General conditions of sale of junaspin GmbH (July 2021)
I. General Conditions
- These general terms and conditions of sale (AVB) apply to all business relationships between junaspin GmbH (hereinafter: supplier) and its customers (hereinafter: purchaser). The General Terms and Conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The General Terms and Conditions apply in particular to contracts for the sale and / or delivery of movable objects (hereinafter also: goods), regardless of whether the supplier manufactures the goods himself or buys them from suppliers (§§ 433, 651 BGB). The current version of the General Terms and Conditions also apply as a framework agreement for future contracts for the sale and / or delivery of movable objects with the same purchaser, without the supplier having to refer to them again in each individual case.
- These AVB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that the supplier has expressly consented to their validity. This requirement of consent applies in any case, for example, even if the supplier, knowing the terms and conditions of the customer, carries out the delivery to him without reservation.
II. Conclusion of contract
- The supplier’s offers are subject to change and non-binding.
- The order of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, the supplier is entitled to accept this contract offer within four weeks of receiving it.
- The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
III. Prices and terms of payment
- The prices are ex works excluding packaging and plus the applicable statutory sales tax.
- If the supplier has taken over the installation or assembly and nothing else has been agreed, the customer bears all necessary ancillary costs in addition to the agreed remuneration, in particular travel costs, costs for the transport of the tools and personal luggage of the persons employed by the supplier as well as releases.
- Any customs duties, fees, taxes and other public charges are to be borne by the customer. The supplier does not take back transport and all other packaging in accordance with the packaging ordinance; it becomes the property of the purchaser.
- Payments are to be made free of charge to the supplier’s payment office.
- Invoices are to be paid strictly net within 10 days. When the above payment deadline has expired, the customer is in default. During the delay, the purchase price bears interest at 8 percentage points above the base rate, but at least 12 percent pa The supplier reserves the right to claim further damage caused by the delay. The supplier’s claim to commercial maturity interest (Section 353 of the German Commercial Code) remains unaffected in relation to merchants. Different terms of payment are agreed separately and explicitly stated on the business documents.
- The purchaser is only entitled to set-off rights insofar as his claim has been legally established or is undisputed. The same applies to the right of retention, the effective exercise of which also depends on the customer’s counterclaim being based on the same contractual relationship.
IV. Deadlines for deliveries; Delay in delivery and acceptance
- Compliance with deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the purchaser, necessary permits and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these requirements are not met in a timely manner, the supplier is entitled to extend the deadlines appropriately; this does not apply if the supplier is responsible for the delay.
- If the failure to meet the deadlines is due to force majeure, e.g. B. mobilization, war, riot, natural disasters, pandemics or similar events, e.g. strike, lockout, the supplier is entitled to extend the deadlines appropriately.
- If the supplier is in default, the purchaser can – provided he can prove that he has suffered damage as a result – %, but no more than 5% of the price for the part of the delivery that was not delivered. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance that go beyond the limits specified in the previous sentence are excluded in all cases of delayed delivery, even after a delivery deadline set by the supplier. This does not apply in the cases of Art. XI No. 2.
- At the request of the supplier, the customer is obliged to declare within a period of two weeks whether he is withdrawing from the contract due to the delay in a delivery. If he does not make the declaration within this period, his right of withdrawal expires.
- If dispatch or handover is delayed by more than one month after notification of readiness for dispatch at the request of the customer, the customer can be charged %, become. The contracting parties are at liberty to provide evidence of higher or lower storage costs; the flat-rate storage fee is to be offset against further monetary claims.
- If a contractual right of return has been agreed, the customer must bear the packaging and shipping costs. The risk of deterioration and possible loss lies with the customer until the return delivery is received.
V. Delivery, transfer of risk
- Delivery takes place ex works, which is also the place of performance. At the request and expense of the customer, the goods will be sent to a different destination (sale by dispatch). Unless otherwise agreed, the supplier is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) himself.
- The risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is transferred to the customer as follows, even in the case of freight-free delivery:
- a) In the case of sale by mail order, the risk is already transferred to the freight forwarder, the carrier or the person or institution otherwise assigned to carry out the shipment when the goods are delivered. At the request and expense of the purchaser, deliveries will be insured by the supplier against the usual transport risks.
- b) In the case of deliveries with installation or assembly, on the day of acceptance in the company’s own plant or, if agreed, after a fault-free trial run.
- c) If acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance, art. VI No. 6 remains unaffected.
- If the dispatch, the handover, the beginning, the implementation of the installation or assembly, the takeover in the own company or the trial operation is delayed for reasons for which the customer is responsible, or the customer is in default of acceptance for other reasons, the risk shall be borne by the Ordered over.
- The customer may not refuse to accept deliveries due to minor defects. Partial deliveries are permitted as long as they are reasonable for the customer.
- If the supplier requests acceptance of the delivery, the customer must do this within two weeks of delivery. If this does not happen, the acceptance is deemed to have taken place, unless the customer notifies us of defects or malfunctions that have been precisely described in writing within this period; the receipt of the complaint by the supplier is decisive for compliance with the deadline. The acceptance is also deemed to have taken place when the delivery has been put into use – if necessary after completion of an agreed test phase.
VII. Retention of title
- Until all current and future claims of the supplier from the purchase contract and an ongoing business relationship (secured claims) have been paid in full, the supplier retains ownership of the goods sold.
- The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The purchaser must immediately notify the supplier in writing if and to the extent that third parties access the goods belonging to the supplier.
- The customer is authorized to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
- a) The retention of title extends to the full value of the products resulting from processing, mixing or combining of the goods of the supplier, whereby the supplier is deemed to be the manufacturer.
- b) If the property right of a third party remains in the event of processing, mixing or combining with goods of third parties, the supplier shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
- c) Any claims against third parties arising from the resale of the goods or of the product are already now fully in the case of the purchaser (a) or in the case of (b) in the amount of the co-ownership share of the supplier to the supplier as security. The supplier accepts the assignment. The obligations of the customer named in paragraph 2 also apply with regard to the assigned claims.
- d) In addition to the supplier, the purchaser remains authorized to collect the claim. The supplier undertakes not to collect the claim as long as the customer fulfills his payment obligations towards the supplier, does not fall into arrears, has not filed for insolvency proceedings against the customer’s assets and there is no other lack of performance. If this is the case, however, the supplier can demand that the customer disclose the assigned claims and their debtors and provide all other information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
- e) If the realizable value of the securities exceeds the secured claims of the supplier by more than 20%, the supplier will release securities of the supplier’s choice at the request of the customer.
VIII. Material defects
- Deliveries that show a material defect within the limitation period – regardless of the operating time – are to be repaired free of charge, redelivered or re-performed at the supplier’s choice, provided the cause of the material defect was already present at the time of the transfer of risk. Within the scope of its subsequent performance obligations, the supplier owes – subject to further liability for damages in accordance with Section XI. – Neither the removal of the defective item from another item (not supplied by the supplier) into which the defective item is built, nor the costs of installing the replacement delivery or the repaired item.
- Claims for defects of quality shall become statute barred within 12 months. This does not apply if the law in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (construction defects) BGB prescribes longer deadlines, as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the supplier and in the case of fraudulent concealment of a defect. The legal regulations for suspension of expiry, suspension and restart of the deadlines remain unaffected.
- The purchaser must immediately notify the supplier in writing of any material defects (including incorrect and short deliveries). The notification is no longer deemed to be immediately if it is not made within two weeks; Timely dispatch of the notification is sufficient to meet the deadline.
- The supplier is entitled to make any subsequent performance owed dependent on the purchaser paying the purchase price due. In this case, however, the customer is entitled to withhold part of the purchase price that is reasonable in relation to the defect, in accordance with Art. III No. 6 sentence 2. If the notification of defects is wrong, the supplier is entitled to demand reimbursement of the expenses incurred by the customer.
- First of all, the supplier must be given the opportunity to provide supplementary performance within a reasonable period of time. If the subsequent performance fails, the customer can withdraw from the contract or reduce the remuneration.
- Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural use or damage that occurs after the transfer of risk as a result of incorrect or negligent treatment, excessive use, unsuitable equipment, defective construction work, unsuitable subsoil or due to special external influences arise that are not required by the contract, as well as non-reproducible software errors. If the purchaser or a third party undertakes improper changes or repairs, there are no claims for defects for these or the consequences arising therefrom.
- Claims by the purchaser due to the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the object of the delivery was subsequently moved to a location other than the purchaser’s branch unless the shipment corresponds to its intended use.
- Recourse claims of the customer against the supplier according to § 478 BGB (recourse by the entrepreneur) only exist insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects. For the scope of the recourse claim of the customer against the supplier according to § 478 para. 2 BGB, Art. VIII No. 7 also applies accordingly.
- Art. XI (other claims for damages) also applies to claims for damages. Any further claims or claims other than those regulated in Art. VIII by the customer against the supplier and his vicarious agents due to a material defect are excluded.
IX. Industrial property rights and copyrights; defects of title
- Unless otherwise agreed, the supplier is obliged to make the delivery free of industrial property rights and third party copyrights (hereinafter: property rights) only in the country of the place of delivery. If a third party raises justified claims against the customer due to the infringement of property rights through deliveries made by the supplier in accordance with the contract, the supplier shall be liable to the customer within the period specified in Art. VIII No. 2 as follows:
- a) The supplier will, at his option and at his own expense, either obtain a right of use for the deliveries in question, change them so that the property right is not violated, or replace them. If this is not possible for the supplier under reasonable conditions, the customer is entitled to the statutory rights of withdrawal or reduction in price.
- b) The supplier’s obligation to pay damages is based on Art. XI.
- c) The above-mentioned obligations of the supplier only exist if the customer immediately notifies the supplier in writing of the claims asserted by the third party, does not recognize an infringement and the supplier reserves the right to take all defense measures and settlement negotiations. If the customer ceases to use the delivery to reduce damage or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
- Claims by the customer are excluded insofar as he is responsible for the infringement of property rights.
- Claims by the purchaser are also excluded if the infringement of property rights is caused by special requirements of the purchaser, by an application that was not foreseeable by the supplier or by the fact that the delivery is changed by the purchaser or used together with products not supplied by the supplier.
- The supplier reserves the unrestricted property and copyright exploitation rights to cost estimates, drawings, manuals and other documents (hereinafter: documents). The documents may only be made available to third parties with the prior consent of the supplier and must be returned to the supplier immediately upon request if the order is not placed with the supplier. Sentences 1 and 2 apply accordingly to the purchaser’s documents; however, these may be made available to third parties to whom the supplier has authorized deliveries.
- The customer has the non-exclusive right to use the software handed over by the supplier with the agreed performance characteristics in unchanged form on the agreed devices. The customer may make two backup copies without express agreement.
- In the case of violations of property rights, the following applies to those listed in no. 1 a) regulated claims of the customer otherwise the provisions of Art. VIII No. 4, 5 and 9 accordingly.
- In the event of other legal defects, the provisions of Art. VIII apply accordingly.
- Any further claims or claims other than those regulated in Art. IX by the customer against the supplier and his vicarious agents due to a legal defect are excluded.
X. Impossibility to adjust the contract
- If delivery is impossible, the customer is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser’s claim for damages is limited to 10% of the value of that part of the delivery that cannot be put into appropriate operation due to the impossibility. This restriction does not apply if liability is mandatory in cases of willful intent, gross negligence or due to injury to life, limb or health; this does not involve a change in the burden of proof to the detriment of the customer. The right of the customer to withdraw from the contract remains unaffected.
- If unforeseeable events within the meaning of Art. IV No. 2 significantly change the economic significance or the content of the delivery or have a significant effect on the supplier’s operations, the contract will be appropriately adapted in good faith. If the latter is not economically justifiable, the supplier has the right to withdraw from the contract. If he wishes to make use of this right of withdrawal, he has to inform the customer of this within three weeks after becoming aware of the event. If he does not make the declaration within this period, his right of withdrawal expires.
XI. Other Claims for Damages
- The supplier is only liable for damages – for whatever legal reason – in the event of willful intent and gross negligence. In the case of simple negligence, the supplier is only liable for damage resulting from injury to life, limb or health, or for damage resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and compliance with which the contractual partner regularly trusts and may trust); in this case, however, the supplier’s liability is limited to compensation for the foreseeable, typically occurring damage.
- Which result from para. The limitations of liability arising from 1 do not apply if the supplier has fraudulently concealed a defect or has given a guarantee for the quality of the goods. The manufacturer’s guarantee does not represent an assumption of a guarantee by the supplier. The regulation of sentence 1 applies accordingly to claims of the customer under the Product Liability Act.
- Insofar as the customer is entitled to claims for damages under this Art. XI, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects in accordance with Art. VIII no. 2. In the case of claims for damages under the Product Liability Act, the statutory statute of limitations apply.
XII. Place of jurisdiction and applicable law
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the supplier. However, the supplier is also entitled to take legal action at the general place of jurisdiction of the customer.
- German substantive law applies to the legal relationships in connection with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (cisg). The prerequisites and effects of the retention of title agreed above are based on the law at the respective storage location of the goods, insofar as the choice of law made in favor of German law should be inadmissible or ineffective under the respective law.
Karlsruhe in July 2021