General Terms and Conditions of Purchase and Delivery

§ 1 Scope of application; conditions of the customer; changes

These General Terms and Conditions of Sale and Delivery (“GTCSD”) apply to all offers and services of ims GmbH. The AVLB apply in particular to contracts for the sale and delivery of movable goods (“goods”) by ims GmbH. This shall apply irrespective of whether ims GmbH purchases the goods from suppliers or manufactures or processes them itself or adapts them to the customer’s requirements.
Unless differentiated in detail below, the GTCSD apply to both consumers (Section 13 BGB) and entrepreneurs (Section 14 BGB).
By concluding the first contract in which the GCSD are included, the customer also recognizes their validity for all future contracts that he concludes with ims GmbH (also verbally or by e-mail). For the sale and delivery of movable goods, the GCSD in their respective version shall apply as a framework agreement. The current version of the GCSD shall be sent to the customer on request.
The business relationship between ims GmbH and the customer shall be governed exclusively by the AVLB. Deviating, conflicting or additional terms and conditions of the customer shall not become part of the contract. This shall also apply if ims GmbH performs the service to the customer without reservation in the knowledge of the customer’s terms and conditions.
The employees of ims GmbH are not authorized to change the content of the AVLB (in writing or verbally). Written confirmation from ims GmbH (In der Beckuhl 74-76, 46569 Hünxe) is required for this.
References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are amended or expressly excluded in the contract or in these GTCSD.

§ 2 Offer; acceptance period; quality; guarantee; used and new goods; procurement risk

Offers made by ims GmbH are subject to change; they merely represent an invitation to the customer to submit a binding offer. An order or contract placed by the customer constitutes a binding offer to ims GmbH.
ims GmbH may accept the customer’s offer within four weeks of submission of the offer (acceptance period). A contract is only concluded when ims GmbH declares its acceptance in writing or by providing the service or delivering the goods to the customer. Silence in response to an offer from the customer does not constitute acceptance.
A written declaration by ims GmbH is required to prove the content of an agreement relating to the quality or condition of the goods. The same applies to the assumption of a guarantee by ims GmbH relating to the quality or durability of the goods.
Information contained in brochures, advertisements and other offer documents or on the Internet as well as illustrations or drawings of the goods are only approximately descriptive and are not always accurate in every respect. They are only binding if they are expressly designated as binding by ims GmbH. Otherwise, the quality of the goods shall be based solely on the specifications in the contract.
Unless otherwise agreed, used goods are sold in the condition and with the quality that they have when handed over to the customer. The contractual condition of used goods includes, in particular, typical damage due to age, previous wear and tear and previous use of the goods (so-called “wear and tear damage”).
Replacement parts are also considered used goods within the meaning of these GTSD. These are used spare parts that have been reconditioned and regenerated by the manufacturer or by ims GmbH but have a reduced remaining service life.
Goods are new if they have not yet been put into operation (except for test or demonstration purposes or in the course of relocation or transportation). The year of manufacture of an item is not decisive for its qualification as a new item.
Unless expressly agreed in the contract, ims GmbH shall have no procurement obligation. ims GmbH therefore assumes no procurement risk. This shall also apply if goods of a certain type are owed. A written declaration by ims GmbH shall be required to prove the assumption of a procurement risk by ims GmbH.

§ Section 3 Performance periods and handover dates; delay in performance; customer’s right of withdrawal; non-availability of performance; premature performance; partial performance

Insofar as performance deadlines or handover dates are stated in the contract, these are non-binding details based on the expected performance period or usual delivery times for comparable goods. Fixed-date transactions are not concluded. A written declaration from ims GmbH is required to prove that a binding delivery or handover date has been agreed.
If ims GmbH is temporarily prevented from rendering the service owed for reasons for which it is not responsible, the due date shall be postponed until the impediment to performance has ceased to exist. ims GmbH shall inform the customer immediately of the impediment to performance and its expected duration.
If ims GmbH defaults on the performance owed by it, this shall only entitle the customer to withdraw from the contract if it has previously set ims GmbH a reasonable grace period for performance without success. Section 4.1 shall otherwise apply. Section 10 shall apply to claims for damages and reimbursement of expenses by the customer due to a delay in performance or non-performance by ims GmbH.
If the service owed by ims GmbH is not available, ims GmbH shall be entitled to withdraw from the contract if the non-availability is not only temporary and ims GmbH is not responsible for it. Non-availability exists in particular if ims GmbH is not supplied or not supplied correctly by its supplier from a congruent hedging transaction that it has concluded for the purpose of fulfilling its performance obligation. The same shall apply if the service owed cannot or can no longer be provided from ims GmbH’s stock. ims GmbH is obliged to inform the customer immediately of the non-availability of the service and to refund any consideration already received from the customer without delay.
ims GmbH is entitled to premature performance and partial performance. ims GmbH shall be entitled to invoice premature services and partial services immediately. The provisions in this section 3.5 shall not apply if the customer is a consumer.

§ 4 Further rights of withdrawal and termination of the customer; restrictions

The customer may only withdraw from or terminate the contract due to a breach of duty by ims GmbH, which does not consist of the delivery of defective goods, if ims GmbH is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded.
The customer shall not be entitled to withdraw from the contract for economic reasons that lie within his sphere of risk. In particular, the customer is not entitled to withdraw from or terminate the contract because his financial circumstances have deteriorated or his order situation or the possible uses and applications of the goods have changed.
In all other respects, the statutory requirements and legal consequences of the customer’s rights of withdrawal and termination shall remain unaffected, unless expressly provided otherwise in the contract or in these GTCSD.
If the contract is not performed for reasons for which the customer is responsible or at the customer’s instigation, ims GmbH shall be entitled to compensation in accordance with the statutory provisions. In this respect, section 5.5 below shall apply accordingly.

§ 5 Acceptance; sale by dispatch; transportation costs; default of acceptance by the customer; non-acceptance; damages; annual leap and model series change

Acceptance of the goods shall take place at the location agreed in the contract or (if nothing has been agreed in this respect) at the branch of ims GmbH concluding the contract; this shall be the place of performance in each case. If the customer wishes the goods to be delivered to another location (sale to destination), he shall bear the costs of shipment. This also includes customs duties, taxes, fees and other public charges.
Unless otherwise agreed, ims GmbH shall determine the carrier and the type of shipment in the case of sale by dispatch. ims GmbH shall not be liable for the selection and monitoring of the carrier. ims GmbH is also not responsible for selecting the cheapest or fastest mode of shipment. Transport insurance shall only be taken out by ims GmbH on the instruction of the customer. A written declaration from the customer is required as proof of such an instruction. The costs of transport insurance shall be borne by the customer.
If the customer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods as well as the risk of a delay in delivery shall pass to the customer when the goods are handed over to the carrier. This shall also apply if partial deliveries are made or if ims GmbH has arranged for transportation or has assumed the costs of transportation.
If the customer is in default of acceptance or if ims GmbH’s performance is delayed for reasons for which the customer is responsible, ims GmbH may demand compensation for the resulting damage (e.g. storage and transportation costs). In particular, ims GmbH shall be entitled to store the goods itself and to demand a lump sum of EUR 4.00 per calendar day from the agreed handover date or (if no handover date has been agreed) from the notification that the goods are ready until their acceptance. The lump sum is payable plus VAT. The lump sum and the VAT owed on it may not exceed a maximum amount of 5% of the gross purchase price for the goods. The customer reserves the right to prove that ims GmbH has incurred no or only significantly less damage as a result of the storage. ims GmbH shall remain entitled to assert further claims in connection with the storage of the goods and to provide evidence of higher damages; however, the lump sum shall be offset against this.
If the customer does not fulfill his acceptance obligation, ims GmbH shall be entitled to compensation in accordance with the statutory provisions. Within the scope of compensation for damages, ims GmbH shall in particular be compensated for the reduction in value of a machine which occurs at the end of a calendar year (annual change) or due to a change in the model series (model series change) or within the model series, irrespective of actual use, insofar as ims GmbH suffers damage as a result. This shall not affect ims GmbH’s claim under clause 5.4. For the calculation of the lump sum in accordance with clause 5.4 sentence 2, the delivery or handover of the machine in the context of another utilization by ims GmbH shall take the place of acceptance by the customer in this case.

§ 6 Prices; payments by the customer; default of payment

Unless otherwise agreed, the final price to be paid by the customer shall be calculated on the basis of the net prices of ims GmbH applicable at the time of conclusion of the contract plus VAT at the statutory rate.
Payments made by the customer shall always be offset in accordance with Section 366 (2) BGB. This shall also apply if the customer makes a different repayment provision.
If the customer defaults on payment, ims GmbH shall be entitled to interest on arrears at a rate of 12% of the amount in arrears. ims GmbH shall remain entitled to assert further statutory claims. The customer shall be at liberty to prove that ims GmbH has incurred no loss or only a significantly lower loss.
If the customer is in default with the settlement of a claim of ims GmbH in whole or in part, ims GmbH shall be entitled,

(1) to terminate any existing financing or deferral agreement without notice and to declare all claims arising therefrom immediately due and payable;

(2) to withhold payments from contracts that have not yet been fulfilled;

(3) to assert the rights arising from the retention of title (clause 11);

(4) to withdraw from the contract in accordance with clause 7:

§ 7 Withdrawal by ims GmbH; entitlement to compensation for use and damages

ims GmbH shall be entitled to withdraw from the contract in accordance with the statutory provisions. This shall apply in particular if the customer defaults on the settlement of a claim of ims GmbH in whole or in part or violates essential provisions of the contract or the GCSD despite the setting of a deadline or warning.
ims GmbH shall be entitled to withdraw from the contract if it has not yet rendered the service owed and it becomes apparent after conclusion of the contract that ims GmbH’s claim for payment is jeopardized due to the customer’s inability to pay. This is particularly the case if the customer (before or after conclusion of the contract) has made an affidavit in lieu of an oath or if execution is levied against him. In this case, withdrawal is only permissible if ims GmbH has unsuccessfully set the customer a reasonable deadline to effect payment concurrently with performance by ims GmbH or to provide security for this. There is no need to set a deadline if this would also be dispensable by law as a prerequisite for withdrawal.
ims GmbH is entitled to withdraw from the contract if the customer suspends payments or if the customer’s financial situation deteriorates significantly. The same applies if an application for the opening of insolvency proceedings against the customer’s assets is filed or rejected or if the insolvency proceedings are discontinued.
In the event of withdrawal from the contract, ims GmbH shall be entitled to compensation for use. The amount of the compensation for use corresponds to the amount of the usual rent that the customer would have had to pay if he had rented the goods or a comparable item for the period up to its return to ims GmbH. In the case of financing of the purchase price by ims GmbH, however, the compensation for use shall be at least as high as the sum of all down payments and purchase price or financing installments that were owed according to the agreements in the purchase or financing contract up to the time of the return of the goods to ims GmbH. The customer reserves the right to prove that ims GmbH has incurred no or only a significantly lower loss.
ims GmbH reserves the right to assert further claims for damages or compensation for use. However, payments made by the customer in accordance with Section 7.4 shall be offset against any further claims for compensation for use.

§ 8 Offsetting; rights to refuse performance and rights of retention; prohibition of assignment

The customer may only declare offsetting against claims of ims GmbH with undisputed or legally established claims. If the customer is an entrepreneur, he may also assert rights to refuse performance or rights of retention only on the basis of undisputed or legally established claims. This also applies to the commercial right of retention according to §§ 369 to 372 HGB.
Furthermore, rights of retention can only be asserted if the claim of ims GmbH and the counterclaim of the customer are based on the same contractual relationship. This applies equally to entrepreneurs and consumers.
The customer’s right to set off justified counterclaims against ims GmbH’s claim for remuneration for defective or incomplete performance by ims GmbH on account of the costs of remedying defects or completion to which the customer is entitled or to assert the defense of non-performance of the contract for this reason shall remain unaffected in the cases specified in Clauses 8.1 and 8.2. However, the customer may only retain a proportionate part of the remuneration, taking into account the defect or incompleteness.
The assignment of claims against ims GmbH is only possible with the consent of ims GmbH. A written declaration from ims GmbH is required as proof of consent. In particular, the assignment of the customer’s claim for delivery or performance without the consent of ims GmbH is excluded.

§ 9 Claims for defects by the customer; limitation period for claims for defects

The liability of ims GmbH for material defects and defects of title shall be governed by the statutory provisions, unless otherwise stated in the provisions of this Section 9. The provisions in Section 10 shall apply to claims for defects by the customer that are directed at compensation for damages or the reimbursement of futile expenses.
If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether there is a material defect. Section 2.5 applies to the quality of used goods.
Wear and tear damage or damage caused by previous wear and tear shall not constitute a material defect. Furthermore, damage that is causally related to the fact that

(1) the goods were put into operation incorrectly by the customer or a third party or incorrectly installed (in particular not in accordance with the operating instructions);

(2) the goods have been used incorrectly, inappropriately or excessively; or

(3) the goods have not been adequately maintained and cared for; or

(4) the goods have previously been modified or improperly repaired by the customer or a third party without the consent of ims GmbH; or

(5) incorrect spare parts (in particular those that are incompatible or not intended by the manufacturer) have been installed or attachments have been fitted; or

(6) unsuitable equipment has been used or the goods have been exposed to damaging (e.g. physical, chemical, electrical) influences; or

(7) previous defects or damage were not reported to ims GmbH in good time.

If the customer is an entrepreneur, claims for defects against ims GmbH shall also be subject to the following restrictions in this Section 9.3. However, these restrictions shall not apply if claims for damages or reimbursement of expenses pursuant to Section 10. or recourse claims pursuant to Sections 478, 479 BGB are asserted.

(1 ) If the manufacturer has assumed a guarantee for certain properties or the quality of the goods, the customer shall be entitled to the rights arising from the guarantee in addition to and independently of his claims for defects against ims GmbH. If there are material defects or defects of title that are covered by the guarantee, the customer is, however, obliged to first assert his claims under the guarantee against the manufacturer. As long as this has not been done, ims GmbH may refuse to fulfill the customer’s claims for defects. However, the customer is not obliged to take legal action against the manufacturer. Rather, ims GmbH is obliged to fulfill the customer’s claims for defects if and to the extent that the manufacturer does not voluntarily fulfill the claims asserted against it under the warranty or the customer’s claims are not fully satisfied as a result.

(2) ims GmbH accepts no liability for public statements (e.g. advertisements or advertising statements) made by third parties. A third party in this sense is also the respective manufacturer of the goods, insofar as ims GmbH has not manufactured the goods itself.

(3) Claims for defects shall only exist if the customer has fulfilled his obligations to inspect and report any defects in accordance with §§ 377, 381 HGB. Irrespective of this, ims GmbH must be notified of obvious defects within two weeks of acceptance. The notification of defects must be made in writing. Timely dispatch of the notification shall suffice to meet the deadline.

(4) Claims for defects by the customer for used goods are excluded.

(5) If there is a material defect or defect of title, ims GmbH shall initially be entitled, at its own discretion, to subsequent performance by remedying the defect (rectification) or delivery of a defect-free item (replacement delivery). The customer has no right to choose in this respect. ims GmbH may make subsequent performance dependent on payment of the purchase price. However, the customer shall be entitled to retain a proportionate part of the purchase price, taking into account the defect.

(6) The right of ims GmbH to refuse subsequent performance in accordance with the statutory provisions shall remain unaffected. This shall apply in particular if subsequent performance is only possible at disproportionate cost.

(7) If ims GmbH is not obliged to install the goods under the contract, there is no obligation to remove the defective goods or to install defect-free goods or to bear the associated costs, even in the case of a replacement delivery.

(8) The customer shall be entitled to reduce the purchase price or, at his discretion, to withdraw from the contract and to demand compensation for damages or expenses in accordance with clause 10 if subsequent performance has failed or is unreasonable for the customer or if a reasonable deadline set by the customer for ims GmbH for subsequent performance has expired unsuccessfully or is dispensable under the law. The same shall apply if ims GmbH justifiably refuses subsequent performance or if subsequent performance is impossible for ims GmbH. However, there is no right of withdrawal due to an insignificant defect.

(9) If the customer demands that ims GmbH rectify a defect and it turns out that there was in fact no defect, the customer shall be obliged to reimburse ims GmbH for the costs and expenses incurred as a result.

(10) Any further liability of ims GmbH for material defects or defects of title shall be excluded. This shall not apply if ims GmbH has fraudulently concealed a material defect or defect of title or has assumed a guarantee for the quality of the item.4 The customer shall not be entitled to rectify any defects himself and to demand compensation from ims GmbH for the expenses required for this.

The statutory provisions shall apply to the limitation period for the customer’s claims for defects, unless otherwise stipulated in this Section 9.5.

(1) If the customer is an entrepreneur, his claims for defects shall become time-barred one year after acceptance.

(2) If the customer is a consumer, his claims for defects shall become time-barred one year after acceptance if a used item is sold.

(3) Claims for defects for parts that were installed in the course of a rectification of defects shall become time-barred upon expiry of the limitation period for claims for defects with regard to the goods.

(4) The provisions in sections 9.5.1 to 9.5.3 shall not apply if and insofar as ims GmbH has fraudulently concealed a defect. Furthermore, they shall not apply if claims for damages or reimbursement of expenses pursuant to Section 10 or recourse claims pursuant to Sections 478, 479 BGB are asserted. The statutory limitation period for claims for defects relating to buildings (§ 438 Para. 1 No. 2 BGB) or claims in rem for restitution by third parties (§ 438 Para. 1 No. 1 a BGB) shall also remain unaffected.

§ 10 Claims for damages and reimbursement of expenses by the customer

The liability of ims GmbH for damages and reimbursement of expenses is governed by this Section 10. This applies both to the contractual liability of ims GmbH and to its liability in tort or on other legal grounds.
ims GmbH shall be liable in accordance with the statutory provisions for damages caused by an intentional or grossly negligent breach of duty by ims GmbH, its legal representatives or vicarious agents.
ims GmbH shall only be liable for damages resulting from a negligent breach of duty by ims GmbH, its legal representatives or vicarious agents if

(1) material contractual obligations are breached. These are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. Furthermore, obligations that arise from the nature of the contract and whose breach jeopardizes the achievement of the purpose of the contract are also essential.

(2) obligations to respect the rights, legal interests and interests of the customer are violated and the customer can no longer reasonably be expected to accept performance by ims GmbH.

Otherwise, the liability of ims GmbH for simple negligence is excluded.

Insofar as ims GmbH is liable on the merits pursuant to Section 10.3, its liability shall be limited to the foreseeable damage typical for the contract. If the customer is an entrepreneur, this limitation of liability shall also apply to cases in which ims GmbH is liable for breaches of duty by simple vicarious agents (who are not legal representatives or executives of ims GmbH) in accordance with Section 10.2. Compensation for consequential damages, such as loss of profit, is excluded in each case.
If ims GmbH is liable without fault, liability shall also be limited to the foreseeable damage typical for the contract. Section 10.4 sentence 3 shall also apply in this case.
The above exclusions and limitations of liability in sections 10.3 to 10.5 do not apply to the following damages and claims:

(1) Damages arising from injury to life, body or health;

(2) Claims of the customer under the Product Liability Act;

(3) Claims due to fraudulently concealed defects or from a quality guarantee assumed by ims GmbH;

(4) all other cases in which the statutory liability rules are mandatory.

The provisions in this Section 10 shall also apply to any personal liability of the bodies, representatives and vicarious agents of ims GmbH.

§ 11 Retention of title of ims GmbH

ims GmbH retains title to the goods until the purchase price has been paid in full. The transfer of ownership of the goods is also subject to the conditions in sections 11.1.1 and 11.1.2 (extended retention of title).

(1) If the customer is an entrepreneur, ownership of the goods shall not pass to the customer until all existing and future claims of ims GmbH arising from the business relationship with the customer have been paid.

(2) If the customer is a consumer, the transfer of ownership of the goods also presupposes that all claims of ims GmbH against the customer already existing at the time of conclusion of the contract have been paid. In addition, all claims from subsequent transactions relating to the goods (e.g. remuneration for spare parts deliveries or repairs relating to the goods) must also have been paid in full.

(3) As soon as all claims secured by the (extended) retention of title have been paid in full, ownership of the goods shall be transferred; the retention of title shall not be revived for claims arising thereafter.

For the duration of the retention of title, the customer is obliged to treat the goods (“reserved goods”) with care and to maintain them. Any maintenance and inspection work required in accordance with the manufacturer’s specifications and any necessary repairs shall be carried out by the customer at his own expense. ims GmbH or a company recognized by ims GmbH or the manufacturer shall be commissioned to carry out this work.
The customer is obliged to take out and maintain machine insurance for the goods subject to retention of title at his own expense, including in particular the risk of fire and theft. At ims GmbH’s request, the customer shall provide evidence of the conclusion and maintenance of this insurance at any time. The customer hereby assigns to ims GmbH all current or future claims to which the customer is entitled against the insurance company or other third parties in respect of the goods subject to retention of title; ims GmbH accepts the assignment.
The customer shall only be entitled to sell, pledge, transfer by way of security or otherwise dispose of the goods subject to retention of title with the consent of ims GmbH. The leasing of the reserved goods shall also require the consent of ims GmbH. The same shall apply to any export of the reserved goods or their use outside the Federal Republic of Germany. A written declaration from ims GmbH is required as proof of consent.
The customer shall provide ims GmbH with information about the current location of the goods subject to retention of title upon request. ims GmbH must be informed immediately and without being asked of any change of ownership or location of the goods subject to retention of title. The same shall apply to any change of the customer’s residential or business address.
In the event of seizure or other access by third parties to the reserved goods, the customer must inform the third party of ims GmbH’s ownership and notify ims GmbH immediately. If the third party is not in a position to reimburse ims GmbH for the court and out-of-court costs of a successful action (e.g. a third-party action pursuant to § 771 ZPO [German Code of Civil Procedure]), the customer shall reimburse ims GmbH for these costs.
In the event that the customer processes, transforms, combines with other items or sells the reserved goods, the following provisions shall apply in addition:

(1) If a new item is produced by processing or transforming the reserved goods, this shall be done for ims GmbH as the manufacturer. ims GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the value of the new item.

(2) If the goods subject to retention of title are inseparably combined with other movable items not belonging to ims GmbH to form a new item, ims GmbH shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other items. If the goods subject to retention of title are combined with an item belonging to the customer and if the customer’s item is to be regarded as the main item, the customer hereby transfers co-ownership of the new item to ims GmbH in the aforementioned ratio.

(3) The customer shall keep the ownership or co-ownership of the new item created in accordance with the aforementioned provisions for ims GmbH. The customer shall be obliged to provide ims GmbH with all information required to pursue its property rights.

(4) The legal relationships that existed with regard to the reserved goods shall continue with regard to the new item. This applies in particular to the expectant right of the customer. The provisions in this clause 11 shall apply accordingly to the new item.

(5) The customer hereby assigns to ims GmbH as security any claims arising from the resale of the reserved goods or the new item in the amount of the value of the reserved goods; ims GmbH accepts the assignment. This shall apply irrespective of whether the resale takes place with or (contrary to the contract) without the consent of ims GmbH. The customer is obliged in each case to provide ims GmbH on request with all necessary information that ims GmbH requires for the assertion of the assigned claims.

(6) In the event that the customer combines the goods subject to retention of title with a property, he hereby assigns to ims GmbH as security all claims against third parties arising from the combination in the amount of the value of the goods subject to retention of title; ims GmbH accepts the assignment. Clause 11.7.5 sentence 3 shall apply accordingly.8 If the realizable value of the securities to which ims GmbH is entitled exceeds the secured claims of ims GmbH against the customer by more than 10%, ims GmbH shall be obliged, at the customer’s request, to release securities to a corresponding extent at its own discretion. However, this shall only apply insofar as the securities are divisible.

If the customer acts in breach of contract, ims GmbH shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods subject to retention of title. This shall apply in particular if the customer fails to pay claims due and secured by the retention of title despite a reasonable deadline being set or breaches its obligations under this clause 11 despite a deadline being set or a warning. There is no need to set a deadline or issue a warning if this is dispensable under the statutory provisions.
If the customer is an entrepreneur, ims GmbH may demand the return of the goods subject to retention of title without withdrawing from the contract if ims GmbH would be entitled to withdraw from the contract by law or contract. In this case, ims GmbH shall purchase the reserved goods from the customer at the estimated value of an expert after prior notice. The valuation costs shall be borne by the customer. In this respect, ims GmbH shall be entitled to demand a lump sum of 15% of the net purchase price; however, the customer reserves the right to prove that ims GmbH has incurred no or only significantly lower appraisal costs. The purchase price (less the estimation costs) shall be offset against ims GmbH’s outstanding claims against the customer. ims GmbH shall be entitled to issue the customer with a corresponding credit note.

§ Section 12 Written form; severability clause; choice of law; place of jurisdiction

A written agreement is required to prove the content of amendments, supplements or ancillary agreements to the contract. The same applies to proof of an agreement that deviates from sentence 1.
Should individual provisions of the contract or the GTCSD be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The parties shall replace the invalid or unenforceable provision with an agreement that comes as close as possible to the economically and legally intended result of the provision in a legally permissible manner. The same shall apply if a loophole requiring supplementation should become apparent.
The law of the Federal Republic of Germany shall apply to the legal relationship between the customer and ims GmbH. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.
The national and international place of jurisdiction for all disputes arising from and in connection with the contract shall be Duisburg, provided that the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law. This place of jurisdiction shall be exclusive for legal actions brought by the customer against ims GmbH. ims GmbH is also entitled to sue the customer at his general place of jurisdiction.

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