Priemitzstraße 2
06184 Kabelsketal, Germany
Phone: +49 (0) 34602 9566-0
Fax: +49 (0) 34602 9566-30
Terms and Conditions
Standard Terms and Conditions
ISG – Industrie Service GmbH
1. General, Scope of Application
The following terms and conditions shall apply to any offers, deliveries and services resulting from contracts for services, purchase agreements or employment contracts, including such relating to future business transactions and continuous obligations towards ISG Industrie Service GmbH (hereinafter referred to as „ISG"). Effectiveness of possible standard terms and conditions of customers shall be expressly excluded.
2. Offers, Confirmation of Orders
2.1
Any offers shall be subject to change provided nothing on the contrary was expressly agreed.
2.2
Any subsequent changes upon the customer's request will be charged to the customer.
3. Prices and Payment
3.1
Prices agreed upon closing of contract shall apply.
3.2
Prices do not include packaging. Delivery costs and transport expenses will be charged separately.
3.3
Prices are plus applicable VAT. Payments may only be made to us, or to any person that was authorized by us in writing to receive payments. Invoices shall be due and payable according to the date given therein, or if no date was given within 7 days of the date of the invoice, net cash free of paying office.
3.4
Working hours within usual working time on a working day in the framework of weekly working time according to collective agreement will be calculated in accordance with ISG's current cost rates.
3.5
Separately agreed cost rates of ISG shall apply to works under difficult conditions, in particular inside hot or cold, or especially cramped rooms, or at especially dirty assembly places, or with pipes contaminated with chemicals.
3.6
Overtime as well as work on Sundays and bank holidays will be additionally calculated with the currently applicable surcharge rates of ISG.
3.7
Any preparatory, travel, waiting and walking times shall be considered working times and will be charged accordingly.
3.8
If the rendering of services should be delayed without us being responsible for it, any additional expenses (in particular travel and waiting times) shall be charged separately; the same applies to service prices agreed as lump-sums.
3.9
The customer has to confirm in writing any expended working time in the time sheets or in any other work / acceptance certification presented to him.
3.10
The customer shall only be entitled to set off with claims which are undisputed, or which have been confirmed in a final and absolute manner.
4. Services
4.1
Appointments or dates shall only be binding if they have been expressly confirmed by us in writing. Unforeseeable circumstances and events, such as force majeure, governmental actions, non-issuance of official approvals/permits, labour disputes of any kind, sabotage, lack of raw material, delayed delivery of material without our responsibility, war, riots etc. shall postpone delivery / service dates accordingly, even if they occur during an already existing default.
4.2
Should we exceed a deadline that had been confirmed bindingly, and if the customer cannot be expected to wait any longer, the customer shall have the right to claim further rights, provided after occurrence of default he send a reminder and granted sufficient grace. In this case any damages claims of the customer shall be excluded provided the default resulted from wilful or grossly negligent acts by us or by any of our statutory representatives or agents. If the customer is in delay with acceptance, we shall be entitled to refuse fulfilment of the contract and to claim damages after prior fixing a final deadline. Instead, we shall be permitted to dispose of the goods as we choose, and to deliver to the customer within a newly fixed appropriate deadline.
4.3
If an item is shipped upon the customer's request, such shall be done on the customer's account and at his risk. With all deliveries the risk of destruction of goods shall be transferred to the customer upon surrender of the goods to the forwarding agent, carrier or any other person entrusted with shipment.
5. Reservation of Ownership
5.1
Any good delivered by us remains our property until full payment of the purchase price.
5.2
Any good delivered by us remains our property until full settlement of any claims resulting from this business relationship (extended reservation of ownership).
Any disposition of any kind of goods subject to reservation of ownership by the customer shall only be permitted in the framework of usual business transactions of the customer. Under no circumstances it is allowed to transfer the goods to any third party for security purposes in the framework of usual business transactions. In case of sale of these goods in usual business transactions the paid purchase price shall replace the goods. The customer already now assigns any claim resulting from a possible disposition. The customer shall be authorized to claim these receivables as long as he is in accordance with his payment obligations towards us. Due to the extended reservation of ownership (preliminary assignment of respective purchase price claim), any assignment to third parties, in particular to banking institutions, shall be in violation of the contract and thus shall be ineffective. We shall be at any time entitled to review the customer's sales records and to inform his sub-purchasers of the assignment. If the customer's claim was included in a current account, the customer shall hereby assign to us his claims from the current account towards his sub-purchaser. Assignment will be in the amount of the sum which we charged to the customer for the goods subject to reservation of ownership and which then had been sold again. In case of execution of goods at the customer's, we shall be notified immediately by sending to us a copy of the bailiff's record together with an affidavit confirming that the goods subject to execution are goods that had been delivered by us and that are subject to reservation of ownership. Exceeds the amount of security according to the preceding clauses the amount of the claims secured by them which are still unpaid after deduction of security costs by more than 20 % for the near future, the customer shall be entitled to claim release of securities in the respective extent of excess.
6. Specific Provisions on Maintenance and Repair Works
6.1
If maintenance or repair services are rendered by us, such will exclusively be subject to the respective terms and conditions as well as in accordance with these Standard Terms and Conditions.
6.2
Our maintenance and repair works are services. Prices are subject to respectively applicable service price lists. Travel expenses, material expenditures and similar costs will be additionally charged in accordance with our respective price lists. Travelling times of our employees are considered working time and shall be remunerated as stipulated in our service price lists.
6.3
If the customer requests a preliminary estimate of costs, we will review the matter and then submit such estimate. The costs of such review are to be borne by the customer. The review's costs will be calculated according to actual expenses; they will only be set-off in the framework of a subsequent repair or maintenance order if such was expressly agreed in advance.
7. Defect Liability
7.1
A customer has guaranty claims towards us for a period of one year starting from acceptance of the respective service.
7.2
Is the rendering of work performance defective which impairs its contractually agreed use considerably, the customer shall – on our choice – firstly have the right of improvement or new delivery (subsequent fulfilment). If the customer after a first request fixed a sufficient additional deadline for subsequent fulfilment, and if we refuse subsequent fulfilment or such subsequent fulfilment fails, the customer shall reserve the right as regards remedying faults to choose between reversal of the contract and reduction of remuneration. In case of a minor deviation of a service which does not impair functionality, the customer may only claim reduction of remuneration. If we rendered services of search for defects after a default was reported to us and if a defect could not be found, and such could have been recognizable for the customer, the customer has to bear the costs resulting from this intervention. These expenses are calculated in accordance with remuneration rates of ISG (please see item 3) as applicable at the time of rendering of these services.
7.3
Any liability for defects relating to services rendered by us shall extinguish if the customer changed them or interferes with them in any other way, provided the customer is unable to prove that the defect was not caused by his intervention. Furthermore, any liability for defects shall extinguish if the customer does not notify us immediately in writing of any defect that is perceptible, or if the service was not used in accordance with contractually agreed and documented conditions and circumstances.
7.4
Any claims of customers because of necessary expenses due to subsequent fulfilment, in particular transport, labour costs and material expenditures, are excluded as far as expenses are increased because the service item had been subsequently brought to a place different from the contractually agreed place of performance.
7.5.
Provisions of Clause 12 shall apply to possible damages claims.
8. Erection and Assembly
8.1
The customer has on his account to provide the following things on time:
- any ground, construction and other collateral works not customary in this branch of business,
- any items of use necessary for assembly and commissioning, such as scaffolding, lifting appliances and other devices, fuel and lubricants, electricity and connections, heating and lights,
- for storage of machine parts, apparatuses, materials, tools etc. at the assembly place sufficiently big, dry and lockable rooms, and for assembly staff appropriate rooms for work and recreation, including appropriate sanitary facilities under the circumstances; the customer has to ensure the same measures to protect the property of the contractor and assembly staff on the premises as he would for his own property,
- protective clothes and appliances which are required due to specific circumstances at the assembly site.
8.2
Prior to commencement of assembly works, the customer has to provide without being requested necessary information on the position of covered electricity, gas, water/sewage and other cables/pipes as well as on necessary static conditions.
8.3
Prior to commencement of erection or assembly, any accessories and items at the erection/assembly site necessary for commencement of works have to be ready and in place, and any preliminary works prior to erection or assembly have to be in a status that erection or assembly can start and be completed without interruption as contractually agreed. Transport paths and the site of erection or assembly have to be cleared and levelled.
9. Delay, Impossibility, Withdrawal
Should we be in delay with the surrender of an item and provided we caused this wilfully or grossly negligently, we will reimburse the customer any damage resulting from this. In case of simple negligence, any customer's claims shall be excluded.
10. Acceptance
10.1
In case of work services we may render partial deliveries or partial services (partial acceptance). This refers to separate stages in order to fulfil specific phases or services, or separate and functioning parts, or separate documents or parts of documents.
10.2
The customer has to immediately perform each acceptance inspection (partial acceptance) relating to services rendered by us, and has to confirm such acceptance. We shall have the right to participate in every acceptance inspection.
10.3
Should no reprimand of considerable defects be declared within thirty calendar days of an acceptance inspection or of a possibly agreed date of acceptance, or if the customer takes over the work results into his business operations, acceptance shall be considered as confirmed.
11. Software
If surrender of software is subject of the contract, the following shall apply:
If nothing on the contrary was individually agreed, the customer shall, relating to the acquired programmes, receive the simple right to use the software for his own purposes. The customer shall only be entitled to transfer or forward the contractually agreed software after prior written consent by us. The customer shall not be permitted to use the software for third parties, or to provide it for third parties for data processing; the same applies if such is done in the customer's computers. The customer shall not have the right to grant sub-licences. The customer is not entitled to be surrendered the source code.
12. Indemnity
12.1
We shall be fully liable in case of wilful actions or gross negligence, or if contractually guaranteed properties are missing.
12.2
In case of simple negligence, we shall be unconditionally liable if it caused damages to life, body or health. Besides, we shall be liable in cases of simple negligence only if an obligation was violated whose fulfilment was a prerequisite for the proper execution of the contract, or whose violation jeopardizes the achievement of the contractual purpose and on whose fulfilment the customer is normally permitted to rely (principal obligation). Upon violation of a principal obligation, liability shall be limited to contract-typical foreseeable damages. The same applies to lost profit and anticipated savings. Any liability for other remote consequential damages shall be excluded.
12.3
We shall be liable for the loss of data in case of simple negligence under the requirements and to the extent of Clause 12.2 only if the customer performed a daily data securing.
12.4
Any liability for other damages shall be excluded. Liability according to the Product Liability Act remains unaffected.
13. Sub-Contractors
We shall have the right to render services through third party contractors (sub-contractors).
14. No Assignment, Set-off, Retention
Any transfer of customer's rights resulting from business transactions concluded with us require our written consent. The customer shall only be permitted to set-off his claims towards us if his claims are undisputed, or have been confirmed in a final and absolute manner.
15. General
15.1
Should one or more than one of the above provisions be or become ineffective, or should they contain a legal gap, the remaining provisions shall remain unaffected.
15.2
Exclusive place of jurisdiction for all disputes resulting from this contract and relating to its effectiveness shall be our business seat provided no other compulsory venues are stipulated by applicable laws.