeds of the sale shall be offset against the customer's liabilities, including any claims for compensation (particularly for lost profit), less reasonable disposal costs.
- Special Provisions on the Provision of Software
The software provided is protected by copyright. The software is provided to the customer for use in accordance with the provisions thereof. Unless otherwise expressly agreed, the customer shall be granted a simple, non-transferable usage right over the software within the respective delivered item. Use in any other system environment and the production of copies is hereby expressly prohibited.
The customer hereby undertakes not to render the software in any other code form except where permitted to do so under the copyright stipulations.
In the case of material defects in the software, the provisions of Article 6 shall apply accordingly. The following shall also apply:
For warranty claims, it must be possible to reproduce or detect the defect.
The customer must report any defects immediately giving all known information that may be of use in detection thereof. The customer shall be required to take all reasonable measures to facilitate detection of the defect and its cause.
The customer's warranty claims shall not extend to software that has been modified by the customer or used in a system environment not agreed upon in the Agreement except where the customer is able to prove that such usage was not the cause of the reported defect.
The warranty shall be subject to the latest version of the software accepted by the customer. The customer shall be required to accept a new version if this prevents or remedies the defect(s). The customer shall not be obliged to accept a new version where it is unreasonable for it to do so, because the new version deviates significantly from the factors agreed upon in the Agreement. If the customer fails to accept a new version on such grounds, its other warranty entitlements shall remain unaffected in place of supplementary performance. Where a new version of the software is provided, the replaced version must be destroyed or handed back to us upon request.
- Place of Jurisdiction – Applicable Law – Contract Language
If the customer is a businessperson, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be where we have our registered office. We shall however be entitled to bring legal action against the customer in the courts local to it.
Where the purchaser has no general place of jurisdiction in Germany or moves residence or habitual abode outside the Federal Republic of Germany's jurisdiction after concluding the Agreement, then the place of jurisdiction shall be where we have our registered office. This shall also apply where the purchaser's domicile or habitual residence is unknown at the time of instituting the proceedings. Moreover, for our claims against the purchaser, the courts local to the latter's place of residence shall have jurisdiction.
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Insofar as the customer is a consumer within the meaning of Section 13 of the German Civil Code and where his/her habitual place of residence is abroad, the mandatory provisions of this state shall remain unaffected.
The language of the agreement shall be German. Where the contracting partners also make use of another language, the German wording shall take precedence.
- Final Provisions
Rights under this contractual relationship may only be transferred with our prior, written consent.
In the event of individual provisions of this agreement being null and void or invalid, or unfeasible by mutual agreement between us and the customer, this shall not affect the validity of the remaining provisions. The same shall apply in the event of an omission. In place of the invalid or unfeasible provision, or to rectify an omission, the parties shall find a provision which most closely reflects the economic purpose of the provision to be replaced in a legally permissible manner.
13 Special Provisions for Use of the T5 Telemedicine Platform
(1) Within the framework of the technical specifications, the user of the T5 platform shall be able to make use of certain medical measurement data on this platform which can then be saved there and evaluated and shared with certain third parties where necessary. By purchasing a licence for the platform, the customer receives the simple right to register as a platform user and use the platform in accordance with the terms and conditions set out in the individual agreement
(2) The customer hereby undertakes only to make use of this offer while taking into account general data security measures. Introducing or disseminating computer viruses, Trojan horses etc. is strictly forbidden.
(3) The customer shall be solely responsible for use of the platform. He/she shall be required to keep his/her password secure. On becoming aware of any unauthorised use of his/her account, the customer shall be obliged to notify the operator thereof at email@example.com. The customer shall not be entitled to exploit the services in an abusive manner or interfere with the services. He/she shall be prohibited from accessing the services in an automated way, for example using robots or scripts.
(4) In the event of a breach of these usage terms and conditions, or misuse of the services, IEM shall be entitled, after prior warning, to block or delete the customer's account. There is no need for a warning where the breach is so serious that notice is not reasonable for IEM, taking into account the customer's legitimate interests. IEM shall notify the customer of the lockout/deletion with 2 weeks notice and shall allow the customer to save his/her personal data before blocking/deleting the account. Notification by email shall suffice.
(5) IEM shall not accept any warranty or liability for the continual and permanent availability of the services, usability of the services for the customer's intended purpose or for the accuracy or completeness of the content displayed.
IEM's performance obligation shall be limited to technical operation of the platform on the Internet server and connection thereof to an Internet interface. The internal network is directly or indirectly interconnected with the standard Internet network. Accessing the platform on networks not operated by IEM is dependent on third-party performance, over which IEM has no influence. IEM therefore accepts no warranty regarding availability of the networks operated by third parties.
(6) In the case of non-availability of the platform, the cause of which is in an area over which IEM has control (server defect etc.), the customer shall be entitled to have availability restored within a reasonable period of time. If IEM is unable to restore platform availability in spite of the customer's request and in a reasonable timeframe, the customer shall be entitled to terminate the Agreement pursuant to Article 9. The same shall apply to repeated, significant failures of the platform. Further claims for compensation are hereby excluded.
(7) IEM shall not be liable for the loss of data transferred or otherwise used in the platform. Indeed, IEM shall secure the data entered in accordance with current state-of-the-art technology. There shall be no liability or entitlement to restoration.
IEM shall not be liable for any problems/data losses due to browser versions or incompatibilities. IEM shall likewise bear no liability for damages to the customer's computer system or other technical devices, or for the loss of data or other damage arising in connection with use of the services.
(8) The customer is aware of the fact that while sending data over the Internet, third parties may gain knowledge thereof. The customer hereby agrees to the associated risks. IEM's liability for the unintentional publication of confidential content is hereby excluded.
(9) The aforementioned limitations of liability shall not apply in the case of intentional or grossly negligent breaches of obligations by IEM or when issuing a guarantee, in the case of fraudulent concealment of a defect or injury to life, limb or health.
(10) Moreover, in all cases where IEM is obliged to reimburse expenses or pay compensation based on contractual or statutory foundations of claims, IEM shall only be liable insofar as its management personnel and vicarious agents are guilty of malicious intent, gross negligence, or injury to life, limb or health. Liability for the culpable violation of material contractual obligations (= such as those imposed upon the debtor by the content and purpose of the Agreement, or whose fulfilment enables proper performance of the Agreement and on the fulfilment of which the creditor generally relies or may rely) shall remain unaffected. Apart from the scenarios in sentence 1 of this paragraph however, liability in this respect shall be limited to foreseeable damage typical of the Agreement. The foregoing provisions shall not alter the burden of proof to the customer's detriment.
(11) By registering on the platform, the customer shall consent to the collection, storage and use of his/her personal data.
Data is used and stored for the sole purpose of implementing this offer and in compliance with all applicable statutory data protection provisions. The data will not be passed on to third parties. The obligation to disclose information in criminal prosecution cases or on the grounds of some other official or court order shall be an exception to this. Further use shall only take place where the customer has expressly consented to further use of his/her data. The customer may revoke his/her consent to the collection, storage and use of his/her personal data from the operator at any time, which may result in the customer being excluded from the offer.
Further details regarding data protection can be found in the "DATA PROTECTION" section on the platform.
Last updated: 06/2015