General Terms and Conditions of Sale and Delivery of Erich Jaeger GmbH + Co. KG
Generalities, scope of application, hierarchy
- Our General Terms and Conditions of Sale and Delivery ("GTC") have exclusive application to all of our services; we do not acknowledge any contrary terms or conditions of our customers / clients / contracting parties / purchasers (hereinafter together called "Customers") or terms which differ from or supplement our GTC unless we have expressly agreed to their application in writing. Our GTC apply even if, in the knowledge of our Customers’ contrary terms and conditions or terms which differ from or supplement our GTC, we perform services for Customers without reservation.
- All agreements concluded between Customers and ourselves are recorded in writing (email or fax will suffice).
- Our GTC only apply vis-à-vis businesses within the meaning of § 14(1) BGB [German Civil Code].
- Where other contractual provisions in a quotation, order confirmation or in written supply contracts deviate from these GTC the other contractual provisions will take priority. Otherwise the various provisions shall apply in parallel.
Quotations, quotation documents, conclusion of contracts
- Our quotations are in principle non-binding. Customers’ orders are binding. We may accept same within two weeks of receipt.
- A contract comes into effect once we accept a Customer’s order by way of an order confirmation.
- We retain title and copyright to illustrations, drawings, calculations and other documentation. This also applies to written documentation that is identified as “Confidential”. Customers require our express written consent before it can be passed on to a third party.
- Unless expressly agreed to the contrary we do not accept responsibility for any labelling requirements over and above those mandatorily laid down by statute for deliveries specifically tendered by us. We are not obliged, in particular, to identify deliveries in accordance with any more stringent statutory provisions that may apply to Customers and/or their end products.
Prices, terms of payment, set-off, right of retention, assignment
- Unless the contracting parties should have come to any agreement thereon our prices are quoted “ex works”, excluding packaging and transportation in particular; such services are invoiced separately.
- Statutory VAT is not included in our prices; it will be shown on the invoice separately in the statutory amount as at the invoice date.
- The deduction of a discount must be specifically agreed in writing.
- Where we accept contractual responsibility for assembly or erection for a Customer and provided that nothing has been agreed to the contrary the Customer bears, in addition to the agreed remuneration, all essential ancillary costs such as travelling expenses, transportation costs for tools and equipment and personal luggage, plus relevant daily allowances.
- If a Customer should fail to pay an invoice that it has received within 30 days of the invoice date or should pay it after the agreed date of payment it will be in default without the need for a prior reminder to be sent. The Customer will also be in default on receipt of a reminder after the due date of the invoice. The statutory rules on the consequences of delay in payment will apply.
- Customers may only offset their own claims against claims by us or assert rights of retention if their counterclaims / rights are legally established as final and absolute, acknowledged by us, undisputed or at least ripe for resolution. A set-off or the exercise of a right of retention is also possible where a claim on the part of a Customer and our own claim are based in law on a reciprocal relationship.
- We are entitled to assign to a third party any claims deriving from our business dealings with a Customer. Customers may not assign or transfer to a third party any claims or rights that they have against us. The rule in § 354 a HGB [German Commercial Code] remains unaffected.
Delivery, passage of risk, period of performance, acceptance delay, force majeure, delay in performance
- In the absence of a specific arrangement we will in principle only be responsible for making contract goods available. Customers must collect contract goods from our production completion centres. Hence we will not in principle be responsible, in particular, for making delivery or packaging contract goods. Separate arrangements will apply to the return of packaging.
- Commencement of the delivery period quoted by us will be conditional upon all technical issues being resolved. Compliance with our delivery commitment will also be conditional upon prompt due fulfilment of Customers’ obligations. The right to raise the defence of non-performance of a contract is reserved.
- In the event of a Customer delaying acceptance or being in violation of any other duty of contractual cooperation we will be entitled to require compensation for the loss thereby sustained by us, including any additional expenditure. The right to assert further claims and rights is reserved.
- In the absence of a specific arrangement the risk passes to the Customer as soon as we have made the contract goods available pursuant to the contract.
If we should be responsible for the transportation of contract goods the risk passes to the Customer as soon as we hand the contract goods over to the haulage company or, if dispatch should be delayed due to no fault of our own, once we have notified the Customer of readiness for dispatch. Where the conditions in §4 sub-clause 3 are fulfilled the risk of any accidental loss of or accidental deterioration in the contract goods will pass to the Customer at the time that its delay in acceptance occurs.
- Part-performance will be permitted to a reasonable extent. Part-performance will not be permissible, for example, where the Customer has no interest in part-performance or if only a small amount has not been completed prior to part-performance or remains to be completed as a result of part-performance.
- The period of performance will be reasonably extended in the event of modifications requested by a Customer being accepted by us and in the event of force majeure, especially the occurrence of unforeseen, unavoidable circumstances for which we are not responsible (e.g. strikes or legitimate lockouts, operational disruptions, unforeseeable difficulty in the procurement of materials and energy supplies, problems arising at our own suppliers in the absence of fault, transportation delays, lack of manpower, energy or raw materials, government measures or pandemics). In such an eventuality even agreed performance periods will be subject to a reasonable extension.
If the force majeure should not be purely temporary both contracting parties will have the right to rescind the contract. Compensation claims will be ruled out in such a case in the absence of fault. We will notify Customers of the beginning and ending of force majeure as soon as possible.
- In the event of delay in delivery our liability to pay compensation will be governed exclusively by § 7 of these GTC.
Notification of contract penalties
- The Customer must inform us by no later than the conclusion of the contract if there are any contract penalties applicable vis-à-vis its own contracting parties.
Agreement on quality, notification of defects, warranty, warranty period
- The quality to be provided is based solely on the performance level and specifications expressly agreed. We only give any further warranty of quality, particularly for the contract goods’ specific application or suitability for a particular purpose, or for the length of use or durability of contract goods, if this too is expressly agreed; otherwise the risk of their suitability and use lies exclusively with the Customer.
- Customers must inspect contract goods immediately upon delivery. If inspection should reveal any defect the Customer will be required to notify us thereof in text form immediately and in any event within 8 working days of receipt of the contract goods (email or fax will suffice). If a defect should not be revealed until later on the Customer must similarly notify us thereof in text form immediately and in any event within 3 working days of its discovery (email or fax will suffice). Otherwise the contract goods will be deemed to have been approved. The provision in § 377 HGB also applies.
- Unless otherwise agreed, variations in quality, colour, size, number, weight or finish that are minor or customary in the trade, unavoidable technically or in conformity with standards, do not constitute defects.
- Where contract goods are defective and notified by the Customer in accordance with §6 sub-clause 2 of these GTC we will make good the defect or supply a flawless product, as we may choose. In doing so we will be obliged to bear all expenses necessitated by rectification, especially the cost of transportation, travel, labour and materials, provided that these are not increased by the contract goods being brought to a location other than the place of performance. We must always be given an opportunity to do so within a reasonable period of time unless the setting of a period of time is unnecessary. Rectification does not include the installation or removal of the contract goods or the covering of corresponding costs.
If rectification should fail or the setting of a period of time be unnecessary the Customer may rescind the contract, reduce the agreed price or claim damages if the relevant statutory requirements are fulfilled and, in the case of damages, the extra requirements in § 7 of these GTC are met.
- The limitation period for defect claims is 12 months, calculated from delivery of the contract goods or – where legally applicable – acceptance. In cases under §§ 438(1) No. 2, 438(3), 445b BGB, 634a(1) No. 2, and 634 a(3) BGB the limitation periods provided therein will apply. Where a defect is fraudulently concealed the limitation period is governed by statute. If we should be liable in damages pursuant to § 7 of these GTC the warranty period regarding damages will also be governed by statute.
Our limited liability in damages
- If we, our legal representatives, employees or agents should be in breach of duty with wilful intent or gross negligence, especially under a contractual relationship, or should commit a tortious act with wilful intent or gross negligence our liability for Customers’ resultant losses will be as defined by statute.
- If we, our legal representatives, employees or agents should be in breach of duty due simply to carelessness any claims against us by Customers for damages and reimbursement of expenses of any type and on any grounds whatsoever, especially for breach of duty under a contractual relationship or due to a tortious act, will be precluded. This does not apply to a simply careless breach of a major contractual obligation. In those circumstances liability will be limited to foreseeable damage typical of the contract concerned. A major contractual obligation for this purpose is one that makes proper fulfilment of the contract possible at all and upon whose compliance the Customer normally relies and is entitled to rely.
- The above exclusion of liability / limit on liability does not apply to liability for culpable injury to life or limb or damage to health, nor to liability based on fraudulent concealment of a defect, nor where there is liability for breach of a warranty of quality or where there is liability under the Product Liability Act.
- The statutory rules on burden of proof are not affected by the above provisions.
Industrial property rights and copyright
- We are not generally aware of the actual place of installation or use of contract goods. Customers are therefore required, in particular, to carry out their own checks as to whether there might be any infringements of intellectual property or other violations committed at their place of installation or use.
- Unless otherwise agreed, we are only obliged to effect delivery in the country of delivery free of third-party industrial property rights and copyright (hereinafter called: “intellectual property”). In the event of a third party asserting justified claims against a Customer for violation of intellectual property as a result of deliveries made by us and used pursuant to contract our liability towards the Customer will be as follows:
a) We may choose, at our own expense, to either obtain a right of use for the deliveries concerned, to modify them in such a way that there is no violation of that intellectual property, or to exchange them. Should this not be possible for us on reasonable terms and conditions the Customer will have its statutory right of rescission or right to a reduction.
b) The aforementioned obligations do not apply unless the Customer promptly informs us in writing that claims are being asserted by a third party, has not acknowledged the violation, and all defensive measures and settlement negotiations are reserved to us. If the Customer should suspend its use of a delivery for damage mitigation or other important reasons it will be obliged to indicate to the third party that such suspension does not entail any acknowledgement of a violation of intellectual property.
c) Customers’ claims are precluded where they alone are responsible for the violation of intellectual property.
d) Customers’ claims are also precluded where the violation of intellectual property is caused by specifications made by the Customer, by an application not foreseeable by us or by the fact that the delivery has been modified by the Customer or is being used together with products not supplied by the supplier.
- Our liability to pay damages is also governed by § 7 of these GTC.
Retention of title
- We retain title to contract goods until all payments under the supply contract have been received. In the event of a Customer’s conduct being in breach of contract, especially in arrears with payment, we will have the right to recover the contract goods. Our recovery of the contract goods will constitute rescission of the contract. After the contract goods have been recovered we will be authorised to sell same and offset the proceeds of sale against the Customer’s debt “less reasonable sales expenses”.
- The Customer is required to handle contract goods with care; it must especially insure them adequately at reinstatement value against fire, water damage and theft at its own expense. Should maintenance and inspection work be necessary the Customer must carry this out in good time at its own expense.
- In the event of seizure or other action by a third party the Customer must promptly inform us in writing so that we are able to instigate legal action pursuant to § 771 ZPO [German Code of Civil Procedure]. Should the third party not be in a position to reimburse us the court and out-of-court costs of a lawsuit pursuant to § 771 ZPO the Customer will be liable for the loss incurred by us.
- The Customer is entitled to sell on contract goods in the ordinary course of business; however, it hereby assigns to us right now – in the amount of the final invoiced amount due to us (including VAT) – all accounts receivable due to it from its own customers or third parties as a result of selling the goods on, irrespective of whether the contract goods are sold on with or without further processing. The assignment also covers, in particular, those accounts receivable which the Customer acquires as a result of its own customers making payment to its banks. The Customer remains authorised to collect such accounts receivable even after the assignment. Our authority to collect such accounts receivable ourselves will not be affected hereby. However, we undertake not to collect such accounts receivable provided that the Customer meets its payment obligations out of the proceeds collected, does not fall into arrears with its payments and, in particular, provided that it does not file for insolvency or bankruptcy or institute a payment freeze. If that should be the case, however, we may require the Customer to disclose the assigned accounts receivable and their debtors, provide all information which is necessary for collection, hand over the related documents and advise the debtors (third parties) of the assignment.
- The processing or transformation of contract goods by the Customer is always carried out for us. If contract goods should be processed together with other items not belonging to us we will acquire joint title to the new item in the proportion that the value of the contract goods (final invoiced amount including VAT) bears to the other processed items as at the time of processing. The same provisions apply to the item created through such processing as apply to the contract goods subject to retention of title.
- If contract goods should be inseparably mixed with other items not belonging to us we will acquire joint title to the new item in the proportion that the value of the contract goods (final invoiced amount including VAT) bears to the other mixed items as at the time of mixing. If mixing takes place in such a way that the Customer’s item is to be considered the main item it is deemed agreed that the Customer will transfer proportionate joint title to ourselves. The Customer will hold the resultant sole or joint title on our behalf.
- To secure our claims against the Customer, the Customer also assigns to us any receivables from third parties that arise for the Customer as a result of the incorporation of the contract goods in real property.
- We commit to release the securities we are entitled to upon the Customer’s request if their value exceeds the receivables to be secured by more than 10%; the choice of securities to be released will be up to us.
Intra-Community supply of goods
- The Customer understands that under § 4 No. 1b UStG [German VAT Act] in the case of an intra-Community supply of goods where contract goods arrive in another EU Member State it will receive an invoice that does not include VAT. This tax exemption for the intra-Community supply of goods is conditional upon confirmation by the Customer that the contract goods have arrived in another EU Member State. The Customer must therefore confirm to us in writing within three months of delivery that the contract goods have arrived in another EU Member State. By providing such confirmation the Customer is stating that that the contract goods have indeed arrived in another EU Member State (confirmation of arrival). The confirmation of arrival must include
- The name and address of the buyer,
- The quantity of goods in the delivery and commercial designation, including vehicle identification number (VIN) where the contract goods are a vehicle,
- Details of the place and month (not day) that transportation or dispatch comes to an end, i.e. that the contract goods are received in the Community, even where they are collected and/or transported by the Customer itself,
- The date of issue of the confirmation,
- The signature of the buyer or a person authorised by it to confirm acceptance.
- It is sufficient for confirmation of arrival to be sent by electronic transmission in an email provided that it is ascertainable that such electronic transmission began within the realm of authority of the buyer or its authorised agent, e.g. via the email account used by the buyer / Customer. Should this be the case and should the Customer send confirmation of arrival electronically a signature by the buyer or an agent authorised by the buyer to confirm acceptance will not be necessary.
- Should confirmation of arrival from the Customer not reach us within three months of a delivery we will be entitled to issue an amended invoice. When making such an amendment we will have the right to include in the invoice the amount of VAT that is payable if we do not receive the confirmation of arrival. In such a case the Customer must immediately pay the VAT to us.
- Should the Customer fail to promptly send us a confirmation of arrival on time and in accordance with legislative requirements we will have the right, where future purchases are made by the Customer, to charge VAT even where it collects goods itself and contract goods arrive in another EU Member State. In this case we will refund the VAT to the Customer once it sends us a confirmation of arrival.
- The Customer has the ability to use as a template for confirmation of arrival our specimen form available to be downloaded at [LINK] in German and [LINK] in English and to amend and edit it in full. We do not give any warranty for legal consequences deriving from the use of our specimen form as we consider this to be just a service provided to our Customers. The Customer is responsible for the entire content of confirmation(s) of arrival issued by it.
Agents, place of performance, jurisdiction, law applicable, severability clause
- We may make use of agents or third parties in relation to all contractual performance.
- The place of performance for all services under the contractual relationship is our company’s registered office in Friedberg.
- The place of international jurisdiction is Germany. Where the Customer is a trader, legal person governed by public law or a special fund under public law the place of jurisdiction for both parties will be our company’s registered office in Friedberg although we reserve the right to also institute legal proceedings at the Customer’s general place of jurisdiction.
- The law of the Federal Republic of Germany applies; the UN Convention on the International Sale of Goods (CISG) does not apply.
- If any individual provisions in these GTC should be or become invalid the validity of the rest of the GTC will not be affected. The parties will replace the invalid provision by such provision as is closest to the commercial content of the invalid provision. The same will apply in the event of an unintended omission.
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 Directors: Oliver Neil, Hubert Schnatterer