General terms and conditions of Joh. Nep. Jerger GmbH & Co. KG Metallwaren
Proprietor: Günter Jerger
1.Our general terms and conditions apply to all present and future business relationships, but not to business transactions with consumers.
2. Even if we perform the delivery without reservations while being aware of contrary conditions or customer conditions that deviate from our conditions, deviating, contrary or supplementary general terms and conditions do not become part of the contract unless we explicitly agree to their validity in writing.
3. The general terms and conditions apply in addition to any specific written agreements with the customer.
2 Offer, contract conclusion, binding term, documents
1.Our offers are non-binding; however, the validity of offers expires 3 months after submission. Technical changes as well as changes in form, colour, execution, material and/or weight remain reserved provided that the quality and functionality of the contractual item is not significantly changed and the changes are reasonable for the customer.
2. By ordering goods (in the following also referred to as: delivery item), the customer bindingly declares his intent to acquire the ordered goods. The customer is bound to his order for 2 weeks after reception. We are authorised to accept the contractual offer in the order within this term. The acceptance may occur in writing (also by fax or email) or be declared to the customer with the delivery of the goods to the customer.
The customer is obligated to examine the acceptance immediately in regard to potential deviations from the order and submit a complaint to us if necessary in case the acceptance occurs via an order confirmation. The contract is otherwise deemed valid in accordance with the order confirmation.
3. Side agreements and changes to the contract require written form in order to be effective. This requirement can only be waived in writing. Fax letter and emails fulfill the written form requirement.
4. We reserve all ownership rights and copyrights for images, drawings, calculations and other documents transmitted by us. Forwarding of these documents to third parties is only permissible after obtaining our explicit written consent. Drawings and other documents associated with the offer must be immediately sent back to us unprompted if we are not commissioned with the order.
1. Our prices do not include the applicable legal value added tax.
2. Prices are to be understood ex-factory without packaging. Delivery is performed as freight collect.
4 Payment, offsetting, retention right, payment default
1. Payment is to be performed 30 days from the invoicing date without deductions. The customer pays for all additional banking costs.
2. We are entitled to demand instalment payments and to only perform deliveries and services against advanced payment.
3. The customer owes interest in the legal amount in case of payment default. We are entitled to assert further compensation claims beyond the legal default interest rate (8 percentage points above the respective base interest rate).
4. We are entitled to demand reminder fees in the amount of €5.00 for each reminder notice, minimum compensation for actual expenses.
5. Offsetting through counter-claims of the customer is only permissible in so far as these are recognised by us as existent and due or determined to be legally valid.
6. The customer is only authorised to assert his retention right if the counter-claim is based on the same contractual relationship.
5 Delivery times, partial deliveries
1. Delivery times are only legally binding if explicitly confirmed by us as binding in the order confirmation.
2. Delivery terms agreed-upon in writing begin on the day of our order confirmation, but not prior to clarification of all technical and business-related details and the submission of potentially required releases. Potential changes requested by the customer within the delivery term to the delivery execution or delivery item impede the term expiry and prolong the delivery term accordingly.
3. The occurrence of unforeseen events and force majeure entitle us to postpone the delivery for the duration of the impediment and the applicable start-up time. The same applies in case of non-delivery or late delivery by an upstream supplier for which we bear no responsibility.
4. The customer is entitled to issue an appropriate deadline extension in writing in case of a delivery delay. The customer is also entitled to withdraw from those parts of the contract that have not been shipped at the time when the delivery extension expires in case the delivery item is not supplied within the term of the delivery extension. The customer is only entitled to withdraw from the complete contract if the already performed partial services are of no interest to the customer.
5. Our compensation obligation is limited according to the regulation in § 10 if the customer incurs damage on account of our culpable failure to deliver.
6. We are entitled to perform partial deliveries.
6 Non-acceptance of the delivery item
1. We can withdraw from the contract with a written declaration instead of fulfilling the contract and demand compensation if the customer – without being authorised to do so – refuses acceptance or explicitly declares his intention to not accept the item after an appropriate delivery extension set by him expires. 50% of the gross order sum can be generally demanded as compensation. The customer has the right to verify that we suffered no or only minor damage. We are entitled to assert the higher amount instead of the general compensation rate if higher damage occurred.
2. We are also entitled to demand a customary and appropriate fee for the storing of goods if the conditions under Numeral 1 Clause 1 apply in case we choose to not withdraw from the contract.
7 Place of service, risk transfer
1. Our operating premises at 78078 Niedereschach are the place of service for our delivery obligation. The delivery item is shipped as requested by the customer. We are entitled to choose the shipping path and means if no other deviating agreement has been made.
2. The delivery item is shipped at the customer’s risk. The risk is transferred to the customer with the submission of the article to the forwarding company, the carrier or the institution otherwise commissioned with the shipping. The risk is already transferred to the customer with the notification of shipping readiness if the customer’s actions cause a delay in shipping.
8 Property reservation, extended and expanded property reservation
1. Delivered goods remain our property until all payments from the on-going business connection have been received.
2. We are entitled to take back the delivered goods if the customer exhibits behaviour contrary to the contract, in particular payment default. We are entitled to reuse returned goods; the proceeds from reusage are to be imputed against the commitments of the customer – minus the appropriate usage costs.
3. The customer is entitled to divest the shipped goods through proper business transactions; however, he already now concedes all claims to us resulting from the further divestment to his buyers or third-parties. We hereby accept the transfer. The transfer is performed regardless whether the delivered goods were divested without or after further processing. The customer remains entitled to collect the transferred claims event after the transfer. Our authorisation to collect the claim ourselves remains untouched; however, we resolve to not collect the claim if the customer properly fulfils his payment obligations.
4. An application to commence insolvency proceedings is commenced in regard to the customer’s assets if the customer fails to comply with his payment obligations towards us, i.e. payment default; if requested, the customer is further obligated to immediately declare the transferred claims and respective creditors, submit all information required for collection, handover the associated documents and inform the creditors about the transfer if the customer ceases payments.
5. The customer must inform us immediately in writing in case of seizure or other third-party interventions so that we can assert our rights.
6. Upon customer request, we are obligated to release securities that are due to us in so far as the realisable value of our securities exceeds the claims to be secured by more than 10%. We may choose the securities to be released.
7. The processing for goods purchased from us by a customer is always performed for us. We become partial owners of the new article in the relation of the value of the goods supplied by us (final invoicing amount including VAT) to the otherwise processed items (at the time of processing) in case further processing occurs with items not belonging to us. Furthermore, the same applies for the article resulting from processing as for goods delivered with reservations.
8. We acquire partial ownership of the new goods in the relation of the value of the goods acquired by us (invoicing amount including VAT) to the other intermingled items at the time of intermingling in case goods purchased from us are inseparably intermingled with other goods not belonging to us. It is agreed that the customer proportionately transfers partial ownership to us if the intermingling occurs in such a way that the articles of the customer can be regarded as the main item. The customer stores the goods wholly or partially owned by us. Furthermore, the same applies for the article resulting from the intermingling as for the goods delivered with reservations.
9 Defect liability, defect complaints, burden of proof
1. The customer must immediately inspect the delivery item after reception with reasonable due diligence under present circumstances and immediately report any detected deficiencies in writing. A defect that is not initially discovered must be claimed immediately in writing after discovery. The delivery is regarded as accepted if the buyer fails to submit the claim in a timely manner; the applicability of warranty claims is excluded. The burden of proof for the defect, the time at which the defect is discovered and the timeliness of the defect complaint rests with the customer.
2. We are entitled to choose between a subsequent fulfilment or delivery of a new flawless article in order to resolve the issue involving the defective delivery item.
3. The customer may choose between reduced payment (reduction) or contract withdrawal (withdrawal) if the subsequent fulfilment fails, which occurs after the second unsuccessful attempt if no special circumstances apply, or if we refuse the subsequent fulfilment or if it is unreasonable for the customer. The customer does not have the right to withdraw in case of a minor contractual violation, especially in case of minor deficiencies.
4. The customer is not entitled to any compensation on account of the deficiency if he withdraws from the contract on account of a legal or material defect after the failed subsequent delivery.
If reasonable, the goods remain with the customer in case the customer chooses compensation after the failed subsequent fulfilment. The compensation claim is limited to the difference between the purchasing price and the value of the defective article, which does not apply if we maliciously caused the contractual violation. Apart from that, the liability limitations according to § 10 apply.
5. A return shipment on account of a defect can only occur after receiving our consent and by using the shipping path stipulated by us. We are not obligated to accept return shipments sent without prior consent. The customer carries the costs for return shipments in such a case.
6. Our product description or the description of another manufacturer is principally agreed upon as the characteristics of the goods. Public statements, pitching or advertisements from another manufacturer do not represent a contractual indication for the characteristics of goods. We are only responsible for public statements, in particular advertisement statements that we initiated.
7. Legal warranties are not offered to the customer unless explicitly agreed-upon in writing. References to norms or other legal product specifications are only intended to describe the goods and do not constitute a warranty.
8. The statutory period of limitation for deficiency claims is 12 months. The limitation period in case of delivery recourse according to §§ 478, 479 of the German Civil Code remains untouched.
10 Liability limitations, burden of proof
1. The burden of proof for obligation violations for which we bear responsibility rests with the customer.
2. We are not liable for minor neglect of non-essential contractual obligations.
3. Apart from that, our liability for minor negligence is limited to the foreseeable immediate contract-typical damage according to the type of goods; we are especially not liable for loss of profit or other asset damages.
4. We are not liable for consequential damage, in particular not for loss of profit or other asset damage incurred by the customer, in case of other violations of neglect (however not in the case of gross negligence, see Section 5). In these cases, our liability is limited to the foreseeable contract-typical damage.
5. Our liability is limited to the foreseeable contract-typical damage in case of gross negligence.
6. The present liability disclaimer does not apply if the damage is caused by a deliberate obligation violation or if damage claims are asserted for injuries to life, body or health or on account of warranties. Compensation claims according to the Product Liability Law also remain untouched by the previous liability limitation regulation.
11 Partial invalidity, regulatory gap
The legal validity of the other regulations remains untouched if individual regulations of these general terms and conditions are invalid or lose their legal validity or in case of a legal gap. An appropriate regulation is to be determined to replace the invalid contractual regulation or to close the legal gaps whose economic result comes as close as possible to the invalid or missing regulation.
12 Jurisdiction, applicable law
1. Freiburg im Breisgau in Germany is the sole place of jurisdiction for all disputes arising from this contract if the customer is a business person, juristic person of public law or juristic person of special funds under public law. We are, however, entitled to also sue the customer at the court of his residence or branch establishment.
2. German law applies exclusively. The applicability of the UN sale of goods right (CISG) is excluded.