Terms and conditions
Terms and conditions of sale and delivery of Innovative Systems GmbH
(referred to as ISG in the following)
Section 1 General provisions
(1) Deliveries and services shall exclusively be provided on the basis of the respective order confirmation, possible special agreements in writing and additionally on the following conditions. Any contradictory conditions, in particular terms and conditions of purchase, shall not apply, unless ISG has explicitly agreed to their validity in writing.
(2) Offers of ISG shall not be binding. A contract shall be concluded with the written order confirmation of ISG.
(3) These terms and conditions of sale and delivery shall only apply to companies according to section 310 paragraph 1 BGB [Bürgerliches Gesetzbuch, German Civil Code].
(4) The customer shall be obliged to provide ISG with correct and complete specification data and to check the order confirmation for the correct reproduction of the specified data.
(5) Project planning support shall always only be provided by ISG within the framework of the overall system specified by the customer. ISG does not assume any responsibility for this, even if ISG offers and delivers goods with integrated functional safety.
(6) ISG reserves the right to make changes to technical data and constructions which serve the purpose of technical progress.
(7) ISG reserves property rights and copyrights in models, images, drawings, calculations and similar information whether of physical or non-physical nature - also in electronic form. This shall also apply for all documents and information which are designated as "confidential". Any passing on to a third party requires the prior written consent of ISG.
(8) These conditions shall also apply to all future deliveries and services until new terms and conditions of sale and delivery of ISG come into force.
Section 2 prices and payment conditions
(1) The prices stated by us are ex works or distribution centre unless otherwise agreed upon in writing. They do not include packaging, freight, postage, insurance and the statutory turnover tax.
(2) The payments shall be made in cash without any deduction, free of charges to the paying agent of ISG within 30 days after the invoice date, unless agreed upon otherwise in writing. Insofar as no due invoices are outstanding we grant a discount of 2% for payments that we receive within 14 days after the invoice date; this shall not apply for repair and spare parts shipments which become due in net cash immediately.
(3) Cheques and bills of exchange shall only be regarded as payment upon their encashment whereby we reserve the right to accept bills of exchange.
(4) If we become aware of a significant deterioration of the customer's financial position after sending our order confirmation, our claims shall become due immediately. Additionally, we shall have the right to execute outstanding deliveries and services, also in deviation from the order confirmation, against advance payment only and to withdraw from the contract after an appropriate period of grace, unless the customer provides security. The same shall apply in case of non-compliance with the payment conditions, even if this non-compliance concerns other orders from the mutual business relationship.
(5) The customer shall only have the right to set off if their counterclaims are undisputed by ISG or legally established. The customer shall be entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
Section 3 Delivery time
(1) The delivery and service shall be provided in the calendar week confirmed in writing, however, not before clarification of all details regarding execution. The customer shall fulfil all obligations imposed on them in due time, such as payment of a deposit. If this is not the case, the delivery time shall be extended accordingly. This shall not apply insofar as ISG is not responsible for the delay.
(2) The delivery time shall be further extended as appropriate in the event of unforeseen obstacles for which ISG is not responsible irrespective of whether they occur at ISG or its suppliers, e.g. events of force majeure, industrial disputes and other delays in the completion of delivery parts, interruptions of operations, defective products, delays in the delivery of essential parts and raw materials which are no fault of ISG, insofar as these obstacles demonstrably have significant influence on the completion or delivery of the ordered goods. ISG shall not be responsible for such obstacles even if they arise during an already existing delay. ISG shall immediately inform the customer about the beginning and the end of these circumstances.
(3) The customer shall only be allowed to withdraw from the contract due to delays in delivery within the framework of the statutory provisions, insofar as ISG is responsible for these delays.
(4) If ISG enters into default and this results in damage for the customer due to delay, the customer shall have the right to demand a lump-sum compensation for delay which shall be 0.5% for each complete week of delay, but in total not more than 5% of the price for the part of the delivery and service which could not be put into useful operation due to the delay. Further claims due to delay in delivery shall exclusively be determined according to section 7 of these terms and conditions.
(5) If the customer falls into default of acceptance or if they culpably violate another obligation of cooperation, ISG shall have the right to demand compensation for the damage resulting in this regard, including any additional expenses. Further claims shall remain reserved.
Section 4 Transfer of risk, acceptance
(1) At the moment of delivery to the forwarding agent or the carrier, but at the moment the goods leave the works or the storage room at the latest, the risk shall be transferred to the customer. This shall also apply if delivery freight prepaid, delivery free works or similar is agreed. Insofar as an acceptance must take place, it shall be decisive for the transfer of risk. It must take place immediately on the acceptance date, alternatively after notification by ISG concerning the readiness for acceptance. The customer shall not be allowed to refuse acceptance in the case of a defect which is not significant.
(2) If dispatch or acceptance are delayed or do not take place due to circumstances for which ISG is not responsible, the risk shall be transferred to the customer on the day of readiness for shipment or acceptance.
Section 5 Reservation of title
(1) ISG reserves title to the delivered goods until receipt of all payments due to the ISG from the business relationship with the customer.
(2) If the customer enters into default with the payment, ISG shall be entitled, after a reminder, to enter the goods in its stock. ISG shall also have the right to repossess the goods without prior withdrawal from the contract. The customer shall already now allow ISG to enter the customer's business premises immediately during normal business hours and to repossess the goods if these requirements are fulfilled. The same shall apply if the customer makes an affidavit of means, if an order for arrest is issued to force the customer to make an affidavit of means or if the customer files an application to open insolvency proceedings on their assets.
(3) If the customer acts in a way contrary to the contract, in particular in case of default in payment, ISG shall be entitled to withdraw from the contract. If goods are taken back due to withdrawal, ISG shall only be obliged to issue a credit in the amount of the invoice value with deduction of the depreciation determined according to reasonable discretion as well as the costs of taking back and disassembly, however, in the amount of at least 30% of the invoice value. ISG shall grant a higher credit if the customer proves a higher recoverability of the value of the repossessed goods.
(4) The customer shall be obliged to handle the goods with care; they shall in particular be obliged to insure them at their own expense against any damage arising from fire, water and theft in an amount which is sufficient to cover the replacement value.
(5) The customer shall immediately inform ISG in case of seizures, attachments or any other dispositions or interventions of a third party.
(6) The customer shall be entitled to resell the ordered goods in the normal course of business. Pledging, transfer as security or any other disposition is prohibited. If the customer sells the goods delivered by ISG, irrespective of their condition, the customer thereby assigns to ISG the claims vis-à-vis the buyers of the customer arising from the sale, including all ancillary rights, up to the amount of the value of the goods, until all claims of ISG arising from the mutual business relationships are repaid. The customer is authorized to collect these claims.
(7) The authorization for resale and collection of the claims may be revoked if the customer is in default of payment or in the case of another material deterioration of their financial position or their creditworthiness. Upon request the customer shall then be obliged to notify the buyers of the assignment, insofar as ISG itself does not inform the buyers of the customer, and to provide ISG with the information and to hand over the documents which are necessary for ISG to assert its rights vis-à-vis the buyers.
(8) Any processing or remodelling of the delivered goods by the customer shall always be carried out for ISG. If the goods are processed with other goods according to section 950 BGB which do not belong to ISG, ISG shall acquire co-ownership of the new item in proportion to the value of the goods to the other processed items at the time of processing. Apart from this, the same shall apply for the item arising from processing as for the goods delivered under reservation of title.
(9) ISG commits itself to releasing the securities of ISG upon request of the customer, insofar as their realizable value exceeds the claims to be secured by more than 10%. ISG shall have the right to choose the securities to be released.
Section 6 Claims for defects
(1) In case of defects the customer shall have a claim for supplementary performance which ISG will provide at its own choice by removing the defect or by delivery of goods or provision of services which are free of defects. In order to carry out the supplementary performance the customer shall grant the required time and opportunity. Only in urgent cases where there is a risk for operational safety or to prevent disproportionately large damage, in which case ISG must be informed immediately, shall the customer have the right to remove the defect themselves or have it removed by a third party and demand reimbursement of the required expenditure from ISG. Rejected goods or parts should only be returned upon our request and, insofar as necessary, in good packaging and enclosing a packing note with indication of the order number.
(2) In case of removal of defects, ISG shall be obliged to bear all costs required for the purpose of removing the defect, in particular transport, travel, labour and material costs, insofar as they do not increase due to the fact that the goods have been transported to another place than the place of performance, unless the transport complies with the intended use.
(3) If the supplementary performance fails (section 440 BGB), the buyer shall have the right to reduce the purchase price or to withdraw from the contract.
(4) Any damage arising from one of the following reasons and for which we are not responsible because we did not commit a breach of duty, do not constitute claims based on liability for defects: unsuitable or improper use after transfer of risk, in particular excessive use, incorrect assembly or commissioning by the customer or a third party in spite of proper assembly instructions, normal use (tear and wear), incorrect or careless handling, unsuitable operating materials, replacement materials, defective construction work, non-compliance with the operating instructions, unsuitable operating conditions, in particular in the case of unfavourable chemical, physical, electromagnetic, electrochemical or electrical influences, weather or natural influences or ambient temperatures that are too high or too low.
(5) The limitation period for claims for defects shall be 1 year from the statutory commencement of the limitation period.
(6) Further claims shall exclusively be determined according to section 7 of these terms and conditions.
Section 7 Liability for claims for damages and for reimbursement of expenses
(1) In case of wilful or grossly negligent breaches of obligation as well as in every case of culpable injury to life, body and health, ISG shall be unrestrictedly liable for any damage attributable to this, unless otherwise provided for by law.
(2) In case of gross negligence of non-executive employees, ISG's liability for property damage or financial loss shall be limited to the foreseeable damage typical for the type of contract.
(3) In case of slight negligence, ISG shall only be liable for property damage and financial loss if essential contractual obligations are violated. Also in this regard, ISG's liability shall be limited to the foreseeable damage typical for the type of contract.
(4) Any further liability for claims for damages beyond the regulations of the above paragraphs shall be excluded irrespective of the legal nature of the asserted claims. This shall in particular apply for torts according to sections 823, 831 BGB; a possible unrestricted liability according to the provisions of the German Product Liability Act shall remain unaffected.
(5) For t0he statute of limitations concerning all claims which are not subject to the statute of limitations relating to defects of the goods, a cut-off period of 12 months shall apply. It shall commence from the time of knowledge of the damage and the identity of the person causing such damage.
Section 8 Right of withdrawal
ISG may completely or partly withdraw from the contract by written declaration in the event that the customer becomes insolvent, of excessive indebtedness of the customer, discontinuation of payment by the customer or if an application to open insolvency proceedings over the assets of the customer has been filed. ISG shall exercise the right of withdrawal before the opening of insolvency proceedings relating to the assets of the customer. The customer shall already now allow ISG to enter the customer's business premises during normal business hours and to repossess the goods if these requirements are fulfilled.
Section 9 Place of performance, place of jurisdiction, applicable law
(1) Unless otherwise stated in the order confirmation, the registered office of ISG in Dortmund shall be the place of performance.
(2) Place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship shall be Dortmund if our contracting partner is a merchant.
(3) German law shall apply exclusively even in the case of deliveries and services abroad. The validity of the law of the United Nations concerning the international sale of goods (CISG) is excluded.
Dortmund, October 2014
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