General Terms and Conditions for Sales and Shipment
of the company
Industrie-Service-Jung GmbH & Co. KG
§1 General / Scope
The subsequent General Terms and Conditions shall apply to commercial business transactions in which the Customer acts in its commercial capacity. The Terms and Conditions shall constitute an essential part of the contract. They shall remain in force for follow-up orders even if no express reference is made to them. They may be modified only by agreement in writing. Acceptance of an offer from ISJ shall constitute acceptance of these General Terms and Conditions even if ISJ failed to expressly contradict conflicting conditions. Acceptance of an order by ISJ shall constitute contradiction against conflicting general terms and conditions.
§ 2 Offer and Conclusion of Contract
(1) The conditions for goods of ISJ shall be quoted without engagement or commitment. Presentation of goods on the internet shall not constitute an offer but merely an invitation without commitment for the Customer to place an order. ISJ reserves the right to make reasonable technical or other changes in shape, colour or weight.
(2) By placing an order for the goods desired the Customer makes a binding offer for the conclusion of a contract. Receiving an order by telephone shall not constitute a binding acceptance by ISJ. ISJ shall have the right to accept the offer for the conclusion of a contract in the form of the order placed within a period of two weeks. In case of goods being ordered electronically ISJ shall have the right to accept the order within three working days from receipt of the order.
(3) ISJ shall have the right to refuse acceptance of the order, for example, upon determination of the Customer’s credit ranking.
(4) Contracts shall be concluded with the proviso that ISJ reserves the right to default delivery in total or in part in the event that ISJ itself is not supplied correctly or properly. This proviso shall not apply if such default in delivery was caused by a fault of ISJ. In the event that goods are unavailable or only available in part the Customer shall be notified without undue delay. Any payment received shall be refunded without delay.
§ 3 Prices / Freight
Unless agreed otherwise all shipments shall be ex warehouse Langenhagen, without packaging. Goods shall be invoiced at the prices applicable on the date of shipment. In the event that these prices should be higher than on the date of conclusion of the contract the Customer shall have the right to rescind from the contract within a period of 14 days from notification of the price increase, insofar as goods have not yet been accepted. Prior to declaring rescission from the contract the Customer must notify ISJ of its intention to rescind from the contract insofar as goods have not yet been accepted. ISJ shall then have the option, within a further period of two weeks, to supply the goods at the originally agreed price. The cost of freight, packaging and goods in transit insurance shall not be included in the price. The customer shall have to bear such cost. All prices quoted shall be without statutory value added tax that must be added.
§ 4 Payment
Payment shall be made without any discount by transfer to one of the bank accounts of ISJ. Payment shall be made within the agreed time independently of receipt of the goods and irrespective of warranty rights and excluding any offset or retention. Unless a time for payment has been agreed payment must be made within 10 days from invoicing. By the expiry of this deadline the Customer shall be in default even without an express demand note. Money orders and cheques shall be accepted only if specifically agreed and only on account of performance. Upon default of the Customer ISJ shall have the right to charge interest to the amount of 8 percentage points above the respective statutory base interest rate. If payment by instalments was agreed the entire remaining purchase price shall be due immediately if the Customer is in default of paying one single instalment for more than five wording days. In the event of default and reasonable doubt in respect of the Customer’s ability to pay or credit worthiness ISJ – irrespective of all other right – shall have the right to demand security or pre-payment for outstanding shipments and to mature all claims from the business relationship for immediate payment. In the event of failure to perform ISJ shall have the right to rescind from the contract in total or in part or to demand damages for non-performance. The Customer shall have no right to claim any retention rights. Outstanding payments to ISJ may be offset only against undisputed or finally adjudicated outstanding payments.
§ 5 Times for Shipment and Performance
(1) Shipment dates shall not be binding unless expressly confirmed by ISJ. Goods on stock shall be shipped, if possible, by ISJ within 3 working days upon receipt of the order. If shipment is to be made abroad this time shall be extended accordingly.
(2) Even if deadlines and dates have been bindingly agreed, ISJ shall not be liable for delays in shipment or performance based force majeure or on circumstances considerably compromising or rendering impossible, not only temporarily, ISJ’s ability to deliver, including, in particular, strike, lock out, administrative orders etc., even if such circumstances occur with suppliers of ISJ or suppliers of suppliers. Under such circumstances ISJ shall have the right to postpone shipment or performance by the duration of the impediment plus a reasonable handling time or to rescind from the contract in total or in part in respect of the part which has not been fulfilled already.
(3) In the event that the impediment should last for more than three months the Customer shall have the right, following specification of a reasonable new deadline, to rescind from the contract in respect of the part which has not been fulfilled already. the Customer shall have no right to claim damages resulting from delayed shipments or the fact that ISJ is released from its obligations. ISJ may invoke the afore-mentioned circumstances only if it notifies the Customer without undue delay.
(4) In the event that ISJ should be liable for failure to meet bindingly agreed times and deadlines or should be in default the Customer shall have the right to claim damages for default to the amount of .5 per cent for each week completed in default, however, not exceeding 5 per cent of the invoice value of the shipment affected by such default. Further claims shall be excluded unless the default is based on deliberate intent or gross negligence of ISJ.
(5) ISJ shall have the option to supply partial shipments and provide partial performance at any time, unless such partial shipment or partial performance would be futile for the Customer.
(6) Timely and orderly performance of the Customer’s obligations shall be a requirement for ISJ meeting its obligations of shipment and performance.
(7) In the event of default of acceptance by the Customer, ISJ shall have the right to claim compensation for damages incurred. Upon occurrence of default of acceptance the risk of accidental deterioration or accidental loss shall be transferred to the Customer.
§ 6 Transfer of risk
The risk shall be transferred to the Customer upon hand-over of the goods to the forwarding agent or freight carrier at the place of shipment even if delivery carriage prepaid has been agreed. In the event that shipment should be delayed as a result of the fault of the Customer the risk shall be transferred to the Customer already on the date of readiness for dispatch. This shall apply even if ISJ commissioned the forwarding agent or freight carrier on behalf of the Customer in its own name.
§ 7 Liability for defects
ISJ shall provide guarantee for defects of the goods, at its discretion, either by subsequent remediation or by replacement. In the event that supplementary performance should fail the Customer shall have the right, in general, to demand, at its discretion, either a reduction of the purchase price (price reduction) or revocation of the contract (rescission). In case of a minor contract violation, in particular, where defects are only minor, the Customer shall not have the right to rescind. The Customer shall have the obligation to provide written notification of any obvious defects within a time of five days from receipt of the goods; otherwise, any claims for liability for defects shall be excluded. Timely posting shall be sufficient to meet the deadline. Thus Customer shall bear the entire burden of proof for all conditions of entitlement, in particular, for the defect as such, for the date of detection of the defect and the timely notification of defect. If the Customer elects to rescind from the contract due to a defect after supplementary performance has failed the Customer shall have no right, besides this, to claim damages for the defect. If the Customer elects to claim damages after supplementary performance has failed then the goods shall remain with the Customer if this is reasonable. Damages shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply where ISJ cause the violation of the contract with malicious intent.
§ 8 Warranty period / condition of goods
(1) The warranty period shall be one year from shipment. This shall not apply if the Customer failed to timely provide notification of the defect. In general, only the product description of the manufacturer or of ISJ shall provide the agreed basis for the condition of goods. In contract hereto, public announcements, promotion statements or advertisements of the manufacturer shall not constitute contractual statements of condition of goods. In the event of a defective assembly instruction ISJ shall only have the obligation to supply an assembly instruction free from defects and, even this obligation does shall apply only if the defect in the assembly instruction prevents proper assembly.
(2) In the event of failure to adhere to operating or maintenance instructions of ISJ, exchange of parts or use of consumables not meeting the original specifications all claims resulting from defect of the products shall be excluded unless the Customer disproves a corresponding well-founded allegation that the defect was caused by such circumstances.
(3) Transport damages or missing items must be certified on the bill of lading or by the driver or the persons involved in unloading stating their names and addresses.
(4) In respect of electronic parts shipped in sealed packaging the warranty shall lapse when the seal is broken.
(5) Defect can be accepted only if they are noted on the return shipment form. Return shipments are to be made to ISJ by way of free delivery.
(6) Any liability for usual wear and tear shall be excluded.
(7) Insofar as damages can be compensated by third parties (insurance companies) ISJ shall be liable only for disadvantages of the Customer resulting from this, e.g. higher insurance premiums or interest disadvantages up to the final compensation by the insurer.
(8) Warranty claims against ISJ may be brought only by the immediate customer and cannot be assigned to any third party.
§ 9 Reservation of title
(1) Until all outstanding claims (including all balance debits from a current account) ISJ has or shall have in future against the Customer for whatever reason have been settled ISJ shall be provided the following security which will be released by ISJ upon request in its discretion insofar as their value constantly exceeds the value of the claims by more than 20 per cent.
(2) The good shall remain the property of ISJ. Any processing or combination shall be on behalf of ISJ as manufacturer, however, without any obligations of ISJ. In the event that the (joint) title of ownership of ISJ should cease to exist due to combination, it is hereby agreed in advance that the joint title of ownership of the Customer in the combined goods shall pass to ISJ in accordance with its value percentage (invoice value). The Customer shall store the joint property of ISJ free of charge. Subsequently, goods in which ISJ holds joint title of ownership shall be referred to as reserved goods.
(3) Unless in default the Customer shall have the right to process and sell reserved goods in its ordinary course of business. Pledging as collateral or chattel mortgages shall not be allowed. Any claims resulting from the resale or another legal foundation (insurance, tort) relating to the reserved goods (including any balance claims from accounts current) are hereby assigned in total to ISJ in advance which assignment is hereby accepted. ISJ irrevocably authorises the Customer to collect the claims assigned to ISJ for the account of ISJ in its own name. This authorisation to collect can be revoked only if the Customer fails to properly meet its payment obligations.
(4) In the event that any third party should draw on reserved goods, in particular, by levy of execution, the Customer shall point out the ownership of ISJ and notify IJS without undue delay to enable ISJ to exercise its property rights. Insofar as the third party involved should be unable to reimburse ISJ for the court and out-of-court cost incurred in connection herewith the Customer shall be liable.
(5) In the event of any action by the Customer in violation of the contract– in particular, default of payment –ISJ shall have the right to rescind from the contract und to claim restitution of the reserved goods or to commercialise the same in the best possible manner, with reasonable notice, offsetting this proceeds with the purchase price.
(6) The Customer shall bear all cost of restitution and commercialisation of the supplied items. Without further verification the cost of commercialisation shall be 10 per cent of the sales proceeds including value added tax. Higher cost may be claimed on the basis of corresponding verification. Likewise, the Customer shall have the right to provide evidence of lower cost, if applicable.
§ 10 Conditions of payment
ISJ shall have the right, in spite of contrary designations of the Customer, to credit payments firstly against more mature debts of the Customer. ISJ shall notify the Customer on the manner of offsetting applied. If cost and interest have been incurred already ISJ shall have the right to credit the payment firstly against the cost, the against interest and finally against the main claim.
§ 11 Choice of law / Venue / Severability
(1) These General Terms and Conditions and the entire legal relationship between ISJ and the Customer shall be governed by the laws of the Federal Republic of Germany.
(2) Place of performance and venue for disputes shall be the headquarters of ISJ. ISJ shall also have the right to initiate legal action at the headquarters of the Customer.
(3) The contract shall remain binding even if individual provisions should be invalid. It shall be construed exclusively under German law.