ISOLITE GmbH – General Terms and Conditions of Business
As at January 2012
1. Area of application
Unless the relevant parties reach an alternative contractual agreement, ISOLITE GmbH shall base all contractual relationships with customers on these General Terms and Conditions of Business. Customers can consult the regulations applying to the contractual relationship free of charge at our company premises or online. The customer’s terms and conditions of business shall only apply if we have expressly acknowledged these in writing.
2. Quotation and quotation documents
Quotations prepared by ISOLITE GmbH shall be non-binding and subject to us receiving the necessary deliveries. We shall retain exclusive copyright to all technical documentation we provide, such as drawings, proposed designs, etc. If an order is not placed with us, these documents must be returned to us. We shall not accept any liability whatsoever if our proposals are used for anything other than an order placed with us. Customers cannot derive rights of any kind from the contents of catalogues, brochures or other advertising material, including our website. These contents are not associated with any guarantees, nor do they represent a promise of specific properties.
3. Scope of delivery/performance
The scope of delivery/performance shall include the work described in the quotation as confirmed and/or the items listed in the confirmation of order. If there is a deviation from the scope of delivery/performance during implementation that it was not possible to take into account in the relevant price, we shall be entitled to invoice the customer for the associated costs, provided the additional work is necessary for full performance and it is in line with the presumed intention. We reserve the right to replace materials with equivalents and to make design changes if these become necessary as a result of technical advances and are reasonable from the customer’s perspective, also taking into account our own interests.
Unless otherwise specified in the confirmation of order, all prices shall be ex works and include loading but not packaging. The statutory rate of VAT shall apply to all net prices. ISOLITE GmbH shall be entitled to issue part invoices for part shipments. All prices quoted are based on existing drawings and data, and on the raw material prices applying at the time the quotation was submitted. If there are any changes to drawings, data or the price of materials, ISOLITE GmbH reserves the right to adjust its prices accordingly. ISOLITE GmbH shall provide prompt notification, without this having to be specifically requested, if changes to purchase prices lead to increases in its selling prices. ISOLITE GmbH also expressly reserves the right to pass on interim increases in procurement prices for ongoing order call-offs that are manufactured in several batches or subject to schedule changes for which ISOLITE GmbH is not responsible.
5. Terms of payment
Unless the two parties reach an alternative contractual agreement, all payments are to be made to ISOLITE GmbH in euros. Such contractual agreements shall only apply if we have expressly acknowledged them in writing. Unless otherwise contractually agreed, amounts due shall be payable within 14 days of the invoice date with no discount. If payment is made within six days of the invoice date, ISOLITE GmbH will apply a 1% discount. The date of payment is deemed to be the date on which ISOLITE GmbH receives the money. The buyer shall be deemed to be late in making payment if, without any reminder being issued, it exceeds the period of 14 days from the invoice date. ISOLITE GmbH shall be entitled to demand interest on arrears at a rate of eight percent above the European Central Bank’s base rate. The customer shall not be permitted to offset or withhold payments or parts thereof. Payments by cheque and bill of exchange shall be valid only once they have cleared. The customer must pay all collection/discount charges.
6. Delivery period
Delivery periods shall commence on receipt of all documentation required to process the order, the agreed down payments and punctual supply of materials by the customer. If shipment is impossible and the supplier is not to blame, notification of readiness for shipment shall be deemed equivalent to meeting the delivery deadline. Production stoppages and interruptions at manufacturers’ plants that delay the delivery of materials and inevitably mean we are unable to meet all or part of our obligations shall entitle us to defer our performance by the period of the delay together with an additional period for resumption of work, provided we purchased the relevant materials for the specific project and stipulated appropriate contractual deadlines and conditions. Compensation for delays in meeting deadlines may be claimed if these delays were the result of deliberate actions or gross negligence by us or our legal representatives, senior staff or agents. This shall apply even if the contract is cancelled in such a case.
7. Packaging, shipment and transfer of risk
Unless otherwise agreed, the supplier may package and ship items as it sees fit. Even in the case of carriage-paid delivery, the risk shall pass to the customer when the shipment leaves the supplier’s plant. In the case of delays in shipment for which the customer is responsible, the risk shall be transferred on notification of readiness for shipment. If the customer so requests in writing, goods will be insured against breakage and against storage, transport and fire damage at its expense.
8. Liability for defects
The customer must submit any notification of defects in writing promptly and no more than two weeks after receiving the delivery. If the claim is justified – based on the quality and design of the type samples approved in writing by the customer – the supplier must, at its own discretion, either rework the relevant item(s) or replace it/them free of charge. If it fails to do so within a reasonable period, the customer shall be entitled to reduce the purchase price or cancel/withdraw from the contract. No further claims shall be accepted, except in the event of deliberate actions or gross negligence. Replaced parts are to be returned to the supplier carriage forward if it so requests. If the customer reworks items on its own authority or handles them improperly, all defect-related claims shall become void. Only in order to avoid disproportionately high losses or if there is a delay in the supplier rectifying defects shall the customer be entitled, after notifying the supplier, to rework items and claim reasonable compensation for the costs incurred.
9. Product liability
ISOLITE GmbH is subject to statutory product liability and shall only be liable towards third parties for losses to the extent and up to the amounts provided for by law. The customer shall undertake to pass on to its own customers all warnings, instructions and other information drawn up and issued by ISOLITE GmbH relating to the operation, maintenance and repair of delivery items, and to ensure they are strictly adhered to. In the relationship between supplier and customer, the customer shall be liable for losses resulting from its failure to pass on ISOLITE GmbH’s specifications. ISOLITE GmbH shall not be liable towards the customer, either directly or by right of recourse, for collateral damage or consequential losses that are not directly linked to the defectiveness of delivery items, in particular lost profits, lost earnings, loss of use or interest charges resulting from a delay in processing by the customer. ISOLITE GmbH hereby limits the right of recourse to the amount covered by its business liability insurance. ISOLITE GmbH’s liability insurance is adequate to cover the general business risk.
10. Reservation of ownership and advance assignment
The entire delivery item shall remain our property until payment has been made in full. If the customer is not also the end processor or if it derives a claim against a third party as a result of our performance, its rights towards third parties, together with all ancillary rights, are hereby assigned to us until full settlement of our claims, including the relevant balance claims to which we are entitled from the business relationship. Assignment shall only take place on account of performance. The customer shall remain obliged to make payment for the performance ordered until the third party has paid for this in full. If we so request, the customer shall be obliged to notify its debtor of the assignment and provide us with the information we need to assert our rights in respect of the third-party debtor together with the relevant documentation. In our position as a manufacturer as defined in paragraph 950 of the BGB (German Civil Code), any processing of goods subject to reservation of ownership shall not put us under any obligation. The processed items shall have the status of goods subject to reservation of ownership as described above. If the customer processes, combines or mixes the goods subject to reservation of ownership with other items, we shall have joint ownership of the new item based on the invoice value of the goods subject to reservation of ownership in relation to the invoice value of the other items used. Should combining, mixing or processing cause our ownership to lapse, the customer shall hereby transfer to us the appropriate proportion of its rights of ownership and/or expectant rights in respect of the new stock or the item. We hereby accept this transfer. The customer shall not be entitled to transfer ownership of materials subject to reservation of ownership by way of security or to pledge them until they have been paid for in full. If the value of existing securities exceeds our claims resulting from this or another transaction by more than 20%, we shall be obliged, if the customer so requests, to transfer back part of these securities.
11. Provision of materials by the customer
If the customer provides materials for completing the order, it shall bear sole liability for defects in these materials. The customer shall pay all costs resulting from defective properties of such materials, provided they were not apparent to us. The risk of accidental damage or destruction of the materials provided shall lie with the customer.
12. Industrial property rights
The customer shall be liable towards the supplier for ensuring that the supplies and performance ordered are not subject to third-party industrial property rights, shall release the supplier from all claims in this respect and must compensate the supplier for resultant losses. The supplier’s drafts and proposed designs must not be passed on without its approval.
13. Place of performance and jurisdiction
The place of performance shall be Ludwigshafen am Rhein. It shall be agreed that Ludwigshafen am Rhein has sole jurisdiction over any legal disputes resulting from the contract or relating to the existence of the contract and that, irrespective of the subject of the dispute and the amount in dispute, the district court (Amtsgericht) shall be the competent court. This shall only apply if the customer operates in the public sector or is registered in the commercial register (Vollkaufmann).
14. Changing the terms and conditions of business
If one of the above provisions is invalid, this shall not affect the validity of the remaining provisions.