General terms and conditions of sale of Erich Jaeger GmbH + Co. KG
§ 1 General - Scope
1.
Our general terms and conditions of sale apply exclusively; we do not recognize conflicting terms and conditions of the customer/orderer/contracting party/customer (hereinafter referred to as “customer”) or those that differ from our own unless we have expressly agreed in writing to their validity. Our general terms and conditions of sale apply even if we unconditionally carry out the delivery to the customer in the knowledge of conflicting or deviating terms and conditions of the customer.
2.
All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
3.
Our general terms and conditions of sale apply only to entrepreneurs in the sense of § 310 para. 1 BGB (German Civil Code)
§ 2 Offer - Offer documents
1.
If the order of the customer is to be qualified as an offer in accordance with § 145 BGB (German Civil Code), we can accept it within 2 weeks.
2.
We reserve the right of ownership and all our copyrights for illustrations, drawings, calculations and other documents. This also applies to such written documents, which are designated as “confidential”. Before being passed on to third parties, the customer requires our express written consent.
3.
We do not undertake any labeling obligations that go beyond the mandatory statutory provisions applicable to our respective delivery unless otherwise expressly agreed. In particular, we are not obligated to label the delivery item in accordance with the applicable further statutory provisions applicable to the customer and/or its end product.
§ 3 Prices - Terms of payment
1.
Unless otherwise stated in the order confirmation, our prices are “ex works,” excluding packaging; packaging will be charged separately.
2.
The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the date of invoicing.
3.
Deduction of a discount requires special written agreement.
4.
Unless otherwise stated in the order confirmation, the purchase price is due net (without deductions) within 30 days of the invoice date. The legal rules regarding the consequences of late payment apply.
5.
The customer is only entitled to set-off rights if its counterclaims are legally established, undisputed or acknowledged by us. Furthermore, the customer is entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6.
If we have assumed contractual obligation for the installation or assembly over against the customer, and nothing else is agreed, the customer shall bear in addition to the agreed remuneration all additional costs such as travel expenses, costs for the transport of the tools, personal baggage, and allowances.
§ 4 Delivery period
1.
The beginning of the delivery period specified by us requires clarification of all technical questions.
2.
Compliance with our delivery obligation further requires the timely and orderly fulfillment of the customer’s obligations. Objection on the basis of unfulfilled contract remains reserved.
3.
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims or rights are reserved.
4.
We are entitled to partial deliveries, as far as this is reasonable for the customer.
5.
If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time when the latter is in default of acceptance or payment.
6.
We are liable according to the statutory provisions insofar as the underlying sales contract is a fixed transaction within the meaning of § 286 para. 2 no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code) . We are also liable in accordance with the statutory provisions insofar as the customer is entitled to assert that its interest in the further performance of the contract has ceased to exist as a consequence of a delay in delivery for which we are responsible.
7.
Furthermore, we are liable according to the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; fault due to our representatives or vicarious agents is attributable to us. If the delay in delivery is based on a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damages.
8.
We are also liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; In this case, however, the liability for damages is limited to the predictable, typically occurring damage.
9.
In addition, we are liable in the event of delay in delivery for each completed week of delay as part of a flat-rate compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
10.
Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of risk - Packaging costs
1.
Unless otherwise stated in the order confirmation, delivery is agreed to be “ex works.”
2.
For the return of packaging, separate agreements apply.
3.
If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect are borne by the customer.
§ 6 Liability for defects
1.
Warranty claims of the customer presuppose that the customer has duly fulfilled its duties of inspection and notification of defects pursuant to § 377 HGB.
2.
Insofar as there is a defect in the purchased item, the customer is entitled to choose between supplementary performance in the form of a remedy of defects or delivery of a new faultless item. In the case of a remedy of defects or delivery of a replacement item, we are obliged to bear all expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, provided these are not increased by the purchase item being moved to a place other than the place of performance.
3.
If the supplementary performance fails, the customer is entitled, at its option, to demand withdrawal or reduction.
4.
We are liable according to the statutory provisions, as far as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, liability for damages is limited to the predictable, typically occurring damage.
5.
We are liable according to the statutory provisions if we culpably violate a material contractual obligation; In this case, too, the liability for damages is limited to the foreseeable, typically occurring damage.
A material contractual obligation exists if the breach of duty relates to a duty in which the customer has trusted and was entitled to trust.
6.
Insofar as the customer is entitled to compensation for the damage instead of performance, our liability is also limited within the scope of para. (3) to compensation for foreseeable, typically occurring damage.
7.
Liability for culpable injury to life, body or health remains unaffected; this also applies to the mandatory liability under the Product Liability Act.
8.
Unless otherwise stipulated above, liability is excluded.
9.
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
10.
The limitation period in the case of delivery recourse under §§ 478, 479 BGB (German Civil Code) remains unaffected; it is five years from the delivery of the defective item.
§ 7 Total liability
1.
Further liability for damages as provided for in § 6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence in the conclusion of the contract, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with § 823 BGB (German Civil Code).
2.
The limitation according to para. (1) also applies insofar as the customer, instead of claiming compensation for the damage and instead of performance, demands compensation for unnecessary expenditures.
3.
Insofar as liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.
§ 8 Industrial property rights and copyrights
1.
Unless otherwise agreed, we are only obliged to deliver the goods free of industrial property rights and copyrights of third parties (hereinafter: property rights) in the country of delivery. Insofar as a third party makes legitimate claims against the customer due to the infringement of property rights by deliveries made by us in accordance with the contract, we are liable to the customer as follows:
a)
We will, at our discretion and expense, either obtain a right of use for the deliveries in question, change them so that the property right will not be violated, or exchange them. If this is not possible for us under reasonable terms, the customer is entitled to the statutory right of withdrawal or reduction.
b)
Our duty to pay damages is governed by §§ 6 and 7 of these general terms and conditions.
c)
The aforementioned obligations only exist if the customer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement, and all defensive measures and settlement negotiations remain reserved for us. If the customer suspends the use of the delivery for reasons of damage mitigation or other important reasons, it is obliged to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
d)
Claims of the customer are excluded insofar as it is responsible for the infringement of property rights.
e)
Claims of the customer are also excluded if the infringement of property rights is caused by special requirements of the customer, by an application not foreseeable by us, or by the customer changing the order or using it together with products not supplied by the supplier.
2. In the event of other (legal) defects and other circumstances, the provisions of § 6 and § 7 apply accordingly.
§ 9 Retention of title
1.
We reserve the ownership of the purchased item until receipt of all payments from the delivery contract. In the event of breach of contract by the customer, in particular in the event of delay of payment, we are entitled recover the purchased item. The withdrawal of the purchased item by us is a withdrawal from the contract. We are entitled after the recovery of the purchased items to their use; the proceeds of sale shall be credited to the liabilities of the customer “less reasonable recovery costs.”
2.
The customer is obliged to handle the purchased items with care; In particular, it is obliged to adequately insure these items at new value at its own expense against fire, water and theft damages. If maintenance and inspection work is required, the customer must carry it out on time at its own expense.
3.
In the event of seizure or other interference by third parties, the customer must notify us immediately in writing so that we can file a claim in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a claim in accordance with § 771 ZPO, the customer is liable for the loss incurred by us.
4.
The customer is entitled to resell the purchased items in the ordinary course of business; however, the customer hereby assigns to us all claims, in the amount of the final invoice amount (including VAT) of our claim, arising from the resale against its customers or third parties, irrespective of whether the purchased goods are resold without or after processing. The customer remains authorized even after the assignment to collect on this claim. Our authority to collect on the claim on our own remains unaffected. However, we undertake not to collect on the claim as long as the customer meets its payment obligations from the proceeds received, does not default on payment and, in particular, has not filed an application for settlement or insolvency proceedings or ceased payments. However, if this is the case, we can demand that the customer notify us of the assigned claims and the debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment.
5.
The processing or transformation of the purchased item by the customer is always done for us. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. The same applies to the item resulting from processing as applies to the purchased item delivered under reservation of title.
6.
If the purchased item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is deemed agreed that the customer assigns proportional co-ownership to us. The customer maintains the resulting sole ownership or co-ownership for us.
7.
The customer also assigns to us the claims to secure our claims against the customer, which accrue against a third party by the connection of the purchased item with a property.
8.
We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is our responsibility.
§ 10 Intra-community supply
1.
The customer acknowledges that it will receive an invoice without VAT for intra-community supply according to § 4 No. 1b UStG and delivery of items to another EU member state. The precondition for this tax exemption for intra-community deliveries is a confirmation of the arrival of the goods in another EU member state by the customer. The customer shall therefore confirm in writing within three months of successful delivery to us the arrival of the goods in another EU member state. With this confirmation, the customer declares that the items have actually arrived in another EU member state (Entry Certificate). The Entry Certificate
must contain
• the name and address of the customer,
• the quantity of the object of delivery and the commercial name including the vehicle identification number, if the delivery item is a vehicle,
• the indication of the place and month (not the day) of the end of the transport or dispatch, i.e. the receipt of the goods in the territory of the community, also in the case of pickup and/or self-transport by the customer,
• the date of issue of the confirmation,
• the signature of the customer or one of its authorized representatives.
2.
The electronic transmission of the Entry Certificate via email is sufficient if it can be seen that the electronic transmission began area of disposal of the customer or the representative, e.g. via the email account used by the customer. If this is the case and the customer sends the Entry Certificate electronically, the signature of the customer or a someone commissioned by the customer can be waived.
3.
If the customer’s Entry Certificate is not received within three months of the delivery, we are entitled to make an invoice correction. As part of this invoice correction, we may include the applicable VAT in the invoice, which is due if we do not receive the Entry Certificate. In this case, the customer must pay the VAT immediately to us.
4.
If the customer does not send us a confirmation of arrival according to the legal requirements in time, we are entitled to charge VAT for future purchases of the customer, even in the event of collection of items in or delivery of the items to another EU member state. In this case, we will refund the VAT to the customer when the customer sends us an Entry Certificate.
5.
The customer has the opportunity to use our downloadable templates under [LINK] in German and [LINK] in English as a model for an Entry Certificate and to modify and edit them in their entirety. We assume no liability for the legal consequences that are triggered the use of our templates, as we regard them only as a service to our customers. The customer is responsible for the full content of the Entry Certificates provided by him.
§ 11 Miscellaneous
1.
If the customer is a merchant, our place of business, Friedberg, is the place of jurisdiction and the place of fulfillment; however, we are entitled to bring actions against the customer at its place of residence.
2.
The law of the Federal Republic of Germany applies; the validity of UN sales law (CISG) is excluded.
3.
Unless otherwise stated in the order confirmation, our place of business is the place of performance.
4.
Should individual clauses of these general terms and conditions be or become invalid, this does not affect the validity of the remaining general terms and conditions. The respective invalid clause shall be replaced by the parties with a valid clause that comes closest to the economic content of the invalid clause. The same applies in the case of an unintended contractual gap.
Erich Jaeger GmbH + Co. KG · Strassheimer Strasse 10 · 61169 Friedberg · Germany
Tel. +49 (0) 6031-7940 · info @ erich-jaeger.de
Limited partnership seat Friedberg.
Register court Friedberg HRA 1501.
Personally liable partner: JAEGER Verwaltungs GmbH, seat Friedberg.
Register court Friedberg HRB 5779.
Managing Director: Wolfgang Wiese