General terms and conditions of delivery, services and payment to entrepreneurs
ITS Intelligent Trade Solutions GmbH & Co. KG
- Area of application
- Scope of services/use of products
- Price and payment
- Delivery periods and time of performance/delivery risk
- Assembly and repairs
- Reservation of title
- Warranty Claims
- Industrial property rights
- Export Prohibitions
- Jurisdiction/Place of performance/Severability
- These terms and conditions (hereinafter referred to as „terms and conditions of delivery“) of Intelligent Trade Solutions GmbH & Co KG (hereinafter referred to as „ITS“) shall apply exclusively; any terms and conditions of the customer to the contrary or deviating from these terms and conditions are rejected unless ITS has expressly consented to their validity in writing. These terms and conditions of delivery shall also apply if ITS performs delivery to the customer while being aware of contrary or deviating terms and conditions by the customer.
- These terms shall only be applicable vis-à-vis entrepreneurs within the meaning of § 14 paragraph 1 German Civil Code (Bürgerliches Gesetzbuch – BGB), legal entities according to public law or public special funds within the meaning of § 310 paragraph 1 German Civil Code.
- All agreements concluded between the contracting parties for the purpose of executing this contract shall be set down in writing. Any amendments of and supplements to this contract shall also be in writing.
- Field staff and employees are not entitled to make oral collateral agreements or to deviate from these terms and conditions of delivery. Such agreements are only valid if they are confirmed in writing by a member of the ITS management (managing director or sales director).
- These terms and conditions of delivery shall also apply to all future transactions with the customer within the framework of current business dealings, with no further reference being required.
- All offers made by ITS are subject to change without notice, provided that nothing else is apparent from confirmation of order issued by ITS or the latter did not expressly provide for the contrary in writing.
- A contract is deemed concluded only if ITS has confirmed orders made by the customer in writing or if ITS delivers the goods ordered, or provides the services agreed.
- The customer shall be bound by any offer he has made 2 weeks after receipt of said offer by ITS. ITS may accept an offer from the customer by confirming the order or by commencing execution of the services ordered or by effecting delivery within the afore-mentioned period.
- Any documentation appurtenant to the offer, such as specifications, illustrations, drawings, drafts, indications of weight, and measurements, shall be considered as approximations only unless they are expressly declared as binding. They do particularly not constitute express warranties or warranted qualities unless otherwise expressly agreed in writing. All performance figures of the contractor shall be considered as approximations only even if they come from the latter’s supplier.
- ITS reserves title to and the copyright in estimates, drawings, calculations and other documents, they may only be made available to third parties subject to prior consent. This shall not apply to documents (advertising documents, general specifications of products and services) that were separately set up unless these are marked „confidential“ or something similar (e.g. „secret“).
- The written confirmation of the order by ITS shall be decisive for the scope of services unless otherwise agreed.
- ITS may also have the services agreed performed by other entrepreneurs working on their behalf.
- Should the customer request an estimate, ITS is entitled, unless otherwise agreed, to invoice the customer for an appropriate share of the expenses thereof in the event that the order is not placed.
- ITS points out that services performed by them are not suitable for use in security systems, military facilities, or medical appliances unless expressly agreed in writing to the contrary.
- Unless otherwise apparent from confirmation of the order, prices apply exclusive value added tax which shall be charged to the customer separately.
- Prices for goods apply „ex works“(Incoterms 2000) exclusive of transport costs, however, inclusive of customary packaging.
- Travel times and travel costs incurred by ITS personnel in connection with services by the latter at certain places are to be additionally remunerated by the customer at appropriate rates, unless otherwise agreed.
- Prices by ITS are, unless expressly agreed otherwise in writing, not fixed prices. In particular, ITS is entitled, in the event that the agreed terms of delivery exceed four weeks after conclusion of the contract, to charge such prices as are valid at the time of delivery. In such a case, ITS is entitled, in particular, to adjust prices in line with monetary fluctuations for goods not yet delivered, should it be the case that the latter are goods that ITS has procured in foreign currency.
- ITS is entitled to request payment on account in the event of self-contained partial deliveries (§ 632 a BGB) if it is the case that ITS is performing within the framework of a contract for work and services. Self-contained parts are especially parts, such as have an economic value or utility value in their own right.
- Unless otherwise on ITS’s invoices all invoices are payable within 14 days of receipt. If the customer defaults in payment, ITS is entitled to demand interest for default amounting to 8 percent per year in excess of the current base rate of interest of the European Central Bank. If the customer is a merchant, ITS is entitled, at the time when payment falls due, to demand interest amounting to 3 percent per year in excess of the current base rate of interest of the European Central Bank.
- If ITS is obliged to advance performance and if, after conclusion of the contract, circumstances are made known to it in respect of which an essential deterioration in the assets of the customer must be assumed, ITS may, at their discretion, either request security within a reasonable term or request concurrent payment against surrender. If the customer does not fulfill said request ITS is entitled to withdraw from the contract subject to further legal rights.
- The customer shall have a right of set-off only if his counter-claims have been recognized by declaratory judgment, have not been contested or have been recognized by ITS. The customer shall be entitled to exercise a right of retention, or a right to refuse performance, only if the same conditions have been satisfied and, furthermore, if his counter-claim is based on the same contractual relationship.
- Drafts and checks, if at all, are accepted as conditional payment only. The customer shall bear the entire costs, in particular cheque charges and bill charges.
- Delivery periods and time of performance shall not be binding at any time unless by special agreement. If otherwise agreed, the delivery period and time of performance shall commence when the confirmation of the order is sent, however, not until submission of any documents, authorizations and approvals to be obtained by the customer as well as the fulfillment of any other obligations and financial obligations arising in connection with execution of services.
- The delivery period shall be extended for the duration of the impairment plus a reasonable starting period in the case of force majeure or other unforeseen circumstances beyond the control of ITS, such as industrial disputes, natural disasters, difficulties in procuring raw materials, supplies not delivered in time by sub-contractors.
ITS shall not be held responsible, either, if the above circumstances occur during an existing delay. If the impairment lasts longer than three months, ITS and the customer shall be entitled to rescind the contract after the expiry of a further reasonable period of time. Claims for damages shall be excluded in this case.
- In the event that ITS is in arrears with performance or delivery, the customer is entitled, in the event that he has sustained damage thereby, to demand compensation for arrears amounting to 1 % of the value of the invoice of the performance per week terminated, the amount, however, not to exceed 7,5 %. This limitation of damages due to arrears shall not apply in the event of gross negligence or intent on the part of ITS.
- If, after default by ITS, the customer grants ITS an additional period of time of reasonable length, he shall be entitled to rescind the contract after this additional period of time has expired without results; in this case, the customer shall be entitled to claim damages instead of performance only if the default was caused intentionally or by gross negligence. These limitations on liability shall not apply insofar as the customer may assert that he is no longer interested in performing the contract because default by ITS. In such cases, liability shall be limited to the foreseeable damage being typical for the contract, unless ITS may be accused of intent.
- ITS is entitled to partial delivery and early delivery, unless it is the case that the customer has an obvious interest to the contrary.
- All deliveries of goods shall be „ex works“ (Incoterms 2000), unless assembly or installation by ITS has been agreed or unless another agreement has been reached.
- If the mandator is in default or violates any other obligations for cooperation, ITS is entitled to demand compensation for the damage incurred including any additional expenses. In such case the risk of accidental loss or accidental deterioration of the object of sale passes to the customer at that point in time when the customer falls into arrears. In the event that the customer is in default, ITS is entitled to store goods to be delivered at the customer’s risk and to charge a lump sum for storage in the amount of 1 % of the value of the invoice, the sum however not to exceed € 30 per week. The customer is obliged to accept delivery (primary duty).
- If the customer is in default, ITS is entitled to withdraw from the contract subsequent to expiry of an appropriate period of grace and/or demand a flat rate compensation amounting to 20 % of the net value of the order instead of fulfilment. ITS reserves the right to assert further claims.
The following provision shall apply to assembly work of any kind whatsoever, including assembly work being part of a purchase order as well as any subsequent repairs and modifications (hereinafter referred to as „Services“):
- Unless otherwise provided by the contract, ITS shall charge any Services outside his warranty obligations according to time spent in accordance with his price list plus transport charges and travel expenses as well as any other expenses incurred. Furthermore, in the case of maintenance, after-sales and repair services any material will additionally be charged at ITS prices.
Unless otherwise agreed in writing, the Services shall be subject to the following provisions:
2a) The customer shall ensure that all structural prerequisites are fulfilled which enable ITS staff to perform their work safely and unimpaired within the set period. The customer undertakes to place at the disposal of ITS, at his expense, in due time: adequate sanitary facilities for employees of ITS or its sub-contractors; lighting; heating; water; and energy. ITS will inform the mandator of special requiremants;
2b) Prior to the commencement of performance by ITS, the customer shall provide any information required with regard to the location of concealed energy lines or similar installations and the necessary static and technical information. The same shall apply to other particularities and dangers of which HIS cannot have knowledge.
- Any expenses incurred by ITS owing to the non-fulfillment of the prerequisites within the area of responsibility of the customer specified in section 2 shall be for the customer’s expense. However, if one or more of the above prerequisites have not been fulfilled so that the performance of Services is unacceptable for ITS the latter may refuse performance without prejudice to any further rights of ITS.
- ITS shall be entitled, also with regard to these Services, to instruct at his choice sub-contractors with the performance of Services. A sub-contractor shall be obliged to observe the instructions of ITS only. The supervision of the sub-contractor’s staff shall be the sole responsibility of ITS.
- Insofar as a flat-rate was agreed on, the customer shall furnish the staff of ITS or the staff of their sub-contractors with a weekly confirmation in writing, to the best of his knowledge, concerning working hours. If no lump-sum payment was agreed on, the customer shall countersign the assembly report filled in by the staff of ITS (or sub-contractor’s staff) following termination of assembly work or repair or, in the case of assembly work/repair lasting for several days, at the end of each working day. Any objections to or reservations about the report shall be noted down. A right to refuse countersigning the report does not even exist in the event of objections of the aforesaid nature.
- As regards repair services outside the warranty obligations by ITS, the customer shall grant ITS the right of possession of the item of repair insofar as this is necessary in order to carry out the repair work. The customer shall point out any rights of possession or property rights of third parties. Exchanged parts shall pass into the ownership of ITS.
- Possible warranty rights of the customer shall not be affected by VI.
- ITS retains title to the delivered items until receipt of all payments owed by the customer under the contract. In the event that the customer acts in breach of contract, in particular defaults in payment after a reasonable extension of the original term, ITS shall be entitled to take back the items delivered. This shall not apply if the customer has already filed a petition for the institution of insolvency proceedings or insolvency proceedings have been instituted, owing to which ITS is not permitted to immediately take back the items delivered. The rescission of the contract does not exclude damage claims against the customer. After taking back the delivered items, ITS shall be entitled to realize the same; the realization proceeds shall be set off against the customer’s liabilities, less reasonable costs of the realization. The provisions relating to realization for the Insolvency Code (Insolvenzordnung) shall not be affected thereby.
- The customer is obliged to handle the delivery item carefully. In particular, he is obliged to insure the same sufficiently at the reinstatement value, at his expense, especially against damage caused by fire, water or theft. If maintenance and inspection work is necessary, the customer shall carry out such work at his expense in good time.
- The customer shall inform ITS in writing without undue delay of attachments and any other interference by third parties. The customer shall be liable for any court and out of court costs of any action which might be necessary pursuant to § 771 German Code of Civil Procedure (Zivilprozeßordnung – ZPO) (action in opposition to execution of a judgment, brought by a third party who claims title to the attached property).
- The customer shall be entitled to resell the delivery item in the ordinary course of business, to the extent he is a trader and did not commission ITS with services for his own use. However, he herewith already assigns to ITS all claims to the amount of the invoice sum total (including value added tax) accruing to him from the resale against his customers or third parties, namely irrespective of whether the delivery item had been resold without or after having been processed.
The customer shall be authorized to collect this claim even after assignment. However, ITS shall be authorized to collect the claim himself if the customer does not perform his obligations to pay anymore, defaults in payment, or has filed a petition for the institution of insolvency proceedings or such petition has been filed or payments have ceased. In such cases, ITS may demand that the customer states which claims have been assigned and their debtors, furnishes them with all the information necessary for the collection, hands over the appurtenant documents and notifies the debtors (third parties) of the assignment. However, it will not be possible for ITS to collect the claim if the Insolvency Code precludes this.
- Any processing or transformation of the delivered item by the customer shall always be carried out on behalf of ITS. If the delivered item is processed with other items not belonging to ITS, the latter shall aquire joint title to the new thing proportionally to the value of the delivered thing to the other processed items at the time of the processing. In all other respects, the provisions applicable to the items delivered with a reservation shall also apply to the thing resulting from the processing.
- The customer also assigns to ITS claims for securing claims by the latter against him that arise by connection of the object with a property against third parties.
- ITS undertakes to release the securities to which he is entitled at the customer’s request also to the extent that the value of his securities exceeds the claims to be secured by more than 20 %, selection of the securities shall be incumbent on ITS.
- In the event of deliveries abroad, the following shall apply in variance of the afore-mentioned: as soon as the delivery crosses the German border, ownership rests with ITS until payment of delivery. Should the law of the state to which the goods have been delivered not provide for such a reservation of title, ITS is entitled to all rights to the delivery item that the law of the state concerned foresees instead of the reservation to title. The customer will undertake all necessary steps in order to grant and secure these rights for ITS.
Bei Mängeln der Lieferung oder Leistung von ITS gilt:
- The warranty rights (warranty caims) of the customer acting in his capacity as merchant presuppose that he inspects the delivered item or services immediately upon receipt and gives written notice of any visible defects without undue delay after carrying out the inspection, or of hidden defects without undue delay after their discovery, specifying the defect in writing to ITS (§ 377 German Commercial Code (Handelsgesetzbuch – HGB)). This shall also apply to work performances. Entrepreneurs who are no merchants lose all rights under a warranty if they do not give notice of a defect in writing of obvious defects within 3 weeks after receipt of the goods or performance.
ITS is to be given the opportunity to inspect the defect given notice of on the site. The inspection is to be carried out without delay to the extent the mandator states his interest in an immediate execution.
- Warranty claims do not exist insofar as there are only slight deviations from quality or an insignificant impairment of usability of the delivered items.
- Slight optical deviations arising for example on account of the material chosen (e.g. in colour of grains of natural products) or due to production are no defects if the use assumed by the contract is only slightly inhibited thereby. The same applies to improvements in construction and design.
- In case the customer wrongfully notifies defects for which ITS is not responsible, for reasons that are not attributable to ITS, the latter shall be entitled to charge to the customer’s account reasonable expenses incurred by them for remedying the delivered items and/or determining the defects.
- ITS may burden the customer with additional costs concerning expenses required for purposes of subsequent performance, in particular costs for transport, infrastructure, work and material if said expenses increased due to transport of the product delivered to another place than the place of delivery stipulated by the customer.
- The mandator is not entitled to remedy a defect without the consent of ITS unless legal preconditions to the contrary pertain.
- Warranty claims – regardless if they are contracts for works and services or contracts of sale become statute-barred after 12 months from delivery or, if legally stipulated or agreed to that effect, at time of acceptance of goods, unless ITS has caused these defects by gross negligence or with intent or by fraudulent concealment. This also applies to possibly given warranties and those binding HIS, unless otherwise agreed. With respect to periods of limitation for warranty claims exceeding 2 years (e.g. for buildings and parts used in same that have caused faults in same (§ 438 paragraph 1 no. 2 b) German Civil Code (BGB)), the periods prescribed by law shall apply. Likewise periods prescribed by law shall apply to possible claims for recourse pursuant to § 478 BGB. These limitations of action shall also apply to consequential damage. If a need for subsequent fulfillment arises due to faulty performance, the limitation of action for the period from notice of defects to subsequent fulfilment is only interrupted but does not recommence.
- Prior to assertion by the customer of further claims or rights (withdrawal, reduction, self-execution, compensation or reimbursement of expenses), ITS is at first to be given the opportunity for subsequent fulfilment to his discretion, by remedying the defect or performing new delivery within an appropriate period of time, unless ITS gave warranties to the contrary. If subsequent delivery fails despite two claims for subsequent fulfilment, or if it is impossible or unreasonable for the customer to accept such, or if ITS refuses subsequent fulfillment, the customer may withdraw from the contract or reduce the remuneration (reduce). Claims for compensation and expenditure are subject to clause IX of these conditions.
- With regard to services, in the event of bad performance, ITS is at first to be given opportunity to a effect a flawless new performance of services, unless such is unreasonable for the customer.
- ITS is liable for self-caused losses of data caused only to the extent it would be if the customer had carried out proper securing of data on a daily basis.
Furthermore, the following shall apply to claims arising in connection with defects of title:
a) Unless otherwise agreed, ITS is only obliged to perform Services in the country of the delivery address, free of rights of third parties.
b) In the case of an infringement of property rights of third parties falling within the responsibility of ITS, the latter may to their discretion either obtain a right to use sufficient for the agreed or assumed use and then assign said rights to the customer or to change or fulfil their performance again so that the property rights are not infringed thereby, unless the agreed or assumed use of the performance agreed is more than insignificantly impaired. If the latter is the case or if ITS refuses subsequent fulfillment, the customer is entitled to legal claims and rights within the scope of this section VIII. For claims for compensation and expenses section IX shall apply.
- The assertion of claims for damages and claims for expenditure caused by defects of services performed by ITS shall be excluded in the event that ITS cannot affect subsequent performance for reasons beyond its control. The assertion of claims for damage and for consequential damage based on faulty performance shall be excluded if ITS was not responsible for the defect.
- Claims for damages and claims for expenditure incurred by the customer, irrespective of the legal grounds, particularly for violation of duties arising from or in connection with the obligation, whether deriving from fault prior to or upon conclusion of the contract and from unlawful action shall be excluded.
- The above shall not apply to claims pursuant to §§ 1, 4 Product Liability Act (Produkthaftungsgesetz), in cases of intent or gross negligence, to violations of life, in the event of personal injury or injury to health, owing to guarantee given for the existence of a certain quality (quality guarantee), or in the event of a violation by gross negligence. In the event of negligence by ITS, its liability shall be limited in any case to the typical foreseeable damage; in the case of claims under the Product Liability Act the same legal provision shall apply. In no event ITS is liable beyond the legal claims. The provisions of clause IX do not involve any amendments in the statutory burden of proof.
- Limitations of actions by the customer against ITS for compensation and reimbursement of damages shall be determined by clause VIII section 7 accordingly, unless claims based on the Product Liability Act are concerned.
- Insofar as the liability is excluded or limited, this shall also apply to the personal liability of the employees, contractual representatives, agents and mandataries of ITS.
- Industrial property rights by ITS or third parties to goods delivered and performances basically pertain.
- Insofar as the goods delivered include software, the right to use same is only granted to the customer himself. The customer may only sell the software together with the goods delivered to third parties if he does not himself retain copies of the software. Lending the software to third parties is inadmissible, as is also the creation and use of illegal copies of the software.
Moreover, the customer must observe the licensing conditions of the supplier to ITS or the owner of rights for use (e.g. the producer of the software), such as were made accessible to him or handed over to him. ITS does not assume liability in case of violations of licensing conditions if the software is taken abroad by the customer to a country outside of Germany and such is not expressly foreseen in the relevant contract with ITS. In cases of doubt, the customer has to consult ITS or the licensor.
Export from Germany is subject to German and European export regulations, concerning which the customer must make due arrangements.
ITS also points out that US-American export regulations may be binding on the customer.
- Exclusive jurisdiction for all claims arising in connection with this contract is the seat of ITS.
- Unless otherwise agreed or resulting from the relevant contract, place of performance for all Services to be performed by ITS is the seat of ITS, if the customer is a merchant.
- The claims arising from and in connection with the contractual relationship shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Should individual provisions of the contract or these terms and conditions be or become invalid, the validity of the other provisions shall not thereby be affected.