General Terms and Conditions of Sales and Deliveries
Section 1 General Comments and Area of Validity
(1) These General Terms and Conditions form the exclusive basis for all legal relationships established between Jäger & Frese GmbH, Beuke 10, D-59964 Medebach-Oberschledorn (Provider/Contractor) and its Customer (Client). Any terms and conditions of the Client that oppose or deviate from these terms and conditions of delivery shall not recognised, unless it should be the case that the Contractor has explicitly accepted the validity of deviating terms and conditions in writing.
(2) These General Terms and Conditions shall also apply to all future business transactions or contractual relationships with the Client (Customer).
(3) These General Terms and Conditions shall apply only towards entrepreneurs as defined in Section 14 BGB (German Civil Code).
(4) These terms and conditions shall be deemed as having been accepted at the time of receipt of the order confirmation, delivery or service at the very latest.
Section 2 Conclusion of the Contract
(1) The offer of the Contractor is subject to alterations. It represents a request to the Customer/Client to in its turn to submit a binding offer to the Contractor.
(2) The Contractor shall confirm to the Customer the receipt of the order immediately by fax, in text form via e-mail, or in any other written form representing an explicit order confirmation. The contract shall come into being through the order placed by the Customer on the one hand and the explicit confirmation of said order on the part of the Contractor or the dispatching of the goods.
(3) The Customer is itself responsible for the application and use of the products ordered, as these matters do not lie within the Contractor’s sphere of control. Any application-technical consultation provided by the Contractor shall merely be deemed a non-binding piece of advice and shall not release the Customer from its own duty of inspection with regard to the goods ordered from or delivered by the Contractor regarding their suitability for the purpose intended by the Customer.
Section 3 Prices and Payment Terms
(1) Our deliveries shall be charged according to the prices agreed.
(2) The prices valid at the time of the placement of the order shall apply.
(3) The invoice shall be payable according to the agreed terms of payment.
(4) In the event of late payment (debtor default) the Client shall be required to pay default interest at a rate of 9 percentage points above the basic rate of interest of the European Central Bank at the respective time.
(5) The Contractor shall be entitled to initially offset any payment made by the Customer against its oldest, non-titled receivable. Should any interest and costs already have been incurred the Contractor shall be entitled to offset payments made by the Customer first of all against its costs, then against the interest and finally against the main receivable.
Section 4 Delivery, Delivery Period, Default
(1) Delivery dates and delivery periods shall only then be deemed as having been agreed bindingly if they have been explicitly promised in the order confirmation. The Contractor shall not be bound to the delivery date or period should the Customer fail to comply punctually with its own responsibilities (payment of advance instalments, earlier invoices, provision of required documents, etc.) The plea of an unfulfilled contract remains reserved.
(2) Delivery periods shall commence at the earliest on that day in which the order had been confirmed by the Contractor.
(3) In the event of subsequent change requests on the part of the Customer or the ordering of rare types the Contractor shall be released from adherence to the delivery date or period.
(4) The delivery period shall be deemed to have been adhered to if the object of the delivery has left the premises of the Contractor by the time of its expiry.
(5) The Customer cannot derive any claims from delays in delivery that are not to be attributed to wilful intent and gross negligence on the part of the Contractor. This is true especially with regard to delays in deliveries caused by Force Majeure. The agreed delivery date or period shall be postponed in such cases according to the duration of the obstacle to fulfilment.
(6) Should the Customer default on acceptance or violate any of its other collaboration obligations the Contractor shall be entitled to demand compensation for the losses incurred in this connection including any extra expenditure. The Provider shall furthermore be entitled to set the Customer a reasonable period of grace and, after the fruitless expiry thereof, to rescind the contract and demand compensation instead of fulfilment.
(7) On-demand orders for which no precise dates have been determined must be wound up 12 months subsequent to the time of delivery, inasmuch as nothing to the contrary should have been agreed in writing.
Section 5 Transfer of Risk
(1) The risk, i.e. of chance loss, shall pass to the Customer upon the dispatching of the goods (also in the case of free deliveries) – also in cases in which partial deliveries, which are explicitly permissible, have been effected.
(2) Deliveries shall be effected ex company premises of the Contractor. The Contractor is only obliged to insure the goods against insurable risks at the explicit wish to the Customer and at the latter’s costs.
Section 6 Reservation of Proprietary Rights
(1) The Contractor reserves its proprietary rights to all parts delivered until all payments under the terms of the contract have been received. In the event of conduct in breach of contract, in particular default on payment, the Contractor shall be entitled to repossess the object of purchase immediately.
(2) The Customer shall be under an obligation to handle the parts delivered with care and to insure them for the duration of the reservation of proprietary rights at its own costs against all forms of loss at their replacement values.
(3) In the event of seizures or any other interventions by any third parties the Customer shall be required to inform the Provider without delay in writing in order that the latter might be able to file a third party suit. Inasmuch as the third party should not be able to refund the court and out-of-court costs of such a suit the Customer shall be liable for them.
(4) The Customer shall be entitled to resell the object of purchase in the course of its ordinary business. It shall, however, assign to the Contractor at this point in time already all receivables up to the amount of the final invoice sum (including VAT) of the Contractor’s receivable that may accrue to it from any resale towards its own customers and third parties, and shall do so irrespective of whether the object of purchase has been resold with or without further processing. The Customer shall remain entitled to collect said receivable after delivery. The right of the Provider to collect the receivable itself shall remain unaffected by this. The Provider does undertake, however, not to collect the receivable as long as the Customer complies with its payment commitments resulting from the proceeds received, does not default and that, in particular, no application for the opening of insolvency proceedings has been filed and the payments have not ceased.
(5) Should the goods delivered be inseparably mixed or combined with other items that do not belong to the Provider, the Provider shall acquire co-ownership to the new or combined item in the ratio between the value of the goods delivered (final invoice amount including VAT) and that of the other items at the time of the mixing or combining. The Customer shall hold the sole or co-ownership thus acquired on behalf of the Provider.
Section 7 Liability for Material Defects, Liability
(1) The Contractor shall not be liable for losses incurred as a result of improper treatment, wear and tear, storage or any other actions on the part of the Customer or of third parties.
(2) The Contractor shall therefore not be liable for unprofessional operating when installing, converting or dismantling. The Contractor shall be liable for compensation according to the statutory regulations if an intentional or grossly negligent violation of duty attributable to it should be the cause. Inasmuch the cause should be a case of simple negligence attributable to it and a cardinal contractual obligation have been culpably violated the liability for compensation shall be restricted to predictable losses that typically occur in comparable cases. Liability for the violating of life, limb and health as well as in accordance with the provisions of the Product Liability Act shall remain unaffected by this. Otherwise, liability is excluded.
(3) The statutory claims arising from liability for material defects shall fall under the statute of limitations one year subsequent to the handing over of the goods. This does not constitute a durability guarantee, however.
(4) The Customer shall be under an obligation to comply with its inspection obligation in accordance with Section 377 HGB (Commercial Code) also in the event of the goods being resold.
(5) In the context of post-fulfilment the Provider shall have the choice between reworking and new delivery. Further-reaching statutory rights remain unaffected by this.
(6) The expenses incurred for the purpose of post fulfilment shall not be borne by the Provider inasmuch as said expenses should increase as result of the goods, subsequent to delivery, having been moved to a location other than the commercial branch establishment of the Customer. This shall not apply should the transportation accord with the use of the item for its intended purpose. The Provider shall be liable for the costs of post-fulfilment only inasmuch as it would have been obliged to fulfilment under the terms of the contract. Further-reaching claims are in respect also ruled out in the context of compensation claims.
(7) The Customer’s right of recourse against the Contractor with regard to any such claims resulting from material defects with which the Customer finds itself confronted by its own customers is ruled out, should the Customer not have complied with its inspection and complaints obligation or the goods should have been modified by processing.
(8) The liability of the Contractor for compensation according to the statutory provisions shall apply without restriction should the cause by a violation of an obligation through wilful intent or gross negligence attributable to the Provider. Inasmuch as the violation of an obligation attributable to the Provider should result from simple negligence and a cardinal contractual obligation should have been culpably breached the liability for compensation shall be restricted to the typical losses incurred in comparable cases. Otherwise liability is excluded.
(9) Liability according to the provisions of the Product Liability Act shall remain unaffected. Liability due to the violation of life, limb and health shall also remain unaffected.
Section 8 Ban on Assignment
No claims held by the Customer towards the Provider resulting from this contract are assignable.
Section 9 Product Liability
(1) The Customer may use the goods only for their intended purpose and must ensure that said goods are only resold to persons who are familiar with the dangers and risks connected with the products.
(2) The Customer is obliged, when using the goods as a basic material or part product for products of its own, to comply with in its warning obligation when bringing the final product onto the market, also with regard to the goods delivered by the Provider. In the context of their internal relationship the Customer shall indemnify the Provider against the assertion of claims or violations of this obligation upon first request.
Section 10 Place of Fulfilment, Court of Jurisdiction, Final Provisions
(1) The place of fulfilment is D-59964 Medebach-Oberschledorn.
(2) The court of jurisdiction for all disputes arising from this contract is D-59964 Medebach.
(3) The Contractor is entitled, however, to also file a suit against the Customer at that court with jurisdiction over Customer’s own head office or where the Customer upholds a branch office.
(4) German law shall apply solely excluding the UN Convention on the International Sale of Goods.
(5) Inasmuch as one or more provisions of these General Terms and Conditions should be or become invalid or impracticable, this shall not affect the validity of the Terms and Conditions overall. The invalid or impracticable provision is to be replaced by one that, economically and legally, comes closest to that which the Parties had intended with the original provision. This shall also apply to any loopholes there might be in the contract.
Jäger & Frese GmbH
D-59964 Medebach-Oberschledorn