General Terms and Conditions of Sale and Delivery
ISW Industrial Sensor Systems Wichmann GmbH
1. Applicability of the Conditions
1.1 For all deliveries, services and offers of ISW Industrielle Sensorsysteme Wichmann GmbH (hereinafter referred to as ISW GmbH), the following terms and conditions of sale and delivery apply exclusively to the extent that the other party (hereinafter the customer) is a company within the meaning of Section 14 of the German Civil Code (BGB) or a legal entity under public law or a special fund under public law. Conflicting or deviating conditions of the client are not accepted, unless they are expressly confirmed in writing by ISW GmbH.
1.2 The General Terms and Conditions of Sale and Delivery of ISW GmbH also apply to future transactions between ISW GmbH and the Customer.
1.3 In addition to these General Terms and Conditions of Sale and Delivery, the General Terms and Conditions of Assembly of ISW GmbH apply.
2. Offer, conclusion of contract, contract documents
2.1 Offers, price and delivery times of ISW GmbH are subject to change unless other agreements have been made in individual cases. An order shall not be deemed accepted until it is confirmed in writing by ISW GmbH.
2.2 An order from the client is a binding offer to ISW GmbH to which the client is bound two weeks after receipt of the order by ISW GmbH. Acceptance of the order can be made either by written confirmation or by provision of the service within the acceptance period.
2.3 The agreements made between ISW GmbH and the client must be in writing. Excluded from this are post-contractual, oral agreements. If agreements are made by representatives of ISW GmbH who do not have unlimited power of representation, e.g. by mere mediation, final representatives or non-representative personnel, these agreements must be concluded in order to Effectiveness of the written confirmation of ISW GmbH.
2.4 Illustrations, drawings, weights and dimensions as well as other representations and information in contract or offer documents, brochures and printed matter are only approximate unless they are expressly designated as binding by ISW GmbH. Changes due to technical development are reserved.
2.5 Information contained in catalogues, brochures, price lists or other promotional material is determined to the best of our knowledge. Changes required later are reserved.
2.6 Offers, plans, drawings descriptions and technical documents, which are handed over to the client of ISW GmbH before or after the conclusion of the contract, remain the sole property of ISW GmbH, with the exception of brochures. Without the consent of ISW GmbH, the client may not use, copy, reproduce or make available to third parties the aforementioned documents. If the documents are provided directly by ISW GmbH by the client or on his instructions, it is the sole duty of the client to ensure that the third party in question does not indemnify the above prohibition. In this respect, the client is liable to ISW GmbH for compliance with the prohibition by the third party. Copyright and copyright rights remain with ISW GmbH in all cases.
3. Scope and time of services
3.1 The contractual agreement concluded with the customer is the exclusive material for the type and scope of the deliveries and services to be provided by ISW GmbH. If ISW GmbH advises the client in determining the scope of performance or scope of delivery, this is done to the best of is the best knowledge of ISW GmbH. However, the decision on the scope of performance or scope of delivery as well as its expediency is ultimately taken by the client on his own responsibility.
3.2 Performance and delivery periods begin with the conclusion of the contract or after technical clarification and approval by the customer. Performance and delivery dates as well as deadlines are met if the delivery item is dispatched by the end of its expiry or the readiness for dispatch is communicated to the customer. In the case of a delivery with assembly, when the assembled system is ready for operation.
3.3 In the event of unforeseen obstacles to performance beyond the control of ISW GmbH, such as force majeure, bans on the outing and import of goods, as well as other state or official orders, industrial disputes, strikes or lockouts, Disruptions, delays in the delivery of precursors, agreed delivery periods are extended appropriately. This applies regardless of whether the performance barriers occur at ISW GmbH or a supplier of ISW GmbH. If such obstacles to performance, for which ISW GmbH is not responsible, occur, both parties are entitled to withdraw from the contract.
3.4 Call-off orders and partial deliveries required by the contracting authority must be called up at least 20 working days before assembly by the customer. In the event of structural delays which prevent ISW GmbH from meeting the start of assembly, deliveries must again be called up at least 20 working days before the new date.
3.5 If the client does not accept the goods ordered by him, ISW GmbH may withdraw from the contract or claim damages for non-performance after setting and fruitless expiry of a reasonable grace period. In the latter case, ISW GmbH is entitled, without prejudice to the possibility, to claim a higher actual damage, to claim 10 of the agreed delivery price without proof as compensation, unless it is proven that only a smaller damage has been caused.
3.6 The service and delivery dates or deadlines specified by ISW GmbH are non-binding, unless they have been expressly confirmed in writing as a “binding delivery date” by ISW GmbH. In the event of a delay for which ISW GmbH is responsible for exceeding binding delivery dates confirmed in writing, the customer shall only be entitled to assert further rights if a grace period specified by is at least three weeks has elapsed fruitlessly.
4. Transfer of risk and transport
4.1 The risk of accidental loss and accidental deterioration shall pass to the customer as soon as the delivery item has been handed over to the person carrying out the transport. This also applies if partial deliveries are made, the shipment to the customer is made directly by ISW GmbH or ISW GmbH itself has taken over the shipping or other services (e.g. assembly). If the shipment is delayed or becomes impossible through no fault of ISW GmbH, the risk passes to the customer at the end of the day following the receipt of the notification of readiness for dispatch to the customer.
4.2 If no deviating instructions have been given by ISW GmbH, the delivery items will be sent to the address of the customer designated by the customer to ISW GmbH. The choice of the transport route and means is made at the discretion of ISW GmbH and without liability for the cheapest and fastest shipment, in the absence of special instructions from the client. Transport insurance by ISW GmbH is only provided if it has been expressly agreed with the customer.
The general assembly conditions of ISW GmbH apply in addition to these terms and conditions of sale and delivery for assembly services taken over by ISW GmbH.
6.1 All prices quoted by ISW GmbH are net prices and are exclusive of VAT.
6.2 The prices of ISW GmbH are valid from stock. Other ancillary costs, including packaging and fees, shall be borne by the customer.
6.3 Work for which a price has not been agreed will be calculated on the basis of wage and material costs.
6.4 For orders orders of larger quantities of the same item, the quantity-related individual prices apply (discount price according to the respective valid price list of ISW GmbH). This also applies to call-off orders if and to the extent that fixed dates were determined for partial deliveries when the order was placed. When determining the respective quotation price, each order will be treated separately. A subsequent increase in an order that has already been placed or a subsequent order therefore does not affect the individual price of the original order.
6.5 For orders under a net value of €100, ISW GmbH charges a small quantity surcharge of €50 to this net value of goods.
7. Payment, prohibition of set-off and assignment
7.1 In principle, payments by the client are due without any deduction from the invoice date and payable to ISW GmbH free of charge. In the case of partial deliveries, this applies to each individual partial delivery.
7.2 If the client does not meet agreed installment payment dates, ISW GmbH is entitled to make the entire remaining claim due.
7.3 If the payment deadline is exceeded and after a reminder has been issued, interest on arrears in the amount of 9 points above the base interest rate shall be calculated in accordance with the 247 BGB on the invoice amount. A flat-rate fee of € 5.00 per reminder is charged for reminders that are justified by default. The client reserves the right to prove that ISW GmbH has suffered no or lesser damage as a result of the delay.
7.4 In the event of a delay in payment, ISW GmbH is entitled to set the customer a grace period of 10 days. After expiry of this period, ISW GmbH may also claim damages in full or in part instead of performance instead of performance. The claim for damages is not affected by a threatened or declared withdrawal.
7.5 Payment by the client shall not be deemed to have been made until ISW GmbH can finally dispose of the corresponding amount. Payments by bill of exchange or other instruction documents are only permitted under special agreement with ISW GmbH. Bank charges and interest incurred in such payments shall be borne by the client.
7.6 If the customer does not meet his payment obligations, in particular does not redeem a cheque or bill of exchange, ceases its payments or if ISW GmbH becomes aware of other circumstances after the conclusion of the contract, which determine the creditworthiness of the shall be entitled, without prejudice to other rights, to demand advance payments, security or train-to-train services for all deliveries and services outstanding by the customer at the customer’s own discretion, and in the event of default on the payment by the client, to withdraw from the contract after a reasonable grace period. ISW GmbH is entitled to withdraw from the contract for the following reasons:
- If it is apparent after the conclusion of the contract that the client is not creditworthy. The client shall be deemed not to be creditworthy if a cheque or a change of bill has gone to protest, the client ceases payments without any reason, which is in the contractual relationship, the client, after the conclusion of the contract, the affidavit in accordance with 807 ZPO, issued an arrest warrant against him in accordance with the Section 901 of the ZPO for the submission of the affidavit pursuant to Section 807 of the ZPO or an unsuccessful attempt at foreclosure has been made by the client. It is not necessary that the above facts leading to the acceptance of credit worthiness derive from the relationship between ISW GmbH and the client.
- If it is found that the contracting entity has provided incorrect information with regard to its creditworthiness and that such information is of significant importance.
- If the goods subject to retention of title of ISW GmbH are sold differently than in the regular business transactions of the client, in particular by transfer of security or pledging. Exceptions to this exist only if ISW GmbH has given its consent to the sale in writing.
7.7 If a payment by the Client does not settle all claims owed to ISW GmbH, the payment shall initially be made on the unnamed and non-legally-pending and, lastly, on the disclaimers of the first counted towards the older and then the younger ones.
7.8 Payments to representatives of ISW GmbH shall only release the corresponding liability of the client to ISW GmbH if the client was able to convince himself of his power of attorney to receive money by submitting a collection authorisation by the representative.
7.9 In relation to assembly services, the General Assembly Conditions of ISW GmbH apply in addition.
7.10 The offsetting by the client with counterclaims disputed by ISW GmbH or not legally established is excluded. The same applies to the exercise of a right of retention on the basis of such counterclaims, provided that the client is a legal person under public law, a special fund under public law or a merchant within the meaning of Section 1-6 of the German Commercial Code (HGB) and the contract concluded with him is part of the operation of its commercial sector. A contracting entity not belonging to the aforementioned group of persons can only assert a right of retention insofar as it is based on claims arising from the same contractual relationship as its obligation. In so far as the right of retention is based on a claim for rectification asserted by the client, it is limited to twice the expected costs of rectification.
7.11 The client is not entitled to assign or transfer to third parties the claims and rights to which he is entitled against ISW GmbH.
8. Retention of title
8.1 The goods delivered by ISW GmbH remain the property of ISW GmbH until all current and future claims of ISW GmbH against the customer have been fulfilled in full, insofar as the claims are related to the delivered goods. ISW GmbH is entitled to take back the delivered goods if the customer behaves in breach of the contract.
8.2 The client is obliged to treat the goods with care to ISW GmbH, as long as the property has not yet passed on to him.
8.3 Any kind of disposition by the customer about the goods subject to retention of title is only permitted in the regular business transactions of the client. Under no circumstances, however, may the goods be transferred to third parties for security purposes in the context of regular business transactions.
8.4. In the event of the sale of the goods in regular business transactions by the client, the client already assigns the claims from the resale in the amount of the final invoice amount agreed with ISW GmbH (including VAT) to ISW GmbH, whereby ISW GmbH accepts the assignment now. This replaces the paid purchase price with the goods. This assignment applies regardless of whether the goods have been resold without or after processing. The client is authorized to collect these claims as long as he meets his payment obligations to ISW GmbH. This does not affect the power of ISW GmbH to collect the claim itself. However, ISW GmbH will not collect the claim itself as long as the client fulfils its payment obligations from the collected proceeds to ISW GmbH, is not in default of payment, there is no suspension of payment and, in particular, no application for insolvency proceedings have been opened. In view of the extended retention of title (pre-assignment of the respective purchase price claim), an assignment to third parties, in particular to a credit institution, is contrary to the contract and therefore inadmissible. In order to secure the claims of ISW GmbH arising from the assignment and the extended retention of title, ISW GmbH may at any time demand from the customer, ISW GmbH, to provide information about the full name and address of its customer, in which he uses the goods or to which he the goods are sold.
8.5 The processing, processing or conversion of the goods delivered to the customer by the client is always carried out on behalf of and on behalf of ISW GmbH. In this case, the right of the client to be entitled to the goods delivered by ISW GmbH shall continue to be the object converted into the goods. Insofar as the purchased item is processed with other items not belonging to ISW GmbH, ISW GmbH acquires co-ownership of the new item in proportion to the objective value of the goods delivered by ISW GmbH to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the goods delivered by ISW GmbH are to be regarded as the main thing, it is deemed agreed that the customer transfers co-ownership to ISW GmbH on a pro rata basis and that the resulting sole ownership or co-ownership is stored for ISW GmbH. In order to secure the claims of ISW GmbH against the client, the client also assigns such claims to ISW GmbH, which arise from the connection of the reserved goods with a property against a third party. The assignment is already accepted by ISW GmbH.
8.6 If the customer’s claim from the resale of the goods delivered by ISW GmbH has been included in a current account, the client hereby also assigns his claim from the current account to ISW GmbH. The assignment shall take place in the amount that ISW GmbH had charged the customer for the further sold reserved goods. ISW GmbH already accepts this assignment.
8.7 In the event of attachment of the goods to the customer, ISW GmbH must be informed immediately by sending a copy of the foreclosure protocol and an affidavit that the goods seized are supplied by ISW GmbH and goods subject to retention of title.
8.8 ISW GmbH undertakes to release the securities to which it is entitled at the request of the client, insofar as their value exceeds the claims to be secured by more than 20.
8.9 The assertion of the rights by ISW GmbH from the retention of title does not release the client from his contractual obligations. The value of the goods at the time of the return is only credited to the existing claim of ISW GmbH against the customer.
9.1 Insofar as there is a material or legal defect for which ISW GmbH is responsible, ISW GmbH is entitled, at its own discretion, to choose supplementary performance in the form of the remedy of the defect or the delivery of a defect-free item. There is no claim by the client to a certain type of supplementary performance. If the purchase price is not paid in whole or in part, ISW GmbH may make the subsequent performance conditional upon the customer paying a reasonable portion of the purchase price taking into account the alleged defect.
9.2 Only if the subsequent performance also fails, the customer has the right to withdraw from the contract or to reduce the purchase price appropriately.
9.3 At his choice, the client is entitled to reduce the purchase price or to withdraw from the contract and to demand compensation instead of the performance if ISW GmbH performs a supplementary performance in accordance with the Clause 9.1 seriously and definitively refused or if the type of supplementary performance chosen by ISW GmbH failed or the customer is unreasonable or the client has unsuccessfully set a reasonable period of time for subsequent performance. Subsequent performance shall be deemed to have failed after the unsuccessful second attempt, unless otherwise the nature of the item or the defect or the other circumstances.
9.4 The claims for supplementary performance shall be time-barred in 12 months from the statutory commencement of the limitation period. This also applies accordingly to withdrawal and reduction. Insofar as the law stipulates longer time limits (e.g. Section 438 (1) No. 2 of the German Civil Code) and in the case of intent and fraudulent concealment of the defect as well as in the event of non-compliance with a quality guarantee, the short period of 12 months does not apply.
9.5 If the contract between the client and ISW GmbH is a commercial purchase, the provisions of Section 377 of the German Commercial Code (HGB) apply.
9.6 The customer may not refuse to accept deliveries due to minor defects.
10. Other liability
Without prejudice to the provisions on warranty and other specific provisions made in these provisions, the following shall apply in the event of a breach of duty by ISW GmbH:
10.1 Claims for damages against ISW GmbH are excluded, regardless of the legal reason, in particular due to the breach of obligations arising from the obligation and tort, subject to the following regulations. In particular, ISW GmbH shall not be liable for damages that are not based on an intentional or negligent act or breach of duty by its legal representatives, employees or vicarious agents; this also applies to the existence of defects of a subject-matter of purchase that is determined only in the class. Sentences 1 and 2 do not apply to claims of the client under the Product Liability Act.
10.2 ISW GmbH is liable in accordance with the statutory provisions of the German Civil Code (BGB) for damages resulting from injury to life, body or health resulting from an intentional or negligent breach of duty by one or more of its legal representatives, employees of the or vicarious agents, as well as for damages that are based on an intentional or grossly negligent breach of duty by one or more legal representatives, employees or vicarious agents of ISW GmbH. IsW GmbH is also liable in accordance with the statutory provisions for defects that ISW GmbH has fraudulently concealed or guaranteed its absence and in the case of defects of the delivery item, insofar as under the Product Liability Act for personal injury or property damage to privately used objects are liable.
10.3 ISW GmbH shall be liable for damages or compensation of the expenses incurred by the customer in accordance with the statutory provisions of the German Civil Code (BGB) if damage is due to the breach of a guarantee for the quality of the purchased item assumed by ISW GmbH, or one or more of the legal representatives, employees or vicarious agents of ISW GmbH have negligently violated an obligation that is essential for the achievement of the contract (so-called cardinal obligations).
10.4 ISW GmbH assumes no procurement risk and no guarantees of any kind, unless an express written agreement has been concluded with the client.
11. Place of performance, law applicable to the place of jurisdiction, partial nullity
11.1 The place of service for deliveries by ISW GmbH is the respective place of dispatch, for other services of ISW GmbH and for payments of the payer, it is the registered office of ISW GmbH.
11.2 Insofar as the client is a full merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, a special fund under public law or does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all shall be contractual relationship between ISW GmbH and the client directly or indirectly arising in the court of the competent court at the registered office of ISW GmbH or, at the choice of ISW GmbH, the general place of jurisdiction of the client.
11.3 For these terms and conditions of sale and delivery and all legal relations between ISW GmbH and the client, the law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods – CISG- of 11.04.1980.
11.4 Should one or more provisions of these terms and conditions of sale and delivery or a provision within the scope of other agreements between ISW GmbH and the customer be or become ineffective in whole or in part, the validity of all other provisions or agreements.
As of 06 / 2016