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General Business and Supply Terms and Conditions
of IS-SERVICE GmbH (Version: 01.03.2014)
§ 1 Area of Application
The following General Terms and Conditions are the basis of all the services of IS-SERVICE GmbH. The General Terms and Conditions will also apply to all future commercial relationships in business communication, even if they not have been expressly agreed again.
The application of any terms and conditions of the Customer is expressly contradicted; the provision of the contractual performance will not include the recognition of them. They will only become the content of an agreement if they have been previously agreed expressly and in writing.
§ 2 The Making of an Agreement
The offers of IS-SERVICE are always unbinding. An agreement will only come into existence if IS-SERVICE has confirmed an order of the Customer in writing within 4 weeks.
§ 3 Prices
The prices are net, plus the legal value added tax incurred and costs of despatch that may arise. We shall be entitled to a reasonable increase in the prices in the case of price increases by our suppliers or unexpected increases in the costs of materials, wages or transport, provided that no agreement concerning fixed prices exists. Our prices applicable on the day of delivery will apply to orders for which no price has been agreed and likewise, if the acceptance has been delayed as a consequence of a requirement or the fault of the Customer. Incorrect consignments will be borne by the Customer.
§ 4 Time of Delivery
The deadlines for delivery specified or confirmed by us will apply only as an approximate indication of the time and not as a binding undertaking in principle. Delivery agreements require the written form. IS-SERVICE is entitled to make partial deliveries.
The Customer will be able to withdraw from the respective agreement in the case of a delay by IS-SERVICE, following a reasonable extra time allowed set in writing and a threat of rejection. The extra time allowed must be at least four weeks. The withdrawal will not be permissible if the exceeding of the agreed deadline for completion is attributable to later requirements for changes or the absence of the co-operation by the Customer.
§ 5 Despatch and the Transfer of Risk
In the case of the despatch, the risk will pass to the Purchaser or the Customer as soon as the consignment has been transferred to the individual performing the transportation or has left the premises of IS-SERVICE for despatch. The risk will only pass to us through our acceptance, in the case of deliveries to IS-SERVICE.
§ 6 Conditions of Payment
Subject to a satisfactory credit rating, our invoices are due for payment within a period of 30 days from the date of invoice or within a period of 14 days after the date of invoice after deduction of a prompt payment discount of 3%. Advance payment is deemed to have been agreed to in the case of the credit rating not being satisfactory.
IS-Service GmbH is responsible for the assessing of a satisfactory credit rating. If the ordering party should be a businessperson or a legal entity under public law, the exercising of a right of retention on the grounds of the non-recognition of counter-claims asserted by the ordering party is not permissible.
The setting off against counter-claims is also excluded. A non-adherence to the terms of payment or situations which we gain knowledge of after the corresponding conclusion and which suffice to reduce the credit rating of the ordering party, result in all of our payment claims being due immediately, in addition to the immediate provision of sufficient security, not taking the term of any accepted bills of exchange into account. This also entitles us to assert a claim for compensation for imminent or actual non-fulfilment, notwithstanding the right to recover goods which have been delivered subject to a reservation of title at the cost of the ordering party.
Bills of exchange, cheques and other payment transfer documents will only be accepted a payment on the basis of an express agreement. The ordering party is to bear the costs incurred for the collection, bank interest and other fees and costs which are incurred in connection with this.
§ 7 Liability for Defects
Only the official product description is decisive to the agreement concerning composition. We shall take over a guarantee for defects of twelve months after acceptance for freedom from defects on accordance with the agreed requirements and for the fact that the goods correspond to the recognised status of technological development. At the same time, technical changes in the chemical and physical characteristics will remain reserved within the bounds of what is reasonable, provided that they do not impair the functionality.
We shall provide a guarantee for faults initially by a replacement delivery or making good, according to our preference, in the case of deviations in the functionality. The Customer will be entitled to a right withdraw or a reduction after three failures of making good. The Customer will not be entitled to any claim to compensation because of the defect in addition, if it chooses to withdraw from the respective agreement following failed making good, because of a legal or material deficiency.
The Customer will only have the claims specified, in the case of obvious defects, if IS-SERVICE has received a corresponding written notification of a defect within 5 days after delivery. In addition, the term in § 377 HGB applies to merchants, with the instruction that a deadline of 3 days will replace ‘immediately’. This deadline must be shortened accordingly, if it can be presupposed as known that the promised quality characteristics will change within this deadline in the case of the goods supplied, because of their chemical and physical characteristics.
The Customer will be committed to storing the goods supplied properly. The products must only be used by skilled personnel. In addition, the Customer will promise to inform itself about the use and the handling of the products before using them. The instructions and information in the product descriptions must be observed and obeyed strictly before use.
Claims by the Customer because of the necessary expenses for the purpose of making good, particularly the costs of transportation, tolls, work and materials, will be excluded to the extent that the expenses increase, because the goods supplied by us have been taken to a different location to the business of the Customer, unless the conveyance corresponds to their use in accordance with the requirements of the law.
§ 8 Liability
IS-SERVICE will only be liable for damages because of deficiencies in title, criminal intent and gross negligence. This regulation will not apply in the case of injury to life, body or health. IS-SERVICE will only be liable for breaches of contract and for damages that must be taken into account typically in connection with dealing with the order at the level of the value of the order. Otherwise, any liability is excluded, for whatever legal reason, in particular for consequential damages, lost profit and damage to assets.
§ 9 Reservation of Title
We reserve the title to the goods supplied until the fulfilment of all claims arising from the respective business relationship. We shall be entitled to take the object purchase back in the case of behaviour in breach of contract by the Customer, particularly in the case of delayed payment. No right to withdraw from the respective agreement will lie in the taking back of the object of sale by us, unless we had expressly stated this in writing. A withdrawal from the respective agreement will always lie in the seizure of the object of sale by us. We shall be authorised to exploit the object of sale after it has been taken back; the proceeds of the exploitation will be credited to the obligations of the Customer, less reasonable costs of exploitation.
The Customer will be committed to treating the object of sale with care; in particular, it will promise to insure it at replacement value against damage by fire, water or theft at its own cost. The Customer will have to carry out maintenance and inspection work at its own cost in good time, provided that they are necessary.
The Customer must inform us immediately in writing in the case of seizures or other interventions by third parties, so that we will be able to bring charges in accordance with § 771 ZPO. The Customer will be liable for the loss arising for us if the third party is not in a position to reimburse to us the legal and out-of-court expenses of an action in accordance with § 771 ZPO.
The Customer will be entitled to sell on the object of sale in the regular course of business; however, it will already cede all claims at a level of the invoiced end sum (including added value tax) agreed with us that arise to it from the further sale to its buyer or a third party to us, independently in fact whether the object of sale has been sold on without or following processing. The Customer will remain entitled to collect this claim even after the cession. Our authority to collect the claim ourselves will not be affected by this. However, we promise not to collect the claim, as long as the Customer complies with its obligations to pay arising from the proceeds collected, is not delayed in payment and, in particular, no application for the opening of bankruptcy or composition proceedings has been made and payments have not been stopped. However, if this is the case, we shall be able to require that the Customer makes the ceded claims and the respective debtors known to us, provides all the information necessary to collect the sums, hands over the associated documents and communicates the transfer to the debtor or third party.
The processing or reconstruction of the object of sale by the Customer will always be done on our behalf. The contingent right of the Customer in the object of sale will continue in the reconstructed object. We shall acquire joint title to the new object in the proportion of the objective value of our object of sale to the other processed objects at the time of the processing, if the object of sale is processed with other objects that do not belong to us. Incidentally, the same applies to the object arising through processing as to the object of sale supplied subject to a reservation.
We shall therefore acquire joint title to the new object in the proportion of proportion of the objective value of our object of sale to the other mixed objects at the time of the mixing, if the object of sale is inseparably mixed with other objects not belonging to us. It will be regarded as agreed that the Customer will transfer a proportional joint title to us, if the mixing takes place in such a way that the object of the Customer must be regarded as the main object. The Customer will hold the sole or joint title that has arisen in this way on our behalf.
The Customer will also cede to us the claims arising against a third party because of the connection of the object of sale with a plot of land, to safeguard our claims against the Customer.
We promise to release the securities to which we are entitled on the request of the Customer, as long as the realizable value of our securities exceeds the claims to be safeguarded by more than 10 %; it will be our responsibility to select the securities to be released.
§ 10 Regulation concerning Repurchase and Ex Gratia Payment
The repurchase of goods supplied by us with an ex gratia payment will take place exceptionally, if we have promised it in writing and subject to the prerequisite that the Customer sends them back to us carriage free and free of expense. Goods taken back will be credited less a reasonable proportion of the expense, but at a level of 15 % of the value of the goods at least. The repurchase of special preparations or goods specially made on the request of the Customer is excluded.
§ 11 Installation and Repair Services
The regulations concerning liability in § 7 also apply logically to services arising from work agreements.
§ 12 Place of Fulfilment and Place of Jurisdiction
The headquarters of IS-SERVICE are the place of fulfilment. The law of the Federal Republic of Germany will apply. The terms of the UN Sales Law will not apply.
Our headquarters will be the exclusive place of jurisdiction for all disputes arising from this Agreement, if the Customer is a merchant, a body corporate or special assets under public law.
§ 13 Partial Nullity
The effectiveness of the other terms will not be affected if any term of these Terms and Condition of Business or other agreements is or becomes ineffective. The Parties to the Agreement shall promise to agree a new term that comes closest to the purpose that was the aim of the ineffective term.