General terms and conditions of business of Jünger GmbH
The conditions given below apply exclusively to companies as defined in § 14 BGB, legal entities and special assets under public law.
A. Purchase conditions
Contracts concerning our goods purchase are signed exclusively under consideration of these purchase conditions. Other conditions, in particular the purchase conditions of the suppliers are applicable only if these have been approved by us explicitly in written form (via letter, fax or e-mail). The supplier agrees to our purchase conditions by accepting our purchase order.
II. Purchase orders
Only the contents of our purchase order in written form is applicable. Purchase orders given orally, in particular on phone or also side agreements become applicable only after our confirmation in writing. Delivery schedules in case of blanket orders (see here Clause III) can also be done verbally.
We are bound to our purchase orders for maximum fourteen days after receipt by the supplier. The delivery contract is completed, when we receive the order confirmation of the supplier in writing within this period. If the order confirmation deviates from our purchase order, the deviating specifications apply only when they are explicitly confirmed by us in writing.
III. Blanket orders
In case of long-term delivery contracts (blanket orders) the supplier is committed to deliver specific partial quantities from the ordered quantity upon request.
A pre-production should generally be done till the next planned call, production over and above this or possibly necessary pre-material disposition only with our explicit approval so that technical changes can be incorporated in the ongoing series.
IV. First-time production
1. In case of purchase orders for the first-time production of a delivery object we provide, together with the order enquiry, drawings and/or documents, from which all dimensions, quality features and guaranteed properties (target properties) can be seen. These drawings and documents remain our property. If the order does not materialise, the supplier is committed to immediately return the documents and drawings handed over.
2. The supplier is committed to prepare initial samples at his cost promptly before start of series production by using the final operating supplies and under conditions of series production and also to prepare an initial sample test report for this.
3. The initial sample test report must contain the measurement data of all dimensions, quality features and properties specified by us. Type and scope of the initial sample test report is agreed upon while awarding the order. It is to be identified in the initial sample test report, if certain properties of the initial sample cannot be tested in the works of the supplier or in case we are not able to implement the desired properties.
4. The release of the series production for the supplier depends upon the result of our own initial sample testing and is declared by us in writing.
5. In case of non-adherence to the agreed upon quality, we reserve the right to set an appropriate notice period for improvement and withdraw from the contract and/or demand indemnity in case the notice period elapses unsuccessfully.
6. The supplier guarantees that delivery objects manufactured in series production show the properties of the released initial sample. The supplier does not have the right to make arbitrary changes, which can have an impact on the quality.
1. The tools provided by us for the manufacture of the ordered delivery objects remain our property. In case the supplier has to manufacture the tools himself or to procure these on his behalf, we will become the owner of the tools including the design documents, as soon as we have fully paid the tool costs. Our tools are to be marked as our property. We will make available the corresponding identifications and these are to be placed permanently.
2. The supplier shall use the tools provided by us only for executing our purchase orders. He is committed to insure the tools for their value when new at his own cost and, in doing so, surrenders to us all compensation claims against the insurer.
VI. Order execution
1. The supplier executes the orders through his own employees at his own production sites; a shifting of production is to be agreed upon with us beforehand for reasons of quality and customs. Awarding sub-orders is allowed only with our explicit written permission.
2. After a prior notification, we have the right at all times to inspect the production and quality control pertaining to the delivery object and also the quality records of the supplier.
VII. Price and payment
1. The prices indicated in our purchase order are fixed prices and apply to the entire purchase order or the entire blanket order. These prices do not contain the statutory value-added tax, which will be indicated separately.
2. Invoices are to be sent in duplicate by post to our business address (Eiserfelder Str. 22 – 36, 57072 Siegen – Germany).
3. We pay within 10 days with 3% cash discount or net within thirty days. The payment indicates neither an acknowledgement of the proper fulfilment nor a waiver of the liability of the suppliers for defects.
VIII. Delivery dates
1. The delivery dates mentioned in our purchase order are binding. The receipt of goods at the designated place is decisive for adherence to the delivery dates.
2. In case the supplier does not adhere to an agreed upon delivery date and we have set a suitable notice period for him without success, then as per our choice we have the right to withdraw from the contract completely or partially and/or demand indemnity instead of payment.
3. In case of a delivery delay caused by the supplier we have the right to demand a contractual penalty of 0.3% of the net delivery value per day, maximum 5% of the delivery value. The assertion of a damage over and above this is not ruled out by this. It remains up to the supplier to show that an essentially lower or no damage has accrued to us.
4. If there is a threat of a delivery delay, the supplier must inform us immediately about this.
1. Delivery and dispatch is done at the risk of the supplier free to the door to our business address (Eiserfelder Str. 22 – 36, 57072 Siegen – Germany) or to a delivery location specified by us. The supplier bears the cost for packaging, freight and insurance.
2. If agreed upon in the individual case ex-factory, the supplier shall take care for us the most economical shipping and the correct declaration (at the value of goods). In this case too, the supplier is liable for transportation damages.
X. Rights arising from product defects
1. The supplier guarantees that the delivered goods conform to the legal provisions applicable to their use as well as to state-of-the-art technology and do not violate any third-party rights.
2. Defects of the delivered goods, as far as these can be ascertained at our place during the normal business routine, will be notified to the supplier within fourteen days after receipt of the goods. Defects, which cannot be ascertained in such an examination, will be notified within fourteen days after these become known. Sending the complaint of the defect to the supplier on time suffices for observing the deadline.
3. The legal product rights are applicable. The supplier is liable to us for all damages arising from the violation of a contractual obligation.
4. The liability for warranty rights is three years starting with the handover of the goods to us.
XI. Product and manufacturer liability
The supplier exempts us from all third-party indemnity claims that are based on product damages, which are caused in a domain. The supplier shall also reimburse to us the cost of recall actions initiated by us for this reason.
XII. Protection rights
The supplier exempts us from all third-party indemnity claims that are based on violation of commercial protection rights in the context of his delivery, if he knew or must have known about the violation.
The surrender of claims against us is effective only with our written consent.
XIV. Provided documents and objects, confidentiality
1. All documents and objects, which we provide to the suppliers for bid submission or for executing the purchase orders, remain our property and may not be used for other purposes, reproduced or made accessible to third parties. After completion of the purchase orders these are to be returned to us free of cost.
2. The supplier is committed to use the knowledge and experience gained by him while executing our purchase orders only for us and not to bring it to knowledge of third parties.
B. Sale and delivery conditions
I. Contract signing, contract contents
1. Our offers, deliveries and services are subject only to these terms and conditions of business. Different business conditions of the customer are not included in the contract. Our business terms and conditions are considered as accepted when the delivery or the service is accepted.
2. Our offers are valid for a maximum of three days. Contracts come into existence only through our written order confirmation or by executing the purchase order.
3. Subject to technical and design deviations from descriptions and specifications in brochures, offers and written documents as well as service, design and material changes in the course of technical process, without the customer being able to derive rights from this. Specifications about our products (technical data, dimensions, etc.) are only approximate; they are not guaranteed properties, unless the guarantee is given explicitly and in writing.
4. We retain our ownership rights and copyrights on samples, drawings, cost estimates, etc. – even in electronic form. These may not be made available to third parties without approval and are to be returned immediately upon request.
II. Prices, terms of payment, offsetting and right of retention
1. Since no special agreement has been signed, these prices apply ex-factory including loading and exclusive packaging and unloading. The respective statutory value-added tax will be added to the prices.
2. In case the applicable prices of our suppliers or other costs on our products increase in the period between signing the contract and delivery, we have the right to increase the agreed upon prices suitably.
3. Offsetting and right of retention of the customer are ruled out, unless the counter claim is indisputable or ascertained legally.
4. The handover or the delivery of goods and service is done against an advance payment, on the other hand the complete delivery is done against invoice subject to a successful credit check. Unless agreed upon otherwise, our invoices become due for payment immediately upon receipt.
5. If the customer defaults with his payment obligations, then we have the right to charge the customer an appropriate fee amounting to € 5.00 for every reminder, unless the customer shows that the actually accruing costs are lower. In case of exceeding the due dates or a deferral, we have the right the charge maturity or deferral interest amount to annually 8 percent above the respective basic interest rate according to § 247 BGB.
6. If the customer defaults with the payment then we have the right, further claims and rights notwithstanding, to terminate a possibly existing deferral agreement without giving any reason and to declare all claims as due with immediate effect.
7. If the customer does not fulfil his payment obligations despite reminders, stops his payments or the bank does not redeem a check or a direct debit because of insufficient funds, we can declare all claims as due with immediate effect.
8. For the rest, we reserve the right in individual cases for safeguarding the risk of credit standing to rule out specific modes of payment and to execute the requested deliveries only against advance payment, cash on delivery or immediate payment upon delivery or handover. In case facts become known after signing the contract, which give rise to objective and justified doubts that the customer will be able to fulfil the contract properly, we have the right to demand an advance payment or corresponding sureties and withdraw from the contract, if denied.
9. We have the right to surrender the claims from our business connection.
10. The customer is entitled for offset rights only when a counter claim is ascertained as legally effective or has been acknowledged by us.
11. The customer can support a service refusal or a right of retention only on claims from the same contractual relationship.
12. A surrender of claims is allowed only with our prior written permission.
III. Delivery and mounting
1. Agreements on a binding delivery or mounting period (service time) must be done in writing. Our on-time service requires that all commercial and technical queries are clarified between us and the customer and the customer has fulfilled all his obligations, such as the provision of necessary regulatory permits or advance payment.
2. Our delivery time is considered as adhered, when by the expiry of this time our product has left the works or else we have shown a readiness for dispatch. If an acceptance is to be done, the date of acceptance is then decisive; this does not apply in case of justified acceptance refusal.
3. We will inform the customer immediately, if we are not able to serve on time.
4. In case the delay is not caused by us, for instance, for lack of energy, difficulties while importing, operational and traffic problems, strikes, force majeure or delays caused by our suppliers, the service time shall get extended accordingly. In case we are unable to provide the service even after a suitable extension, the customer as well as we have the right to withdraw from the contract. Indemnity claims of the customer are excluded.
5. In case we are responsible for the delay, the customer can withdraw from the contract as per the legal provisions. If the delay causes damages to the customer, he has the right to demand a lump-sum compensation. It is 0.5% for each full week of the delay, but on the whole maximum 5% of the value of that part of the service, which cannot be used contractually or not used properly owing to the delay.
6. We have the right to deliver in parts, if this is reasonable for the customer.
IV. Risk transfer, insurance
1. The risk is transferred to the customer as soon as the product has left our plant or our warehouse. This also applies if we take over further services, in particular dispatch costs or delivery. If an acceptance has to be done, the risk gets transferred upon acceptance.
2. In case the dispatch or the acceptance get delayed or cannot materialise because of circumstances, for which the customer is not responsible, the risk gets transferred to the customer as soon as we show him the readiness for dispatch or acceptance.
3. We are committed to insure the product if explicitly desired by the customer and at his cost.
V. Title retention
1. We retain the ownership of the purchased item till all payments resulting from the business relationship with the customer are received. In case of a behaviour of the customer contrary to the contract, in particular default with payment, we have the right to take back the purchased item. Taking back the purchased item implies a withdrawal from the contract. After the withdrawal of the purchased product we have the right to sell it; the proceeds of the sale are to be charged to the liabilities of the customer minus the appropriate cost of selling.
2. The customer is committed to handle the purchased item with care; he is in particular committed to insure it adequately at its original cost against damages caused by fire, water and theft. In case maintenance and inspection work is necessary, the customer must conduct these in time at his own cost.
3. In case of attachments or other third party interventions, the customer must inform us immediately so that we can raise an objection according to § 771 ZPO. If the third party is not in a position to reimburse to us the legal and out of court costs of a complaint according to § 771 ZPO, the customer shall be responsible for the incurred loss.
4. The customer has the right to sell further the purchased item in the normal course of business; however, he surrenders to us now itself all claims amounting to the final invoice amount (including VAT) of our claim, which accrue to him from the further sale to a customer or a third party, namely regardless of, whether the purchase item has been sold before or after processing. The customer remains entitled to collect this claim even after the surrender. Our authority to collect the claim ourselves remains unaffected by this. However, we are committed not to collect the claim as long as the customer fulfils his payment obligations from the revenues collected, does not default with the payment and, in particular, no application has been filed for opening arrangement of insolvency proceedings or else the payment is discontinued. If this is the case, we can then demand that the customer discloses the surrendered claims and their debtors, provides all information necessary for collection, hands over the necessary documents and informs the debtors (third parties) about the surrender.
5. The processing or the restructuring of the purchased item by the customer is always done for us. If the purchased item is processed with other objects not belonging to us, we will then obtain the co-ownership of the new product in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed objects at the time of processing. The same applies to the new product arising from the processing as for the purchased item delivered under reservation.
6. If the purchased item is mixed inseparably with other objects not belonging to us, we then acquire the co-ownership of the new product in the ratio of the value of the purchased item (final invoice amount plus VAT) to the other mixed objects at the time of mixing. If the mixing is done in such a way that the product of the customer is to be considered as the main product, then it is agreed upon that the customer transfers ownership to us proportionately. The customer preserves the thus arising sole ownership or the co-ownership for us.
7. The customer also surrenders to us the claims for securing his claim against us, which accrues against a third party by mixing the purchased item with a piece of land.
8. We are committed to release the securities, to which we are entitled, upon request by the customer to the extent if and when the value of securities that can be realised exceeds the claims to be secured by more than 10%; it is up to us to select the securities to be released.
VI. Claims for defects
1. Our liability extends to a freedom from defects of our products corresponding to the state-of-the-art technology. Our liability is ruled out:
a) if our products are not properly stored, installed, commissioned or used by the customer or by a third party;
b) in case of natural wear and tear;
c) in case of improper maintenance;
d) when incorrect operating supplies are used;
e) in case of damages caused by repairs or other work done by a third party, which has not been explicitly approved by us.
2. The customer must inspect the product upon receipt. We are to be informed in writing about noticeable defects within one week after the receipt of the product or – when the defect is discovered later – within one week of its discovery. If this is not done, the product is considered as accepted.
3. Our legal liability for defects is restricted to supplementary service i.e. removal of defect or spare delivery as per our choice. The customer must provide adequate opportunity for supplementary service; else, we are exempted from the liability for damages arising out of this. The customer must return to us the replaced parts.
4. If the supplementary service has failed, the customer has the right to reduce the return service or – if there are considerable defects – to withdraw from the contract.
5. In case of newly manufactured products or work services including the related planning and monitoring services, we assume the liability for one year after delivery or acceptance.
6. Our liability is ruled out in case of sale of second-hand products.
7. Further claims of the customer owing to defects as specified in the aforesaid clauses 3 – 5 are excluded. For this reason, we are not liable for damages, which have not occurred at the product itself as well as for other pecuniary losses of the customer.
1. For whatever legal reason, our liability is restricted to intention and gross negligence.
2. All the other liability restrictions mentioned in these terms and conditions of business do not apply:
a) in case of intent or gross negligence done by us or our agents;
b) in case of personal injuries;
c) in case of damages caused by the lack of a feature, which we have guaranteed;
d) in case of claims from product liability law.
C. Choice of law and jurisdiction
Following applies with respect to our purchase (A.) as well as our sale and delivery conditions (B.):
1. Only the law of the Federal Republic of Germany is applicable. The application of the UN Sales Convention is ruled out.
2. For all disputes, the jurisdiction is Siegen for both parties.
3. In case one of the aforesaid clauses is or becomes ineffective, then it does not affect the effectiveness of the remaining clauses. The parties are committed to replace the ineffective clause by another one closest in meaning to it.