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GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT

Section 1 General - scope

(1)       All deliveries, services and offers of JUNG since 1828 GmbH & Co. KG (hereinafter the "Seller" or "Us"), without consideration given to whether or not we manufacture the goods or purchase them from suppliers, shall apply exclusively on the basis of these General Terms and Conditions of Delivery. These are deemed an integral part of all contracts that the Seller enters into with its contracting parties (hereinafter also referred to as the "Principal") on the deliveries and services it offers. They also apply to all future deliveries, services or offers for the Principal, including if they are not been separately agreed upon again.

(2)       The terms and conditions of business of the Principal or the third parties shall not apply, including if the Seller does not object to their validity separately in an individual case. Even if the Seller cites a letter containing the terms and conditions of business of the Principal or a third-party, or refers to such conditions, this shall not constitute any kind of consent to the validity of such terms and conditions of business. The terms and conditions of business of the Principal or third parties shall only apply if and to the extent that we have expressly agreed that such conditions apply. This approval requirement shall apply in any case, for example including if we unconditionally deliver the goods to the Principal although we are aware of the Principal's general terms and conditions of business.

(3)       These General Terms and Conditions of Delivery shall only apply if the Principal is an entrepreneur (Section 14 BGB (German Civil Code), a legal person under public law or special public funds.

Section 2 Offer and entering into the contract

(1)       Our offers are subject to change without notice and are non-binding provided they are not expressly stated as binding or are not subject to a certain acceptance period. The Seller can accept orders or assignments within 14 days following receipt.

(2)       Solely the contract of purchase entered into in writing by the Seller and Principal, including these General Terms and Conditions of Delivery, is authoritative in respect of the legal relations. Such a contract reflects all agreements in full between the contracting parties with regard to the subject matter of contract. Verbal assurances on the part of the Seller prior to entering into this contract are legally invalid, and verbal agreements of the contracting parties shall be replaced by the written contract provided they do not expressly state that they are to continue to apply with binding force.

(3)       Orders and declarations of acceptance shall be subject to the written form in order to be deemed legally valid. This applies to the same extent to supplementary information, subsidiary agreements and amendments. Forwarding via telecommunication in writing, in particular by fax or e-mail, are deemed to satisfy the written form. This does not affect statutory form requirements and additional proof, in particular in the case of doubt about the legitimation of the declaring party.

(4)       If the order is placed via our internet portal in which the Principal goes through a multi-tier selection process, a contract shall only be brought about by way of our confirmation of order. This shall be made available to the Principal in a printable form electronically (by e-mail or direct call-up from the online portal).

(5)       The Seller's details such as plans, drawings, diagrams, measurements, weights, repro, tolerances, consumption figures, load and other performance data shall only have binding force if this is expressly assured in writing. In other respects, they do not constitute any warranted characteristics but rather are delivery or service descriptions or identifications.

Section 3 Samples, forms, drawings, repro, plates, printing blocks, tools, other documents and utilisation rights to artwork

(1)       We reserve ownership of and copyrights to diagrams, drawings, calculations, written documents, tools, samples, hand specimens, graphic services and dummies. Furthermore, we reserve ownership of and copyrights to any offers and cost estimates that we make.

(2)       The Principal may neither make these items available to third parties as such nor in terms of their content, disclose them or use them or arrange for third parties to use them without express approval. At the request of the Seller, the Principal is to return such items in full to the seller, and destroy copies that may have been made, if they are no longer required during the normal course of business or if negotiations no longer lead to the entering into of a contract.

(3)       The manufacturing tools shall remain our property. This shall also apply if an interested party or the Principal has a financial interest in the manufacture. We shall store the manufacturing tools on behalf of the Principal at most for 2 years following delivery of the ordered goods.

(4)       We reserve the right to further use products manufactured by order of the Principal as samples or for advertising purposes.

(5)       The Seller is the author and/or owner of all utilisation and exploitation rights to created diagrams, drawings, shapes, plans, measurements, samples, hand specimens or other artwork services (hereinafter overall described as "Artwork"). The Seller shall grant the Principal a basic utilisation right, which is not restricted in terms of geography, to such Artwork but is limited to the purposes proposed in the contract and may only apply in conjunction with the contractual relationship with the Seller. Use of the Artwork by the Principal for its own purposes that are not associated with the Seller's services is not permitted.

Section 4 Flat rate compensation following sampling / artwork services

Where the Principal arranges to have the product manufactured elsewhere following sampling or artwork by us, the Principal undertakes to pay to us flat rate compensation in the sum of 20% of the order value if it does not furnish proof less damage. We reserve the right to assert further-reaching claims for damage or other claims.

Section 5 Prices, terms and conditions of payment

(1)       The prices apply to the service and delivery scope set out in the confirmation of order. Additional and special services shall be charged separately. The prices are to be understood in EUR ex works plus packaging, statutory VAT, in the case of export deliveries customs duties and charges and other public levies.

(2)       The statutory VAT is not included in our prices. It shall be stated separately in the invoice at the statutory amount on the day of invoicing. Furthermore, shipping costs, the cost of repro, drawings, plates, printing blocks, sieves and other tools required to manufacture advertising sweets shall be invoiced separately.

(3)       Unless otherwise stated in the confirmation of order, the purchase price (without deductions) falls due for payment within 30 days from the invoice date. Receipt by the Seller is authoritative with regard to the payment date. The statutory provisions apply to the consequences of default in payment.

(4)       We reserve the right to adjust our prices, with consideration given to the Principal's interests, if the delivery occurs more than 3 months after entering into the contract we incur cost increases, in particular as a result of personnel cost increases or material price changes. On request, we shall furnish the Principal with proof of cost increase as soon as and to the extent that they occur. An adjustment of more than 10% of the original price is excluded. In such cases, the parties shall be entitled to withdraw from the contract.

(5)       If the Principal fails to honour its payment obligations or if knowledge is gained after entering into the contract that are capable of significantly reducing the Principal's creditworthiness and this jeopardises the settlement by the Principal of the Seller's outstanding claims resulting from the respective contractual relationship (including from other individual orders for the same framework contract), the entire residual debt of the Principal shall immediately fall due for payment. In addition, the Seller is entitled to make deliveries or render services only subject to advance payment or provision of security if

(6)       The Principal shall only be granted the right to set off if its counter-claims are res judicata, undisputed or have been acknowledged in writing by us. In addition, the Principal shall only be authorised to exercise a right of retention if its counter-claim is based on the same contractual relationship.

Section 6 Place of performance, shipping, packaging, passing of risk, acceptance, prices and terms and conditions of payment

(1)       In the absence of provisions to the contrary in the order confirmation, deliveries shall be agreed upon as "ex works" and exclude packaging. In the absence of provisions to the contrary, the Seller's registered office shall be deemed the place of performance for all obligations, including subsequent performance that may apply.

(2)       At the Principal's request and cost, the goods shall be shipped to another place of destination (sales shipment). In the absence of agreements to the contrary, we shall be entitled to determine the type of shipping (in particular transport company, shipping route and packaging).

(3)       We reserve the right to variations in quantity of up to 10% based on technical reasons.

(4)       Transport and all other packaging in accordance with the German Packaging Ordinance shall not be taken back. This does not apply to pallets. The Principal undertakes to dispose of the packaging at its own cost.

(5)       Where expressly requested by the Principal, we shall insure the delivery by way of transport insurance with cover against theft, breakage, transport and water damage and other insurable risks. The costs that apply in this respect shall be borne by the Principal.

(6)       In the absence of written agreements to the contrary, deliveries abroad shall apply subject to bank-confirmed letters of credit.

(7)       Hand over or acceptance shall be deemed to have occurred if the Principal is in default of acceptance.

(8)       Risk of accidental loss of and accidental deterioration in the goods shall pass to the Principal at the latest upon handover. In the case of a sales shipment, risk shall pass to the Principal at the latest upon the handover of the delivery item (whereby the start of the loading procedure is authoritative) to the forwarding agent, carrier or other third party determined to send the consignment. This also applies if partial deliveries are made or the Seller has assumed other services (e.g. shipping). If the shipping or the handover is delayed as a result of a circumstance the cause of which is the Principal's responsibility, risk shall pass to the Principal from the day on which the delivery item is ready for dispatch and the Seller has notified the Principal in that respect.

(9)       If the Principal defaults in acceptance, fails to collaborate or if our delivery is delayed for reasons that are not the Principal's responsibility, we shall be entitled to request compensation for the resulting damage, including additional expenses (e.g. warehouse costs). In this respect we shall charge flat rate compensation in the sum of 0.25% of the invoice amount of the delivery items to be warehoused for each full week of the delay starting from the delivery period - in the absence of a delivery period upon notification that the goods are ready for dispatch. This shall not affect proof of greater damage or our statutory claims (in particular compensation for additional expenses, reasonable compensation and termination). However, the flat rate is to be counted towards further-reaching money claims. The Principal is reserved the right to furnish proof that we did not sustain any damage at all or only sustained considerably less damage than that equated with the aforementioned flat rate.

Section 7 Delivery and delivery time

(1)       The start of the delivery time stated by us is conditional on clarification of all technical matters.

(2)       The periods and dates for deliveries and services for which the Seller holds out prospects apply, at all times, on an approximate basis unless a fixed period or a fixed date has been assured or agreed upon on a fixed basis. Insofar as shipping has been agreed upon, the delivery periods and delivery dates refer to the time of the handover to the forwarding agent, carrier or other third parties entrusted with the transport.

(3)       Furthermore, honouring our delivery obligation is conditional on the fact that the Buyer honours its obligations in good time and properly. We reserve the right to object to the failure to execute the contract.

(4)       Subject to agreements to the contrary, the Seller shall be entitled to make partial deliveries if

-                      the Principal can use the partial delivery as part of the purpose intended in the contract,

-                      delivery of the remaining ordered goods is guaranteed, and

- as a result the Principal does not incur considerable additional expenses or additional costs (unless the Seller states that it is willing to assume such costs).

(5)       Cases of force majeure (unforeseen circumstances and events, which are not our responsibility, that could not be avoided including with the diligence of a prudent businessman, in particular industrial action, including such that affects suppliers, war, fire, transport restrictions, shortage of materials, administrative measures, natural disasters, untimely and incorrect own deliveries by suppliers irrespective of entering into a congruent covering transaction) shall not be our responsibility, including in the case of periods and dates agreed upon with binding force. This also applies if these affect suppliers and their suppliers. They shall entitle us to postpone the delivery or service by the period of obstruction plus a reasonable lead time. Insofar as such events significantly hamper or render impossible the delivery or service by the Seller, and the hindrance is not merely of a temporary nature, the Seller shall be entitled to withdraw from the contract. A preliminary service already rendered is to be taken into consideration in winding-up the contract.

(6)       If the Seller defaults in performance or service, or if the Seller is unable to provide a delivery or render a service for whichever reasons, the Seller's liability shall be limited in accordance with Section 9 of these General Terms and Conditions of Delivery.

Section 8 Guarantee

(1)       The Buyer's claims regarding defects are conditional on the fact that the Buyer has properly honoured its obligations to inspect and provide notification of defects in accordance with Section 377 HGB (German Commercial Code). The delivered goods are to be inspected with due care without delay following delivery to the Principal or the third parties determined by the Principal. With regard to obvious defects or other defects that would be identifiable in the case of an immediate inspection with due care, these shall be deemed authorised by the Principal if the Seller does not receive written notification of defects within 5 workdays following delivery. With regard to other defects, the goods shall be deemed authorised by the Principal if the Seller does not immediately receive the notification of defects once the defect is identified. However, if the defect was already obvious at an earlier time, such an earlier time shall be authoritative for the start of the period for making a claim. At the Seller's request, a delivery item about which a complaint has been made is to be returned freight-free to the Seller. In the case of justified notification of defects, the Seller shall reimburse the cost of the most cost-effective shipping route.

(2)       The Seller's goods may be perishable. In the absence of agreements to the contrary, we shall deliver fresh goods. The customer is to make enquiries with us about the shelf life of the goods. The shelf life details stated by us shall only apply in the case of appropriate storage.

(3)       Insofar as the object of sale is faulty, the Seller shall, at its own discretion, be entitled to provide subsequent performance in the form of remedying defects or deliver of a new, fault-free item within a reasonable period.

(4)       If the subsequent performance fails (i.e. the subsequent performance, or replacement delivery, is impossible, unacceptable, refused or unreasonably delayed), the Buyer shall be entitled, at its discretion, to withdraw from the contract of request a reduction in the purchase price.

(5)       Where a defect in the goods is based on the Seller's culpability, the Principal may, subject to the conditions of Section 9, request compensation for the sustained damage.

(6)       The period of limitation for warranty claims is 12 months from the passing of risk. This period does not apply to the Principal's claims resulting from the loss of live, physical injury or detrimental effects on health or from intentional or gross negligent violations of obligations by the Seller or its vicarious agents, which in each case shall fall under the statute of limitations in accordance with the statutory requirements.

(7)       Only the Principal shall only be entitled to make warranty claims against us, and such claims may not be assigned.

Section 9 Damages

(1)       Our liability for damages, irrespective on whichever legal basis this is based, is limited in accordance with this Section 9 provided in that respect in each case culpability is relevant. In the absence of provisions to the contrary below, liability is excluded.

(2)       The Seller shall be liable in accordance with the statutory provisions provided the Principal asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. We shall not be liable in the event or minor negligence on the part of our executive bodies, legal representatives, white-collar workers or other vicarious agents provided the matter does not involve the violation of key contractual obligations. Obligations that are key to the contract include the obligation to provide timely delivery and installation of the delivery item, the fact that it is free of faults that have more than just an insignificant detrimental effect on its functionality and suitability for use, as well as consulting, protection and care obligations that should enable the Principal to use the delivery item as per agreement or are aimed at protecting the life of and preventing danger to the personnel of the Principal or protection of their property from considerable damage.

(3)       Insofar as the Seller is liable for damages in accordance with sub-section 2 on merit, such liability shall be limited to damage that the Seller had foreseen upon entering into the contract as a possible consequence of a breach of contract or which it should have foreseen in the case of applying customary care. In addition, indirect and consequential damage as a result of defects in the delivery item shall only be subject to compensation provided such damage is typically to be expected in the case of using the delivery item as per agreement. This does not apply in the case of intentional violations of obligations.

(4)       In the event of liability for minor negligence, the obligation to provide compensation on the part of the Seller and the resulting additional pecuniary damage shall be limited to an amount of EUR 10,000 for each case of damage, including if key contractual obligations are violated.

(5)       Insofar as liability for damages in dealings with us is excluded or limited, this shall also apply in view of the personal liability for damages on the part of our salaried staff, employees, workers, representatives and vicarious agents.

(6)       The limitation in accordance with Section 9 also applies insofar as the Principal requests in the place of a claim for damages compensation for expenses incurred in vain.

(7)       The period of limitations for claims in accordance with this Section 9 is 12 months calculated from the passing of risk.

(8)       The regulation of Section 9 does not affect liability for damage resulting from the loss of life, physical injury or detrimental effects on health that are based on a negligent violation of an obligation by us or an intentional or negligent violation of an obligation by a legal representative or vicarious agent. Similarly, the fraudulent concealment of defects or provision of a guarantee and the obligatory obligation in accordance with the German Product Liability Act do not affect our liability.

Section 10 Organic certification and marketing organic products

We are certified in accordance with the European Directive No. 834/2007 on the Labelling of Organic Products and Directive No 889/2008, and may process and trade in organic products. The Principal must likewise be certified for the marketing (for example as shipping service provider for organic food) of organic products in accordance with these EU Directives.

Section 11 Securing reservation of title

(1)       We reserve ownership of all delivery items up until all claims against the Principal have been honoured, including all accessory claims resulting from the business relationship with the Principal.

(2)       In the event of conduct in breach of contract on the part of the Principal, in particular default in payment, we shall be entitled to take back the object of sale. If we take back the object of sale, this is not equated with a withdrawal from contract unless we have expressly stated such in writing. Seizure of the object of sale by us shall, at all times, constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to utilise it and the utilisation proceeds are to be set off against the Buyer's liabilities - less reasonable utilisation costs.

(3)       The Buyer undertakes to treat the object of sale with due care. The Buyer undertakes, in particular, to adequately insure it at replacement value at his own cost against damage caused by fire, water and against theft. The Buyer assigns to us at this point in time all claims against the insurer resulting from the aforementioned damaging events.

(4)       In the case of seizure or other intervention by third parties, the Buyer is to inform us in writing without delay so that we can bring legal action in accordance with Section 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with Section 771 ZPO, the Buyer shall be liable for the shortfall we suffer. The aforementioned obligation to provide notification also applies in the case of loss of or damage to the reserved goods.

(5)       The Buyer is entitled to re-sell the object of sale during the course of ordinary business activity. Otherwise, this shall be subject to our prior, written, approval, in particular in the case of seizure or ownership transfer by way of security. However, the Buyer assigns to us at this point in time all claims in the sum of the invoice amount (including VAT) of our claim, to which the Buyer is entitled from the resale against its customers or third parties, and irrespective of whether or not the object of sale is re-sold without or following processing. The Buyer continues to be authorised to collect this claim including following the assignment. This does not affect our authority to collect the claims. However, we shall not collect a claim as long as the Buyer honours its payment obligations resulting from the collected proceeds, does not default in payment and in particular an application has not been filed for the institution of insolvency proceedings or payment is not discontinued. However, if this is the case, the we shall be entitled to demand that the Buyer disclose to us the assigned claims and the debtors on such claims, provide all the necessary information, surrender the related documents and notify the debtors (third parties) of the assignment.

(6)       The processing or refashioning of the object of sale by the Buyer shall at all times be carried out on our behalf. If the object of sale is processed using other items that we do not own, we shall acquire co-ownership of the new item in proportion of the value of the object of sale (final invoice amount including VAT) to that of the other processed items at the time of processing. In other respects, whatever applies to the object of sale delivered subject to reservation also applies to the item created by way of processing.

(7)       If the object of sale is inseparably mixed with other items that we do not own, we shall acquire the co-ownership of the new item in the proportion of the value of the object of sale (invoice amount, including VAT) to that of the other mixed items at the time of mixing. If the mixing is performed in such a manner that the Buyer's item is to be regarded as the primary item, it shall be deemed agreed upon that the Buyer shall assign proportionate co-ownership to us. The Buyer shall store the sole ownership or co-ownership created in this manner on our behalf.

(8)       We undertake, at the Buyer's request, to release the securities to which we are entitled insofar as the value of our securities that can be realised exceeds the claims to be secured by more than 10%. Securities shall be released at our discretion.

Section 12 Place of jurisdiction and safeguarding clause

(1)       Where the Principal is a merchant, legal person under public law or special public funds, or if the Principal does not have a general place of jurisdiction in the Federal Republic of Germany, the court with jurisdiction for our place of business shall be deemed the place of jurisdiction. However, we are also entitled to bring legal action against the Buyer at the court with jurisdiction for its place of residence or principal place of business. This provision does not affect mandatory provisions in respect of sole jurisdictions.

(2)       The law of the Federal Republic of Germany applies. Applicability of the United Nations Convention on the International Sale of Goods dated 11.04.1980 (CISG) is excluded.

(3)       In the event that an individual provision of the contract entered into with the customer, including the general terms and conditions of business, is or becomes wholly or partially invalid, this shall not affect the validity of the other provisions. The wholly or partially invalid regulation is to be replaced by a regulation that comes closest in terms of its economic success to that intended by way of the invalid regulation.

The products in the catalogue and on this website are not illustrated faithfully and differ in size, form and colour from the original products. We accept no liability for printing errors, mistakes or amendments.

 

(05 december 2019)

JUNG since 1828 GmbH & Co. KG · Uhlandstr. 36 · 71665 Vaihingen/Enz · Germany