Terms and conditions
The following “Terms and Conditions” are the valid agreement, between Image Engineering GmbH & Co. KG (IE), a German company with all its affiliates, and a Buyer arising as result of, submitting an order either via email or through IE’s webstore, receiving documents via download or email, installing IE’s software, using IE’s software, introducing themselves as customer, using services or products provided and/or manufactured by IE, every business contract and contact shall be governed by these “Terms and Conditions”.
These “Terms and Conditions” shall be given priority over any other “terms and Conditions” which appear in Buyer’s purchase orders, or in any documents and communications provided. IE shall not be bound to any other “Terms and Conditions” which do not correspond with its own “Terms and Conditions”, different, in any manner, “Terms and Conditions” are deemed to be material and are rejected.
No term or condition of Buyer’s purchase order additional to or different from these “Terms and Conditions” shall become part of the contract or overrule these “Terms and Conditions” if not explicitly agreed up on by IE in written form.
At the time of submitting an order, downloading software, requesting service from IE the Buyer agrees to be subject of these “Terms and Conditions” IE’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions or as an acceptance of any such provision in such communication.
In these Terms and Conditions, the following definitions apply:
“Agreement” means the agreement between IE and Buyer for the purchase and sale of Goods and/or Services.
“Buyer” a party arising as result of, submitting an order either via email or through IE’s webstore, receiving documents via download or email, installing IE’s software, using IE’s software, introducing themselves as customer, using services or products provided and/or manufactured by IE, every business contract and contact shall be governed by these “Terms and Conditions”.
“Customized” means customized, adjusted, re-adjusted, enhanced, changed, altered, amended and modified.
“Delivery Point” means the location identified by Buyer in the Purchase Order to which the IE is to deliver Goods and/or perform the services, or such other delivery area or point which is specified in the order confirmation in regards of the mentioned ship-to-address and incoterm as best method, which means that also IE’s premises od qualify as Delivery Point, if incoterms (2020) is FCA or EXW.
“EULA – End User License Agreement” An end-user license agreement (EULA) is a legal contract entered into between a software developer or vendor and the user of the software, often where the software has been purchased by the user from an intermediary such as a retailer. The EULA can be downloaded from www.Image-Engineering.de
“Goods” means the goods that are required to be delivered by IE pursuant to a Purchase Order, and include all materials, component parts, packaging and labelling of such goods.
“Incoterm” or International Commercial Term are a series of pre-defined commercial terms published by the international Chamber of Commerce (ICC relating to international commercial law.
“Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
“Lead-Time” means the time between the order is confirmed and until the delivery is fulfilled in respect to the defined incoterm on the individual order confirmation.
If no Incoterm is defined, EXW is set per default.
“Maintenance of iQ-Analyzer” Customers who wants to get an upgrade version of the Analyzer has to be part of IE software maintenance program that needs to be purchased together with the software. If you wish to continue to be a part of the program, then an annual fee will be charged.
“Product” means any product or other deliverable or result from Services that is referred to in a Purchase Order, and any related materials, data, documentation, and includes any Intellectual Property Rights developed by IE pursuant to such Purchase Order.
“Party” or “Parties” either from the context resulting Buyer or IE, or both.
“Prices” means published sales prices are list prices without VAT and in the currency of EURO €, published prices may increase due to an extended payment-term or usage of payment services like ARIBA, OB10, Xeeva or similar.
“Purchase Order” or PO means the purchase order between Buyer and IE for the purchase and sale of Goods and/or Services, to which these Standard Purchase Terms are attached or are incorporated by reference.
“RMA” Return Merchandise Approval number which is provided by an IE staff member to the Buyer prior to the return shipment and after shipping documents have been approved. Buyer has to mark all parcels of a return shipment with the RMA number in the outside. To receive a RMA number, please contact for or support.
“Sender” to be identified as the place of department of the goods.
“Services” means any services to be provided by IE to Buyer pursuant to a Purchase Order.
“Specifications” means the requirements, attributes and specifications for the Goods or Services that are set out in the applicable Purchase Order. Specifications also include: (a) documentation published by IE relating to the Goods or Services; (b) operational and technical features and functionality of the Goods or Services; (c) standards or levels of service performance for Services; and (d) Buyer business requirements that are expressly set out in a Purchase Order.
“Warranty Period” means in respect of any Goods or Services, the longer of: (i) the express written warranty period provided by IE for the Goods or Services; and (ii) the period commencing on the date of Acceptance of such Goods or Services and ending on the date that is one (1) year from that date.
IE’s product portfolio covers product groups of ISO based and/or self-created, customizable test-charts (aka charts, prints, plates), software and APIs with all its varieties and versions (aka iQ-Analyzer, Analyzer, Analyzer-[1,…9,0], iQ-Analyzer-X, X, iQ-LED API], light-sources (aka light-boxes, -spheres and -studios, illumination devices) including but not limited to light-sources using the self-invented iQ-LED, spectrometers and constructed stands and mounts of any kind, developed, produced or by third-party IEs.
a.) Individual orders, have to be sent in electrical PDF-Form to an email-address which seems to be appropriate as defined under the following link https://image-engineering.de/company/contact, are a binding for Buyer. All orders can be canceled free of charge within 48 hours after confirmation was sent. An insourcing fee of 25% of the total value of the loss for IE will be invoiced after the order has been more than 48 hours confirmed.
Orders which include customized products are binding by any means and cancellations are limited or even not possible. Reimbursements will always be done deducting bank charges. IE reserves the right to reject any order.
Delivery of Goods and Services
IE agrees to supply and deliver the Goods to Buyer and to perform the Services, as applicable, on the terms set out in this Agreement. In the order of first-come, first-serve but remains the right to change this order at a personal interest. IE shall pack, load, and deliver Goods to the Delivery Point and in accordance with the invoicing, delivery terms, shipping, packing, and other instructions agreed up on prior the order. If no instructions are given, IE will perform best method and feel free to invoice on Buyer’s expenses in advance to release the shipment. Title and risk of loss or damage shall pass to Buyer upon receipt of Goods at the Delivery Point, unless otherwise agreed to by the Buyer in writing. Buyer has no obligation to obtain insurance while Goods are in transit from IE to the Delivery Point. A rush fee can be offered where ever a rush-fee is applicable and if capacity is available.
Inspection; Acceptance and Rejection
All shipments of Goods and performance of Services shall be subject to Buyer’s right of inspection. Buyer shall have seventy-two (72) hours (the “Inspection Period") following the delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Buyer shall either accept the Goods or Services (“Acceptance") or reject them. Transfer of title to Buyer of Goods shall not constitute Buyer’s Acceptance of those Goods. Buyer shall provide IE within the Inspection Period notice of any Goods or Services that are rejected, together with the reasons for such rejection. If Buyer does not provide IE with any notice of rejection within the Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods or Services. Buyer’s inspection, testing, or Acceptance or use of the Goods or Services hereunder shall affect IE’s warranty obligations hereunder with respect to the Goods or Services, and such warranties shall start with inspection, test, Acceptance and/or use of the Goods or Services.
If the Buyer identifies defectives or malfunctions, he shall inform IE with all necessary information. It is up on IE’s judgement, if a product is substantially rejected or not. The Buyer shall be entitled to return substantiated rejected Goods to IE at IE’s expense and to repair or replacement of Goods to be received within the fastest possible time period specified by IE mentioning the RMA number. Return shipments without an RMA-number marked at the outside of the packaging will be rejected on sender’s expenses.
If not otherwise stated, the displayed prices are in € and are printed excluding the current VAT. In as far as delivery with an invoice was agreed upon, payment is due within 14 days after receiving the invoice and delivery. If IE is forced to use a supplier-portal like Ariba, OB10, Xeeva or similar, discounts are not applicable and IE reserves the right to raise prices to compensate the additional amount of work. For customized products, prepayment is mandatory. General payment terms can be extended for 5% of the total purchase order amount to 30 days. Late payment will result in a 5% fine of the total order value and prepayment for at least one of the next orders. Buyer will pay all applicable taxes to IE when the applicable invoice is due. IE will remit all applicable taxes to the applicable government authority as required by applicable laws. In any case the applicable tax law of the European Union has to be respected. For drop-shipments within the EU, IE reserves the right to insist on prepayment including the VAT. If the Buyer provides two independent documents which show that the Goods have been exported from the EU, the VAT is transferred back to the Buyer without bank charges that have to be covered. All fees and charges that arise from a purchase have to be covered by the Buyer and are non-refundable.
IE warrants to Buyer that during the Goods Warranty Period all Goods provided hereunder shall be (i) fit for the purposes intended; (ii) unless otherwise agreed to by Buyer, new; (iv) free from defects in design, material and workmanship; (v) in strict compliance with the Specifications; This warranty period equals twelve (12) months which start at the date on which the goods had been delivered to the Delivery Place and is validation tributary to the correct handling, usage and storage of the product. If not otherwise mentioned, the general conditions of using and storing shall be 20° C – 25° C with a humidity of 60 % – 65 % and no direct sunlight at any time. Especially the unique values of each measured chart can change, please make sure to have them re-measured at least once a year. For built-in or external spectrometer, recalibration might be separately advised. If not, the guidance of NIST is to be followed and re-calibration should be done also once a year. Product Warranties can be extended by years, IE will quote the extended Warranty with 1% of the list price per additional year.
IE shall perform all Services: (i) exercising that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably be expected from a skilled and experienced service provided providing services under the same or similar circumstances as the Services under this Agreement; (ii) in accordance with all Specifications and all Buyer policies, guidelines, by-laws and codes of conduct applicable to IE; and (iii) using only personnel with the skills, training, expertise, and qualifications necessary to carry out the Services. Buyer may object to any of the IE’s personnel engaged in the performance of Services who, in the reasonable opinion of Buyer, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and the IE shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ the removed person in connection with the Services without the prior written consent of Buyer.
In the event of breach of any of the warranties and without prejudice to any other right or remedy available to Buyer (including Buyer’s indemnification rights hereunder), IE will, at Buyer’s option and IE’s expense, refund the purchase price for, or correct or replace the affected Goods, or re-perform the affected Services, after notice by Buyer to IE of warranty breach. All associated costs, including costs of re-performance, costs to inspect the Goods and/or Services, transport the Goods from Buyer to IE, and return shipment to Buyer, and costs resulting from supply chain interruptions, will be borne by IE if so agreed upon. If Goods are corrected or replaced or Services are re-performed, the warranties will continue as to the corrected or replaced Goods for a further Goods Warranty Period commencing on the date of Acceptance of the corrected or replaced Goods by Buyer.
In the event that any Goods provided by IE to Buyer are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, IE shall, at its own option and expense, without prejudice to any other right or remedy of Buyer (including Buyer’s indemnification rights hereunder), promptly provide Buyer with a commercially reasonable alternative, including the procurement for Buyer of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Buyer, or the modification of such Goods (without affecting functionality) to render them non-infringing.
Intellectual Property Rights
All Confidential Information shall remain the exclusive property of Disclosing Party, and Recipient shall have no right to use Confidential Information except as provided herein. All copies, files notes, models, etc. shall be destroyed or handed to the disclosing Party if no further need is given by the disclosing Party. By purchasing any Product, Software or Additional Products, Buyer agrees to not copy, modify, reproduce, make derivative works from, or otherwise replicate the Products, Software or Additional Products in any manner or for any purpose. Additionally, Buyer agrees to abide by the terms of any third-party licenses or copyrights that may be included in the purchase of any Product or Additional Product manufactured or supplied by a third party.
Reservation of Ownership
Any Goods that have been sold remains the sole property of the Seller until all outstanding debt arising from the business connection with Buyer has been paid in full.
Limitation of Liability
EXCEPT FOR IE’S OBLIGATIONS, AND EXCEPT FOR DAMAGES THAT ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THIS AGREEMENT.
IE will perform its obligations under the Agreement as an independent contractor and in no way will IE or its employees be considered employees, agents, partners, fiduciaries, or joint venturers of Buyer. IE and its employees will have no authority to represent Buyer or its Affiliates or bind Buyer or its Affiliates in any way, and neither IE nor its employees will hold themselves out as having authority to act for Buyer or its Affiliates.
The parties shall sign such further and other documents, cause such meetings to be held, resolutions passed and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every part thereof.
If any provision of this Agreement is determined to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.
No waiver of any provision of this Agreement shall be enforceable against that party unless it is in writing and signed by that party.
IE may not assign or subcontract this Agreement, in whole or in part, without Buyer’s prior written consent. IE’s permitted assignment or subcontracting of this Agreement or any part thereof will not release IE of its obligations under this Agreement, and it will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted. The acts of omissions of any subcontractors of IE will be deemed to be the acts and omissions of the IE. Buyer may assign this Agreement, in whole or in part, to any Affiliate of Buyer, without the consent of IE. This Agreement shall ensure to the benefit of and be binding upon the parties and their respective legal personal representatives, heirs, executors, administrators, assigns or successors.
Any provision of this Agreement which expressly or by implication from its nature is intended to survive the termination or completion of the Agreement will continue in full force and effect after any termination, expiry or completion of this Agreement.
The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are4 to those parts of this Agreement. Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.
This Agreement shall be governed by the laws of the European Union and whereever applicable the laws of Germany. The parties irrevocably attorn to the jurisdiction of the courts of Germany, which will have non-exclusive jurisdiction over any matter arising out of this Agreement.
It is the express wish of the parties that this Agreement and any related documentation be drawn up in English.
Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.
Es ist der ausdrückliche Wunsch beider Parteien, die hier gültige Vereinbarung in Englisch zu verfassen.
The ineffectiveness of one or more provisions of this agreement does not affect the validity of the others. Each party to this Contract can in this case demand that a new valid provision be agreed which best achieves the economic purpose of the ineffective provision.